The Scope and Implications of Negligence in the English Tort Law

Q1.

Introduction

The tortuous definition of negligence gives us ample grounds and provisions to work on and this wrong in civil nature covers extensively large scopes before the courts of the UK herein. Although it is generally regarded by the public at large that the Tort Law in the spectrum of negligence covers tortuous injury in the nature of mental and physical, owing to the general public, negligence covers private wrong along with public wrong. Negligence does not only cover public and private wrong in the physical nature but it also adjudicates wrongs which are of mental in nature. As it has been defined by Winfield,

“Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”

The English Tort Law certifies the a tortuous negligence as when there exists a certain degree of duty of care, owed by one person to another, the breach of such duty of care by the person who owed it to the other person, in consequence of which, the other party suffers injury or loss in terms of property. Thus, for the purpose of negligence to take place two persons shall have such relationship that (i) one party extensively owe a duty of care towards the other party (ii) A violation towards duty of care (iii) The harm suffered by the other party and the breach of duty of care must have a strong proof of causation.

Herein, we shall discuss the legal implications of mental injury in the tort law of negligence and how mental injury will be applicable in the abovementioned problem concerning

Mental injury and Negligence

In reference to the abovementioned given case problem, Rockets Ltd. herein shall be held liable for the mental injury under the act of negligence. However, such mental injury shall not form negligence in all the circumstances as given in the case problem. Thus, for the purpose of better clarity to the given case problem, we shall discuss the evaluation of mental injury or nervous shock as negligence with reference to case laws.

Nervous shock or mental injury caused by an act of breach of duty of care by one party shall give rise to the tort of negligence under the English Tort Law. Lord Keith and Lord Oliver in the case of Alcock v chief constable of south Yorkshire, shared their view in using the term ‘nervous shock’ as “misleading” and “inaccurate”; however, in general term of negligence, the term nervous shock has an extensive use.

Due to the un-codified nature of the Tort Law, there is no particular provision which shall cover the mental injury in relation to negligence. However, several precedents have evaluated the history of mental injury in respect to negligence. The elements regarding negligence in terms of mental injury are similar to the elements to the general negligence. However, in case of mental injury there exists another element where it should be proved that the mental shock received by the petitioner is not too remote to be traced from the actual breach of duty of care herein.

In the year of 1861, the case of Lynch v. Knight, first recognised the existence of mental injury in form of negligence and commented on the importance of it. In this case, mental injury in form of negligence tort only formed a part of obiter dicta. However, with time, the importance of mental injury or nervous shock resulting from an act of negligence held a strong base in the case Victorian Railways Commissioners v. Coultas, where the Privy Council stressed on the point of foreseeability in case of mental injury. However, eventually, more liberal views regarding mental injury as a consequence of negligence was followed from the case of Dulieu v. White & Sonsand Donoghue v. Stevenson.

Application of injury suffered due to nervous shock in the negligence of tort

However, after the broad and arbitrary use of the Donogheu v. Stevenson in respect of the neighbor principle and the principle of duty of care, the courts of UK deemed it fit to bring into a test of measurement which shall restrict and measure the negligence in the nature of mental injury and govern them accordingly.

In the case of Caparo v. Dickman, it was held that the defendant did not hold any liability towards the economic loss suffered by the claimant. However, this case gave birth to the Caparo Test which turned out to be an essential precedent in the cases of negligence in nature of mental injury. The Caparo test essentially holds three elements for the purpose of establishing the breach of duty of care (i) Forseeability(ii) proximity and (iii) fairness.

• The first instance is concerned with Pablo, who is the Civil partner of Teddie, one of the members of the band who has sustained injury due to negligent act on part of the Rockets ltd. In this case, Pablo was standing in back of the concert and he did not witness Teddie or the any of the disaster followed by the mishap by the Rockets Ltd. Pablo only witnessed Teddie being injured on the big live screen of the concert. Thus, applying the analysis test decided in the case of Caparo v. Dickman, it can be held that the forseeability of the act of negligence caused by Rockets Ltd. and the post traumatic stress disorder suffered by Pablo in the instant case does not have a remote link or any proof of causation. Also, Pablo’s instance does not also pass the other two elements of proximity or fairness on the part of the Rockets ltd. Therefore, Rockets Ltd. does not owe any duty of care towards Pablo and Pablo cannot sue Rockets Ltd. under tort law of negligence.
• In the next instance, May, who is the cousin of one of the band members namely Ray’s was present in the scene. Soon after the explosion due to the negligent act on part of the Rockets Ltd, she rushed on the stage which was on fire and pulled Ray out. Due to such impact, she suffered from clinical depression. The test of Caparo v. Dickman, holds true in this instance as May rushed into the burning stage to rescue Ray and thus suffered severe mental injury which has a broad ground of forseeability and proximity. The same decision was held in the case of White V Chief Constable of South Yorkshire Police as well, where it was held that in instances like the abovementioned case where the claimant is the ‘rescuer’, the defendant shall be held liable to be prosecuted. May shall be considered as secondary victim as has been defined in the case of Page v. Smith, where mental injury as a consequence of negligence was clearly described.
• In the next instant, Taylor is one of the band member’s father who was not present in the scene of accident. He heard of the news through radio and rushed to the hospital to visit his son who was injured in the explosion. It is thus given that Taylor suffers from a personality change and became quiet and withdrawn post such experience. Considering the case of Taylor, the case of Bourhill v. Young shall be applied where it was held that a pregnant women suffering miscarriage after seeing a blood on the road caused by an accident, shall not hold liable the defendant for the act of negligence as the defendant did not hold a duty of care towards her. Again, applying the Caparo Test herein, it can be decided that the nature of psychological changes suffered by Taylor cannot said to have a direct link with the incident caused by Rockets ltd. Rockets Ltd. did not owe a duty of care towards Taylor who was not present in the scene of the case and thus it shall not pass the test of foreseeability, proximity and fairness. Thus, Taylor cannot hold Rockets Ltd. liable under the radar of negligence.
• The fourth instance is concerned with Pyrois, who was in charge of setting off the firework. After the given explosion herein, Pyrois suffered through guilt and eventually fall prey to such clinical depression that he had to quit his job and never returned to his position with Rockets Ltd. herein. This is a clear case of negligence in the nature of mental injury. Rockets Ltd.’s negligent act in rechecking the materials of the firework caused the explosion and Pyrois, being the one in charge of lighting the fuse of the firework, suffered through severe mental injury which passes the test of negligence mentioned under the case of Caparo v. Dickman. As it has been considered under the case of Page v. Smith, Pyrois is the secondary victim who passes the test of proximity as has been mentioned in the case of White v. Chief Constable of South Yorkshire Police, as well. Thus, Pyrois shall be liable to prosecute Rockets Ltd. with compensating his psychiatric damage which makes him unable to work.

Conclusion

Although the concept of mental injury under the ambit of negligence tort has come a lot far with the help of the Donogheu v. Stevenson principle of duty of care, it has been fairly limited by the test of Caparo v. Dickman, as well. But the test of Caparo has helped in expanding the volume of the mental injury negligence to a great extent and many well established precedents have been set by various courts of England. Thus, in the abovementioned problem, Rockets Ltd. shall be held liable to be prosecuted in the instance of May and Pyrois. However, they will not be held liable in the case of Taylor and Pablo as they were not the close proximity of the event that happened due to the negligent act on the part of Rockets Ltd.

BIBLIOGRAPHY

Book

P. H. Winfield; “A Text-Book of the Law of Tort” (1971), 8th ed

Article

Craig Purshouse; “Police Negligence and the Caparo ‘Test’ for Duty of Care” (2018)

CASE LAWS

• Alcock v chief constable of south Yorkshire, [1991] UKHL 5, [1992] 1 AC 310
• Lynch v. Knight, (1861) 9 H. L. C. 577. 598
• Victorian Railway Commissioners v Coultas, (1887) 13 App Cas 222
• Dulieu v White and Sons, [1901]2 KB 66 9
• Donogheu v. Stevenson, UKHL 100, SC (HL) 31, AC 562
• White v Chief Constable of South Yorkshire, [ 1998] 3 WLR 1509
• Page v Smith, [1995] UKHL 7
• Bourhill v Young, [1943] AC 92

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