Law of Tort.
Evening Law IV
Dissertation by Liam Cotter.
Question 9. Discuss the criteria for determining the existence of a duty of care in the tort of negligence, particularly in the context of negligently inflicted nervous shock case law.
Student no. 95202293 University College Cork.
1999
Introduction.
It is generally accepted that the 1930’s case of Donoghue v Stephenson1 and more particularly, the stated general principal of Lord Atkin in that case, was a milestone in Tort law relating to negligence and this dicta has had a very significant effect on how this area of law has developed over the last sixty years or so. He said:
“ In English law there must be and is, some general conception of relations giving rise to a duty of care…The rule that you are to love your neighbor becomes, in law, you must not injure your neighbor; and the lawyer’s question, who is my neighbour receives a restricted reply. You must take reasonable care to avoid acts or omissions, which you can reasonably foresee would be likely to injure your neighbor. Who then in law is my neighbor? The answer seems to be – 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.” 2
Although it is not difficult to see why the law in this area developed as it did subsequently in the light of this dicta, this case was the first attempt to broaden the concept of “duty of care” to include a plaintiff, who was suing in negligence, where no contractual relations existed between the parties and this case is effectively the modern source of the duty of care concept.
In the early case of Winterbottom v Wright 3 it was held that the Plaintiff could not succeed in his action for damages when he fell from a mail coach and was seriously injured as a result of a latent defect in the manufacture of the coach.
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1 Donoghue v Stephenson [1932] A.C. 562
2 Donoghue v Stephenson [1932] A.C. at pg. 580
3 Winterbottom v Wright (1842) 10 M&W 109
As the contractual relations only existed between the coach builder and the Postmaster General and because the Plaintiff was not privy to this contract, he could not succeed.In Donoghue4 the House of Lords held that the lack of contractual relations in this famous “ginger ale” case, between the Plaintiff and the defendant manufacturer was irrelevant and this fact did not preclude in tort, the existence of a common law liability to the Plaintiff.
Although Lord Atkin received much of the credit for this significant departure in the law of tort in this case, Brett MR, in the earlier case of Heaven v Pender5 also deserves some credit for developing the law in this area in that he attempted to formulate a general principal for identifying whether a duty of care existed or not, a principal that could be applied to evolving situations not previously considered, as well as in more traditional situations.
The contractual barrier to a Duty of Care in Ireland.
It is clear from two Supreme Court cases here that although there may appear to be a duty of care owed in a given situation, the case of McCann & Cummins v Brinks Allied Ltd. & Ulster Bank6 is interesting and although this case deals essentially with the issue of concurrent wrongdoers, there is an aspect of the judgment that is relevant to the duty of care issue, relative to contractual relations.
The facts here as follows: two security guards were injured in a bank robbery while they delivered cash from their employer’s security vehicle (first named defendant) to the bank (second named defendant).In the High Court, it was argued on behalf of the second named defendant that they were not liable as a concurrent wrongdoer because they were relieved of any duty of care to the plaintiffs, by virtue of their contract with the first named defendant.
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4 See note 1
5 Heaven v Pender (1883) 11 QBD 503
6 McCann & Cummins v Brinks Allied Ltd. & Ulster Bank Ltd. 1997 1 ILRM 461
This argument was accepted by the High Court and the first named defendant appealed the decision to the Supreme Court, as they were anxious to get a contribution from the bank (second named defendants) towards the award made to the successful Plaintiffs by the High Court.The appeal was dismissed by the Supreme Court who referred to a term in the contract between the two defendants, which stated;
..”the Company (Brinks Allied Ltd) reserves to itself, absolute discretion as to the means, route and procedure to be followed, in the storage, guarding and transportation of goods to which this contract relates.”Consequently, it was held by O’Flaherty J, that in particular contractual situations, a bank would not owe a duty of care to security guards making a delivery or collection to/from a bank and he said;“…the contract was a circumstance which prevented any duty of care arising on the part of the bank vis a vis Brink’s employees…” 7
In this case it is clear, the ordinary duty of care principal that would normally apply is left untouched and there is no doubt in my mind that the court in the absence of the contract that existed between the parties, would most certainly have found that a duty of care did exist by the bank towards the security firm’s employees.
It is also clear from this case that the barrier provided by the contract, prevented the coming into existence of any duty of care by the absence of close and direct relations, which are necessary to give rise to such a duty of care. O’Flaherty J also gave a similar judgment in the unreported case of Madden v Irish Turf Club8 where the plaintiff sued the defendant in negligence.
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7 See note 6, pg. 489
8 Madden v Irish Turf Club, unrep. SC. Feb. 17th. 1997
The plaintiff won his action for damages in the High Court and the defendant appealed the decision to the Supreme Court. Briefly, the facts were as follows. The plaintiff had an accumulator bet on four horse races, three of which his selections won.In the fourth race his horse came second and this horse was subsequently elevated to first place later when the winner of the race was disqualified.
The rules of the Tote specified that the payout depended on the declaration of the result made immediately after the race and not subject to alteration later. Although the plaintiff was to ultimately have four winners, the rules precluded him from collecting his winnings. O’Flaherty stated that the plaintiff’s contractual relationship was with the Tote and that he did not attribute any negligence on their part.The existence of a contract between the plaintiff and the Tote, precluded the existence of a duty of care between the defendant and the plaintiff and in the words of O’Flaherty J, that contract
“…created a barrier to prevent such close and direct relations to occur as is necessary to give rise to a duty of care between the plaintiff and the defendant”
Although there has been traditional categories or classes of people where a duty of care has been deemed to exist (such as a motorist’s duty of care to another motorist/pedestrian, a doctor to his patient etc.) the importance of the contribution of both Brett MR and Lord Atkin to this area of negligence law has generally resulted in the judiciary (until quite recently) expanding the scope of liability in negligence cases in appropriate situations and this view was also expressed by MacMillan J in Donoghue when he said that
…“the categories of negligence are never closed”…9
9. See note 1, pg. 552
It is interesting to observe the manner in which the case law in this area has developed and if the period from Donoghue to the late 1970’s was the expansionist era in terms of where new situations of liability were being imposed, from the late 70’s to the early 1990’s the trend was reversed with a more regressive approach being taken by the judiciary in this more recent period.The age old problem of trying to distinguish between new situations where a duty of care is owed and where a duty of care is not owed continued to be a thorny issue and although Lord Atkin appeared to put the privity of contract issue beyond doubt, it was to a notable degree the relationship between tort law and contract law that caused significant difficulties subsequently, but for the purpose of this submission, there were other areas of difficulty also, some of which will be looked at in greater detail.
Background.
In the context of Tort law relating to negligence and the concept of duty of care, it is useful to restate the three essential ingredients of the tort:
a) there must exist a legal duty between the parties to take care.
b) there must be a breach of that legal duty to take care.
c) there must be damage or loss suffered as a result of the breach.
The “duty” referred to above relates to the duty of care concept and the court’s difficulty in this area of law is to try to decide when, to whom and by whom that duty is owed and the majority of the case law in this area is taken up with this vexing question. Negligence, it must be remembered, is not actionable unless the duty to take care or to be careful exists. The tort of negligence is defined by Winfield and Jolowicz10 as follows: “… negligence as a tort is a breach of a legal duty to take
care which results in damage, undesired by the defendant, to the plaintiff…”10
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10 Winfield & Jolowicz on Tort (14th. ed.) p78,
It is perhaps relevant to point out at this stage that in relation to point c above relating to damage/loss, two principals flow from this issue i.e. causation (the defendants breach must have caused the damage) and remoteness (plaintiff’s loss must not be too remote a consequence of the defendants breach), issues that are also at the heart of tort law relating to negligence.
Although I have made reference to the fact that the courts have since Donoghue found new categories or classes of plaintiff to whom a duty of care was owed, I should point out that it has been via the duty of care concept that the courts have sought to limit the situations where liability would be imposed on a defendant as a result of his negligent actions.For example, in the case already mentioned above of Heaven v Pender11 Brett MR introduced the first control device to limit liability when he held that a duty of care must be owed and if no duty was owed, then even a negligent act will not attract liability.
Although I have indicated that the case law since Donoghue has gone through two distinct phases of development, it is more accurate to say that there actually have been three distinct phases of the development of the duty of care principal since this judgment.The first phase was the emergence of the general principal, the second was the development of the general principal and the third phase was the withdrawing or retreat from the general principal of duty of care.
As Lord Atkin’s “neighbor principal” emerged not quite to widespread approval by the judiciary, a period of development followed in which there was still a refusal by some of the judiciary to adopt the emerging principal on the basis that this principal could not be universally applied to new situations. In 1951, in the case of Chandler v Crane Christmas12 the court refused to take the decision in Donoghue into account and refused to allow a claim for economic loss for negligent misstatement and it was not until the 1970’s case of Home Office v Dorset Yacht Co.13 that Lord Atkin’s neighbor principal finally received full recognition when Lord Reid said:
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11 See note 5
12 Chandler v Crane Christmas & Co. [1951] 2 KB 164.
13 Home Office v Dorset Yacht Co. [1970] AC 1004.
“Donoghue v Stephenson…may be regarded as a milestone and the well known passage in Lord Atkin’s speech should, I think, be regarded as a statement of principal…It will require qualification in new circumstances. But I think that the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for it’s exclusion.”
The Dorset Yacht case became a turning point as a result of this judgment and throughout the 1970’s, significant development of Tort law relating to negligence took place, culminating in the case of Anns v Merton London Borough Council14 in 1978 when Lord Wilberforce said in relation to whether a duty of care arises in a particular situation:
“…the question has to be approached in two stages.”
and the two-stage test was born. The first stage related to the question of relationship of proximity or neighborhood (neighbor principal) and if the answer to this question was yes, there is prima facie a sufficient relationship of proximity, giving rise to a duty of care, then the second test was applied.
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14 Anns v Merton London Borough Council [1978] AC 728
The Second Test.
The second test asked whether there were any considerations (including policy considerations) that would limit the ambit of duty, the class of plaintiff or limit the extent of damages in the event of a duty being breached.This was indeed a general principal for all seasons (it appeared) that could be applied to more traditional situations as well as any new situations not previously considered and as a general principal, received much favour with the judiciary in the following years.
The two stage approach to the duty of care question however was not without it’s critics and thereafter began the third stage of development of this area of law, the withdrawal or retreat from the general principal which came to the fore in the 1985 case of Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co. Ltd.15 in which Lord Keith was critical of Lord Wilberforce’s two stage approach, favouring instead what is “just and reasonable” and the extent of the duty of care to be inferred depending “on all the circumstances of the case” approach.The main criticism of Lord Wilberforce’s two stage test appeared to be that the first stage test was two broad and too easily passed and that the proximity issue could be satisfied almost in every case, if the judge so wished.
A further criticism appears to have been that too much was left to policy considerations in the second stage of the test and if there was no policy on a certain issue, a duty would not be imposed where it was repeatedly held previously that no duty of care existed.The thrust of the criticism of Lord Wilberforce decision in Anns seemed to be based on the fact that the two-stage test was too liberal in it’s thinking and it is clear that there were those in the HOL who shared this view.
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15 Governors of Peabody Donation Fund v Sir Lindsay Parkinson & Co [1985] AC 210
Oliver LJ in Aliakmon16, Lord Keith in Yuen Kun Yeu17 and Murphy v Brentwood18 (all duty of care cases) in dissenting from Anns and the two stage approach of Lord Wilberforce, preferred a more conservative and I submit, a pre Donoghue negligence rules approach. It is also clear that the Junior Books18 decision ( a claim in tort was allowed, by a building owner against a sub contractor, despite the availability of an action to him against the main contractor) and the court’s finding of a duty of care in this case, hastened the end of the Lord Wilberforce two stage test.
This case was widely thought to have over extended the two-stage test principal and was a decision that was too easily arrived at, but with had no lasting legal value. Also, the fact that the Judicial Committee’s finding that the two stage test was not to be regarded as a suitable tool for establishing a duty of care in every situation, placed further pressure on this concept.The two stage test, heavily modified by the rider that a duty of care will only be recognised “when it is just and reasonable” and “taking all the circumstances of the case into consideration” is the present state of negligence law in England.
As already mentioned, the duty of care concept is a control device to limit liability being imposed and the biggest difficulty with the two stage test was that because the first stage was to easily passed, the main control device then became the second or policy stage, which the judiciary tended to want to avoid, publicly at least. Rather than actually deciding cases on policy considerations, the judiciary used reasoning by analogy or the incremental approach to find that either there wasn’t sufficient proximity between the parties or that existing authorities prevented them finding that a duty of care existed.
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16 Yuen Kun Yeu v Attorney General of Hong Kong [1988] AC 175
17 Murphy v Brentwood District Council [1991] 1 AC 398
18 Junior Books Ltd. v The Veitchi Co. Ltd. [1983] 1 AC 520
The final “nail in the coffin” of the two stage test as far as the English courts were concerned, came with the speech of Lord Bridge, in the important case of Caparo Industries v Dickman19 (in assessing pure economic loss for negligent misstatement) where he pointed out that when charged with establishing whether a duty of care exists or not, two methods can be used.The first is the more traditional (pre Donoghue) approach and the second more modern approach of the single general principal that can be applied to all “new fact” situations, i.e. the two stage “Anns” approach.As we have seen in three decisions by Oliver LJ and Lord Keith (all post Anns) the incremental or analogy approach was preferred over the two stage test approach.
This therefore suggested that the majority of the HOL felt that no single general principal could determine in every case and in every situation, that a duty of care existed and what the extent of that duty was, particularly when this was precisely what the two stage test was supposed to be capable of doing. The result was that the two-stage test lost favour with the English legal establishment.
The reason for the majority of the HOL resisting Lord Wilberforce’s approach was clearly they had in the back of their minds a worry that the floodgates would open if the “hurdles” that a potential plaintiff had to jump over were set too low and to easily crossed, but to be fair, the floodgates argument existed and catagorised the general law historically, long before Lord Wilberforce’s two stage test.The floodgates argument was clearly in the contemplation of Lord Keith, and Lord Oliver in their decisions in this area and they were anxious that policy would dictate otherwise.
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19 Caparo Industries Ltd. plc v Dickman [1990] 2 AC 605; [1990] 2 WLR 358
The Irish Position.
In Ireland, Lord Atkin’s test is still in favour with a heavy emphasis on the “proximity” issue as the ultimate decider on the issue of whether a duty of care exists or not. McCarthy J in Ward v McMaster20 (concerning pure economic loss for repairs to property) confirmed the Anns principal in original form and rejected the public policy issue on the basis that there would have to be “very powerful” compelling reasons to deny an injured party a right of redress and only in very exceptional situations might the public policy issue be invoked.
On this basis, it is surprising that Blaney J in McMahon v Ireland21 followed the Privy Council’s decision in the Yuen Kun Yeu case which expressed reservations about the Lord Wilberforce two stage test followed by McCarthy J. and this has introduced some confusion on the precise Irish position.
It is also a fair comment that the Irish Supreme Court has not made any significant contributions to this area of Tort law as very few suitable cases in this area have arisen. Although the Irish judiciary could be critisised for simply following and not developing the law beyond Lord Atkin’s neighbor principal and Lord Wilberforce’s two stage test, it should be said in their favour that they have not slavishly followed the direction of the English judiciary in relation to policy considerations and the “circumstances of the case” approach, at least not in all areas.
Two Irish cases in the area of occupiers liability in Ireland are worth a brief mention here relative to duty of care are Purtill v Athlone UDC22 and McNamara v ESB23 and these cases demonstrate that the Irish judiciary were not completely inactive in this area of tort law. Originally, an occupier owed no duty of care to a person coming on to his premises as a trespasser except that the landowner could do no act to intentionally or recklessly injure a trespasser who’s presence he knew of or ought to have known of.
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20 Ward v McMaster & Louth Co. Council, SC [1988] Dublin ULJ 182
21 McMahon v Ireland [1988] ILRM 610
22 Purthill v Athlone UDC [1968]SC IR 205
23 McNamara v ESB [1975] SC IR 1
The decisions in Purtill and McNamara overhauled this position and are interesting cases because in the context of occupiers’ liability historically there was, so to speak, a “sliding scale” of duty of care with entrants to property classified or catagorised according to the benefit that they conferred on the occupier.The principal in operation was that the higher the benefit the entrant conferred on the occupier, the greater the duty of care owed to that entrant, therefore each category of entrant had a distinctive duty of care owed to them by the occupier. Because of judicial activism, so called deserving cases, usually children, led to the development of the notion of “implied license” and was achieved by the judiciary enlarging the categories to which a higher duty of care was appropriate.
This allowed what in essence was a trespasser, to receive compensation and depart for all time from the rule in Addie’s Case and it’s Irish equivalent, Donovan v Landys Ltd. (no duty of care owed to trespassers). This resulted, and is interesting for the purpose of this submission, in a general negligence based test replacing the traditional approach to trespassers but it is worth pointing out that the Supreme Court did not extend the negligence based test to all categories of entrant. Some final points in this area are worth a mention.
The law in this area of occupiers liability seems to be based on duty, proximity and foreseeability which are concepts at the core of general negligence criteria.Secondly, although the Irish judiciary had an opportunity to reform this area of law by substituting general negligence principals in place of the more traditional common law categorisation approach, ultimately, reform occurred via legislation.This was likely to be due to the fact that most judges felt that a policy shift was a matter more appropriate for the legislature to deal with despite the fact that a few notable decisions had commenced the process of reform anyway. As it is in other areas of negligence, the notion of a duty of care is an essential ingredient in liability, over and above carelessness and or recklessness on the part of a defendant resulting in a reasonably foreseeable injury or damage to a plaintiff.
The Analogy/ Incremental approach
In England, the analogy approach i.e. imposing a duty of care in similar fact situations was not in itself fully satisfactory in that it could not respond to novel situations and was contrary to McMillan’s speech in Donoghue regarding the categories of negligence not being closed.Where precedents prevented a duty of care being recognised, the judiciary either distinguished a case on a slight variation of the facts or alternatively by reasoning incrementally and by reference to previous authorities, extended the scope of liability in justifiable cases.The elasticity of this approach had it’s limits however and some other method was needed to incorporate the completely novel fact case into the equation, otherwise this area of law could not evolve to take new situations into account.The solution was to only impose a duty of care in new fact situations when the loss was reasonably foreseeable, when there was a proximate relationship between the parties and when it was fair, just and reasonable for a duty of care to be imposed.
Duty of Care & Negligently Inflicted Nervous Shock.
Although the law in this area is now settled, it is fair to say that this has only come about for the most part because nervous shock or Post Traumatic Stress Disorder (PTSD) is now better understood and classified by the medical profession, which in turn has encouraged the courts to expand the legal liability when such damage /injury is inflicted.
In the Irish case of Kelly v Hennessy24 Hamilton C.J. in his judgment stated that for a plaintiff to succeed in an action for PTSD, they must do the following,
A) The plaintiff must establish that they actually suffered nervous shock.
B) They must establish that their recognizable psychiatric illness was shock induced.
C) They must establish that the nervous shock was caused by the defendants acts or omissions.
D) The PTSD suffered by the plaintiff must be by reason of actual or apprehended risk of physical injury to the plaintiff or to a person other than the plaintiff.
E) The plaintiff must show that the defendant owed them a duty of care not to cause them a reasonably foreseeable injury classified as PTSD.
It is point E in particular that will be looked at for the purposes of this submission and as we have already seen in Anns25 Lord Wilberforce, referring to judgments in Donghue26 Headly Byrne27 and Dorset Yacht28 annunciated the principle of the two stage test of relationship of proximity and other considerations limiting the scope of liability. Although it had been stated in McLoughlan v O’Brien29 that the plaintiff had to prove that the nervous shock that she had suffered, was a reasonably foreseeable result of the defendant’s negligent driving, Lord Wilberforce went on to consider and express the view that foreseeability in itself did not automatically give rise to a duty of care to a person or class of persons.
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24 Kelly v Hennessy [1993] ILRM 530.
25 See note 14
26 See note 1
27 Headley Byrne & Co. v Heller & Partners Ltd. [1964] AC 465
28 See note 13
29 McLoughlan v O’Brien [1983] 1 AC 410
He stated that considerations of policy entered into his conclusion about whether a duty existed or not and developed a framework in order to address the issue of who could and could not claim in an action for negligently inflicted nervous shock. The framework was designed to further limit the class of person who would succeed in such a claim;
1) There must be a proximity in time and space of the plaintiff to the accident.
2) There must be a relationship between the primary victim of the defendant’s negligence and the plaintiff.
3) The means by which the accident was communicated, must be taken into account.
To support this view, the floodgates argument was used to prevent on policy grounds, the wider extension to other classes of potential claimant, the possibility that many fraudulent claims would arise, that extending liability beyond the most plain cases would pose procedural evidential difficulties and that this would also be unfair on defendants by imposing out of proportion damages against the defendant when compared to the conduct being attributed to the defendant.This is a clear policy reference to the fact that as most negligence claims arise out of accidents/professional negligence cases, the substantially increased costs to those classes insurers and ultimately back to those classes, would prove burdensome on society.
Primarily however, the floodgates issue was the driving force behind this approach to limiting liability but of course, extension of the scope of liability is a matter for the legislators and these two issues are related to each other. In the case of Alcock v The Chief Constable of South Yorkshire30 the limitations as outlined by Lord Wilberforce were put to the test and it was held that unless the PTSD was suffered by sudden nervous shock on physically seeing or hearing an accident or it’s immediate aftermath, the plaintiff could not succeed.
If a plaintiff suffered nervous shock on being told of an accident by a third party, they could not satisfy the test of reasonable foreseeability and proximity to enable them to succeed.
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30 Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310
Furthermore, a person seeing the events unfold on television also did not satisfy the reasonable foreseeability/proximity tests on the basis that the Television Broadcasting guidelines maintained certain standards in broadcasting and because such people were not in sufficient proximity to the unfolding events and would not have suffered a sudden shock to their nervous system.
People who could satisfy the proximity test (assuming they suffered nervous shock) relative to the immediate aftermath issue were people who saw the injured in hospital, a short few hours after the accident and this view approved the Australian case of Jaensch v Coffey 31 which held that nervous shock induced by a hospital scene to which the injured person was taken immediately after the accident was sufficient to ground a claim.
The viewing of the event on television (or indeed visiting the morgue some hours afterwards) could not be compared to the plaintiff who through their senses heard or saw the events unfold or through the same senses, witnessed the immediate aftermath either at the scene or at the hospital later. Although on the face of it, there appears to me to be little difference between seeing a dead relative at a hospital and seeing a dead relative at a morgue in terms of proximity, this difficulty also caused the judiciary some difficulty and in the case of Hevicane v Ruane32 a father who was informed at a police station of his son’s death as a result of a road accident and who later identified his body at the morgue, was allowed to succeed.
Although it is now agreed that this case was wrongly decided, it does demonstrate the difficulty even the judiciary have in this area from time to time. There does appear to be different approaches to the issue of duty of care in England compared to Australia because in England, Lord Wilberforce in McLoughlan33 reasonable foreseeability was the main test used and although proximity was referred to, Lord Wilberforce felt that this was an aspect of policy.
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31 Jaensch v Coffey [1984] ALR 417 (High Court of Australia)
32 Hevican v Ruane [1991] 3 All ER 65
33 See note 29
Deane J, in Jaensch v Coffey34 on the other hand cited reasonable foreseeability, proximity and then considered policy limitations the implication being that in England there was a need to elevate the proximity requirement because ultimately, the proximity issue determines the relationship of the parties. In Ireland the issue has not been decided and the nearest we have come to a disaster type of scenario on the scale of Hillsborough, is the case of Keegan & Lysaght v Stardust Victims Compensation Tribunal35 where Finlay J said that;
“ …it is not necessary for the court to decide whether the principal in McLoughlan v O’Brien should be followed in his country and I expressly reserve any decision on that question until such a time as it arises before this court
as an issue contested between parties…”
The thrust of his judgment basically suggests that McLoughlan36 would probably apply here. This was a case involving proceedings for judicial review regarding “ex gratia” payments to victims of the disaster. In Kelly v Hennessy37 Hammilton CJ also referred to Jaensch38 by stating that a duty of care will not arise unless a risk of injury (PTSD) was reasonably foreseeable.
He felt in this case that there was no doubt that the plaintiff came within the defendants duty of care and he also felt that the psychiatric illness was a reasonably foreseeable consequence of the defendant’s negligence referring back to Lord Atkin’s famous passage in Donoghue, as outlined earlier. The main difference between Ireland and England is that policy considerations are not likely to be contemplated to refuse to grant compensation as already mentioned in the dicta of McCarthy J, in Ward v McMaster39 but perhaps this position might change if this area of law became heavily litigated in this country.
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34 See note 31
35 Keegan & Lysaght v Stardust Victims compensation Tribunal [1987]
36 See note 29
37 See note 24
38 See note 31
The Stardust tragedy was for the most part dealt with via tribunal which is one way (it could be said) of limiting liability on policy grounds in the same way that there is a push to have the army deafness cases dealt with via tribunal.The army cases are the ultimate “nightmare scenario” for the Irish State with current estimates for compensation running at two billion punts.Of course, I accept that in relation to the Army deafness cases, liability for the most part is not an issue and it is proposed that the tribunal would deal with quantum, establishing that the injury exists, the extent of it and then applying an acceptable sliding scale “Green Book” approach to compensation.Perhaps this is an Irish solution to an Irish problem in that no other volunteer army or soldier of the world can sue it’s state for compensation in negligence but this position did not and does not apply to Irish soldiers.
The Police and Duty of Care
I wish to consider this category of person mostly in relation to the duty of care owed by such people in their professional capacity towards the public but firstly I wish to consider the case of Frost v Chief Constable of South Yorkshire Police & Others39 (follow on from Hillsborough) where it was initially held that a police officer did have the right of action if they sustained an injury which was caused by the negligence of his employer (the Chief Constable) and rescuers were in a primary relationship, therefore not bound by the limitations imposed on policy grounds on secondary victims (victims that suffer nervous shock) that otherwise meet the criteria that allowed recovery.
This decision to allow the police to recover when on the face of it, more “deserving” people who lost friends in the disaster were not allowed to recover, (as discussed in Alcock above) generated widespread disquiet among the general British public.
The HOL recently overturned the Court of Appeal decision, reported in the Times40 in December last year and based their decision on essentially policy grounds. What is interesting about this case to this submission is that the Chief Constable admitted negligence by the police in allowing overcrowding in two spectator pens at the football ground. A quote by Lord Steyn from the article is revealing when he said;
“…In an ideal world, all those who suffered as a result of the negligence ought to be compensated. But we live in a practice world where the tort system to the classes of claim that ranked for consideration as well as to the heads of
recoverable damages which resulted of course, in imperfect justice, but it was by and large, the best the common law could do.”
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39 Frost v Chief Constable of South Yorkshire Police [1996] NLJ 1651
40 Frost v Chief Constable of South Yorkshire Police, The Times law Report Dec.4th1988 (under the headline; Police cannot recover over Hillsborough trauma)
The grounds for the rejection of the Court of Appeal’s decision by the HOL’s were varied but the HOL basically rejected the main plank of the police officers case (on this basis, the Court of Appeal held in their favour) that they should succeed as rescuers.In rejecting this argument, the HOL stated that in order to be classified as rescuers, there would at least have to be an objective perception of danger to the police officers in acting as rescuers, which was not the case in this instance.
An important argument also put forward by the HOLs was that currently, the police could not claim for damages for pure PTSD suffered as a consequence of doing their duty and this head of claim could not be included without expanding the category of persons who can currently recover, to also include other professionals dealing with similar emotional stresses such as fire fighters, ambulance crews etc. The point was also made that there was a statutory provision available to the police officers who were so aversely affected by their experience in that they could retire on pension, which was not an option that members of the public who were involved, could avail of.
Turning now to the question of the general duty of care that the police owe to the public at large, the case of Hill v Chief Constable of West Yorkshire41 is interesting.The Plaintiff was the mother of Jacqueline Hill, the last victim of the Yorkshire Ripper who argued that the defendant had failed to exercise all reasonable care and skill in trying to catch the murderer and because this was the case, the defendant failed to apprehend the murderer and because of this, her daughter had died.
The HOL held that it was foreseeable that if a dangerous criminal was not caught, members of the public would be at risk but it also held that foreseeability of harm did not on it’s own establish the existence of a duty of care.
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41 Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238
At common law, police officers owe to the public, a general duty to enforce the criminal law but that duty did not include a general duty of care to apprehend an unknown criminal. It is clear that policy considerations played a huge part in this decision and although as stated earlier the judiciary have always been anxious that their decisions would not be seen as being overtly policy based, the development of modern case law in this area as we have seen, was to become more and more policy influenced in the future.I think it is fair to state that although there were a few exceptions, the general thrust of this policy based approach, was to further limit the scope of liability.
The sub text to the Hill case was that the judiciary did not wish to hinder the Police in the performance of their duty and a decision in the plaintiff’s favour in this case would have clearly led to a defensive policing policy and crime investigation would have been undertaken by the police against a continual background of a fear of being successfully sued. In the case of Home Office v Dorset Yacht42 involved some boys who escaped from a borstal school and caused damage to the property of the Plaintiff.
The defendant was found liable because of the “special relationship” that existed between the boys and the defendant in who’s care the boys were placed. In this case, it was held that the duty of care extends only to those people that were at special risk as a result of the escape, which in this case were the yacht owners but not the public at large. In the Hill case, the victim could not be considered to have been at special risk, therefore no duty of care was owed to her.
It is important to stress however that the public policy immunity from being sued in negligence is not absolute and in the case of Swinney v Chief Constable of Northumbrian Police43 the plaintiff in this case witnessed a hit and run accident who passed on information in confidence to the police.
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42 See note 13
43 Swinney v Chief Constable of Northumbrian Police [1996] 3 All ER 865
Subsequently, the file containing the witness statement identifying the driver, was stolen from an unattended Police car and eventually got into the hands of the defendant, who set about seriously harassing the witness concerned.
As a result of this harassment, the witness and her husband suffered psychological damage and matters culminated with them loosing their business because of their medical condition. The couple sued the Police in negligence and were successful. The defendants appealed the decision to the Court of Appeal and the appeal was dismissed.
The Court of Appeal held that the public policy immunity expressed in Hill44 should be counterbalanced by more important considerations of public policy, these being the encouragement and protection of informers and keeping sensitive information confidential and secure. L J Hirst stated that the imposition of a duty of care towards the plaintiffs would;
“…preserve the springs of information…protect informers… which encouraged them to come forward without any undue fear of the risk that their identity will subsequently become
known to the suspects”.
In a later case (not a police case) the public policy issue was again considered in England in Capital & Counties PLC v Hampshire County Council45 where a number of cases alleging negligence were heard together related to misfeasance and nonfeasance of a fire brigade at the scene of a fire.
Generally, on public policy grounds, brigades have an immunity with regard to putting out fires and they cant be sued in negligence for not putting out a fire. In the other cases public policy immunity prevailed and they were not found liable for omissions (nonfeasance) i.e. failing to do a positive act.
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44 See note 41
45 Capital & Counties plc. v Hampshire Co. Council [1997] 2 AER 865
In the last case however, the Chief Fire officer gave an instruction to turn off the sprinkler system as he did not want the remainder of the building being water damaged.
This positive act of misfeasance caused the building to be totally destroyed and he was sued in negligence. The court made a finding of imposing a duty of care and this decision was appealed to the Court of Appeal, who dismissed the appeal holding that the positive act of turning off the sprinkler system was sufficient to satisfy the proximity test and held against the public policy immunity and imposed a duty of care.
In relation to the question of what is fair just and reasonable, it is possible for a duty of care not to be imposed even if the reasonable foreseeability and proximity tests are satisfied and the case of Marc Rich & Co. v Bishop Rock Marine Co. Ltd.46 the HOL refused to impose a liability on a non profit society established for the purpose of promoting the welfare of life and property at sea.
The facts relate to the defendants surveying damage to a ship, which contained cargo belonging to the plaintiffs. After assessing the damage, the society recommended temporary repairs so that the ship could complete the voyage and that permanent repairs could be carried out when the voyage was completed and the cargo delivered.
Unfortunately, the ship sank with the loss of the cargo and although the court made a finding that the duty of care criteria were satisfied in relation to reasonably foreseeable/proximity tests, they held in this “novel” case, that it was not fair, just and reasonable to impose a liability, because of the society’s non profit status.
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46 Marc Rich & Co. v Bishop Rock Marine Co. Ltd. [1995] 3 AER 307
Economic Loss for Negligent Misstatement.
As we saw in Candler v Crane Christmas & Co.47, as late as 1951 the courts were not prepared to allow recovery for pure economic loss for negligent misstatement and although Lord Denning argued in favour of re examining this whole area in the context of the Donoghue decision, the majority of the HOL, were intent with sticking with the pre Donoghue precedents and refused recovery under this head. The case of Hedley Byrne48 however reversed the position and is seen as a landmark case in this area.
Interestingly, the principals on which it was decided were not remarkably enough, not based on “Donoghue Principals” but was decided on the basis of a much more restrictive test but the important point is that this case was evidence that the HOL was finally prepared to extent the scope of liability and duty of care in special circumstances in the area of negligent misstatement causing pure economic loss.
The facts concerned a credit worthiness report on a client which induced the Plaintiff’s into commercial dealings who subsequently discovered that the company was a very poor commercial risk and who went out of business shortly afterwards. It was held that the defendants owed a duty of care to the plaintiffs in making the statement negligently, regarding the client’s financial status.
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47 Candler v Crane Christmas & Co. [1951] 2 KB 164
48 See note 27
The floodgates argument was traditionally used here also to prevent recovery but more significantly, the resistance to change was due to the precedents in this area which traditionally refused to permit recovery. There was of course the problem that the HOL in making numerous decisions over the years preventing recovery, did not want to over rule itself, hence the importance of the Hedley Byrne49 decision.
It should be pointed out however, that recovery will still not be permitted in cases where the economic loss is the cost of replacing /repairing the defective product and the 1989 case of D & F Estates Ltd. v Church Commissioners for England50 showed that recovery will not be allowed when the claim is for the re instatement of defective plaster in a block of flats.
The court held that the remedy here is more appropriately dealt with in Contract and not in Tort law but the courts have not been very consistent in this area and a case discussed earlier, Junior Books51 permitted an action in tort to be maintained even though this decision appeared to undermine contractual principals of privity and consideration. As already pointed out however, this decision was of it’s time and very much in the Anns mold, which was later departed from in England.
Turning briefly to the question of duty of care and negligent misstatement causing nervous shock, it is clear from the case law and similar to nervous shock per say, the courts have appeared willing to allow recovery more and more as the medical profession understand and classify PTSD. It does appear however that in this context also, the courts will only permit recovery if there is a “special relationship” and the case of Wilkinson v Downton52 where recovery was allowed when a wife was told by the defendant that her husband had been in an accident and broken his two legs. This statement was uttered knowingly to be false and the Plaintiff recovered for the serious mental illness brought on by serious nervous shock.
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49 See note 27
50 D & F Estates Ltd. v Church Commissioners for England [1989] AC 177
51 See note 18
52 Wilkinson v Downton (1897) 2 QB 57
In the absence of a “special relationship” existing, recovery will not be permitted and in the Canadian case of Guay v Sun Publishing Co.53 the plaintiff did not succeed in an action where the defendant, in one of their newspapers, negligently published a report that was untrue that members of the plaintiff’s family had been killed. The plaintiff sued for nervous shock induced by the false report, but the court held that the only duty owed by the defendant to the plaintiff, was a duty to publish in good faith only.
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53 Guay v Sun publishing Co. [1953] 4 DLR 577
Conclusion.
As we have seen, the law in relation to the tort of negligence has evolved somewhat but still has some way to go but that is not to say that the law in this jurisdiction and in England, needs to change in the same way. In England there is substantial inconsistency and the main area of concern must surely be the reluctance to allow recovery on policy grounds for nervous shock induced illness.
Wrongful conduct is wrongful conduct and to permit recovery in one situation and not another is I feel a poor reflection on the English judiciary’s legal analysis. The general attitude towards mental illness induced by trauma (and in fact mental illness generally) is perhaps the reason for this and I think that the time has come for the English judiciary to recognise that to injure someone through nervous shock, resulting in PTSD is as serious an injury just as worthy of compensation, in the same way that the amputation of a limb or other physical disfigurement is.
In some respects, the decision in Alcock is obscene but perhaps made less so by the recent decision in Frost. The attitude that prevails somehow looks on mental injury through jaundiced eyes and deems such injury not an injury at all when the reality is, that this type of injury can in almost all cases be more debilitating than a more physical injury.
As the understanding of mental injury is understood more and more, perhaps the position is not so bleak for the future and I believe that at some point, there will be a gradual shift in the UK, which is closer to the Irish position.
In Ireland, the position adopted in Kelly v Hennessy appears to suggest a general willingness to allow recovery in this area, once the five requirements are met but as already mentioned, there has not been the same volume of cases here to say with certainty that the law in this area is now settled here here in Ireland.
Although I have made mention of the Army deafness cases currently going through the Irish courts and although so far there appears to be little reticence on the part of the Irish judiciary to prevent recovery in these cases, I feel that the Irish approach is about to be seriously tested in the future.
It would be unfair to suggest that the Irish judiciary have taken a more enlightened approach to this issue when compared to their UK colleagues but the UK judiciary do seem to be influenced more significantly by the public policy agenda, a position the Irish judiciary appear to have no qualms whatever in dispensing with.
Because of Irish citizens more recent involvement in world crises, I believe that it is inevitable that there will be in the future, the potential for a very significant number of PTSD claims from peace keeping personnel, aid agency personnel etc. who are currently working in the most appalling circumstances all over the world, a significant number of whom will undoubtedly encounter difficulties when trying to re integrate into society, when their respective tours of duty are completed.
It is inevitable, that there will be a number of PTSD claims arising from this work and there is no reason to suggest that the Irish position will change in considering these claims but it will be interesting to see, in the absence of negligence (perhaps) how the Irish courts will view these claims.
Perhaps “duty of care” will be extended to such people who perhaps did not receive adequate counseling, medical treatment etc. before, during and after such tours, opening the door or floodgates “so to speak” to yet another round of potentially expensive litigation for the Irish state. Time will tell.
Word Count 9,214
Bibliography
Irish law of Torts, McMahon & Binchy, 2nd ed. Butterworths, Dublin (1990)
Tort Law, Markesinis & Deakin, 3rd. ed. Oxford, (1995)
Tort, Winfield & Jolowicz, 14th. ed. London, Sweet & Maxwell (1994)
A Casebook on Tort, 8th.ed. T. Wier, Sweet & Maxwell (1996)
Articles:
The Times, Law Report, December 4th. 1988 HOL decision under the banner headline “Police cannot recover over Hillsborough trauma”.