Negligence and Liability in Occupiers’ Claims

Question 1

This essay considers the possible claims in negligence that can arise with relation to the case scenario. In this scenario, possible claims can arise against Murad and Hattie. Related to these, are the claims of Zoe and Murad to secondary victim psychiatric injury, which are also discussed in the essay.

Murad

The issue in this case is whether Murad is entitled to claim damages for negligence as a result of falling in Hattie’s property. The law which is applicable to this issue is contained in the Occupiers Liability Act 1957, Occupiers Liability Act 1984, as well as common law principles related to negligence.

Occupiers Liability Act 1957 defines duty of care in Section 2(2) as the duty to take such care as is reasonable so as to ensure that the visitor is reasonably safe in using the premises for the purpose that he was invited for or permitted for in the premises. However, as this visitor is either such as is invited or permitted, it does not apply in the present situation. The present situation relates to Murad, who is a trespasser on the property. As such, the law which is applicable to Murad’s case is Occupiers Liability Act 1984, which defines duty to care as duty to “take such care as is reasonable in all the circumstances of the case to see that [the trespasser] does not suffer injury on the premises by reason of the danger concerned.” Therefore, with respect to the trespasser, the issue is one of danger and therefore, the occupier will be liable if he breaches this duty of care.

The duty of care to a trespasser is owed by an occupier, where the occupier knows of the danger to the trespasser and knowns that the person may encounter the danger while on his property. The occupier may be excused from liability if he can show that he took reasonable care and also issued warnings of danger or discouraged people from incurring the risk of danger. It is also relevant to first identify whether there is danger or not. The case of Ratcliff v McConnell, is instructive on this point. In this case, the Court of Appeal reversed the trial court’s order of compensation to a boy who had trespassed into the college pool at night and suffered an injury due to a dive at the shallow end of the pool. The Court of Appeal held that the pool was not dangerous, and what was dangerous was the act of diving into the shallow end.

Murad tripped over a bale of hay and broke his toe as a result. The bale of hay was in the courtyard of Hattie’s Horses, a private property. The courtyard was that of a riding stables so that it can be inferred that it would be normal for there to be bales of hay in the property. The bale of hay itself was not dangerous, rather, Murad being in a hurry and there being less light, there was an accident. Therefore, it can be concluded that Hattie was not negligent in leaving the hay as it was a riding stable and it was normal and not dangerous for hay to be there.

Zoe:

The issue in this case is whether Zoe is entitled to secondary victim psychiatric injury damages. The law which is applicable in this case is provided in the principles of tort of negligence, particularly related to secondary victims. Secondary victims can claim damages for psychiatric injury due to witnessing of death or harm provided that secondary victims are able to prove their case as per the control mechanisms which include: (a) close relationship between secondary and primary victims; (b) physical and temporal proximity between the secondary victim and the accident; (c) secondary victim must have perceived death, or injury on their own and not someone else’s report; (d) an identified psychiatric injury; and (e) injury due to ‘shock’.

In this case, all the requirements, save the first one, are satisfied. Zoe suffered PTSD due to witnessing Abebi’s accident at first hand and suffering shock due to the witnessing of the accident. However, the first requirement is not satisfied as there is no close familial relationship between Zoe and Abebi. They are friends. As per the decision of the court in Alcock, there must be ties of love and affection between the primary and secondary victims. This is not satisfied by Zoe, therefore, her claim for psychiatric damage will fail in court.

Abebi:

The issue in this case is whether Murad is liable in negligence for Abebi’s injury. There are two particular issues that arise in this case. The first is that of contributory negligence and the second is intervening act of Hattie. This is because of the facts of the case. Abebi was coming back after her riding with her friend. She was not wearing high-vis jacket and was not carrying a light with her at the time, although it was getting dark. Murad was backing up his car at the time and collided with Abebi’s horse. As Abebi was not wearing her high-vis jacket, it can be said that there is contributory negligence on her part. Abebi was unconscious when Hattie found her, but Hattie’s act in moving Abebi into the courtyard (contrary to the call-handler’s instruction) led to further injury in breaking of the neck due to which Abebi was paralysed. This can lead to claims of remoteness as the act of moving Abebi can be seen to be an intervening act that breaks the chain of causation.

Causation is legal and factual causation, the former being within the scope of liability of the defendant; and the latter being the proximity between act or omission of the defendant and the harm. The ‘but for’ test is relevant here, which means that but for the act or the omission of the defendant, the claimant would not have suffered the harm. In this case, Abebi’s injury can be attributed to multiple causes as Murad’s car caused the collision and Hattie’s moving of Abebi led to the neck injury. Therefore, the ‘but for’ test is applicable here because it allows the court to decide as to the party, but for whose action, the harm would not have ensued. The intervening act can however, cause a break in the chain of causation. It can be argued that Murad’s proximity to the neck injury is broken by the intervening act by Hattie in moving Abebi. Murad could not have reasonably foreseen that if he collided with Abebi and caused the latter’s fall from the horse, Hattie would move Abebi and cause further injury. However, where the act of the third party is instinctive, it would not break the chain of causation. Hattie may claim that her act of moving Abebi was instinctive. However, this claim can be defeated by Murad by showing that the call-handler had specifically instructed that Abebi should not be moved. Therefore, Hattie was negligent in moving Abebi and causing the neck injury.

Coming to possible contributory negligence by Abebi, she was not wearing high-vis jacket or carrying a light. Therefore, it is possible that Murad was not able to see her when he backed his car out of the courtyard. In Gleeson, it was held by the Supreme Court that damages for personal injury can be reduced due to contributory negligence of the claimant. The Law Reform (Contributory Negligence) Act 1945 allows the use of the defence of contributory negligence for the reduction of damages to the extent of the claimant’s fault. In Froom, the court deducted 25% from the amount of damages because the claimant was not wearing the belt would have prevented the injury. Murad can also claim that Abebi contributed to her injury by not wearing high-vis jacket which would have helped him notice her as he was backing away.

Tam

The issue in this case is whether Tam is entitled to recover damages from Murad for secondary victim psychiatric harm as he witnessed the accident through the live stream and was grief stricken due to this. The law that is applicable in this case is related to secondary victims in negligence claims.

As per the test laid down in Alcock, indirect witnessing of the event on the television or internet does not lead to successful claims for secondary victims as there should be direct perception of the event with unaided senses. As Tam saw the event on the live stream, he will not be able to claim for damages as a secondary victim because he was not present at the actual event. While this seems arbitrary, this is the law at this time. Murad can claim Tam is not entitled to damages because he was not present at the site of accident and applying the rule in Alcock case, the claimant has to be present at the site and not see or hear about the event in a disassociated manner, such as, through live stream.

Conclusion

Murad is not entitled to negligence damages under the Occupiers Liability Act 1984. Zoe is not entitled to damages because she is not linked by ties of love and affection to Abebi. Tam is not entitled to damages because he did not witness the accident first hand. Murad’s liability to Abebi may be limited by the intervening event by Hattie in moving Abebi.

Question 2

The difference between primary and secondary victims and how they should be treated in the negligence cases, has been a discursive issue in tort law, particularly after the Alcock decision. In context of psychiatric injury, the primary victim is easily linked to the injury, being the person whose actual physical injury or fear or apprehension of such injury or personal safety has led to psychiatric injury. A secondary victim presents a more difficult area as this person is not someone who has suffered psychiatric harm due to harm or threat of harm to himself; rather, it is the witnessing of someone else being harmed or endangered, that has led to the psychiatric harm. There are two approaches to dealing with the primary and secondary victim dichotomy, one being an approach where arbitrary control mechanisms are applied by the courts; and the second being a more flexible approach. A more flexible approach is seen in some authorities; although, the question of the control mechanisms has been justified by the courts because this has been considered to be the only way for the courts to fix the ambit of liability for negligence.

This essay critically discusses the approach of the courts to the issue of psychiatric injury in negligence in context of secondary victims and the control mechanisms developed by the courts. The essay argues that the distinction between primary and secondary victims, though arbitrary at some level, is necessary in order to provide some framework within which the defendant’s liability is reasonably restricted by ensuring that there is proximity between defendant and claimant so as to avoid the countless claims that can otherwise arise out of a single act of negligence of the defendant.

The control mechanisms that are applied to secondary victims’ case are as follows: (a) close relationship between secondary and primary victims; (b) physical and temporal proximity between the secondary victim and the accident; (c) secondary victim must have perceived death, or injury on their own and not someone else’s report; (d) an identified psychiatric injury; and (e) injury due to ‘shock’. These control mechanisms are to be proved by the secondary victim in order to get damages for psychiatric damage. When seen in the context of the ‘neighbour principle’, the control mechanisms create a framework within which the secondary victims can be dealt with by the courts.

The ‘neighbour principle’ was laid down in the seminal case of Donahue v Stevenson, by Lord Atkin, where he defined liability in negligence as that which arises due to the breach of duty to take reasonable care by the defendant, related to avoiding acts or omissions that are reasonably foreseeable as injuring any person closely and directly affected by the act or omission. Over a period of time, the judiciary has come to be faced with the question of whether the defendant’s liability for negligence can be stretched beyond primary victims, to secondary victims as well, who have been psychologically harmed due to the witnessing of the negligent act.

There is a difficulty in this because the defendant’s liability has to be enlarged beyond that owed to the primary victim and include the secondary victim. For this to happen, there should be a link between the negligent act and the damage to the secondary victim that also imbibes the neighbour principle as well. This can be seen in the case of Bourhill, wherein the defendant’s negligence while riding his motorcycle led to a collision with a car. The defendant died in the accident, but the plaintiff, an eight month pregnant woman, came to the scene of crime, and suffered a shock after witnessing the aftermath of the accident. Her baby was a still born for which she sued the defendant’s estate for psychiatric injuries suffered due to the accident. The issue was whether the defendant owed a duty of care to the plaintiff. Applying the neighbour principle, the duty of care would arise only if there was sufficient proximity between the incidents and whether it could be reasonably foreseen by the defendant. The House of Lords held that the defendant could not have foreseen the damage to the plaintiff in this case and there was no sufficient proximity between the plaintiff and the scene of the crash. Therefore, there was no duty of care.

This approach can also be seen in Chester v Waverley Corporation, where the local authority was sued by the claimant for the psychiatric injury suffered by her when she found her dead son’s body in a trench dug by the council. The court held that the council owed a duty of care to the son, and not to the mother who was a secondary victim. However, in this case, the secondary victim was a relative of the primary victim and did suffer a nervous shock on seeing her son’s body. The case of Bourhill v Young, indicates the developing nature of the judicial approach to secondary victims as in this case the need to show existence of duty of care to family member was removed by the court. Therefore, the claimant being a family member, did not have to prove that the defendant owed a duty of care for getting damages for psychiatric harm.

In McLoughlin v O’Brian, the House of Lords reiterated the right of secondary victims to recover damages for psychiatric injuries caused by negligence of the defendant. The test for establishing psychiatric injury for the purpose of tortious liability was also laid down by the court in this case. The first requirement is that there should be a close familial relationship between secondary victim claimant and the primary victim. The second requirement is that the claimant must be in a close proximity to the accident. Close proximity is seen in terms of both the proximity of time and proximity of place. The third point is that the shock suffered by the secondary victim claimant must be the result of the sight or hearing of the event or its immediate aftermath. This ‘sudden shock’ requirement for a secondary victim to claim damages for psychiatric damage is at times arbitrary because genuine cases of psychiatric harm are not allowed damages as seen in a recent case, where a husband was not allowed to recover damages for his nervous shock resulting from his wife’s death due to defendant trust’s medical negligence.

Another problem is that the secondary victims who are in a familial relationship to the primary victims, are included in the scope of duty of care of the defendant, there is a difficulty with respect to rescuers who respond to accidents. In White, Frost and Others v Chief Constable of South Yorkshire and Others, the court drew an important distinction between primary and secondary victims, by holding that rescuer was not entitled to damages for psychiatric harm as the rescuer is not exposed to any physical risk by being involved in a rescue. This meant that rescuers who arrived at the scene of accident and suffered psychiatric damage were not to receive any damages because they were secondary victims. As the Bourhill decision allowed only those secondary victims that are related to primary victims recover damages, rescuers were not allowed to recover compensation for their psychiatric damage. In Chadwick v. British Railways Board, this discrepancy was put to rights when rescuers or helpers at an accident were held to be primary victims, as it “was foreseeable that someone might try to rescue passengers and suffer injury in the process.” However, the only reason that rescuers got the right to claim damages for psychiatric injury was because they were treated as primary victims. This does not change the fact that secondary victims still depend on the court’s treatment of their case based on control mechanisms. In many cases, secondary victims have failed to get damages because control mechanisms have not been satisfied in these cases. Recently, the cases that have failed to satisfy the control mechanisms include Shorter, and Wild, both of which saw the claimant unable to satisfy the control mechanisms.

A first successful attempt (later defeated at Court of Appeal), at getting secondary victimisation psychiatric injury damages was in Taylor v Novo. In this case, the claimant was allowed damages by the court but the defendant’s appeal in the Court of Appeal succeeded. The Court of Appeal held that the issue of proximity was essential to deciding the matter in favour of the claimant. In this case, the defendant and claimant did not have a relationship of proximity because the claimant was not present at the scene of her mother’s accident and her being present at the time of her death some weeks later was not sufficient to determine the defendant’s liability in the case.

To conclude, while the requirement of control mechanisms may be arbitrary at times, it is needed so as to prevent floodgates of suits resulting from the defendant’s negligence.

Journals

Butler DA, ‘Gifford v Strang and the new landscape for recovery for psychiatric injury in Australia’ (2004) 12(2) Torts Law Journal 108.

Hamer D, ‘‘Factual causation’ and ‘scope of liability’: What's the difference?’ (2014) 77(2) The Modern Law Review 155.

Patterson J, ‘Negligently Caused Psychiatric Harm: Recovering Principle and Fairness after the Alcock-Up at Hillsborough’ (2016) 6 Southampton Student L. Rev. 23.

Pinchevski A, ‘Screen Trauma: Visual Media and Post-traumatic Stress Disorder’ (2015) 33(4)Theory, Culture and Society 5.

Rix K and Cory-Wright C, ‘How shocking: compensating secondary victims for psychiatric injury’ (2018) 24(2) BJPsych Advances 110.

Stapleton, ‘Cause in fact and the scope of the liability for consequences’ (2003) 119 LQR 388.