Tort of Negligence

Tort of Negligence

Introduction

            The case under review revolves around the tort of negligence. The common definition of negligence as given in Blyth v Birmingham Waterworks Co. [1866] 12 EX 781^[1], whereby the Judge described it as an omission by a reasonable man to do something guided by certain considerations, which would normally regulate human conduct.^[2] The tort of negligence provides protection to a person against personal injury, property loss, or economic loss. Nonetheless, the claimant has the responsibility of proving beyond any reasonable doubt that it is the defendant’s negligence that resulted in the loss or injury. Nervous shock could trigger a person to develop post-traumatic stress disorder (PSTD), adjustment disorders, depressive disorders, and anxiety disorders. In the event that a claimant suffers these psychiatric illnesses as a result of the defendant’s negligence, such a person is regarded as a primary or secondary victim.  The paper is divided into four sections: part one focuses on the primary victim's negligence which results in psychiatric damage. The second part is about the secondary victim's negligence resulting in psychiatric damage. The third Part is about Remoteness and Foreseeability in the tort of negligence. The fourth part seeks to examine the issue of vicarious liability and the scope of employment following the occurrence of the event that caused negligence. 

(i)             Psychiatric Damage

            From the case, it is a fact that Adam rode in the ‘Skyler’ rider which was involved in the accident. Following the crash, Adam was not physically hurt, but was shocked and upset by the event, and this triggered the recurrence of chronic fatigue syndrome. The real claim which is being presented here is shock and being upset following the accident. In considering Behrens & ors v Bertram Mills Circus Ltd.^[3], the shock and effect of the crash must have been considerable to cause such an effect. Adam is in this case a primary victim. A primary victim is one who is directly involved in an accident or incident as a participant, in accordance with Lord Oliver's ruling in Alcock v Chief Constable of South Yorkshire.^[4] Adam qualifies as a primary victim because he was not only present at the scene of the accident, but his safety was  threatened. The same was established in Dulieu v White [1901] 2 KB 669 ^[5] whereby the claimant suffered owing to negligence on the part of the defendant. A primary victim need not suffer any form of physical injury; the only evidence required is for the victim to be within the vicinity of the event that caused the shock. Psychiatric damage is limited to two restrictions: the damage should be sudden, but not a gradual change; and the harm suffered must be medically recognizable condition.

Adam can claim for the psychiatric damage he has suffered in the form of recurrent chronic fatigue syndrome. In Page v. Smith [1996] 3 all ER 272^[6], Page was involved in an accident that was caused by the defendant’s negligence. Although Page did not suffer any physical injury, “he suffered a recurrence of chronic fatigue syndrome which he had suffered some years before.”^[7]. IN its ruling, the House of the Lords noted that the defendant was liable for the psychiatric injury which was caused by the claimant. Thus Adam can claim for the psychiatric damage he has suffered. In addition, Alcock v Chief Constable of South Yorkshire^[8] is applicable in this case whereby Lord Ackner ruled that the law offers no damages in case of the psychiatric injury which was not induced by shock.^[9] The psychiatric injury experienced by Adam was as a result of shock of what he witnessed when the crash occurred and this resulted in a recurrent chronic fatigue syndrome, further incapacitating his ability to work. In conclusion, Adam and claim for the psychiatric damage he has suffered.

Adam and Betty, along with their two children, Charley, aged 12, and Dorothy 10, were involved in the crash, Adam can claim for the psychiatric damage. This is because as a victim, Adam had close time for affection and love for those affected directly. In addition, he witnessed the event with his own an unaided eye, the proximity to the event was so close, and the shocking event resulted in psychiatric damage.^[10] In line with McFarlane v E. E. Caledonia [1994]^[11], Adam as the claimant needs to show that he was the physical zone of the danger. As a primary victim, Adam was highly vulnerable to psychiatric damage in comparison with the average man. In Ravenscroft v. Rederiaktiebolaget Transatlantic^[12] the judge ruled that since the claimant suffered shock after hearing the crash of a closely-related person (son), she awarded damages. According to Ward J, the close relationship between her, Charley and Dorothy who were injured resulted in shock, which was reasonably foreseeable.^[13] 

Adam also qualifies as a secondary victim, which is the alternative. The secondary victim criteria (Alcock V Chief Constable of South Yorkshire Police)^[14] are complete because there was a tie of affection and love to the affected (Charley and Dorothy who were confined in the wreckage).  For instance, in Burdett v Dahill (2002)^[15] it was established that there was a "strong tie of affection". Likewise, Adam experienced shock because there was a strong tie of love and affection.^[16]  Therefore, Adam qualifies as both a primary and secondary victim, and can therefore claim for the psychiatric damage he suffered when Charley and Dorothy were injured.

(ii)            Claim Against Trumpton or Loamshire Fire Service;

Fred was an employee of Loamshire Fire Service, and he was the first responder to the accident. During his career as a fireman he has never seen such life-changing injuries as those suffered by Charley and Dorothy. His inability to work and the recurrent depression are as a result of the events that occurred. The recurrent, distressing, and intrusive recollections of events is linked to Post Traumatic Stress Disorder (PTSD)^[17]  Fred was a secondary victim because he only witnessed the events that took place. A secondary victim is the one who was not within the physical zone of the accident, but to some extent witnessed the horrific events. In addition, the secondary victim is required to demonstrate the four criteria as delineated by Alcock V Chief Constable of South Yorkshire Police^[18] in order to establish the liability. First is to show a close affection and love; second, the claimant must have witnessed the event through their own unaided senses; third, the proximity is supposed to be immediate, and fourth, the psychiatric injury is supposed to have resulted to the shocking events. In this case, the first requirement is not valid. Fred witnessed the event directly and the seeing was sufficient. The proximity to the event was immediate: W v Essex County Council [2000] 2 WLR 601^[19]. Lastly, due the shock he experienced recurrent depression and was unable to work. Notably, Fred was not suffering from a long-term psychiatric injury. In addition, he had no close affection or love with the affected, and therefore, is not qualified for a claim.

At the time of the event, Fred was an employee of Loamshire Fire Service and not Trumpton, and therefore, the claim must be filed against his employer. The vicarious liability is on his employer and not the place of work. In addition, he had been working intensely overtime prior to the Skyler accident. He can thus claim that as a secondary victim (rescuer), he suffered the recurrence of depression and was unable to work as a result of nervous shock. In McLoughlin v Jones [2001] EWCA Civ 1743^[20] (not an accident case), the claimant was wrongly coveted and imprisoned following negligence by solicitors and was awarded damages related to psychiatric injury.^[21] Thus, Fred should claim for psychiatric injury because negligence by Trumpton resulted in nervous shock following the Skyler incident. Moreover, there was a reasonable foreseeability because as a rescuer, Fred was involved immediately following the incident, although he was not necessarily present when the event took place. The employer has the duty to protect his staff from physical harm but not psychiatric suffering.  In Alcock v Chief Constable of South Yorkshire, the Judges contended that the claimants who claimed for psychiatric injury could not be compensated for psychiatric injuries because they were simply doing their jobs.^[22]  The recurrence of depression was not caused by the employer. Based on various cases, the rescuer (Fred) was not exposed to physical risk when he was directly involved in the rescue mission, and as a secondary victim with no close affection and tie with the victims he is not entitled to make any form of claim to Trumpton or Loamshire Fire Service.  Nonetheless Fred could claim for physical injuries if he suffered physically during the rescue as in Haynes v Harwood.^[23]

(iii)          Remoteness and Foreseeability

Jenny is an employee of Trumpton and operated the ride during which Charley and Dorothy were injured. Also, Ken had previously overridden a safety alarm believing that it was malfunctioning. Following the events Jenny is now suffering from Post-Traumatic Stress Disorder and unable to return to work. Jenny was a secondary victim. According to his Lordship's view, a secondary victim “is almost always outside the range of foreseeable physical injury and it follows that there are more limited circumstances in which a secondary victim can succeed in an action for psychiatric injury”.^[24] PSTD is triggered after an individual has been exposed to an extremely traumatic event.^[25] Jenny has PSTD as she witnessed the event in which Charley and Dorothy were injured. In addition, the condition (PSTD) is medically recognised as reflected in Leach v Gloucester Constabulary  [1999] 1 WLR 1421.^[26] Although Jenny was on her duty, her employer failed to show whether there was a security override which was not reported by another employee, Ken. As a secondary victim, Jenny was within immediate proximity, had no affection or tie with the victims, but suffered shock following the accident.

With regard to the concept of remoteness, Horsey and Rackley^[27] commented that:

“When a court asks whether a harm was too ‘remote’ a consequence of the defendant’s negligence (breach of duty), what is essentially being asked is whether the consequences of the negligent action were so far removed from it as to have been unforeseeable by the defendant”

The perspicacity and foresight of the defendant is only judged based on whether at the time of the event, a reasonable person was responsible for the tortious act. In reference to Overseas Tankship (UK) v Morts Dock & Engineering Co Ltd^[28], the ruling held that when the tort of negligence occurred, one of the crew committed the negligence. The judge held that a reasonable person could not have foreseen the fire damage because of a possible consequence linked to the neglect act. In the case of Jenny, the event was not foreseeable because as an employee of Trumpton, she was a reasonable in her actions. The damage was too remote for recovery. In addition, it was difficult for Jenny to know whether the Skyler’ rider would crush and injury its passengers. However, because the accident resulted from another employees’ prior mistake, Trumpton is liable for all damages on Jenny. In Re Polemis and Furness, Withy & Co Ltd ^[29] it was established that the defendants were responsible for all the consequences, therefore, the Polemis test can be used to impose liability the defendant.  Regardless of whether the damage was foreseeable, negligence by Trumpton resulted to the accident, which affected Jenny. Therefore, Jenny can claim for psychiatric damage which was as a result of negligence by her employer.

(iv)           Vicarious Liability, Strict Liability, tort of Negligence.

In this scenario, the facts are that Ken was contracted by Trumpton from Carefree Ltd, which specialises in providing personnel for short term contracts. In addition, he was only trained for one hour and then started working. He worked under Trumpton, but was paid by Carefree Ltd. The case falls under the vicarious liability, whereby strict liability is imposed on the employers for the actions of their employees. Thus, the employer is held liable for any form of tort committed by an employee while in course of duty.^[30] The burden of proof in such case is for the plaintiff to show that the actions were acts of negligent and was committed within the employment scope.  According to Forni, “to hold an employer vicariously liable for the acts of its employee, the plaintiff must establish that the employee was engaged in the duties which he was employed to perform’ [or] ‘those acts which incidentally or indirectly contribute to the [employer’s] service.”^[31] In this case, when the accident occurred, Ken was an employee of Trumpton and not Carefree Ltd. In addition, Carefree Ltd specialises in the provision of personnel for short term contracts to cover the school holiday period. This implies that the employee though was an employee of Carefree Ltd, was working within the scope of Trumpton.^[32] With reference to Lister v Hesley Hall Ltd [2001] UKHL 22^[33], the actions of Ken were not within the scope of his employer, but rather for his contractor. Reasonable actions were supposed to be taken by Trumpton to prevent acts of omissions which can be reasonably foreseen to have the likelihood of causing an injury.

The applicability of vicarious liability can be tested using the two-prong test. Under this test, the employer is only deemed vicariously liable for the employee’s acts of if the actions are (1) “either required or ‘incident to his duties or (2) could be reasonably foreseen by the employer in any event . . . .”^[34]  This is shown in the Clark Equipment Co. v. Wheat (1979) 92 Cal. App. 3d 503, 520^[35] whereby the employer can be held liable for negligence under the two-prong test. Ken was trained by Trumpton, and deemed him fit for the job, even without prior experiences. The Trumpton allowed Ken to work as a contracted employee, and therefore, the negligence can be levelled against Trumpton and not Carefree Ltd. This is because although he was an employee of Carefree Ltd, the negligence which resulted to the accident was supervised by Trumpton. Moreover, the fact that an employee was being paid by Carefree Ltd does not compel to the conclusion that the employer is to be held liable for the accident that occur while Ken was on duty. Ken can be considered to have been working within the work scope of Trumpton, and therefore Carefree Ltd cannot be liable for any negligence by Ken. It was under the instructions of Trumpton when the tort was committed, and the contractor is seen to have been gaining from the duties of Ken, and thus is liable for the consequences of the negligence committed.^[36] Lastly, the employer failed to promote sufficient precautions in training to minimize problems in the future.

Bibliography

Books

American Psychiatric Association, Quick Reference To The Diagnostic Criteria From DSM-IV (Washington, 5th ed, 1998.

Bermingham, Vera, and Carol Brennan. Tort Law. Oxford: Oxford University Press, 2012.

Brennan, Carol. Tort Law: Law Revision and Study Guide.  Oxford : Oxford University Press, 2015.

Cooke, John. Law of Tort. Longman. 2005

Harpwood, Vivienne. Modern Tort Law. London: Cavendish Pub, 2003

Hedley, Steve. Tort. Oxford: Oxford University Press, 2011

Horsey, Kirsty, and Erika Rackley. Tort Law. (Oxford University Press ,2013).

McManus, Francis, and Eleanor J. Russell. Delict: A Comprehensive Guide to the Law. New York: Wiley, 1997.

Oughton, David W., and Barbara Harvey. Law of Torts: 2015 and 2016. 2015. Oxford : Oxford University Press, 2015.

Turner, Chris.  Unlocking Torts. (Routledge, 2013)

Cases

Alcock V Chief Constable of South Yorkshire Police [1992] 1 AC 310

Behrens & ors v Bertram Mills Circus Ltd. [1957] 2 QB.

Blyth v Birmingham Waterworks Co. [1866] 12 EX 781

Burdett v Dahill (2002) unreported

Clark Equipment Co. v. Wheat (1979) 92 Cal. App. 3d 503, 520

Dulieu v White [1901] 2 KB 669.

Haynes v Harwood [1935] 1 KB 146 

Horsey, Kirsty, and Erika Rackley. Tort Law. Oxford, United Kingdom : Oxford University Press, 2013.

Leach v Gloucester Constabulary  [1999] 1 WLR 1421

Lister v Hesley Hall Ltd [2001] UKHL 22.

McLoughlin v Jones [2001] EWCA Civ 1743

McFarlane v EE Caledonia [1993] EWCA Civ 13 

Page v Smith (No 2) [1996] 3 All ER 272-280

Overseas Tankship (UK) v Morts Dock & Engineering Co Ltd, The Wagon Mound No.1 [1961] 1 All ER 404

Ravenscroft v. Rederiaktiebolaget Transatlantic [1991] 3 AII ER 73.

Re Polemis and Furness, Withy & Co Ltd [1921] 3 KB 560.

W v Essex County Council [2000] 2 WLR 601

Websites

Forni,, Robert M. Off the Clock and on the Hook: A Primer on Employer Liability for the Acts of Employees Committed Away from Work. [Online] Available from:  <http://www.rmkb.com/tasks/sites/rmkb/assets/image/376.pdf>

Mathu, yega. Psychiatric Illness And The Law Of Negligence: A Historical Review [Online] Available from: < http://www.austlii.edu.au/au/journals/MacarthurLawRw/2000/1.pdf>