Negligence: Pure Psychiatric Harm, Employers Liability and Defences

Question 1

Pure psychiatric harm: limiting factors for duty of care

Answer 1

The injury
must be:
*caused by a sudden shock; and either
*a medically recognised psychiatric illness; or
*a shock- induced physical condition (such as a miscarriage or heart attack).

Claimant has to have been closely enough affected by the defendant’s negligence - how far the claimant was involved in the events caused by the defendant’s negligence.

Question 2

Pure psychiatric harm - primary victims

Answer 2

Page v Smith test for primary victims:
* was in the actual area of danger; or
* reasonably believed that he was in danger.

The requirements for a duty of care to be owed to a primary victim are:
* primary victims are owed a duty of care in relation to their pure psychiatric harm, provided the risk of physical injury was foreseeable;
* for primary victims it is not necessary for the risk of psychiatric harm to be foreseeable.

Question 3

Pure psychiatric harm - secondary victims

Answer 3

Page v Smith:
* witnesses injury to someone else; or
* fears for the safety of another person.

Alcock v Chief Constable of South Yorkshire Police requirements:
* Foreseeability of psychiatric harm.
It must be reasonably foreseeable that a person of normal fortitude in the claimant’s position would suffer a psychiatric illness.
* Proximity of relationship.
The claimant must have a close relationship of love and affection with the person who is endangered by the defendant’s negligence.
* Proximity in time and space.
The claimant must be present at the accident or its immediate aftermath.
* Proximity of perception.
The claimant must see or hear the accident, or its immediate aftermath, with their own senses.

Question 4

Pure psychiatric harm - rescuers

Answer 4

• If a rescuer has been in the actual area of danger, they are a primary victim. A duty of care is owed to a primary victim, provided there is a foreseeable risk of physical injury (even though the injury he in fact suffers is pure psychiatric harm).
• If a rescuer has not been in the actual area of danger so that they have not been exposed to any risk of physical injury, they will be classed as a secondary victim. They will be owed a duty of care only if they meet all of the tests laid down in Alcock.

Unlikely that the professional rescuer will have any ties of love and affection with the immediate victims whom they are assisting. Thus, the requirement for proximity of relationship is unlikely to be met.

Question 5

Pure psychiatric harm - breach of duty and causation of damage

Answer 5

Often, a defendant in a case of pure psychiatric harm does in fact admit that they fell below a reasonable standard of care and so was in breach of duty.
Sometimes causation of damage is assumed for the sake of argument so court can focus on whether duty of care was owed.

Question 6

Pure psychiatric harm - remoteness

Answer 6

Damage is too remote if it is not a reasonably foreseeable consequence of the defendant’s negligence. However, a proviso to this requirement is the ‘egg- shell skull’ rule - only needs to show that some damage of the kind they suffered was reasonably foreseeable.

So, they can recover damages for all psychiatric injury they suffer.

Question 7

Employers liability - common law duty

Answer 7

Duty to take reasonable care for its employees’ safety while at work.

Wilsons & Clyde Coal Co Ltd v English - The duties are to take reasonable steps to provide:
* competent staff;
* adequate material (ie plant, equipment and machinery); and
* a proper system of work and supervision.

Latimer v AEC added a fourth duty to the list:
* a safe place of work.

Question 8

Employers liability - personal

Answer 8

Employer cannot escape liability for the negligent performance of its duty by saying that it delegated its performance to someone else.

Employee does not have to identify exactly who was to blame for an accident.

Question 9

Employers liability - duties - competent staff

Answer 9

An employer owes an employee a duty to provide the employee with competent fellow workers.

Arises where an employer knows, or ought to know, about the risk a particular worker is posing to fellow workers.

Question 10

Employers liability - duties - adequate plant and equipment

Answer 10

An employer owes an employee a duty to provide the employee with adequate plant and equipment.

For defective equipment - the injury shall be deemed to be also attributable to negligence on the part of the employer.
The injured employee needs to establish two things:
1. fault on the part of the third party (most commonly the manufacturer of the equipment, but a supplier would also come within the statutory provision);
2. causation (ie that the fault of the third party caused the employee’s injury).

Question 11

Employers liability - duties - safe system of work

Answer 11

An employer owes an employee a duty to provide the employee with a safe system of work.

It is not enough for an employer simply to devise a safe system; this duty also requires an employer to take reasonable steps to ensure that it is complied with.

Question 12

Employers liability - duties - safe workplace

Answer 12

An employer owes an employee a duty to provide the employee with a safe place of work.

Overlap between this common law duty in negligence and the statutory duty provided by the Occupiers’ Liability Act 1957. Under this Act, where there are dangers due to the state of the premises, an occupier owes a duty to visitors to take reasonable care for their safety. Employee counts as a visitor.

Common law duty more onerous as cannot delegate compliance with duty and not just premises where employer is occupier - employer has to assess premises to which his employees are sent for dangers.

Question 13

Employers liability - duties - stress

Answer 13

Hatton guidelines threshold question to determine whether a duty would arise was whether injury to health through stress at work was reasonably foreseeable.
Consider:
* the nature and extent of the work done by the employee (eg was the workload obviously too demanding; high degree of sickness); and
* signs from the employee themselves. Entitled to take what an employee told it at face value.

Question 14

Employers liability - breach of duty

Answer 14

Each of the duties owed by an employer requires the employer to take such steps as are reasonable.

Standard of care to be expected of a reasonable employer in its position.

Question 15

Employers liability - breach of duty - Health and Safety at Work Act 1974

Answer 15

Breach of regulations made under the HSWA 1974 is a criminal offence not civil.

Provisions relevant where an injured employee brings a claim in the tort of negligence.

Question 16

Employers liability - likely defences

Answer 16

Consent (voluntary assumption of risk) and contributory negligence.

Question 17

Defences - consent (voluntary assumption of risk)

Answer 17

Complete defence for the defendant.

Defendant must establish:
* that the claimant had full knowledge of the nature and extent of the risk; and
* that the claimant willingly consented to accept the risk of being injured due to the defendant’s negligence.

C’s consent must not be obtained as a result of fear or duress.
If relationship between the parties is such that there is doubt as to whether the claimant can truly decide voluntarily whether or not to assume the risk of danger, consent cannot apply.

Question 18

Defences - consent (voluntary assumption of risk) - Cs consent - motor vehicles

Answer 18

Dann v Hamilton [1939] got in car with drunk driver. Not enough that she knew he was drunk.

Section 149 of the Road Traffic Act 1988 applies to any motor vehicle where insurance for passengers is compulsory. Its effect is that any acceptance of risk by the passenger is invalid. The defence of consent or volenti cannot be relied on.

Question 19

Defences - consent (voluntary assumption of risk) - Consent and employees

Answer 19

Defence of consent rarely succeeds in claims by employees against their employers.

An employee acts under a duty and therefore has no real freedom of choice when carrying out a dangerous task requested by the employer.

Question 20

Defences - consent (voluntary assumption of risk) - Consent and rescuers

Answer 20

The courts take the view that rescuers often act under moral compulsion and not voluntarily.

Applies equally to professional rescuers and to lay rescuers.

Question 21

Defences - contributory negligence

Answer 21

Partial defence.

2 elements:
* carelessness on the claimant’s part; and
* that carelessness has contributed to the claimant’s damage.

C’s damages are reduced.

Claimant needs to have contributed to the loss which they have suffered. Does not need to have contributed to the accident itself.

Test for contributory negligence is whether the claimant has failed to take reasonable care for their own safety.

Question 22

Defences - contributory negligence - examples

Answer 22

• Seatbelts
• Crash helmets
• Passengers who accept lifts from a driver whom they know to be drunk

Question 23

Defences - contributory negligence - children

Answer 23

The older the child, the more likely a court is to make a finding of contributory negligence.

Child’s damages cannot be reduced on account of the negligence of his parents.
(If the parent is partly to blame for the injury to the child, the defendant could seek to show that the parent was liable to the child for the same damage as the defendant, and could seek a contribution under the Civil Liability (Contribution) Act 1978.)

Question 24

Defences - contributory negligence - rescuers

Answer 24

Baker v TE Hopkins & Son Ltd:
* A rescuer will be judged against the standard of the reasonable rescuer. Allowance will be made for the emergency situation in which many rescuers will find themselves.
* Only if a rescuer has shown a ‘wholly unreasonable disregard for his or her own safety’ is there likely to be a finding of contributory negligence.

Question 25

Defences - contributory negligence - dilemma cases

Answer 25

D’s negligence may put the claimant in a situation of imminent danger, compelling the claimant to take some action to try to save themselves

Claimant who acts in the ‘agony of the moment’ due to the defendant’s negligence will not be contributory negligent if the court is satisfied that the claimant’s actions were a reasonable response to the danger.

Question 26

Defences - illegality (ex turpi causa non oritur actio)

Answer 26

Complete defence for the defendant, preventing the claimant recovering at all for the defendant’s breach of duty.

To succeed there must be a very close connection between the illegal activity of the claimant and the injury which they suffer, so that the damage arises directly out of the illegal activity in such a way that it would be contrary to public policy to allow the claimant a remedy.