Negligence Law PDF

I.2.7 Negligence Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. According to Winfiel...

I.2.7 Negligence Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. According to Winfield, " Negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff. " Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. Essentials : The definition involves 3 constituents of negligence : 1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty. 2) Breach of the said duty. 3) Consequential damage. 1) Duty of Care The existence of a duty to take care is essential before a person can be held liable in negligence. Conditions for existence of duty : Foreseeability and Proximity The general principle of foreseeability and proximity was laid down by Lord Atkin in the case of [Donoghue v. Stevenson, 1932] : Mr Minchella bought a bottle of ginger beer for Mrs Donoghue (appellant). The bottle was dark and opaque and there was no reason to suspect that it might have contained anything but ginger beer. After consuming almost half the bottle, the remains of a dead and decomposed snail were poured out of it. The nauseating sight caused Mrs Donoghue shock and severe gastroenteritis. The manufacturer (Stevenson) who sold a substandard article to a retailer who sold it to a customer (Mr Minchella) was held liable to the friend (Mrs Donoghue) of the customer who after consuming it became ill. This was because the manufacturer was under contractual duty to the retailer and was in breach of that duty. But he also owed a duty in tort to take reasonable care not to harm the customer by virtue of the neighbour principle. Principle of Foreseeability and Proximity (Neighbour Principle) : "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be, persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." [Heaven v. Pender, 1893] A duty to take care did arise when the person or property of one was in such proximity to the person or property of another that if due care was not taken damage might be done by one of the other. [Home Office v. Dorset Yacht Co., 1970] The Crown was held liable for the damage caused by runaway borstal trainees who escaped because of the negligence of the borstal officers in the exercise of their statutory function to control the trainees. A preliminary issue was raised whether on the facts pleaded, the Home Office or its servants owed any duty of care to the owner of the yacht. It was held that the causing of damage to the yacht by the borstal trainees ought to have been foreseen by the Borstal Officers as likely to occur if they failed to exercise proper control and supervision and, therefore, the officers prima facie owed a duty of care to the owner of the yacht. [Cates v. Mongini Bros, 1917] A lady was injured as a ceiling fan fell on her. The reason for this was some latent defect in the metal of the rod of the fan which a reasonable person could not have foreseen. It was held that the defendants were not liable as this accident could not have been foreseen by them. Cardozo - Zone of Danger Rule : A defendant owes the duty of care only to those who are in the reasonably foreseeable zone of danger. [Palsgraf v. Long Island Railroad Co., 1928] The Plaintiff was standing on a railroad platform purchasing a ticket, when a train stopped and two men ran forward to catch it. One of the men nearly fell, and two railroad employees attempted to help him. In the process, a package containing fireworks fell and the contents exploded. As a result of the explosion some scales at the other end of the platform fell and struck the Plaintiff. Plaintiff sued and a jury found in her favour. The Court of Appeals of New York reversed. Rule of Law : To recover for negligence, the plaintiff must establish each of the following elements - 1. Duty 2. Breach of Duty 3. Damages Held : Defendant Railway Company not liable as the injury was not foreseeable. The act of the defendant was not within the zone of danger to the plaintiff. A wrong in relation to the holder of the package was not a wrong in its relation to the plaintiff standing many feet away. Dissent (Andrews) 1. Everyone has a general duty to avoid acts that unreasonably threaten the safety of others. 2. In determining whether the defendant's actions are the proximate cause of the plaintiff's injuries, the court should consider whether there was a "natural and continuous sequence" between the defendant's actions and the resulting harm. 3. If there is a significant gap in time or physical distance between the defendant's actions and the harm, it may be more challenging to establish that the defendant's actions were the proximate cause. 4. In the specific case being discussed, there was no significant remoteness in time and little physical distance (space) between the cause and effect. This suggests that it was more straightforward to establish that the defendant's actions directly led to the harm. Remoteness of Damage (Limitation to the Action of Negligence) : In determining whether the defendant's actions are the proximate cause of the plaintiff's injuries, the court should consider whether there was a "natural and continuous sequence" between the defendant's actions and the resulting harm. When the Damages Are Excluded As Too Remote : 1. When they do not occur as a necessary or immediate result of the defendant’s actions. 2. When there is contributory negligence on behalf of the plaintiff. 3. When the act occurs as a result of a wrongful act of a third party. In other words, if the connection between the wrongful act and the damage is not direct and foreseeable, the damage may be deemed too remote to hold the defendant liable. [Scott v. Shepherd, 1773] The defendant (a child) threw a lit squib into a busy marketplace. The squib landed on a stand, where a third party picked it up and threw it again to prevent injury to himself. The squib hit the claimant, Scott, in the face and exploded, putting out one of his eyes. Scott sued the defendant for trespass and assault. The jury found in favour of Scott. Scott v Shepherd emphasises the concept of proximate cause in the context of negligence. It essentially underscores that when there is a close and direct connection between an individual's wrongful act and the resulting harm, and the consequences are not too remote, the defendant can be held liable for those consequences. [Lampert v. Eastern National Omnibus Co. , 1954] Mrs. Lampert had strained relations with her husband. One day in an accident due to the negligence of the defendants she suffered severe disfigurement of face. Sometime afterwards her husband deserted her. She wanted to claim damages for the loss of company of her husband. It was found that the real cause of the desertion was not her disfigurement but the estranged relation between her and her husband, which existed even before the accident. Test of Reasonable Foresight v. Test of Directness 1. Test of Reasonable Foresight : The test for determining whether damage is too remote is often based on the principle of reasonable foreseeability. This means that a defendant can be held liable only for those consequences that a reasonable person, placed in the circumstances of the wrongdoer, could have foreseen as a likely outcome of their actions. Pollock : If a reasonable person could have anticipated the consequences of the wrongful act, those consequences are not considered too remote. [Rigby v. Hewitt, 1850] 2. Test of Directness : According to this principle, a person is held liable for all direct consequences of their wrongful act. This means that if a consequence directly follows a wrongful act and is not the result of independent intervening causes, the person responsible for the wrongful act can be held accountable for that consequence. Unlike the reasonable foreseeability test, which requires that a defendant could have foreseen the consequences of their actions, this principle does not make foreseeability a requirement for liability. The focus is on the direct connection between the wrongful act and the harm. When once it has been determined that there is evidence of negligence, the person guilty of it is equally liable for its consequences. Whether he could have foreseen them or not. [Re Polemis & Furness, Withy & Co Ltd, 1921] This case is often cited as a precedent that shifted the focus from foreseeability to directness in assessing liability for the consequences of a wrongful act. In this case, a plank fell into the hold of a ship, causing an explosion due to the defendant’s negligence. The court held the defendant liable for the explosion, emphasising the directness of the harm even though the consequences could not have been reasonably foreseen. When once it has been determined that there is evidence of negligence, the person guilty of it is equally liable for its consequences. Whether he could have foreseen them or not. [Smith v. London Southwestern Railway Co., 1870] The railway company was negligent in allowing heap of trimmings of hedges and grass near a railway line. Spark from the railway engine set fire to the material. Due to high wind the fire was carried to the plaintiff’s cottage which was then burnt. The court held the defendant liable, emphasising the directness of the harm even though the consequences could not have been reasonably foreseen. When once it has been determined that there is evidence of negligence, the person guilty of it is equally liable for its consequences. Whether he could have foreseen them or not. [Overseas Tankship UK Ltd v. Morts Dock Engineering, 1961] The case involved a ship, the Wagon Mound, that had leaked furnace oil into Sydney Harbour. Due to the negligence of the ship's crew, the oil spread in the water under a wharf where other ships were being repaired. Welders working on the wharf accidentally caused a fire when hot metal ignited the oil, resulting in substantial damage to the wharf and the ship. Mort's Dock, the owner of the wharf, filed a negligence claim seeking damages. It was established that the ship's crew did not know and could not reasonably have been expected to know that the spilled oil was flammable on water. However, the dock owners continued to use welders despite knowing about the presence of the oil. ​At the trial level, the court applied the directness test and held Overseas Tankship (O&T) liable for the damages. The directness test focused on the directness of the cause-and-effect relationship between the defendant's negligence and the harm suffered by the plaintiff.  On appeal to the Privy Council, the directness test was rejected. The Privy Council held that the directness test was incorrect and that the key issue should be whether the harm was foreseeable by a reasonable person. They concluded that a reasonable person could not have foreseen that the spilled oil would cause a fire, and therefore, O&T was not liable for negligence. The test of reasonable foreseeability was deemed more appropriate. The Privy Council's decision effectively overturned the precedent set by the case of Re Polemis and Furness, Withy & Co. Ltd. (1921), which had emphasised the directness test. The Privy Council criticised the directness test for not considering the reasonable foresight of consequences. 2) Breach of Said Duty Standard of Duty of Care : The concept of the "standard of care" refers to the level of care and caution that a reasonable person would exercise under similar circumstances. The standard of care can vary depending on the circumstances of a particular case. In some cases, professionals, such as doctors, lawyers, or engineers, are held to a higher standard of care based on their expertise and specialised knowledge. In certain situations, a special relationship between parties can affect the standard of care. For example, a higher duty of care may be owed to a child, a customer, or a guest on one's property. Determining Standard of Care : 1. The importance of object to be attained [Latimer v. A.E.C Ltd, 1954] The law does not require one to take the greatest possible care but the care that a reasonable man would take under certain circumstances. 2. The magnitude of risk [Glasgow Corporation v. Taylor, 1922] The standard of care varies according to the risk associated with each circumstance. 3. Amount of consideration for services offered The standard of care varies according to the consideration paid for the services offered. A person paying 15 Rs for a bottle of water is entitled to a greater standard of care as compared to someone paying 1 Rs. [Latimer v. A.E.C Ltd, 1954] Respondent’s factory was flooded with water and some oily substance got mixed with this water resulting in the floor becoming slippery. Sawdust was spread to reduce slipperiness but some areas remained oily. Plaintiff slipped and fell. He sued respondents for negligence and contended that the factory should have been closed down until danger disappeared. Court held in determining standard of care that 1. The importance of object to be attained The law does not require one to take the greatest possible care but the care that a reasonable man would take under certain circumstances. Which in this case was taken. - sprinkling of sawdust. 2. The magnitude of risk The standard of care varies according to the risk associated with each circumstance. - risk (someone slipping) was too small to keep the factory closed. [Glasgow Corporation v. Taylor] Defendants failed to put proper fencing in order to keep the children away from a poisonous tree and a child plucks and eats fruit from the poisonous tree and dies. The defendants will be held liable as the child died due to the omission to do something they were expected to do on their part.  3) Damage It is necessary that the plaintiff’s breach of duty causes damage to the plaintiff. The plaintiff must also prove that the damage caused to him is not too remote. Defences : When the Damages Are Excluded As Too Remote : 1. When they do not occur as a necessary or immediate result of the defendant’s actions. [Sharp v. Powell, 2022] 2. When there is contributory negligence on behalf of the plaintiff. [Glover v. London NW Railway, 1850] 3. When the act occurs as a result of a wrongful act of a third party. [Haynes v. Harwood, 1936] 1. Actions not occurring as a necessary or immediate result of the defendant’s actions. 2. When there is contributory negligence on behalf of the plaintiff. Occurs when there is a want of care towards oneself against unreasonable risk of injury. Refers to a situation where an individual fails to exercise reasonable care or take precautions to protect themselves from foreseeable harm or injury. [Liebeck v. McDonalds, 1992] In 1992, 79 year old Stella Liebeck bought a cup of takeout coffee at the McDonalds drive through in Albuquerque. She was not driving nor was the car moving. She had the cup between her knees and while removing the lid to add sugar and cream, the coffee spilled on her lap. This incident gave her severe third degree burns and she even required skin grafts on her inner thighs and elsewhere. McDonalds corporate policy required the franchises to serve coffee between 180 - 190 degree fahrenheit. Coffee at such a temperature can cause third degree burns in 3 - 7 seconds. McDonalds had received over 700 such previous reports of injury from its coffee. Liebeck offered to settle the case for $20,000 to cover her medical expenses and lost income but McDonalds refused to offer more than $800. The case went to trial and the jury awarded Liebeck $200,000 but reduced it to $160,000 as they found Liebeck partially liable. But the punitive damages that the jury awarded was equivalent to 2 days worth of revenue from coffee sales for McDonalds which was around $2.7 million. This was then reduced to $480,000 by the trial judge. [Butterfield v. Forrester, 1809] The plaintiff was injured after striking an obstruction in the roadway. The defendant had put a pole across the road while making repairs to his house. The plaintiff, who was riding his horse through the streets of Derby at a high speed, struck the pole and was seriously injured. The court held that the plaintiff did have a duty of care to exercise ordinary care for himself, and this duty was not dispensed with simply because the defendant had been negligent in placing the pole across the road. The court's rationale was based on the principle that one person's fault does not excuse another person from using ordinary care for their own safety. Riding a horse at high speed through the streets near dark was considered a failure to exercise ordinary care, and the plaintiff shared in the fault for the accident. [Rural Transport Service v. Bezlum Bibi, 1980] The conductor of an overcrowded bus invited passengers to travel on the roof of the bus. The driver of the bus ignored the fact that there were passengers on the roof and attempted to overtake a cart. As a result of the driver's actions, a passenger on the roof was hit by a branch of a tree, leading to injury and ultimately the passenger's death. The court also considered the contributory negligence of the passengers, including the deceased, who chose to travel on the roof of the bus. In this case, the court found that the passengers, including the deceased, willingly took the risk of travelling on the roof, which contributed to their injuries. [Yoginder Paul v. Durgadas, 1972] A pedestrian who tries to cross a road all of a sudden and is hit by a moving vehicle, is guilty of contributory negligence. Rules for Determining Contributory Negligence : 1. Absence of or want of care towards oneself against unreasonable risk of injury 2. Plaintiff’s negligence must be the operative cause of the accident 3. Test of a prudent man 4. Doctrine of alternative danger 1. Absence of or want of care towards oneself against unreasonable risk of injury [Bhagwat Swarup v. Himalaya Gas Co., 1985] Involves the delivery of a defective gasoline cylinder to the plaintiff's residence by the defendant organisation. The cap of the cylinder was known to be defective. The plaintiff provided the delivery man with an axe to open the cylinder and pound the cap. As a result, gas escaped from the cylinder and ignited, causing the death of the plaintiff's daughter, injuring other family members, and damaging the property. In this case, it was argued that the plaintiff's actions in providing the delivery man with a tool did not amount to contributory negligence because the plaintiff could not reasonably be expected to fully understand the potential dangers associated with the gas cylinder. 2. Plaintiff’s negligence must be the operative cause of the accident [Agya Kaur v. PRTC, 1980] An overloaded rickshaw with three adults and a baby on board, while being propelled on the right side of the road, was hit by a bus driving at an excessive speed and also coming on the wrong side,’. It was held that there used to be Negligence on the section of the bus driver only, and in spite of the reality that the rickshaw was once overloaded, there was no contributory negligence on the part of the rickshaw driver, as the reality of overloading of the rickshaw did not make contributions to the occurrence of the accident. 3. Test of a Prudent Man - Reasonable Care Exercised [Sushma Mitra v. MPSRTC, 1974] The plaintiff was travelling in a bus owned by the Madhya Pradesh State Road Transport Corporation. A truck was coming from the opposite direction. There was a head-on collision between the bus and the truck. The collision resulted in severe injuries to the plaintiff. The plaintiff alleged that both drivers, one of the bus and the other of the truck, were driving their respective vehicles recklessly and without regard for the safety of passengers. Typically, when two vehicles cross paths on a road, the practice of a careful driver is to move their vehicle to the left, leaving sufficient space for the other vehicle to pass safely. Considering that neither the bus driver nor the truck driver presented sufficient evidence to absolve themselves of responsibility, the court concluded that both were negligent. 4. Doctrine of Alternative Danger Where a plaintiff may be justified in taking some risk when facing a dangerous situation created by the defendant. In such circumstances, the plaintiff might become nervous due to the defendant's actions or the dangerous situation, and in an effort to protect themselves or their property, they may choose to take an alternative risk. If, as a result of taking this alternative risk, the plaintiff suffers damage or harm, they may still be entitled to recover compensation from the defendant. If the plaintiff's actions were reasonable and necessary to address a threat created by the defendant, they may have a valid claim for damages even if their response involved taking an alternative risk. [Jones v. Boyce, 1816] The plaintiff was a passenger of the defendant's coach. The coach was driven so negligently that the plaintiff jumped off the bus fearing an accident and broke his leg. It was held that the plaintiff would be entitled to recover damages.  [Shyam Sundar v. State of Rajasthan, 1974] Due to the negligence on the part of the defendants, a truck belonging to them caught fire. One of the occupants, Navneetlal, jumped out to save himself from the fire, was struck against a stone lying by the roadside and died. The defendants were held liable. Doctrine of Last Clear Chance The Last Clear Chance Doctrine is applied when both the plaintiff and the defendant in a case have acted negligently. Under the contributory negligence rule, a plaintiff who is found to be even slightly negligent may be completely barred from recovering any damages. The Last Clear Chance Doctrine offers an opportunity for a negligent plaintiff to recover if they can show that the defendant had the last clear opportunity to prevent the accident. This means that the defendant had a reasonable opportunity to avoid the harm, even after the plaintiff's negligence. The Last Clear Chance Doctrine can also be used as a defence by the defendant. If the defendant can show that the plaintiff had the last clear chance to avoid the accident and failed to do so, the defendant may not be held liable for the plaintiff's injuries. [Davies v. Mann, 1842] The plaintiff tied down his donkey's feet to prevent it from running away and left the donkey by the side of the road. The defendant was driving a wagon at high speed and collided with the donkey, resulting in the donkey's death. The court held that, even though there was negligence on the part of the plaintiff for leaving the donkey on the road, the defendant could have prevented the accident by exercising ordinary care. This means that the defendant had the last clear opportunity to avoid the accident by taking reasonable precautions. Percentage Share ( Law Reform (Contributory Negligence) Act 1945 ) After the Act's implementation, it became possible to determine a case on the basis of percentage liability. This means that the damages recoverable by the claimant are reduced to an extent that the court considers "just and equitable," taking into account the claimant's share in the responsibility for the damage. This approach acknowledges that fault may not be evenly distributed and that both parties may bear some responsibility. Contributory Negligence of Children A child may not be able to fully appreciate and understand certain damages like an adult. [Yachuk v. Oliver Blias, 1949] A nine-year-old boy, asked for a pint of gasoline to be used for his mother’s car, which was subsequently supplied to him by an employee at the respondent’s gasoline station. In reality, he had wanted the gasoline to make torches to be used in a game. The gasoline caught fire and the appellant was severely burned. The appellant and his father brought a claim against the respondent for damages in negligence. the injuries suffered by the appellant must be attributed solely to the negligence of the respondent’s employee. There was no contributory negligence on part of the appellant. Composite Negligence The concept of "composite negligence" arises when the negligence of two or more persons contributes to the same damage suffered by a third person. [Satbir Singh v. Balwant Singh, 1972] There was a collision between a motorcycle and a truck, resulting in the death of the pillion rider and injuries to the motorcyclist. The court found that the motorcyclist was negligent to the extent of two-thirds, and the truck driver was negligent to the extent of one-third. Importantly, there was no negligence on the part of the pillion rider. As a result, there was composite negligence involving both the truck driver and the motorcyclist, who were both responsible for the harm suffered by the pillion rider. Comparative Negligence Comparative negligence is a legal principle that assigns blame to two or more parties based on the degree of negligence each contributed to an incident. It's also known as comparative fault. [Liebeck v. McDonalds, 1992] In 1992, 79 year old Stella Liebeck bought a cup of takeout coffee at the McDonalds drive through in Albuquerque. She was not driving nor was the car moving. She had the cup between her knees and while removing the lid to add sugar and cream, the coffee spilled on her lap. This incident gave her severe third degree burns and she even required skin grafts on her inner thighs and elsewhere. McDonalds corporate policy required the franchises to serve coffee between 180 - 190 degree fahrenheit. Coffee at such a temperature can cause third degree burns in 3 - 7 seconds. McDonalds had received over 700 such previous reports of injury from its coffee. Liebeck offered to settle the case for $20,000 to cover her medical expenses and lost income but McDonalds refused to offer more than $800. The case went to trial and the jury awarded Liebeck $200,000 but reduced it to $160,000 as they found Liebeck partially liable. But the punitive damages that the jury awarded was equivalent to 2 days worth of revenue from coffee sales for McDonalds which was around $2.7 million. This was then reduced to $480,000 by the trial judge.  3. When the act occurs as a result of a wrongful act of a third party. [Haynes v. Harwood, 1936] The defendant's servants left a house van unattended in a crowded street, which led to a chain of events. These events included a child throwing stones at the horses, causing them to bolt, and a policeman getting injured while attempting to stop the horses to rescue a woman and children on the road. The defendant raised the defence of "remoteness of consequences.” In this case, the defendant argued that the mischief of the child (throwing stones at the horses) was the proximate cause of the injuries and that the negligence of the defendant's servants (leaving the van unattended) was a remote cause. The argument appears to be that the chain of events leading to the injury was primarily caused by the child's actions and not the initial negligence of the defendant's servants. Here the proximate or direct cause of damage was throwing of stones by the child (third party) and remote cause was the negligence of the servants. Proof of Negligence Res Ipsa Loquitur (The Thing Speaks For Itself) : Res ipsa loquitur essentially means that the circumstances surrounding the case make it obvious that negligence occurred. This doctrine allows a plaintiff to establish a prima facie case of negligence without providing direct evidence of how a defendant behaved but relies on the very nature of the accident or outcome. Illustration : John Doe was injured when the elevator he entered plunged several floors and stopped abruptly. Jane's Corporation, responsible for building and maintaining the elevator, was the defendant. Jane argued that Doe had not provided a theory or direct evidence of why the elevator malfunctioned and, therefore, there was no evidence of their fault. The court applied the doctrine of res ipsa loquitur and held that Doe did not need to prove more than the fall itself. The elevator's malfunction was evident, as elevators are not intended to fall or stop abruptly as part of their proper function. Since Jane's Corporation was responsible for the elevator in all respects, the court concluded that they were responsible for the fall. The very fact that the elevator malfunctioned served as sufficient evidence to establish a prima facie case of negligence. Medical Negligence Under Res Ipsa Loquitur Where a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct. [Ybarra v. Spangard] In such cases, 1. The accident itself affords reasonable evidence 2. It makes the plaintiff’s prima facie case 3. It presents a question of fact Res Ipsa loquitur often arises in the "scalpel left behind" variety of cases. For example, a person goes to a doctor with abdominal pains after having his appendix removed. X-rays show the patient has a metal object the size and shape of a scalpel in his abdomen. It requires no further explanation to show the surgeon who removed the appendix was negligent, as there is no legitimate reason for a doctor to leave a scalpel in a body at the end of an appendectomy. [Nihal Kaur v. Director PGI Chandigarh, 1996] Scissors were left in the body of the patient during operation resulting in the patient’s death. The defendants were held liable. Liability in Cases of Nervous Shock: If a person has sustained injuries through his sense i.e by his virtual or acoustic sense it comes under the category of nervous shock. If a man has seen something which is unbelievable or horrible or supposed to cause imminent danger to him/others, then he may suffer from nervous shock. Elements : 1. The relationship between persons. (Greater the ties, greater the claim for consideration) 2. To have a valid claim for emotional distress, the claimant must be proximate to the accident. This proximity can refer to both time and space. In other words, the claimant must have been physically close to the accident when it occurred or immediately afterward. Even if they did not witness the accident, they must have been in the vicinity or arrived shortly after the event. 3. Shock resulting from being told about an accident or incident by a third party, without any direct connection to the incident or the victim, would typically not be sufficient to establish a valid claim for emotional distress. In [Dilieu v. White and Sons, 1901] the Courts first recognised that negligently causing psychiatric illness could result in a claim for damages. [Dilieu v. White and Sons, 1901] The plaintiff was working as a barmaid in a public house when a van drawn by two horses crashed into the building. Although she did not sustain any direct physical injury from the impact, she claimed that the nervous shock she experienced led to physical illness, a miscarriage, and the birth of a brain-damaged child. The court accepted the plaintiff's claim, acknowledging that nervous shock accompanied by definite illness is as much a physical injury as a broken bone or a torn flesh wound. However, the court noted that liability in such cases would only arise if the shock was caused by the "reasonable fear of immediate personal injury to oneself." [Bourhill v. Young, 1943] The plaintiff while getting out of a tramcar heard an accident but could not see it. In the accident, a negligent motor cyclist had been killed. After the body was removed, she happened to go to the scene of the accident and saw the blood. As a result, she suffered nervous shock and gave birth to a stillborn child. The House of Lords held that the defendant will not be liable as the harm was not foreseeable and no duty of care was owed to the plaintiff as she arrived after the accident occured. [McLoughlin v. O’Brian, 1983] The husband of the claimant and their children were involved in a road traffic accident. The claimant learned that her youngest daughter had been killed and witnessed the nature and extent of the injuries suffered by her husband and other children. She alleged that the impact of what she heard and saw caused her severe shock resulting in psychiatric illness and brought an action in negligence against the defendants. The House of Lords held that recovery in such cases was not limited to those who were participants in the event, and who feared that they or a close relative would suffer some sort of personal injuries. [Alcock v. Chief Constable of SY Police. 1992] 96 Liverpool fans died in a massive stampede during a football match at Hillsborough Stadium in Sheffield due to police negligence. Many individuals, including secondary victims, witnessed this horrifying incident and suffered psychiatric harm or nervous shock as a result. Primary Victims: These are individuals who were either physically injured in the incident or were in immediate danger of physical harm themselves. They have a more direct connection to the traumatic event. Secondary Victims: Secondary victims are individuals who were not directly affected in terms of physical injury or immediate danger but have suffered emotional distress or psychiatric harm as a result of witnessing the traumatic event or its immediate aftermath. To be considered a secondary victim : 1. Perception Through Unaided Senses : a person must have perceived a "shocking event" with their unaided senses. This typically involves being an eyewitness to the event, hearing it in person, or viewing its immediate aftermath. 2. Proximity : must have been physically close to the event. This requirement usually excludes events witnessed on television or learned about from a third party. In the Hillsborough disaster case, some plaintiffs who were considered secondary victims did not meet the criteria because they did not have direct sensory perception of the shocking event but were informed of it by a third party or witnessed it on television. [Hambrook v. Stokes, 1925] The defendant's servant left a lorry unattended at the top of a steep street with the engine running. The lorry started moving by itself and went downhill, out of control. A mother, who had left her children in her house out of her direct line of sight, saw the lorry from her house as it began to roll down the incline. She became very frightened for the safety of her children, who were already out of her sight around a bend in the street. When a bystander told her that a child matching the description of one of her children had been injured, she suffered severe nervous shock, which ultimately resulted in her death. The court made a distinction between shock caused by what the mother saw with her own eyes and what she might have been told by bystanders. Liability was excluded in the latter case. Liability in Cases of Psychiatric Illness : If a person experiences a shock or trauma that directly affects their nervous system to the point where it results in measurable bodily impairment or dysfunction, they may have a valid basis for taking legal action [Wilkinson v. Downtown, 1897] Downton had played a practical joke on Wilkinson by falsely informing her that her husband had been seriously injured in an accident. This false information resulted in a shock to Wilkinson's nervous system, leading to weeks of suffering. The court ruled that Wilkinson had a cause of action and could seek damages for the harm she suffered as a result of Downton's outrageous conduct. The decision recognized that intentionally causing severe emotional distress through extreme and outrageous behaviour can give rise to a legal claim for damages, even if the harm is primarily emotional or psychological in nature. [Victorian Railway Commissioner v. Coultas, 1888] The gate-keeper's negligence led to a situation where the plaintiff and his wife, who were in a horse-drawn carriage, were invited to enter the crossing as a train was approaching. Although a collision did not occur, the proximity of the train and the perceived danger caused the plaintiff's wife to suffer a severe nervous shock, which subsequently led to illness and a miscarriage. In this case, the Privy Council ruled that damage arising from mere sudden terror unaccompanied by any physical injury, but resulting in a nervous or mental shock, could not be considered a consequence that would ordinarily flow from the negligence of the gate-keeper. The court held that the damage was too remote to be recovered since there was no actual bodily impact or physical injury. Eggshell Skull Rule : It is a legal doctrine that holds a defendant responsible for the full extent of the harm caused to a victim, even if the victim has some pre-existing condition or special vulnerability that makes them more susceptible to injury than an ordinary person. The core principle behind the eggshell skull rule is that a defendant must take the victim as they find them. In other words, if a defendant's actions cause harm to a person, they are responsible for the harm that person suffered, even if that harm is much more severe than what would typically be expected in a person without special sensitivities or pre-existing conditions. In your example, if someone with an extremely fragile skull (like an eggshell) is struck in the head, and as a result, they suffer more severe injuries, including death, than an ordinary person would have suffered from the same blow, the person who struck them is still held responsible for the full extent of the harm, including the death. [Page v. Smith, 1995] Mr. Page was considered a primary or direct victim of the car accident because he was directly involved in the collision and faced a risk of personal injury, both physical and psychological. The key question was whether the defendant could reasonably foresee that his actions might expose Mr. Page to a risk of personal injury, including psychological harm. The application of the eggshell skull rule is evident in this case. The rule dictates that a defendant must take the victim as they find them, including any special sensitivities or pre-existing conditions. Even if the extent of the damage, in this case, the recurrence of myalgic encephalomyelitis (Chronic fatigue syndrome), was unforeseeable or more severe than what might be expected in an ordinary person, the defendant remained responsible for the full extent of the injury This case reinforces the principle that when someone's negligent actions cause harm to another person, they are held accountable for the consequences of their actions, irrespective of the particular characteristics, vulnerabilities, or pre-existing conditions of the victim. Cases : REASONABLE FORESEEABILITY [Hughes v. Lord Advocate, 1963] A post office employee opened a manhole for the purpose of maintaining underground telephone equipment. The manhole was covered with a tent and surrounded by paraffin lamps, left unguarded. An 8-year-old child entered the tent and started playing with a lamp. The lamp fell into the manhole and caused a violent explosion, resulting in severe burns to the child. It was recognized that it was foreseeable that a child might get burned by tampering with the lamp. In other words, it was a foreseeable consequence of leaving paraffin lamps unguarded in a tent. However, the explosion itself, as a result of the lamp falling into the manhole, could not have been foreseen. While it was foreseeable that harm might come to a child playing with a lamp, the extent of the harm caused by the explosion (severe burns) was not foreseeable. The House of Lords held that since the kind of damage (burns to a child) was foreseeable, even though the extent of the damage (explosion and severe burns) was not foreseeable, the defendants (the post office) were held liable for negligence. STANDARD OF CARE [Greaves v. Baynham, 1975] The court held that, even though professionals like consultant engineers generally do not provide an unqualified guarantee of achieving the desired outcome, the specific interactions and agreements between the parties in this case implied a term that the warehouse, as designed by the engineers, should be fit for its intended use. The decision highlights that professionals, including engineers, are typically bound by a term that they will use reasonable care and skill in providing their services, rather than guaranteeing a specific result. In this case, the court found that the exchanges and agreements between the parties had created an implied warranty that the warehouse design would be fit for its intended purpose, and the engineers were therefore held responsible for the structural issues that arose.