Tort 5: Negligence Special Problems (All)

Terms in this set (214)

1. The claimant is the author of his own misfortune (Philcox v Civil Aviation Authority

2. A duty of care would lead to unduly defensive practices by Ds seeking to avoid claims for negligence with detrimental effects on their performance of some public duty (Hill v CC of West Yorkshire [1988] 2 All ER 238, and X (minors) v Bedfordshire CC [1995]

3. Awards of damages against a public authority exercising a public function would have an impact upon the resources available to the authority to perform its duties, both in terms of the damages and costs, and in terms of the resources required to investigate and defend spurious claims (X (minors) v Bedfordshire CC [1995]

3 A duty of care would cut across a complex statutory framework established by Parliament for regulating particular circumstances, such as the regulation of financial markets (Yuen Kun-yeu v AG of Hong Kong [1987] 2 All ER 705) or the protection of C at risk (X (minors) v Bedfordshire

4. There is an alternative remedy available to an aggrieved C, such as a statutory right of appeal from the decision of a government officer or department, or judicial review, or another source of compensation, such as the criminal Injuries Compensation Scheme, or another cause of action, such as a claim for breach of contract, even where the action would be against a different D.

5. Where a DOC would tend to undermine the requirements of other causes of action, particularly in the case of complex commercial contracts where the parties have had the opportunity to negotiate a detailed structure of contractual negotiations
The claimant who is a "secondary victim" must perceive a "shocking event" with his own unaided senses, as an eye-witness to the event, or hearing the event in person, or viewing its "immediate aftermath". This requires close physical proximity to the event, and would usually exclude events witnessed by television or informed of by a third party, as was the case with some of the plaintiffs in Alcock.
The shock must be a "sudden" and not a "gradual" assault on the claimant's nervous system. So a claimant who develops a depression from living with a relative debilitated by the accident will not be able to recover damages.
If the nervous shock is caused by witnessing the death or injury of another person the claimant must show a "sufficiently proximate" relationship to that person, usually described as a "close tie of love and affection". Such ties are presumed to exist only between parents and children, as well as spouses and fiancés. In other relations, including siblings, ties of love and affection must be proved.
It must be reasonably foreseeable that a person of normal fortitude in the claimant's position would suffer psychiatric damage. The closer the tie between the claimant and the victim, the more likely it is that he would succeed in this element. However, once it is shown that some psychiatric damage was foreseeable, it does not matter that the claimant was particularly susceptible to psychiatric illness - the defendant must "take his victim as he finds him" and pay for all the consequences of nervous shock (see "Eggshell skull" rule).
The claimant's 10-month-old son was in hospital suffering from liver failure which was the result of the defendant's admitted negligence in failing to diagnose his condition. The claimant was with her son when he had an epileptic seizure which the defendant's doctors told her was very unlikely to have caused any serious damage. The child's condition deteriorated and he was taken by ambulance to another hospital for a liver transplant, followed by the claimant in her car. On arrival she was told that her son had in fact suffered severe brain damage, which she was told on the following day was so severe that he would have no quality of life. She agreed to his life support system being turned off and he died. It was agreed that the claimant had suffered shock and a recognised psychiatric illness, namely pathological grief reaction, as a result of what she had witnessed and experienced over a period of some 36 hours between her son's seizure and his death. Could this be categorised as injury by shock - that is 'sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind'? Yes, held the Court of Appeal. A realistic view should be taken of what constitutes the necessary 'event'. In this case there was a seamless tale with an obvious beginning and an equally obvious end. It was played out over a period of 36 hours, which for the claimant was undoubtedly one drawn-out experience. Accordingly, the 36-hour period constituted one entire event, albeit made up of discreet events. It was a short step for the Court to find that such a step was 'horrifying'
Holding: No: "A tortious duty of care may arise not only in cases where services are rendered gratuitously, but also where they are rendered under K"

Reasoning: Lord Goff of Chieveley: Starts with reference to Hedley Byrne. Says that Hedley established that one could recover for negligence in words or deeds, and for pure economic loss. So there is authority for the type of claim that's being made here.

Furthermore, he quotes Lord Morris in Hedley: "it should now be regarded as settled that if someone possessed of a special skill undertakes, quite irrespective of K, to apply that skill for the assistance of another person who relies on that skill, a duty of care will arise." He quotes Devlin who said that you can recover in tort for actions undertaken gratuitously that were done negligently. Reasoning by analogy: he says that the Hedley principle quoted above has been applied to a number of different categories of service-performing people, including insurance brokers and lawyers. So it can be extended to Lloyd's agents. They hold themselves out as possessing special expertise and the investors relied on that expertise.

So the remaining issue is the problem of tort or K -- can you recover in tort where there is a K? Two options: insist he sue in K alone, or allow the PL to choose between K and tort?

Examination of jurisprudence: he says that at first courts held that liability for solicitor negligence had to be pursued in K. Ditto for architects, but in Bagot v. Stevens Scanlan and Co., Devlin noted that a different conclusion could be reached where the DF had a public calling (e.g. an innkeeper, common carrier, master of a servant).

Examination of effects: Goff doesn't like the idea that consequences of the negligence of professionals can take a while to come to light, and that they might come to light more than six years (prescription) after the date of the breach of K. If they couldn't sue in tort, the PLs would be left without a way to make a claim. There are other practical problems related to remoteness of damage and serving proceedings out of jurisdiction, and we can't rewrite the law to mitigate the effects of differing sets of rules -- it's "crying for the moon."

Esso v. Madron implied that concurrent liability in K and tort was possible -- the DFs were liable in K and negligence. But there was little discussion of why. Midland Bank v. Hett is more helpful -- an examination of jurisprudence there found no unanimity in the view that solicitor liability is purely contractual. In Midland, the court quoted the famous Candler and Crane passage that appears in Hedley, and then noted that Denning was "trying to find a general principle of liability arising from relationships created by the assumption of a particular work or responsibility, quite regardless of how the relationship arose." The Midland court said that it is wholly immaterial that the DFs' duty arose because they accepted a retainer that entitled them to a fee. A review of foreign (Commonwealth) authorities shows this is the rule in Canada (Central Trust Co and Rafuse), Ireland, and Australia.

Why? The tort law is "the general law." Parties can K out of it if they wish, but that doesn't change the fact that it is the "general" (default?) law. It is not distasteful that PFs be able to take advantage of the remedy most advantageous to them.

Lord Browne-Wilkinson: Agrees in large part, looks at the problem through lens of fiduciary duty. Says there are K responsibilities, and then fiduciary ones, which must be respected regardless of the presence of a K (unless the K explicitly eliminates them)
point was elucidated in Henderson by Lord Goff of Chieveley. He observed, at [1994] 2 AC 145, 181B-C:
"... especially in a context concerned with a liability which may arise under a contract or in a situation 'equivalent to contract,' it must be expected that an objective test will be applied when asking the question whether, in a particular case, responsibility should be held to have been assumed by the defendant to the plaintiff"
The touchstone of liability is not the state of mind of the defendant. An objective test means that the primary focus must be on things said or done by the defendant or on his behalf in dealings with the plaintiff. Obviously, the impact of what a defendant says or does must be judged in the light of the relevant contextual scene. Subject to this qualification the primary focus must be on exchanges (in which term I include statements and conduct) which cross the line between the defendant and the plaintiff. Sometimes such an issue arises in a simple bilateral relationship. In the present case a triangular position is under consideration: the prospective franchisees, the franchisor company, and the director. In such a case where the personal liability of the director is in question the internal arrangements between a director and his company cannot be the foundation of a director's personal liability in tort. The enquiry must be whether the director, or anybody on his behalf, conveyed directly or indirectly to the prospective franchisees that the director assumed personal responsibility towards the prospective franchisees

example of such a case being established is Fairline Shipping Corp v Adamson [1975]
An important feature of this case is that there is no question of an ambulance not being available or of a conflict in priorities. Again I recognise that where what is being attacked is the allocation of resources, whether in the provision of sufficient ambulances or sufficient drivers or attendants, different considerations could apply. There then could be issues which are not suited for resolution by the courts. However, once there are available, both in the form of an ambulance and in the form of manpower, the resources to provide an ambulance on which there are no alternative demands, the ambulance service would be acting perversely "in circumstances such as arose in this case", if it did not make those resources available. Having decided to provide an ambulance an explanation is required to justify a failure to attend within reasonable time...


The fact that it was a person who foreseeably would suffer further injuries by a delay in providing an ambulance, when there was no reason why it should not be provided, is important in establishing the necessary proximity and thus duty of care in this case. In other words, as there were no circumstances which made it unfair or unreasonable or unjust that liability should exist, there is no reason why there should not be liability if the arrival of the ambulance was delayed for no good reason. The acceptance of the call in this case established the duty of care. On the findings of the judge it was delay which caused the further injuries...

I would say exactly the same of the facts in this case. As in Costello they are out of the ordinary. I would hope that it is unusual in the extreme for an ambulance to be delayed as this ambulance was delayed without the crew being able to put forward any explanation.
balancing assessment of all the public policy considerations relevant to the question of immunity had to be carried out on the merits of the claim, and not on a strike-out application.

The Court of Appeal in Swinney had said that the interlocutory process was inapt to carry out the balancing exercise and that it should be done by a judge hearing the evidence at trial. In his Lordship's opinion, the general rule that the police, in the course of investigating or suppressing crime, were immune from suits of negligence, as a matter of public policy (see Hill v Chief Constable of West Yorkshire ([1989] 1 AC 53)) was unaffected by Swinney and Osman.

Those cases demonstrated that the general rule did not provide blanket immunity in all cases, but that in each case a balancing exercise had to be carried out.

Where it was apparent to the court that the general rule of immunity was not outweighed by other policy considerations, such as the protection of informers, the immunity continued to exist.

In his Lordship's judgment, in some cases the material for carrying out the balancing exercise was not provided by the pleadings, and the exercise fell to be performed by the trial judge after hearing the evidence.

Swinney had been such a case, since the court had not known from the pleadings whether or not the police were involved in investigating or suppressing crime at the relevant time.

In other cases there would be sufficient material evidence available on the pleadings to enable a decision to be taken at a pre-trial hearing.
assumption of responsibility was only one aspect of the wider issue of whether it was fair, just and reasonable to impose a duty of care. Where the defendant was a public authority, there were important additional factors of public policy to consider; however, there may be classes of claimant who stood in such a special relationship with the defendant local authority that it was just and fair to impose a duty of care. The judge limited his consideration of the factors relevant to fairness, justice and reasonableness to public interest factors which were applicable to the possibility of a duty being owed to the world at large. However, S was not one of the world at large; she was one of a small group of social workers, working in close proximity and co-operation with the second and third defendants' own employees. The judge erred in failing to consider properly the special position of S, and it was open to a trial judge, taking the particular relationship of the parties into account, to conclude that it was fair, just and reasonable to impose a duty of care on the NHS trusts.

It was arguable that the position of the NHS trusts was analogous to the position of the police who may be under an operational duty to warn a person who they knew was at a real and immediate risk of being killed by a person with whom they have been involved. The main consideration was whether the necessary factual nexus existed. Further, it could not be said that S had no hope of establishing that she was at real and immediate risk of a serious attack by GB, and that was a matter for the trial judge after hearing the evidence.
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