Negligence as a tort may be defined as the breach of a duty of care owed by the defendant to the plaintiff by not complying with the standard of care of the reasonable person which results in the plaintiff suffering damage. The damage may be personal injury, damage to property or just pure economic loss. It may in addiction, consist of psychiatric damage also known as "nervous shock".
Before 1932, the Courts followed precedent in earlier cases that if a duty of care was held to exist in a similar earlier case then the judge held there was a duty of care but if a duty was held not to exist in an earlier case then the judge held there was no duty. There were very few factual situations where a duty was held to exist.
In Donoghue v Stevenson(1932) Lord Atkin, in attempting to trace a common thread through existing authority, formulated a general principle - the "neighbour principle" - for determining whether, in any given case, a duty of care should exist. He said: "You must take reasonable care to avoid acts or omissions which you can reasonably forsee would be likely to injure your neighbour.... Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."
The significance of this principle was that it firmly established negligence as an independent tort and provided a basis for its expansion to cover situations not governed by precedent.
Up until this time, the usual remedy for damage caused by a defective product would be an action in contract, but this was unavailable to Ms. Donoghue because the contract for the sale of the ginger beer with the snail in it was between her friend and the café. Donoghue sued the manufacturer and the House of Lords agreed that the manufacturer owed a duty of care to the end consumer of their products.
A case similar was that of Haley v London Electricity Board, the defendants dug a trench in the street. Their precautions for the protection of passers-by were not sufficient to protec the claimant, because he was blind. He was injured as a result, and the court held that the number of blind people who walk about on their own made it foreseeable that such a person could be injured and therefore gave rise to a duty of care to take suitable precautions to prevent such injury.
This is not to say that cases in which no duty ...
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A case similar was that of Haley v London Electricity Board, the defendants dug a trench in the street. Their precautions for the protection of passers-by were not sufficient to protec the claimant, because he was blind. He was injured as a result, and the court held that the number of blind people who walk about on their own made it foreseeable that such a person could be injured and therefore gave rise to a duty of care to take suitable precautions to prevent such injury.
This is not to say that cases in which no duty had been held to exist prior to 1932 would thereafter be decided differently simply on the basis that the damage in question was reasonably foreseeable, since it is clear from the neighbour principle itself, as emphasised in a number of recent decisions, that there must also be a sufficient relationship of proximity between the parties.
In the case of Anns v Merton London Borough, Lord Wilberforce proposed a significant extension of the situations where a duty of care would exist, arguing that it was no longer necessary to find a precedent with similar facts. He suggested that whether a duty of care arose in a particular factual situation was a matter of gerneral principle.
In order to decide whether this principle was satisfied in a particular case, the courts should use a 2 stage test. First, they should establish whether the parties satisfied the requirements of the neighbour thest i.e. whether the claimant was someone to whom the defendant could reasonably be expected to forsee a risk of harm if th eanswer was yes, a prima facie duty of care arose.
The second stage would involve asking whether there were any policy considerations which dictated that no duty should exist.
After Anns , the test would apply unless there were policy reasons for excluding it, but there was a problem with this test. It could be applied with little regard for previous case law. There were also problems with social, economic and financial policy and it led to a rapid judicial retreat.
In 1990, the case of Murphy v Brentwood District Council came before a 7 member house of lords. The house invoded the 1966 Practice Statement (which allows them to depart from their own previous decisions) to overrule Anns.
Lord Wilberforce said, "... the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has to exist..."
This left the courts to impose duties of care only when they could find precedent in comparable factual situations.
In Caparo Industries plc v Dickman it was stated that there were now 3 questions to be asked in deciding whether a duty of care was owed by the defendant to the claimant. Was the damage to the claimant reasonably foreseeable? Was the relationship between the claimant and the defendant sufficiently proximate? Is it just and reasonable to impose a duty of care? These rules established the Caparo test which applies in most cases.
It is well established that physical injury can give rise to a claim in tort, but what about psychiatric damage (often called "nervous shock")? In the same way the concept of a duty has been used to limit recovery for claims of economic loss, it has been used to limit recovery for psychiatric damage. There are severe restrictions on when it can be claimed.
The term 'nervous shock' implies that claimants can seed damages because they are shocked at the result of a defendants negligence, or perhaps upset, frightened, worried or grief-stricken. A claimant must prove that they suffered from a genuine illness of injury.
When Mc Loughlin v O'Brien reached the House , only one previous case of this nature had fallen to be decidend by their lordships, that of Bourhill v Young.
Lord Macmillan said, "... it is now well recognised that an action will lie for injury by shock sustained through the medium of the eye or the ear without direct contact."
The pursuer in Bourhill v Young saw nothing of the fatal accident which gave rise to her claim for nervous shock. No duty of care was found to be owed to Ms. Bourhill by the motorcyclist since he could not be held to have reasonably forseen the likelihood that the pursuer place as she was, could be affected by his negligent act.
The decision in McLouglin v obrien had the effect of broadening the scope of the duty of care through the introduction of the immediate aftermath doctrine.
The plaintiff, following a road accident in which her husband and children - one of whom died- were severely injured, was held by the house of lords to be entitled to recover damages as against the defendants, for the cosepuent psychiatric illness which she suffered on observing the injured members of her family, not at the scene of the accident, but some time later at the hospital.
It was held in the CA that allowing the plaintiff's appeal, that the nervous shock assumed to have been suffered by the plaintiff, had been the reasonably foreseeable result of th einjuries to her family caused by the defendants negligence.
It was not until 1991 that the HL was called upon to consider the question of proximity of relationship of plaintiff to victim or potential victim of negligence. The case was Alcock v Chief Constable of the South Yorkshire Police (1991) and was brought as a result of the disaster at Hilsborough Stadium in Sheffield in April 1989, in which 95 spectators were killed and a further 400 injured due to a crush of fans at a football match when part of the stadium collapsed. The tragedy was caused by the defendants' negligence in the admission of numbers beyond the capacity, both of the grounds and of police control.
The reasoning both of the majority and Lord Wilberforce in McLoughlin were considered by the house of Lords in Alcock . The Lords considered that psychiatric illness can arise in a number of ways following injury to a loved one.
Conclusion
Both medical research and law have increasingly acknowledged the condition of post traumatic stress disorder. It has been demonstrated to be a recognisable psychiatric illness for which damages are recoverable.
The injury must be shock induced caused by the defendant's act or omission.
A psychiatric disorder which, in 1861, the law could not value, has been valued, and a condition which the law did not pretend to redress, has been increasingly understood and redressed by the law. For future cases in this area of personal injuries, the courts have the advantage of the precedents already laid down, of informed and enlightened medical and legal opinion born of ongoing research and precednt, and of the good sense of the judges, all of which have come together to constiute the present law regarding a vast and enigmatic subject.
