negligence- Economic loss and Psychiatric injurd Flashcards
if a claimant successfully proves a negligent act or omission by another the defendant they will be able to claim damages :
any physical injury and or
any damage to property
no duty to compensate loss of profit
spartan steel v Martin and co contractors ltd 1973
An electric power cable outside the claimants factory was negligently cut by the defendants workmen. This had led to a loss of power for several hours to the factory which made steel alloys. A melt in the furnace at the time of the power cut had to be destroyed to stop it from solidifying and wrecking the furnace. there were three parts of the claim:
for the damage to the melts on the production line and the furnace- this could be claimed as it was physical damge.
for the loss of profit of those melts - this could be claimed as it amounted to consequential economic loss from physical damage.
for the loss of profit while the factory was out of action it was decided by the coa that this part of the claim should not be allowed as its amounted to pure economic loss. This was a financial loss which was not caused by physical damage to the claimant. Lord Denning decided that a line must be drawn as a matter of policy, and that this loss of profit was better borne by insurers than by the defendants alone.
Weller v Foot and mouth disease research institute 1966
the foot and mouth virus was negligently allowed to escape from the defendants premises. It infected cattle, rendering them unsaleable and causing many to be destroyed. Restrictions were placed on the movement of all animals for some time to prevent the spread of the disease. The claimant was an auctioneer and brought an action claiming the loss of profit he would of made had he been able to continue his normal sales. his claim failed as the court decided that pure economics loss is not recoverable under tort law.
legal principle loss of income from this negligence was considered pure economic loss and not covered. The court decided that to allow this would create limitless liability and rejected for policy reasons.
what is the two part test?
statement made negligently as seen in Hedley Byrne heller and partner
a special relationship Chaudry v prabhakar like their friend
has to be directly communicated
Hedley Byrne v Heller and partner 1964
An advertising company, Hedley Byrne was approached by easipower to place adverts in newspapers and magazines. It had not previously dealt with easipower so it requested a reference from easipowers bank. the bank gave a favourable reference and gedley Byrne went ahead with the campaign. however easipower went into liquidation without paying for the campaign. hedley Byrne sued easipowers bank for loss suffered as a result of its reliance on the reference.
the house of lords decided that, in principle, a claim could be made for negligent misstatement if a special relationship between the parties could be proved. in this case, there was a special relationship but the reference contained a disclaimer of liability. This amounted to a defence, which meant they Hedley Byrne could not succeed.
legal principle a claim can be made if it can be shown that 1 the statement was made negligently 2 there is a special relationship between the parties.
what is a special relationship?
requires all of the following:
The possession of a special skill or expertise on the part of the person giving the advice.
A reliance on the advice by the claimant eg the advice is acted upon but there has to be sufficient proximity between the two parties
the advice is communicated directly not through a third party eg newpaper
person giving the advice known that it is being used by the claimant
there is no disclaimer to the act as a defence
Chaudhry v Prabhakar 1988
The claimant asked her friend, who, while not a mechanic had some experience of cars, to find her a good second hand car that had not been in an accident. He recommended a car that was being sold by a dealer. The friend assured her that the car was in a good condition and had not been involved in a accident, relying on this assurance, she bought it. It was later discovered discovered that the case he had been recommended had been involved in an accident and was completely unroadworthy.
The claimant recovered the cost of the vehicle from the dealer under contract law but also successfully sued her friend for his negligent misstatement.
legal principle special relationship can exist in social relationships.
what is a psychiatric injury?
also known as nervous shock. a severe long term mental injury which more than shock or grief.
what is a primary victim?
someone who is directly injured by the event. the injury can be physical and or mental.
what is a secondary victim?
someone who is harmed when they witness event. the injury is likely to be mental.
what must a secondary victim prove?
there was an accident or sudden event where someone was negligent which caused the injury
some form of mental injury prevent from working like ptsd, medical evidence
claimant passes certian alcock criteria
that a person of reasonable fortitude would have suffered injury in the same circumstance
Dulieu v white 1901
The claimant was working a bar, when as a a result of an accident in the street outside, a coach and horses crashed into the bar. she suffered fear of her own safety. her claim was allowed as it was foreseeable that, in the event of an accident someone could suffer real and immediate fear of personal danger.
This was probably the first successful claim for mental injuries.
legal principle: a claim can be made if the victim fears for the own the safety
Hambrook v stokes 1925
A mother was walking with her children along a pavement when a runaway lorry passed her. She heard a crash ahead of her and also thought that lorry was involved in an accident involving children. She suffered severe shock as she feared for the safety of her children. Her claim was allowed and as a result a claim could be made by those suffering shock due to fearing or the safety of a family member.
legal principle: extended the principle of dulieu v white to fear for a family member
Bourhill v Young 1943
A pregnant fishwife heard an accident involving a motorbike as she was getting of a tram. she went to look at the scene and, when she saw the blood on the road, she suffered such a shock that she miscarried. Her claim was against the estate of the dead motorcyclist who had caused the accident failed, as she was not related to him and she was not within the range of people who could be foreseen as suffering shock. There was no proximity of the relationship between her and the motorcyclist. legal principle: to claim the mental injury must be caused injury to a family member.
McLoughlin v O’Brien 1982
Mrs Mc Loughlin’s Husband and children were involved in a car accident due to the negligence of a lorry driver. She was at home and was informed of the accident. she went to the hospital where her family was being treated. She suffered shock when she saw them and learned of the death of one of her children.
Two principles were set out by the house of lords which extended the rules for claiming nervouse shock further
1 a claim could be made by someone who had close ties of love and affection with the victim of the accident
2 the shock could be suffered either at the scene of the accident or within its immediate aftermath. No time was set for this, but Mrs McLoughlin arrived at the hospital within two hours of the accident.
Page v smith
The claimant had suffered from ME ( nervous disorder) before the accident. He was in recovery when he was involved in a minor care accident due to the defendants negligence. He was not physically injured but the accident triggered his ME which became chronic and permanent. As a result he was unbale to return to his job as a teacher. The house of lords decided that provided some kind of personal injury was foreseeable, it did not matter whether the injury was physical or psychiatric and so the distinction was made between primary and secondary victims.
Primary victims
The house of lords in page stated that primary victims are:
- Those who are involved in the accident
- May suffer physical and/or psychiatric injury
- Required to prove that the defendant was negligent
- Can claim for both physical and psychiatric injury
secondary victims
The house of lords in page stated that the secondary victims are:
- Those who were not involved in the accident
- Suffered mental injury as a result of what they saw or heard in the aftermath
- Need to prove negligence
- Meet the alcock criteria
- only succeed if a reasonable person in that position would have suffered shock
Alcock v chief constable of south yorkshire 1992
Due to the negligence of the police, too many football supporters were allowed into an area of the Hillsborough ground , leading to suffering crash injuries . Ninety six fans died and hundreds were injured . The police eventually admitted negligence and settled claims made by those present. The case involved a representative groups of families who suffered mental injuries as a result of learning that family members had been involved in the tragedy.
The Alcock criteria
All three elements of the criteria need to be met for a claim
- the claimant must have close ties in love and affection for the victim
( the relationship is a close type of relationship and the relationship is close in fact - The claimant suffered mental injuries at the scene of the accident or in the immediate aftermath as seen in mcloughlin
( some claimants saw the bodies of the victims 8 hours later in the mortuary, these claims were not allowed ) - The claimant suffered shock through his or her own unaided senses . In other words they saw or heard the accident or the aftermath.
( this excluded claims from people who have seen or heard the event on the tv or radio etc)
other claimants - rescuers
- This covers anyone who helps a victim of an accident
- what would happen if the court didn’t allow claims from rescuers?
- Most cases are likely to succeed so people are not discouraged from helping in an accident.
- previous cases have set precedent for rescuer cases.
Chadwick v British rail 1967
The claimant helped victims of the Lewisham train crash which occurred close to his home. Because of his small size , he was encouraged to crawl into the wreckage to give injections and comfort to trapped passengers. As a result of his experience, he suffered mental injuries. His claim against the negligent railway authority was successful , as the court considered he was a primary victims , at risk to himself, and did not want to discourage members of the public from rescuing, if required.
legal principle : rescuer claim are allowed if they are primary victim
Hale v London Underground 1992
- most cases now will be from professional rescuers who put themselves at risk
A fireman who suffered post traumatic stress following the kings cross fire station successfully claimed as he was classed as a primary victim.
However, if rescuers do no put themselves at physical risk they will be classed as secondary victim’s and will have to satisfy the alcock criteria.
White v chief constable of south Yorkshire
police officers who tool part in the rescue operation at Hillsborough claimed post traumatic stress disorder as a result of their experiences. Their claims were denied as they did not put themselves at risk. A further reason was that the judge considered that public policy prevented them from recovering compensation when the relatives of the victims could not recover.
legal principle if a rescuer is not a physical risk they are a secondary victim and will need to satisfy the alcock criteria.
- This precedent was followed in French v chief constable of susses police 2006 when officers claimed nervous shock after being investigated for the shooting of an innocent man.
Bystanders
- These are witnesses to an accident or its aftermath, and who do nothing to help
- They will not be able to claim for mental injury if they do not meet the alcock criteria
- This was set out in mc Farlene v E E Caledonia 1994
Mc Farlane v E E caledonia 1994
The claimant was on board a supply ship when the piper Alpha oilrig exploded in the north sea. He witnesses the explosions and the rescue of the survivors and suffered psychiatric injury as a result of what he saw. He did not help in the rescue.
Mc farlane failed in his claim because he was classed as a bystander rather than a rescuer, and he did not satisfy all the alcock criteria.
legal principle bystanders are secondary victims and need to satisfy the alcock criteria
Attia v British Gas 1987
property owners
A women engages the defendants to install central heating. When she returned home after work, she saw smoke coming from the property but, by the time the fire brigade arrived, her house was burned down and completely destroyed. The fire was caused by the defendants negligence. The claimant suffered severe shock from seeing her house and possessions destroyed. Her claim was allowed as she was within the area of impact and within the reasonable foresight of the defendants.
legal principle property owners may claim for psychiatric injury if they witness their property destroyed.
what is meant by near misses?
- These are people who are close to the scene and may have suffered physical or mental injuries
- They are regarded as primary victims and can claim for injuries if they can prove that the defendants who caused the accident was negligent
- They do not have to be related to the victim of the accident
sion v Hampsted health authority 1994
The claimant’s son was seriously injured in a motor-cycle accident. He was taken to hospital, went into a coma and dies 14 days later. The claimant remained at his son’s bedside throughout and claimed psychiatric injury as a result of witnessing her son’s deterioration. He claimed against the hospital , alleging that their negligent treatment of his son caused him to suffer psychiatric injury. The court decided , as there was no sudden horrifying event but a gradual decline in the son’s condition there was no claim. Legal principle : shock needs to be suffered as a result of a sudden event 14 days is too long
North Glamorgan NHS trust v Walter’s 2002
Doctors negligently failed to diagnose the claimants ten month old son’s liver failure. He was taken by ambulance to another hospital for. Liver transplant, followed by the claimant in her car. On arrival she was told that her son suffered brain damage following a seizure. The next day she agreed to his life support system to be turned off and he died. She suffered pathological grief reaction, as a result of what she had witnessed and experienced over 36 hours.
The court of appeal decided this could amount to sudden appreciation of a horrifying event, even though the time was made up of discrete events. Legal principle reaction of events happening over 36 hours can be considered as a horrifying event.
Galli - Atkinson v seghal 2003
North Glamorgan was referred to in this case.
The claimants 16 year old daughter was killed in a crash. She arrived at the scene after her daughter had been removed. Hysterical, she was taken to the mortuary and saw her daughter’s body, which was badly disfigured and suffered severe shock. The court of appeal decided that, in this case the immediate aftermath was an uninterrupted series of events from the time of the accident to when the victim left the mortuary.
