Submitted by: Chloe Hanna
Coursework Problem
Xavier and Yolande are supporters of Queen’s RC, a rugby club that has a fierce rivalry with Alternative RC. They were married in 2016 and are very much in love. In June 2018, after a match between the teams (that ended with a win for their team), Xavier and Yolande were attacked by a group of Alternative RC supporters. Xavier suffered severe head injuries. He died in hospital four hours later.
Yolande did not experience any physical injuries. However, she was arrested by the police who had arrived a few minutes after she and Xavier had been attacked. She was subject to hostile questioning. One of the police officers even said that he hated rugby and as a result, she had got what she had deserved. The fight, Xavier’s death and the treatment by the police led Yolande to suffer PTSD.
Xavier and Yolande have a child called Zoe. Zoe was watching the rugby match on television. The live post-match analysis happened to catch the fight. Zoe was horrified as she watched her mother and father being attacked. She persuaded her aunt – Annabel – to take her to the hospital immediately. Annabel is Yolande’s sister. Annabel had not seen the incident unfold on television as she was in another room, folding laundry. However, she did see the horrible aftermath on running to comfort Zoe who was, by this stage, hysterical. On arriving at the hospital, Annabel was asked to identify Xavier’s body as Zoe, (aged 10) was too young. This caused her great distress. In the months following the incident both Zoe and Annabel have been unwell. Zoe is distraught with the grief of her father’s death. Annabel suffers from PTSD and has recurring nightmares of Xavier’s badly beaten remains.
Bert was the paramedic who had to get through the throng to attend to Xavier. The sounds, smells and sight of Xavier caused him great distress. He has been unable to attend work since the incident and has been diagnosed with depression.
CCTV has identified Crispin as the person who attacked Xavier and Yolande. Please advise the estate of Xavier, Yolande, Zoe, Annabel and Bert. In your answer, please focus on the tort of negligence and specifically where the claimants fulfil the preliminary requirement of ‘loss’.
Answer
The cases of Xavier’s Estate, Yolande, Zoe, Annabel and Bert.
The modern tort of negligence was first established by the landmark case of Donoghue v Stevenson,[1] whereby it must be proven that the defendant owed the claimant a duty of care, this duty was breached and that the breach was the cause of the claimant’s loss. The preliminary issue that must be considered is whether the claimant truly suffered a loss. Without loss, there is no need to consider the defendant’s negligence as damages cannot be awarded to that claimant; tort is all about compensation.
The Estate of Xavier:
The executor of Xavier’s Estate should be advised that it is open to them to claim for damages through the Law Reform (Miscellaneous Provisions) Act 1934, to the benefit of his Estate.[2] Like any claim in tort, the claimant’s loss must be first considered.
Turning to loss, it is clear that Xavier has suffered physical harm, in the form of head injuries. These injuries further lead to his death. When establishing whether the claimant has suffered a loss, where there is a physical injury this preliminary matter is straightforward. Physical loss is not a contested issue between parties, the defendant cannot deny that Xavier has lost his life. It is only in very exceptional cases there may be contest as to whether there was actually harm, within which courts will take in to consideration the context of the claim and social perceptions, however Xavier’s case there is no exceptional facts that would pose an issue.[3]
On the matter of loss, the executor should be advised that there will be no issue. The turning point for the case will fall upon proving duty of care and breach of that duty or proving a causal link.
Yolande:
Yolande should be advised that it is open to her to bring a claim within the tort of negligence for psychiatric harm. Although, establishing loss in psychiatric harm is not as straightforward as physical loss.
Yolande’s PTSD is said to have come from three factors: The fight, Xavier’s death and her treatment by the police. None of these resulted in any physical injuries to her person, and therefore she must prove that she has suffered pure psychiatric harm. For a claim to be successful, the claimant must satisfy the following control mechanisms placed by the courts: the harm must be a recognised medical condition;[4] caused by a sudden event or trauma; and the claimant must be either a primary or secondary victim.[5]
The first control, that the harm must be a recognised medical condition, is easily satisfied on the present facts. PTSD is a recognised medical condition and has been previously acknowledged by the courts to be sufficient to receive damages.[6] Yolande should be advised that to substantiate her claim, she should receive a diagnosis of PTSD if she has not done so already. In the court an expert witness will be called to give evidence that she does in fact have this illness.
Secondly, there must be a sudden event resulting in the psychiatric harm. This factor requires there to be an event or events that happen suddenly and do not build up over time.[7] The three factors for Yolande’s harm happened within the same day, although not all at once. Atkinson v Seghal held that the aftermath of an event, or even the event itself can include more than one component, ‘provided that the events alleged to constitute the aftermath retain proximity to the event’.[8] Turning to the present facts, the fight, Xavier’s death and the police interview could be held by the courts as one continuing event. They were close in time and a link between these events can be drawn, therefore satisfying the second control factor. It must be noted that it is also open to the courts to find that not all of the factors played a part in causing loss, they may find that only one event or two were sufficiently sudden events.
The final element to be satisfied is whether Yolande constitutes a primary or secondary victim. In the leading judgment in psychiatric harm in negligence, Alcock v Chief Constable of South Yorkshire Police,[9] Lord Ackner first used the terms ‘primary’ and ‘secondary’ victims to describe two classifications of persons that the courts had been developing in years previous.[10] By differentiating between class of victim, claimants therefore are subject to different rules depending on whether they are suffering a loss due to something that has happened to them, or if they are hearing about or witnessing something happening to another person.
It is a long-established fact that a claimant can recover where they are in immediate danger or apprehension of danger,[11] Lord Ackner classed this type of person as a ‘primary victim’.[12] Yolande should be advised that she would be viewed by the courts as a primary victim due to her immediate proximity to the fight and police interview.
The primary victim test has two requirements. Firstly, the claimant must be objectively exposed to any physical danger or reasonably believed that he was in threat of physical harm.[13] To the reasonable person it would seem evident that Yolande was in danger of physical injury during the fight and that she may have reasonably apprehended physical harm whilst in police custody due to the threats she was given; therefore, satisfying this requirement on two of the events. For Xavier’s death, it would not be found that she was in immediate danger or could reasonably think she would be subjected to physical harm as he died four hours after the fight. In relation to Xavier’s death, Yolande would be considered as a secondary victim, as discussed below.
The second requirement it that the ‘defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury, whether physical or psychiatric’.[14] Further, this test is objective and relies on what the reasonable man would consider foreseeable, not what the defendant himself thought. The reasonable person could comprehend that a physical fight may lead to physical harm, equally it is reasonable to assume that an experience such as this with the police may lead to psychological damage. Provided that the courts find on these two controls in a similar way, Yolande should be advised she has satisfied that she has suffered pure psychiatric harm in relation to the fight and the police interview.
Turning to the effect of Xavier’s death, Yolande would have to prove she was a secondary victim. A secondary victim is a person who suffers psychiatric harm from witnessing or hearing about something that happened to someone else. The courts acknowledge that this could be a very wide class of claimants and therefore have developed further controls, referred to as the ‘nearness, hearness and dearness’ requirements.[15]
The ‘dearness’ requirement allows only those with a close tie of love and affection to recover.[16] There is a rebuttable presumption that there is a close tie of love and affection between spouses,[17] on the facts they had a happy marriage and were very much in love therefore this requirement has been met.
For the ‘nearness’ requirement, the claimant must have been sufficiently proximate in time and space to the incident or its immediate aftermath.[18] Yolande was present at the fight and therefore was sufficiently proximate to the incident that caused Xavier’s death.
Finally, the ‘hearness’ requirement stipulates that the claimant must have perceived the event with their own senses leading to a sudden shock on the nervous system. We are not aware how Yolande discovered Xavier had died, but assuming she was told directly this final requirement is also satisfied.
Therefore, it is likely that Yolande’s loss in relation to Xavier’s death has too been satisfied.
Zoe (By her mother and litigation friend):
Being a minor, Zoe will need an adult litigation friend to bring her case. This would most likely be her mother, Yolande. Yolande should be advised that Zoe’s loss is also one of pure psychiatric harm.
There ‘must be harm of a serious kind beyond mere grief’ or emotion to constitute a recognised psychiatric illness.[19] Grief stemming from a loved one’s death has been held by the courts to not be sufficient to claim damages, as these feelings are typical to the situation and are normal human emotion.[20] However, it is established that pathological grief can be recoverable.[21] On the facts, it seems clear that Zoe is feeling grief as mere emotion, not pathological. Her father’s death being less than six months ago, a medical professional would most likely rule this as normal human emotion that will rescind with time.
If Zoe’s grief was held to be a recognisable psychiatric harm, there would be further issue in establishing her as a secondary victim. There is a presumption of close ties of love and affection between parent and child, as such the ‘dearness’ requirement is satisfied. However, Zoe’s perception of the incident will affect the ‘nearness’ requirement.
Alcock held that watching the event unfold through a television was not sufficient to be the immediate aftermath.[22] On the facts, Zoe watched the fight unfold on television and was later told about her father’s death. Zoe therefore did not witness anything harrowing in person and would not be considered to have been either at the event or its immediate aftermath.
Zoe’s claim therefore would most likely fail at the first hurdle in establishing a recognised psychiatric illness, or if it passed this, on the ‘nearness’ element of the secondary victim controls.
Annabel:
Annabel too could bring action for her pure psychiatric harm. She is suffering from PTSD, which is an established medical condition.[23] Furthermore, her nightmares may not be recognised on their own merit, but as a symptom of her medical condition, which would be highlighted by the expert witness in court.
Annabel’s injury came from witnessing the body of Xavier, which is one sudden event in which harm was caused from something that happened to another, she would be considered as a secondary victim. Being a sister-in-law there would not be a presumption of close ties of love and affection and therefore the burden of proof lies with her to produce evidence that shows this close relationship did exist.
The ‘nearness’ element may pose more difficulty for Annabel’s claim. Alcock held that a mortuary visit nine hours after the event was outside the scope of immediate aftermath.[24] However, in Atkinson a mortuary visit was considered part of the immediate aftermath of the event.[25] These two case facts can be distinguished from the present, first in Alcock the purpose of the trip to the mortuary was to identify the body; in the present case there is nothing to suggest that Annabel even knew of Xavier’s death until she arrived at the hospital. In Atkinson, the claimant was present at the original incident and the visit was therefore considered as part of a continuing event. It is difficult to advise whether the courts would consider Annabel’s identification of Xavier’s body as part of the immediate aftermath or not. The case of Taylor v Somerset Health Authority held that identifying a body at the hospital, in a similar manner to the facts pertaining to Annabel, was not to constitute the immediate aftermath. Part of the reasoning for such was that the victim’s body had no signs of violent physical injury.[26] The facts do not stipulate to what extent Xavier’s body was injured, if there was ‘violent’ injury to his body it is possible that Annabel could rely upon the reasoning in Taylor to demonstrate that this was the immediate aftermath.
Provided that Annabel can provide sufficient proof that she had close ties of love to Xavier and the court accepts that she witnessed the immediate aftermath, her claim should proceed past the preliminary requirement of loss.
Bert:
Bert should be advised that his claim in negligence would be a very weak one. The law on recovering for psychiatric harm does not lend itself to allow for compensation for rescuers or first responders.
It is acknowledged that Bert would satisfy the first two controls. Depression is recognised as a medical condition and has been upheld by the courts to be sufficient to gain recovery.[27] Bert’s claim would also suffice as a sudden event, as he was present at one single event that caused a sudden assault on his nervous system.
It is the third control factor that causes Bert the most issue. Being a paramedic and arriving at the incident to treat the wounded cannot constitute Bert as a primary victim. He was not present during the fight and therefore cannot objectively be seen to be in threat of any physical harm, nor would it be reasonable for him to apprehend any physical harm. Bert therefore cannot constitute a primary victim, and his ability to claim as a secondary victim must be considered.
On the ‘dearness’ requirement of the secondary victim test, Bert’s claim would instantly fail. There is nothing to suggest he knew of Xavier previously and therefore cannot be held to have a close tie of love and affection to him.
The Law Commission have acknowledged ‘how life shattering psychiatric illness can be and how, in many instances, it can be more debilitating than physical injury’,[28] however, the courts are wary to extending the law greatly. Lord Dyson MR has commented that the law should be left to Parliament, but equally he leaves it open that there may be modest development by the court.[29] For the court to amend the law as present, this case would have to reach the Supreme Court and challenge Alcock. It is unlikely that the law would develop so far to extend recovery to claimants such as Bert, as this would beyond the ‘modest’ development approach the courts have taken.
Therefore, Bert’s claim for psychiatric harm will most likely fail while establishing his loss. Subsequently, he cannot claim for his consequential economic loss either.
Bibliography
Case Law:
Donoghue v Stevenson [1932] AC 562.
McFarlane v Tayside Health Authority [2000] 2 AC 59
Hinz v Berry [1970] 2 QB 40.
Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.
Leach v Chief Constable of the Gloucester Constabulary [1999] 1 WLR 1421.
Atkinson v Seghal [2003] EWCA Civ 697.
Bourhill v Young [1943] AC 92.
Dulieu v white [1901] 2 KB 669.
White v Chief Constable of South Yorkshire [1999] 2 AC 455.
Page v Smith [1996] 1 AC 155.
McLoughlin v O’Brian [1983] 1 AC 410.
Hevican v Ruane [1991] 3 All ER 65.
Kralj v McGrath [1986] 1 All ER 54.
Vernon v Bosley (no 1) [1997] 1 All ER 577.
Attia v British Gas Plc [1988] QB 304.
Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194.
Taylor v Somerset Health Authority [1993] P.I.Q.R. 262.
Statute:
Law Reform (Miscellaneous Provisions) Act 1934.
Law Commission Reports
Law Commission, Liability for Psychiatric Illness (Law Com No 137, 1998).
[1] [1932] AC 562.
[2] Section 1 (1).
[3] McFarlane v Tayside Health Authority [2000] 2 AC 59.
[4] Hinz v Berry [1970] 2 QB 40, 42H.
[5] Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.
[6] Leach v Chief Constable of the Gloucester Constabulary [1999] 1 WLR 1421.
[7] Alcock (n 5).
[8] [2003] EWCA Civ 697, [25].
[9] Alcock (n 5).
[10] Bourhill v Young [1943] AC 92.
[11] Dulieu v white [1901] 2 KB 669.
[12] Alcock (n 5).
[13] White v Chief Constable of South Yorkshire [1999] 2 AC 455.
[14] Page v Smith [1996] 1 AC 155.
[15]White (n 13), (Henry LJ).
[16] Alcock (n 5).
[17] McLoughlin v O’Brian [1983] 1 AC 410, (Lord Wilberforce).
[18] Ibid.
[19] Hevican v Ruane [1991] 3 All ER 65.
[20] Alcock (n 5), 401; Hinz (n 4), 42H.
[21] Kralj v McGrath [1986] 1 All ER 54; Vernon v Bosley (no 1) [1997] 1 All ER 577.
[22] Alcock (n 5).
[23] Leach (n 6).
[24] Alcock (n 5).
[25] Atkinson (n 8).
[26] [1993] P.I.Q.R. 262.
[27] Attia v British Gas Plc [1988] QB 304.
[28] Law Commission, Liability for Psychiatric Illness (Law Com No 137, 1998).
[29] Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194, [24].