Rescuers Liability for Negligence and Nervous Shock
Rescuers are an exception to the rule that claimants for nervous shock have to be in a ‘close and loving relationship’ with the accident victim.
In Chadwick vs British Railways Board (1967), the plaintiff was a passer-by who assisted at the scene of a rail disaster. He did not know the accident victims, but was able to recover.
In Hale vs London Underground (1992), a professional rescuer, a fireman, was awarded damages for nervous shock.
Professional rescuers were again allowed to recover in Frost vs Chief Constable of South Yorkshire (1996). The case was another Hillsborough stadium disaster case. The five plaintiffs were police officers, four of whom were present at the ground and the fifth discharged mortuary duties at a local hospital following the disaster. Three out of the five plaintiffs were classed as rescuers and were able
to recover damages for their psychiatric injuries, on that basis. In addition, as the disaster was instigated by the negligence of their employer, the four officers present at the ground were owed duties in their capacity as employees from their employer. They were at the scene as a matter of obligation. The fifth officer was not owed a duty, as she was neither a rescuer nor at the ground when the negligence occurred. A majority of the Court of Appeal held that rescuers and employees are primary and not secondary victims.
This enlightens the inconsistency between this case and Alcock, where relatives of the victims of the disaster did not succeed as they lacked sufficient proximity. Frost can also be distinguished from McFarlane vs EE Caledonia Ltd, as in the latter case the employee was off duty and consequently not owed a duty by his employer, he was not under an obligation to be at the scene of the Piper Alpha disaster.
Judge L J, in a dissenting judgment, held that all employees and all rescuers could not be categorized in fixed categories as primary and secondary victims. The classification should depend on the facts of the case.
An employee is a ‘primary victim’ when exposed to the risk of physical injury caused by a colleague and is ‘directly involved’ as a participant in an incident (Scholfield vs Chief Constable of West Yorkshire (1998).
The House of Lords held in White vs Chief Constable of South Yorkshire (1999) that an employer is not under an obligation to guard employees from psychiatric harm unless the employer has breached a duty to protect employees from physical harm. A rescuer who was not himself exposed to physical risk was a secondary victim.
But, rescuers who are employees may be successful in claims for psychiatric injury if the employer fails to provide counselling after the shocking event. This was suggested in Leach vs Chief Constable of Gloucestershire (1999) and the argument is being pursued by two policewomen who attended the aftermath of the Dunblane massacre.
Proximity in terms of time and space.
Initially, the plaintiff had to be at the scene of the accident to be able to recover for nervous shock. In Bourhill vs Young (1943), the plaintiff was 50 yards from the scene of the accident which she could hear but could not see and was held to be insufficiently proximate. Similarly, in King vs Phillips (1953), the defendant was a taxi driver who negligently ran over a boy’s tricycle. The plaintiff was the boy’s mother who witnessed the accident from a distance of 70 yards. It was held that she was insufficiently proximate to the scene of the accident.
However, a change can be noticed in the courts’ attitude in the case of Boardman vs Sanderson (1964), where the plaintiff who again heard but was not present at the scene of the accident was able to recover.
In McLoughlin vs O’Brian (1981), the plaintiff was two miles from the accident but rushed to the hospital to see her family prior to them receiving medical treatment and was held to be sufficiently proximate. She had come across the ‘immediate aftermath’ of the accident.
In Jaensch vs Coffey (1984), the plaintiff who saw her husband in hospital in a serious condition after he had been injured, succeeded in her claim for nervous shock.
In Duncan vs British Coal Corporation (1997), a plaintiff who was 275 meters away from the scene of the accident and reached at the scene four minutes later but saw no injury or blood was not satisfactorily proximate in terms of time and space.
Reasonable foresee ability.
In Bourhill vs Young, the plaintiff did not recover as she was not regarded as being reasonably foreseeable. Two views formed as to the true ratio of the case. The first view holds that the defendant must be at the scene of the accident. The second view states that injury by way of psychiatric injury must be foreseeable. The later view is now taken as the test for foreseeability – the defendant should be able to foresee injury by way of nervous shock.
Direct perception.
In McLoughlin vs O’Brian, certain policy issues came to the fore. Lord Wilberforce felt that there was a need to set some limit on the extent of liability and it was therefore necessary to limit claims where there had been a direct discernment of the accident with the plaintiff’s own unaided senses. Lord Bridge, however, did not see the necessity of setting such an arbitrary limit on claims.
For several years after McLoughlin vs O’Brian, there was considerable uncertainty as to the state of the law. In Hevican vs Ruane (1991), the plaintiff saw his son’s dead body sometime after he died, without coming across the ‘immediate aftermath’ of the accident. Similarly, at first instance, in Ravenscroft vs Rederiaktiebolaget (1991), the claim of a mother who did not come across the ‘immediate aftermath’ was initially allowed.
Alcock settled the fact that it had to be a direct perception of the accident with the plaintiff’s own unaided senses. Ravenscroft vs Rederiaktiebolaget was, as a result, overturned on appeal.
Sudden shock.
There must be a sudden shock. This requirement has been doubted in a dissenting judgment by Sir Thomas Bingham MR in M vs Newham LBC (1994).
Policy or principle?
The policy limitations on the rights of secondary victims to recover have caused many arbitrary distinctions and much dissatisfaction with the law relating to nervous shock. Why was it possible for the police officers present at the Hillsborough disaster to recover (Frost) but not relatives of the victims (Alcock)? Why can an employee present at the scene of disaster recover (Frost) but not an off duty employee similarly present at the scene of disaster (McFarlane vs EE Caledonia Ltd)? What is the difference between coming onto the immediate aftermath of the accident (McLoughlin vs ÕBrian ) and hearing about the accident and seeing its consequences sometime later (Ravenscroft vs Rederiaktiebolaget)?
Policy limitations have caused great uncertainty as to the state of the law. They are thought necessary, as without them the floodgates would open. There is evidence to suggest that this assumption is not justified.
Legislation in New South Wales allowed a parent or spouse to recover for nervous shock, without the requirement that there be proximity in terms of time and space. No flood of litigation followed.
Murphy (1995) argues that the three stage test should be replicated throughout negligence. There would be no sharp divergence between the treatment of primary and secondary victims and the same tests would be applied. He argues that the actual result would not differ much from the outcome of the decided authorities, as it would still be harder for those who are currently classed as secondary victims to satisfy the proximity stage of the test.
An alternative is to legislate in this area.
Proposals for reform
The Law Commission in its report, Liability for Psychiatric Illness, has recommended reform. It felt that there should be a statutory ‘duty of care’. It would leave the rule in Page vs Smith unaffected, but would otherwise require reasonable foreseeability of psychiatric illness as a result of death, injury or imperilment of a person with whom the plaintiff had a close tie of love and affection, regardless of proximity in terms of time and space. Furthermore, the plaintiff would no longer be required to perceive the accident with his own unaided senses. When proving proximity in terms of love and affection, there would be a fixed set of relationships covered by the statutory duty of care. This would include the following categories of relationship:
• Spouse • Parent; • Child; • Brother or sister (but not stepbrothers and sisters); • Cohabitees of at least two years standing.
Anyone not included on the list would have to prove close ties of love and affection. The statutory duty would not be imposed if it was not ‘just and reasonable’.
Economic loss.
The law of negligence does not give the same level of protection to economic interests as it does to physical interests. There are only three types of situations where recovery is allowed in negligence for economic loss:
• Economic loss which is consequential upon physical damage;
• Negligent mis-statements;
• Other special relationships.
Economic loss which is consequential upon physical damage It is long established that economic loss as a result of physical injury is0 recoverable not only for the cost of repairing physical damage to people or property but also for ‘consequential’ loss of earnings or profits during convalescence or repair.
Much stricter controls apply in relation to ‘commercial losses’. Recovery was not allowed in Weller vs Foot and Mouth DRI even though the damage was foreseeable as damage was also foreseeable to ‘countless other enterprises’.
In Spartan Steel & Alloys vs Martin & Co (Contractors) Ltd (1973), the defendant negligently cut off electricity to the defendant’s factory. Damages for the cost of molten metal which was thrown away were recoverable, since it was consequential upon physical damage, but loss of profits while electricity was cut off were not recoverable as they were purely commercial profits.
This area was greatly affected by the application of the Anns test. In Junior Books vs Veitchi Co Ltd (1983), recovery was allowed for economic loss in a situation where liability had not been held to exist before. The defendants were sub-contractors and flooring specialists and had been nominated by the plaintiffs who had employed the main contractors.
The floor was negligently laid and the plaintiffs claimed loss of profits for the period when the floor had to be re-laid. Applying the Anns test it was held that the damage was recoverable. This promised to open up a whole new field of claims for economic loss and Junior Books has not been followed in subsequent cases, although it has not been formally overruled.
The House of Lords found it particularly significant that the sub-contractors had been nominated by the plaintiffs and it was felt that this was sufficient to create a relationship of ‘proximity’. This has become known as the ‘high water’ mark of economic loss.
The courts have since returned to the traditional test. For example, in Muirhead vs Industrial Tank Specialities Ltd (1985), the plaintiffs who had suffered loss because their lobsters had been killed due to defective motors on a tank could only recover the cost of the lobsters and repairs to the tank, they could not recover for loss of profits. This case has clear echos of Spartan Steel. This trend was confirmed by the case of Leigh and Sillivan vs Aliakmon Shipping (1986), which again held that it was not possible to recover economic losses arising from negligent misconduct.
Tags : Torts and Negligence Law