Tort 2: Negligence

Duty of care: established duty to rescuers

Where D's actions have created a dangerous situation so that it is reasonably foreseeable that someone may attempt a rescue, D owes a duty of care to the rescuer.

Duty of Care: novel situations

Lord Bridge developed Lord Atkin's neighbour principle to lay down the test for establishing a duty of care in a novel duty situation.

1) Reasonable foresight of harm

'avoid acts or omission which you can reasonably foresee would be likely to injure your neighbour'

2) Sufficient proximity of relationship

'persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected'

3) It must be fair, just and reasonable to impose a duty



In Caparo, the claim for damages failed because the relationship between the claimant and the defendant was not sufficiently close.

Caparo test: foreseeability

C heard a collission between a motorcycle and a car and walked to the scene. She saw blood on the roadway and claimed she suffered shock and a miscarriage as a result.

Although it was foreseeable that other road users would have been affected by the driver's actions, Mrs Bourhill was not a foreseeable victim of the motorcyclist's negligence, so no duty of care was owed.

Caparo test: fair, just and reasonable?

It was held that it would not be f,j and r to impose a duty of care because the society was non-profit-making and operated only for the collective welfare in promoting safety at sea.

Therefore, although limbs 1 & 2 of the Caparo test were satisfied, the Court decided that ultimately it was not fair to impose a duty of care.

Caparo test: fair, just and reasonable?

The police were exonerated from liability because it was found that the police owe a duty of care to the public at large rather than to any individuals.

Caparo test: fair, just and reasonable?

It was found that the police had assumed responsibility towards the prisoner. THere was far greater proximity brween the police and the prisoner in Kirkham than between the police and the claimants in Hill.

In Kirkham, C was more than just a member of the public, he was also a someone who had been entrusted in the police's care.

This case shows that the police are not above the law.

Caparo test: fair, just and reasonable

Public policy reasons again given for failing to act when they knew the claimant was being harassed by a third party.

Duty of care: liability for omissions

The general rule is that you do not owe a duty to the world for your omissions (ie doing nothing to prevent harm)

In this case, the highway authority knew a road junction was dangerous but failed to exercise its powers to reduce the danger.

It was held that the authority owed no duty of care to road-users to alleviate the danger.

Duty of care: liability for omissions

If D does intervene where there is no duty to intervene, he will not be liable unless he makes matters worse.

(therefore it is likely that a rescuer will only be liable if they positively make a situation worse)

Duty of care: liability for omissions & duty to act positively

In this case it was found that officers owed a duty to act positively to ensure that young offenders were supervised. They failed to supervise the boys who caused extensive damage by boarding a yacht.

Since the officers had control of they boys, a duty was imposed on them.

Duty of care: liability for omissions & duty to act positively

In this case vandals broke into a an occupied building and started a fire which spread to the neighbouring building.

It was found that there was no duty of care owed to stop 3rd parties entering the premises so they would not damage adjacent buildings. The owners of the property had not left flammable materials around and had no control over the perpetrators. Imposing a duty in this situation would not have been fair.

Duty of care: liability for omissions & duty to act positively

The LEA owed a duty of care to prevent children (in this case a 4-year-old child) endangering others. It had assumed responsibility for controlling the child.

Breach of duty: standard of care

Defendant must meet the standard of the reasonable man.

Breach of duty: standard of care

Reasonable person test is objective, it is not one D did foresee, but what a reasonable person would have foreseen.

Breach of duty: standard of care

A doctor must show a greater degree of skill and care than the ordinary person in the street. A doctor must meet the standard of skill and care of the reasonable doctor.

Therefore, the standard of care is that of the reasonable person in D's position.

Therefore, the standard of care in a given case may be that of, for example, the reasonable financial advisor or the reasonable solicitor.

Breach of duty: standard of care & expert knowledge

Although in Bolam, expert medical opinion supported the view the the doctor had met the standard of skill and care of the reasonable doctor, expert medical opinion might not always be reliable.

If the expert opinion does not withstand logical analysis, D may be in breach of duty.

Breach of duty: standard of care & under-skilled defendants

The learner driver must reach the standard of the reasonably competent driver.

Breach of duty: standard of care & under-skilled defendants

No allowance will be made for the inexperience of a junior doctor. A junior doctor is expected to show the level of competence befitting a doctor holding the same post.

Breach of duty: standard of care and under-skilled defendants

A householder who attempts a job normally done by a professional is negligent if the job should not even have been attempted without appropriate training.

Also a person who holds himself out as having a particular skill, he will be expected to meet that standard (eg consultant surgeon)

Breach of duty: standard of care and children

A child defendant will be expected to show such care as can reasonably be expected of an ordinary child of the same age.

Breach of duty: standard of care and likelihood of causing damage/ injury

It is justifiable not to take steps to eliminate a real risk if the risk of injury/ damage is small and if the circumstances are such that a reasonable person would think it right to neglect it.

In Bolton v Stone, 6 balls were hit out of the ground over 28 years, in Miller v Jackson, 8 or 9 balls a season were hit out of the ground and caused damage.

Therefore, in Miller v Jackson, there was a duty to take steps to avoid future damage.

Breach of duty: standard of care & magnitude of risk

The more serious the type of potential damage, the more is required of D to meet the standard of care.

Breach of duty: standard of care- cost & practicalities of precautions

Ds did not close down the relevant part of the factory after an accident, having attempted to put down sawdust.

This was found to be a reasonable decision since the cost of precautions greatly outweighed the risk of harm.

Therefore, the court should always have regard for the cost: risk ratio. If the risk of injury had been sufficiently serious, a reasonable factory owner may well have closed down the factory.

Negligence claim against rugby referee.  Amateur rugby player injured during game after referee negligently allowed substitution of player in breach of rules.  Did the referee owe a duty of care to the player?  

Held:  applying Caparo, that it was fair, just and reasonable for the players to rely on the referee to exercise reasonable care in performing his role as referee, and since the relationship between a player and the referee of the game was sufficiently proximate and it was reasonably foreseeable that a failure by the referee to exercise reasonable care might result in injury to a player, a referee owed a duty of care to the players.  

Negligence claim against Hillingdon LBC.  Educational psychologist employed by Hillingdon LBC negligently failed to diagnose Claimant’s dyslexia.  If the psychologist owed a duty of care to C, Hillingdon LBC would be vicariously liable to C.  Did  the educational psychologist owe a duty of care to C?  

Held:  applying Caparo, a duty was owed by the psychologist to C.  

Negligence claim against the Ambulance service.  Claimant suffered an asthma attack.  Doctor telephoned 999 and ambulance service agreed to send ambulance immediately.  Ambulance failed to arrive within a reasonable time and no satisfactory explanation for delay.  Claimant suffered respiratory arrest due to delay.  Was a duty of care owed by the Ambulance service to C?

Held:  applying Caparo, once the request for an ambulance was accepted by the ambulance service, a duty of care arose.

Breach of duty: standard of care & defendant's purpose

The court may take into account D's purpose and any social utility of their action in deciding whether or not their actions were above or below the standard of care.

The standard of care may therefore be higher where there is no social utility of Ds actions.

• The
• claimant was a fireman. A woman had been involved in a traffic accident and was trapped underneath a lorry. This was 200-300 yards away from the fire station. The fire services were called to release the woman. They
• needed to transport a heavy lorry jack to the scene of the accident. The jack could not go on the fire engine and the normal vehicle for
• carrying the jack was not available. The fire chief ordered the claimant and other firemen to lift the jack on to the back of a truck. There was no means for securing the jack on the truck and the firemen were instructed to hold it on the short journey. In the event the truck
• braked and the jack fell onto the claimant's leg causing severe injuries.

• Held:
• There was no breach of duty. The emergency of the situation and utility of the defendant's conduct in saving a life outweighed the need
• to take precautions.

Breach of duty: standard of care & common practice

In rare cases, a common practice may be negligent if the practice itself is negligent.

Breach of duty: standard of care & current state of knowledge

Lord Denning said that D should be judged by knowledge available at the time of the event 'the court should not look at the 1947 accident with 1954 spectacles.'

Duty of care: standard of care & limitations of reasonable

Ds duty is to guard against 'reasonable probabilities not fantastic possibilities'

Although a rare event is not normally a 'fantastic possibility'- Carmarthenshire

Duty of care: standard of care & unexpected disabilities

A driver who suffers a sudden impairment will not be liable if it causes him to lose control, provided he has met the standard of a reasonable person who is unaware of his condition.

A person who suffers a heart attack while driving will not be in breach.

Breach of duty: proving breach

Res ipsa loquitor will apply if:

- The thing causing damage was under control of D;

- The accident was such as would not normally occur without negligence; and

- the cause of the accident is unknown to the claimant (so there is no direct evidence of any failure by D to exercise reasonable care)

If this applies, D must prove that he was not negligent.

Breach of duty: proving breach

D who has been convicted of a criminal offence is presumed, in any subsequent civil proceeding, to have committed the offence.

Causation of damage

The test for causation is 'but for D's breach of duty, would the harm to the claimant have occurred?'

Causation of damage: balance of probabilities (single cause)

C fell from a tree and was injured, but was then treated negligently by D. There was a 75% chance that C's medical condition following the fall would have been the same irrespective of the treatment.

C had therefore failed the causation test as there was only a 25% chance D's breach had caused his disability. This did not satisfy the balance of probabilities.

Causation of damage: balance of probabilities (single cause)

C failed to establish that D's negligence was the cause of his damage because there were four possible alternative causes of his blindness, only one of which was D's negligence.

C could not therefore prove that he had been harmed by D rather than one of the other causes.

Causation of damage: material contribution

Where there are several causes that have all contributed to the harm, D may be liable even though his negligence was not the sole cause. His breach of duty need not even by the main cause.

The claimant's disease was caused by the inhalation of dust. There were two causes of dust. The first was the swing grinders, in respect of which the defendant was negligent. The second was the pneumatic hammer, in respect of which the defendant was not negligent.

The claimant succeeded in establishing causation because he could show that D's breach of duty materially contributed to the disease which he suffered.

Causation of damage: material contribution to the risk of damage

C worked in a hot kiln and was exposed to dust all day, yet D was not negligent. However, D had failed to provide washing facilities and in this regard they were negligent.

C could prove that dermatitis has been contracted because of the dust, but he could not prove it was because of exposure during the working day (in respect of which D was not negligent) or while riding home (in respect of which D was negligent).

• The defendant sought to distinguish Wardlaw's case by arguing that it was
• proved that every particle of dust inhaled played its part in causing the onset of the disease whereas in this case it is not proved that every minor abrasion played its part.

HofL said that C did not have to show that the absence of washing facilities was the actual cause of the dermatitis, it was sufficient to show that Ds had materially increased the risk of C contracting dermatitis.

Causation of damage: apportioning damages

The court apportioned damages to be paid according to the length of time Mr Holtby had worked for each employer ad been exposed to asbestos.

Causation of damage: apportioning damages

Where two or more people are responsible for the same damage, the Civil Liability (Contribution) Act 1978 gives the court the power to apportion the damage between them. Damages are apportioned according to each person's share of responsibility for the damage.

Causation of damage: factual causation, identical damage

D negligently collided with a Rollys Royce owned by C. As a result, the car would have needed a partial re-spray. However, the same part of the car had already been damaged in an earlier accident. Therefore, it would have needed a re-spray in any event.

The court found that C could not claim the cost of the re-spray because D's breach had not caused the need for it.

Causation of damage (multiple causes)

Initial attack (caused by employer negligence) left C with physical injuries.

Negligent medical treatment then caused C to go blind in one eye.

C also suffered one further injury which had two causes, one of which was negligence from employer, the other was caused by the hospital's negligence (psychiatric injury)

Therefore, C's employer was solely responsible for initial injuries, hospital was solely responsible for the blindness. Both were responsible for psych. injuries (which was divisible)

Also, NIV- negligent medical treatment does NOT break chain of causation as this is foreseeable.

Causation of damage: novus actus interveniens

Instinctive third party intervention will not break the chain of causation.

Causation of damage: novus actus interveniens (foreseeability of NIV)

An unforeseeable, negligent NIV may break the chain of causation.

In this case a police officer intervened after D had caused a road accident in such a way as would not have been foreseeable. The chain of causation was broken.

Causation of damage: novus actus interveniens (foreseeability of NIV)

In this case D had caused a road accident negligently. However, another driver came along without taking care and hit a 3rd party who had stopped.

Both parties were negligent since it was foreseeable that people would stop following an accident and that they may be at risk from oncoming speeding motorists. The chain of causation was not broken.

Causation of damage: novus actus interveniens (reckless or intentional NIV)

If this is the case, act is more likely to be an NIV. In this case, D had caused damage to a house and while it was being repaired squatters broke in and caused more damage. This was a NIV.

Causation of damage: novus actus interveniens (reckless or intentional NIV)

D was decorating a house but left it unattended for two hours to fetch wallpaper. A thief broke in and stole a diamond bracelet belonging to C.

In this case, D was found to be liable as he had failed to take reasonable care to prevent the thief entering. The theft did not break the chain of causation.

Causation of damage: novus actus interveniens (claimant's actions)

D had weakened C's leg, leaving it with a tendency to give way. C attempted to descend a steep staircase without a handrail and her leg gave way, casing her to sustain further injuries.

C had acted unreasonably and had broken the chain of causation.

Causation of damage: novus actus interveniens (claimant's actions)

In this case C injured her neck due to D's negligence which meant she could not wear her glasses. She fell on the stairs. It was found that C had acted reasonably so the chain of causation was not broken.

Causation of damage: remoteness test

The test for remoteness: 'is the damage of such a kind that the reasonable person would have foreseen it?' If a reasonable person would have foreseen the damage, C cannot recover that damage from D.

• Two 14 year old boys found an abandoned boat on land owned by the council and decided to do it up. The boat was in a thoroughly rotten condition and represented a danger. The council had stuck a notice on the boat warning not to touch the boat and that if the owner did not claim the  boat within 7 days it would be taken away. The council never took it  away. The boys had been working on the boat for 6-7 weeks when one of them suffered severe spinal injuries,
• resulting in paraplegia, when the boat fell on top of him. The boys had jacked the boat up to work on the underside and the jack went through the rotten wood. The claimant brought an action under the Occupiers  Liability Act 1984. The trial judge found for the claimant. The Court of Appeal reversed the decision, holding that whilst it was foreseeable that younger children may play on the boat and suffer an injury by falling through the rotten wood, it was not foreseeable that older boys would try to do the boat up. The claimant appealed.

House of Lords held:

The claimant's appeal was allowed. The  risk was that children would "meddle with the boat at the risk of some physical injury" The actual injury fell within that description.

• Lord Steyn:
• "The scope of the two modifiers - the precise manner in which the injury came about and its extent - is not definitively answered by either The Wagon Mound (No. 1) or Hughes v. Lord Advocate. It requires determination in the context of an intense focus on the circumstances of each case."

Causation of damage: modified remoteness test 'similar in type rule'

The court confirmed the rule that injury must be reasonably foreseeable. However, it said that provided the type of injury is reasonably foreseeable, it is not necessary to foresee the precise way in which the injury is caused.

Causation of damage: modified remoteness test 'similar in type rule'

Although it was foreseeable that injury from rats was foreseeable, the type of injury that was foreseeable was rat bites, not infection from rats urine that caused a rare disease.

This was not even foreseeable under the similar in type rule.

Causation of damage: modified remoteness test 'egg-shell skull rule'

D had negligently caused C's injuries and C needed an anti-tetanus jab. However, he suffered a severe allergic reaction which caused further injuries.

Although the reaction was not foreseeable, the fact that he would require hospital treatment (and the vacination) was foreseeable and from that point on you have to take your victim as you find them.

This rule therefore extends the remoteness rule to cover unforeseeable damages in certain cases.

Defences: volenti non fit injuria

Lord Denning said that for the defence of volenti to succeed, D must establish:

- that C had full knowledge of the nature and extent of the risk; and

- that C willingly consented to accept the risk of being injured due to D's negligence.

Defences: volenti non fit injuria

C knew that the driver had been drinking so that there was a risk that he might drive carelessly.

However, it could not be said that knowledge of the risk was sufficient to imply consent to the risk.

The general point in Dann is that it is very hard to establish consent as a defence.

Defences: volenti non fit injuria

In this case the drunkenness of the pilot was so extreme and glaring that C could be said to have accepted the risk of his negligence.

Defences: volenti non fit injuria

Volenti cannot be relied on as a defence for any motor vehicle where insurance for passengers is compulsory.

Defences: volenti non fit injuria

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

Defences: volenti non fit injuria

Rescuers generally act under compulsion and do not willingly accept the risk of injury.

Defences: ex turi causa- illegality

C and D were escaping from a burglary and D's negligent driving caused a crash in which C was injured. The defence of illegality applied.

"For the purposes of the present judgment I do not find it necessary to consider further the joint criminal enterprise cases or the application of the doctrine of ex turpi causa in other areas of the law of tort. It is sufficient for me to confine my attention to the liability of someone in the position of Mr. Newbery towards an intruding burglar.

• It seems to me to be clear that, by enacting section 1 of the 1984 Act, Parliament has decided that an occupier cannot treat a burglar as an outlaw and has defined the scope of the duty owed to him. As I have
• already indicated, a person other than an occupier owes a similar duty to an intruder such as Mr. Revill. In paragraph 32 of their 1976 Report the Law Commission rejected the suggestion that there should be no duty
• at all owed to a trespasser who was engaged in a serious criminal enterprise."

Defences: ex turi causa- illegality

Balcomb LJ said the a claim must fail when the character of the enterprise is such that it is impossible for the court to determine the appropriate standard of care. Therefore, there was no DofC owed by the deceased to C given that the latter's injuries arose directly from the joint criminal enterprise.

Dillon LJ expressed the opinion that the action by C arose directly ex turpi causa in that the reckless driving, which was the cause of C's injuries, was an inherent part of their joint enterprise.

Defences: Contributory negligence

s1(1)(b) damages shall be reduced to such extent as the court feels is equitable having regard for C's share in responsibility for the damage.

Defences: Contributory negligence

Deceased hung himself whilst in police custody. Blame and damages were apportioned 50/50.

Defences: Contributory negligence

Lord Denning said the following reductions may apply for failure to wear a seatbelt where the accident was caused by negligent driving:

- Injuries would have been avoided had seatbelt been worn (25%)

- Injuries would have been less severe had a seatbelt been worn (15%)

- Wearing a seatbelt would have made no difference (0%)

Defences: Contributory negligence

The same tariffs for failure to wear a seatbelt in Froom v Butcher apply to failure to wear a crash helmet.

Defences: Contributory negligence

Passengers who accept lifts from a driver whom they know to be drunk can expect to have their damages reduced if they are injured in an accident caused by the driver's intoxicated state.

Self-intoxication is no excuse.

Defences: Contributory negligence

Lord Denning: 'a judge should only find a child guilty of contributory negligence if he/she is of such an age as reasonably to be expected to take precautions for his/her own safety'

In this case the girl was 13 and a half years old and did not check before stepping out onto the road.

Generally the test is whether an ordinary child of C's age would have taken more care for his safety than C did.

Defences: Contributory negligence

For the purposes of contributory negligence, a rescuer will be assessed against the standard of the reasonable rescuer.

Only if a rescuer shows a 'wholly unreasonable disregard for his or her own safety' is there likely to be a finding of contributory negligence.

Defences: Contributory negligence

Where C takes evasive action to try to save himself 'in the agony of the moment' the court may decide that the course of action taken was reasonable, even if in hindsight it was not the safest option.

Defences: Contributory negligence

Although D was in breach by locking C in a public lavatory, her chosen method of escape, which involved putting down her entire body weight on a toilet roll dispenser, was not reasonable in the circumstances.

PEL- defective products

The local council negligently inspected C's house which turned out to be defective, and had to be sold at a considerable loss.

The damage C had suffered was economic loss caused by acquiring a defective item of property (the house) and this was classified as PEL. No duty of care is owed in respect of PEL, therefore no loss was recoverable.

PEL- loss caused by damage to property of a third party

D's damaged an electricity cable belonging to the electricity supplier. It did not belong to Cs.

There was some damage to the property belonging to Cs. This was damage to the 'melt' which was already in the furnace when the power supply went off.

Cs were able to recover damages for the melt in progress and the loss of profit on that melt. This was the cost of physical damage to property belonging to C (the melt) and consequential economic loss following on from that physical damage (the lost profit on the damaged melt).

They were not able to claim for the loss of profit for the whole time the electricity was off. This was economic loss caused by damage to the property of a third party (the cable belonging to the electricity supplier). It was classed as PEL and not recoverable.

PEL- loss where there is no physical damage

In this case the loss suffered by C was a loss of revenue which it would have made from operating the cattle market.

The cause of that loss was the closure of the cattle market. The market closed because D had negligently allowed foot and mouth disease to escape and spread.

C could not recover its loss from D because the loss was not caused by physical damage. It was caused by the force closure of the cattle market. It was therefore classified as PEL and no duty of care was owed.

(nb- this could also be understood by viewing the cattle as property owned by a 3rd party- either way C had still suffered no physical damage)

PEL- negligent misstatement

A DofC arise in a case of negligent statements causing PEL when there is a special relationship between the maker and recipient of the statement (or adviser/ advisee)

The two crucial elements to establishing a special relationship under Hedley Byrne are:

a) an assumption of responsibility by D (see Caparo v Dickman); and

b) reasonable reliance by C

PEL- negligent misstatement

Established the four criteria to be satisfied for D to have assumed a responsibility towards C:

1) The adviser knew the purpose for which the advice was required;

2) the adviser knew that the advice would be communicated to the advisee (either specifically or as a member of a class);

3) the adviser knew that the advisee was likely to act on the advice without independent inquiry; and

4) the advice was acted on by the advisee to its detriment

PEL- negligent misstatement

A company accountant owed no DofC to a prospective takeover bidder who relied on the accountant's hurriedly prepared draft accounts.

This decision was made on the basis that there was insufficient proximity of relationship between the accountant and the bidder. The accountant did not know his statement, the accounts, would be communicated to the bidder for that particular transaction.

PEL- negligent misstatement

In a contested takeover batter, if, after an identified bidder has emerged, the directors and financial advisors of a target company make express representations with a view of influencing the bidder's conduct, they may owe a duty not to mislead him negligently.

In this case, the identity of the bidder was known and the nature of the transaction was known, so proximity of relationship can be established.

PEL- negligent misstatement

The general rule is that no DofC will be owed in respect of advice given in a social situation because there is no assumption of responsibility.

However, in this case it was also found that D did owe a DofC despite the fact that they were friends. This was because D had more experience and knowledge about cars than C and C had made it clear that she was relying on his skill and judgment. In those circumstances, this was not simply advice given on a social occassion. D had gone beyond this and assumed a duty for C.

PEL- no physical damage, special relationship

C's former employer provided a reference to his prospective new employers. The reference had been prepared negligently. As a result it was incorrect and C was not employed by his prospective new employers/

It was held that a duty of care was owed to him by his former employer.

Although the statement in this case was not made directly from D to C, D had still assumed responsibility  to C in providing the reference.

PEL- no physical damage, special relationship, negligent provision of service

A client instructed a solicitor to draft a new will for him. The solicitor negligently delayed drafting the will and the testator died before the new will was drawn up.

The solicitor owed a duty of care to the beneficiaries of the will. Although it could not be said that Bs had relied on the solicitor, it was still possible to find a sufficiently close relationship between them. This was because the solicitor could clearly foresee that if the will were not drafted before the testator died, the potential beneficiaries would not be able to claim their inheritance.

This case extends the Hedley Byrne principle from negligent statements to PEL caused by the negligent provision of professional services, where there has been an assumption of responsibility.

PEL- no physical damage, special relationship, provision of professional service

C can rely on a claim in tort even though he also has a contract with D for the professional services. However, this is possible only if the tort is consistent with the duties owed under the contract.

PEL- exclusion clauses

UCTA applies to negligence because under s1(1)(b), the Act is said to apply to 'any common law duty to take reasonable care or exercise reasonable skill'

s2 provides that the Act may only enable D to exclude liability where he is acting in the course of business.

D cannot exclude liability for death or personal injury resulting from negligence. However, other loss may be covered by the clause if it is reasonable to do so- see s11(3) fair and reasonable having regard to all the circumstances.

PPH- primary or secondary victim; DofC for primary victims

Lord Lloyd identified two kinds of victim, primary or secondary victims.

A primary victim is someone who:

- was in the actual area of danger; or

- reasonably believed that he was in danger.

A secondary victim is someone who:

- witnesses injury to someone else; or

- fears for the safety of another person.

Primary victims are owed a duty of care in relation to their PPH, provided the risk of injury was foreseeable. PPH does not have to be foreseeable.

PPH- DofC to primary victims

D drove a van into a pub where C was working. C was a PV because she reasonably feared for her safety.

D's negligence (driving the van carelessly) had created a foreseeable risk of physical harm to C. Therefore they owed her a DofC even though the actual harm which she suffered was PPH (shock leading to miscarriage) rather than physical injury.

PPH- DofC to secondary victims

1) Foreseeability of psychiatric harm

It must be reasonably foreseeable that a person of normal fortitude in C's position would suffer a psychiatric illness (if an ordinary person in C's position witnessed these events, is it foreseeable that he would suffer a psychiatric injury?)

2) Proximity of relationship

C must have a close relationship of love and affection with the person who is endangered by D's negligence.

This is presumed in the case of parent/child, husband/wife, fiance/fiancee. However, this can be rebutted by D if it can be proved they were not close.

In the absence of a presumed relationship of love and affection, this must be proved by C.

3) Proximity of time and space

C must be present at the accident or its immediate aftermath.

4) Proximity of perception

C must see or hear the accident, or is immediate aftermath, with his own sense.

In this case, Cs were not able to see TV pictures showing the suffering of identifiable individuals, although it was live. The court decided that what Cs did see was not equivalent to seeing and heating the event or its immediate aftermath.

However, this case did state that a live television broadcast might be sufficient to render the broadcaster a tortfeasor liable to C for shcok if the 'impact of the simultaneous TV pictures would be as great, if no greater, than the actual sight of the accident.'

The example give was of a 'special event of children travelling in a balloon, in which there was media interest, particularly amongst parents, and TV images showed the balloon suddenly bursting into flames.'

PPH- Secondary victims; proximity of relationship

Lord Ackner felt that an ordinary passer-by might be able to claim for PPH if the incident witnessed was particularly horrific. The example given was of a petrol tanker careering into a school in session and bursting into flames.

However, this case doubted that assertion.

PPH- Secondary victims; proximity of time and space; proximity of perception

Lord Wilberforce allowed C to recover for PPH on the basis that:

- she saw her family only about one hour after the accident; and

- they were still in the same condition they had been in at the scene of the accident (covered in oil and mud)

This could be contrasted to Mr Alcock's brother-in-law, who was identified 8 hours after the incident. The identification could not be described as 'the immediate aftermath'

Lord Wilberforce also said that the shock must come to C 'through sight or hearing of the event or of its immediate aftermath'. However, this could not be communicated through a third party.

PPH- special rule for rescuers?

Rescuers should be treated in the same way as an any other victim who suffers only PPH.

Thus, if a rescuer is in the actual area of danger, he is a primary victim (provided there was a foreseeable risk of physical injury).

They may be classed as secondary victim, but it is likely they would fall down on the 2nd limb of the Alcock test due to the absence of a relationship of love and affection.

PPH- rescuers as primary victims

This decision (approved by White) demonstrates that rescuers may be primary victims where they are in real danger while helping the victims of an accident.

In this case a member of the public helped out after a train crash and was asked for many hours to crawl into debris and give injections to the wounded. He did not suffer physical injury, but suffered psychiatric harm.