(b) Pete could be liable for the psychiatric injury suffered by Bill if it is established, amongst other factors, that on the basis of medical evidence he has suffered a definite psychiatric injury. Bill does not seem to have a recognised psychiatric illness though the different elements could accumulate to post traumatic stress disorder. If this is found to be the case then Bill will be able to continue with legal proceedings. Bill is a secondary victim as he is a witness to the immediate aftermath of the accident involving both Pete and Alan. Liability here will depend upon the proof that it was reasonably foreseeable that injury would result from the act and that a relationship of proximity existed between the plaintiff (Alan) and the defendant (Bill). Following Bourhill the case of Page v Smith has stated that the defendant will not be liable unless ‘psychiatric injury is foreseeable in a person of normal fortitude’. It could be agued that it was reasonably foreseeable that Bill may obtain psychiatric injury as a consequence of comforting and providing first aid to Pete who was screaming in agony and covered in blood, and that this would be foreseeable in a person of normal fortitude. In McFarlane v E Caledonia Ltd it was held that a bystander however could not recover for injury. On the other hand though, due to the nature of the facts in that Bill provides comfort and first aid, he may be classed than more than a mere bystander. In regards to the element of proximity, the criteria applicable at present is that the claimant must have a ‘close tie of love and affection’ with the victim of the traumatic event, he must be at the scene of the traumatic event or come upon its immediate aftermath and must personally perceive the traumatic event or its immediate aftermath. Therefore it will not be sufficient to be told of the event by a third party. Bill has the proximity of time and space and perception as he heard the crash and came to immediate assistance, however he does not have the necessary proximity of a relationship with Pete. Nevertheless in Alcock per Curiam stated that ‘the class of persons to whom a duty may be owed to take reasonable care to avoid inflicting psychiatric injury through nervous shock sustained by reason of psychiatric injury or peril to another is not limited by reference to particular relationships such as husband and wife or parent and child thought it must be within the defendant's contemplation’. Therefore, liability will depend on the closeness of the relationship between Bill and Alan with the burden on Bill to prove such a criteria. It is unlikely that Bill will be able to prove such a relationship.
If it is established that Bill is a rescuer and more than a mere bystander, then he will be treated as a primary victim. Liability for nervous shock was extended to rescuers in Chadwick, which also stated that a relationship with any one of the victims was not relevant to a claim. However Bill is an off-duty fireman, so it may be argued that he is not a rescuer in the sense of ‘Chadwick’. It may also follow that he is a secondary victim as he would therefore still not be within the range of foreseeable injury for the purpose of Page v Smith. The law relating to both lay and professional rescuers has been established in that lay rescuers can succeed in a claim for compensation if they suffer mental injury as a result of performing rescue type activities. In the recent decision of the House of Lords in White the Law Lords found that both lay and professional rescuers could claim compensation for psychiatric injury, in the absence of any physical injury, but only if they were at risk of physical injury or believed themselves to be. However, Bill personally was in no risk of physical injury as like the claimant in Greatorex and unlikely to believe he would be.
(c) Pete and Bolchester Hospital Trust could be liable for the psychiatric injury suffered by Carol if it is established on the basis of medical evidence that she has suffered a definite psychiatric injury.
Carol is a secondary victim, even though she was not at the scene of the accident. Liability here will depend upon the proof that it was reasonably foreseeable that injury would result from the act and that a relationship of proximity existed between the Carol and Bill. Following the case of McLoughlin in which the question for the House of Lords was whether liability for nervous shock could be extended to someone who subsequently comes upon the aftermath of a horrendous event, as in this case with Carol, it was held that the test of liability for damages for ‘nervous shock’ was reasonable foreseeability. Applying that test Carol may be entitled to recover damages because even though she was not at or near the scene of the accident at the time, she did witness distressing scenes when Pete arrived at the hospital, and due to that the nervous shock suffered by her was a reasonably foreseeable consequence of the Pete’s negligence. If it is reasonably foreseeable that injury would result, then following the test laid out in Alcock, liability will depend on whether there is closeness of relationship and Carol must adduce evidence as to how close her relationship with Pete is. As Carol is Pete’s mother a relationship portraying ‘close tie of love and affection’ is likely to be apparent. Carol may also decide to raise the professional rescuer argument, as she is a nurse. Similarly with Greatorex though, there is no personal risk to her and even though related to Pete, her argument as a relative may fail as a matter of policy, as any harm which has been caused to her has rose from Pete’s self inflicted injury.
With regards to Carol suing Bolchester Hospital Trust in negligence for depression and anxiety, which she has suffered, all factors will be taken into account. In Johnson v Camden London Borough Council, Simon Brown LJ stated that ‘it is not easy to make good ... a claim in negligence for . . . work-related stress. . ‘ Only if Bolchester Hospital should have reasonably foreseen a risk of breakdown and then prevented it, should they be liable. This seems to have gone further in Hatton v Sutherland in that the threshold question is whether this kind of harm to this particular employee was reasonably foreseeable. Two factors are essential, the first is that there is an injury to health (as distinct from occupational stress) which then secondarily is attributable to stress at work (as distinct from other factors). Factors which will be taken into account are the nature and extent of work done by Carol and whether there have been any signs from Carol of impending harm to health, which Bolchester Hospital as her employer should have reasonably realised and done something about. Carol did not tell Bolchester Hospital about the stress and pressure she felt she was under, however it may be argued that Bolchester should have reasonably foreseen this due to the nature and extent of the excessively long hours they have been placing on their employees due to staff shortages. Even if this is not so, Bolchester do not provide a counselling service for their staff which in such a demanding job may be a breach of duty to employees. However, the psychiatrist has suggested that her depression and anxiety may be the cause of the trauma of seeing Pete, but also by the stress of trying to cope with her job. Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It will be for Bolchester Hospital to raise the question of apportionment.
Word Count: 1998
Bibliography
-
Lunney, M and Oliphant, K, Tort Law: Text and Materials (2nd edn) Oxford University Press, 2003
-
Alastair Mullis and Ken Oliphant, Torts (3rd edn) Palgrave, 2003
-
Rogers, W, Winfield and Jolovicz on Tort, Sweet & Maxwell, 2002
-
Vera Bermingham, Tort (3rd edn) Sweet & Maxwell, 2002
- Lexis Nexis Professional
Lunney, M and Oliphant, K, Tort Law: Text and Materials (2nd edn) Oxford University Press, 2003
Dulieu v White [1901] 2 K.B. 669
Page v Smith [1996] 1 A.C. 155
Per Lord Browne-Wilkinson
Bourhill v Young [1943] A.C. 92
Alcock and others v Chief Constable of the South Yorkshire Police [1992] 1 A.C. 310
White & Others v Chief Constable of South Yorkshire [1998] 3 W.L.R. 1509
Chadwick v British Railways Board [1967] 1 W.L.R. 912
White & Others v Chief Constable of South Yorkshire [1998] 3 W.L.R. 1509
Greatorex v Greatorex [2000] 1 W.L.R. 1970
McLoughlin v O’Brian [1983] 1 A.C. 410
Alcock and others v Chief Constable of the South Yorkshire Police [1992] 1 A.C. 310
Greatorex v Greatorex [2000] 1 W.L.R. 1970