Tort Law - Newns Company - Essay Example

? Tort Law of the of the Tort Law Nervous shock is the term used by the legal profession for psychiatric injury. Such injury can be accompanied by physical symptoms. For instance, a heart attack could be engendered by psychiatric injury. A claimant for nervous shock has to submit evidence of having undergone serious psychiatric injury. Moreover, such psychiatric injury should be other than passing sorrow or fear. Such claims have to be supported by medical evidence, and the judiciary has depicted willingness to lend credence to claims entailing nervous shock.1 In order to advise Newns store in respect of its liability against its customers, the following issues have to be addressed: Whether the Newns company owes a duty of care towards Paul, Edith, Joanna and Cindy. Whether the Newns department store is liable under the provisions of Occupiers liability Act for the losses suffered by Joanna and Edith. Whether Edith and Cindy are eligible for damages in respect of the nervous shock suffered by them. As such, the issues to be addressed are; first, whether Newns department store is liable for the nervous shock suffered by Edith, due to the charging reindeer. Second, whether this store is liable for the nervous shock suffered by Roland. Third, whether this store is liable for the nervous shock caused to Cindy and Joanna. Edith The Newns department store introduced a real reindeer, in its Santa grotto. This reindeer was aggravated by Paul, which caused it to charge. This resulted in nervous shock to Edith, an elderly patient on a pacemaker, who presumed that the animal was charging at her. Secondary victims have to satisfy certain conditions, in order to succeed in a claim. These are the nature of the relationship between the claimant and the primary victim; the physical proximity of the claimant to the accident; the means of receipt of information by the claimant; and the manner of occurrence of the psychiatric illness.2 In Alcock, some people were killed in the Hillsborough football stadium disaster. The relatives of those who had been killed sought compensation from the police, for psychiatric injury. It was the contention of these claimants that their psychiatric injury was due to the negligence of the police officers. It was maintained by them that the police had failed to manage the crowds. In this case, the police accepted their negligence. The court in McLoughlin v Brian established the limits of emotional ties, physical proximity to the accident site, and the means by which the psychiatric injury had been caused.3 In the Alcock case, the court elaborated upon physical proximity to the accident. It stated that the person who was subjected to the traumatic event was the primary victim. The person who had not been physically injured, and was merely a witness to the event, constituted a secondary victim.4 According to the above discussion and case law, the Newns department store cannot evade liability on the basis of the caution notice displayed by it. In addition, it should have foreseen that there was the possibility of some child or customer infuriating the reindeer, and causing the latter to charge. Although, Edith underwent nervous shock, she was a disabled person. Moreover, she survives on a pacemaker. Furthermore, Edith is a secondary victim, who does not satisfy the additional criteria stipulated in Alcock. In addition, no physical injury or accident had transpired. Consequently, Edith is ineligible for a claim under nervous shock. All the same, she can claim damages under the provisions of Occupiers Liability Act 1984 for the pain suffered by her, due to the negligence of the Newns department store. Joanna Thereafter, a 4 year old, Joanna was separated from her mother Cindy, in this department store, and she entered a washing machine, considering it a convenient place to hide and play in. A negligent sales assistant switched this machine on, and Joanna was severely injured. She was rescued by an off duty policeman Roland, who underwent nervous shock on seeing her injuries. Under the provisions of the Occupiers’ Liability Act 1984, the occupier of the premises holds a duty of care towards its visitors. As such, the Newns department store should have taken adequate measures to protect the safety and well being of its customers. Liability, in the context of injuries suffered by trespassers, was addressed, for the first time, by the Occupiers’ Liability Act 1984. The Occupiers’ Liability Act 1957 failed to address this issue, and such liabilities had been governed by the common law. In Addie v Dumbreck, the House of Lords ruled that a trespasser was not to be treated so recklessly as to constitute malicious acting.5 The Newns department store is liable for the injuries sustained by Joanna, on account of its negligence, under the provisions of the Occupiers’ Liability Act 1984, since; it had breached its duty of care under the provisions of the law. Moreover, the Newns department store is vicariously liable for the misdeeds of its employee towards Joanna, in the course of his employment. Cindy Finally, a harried Cindy located Joanna, and collapsed and experienced nervous shock, on seeing Joanna’s pitiable condition. Sections 1(3)(a) and 1(3)(b) of the Occupiers’ Liability Act 1984 deal with the issue of foreseeability. These sections relate to the awareness of the occupier, with regard to the dangers associated with the property and the presence of trespassers, respectively. Liability rests on belief and knowledge. These requirements of foreseeability make the occupier liable for the injury. Sections 1(3)(c) and 1(4) impose a duty of care on the occupier if these requirements are fulfilled. The first of these requires the occupier to provide reasonable protection to trespassers on the property. The second requirement states that the occupier has to take reasonable care, in order to prevent the trespasser from suffering injury on the property.6 Since Joanna is a very young girl, the Newns department store should have adopted proper measures to avoid any foreseeable danger to her. The House of Lords rescinded their decision in Addie v Dumbreck, whilst pronouncing their judgement in Herrington v British Railways Board. In their ruling their Lordships defined a duty of common humanity towards trespassers. This approach was more humane towards trespassers. However, it was not as favourable as negligence.7 The ruling in Herrington was muddled and the situation was sought to be rectified. Thus, this subject was recommended to the Law Commission, which published its findings in the year 1976. The Occupiers’ Liability Act 1984 was based on these findings.8 In Kralj v McGrath, negligent delivery of her child by a doctor, caused a woman to undergo nervous shock. This was due to the deplorable condition of the delivered baby. She was successful in her damages claim for nervous shock.9 Moreover, in Jaesch v Coffey, a woman saw her husband in hospital. The latter had been injured and was consequently in a serious condition. This caused her to undergo nervous shock, and she was successful in her claim for damages.10 As per the provisions of law and the case law discussed, Cindy is entitled to claim damages for nervous shock occasioned by seeing her daughter in a dreadful condition. Roland In our problem, Roland is an off duty police officer. He saved Joanna from the washing machine. The following case law had been examined for assessing his claim for nervous shock. In Hunter v British Coal Corporation, a water hydrant exploded at the workplace. The claimant was in the vicinity of this water hydrant and the explosion resulted in the death of another worker. The claimant had not seen his workmate dying nor did he receive any physical injuries, during this incident. In this case, the court identified three types of primary victims. First, victims who received physical injuries; second, persons who had rescued the injured persons at the scene of the accident; and third, individuals who were convinced that they had or were about to cause grievous injury or death to another person.11 It was opined by the House of Lords in Frost v Chief Constable of Yorkshire Police that rescuers could not claim damages for nervous shock. Their Lordships recognised that it would be inequitable to accord a special privilege to rescuers, unless they had been exposed to physical harm or personal danger. In our problem, Roland can be deemed to be a rescuer. Hence, in accordance with the above ruling, he cannot claim damages for nervous shock. This is due to the fact that he was not exposed to personal danger or physical harm. In McLoughlin v O’Brian and Alcock v Chief Constable of South Yorkshire Police, the House of Lords developed the concept of psychiatric injury caused by non-physical attack. It held that the defendants in these cases were liable for the psychiatric injury caused to the claimants. In Walker v Northumberland County Council, the claimant was a social worker. He succeeded in a claim against his employer for foreseeable psychiatric injury, resulting from excessive stress and demanding work. Thus, damages for psychiatric injury, due to excessive workload, can be recovered even in the absence of a causative shocking event. However, the injury must be a foreseeable result of the strenuous work.12 In Page v Smith, the House of Lords held that in the context of secondary victims, the defendant would not be liable for damages. However, the latter would be liable, if the psychiatric injury had been foreseeable, in a person of normal resilience.13 In Frost v Chief Constable of South Yorkshire Police, the claimants were police officers. They developed post – traumatic stress disorder, as a consequence of providing first aid and resuscitation to victims at Hillsborough, where an accident had taken place.14 Their claim was rejected by the House of Lords, who held that as secondary victims, they could not claim for psychiatric injury, As such, no special privilege can be attributed to Roland as a rescuer. As per the case law discussed above, he should adduce additional evidence in respect of his claim for nervous shock. Hence, he cannot sue the company for his psychiatric injuries. References Adamou, M. C., & Hale, A. S. (2003). PTSD and the Law of Psychiatric Injury in England and Wales: Finally Coming Closer? Journal of the American Academy of Psychiatry and the Law Online , 31 (3), 327 – 332. Alcock v Chief Constable of South Yorkshire Police , 1 AC 310 (1992). Buckley, R. A. (2006). Occupiers' Liability in England and Canada. Common Law World Review , 35(3), 197 – 215. Frost v Chief Constable of South Yorkshire Police , 3 WLR 1194 (1997). Harpwood, V. (2008). Modern Tort Law. Taylor & Francis. Herrington v British Railways Board, AC 877 (House of Lords 1972). Hunter v British Coal Corporation , 2 All ER 97 (1998). Jaensch v Coffey , 54 ALR 417 (1984). Kralj v McGrath , 1 All ER 907 (1986). McLoughlin v O'Brian , 1 AC 410 (1983). Occupiers’ Liability Act (c.3). (1984). Crown copyright. Occupiers’ Liability Act (c.31). (1957). Crown copyright. Page v Smith , UKHL 7 (1995). R Addie & Sons (Collieries) Ltd v Dumbreck, AC 358 (House of Lords 1929). Walker v Northumberland County Council , IRLR 35 (1995). Read More