Tort Law Q&A
QUESTION
Christine has arranged a surprise hot-air balloon ride for her boyfriend, Mark. She joins the other spectators in the field and watches as the balloon, carrying Mark, Sam, who is the pilot, and three other passengers, takes off. Shortly after the balloon takes off, it catches fire and plummets to the ground.
Horrified, the spectators run to the scene of the accident.
Mark and the other passengers have been injured in the accident. Sky Adventure Limited, the organisers of the event, have admitted liability in negligence for causing the fire and subsequent crash.
Advise the following, who have all been diagnosed as suffering from psychiatric injury, as to any legal rights they may have against Sky Adventure:
Christine, who saw the accident from the spectators field;
Sam, the pilot, who attempted to guide the balloon down safely;
Mark’s mother, Jane, who heard of the accident on the local radio;
John, a policeman, who was driving past the field on his way home from work. He saw the burning balloon crash to the ground and went to try to assist.
TORT QUESTION AND ANSWER
INTRODUCTION
This is an advice for a Tort Question and Answer. All been diagnosed as suffering from psychiatric injury, as to any legal rights they may have against Sky Adventure.
Christine, who saw the accident from the spectators field;
Sam, the pilot, who attempted to guide the balloon down safely;
Mark’s mother, Jane, who heard of the accident on the local radio;
John, a policeman, who was driving past the field on his way home from work. He saw the burning balloon crash to the ground and went to try to assist.
Lastly this advice will conclude.
RESTRICTION ON CLAIMS
The general principles for deciding if a duty of care exists in a case involving negligently caused psychiatric injury is not straightforward. The courts in this area have adopted a different approach. The way they have done this is by imposing further conditions or criteria that must be satisfied before they are willing to accept a duty of care has arisen. By in large the court have show a tendency when deciding if a duty of care exists is to consider the ‘floodgates’ principle. This refers the idea that the imposition of liability on defendants might prove uncontrollable and unnecessarily burdensome. Therefore the courts feel they must make it harder for Claimants to establish the existence of a duty of care.[1] This in turn has been criticized as “the area where the silliest rules now exist”. [2]
CHRISTINE THE SPECTATOR
Christine, saw the accident from the spectators field. This means Christine is a secondary victim. McLoughlin v O’Brian[3] laid down a number of criteria by which a claim by secondary victim could be assessed. While opposing the expansion that that decision suggested was possible, the House of Lords nevertheless adopted and approved the McLoughlincriteria in the decision of Alcock v Chief Constable of South Yorkshire[4] which is now the leading case in this area with regards to secondary victims. The criteria to be taken into account when considering whether a duty of care is owed include:
1. Whether the Christine has suffered a recognised psychiatric illness;
2. foreseeability of damage;
3. the relationship between the Christine and the victims;
4. proximity in time and space; and
5. manner of perception.
First the key criterion for recovery is that the Christine has suffered a medically recognised form of psychiatric illness. Liability will not arise for fear, distress or mental grief caused by negligence. Christine will have to provide expert medical evidence. Second secondary victims must establish that psychiatric harm specifically was reasonably foreseeable. Whilst it was foreseeable that Sky Adventure Limited might physically harm other with his negligent balloon ride, it was also foreseeable that someone in the Christine’s position would suffer nervous shock.
Third the closer the relationship, the more likely a duty will exist. The more remote the relationship, the less likely there will be a duty. This is not simply a case of looking at ‘blood ties’; evidence as to the closeness of the relationship is needed. It is likely Christine will satisfy this criterion because Mark is her boyfriend. Fourth because Christine is removed from the scene it is not so easy to justify recovery; foresight of the claimant being harmed cannot so readily be established and there is the problem of imposing extensive liability on the defendant. In McLoughlin, Lord Wilberforce spoke of the need for the claimant to be present at the scene, or to come to the immediate aftermath of the accident. As Christine was present at the accident in the spectator field, this will be enough to satisfy this criterion. The last requirement is that Christine must have perceived the events with their own unaided senses and that their psychiatric condition arose as a direct reaction to this. Christine will satisfy this requirement and her psychiatric injury is the product of "shock", in the sense of a sudden assault on the nervous system.
SAM THE PIOLT
Sam, the pilot, who attempted to guide the balloon down safely and as a result, has been diagnosed as suffering from psychiatric injury. Our starting point in this part of the advice is the case of Page v Smith[5] where the House of Lords where a claimant had been “directly involved in the accident” and “well within the range of foreseeable physical injury”, then in this situation the claimant would be a “primary” as opposed to a “secondary” victim”. This would mean a primary victim would be owed the same duty of care which applies in cases concerning physical harm. Lord Lloyd said that it is essential in all claims relating to psychiatric illness to make this classification. More recent cases have continued to make this classification.[6] Lord Oliver, in Alcock v Chief Constable of South Yorkshire Police[7] further developed this distinction by saying “primary” victims are involved, “either mediately or immediately”, as a participant in the event created by the defendant’s negligence’ and a “secondary” victim is “simply a passive and unwilling witness of injury caused to others”.[8] Using the above authorities because Sam was involved and also at risk of dying if the plane crashed he will be regarded a primary victim and will be owed the same duty of care which applies in cases concerning physical harm by Sky Adventure Limited and thus likely to recover.
JANE WHO HEARD OF THE ACCIDENT ON THE LOCAL RADIO
Applying the rules in Alcock to Mark and Jane, the risk of psychiatric injury to Mark was a reasonably foreseeable consequence of personal injury, particularly in the shocking circumstances of this case. Further, Mark and Jane are clearly persons who have close ties of love and affection. However, Jane was not present at the scene of the accident, and only learned of it by hearing about the accident on the radio. In Alcock the Court held that the claimants who had watched the accident on live television broadcasts could not make a claim for damages for nervous shock, but the broadcasts did not depict the death of any particular person. This appears to be the case here. It was suggested in Alcock by Lord Ackner that in certain circumstances a person who witnesses a particularly shocking accident on television, such as the combustion of a hot air balloon in which the victims were travelling, could succeed on a claim for damages for nervous shock.[9] However this does not appear to be the case here, and in my opinion Jane will not entitled to damages for nervous shock for the injury to Mark.
JOHN A POLICMAN AND RESCUER
John, a policeman, who was driving past the field on his way home from work, when he saw the burning balloon crash to the ground and went to try to assist. We can begin by looking at the case of Chadwick v British Railways Board [10] where the claimant witnessed aftermath of a major crash situation while assisting in the rescue of victims. He became psycho-neurotic as a result. It has been observed that the claimant in this case was actually a primary victim. The court put the rescuer into the artificial legal category of "primary" victim exempting the control mechanisms. Waller J. said that it was foreseeable that "somebody might try to rescue passengers and suffer injury in the process." and "shock was foreseeable and . . . rescue was foreseeable."[11] Thus the judge's reasoning is based purely upon the foreseeability.
Similarly in Wigg v British Railways Board,[12] a train driver who tried to rescue someone trapped under a train recovered compensation. This is because he was himself in danger and suffered the nervous shock as a result of fearing for his own safety. In Wigg, Tucker J. expressly said that the only question was that of foreseeability, referring to the speech of Lord Bridge of Harwich in McLoughlin.[13]
In Dooley v. Cammell Laird & Co. Ltd.[14] a cable of a crane snapped and load fell onto the ground. The crane operator thought his fellow employees below would be injured and he suffered psychiatric injury. In Galt v. British Railways Board [15] the claimant suffered shock and consequent heart problems when the train he was driving nearly hit two men working by the lines. In both of these cases the courts felt it was right to make the defendants liable, thus throwing the claimant into a category of primary victim, with no reference to the control mechanisms, which had not yet been invented at that time.
Using these authorities it is likely that the court will place John into the class of primary victim on the grounds he is a rescuer. There is an argument he was a policeman and under a duty to act thus an employee. In White v Chief Constable of the South Yorkshire Police[16] the claimants were police officers on duty during the Hillsborough football stadium disaster. They had assisted in removing the dead bodies and carrying the injured to safety as well as trying to resuscitate spectators. Their action was for Post-Traumatic Stress Disorder as a result of these experiences. They claimed both as employees and as professional rescuers. The House of Lords dismissed their appeal. The Claimants argument can be summed up in Lord Goff dissenting comment:
“What rescuer ever thinks of his own safety? It seems to me that it would be a very artificial and unnecessary control, to say a rescuer can only recover if he was in fact in physical danger. A danger to which he probably never gave thought, and which in the event might not cause physical injury.”
The claimants relied on the abovementioned authorities of Dooley;[17] Wiggs;[18] and Galt[19]. Lord Hoffman dismissed these authorities on the basis they were “ex tempore first instance judgments given on circuit.” For Lord Hoffman these decisions were regarded as cases raising questions of fact, namely whether psychiatric injury to the plaintiff was a foreseeable consequence of the defendant's negligent conduct. It was in accordance with the law (post Alcock) as it was thought to be at the time. For the House of Lords the claimant’s status as employees did not automatically convert them from secondary victims to primary victims. The ordinary criteria of nervous shock as set out in Alcock applied.
The claimants argument as to being professional rescuers failed in that they had not actually been exposed to danger themselves. The claimant’s employment argument also failed. Their Lordships felt the employment relationship does not mean employee is a primary victim. As for the employer's implied contractual duty not to cause harm, this is no greater than that imposed by the ordinary law of tort. The court felt while the police were entitled to sympathy their claims were no greater than those of others such as doctors and other hospital workers, and in this case particularly bereaved relatives to whom the law denied redress. This analysis can be avoided and it can be argued that White will not apply to John because he is off duty and not under a contractual duty to help with no obligation. He placed himself in danger and becomes a primary victim as a rescuer.
BIBLIOGRAPHY
Textbooks and Reports
Kidner, Casebook on Torts 9th edn. (Oxford: Oxford University Press, 2006)
Markesinis, Markesinis and Deakin’s Tort Law (Oxford: Oxford University Press, 2007)
Mullany & Handford Tort Liability for Psychiatric Damage 2nd edn. (Oxford: Oxford University Press, 2002)
Quill, Torts in Ireland 2nd edn. ( Dublin: Gill & Macmillan, 2004)
The Law Commission of England and Wales Liability for Psychiatric Illness London: HMSO, 1998)
The Scottish Law Commission Report on Damages for Psychiatric Injury (Edinburgh: TSO, 2004)
Articles
Jones, “Liability for Psychiatric Injury – More Principle, Less Subtlety?” (1995) 4 Web JCLI
Mullany & Handford, “Hilsborough Replayed” (1997) 113 LQR 410
Nasir,, “Nervous Shock and Alcock: The Judicial Buck Stops Here” (1992) 55 MLR 705
Teff, “Liability for Psychiatric Illness after Hillsborough” (1992) OJLS 440
Teff, “The Requirement of ‘Sudden Shock’ in Liability for Negligently Inflicted Psychiatric Damage” (1996) 4 Tort Law Rev 44
Trindade, “The Principles Governing Recovery of Damages for Negligently Caused Nervous Shock” (1986) CLJ 476
FOOTNOTES
[1] P R Handford, “Compensation for Psychiatric Injury: The Limits of Liability” (1995) 2 Psychiatry, Psychology and Law 37 [2] Dr J Stapleton, “In Restraint of Tort” in P Birks (ed), The Frontiers of Liability (1994) vol 2, pp 94-96 [3] [1983] 1 AC 410 [4] [1991] 4 All ER 907 [5] [1996] A.C. 155 [6] Frost v Chief Constable of South Yorkshire Police [1997] 3 WLR 1194 at 1203; Hegarty v EE Caledonia Ltd [1997] 2 Lloyd’s Rep 259 at 265-266 [7] [1992] 1 AC 310 [8] [1992] 1 AC 310 at 407 [9] [1992] 1 AC 310 at 405 [10] [1967] 1 WLR 912 [11] [1967] 1 WLR 912 at 921 [12] (1986) 136 NLJ 446 [13] [1983] 1 A.C. 410 [14] [1951] 1 Lloyd's L.R. 271 [15] [1983] 113 N.L.J. 870 [16] [1999] 2 A.C. 455 [17] [1951] 1 Lloyd's L.R. 271 [18] The Times, 4 February 1986 [19] [1983] 113 N.L.J. 870