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Actionable Damage Notes

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3. ACTIONABLE DAMAGE In terms of the interests that negligence protects, a hierarchy can be seen in the scope for recovery and how keen the Courts are to assist. Personal injury > property loss > pure economic loss. Personal injury and property damage are always actionable and further personal injury / property damage / economic loss consequential on D's breach are recoverable subject to remoteness rules. However, pure economic loss and psychiatric injury are subject to significant restrictions. PHYSICAL INJURY Only actual physical injury / illness is recoverable in negligence. An increased risk of suffering an illness in the future is not itself actionable damage; C will not have a claim unless and until the risk materialises and C contracts the illness.
? Rothwell v Chemical Insulating Co [2007]: Cs sued their employer who had negligently exposed them to asbestos. Cs had developed pleural plaques, which were evidence they were at risk of developing asbestos related diseases. HL: Cs could not recover for either the pleural plaques (no evidence they were harmful on their own) nor the risk of developing a disease in the future. Lord Rodger: "Neither the risk of developing those other diseases caused by asbestos fibres in the lungs nor anxiety about the possibility of that risk materialising could amount to damage for the purposes of creating a cause of action in tort." PSYCHIATRIC INJURY Psychiatric injury consequential on physical injury: C can claim for it without recourse to the below rules (confirmed in Alcock) --- no need to show a recognised physical illness, can claim for 'pain and suffering'. Psychiatric injury consequential on property damage: C can claim if she can show causation and reasonable foreseeability: Attia v British Gas [1987]: D (heating engineers) negligently installed a central heating system which burned down C's house. CA: accepted C's claim for nervous shock. White v CC South Yorks [1999] Lord Steyn articulated the main reasons for limits on recovery for freestanding mental injury:
? The nature of the damage: It can be difficult to distinguish 'acute grief' from genuine 'psychiatric illness'. Drawing the line would require expert evidence, adding to the time/cost of litigation if it was actionable in the same way as physical injury. o Criticism: expense of litigation isn't a valid reason to deny recovery to deserving Cs. It will often be clear that C is suffering from a recognised illness (e.g. PTSD) particularly with modern improvements in the treatment / diagnosis of the mentally ill.
? Allowing recovery can be "an unconscious disincentive to rehabilitation." o Criticism: this doesn't seem to be based on evidence.
? Allowing recovery would 'open floodgates'. Two limbs:

o Indeterminable number of Cs: if there is a bus crash how do you determine number of Cs? Those involved? Watches by roadside? Watches on TV? Related concern is recovery will impose a disproportionate burden on D compared to the magnitude of his negligence. o Indeterminable extent of injury: While physical injury has a clear, tangible impact, psychiatric injury is to some extent immeasurable. It has no natural limit.

1. C's condition must be a recognised medical condition As Lord Oliver noted in Alcock v CC South Yorks [1992]: grief, sorrow, and anxiety alone are 'a necessary part of life' which must be accepted and are not recoverable as psychiatric harm. Recognised types of psychiatric harm include PTSD and depression. Once it is established that C is suffering from a recognised psychiatric condition, the rules on recovery turn on whether C is a primary or secondary victim --- distinction drawn in Alcock, and Page.

2. Primary victims General rule: Where C is in the physical sphere of harm / directly involved and it is foreseeable that he will suffer a physical injury, he can claim if the injury that in fact results is psychiatric.
?? ? ?Page v Smith [1996]: C suffered permeant exhaustion as the result of a car crash caused by D's negligence. Lord Lloyd: the question is "whether the foreseeable injury is physical...
Once it is established that D is under a duty of care to avoid causing personal injury to C, it matters not whether the injury in fact sustained is physical, psychiatric or both." o Floodgates concern does not apply in primary victim cases. It's limited by foreseeability of physical injury. o D must take C as he finds him: will not escape liability just because C is more prone to psychiatric injury than an ordinary person of reasonable fortitude. Rescuers are only 'primary' victims where they are within the range of foreseeable physical injury / objectively exposed themselves to danger.
?? ? ?White v CC South Yorks [1999]: Could police officers who attended the Hillsborough Stadium disaster claim against their employer for psychiatric damage? HL: they could only claim under the normal Alcock / Page rule: i.e. if the employer had breached his duty of care in protecting employees from physical harm. Here that was not satisfied. o Hoffmann: rescuers should not be ""given special treatment as primary victims when they were not within the range of foreseeable physical injury and their psychiatric injury was caused by witnessing or participating in the aftermath." This is because:
? Definitional problems: if rescuers fell into their own category, it would present serious problems in terms of defining 'rescuer'.
? Distributive justice: "unacceptable to the ordinary person" for rescuers to be able to recover for psychiatric injury automatically because it would be "unfair between one class of Cs and another." I.e. the relatives of Hillsborough families were subject to restrictive rules in Alcock, so police had to be treated the same way. o Steyn: "to contain the concept of rescuer in reasonable bounds for the purposes of...
compensation for pure psychiatric harm, C must at least satisfy the threshold

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requirement that he objectively exposed himself to danger or reasonably believed that he was doing so." McFarlane v EE Caledonia [1994] C was on a support vessel near an oil rig which exploded. C witnessed the destruction of the rig and the death of 164 people, although the closest he came was 100m. Stuart-Smith LJ: C could claim as a primary victim. This category extends to "C who is not actually in danger, but because of the sudden and unexpected nature of the event ... reasonably thinks that he is." However, the key test is whether D ought reasonably to have foreseen that such a person in the position of C might be killed / physically injured.

Page applied narrowly in Rothwell: Seems the psychiatric illness be caused directly from the exposure to a sudden risk of physical injury, not the later apprehension that harm may occur:
? Rothwell [2007]: C sued for depression / psychiatric illness caused by his fear of developing an asbestos related disease since the pleural plaques meant he was at a higher risk. HL (Lord Hoffmann): Page did not apply to allow C to recover as a primary victim --- his injury was caused by worry about what might occur: "it would be an unwarranted extension of the principle in Page v Smith to apply it to psychiatric illness caused by apprehension of the possibility of an unfavourable event which had not actually happened". o Criticism: not clear why C could not recover. In both Page and Rothwell it was foreseeable C would come to physical harm, but C instead suffered psychiatric illness. Seems in Page the psychiatric injury flowed from C being in a position of real physical danger at the time of breach, but in Rothwell, C's psychiatric injury was caused by the later realisation he was at risk --- he was never in 'danger' in the sense of fearing for his immediate safety (as in Page). Involuntary participants in D's harm to another? In Alcock Lord Oliver suggested C may be a primary victim where D's conduct causes C to be an involuntary participant in an incident causing physical harm to another and C suffers psychiatric injury as a result. This was developed (although not conclusively, concerned pre-trial hearings on legitimacy of the claim) in:
? W v Essex [2001]: Cs were foster parents. D Council assured Cs that no child would be placed with them who was a known sex abuser. D placed a boy who was a known sex abuser and D abused C's children. C suffered psychiatric damage from the associated guilt. Lord Slynn: suggests "the law regarding psychiatric injury is still developing and the categories of primary victim is not closed." It is arguable that Cs may be primary victims based on being an unwitting participation in bringing the abuser into their home. o Reassessing 'immediate aftermath': "the concept of "the immediate aftermath" of the incident has to be assessed in the particular factual situation." Here, he did not think it necessary that "the parents must come across the abuser or the abused "immediately" after the sexual incident has terminated." Hunter can be contrasted to W v Essex --- both the parents and C here were 'unwitting agents of misfortune' but C here could not claim, whereas the parents in Essex potentially could.
? Hunter v British Coal Corporation [1998] C accidently struck a water hydrant at his place of work (a coal mine), causing a water leak. He left the scene in order to deal with the leak, but while he was away he heard the hydrant burst and was told that it looked like a colleague had

died. He suffered a psychiatric illness as a result. CA: C was not entitled to damages as he was not a primary victim, he only reacted to what he had been told.

3. Secondary Victims A secondary victim is a person who suffers psychiatric injury as a result of witnessing / being informed about an accident, but who was not in the zone of danger. The rules were developed in: Alcock v CC South Yorks [1992]
? Facts: Cs were family members / friends of victims of the Hillsborough disaster who had seen live pictures of the incident on TV. Cs suffered shock and resulting psychiatric illness. Claimed against the local authority responsible for policing the disaster.
? HL: they could not recover for these illnesses as secondary victims. The requirements are:

1. Reasonable foreseeability: It must be reasonably foreseeable that a person of reasonable fortitude would suffer psychiatric injury as a result of D's negligence:

2. Close ties of love and affection: this is tied up with concerns about foreseeability. o Rebuttable presumption where C is in a close familial relationship with V (parent/child; husband/wife; engaged couple). o Other relationships: (siblings, grandparents, friends): C must prove a close tie of love and affection exists.

3. C must be proximate in time and space: one C visited a relative killed in the crush eight hours after the incident --- this was too long to satisfy the requirement of proximity

4. The psychiatric injury must flow from shock as a result of directly experiencing the incident / aftermath. Lord Ackner: Shock means "the sudden appreciation by sight or sound of a horrifying event which violently agitates the mind". Seeing TV images is insufficient, at least where the footage does not show identifiable individuals (here just a crowd). This means injury sustained as a result of caring for an injured relative would not qualify. McLoughlin v O'Brian [1983] C was sufficiently proximate when she saw her dead child /
injured family in hospital after a car crash. She arrived after two hours, it having taken a while for the news to reach her. Thus C may be temporally and spatially removed at the time of the accident and still be sufficiently proximate. [note that treatment by commentators suggest this case is at the edge].
? Minority judgments: foreseeability alone should be the sole criterion of liability : if it was foreseeable that C would suffer psychiatric injury as a result of D's negligence, then why shouldn't C recover? Foreseeability is enough to contain floodgates risks, which do not materialise often in practice anyway. W v Essex: in addition to considering that the parents of molested children may be primary victims, Lord Slynn took a flexible approach to the proximity requirement --- although the parents only learned of the molestation later on and did not have direct oral / visual perception of the incidents, this could be enough.

White v CC South Yorks: Police could not recover as secondary victims because they lacked a close tie of love and affection with any of the Hillsborough victims whose injuries they witnessed C cannot claim for psychiatric damage suffered as a secondary victim consequent on harm to D.
? Greatorex v Greatorex [2000]: C fire-officer was called to the scene of a car accident in which, by pure coincident, his son had been injured through his own negligence. He sued his son for damages for the PTSD he consequently sustained (knowing any award would be covered by his son's insurance). Cazelet J D who imperilled or injured himself owed no duty to those suffering psychiatric injury as a result. In his view, the policy arguments in favour of a duty of care were outweighed by those that ran against it.

4. Stress in employment situations Barber v Somerset CC [2004] C, a schoolteacher, sued his employer for depression suffered as a result of stressful working conditions. HL (Lord Rodger): the liability issue in employment cases where C suffers long-term stress is determined by asking whether the employer has fulfilled the general duty (which is a matter of contract as well as tort) which he owes not to injure his workers. The employer must take account of individual weaknesses where these ought to be known to him. Debate over the rules for psychiatric harm Criticisms of current law:
? The restrictions on recovery for psychiatric injury in secondary victim cases are seriously flawed in that they treat psychiatric injury as something inherently different from physical personal injury; this is contrary to medical knowledge and reinforces the stigma and misunderstanding surrounding mental illness.
? Minority in McLoughlin: floodgates concerns are often seriously overstated and do not materialise in practice. E.g. floodgates concerns were raised over the decision to abolish CN as an absolute defence to liability and these concerns did not eventuate. Floodgates concerns are speculative so should not alone justify denying liability to deserving victims of psychiatric injury. A requirement of foreseeability alone would avert much of the floodgates risk. o Despite arguing against a foreseeability-only approach, Wilberforce noted many of the arguments against it were capable of answer: "fraudulent claims can be contained by the courts, who, also, can cope with evidentiary difficulties. The scarcity of cases which have occurred in the past, and the modest sums recovered, give some indication that fears of a flood of litigation may be exaggerated - experience in other fields suggests that such fears usually are. If some increase does occur, that may only reveal the existence of a genuine social need: that legislation has been found necessary in Australia may indicate the same thing."
? Teff floodgates concerns can be avoided by imposing two requirements in secondary victim cases: (i) recognised medical condition; (ii) reasonable foreseeability of psychiatric injury, evidenced by a close relationship between C and the injured person or by other means e.g. a particularly horrific incident. The other requirements are arbitrary and unnecessary.

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Criticisms of Page: o In White v CC South Yorks, Lord Goff (dissenting) stated Page "constituted a remarkable departure from ... generally accepted principles ." In particular, it "dethroned foreseeability of psychiatric injury from its central position as the unifying feature of this branch of the law" by making a distinction between primary and secondary victims. Only for secondary victims was it still necessary for the claimant to establish the foreseeability of psychiatric injury; the primary victim had only to show the foreseeability of injury, whether physical or psychiatric.
? Goff's Alternative: Goff suggests instead that the approach taken in the Wagon Mound (No. 1) should have been followed --- here, fire was distinguished from other types of damage to property for the purpose of deciding what D could reasonably have foreseen --- "on exactly the same grounds, a particular type of personal injury, viz. psychiatric injury, may, for the like purpose, properly be differentiated from other types of personal injury." Further this approach is consistent with "scientific advances revealing that psychiatric illnesses may have a physical base or that psychiatric injury should be regarded as another form of personal injury."

Arguments in favour of the current law:
? Wilberforce in McLoughlin: Argued foreseeability alone should not be enough (although note he thought some of these arguments could be answered --- see above). o Would lead to a proliferation of claims / fraudulent claims in road traffic / factory accidents. o Would be unfair to Ds to impose damages out of all proportion to negligent conduct. In so far as Ds are insured, a large burden will be placed on insurers, and ultimately onto persons injured. o To extend liability would lengthen litigation / lead to evidentiary difficulties. o An extension of the scope of liability ought only to be made by the legislature, after careful research. This is the approach taken in Australia.
? Floodgates argument: can subdivided into two distinct concerns: (i) the fear of a proliferation of claims from a single event (probably the argument's central force) and (ii) the possibility of a mass of claims from a mass of separate events. Such a proliferation of claims would clog the court system and divert too many of society's resources into compensating the victims of psychiatric illness at the expense of other equally or more deserving Cs. Why should those in the 'sphere of danger' be treated differently ?
? Argument for 1: prevents arbitrary line excluding those who narrowly avoid physical injury: In Page Lord Lloyd asked whether it can be the law that the fortuitous absence of actual physical injury means that a different test has to be used. I.e. if C was actually injured he could claim for consequential psychiatric damage, why should the psychiatric damage have to be itself foreseeable if C narrowly misses physical harm. o Equally arbitrary line is drawn by treating as different C who happens to be within /
without the area of physical danger. Trindale: "what is so magical about being within the range of foreseeable physical injury, except perhaps the mistaken view that the number of potential Cs will be limited by the nature of the case." The arbitrariness of this line is illustrated by

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