General Principles of Tort Law - Essay Example

?Introduction Physical injuries often come with psychological interests. Thus, there is the need to get a method and system of getting victims to attain compensation for all the injuries and challenges they go through. Thus, it is logical for anyone who goes through physical injuries to also sue for psychological injuries as well. However, unlike physical injury which is witnessed physically and can be identified through medical reports and other things, psychological injuries are emotional and individual-based. A person who goes through them cannot show much proof. Thus, there is a challenge in defining the extent of psychological damage or injuries that a person goes through. In White V Chief Constable of South Yorkshire Police and Others1, it stated by Lord Steyn that “the law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify.” Clearly, this view of the Judge acknowledged the complication and challenges of defining psychological injuries and offering damages for them. One of the core areas that psychological damage occurs is where a person does not go through any physical damage but sues on the grounds of pure psychiatric harm or psychological injury. This is problematic and challenging and it is often difficult to award damages to any of the parties. This paper will examine the concept of psychiatric harm and its position in the law of tort. The paper will evaluate the important elements and aspects of psychiatric harm and how it is dealt with in law and the conventional approaches and methods used to deal with it. General Principles of Tort Law The case of Donoghue V Stevenson2 led to the fundamental departure from the legal belief that a person could only sue another if and only if they had a contract. The decision of the case was that it was permitted to impose liability for any loss suffered by anyone as as a result of the carelessness of another person based on the neighbourhood principle3. Thus, there is a duty of care placed on people to be careful and weary of the things they do and how they do it if it will affect their neighbours. However, the duty of care concept was a little too broad and some cases that came after it had to limit its application to relevant issues and matters to ensure fairness. In Anns V Merton London Borough Council4, a two-staged test was imposed to ensure that the concept of negligence was critically evaluated in order to impose a duty of care. These are: 1. Was there a reasonable contemplation of the negligence and the issue at hand? 2. Was there anything that limits the extent and scope of the obligations of the individual in question? A third element was added in Caparo v Dickman5 where the fundamental question asked was wither the duty of care was foreseeable or not. Additionally the concept of proximity was added in an Australian case6 where the concept of proximity represented the notion of nearness or a relationship with the issue at hand. This involves a situation where there is a linkage and connection that promotes some degree of logical responsibility and obligation Basic Tort Law and The Limitations on the Claimant A claimant cannot just make any claim because he is injured. In order to make a successful claim, there must be some specific activities and situations that provide the basis for a tort claim. Like in Caparo V Dickman, an unforeseeable claimant cannot make a claim for a damage. In an American case involving Palsgraf V Long Island Railroad, a porter who worked for Long Island Railroads was assisting a passenger to board a train. The porter accidentally dropped the package of the passenger and it led to an explosion. The explosion caused weighing scales to fall on the Palsgraf who was waiting for a train on a platform some distance away from the point the explosion occurred. The claim for damages from Palsgraf failed because it was not foreseeable that there was a risk to Palsgraf in any way. Thus, it was held that if no hazard was apparent to the vigilant eye, an innocent and harmless act cannot give rise to a tort case. In a British case involving Bourhill V Young7 the bad driving of a motorcyclist, Mr. Young caused a fatal accident that caused blood to flow at the scene. Mrs. Bourhill got closer to the scene of the accident, saw the carnage and suffered a nervous shock. The House of Lords held that a duty of care is not owed to the world at large. It is only owed to people that a person has a proximate relationship with. Hence, if an individual has an insufficient proximity to another, that individual cannot sue for damages under tort. The noise of the collusion involving Mr. Young did not create any proximity to Mrs. Bourhill since it did not create any relationship with her. Thus, there was no tort claim since a duty of care is not wed to everybody. There must be proximity for the duty of care to be invoked by a court of competent jurisdiction. Employees Claim against Employers for Psychiatric Harm Thus, proximity is a central element and aspect for the claim for psychiatric harm in tort in English Law. Based on this premise, there is the primary and secondary victim in cases related to psychiatric harm. In Dulieu V White8, the concept of primary victim was established and it became apparent that primary victims could sue for damages for psychiatric harm. In the case, a pregnant barmaid looked up and saw a horse and cart out of control. Fearing immediate injury she got into a fright and miscarried. She was successfully in her tort case for fear of her physical safety. This was the first case where the concept of injury was extended to mental harm9. However, there was a problem of the case being used and abused by employees to claim compensation from their employers. This is because it is obvious that people could come up with claims for psychiatric harm on very flimsy grounds if there was no effort to deal with this demand and to contain it. Thus, the issue of primary and secondary victims is applicable. In Page V Smith10, it was established that a person who was delicate and was susceptible to major psychiatric harm could claim for psychiatric harm as a primary victim if an act directly impacted on him. In the case, Page got involved in an accident and suffered psychiatric harm. Smith agreed being negligent but he did not foresee Page's susceptibility to psychiatric injury. Thus, it was held that once there was a personal injury and a person had a injury, the defendant must carry his victim as he takes it. The fact that the victim is delicate does not relieve the defendant of any claims. Thus, the defendant must be held liable. In the same way, employers will need to take full responsibility for any kind of mental and psychiatric vulnerabilities of their employees. Additionally, in the case where an employee saw a close relative going through a serious situation or traumatic circumstance, that individual could claim as a secondary victim11. This formed the basis for the definition of secondary victims in cases and the following factors need to be present in the case: 1. A sufficiently close relationship of love and affection with the primary victim; 2. Proximity to the accident or its immediate aftermath closely within time and space; 3. Suffering nervous shock immediately after seeing or hearing of the accident. Thus, in an unlikely situation where an employee sees a close relative going through a difficult situation and a traumatising situation in course of work, that individual will have the right to sue for psychiatric harm. Workers in Disaster Situations as Primary Victims Workers could sue as primary victims from their employers if they went through a physical injury at work that was severe enough to have psychiatric consequences. However, there was the question of people who had signed up to take up jobs that related to difficult and traumatising situations. Examples of such workers include police officers and nursing staff members whose work inevitably included dealing with gruesome and traumatic activities. In Chadwick V British Railways Board12, it was ruled that where a victim was injured in a traumatic experience during work and in rescue missions, that individual could be considered a primary victim. This involved the fact that such person could be treated like anyone else in the situation and based on their experiences, they could sue for psychiatric harm once they experienced it. This means that employers were effectively liable if their workers experienced traumatic activities and exercises that they ever put them into. However, it became apparent that there was the need to set the parameters and framework in such a way and manner that employers could be protected from illegitimate and unreasonable claims. Thus, in White V the Chief Constable of the South Yorkshire Police, a group of officers who had suffered psychiatric illness due to the traumatising experience they had rescuing victims in the Hillsborough disaster came up with an action against their employers, the Royal Police. Thus, the Court of Appeal granted claim to five of the claimants who were rescuers in the event but encountered experiences with their relatives in the situation. When the matter was sent to the House of Lords, the issue in contention was whether there should be compensation to police officers who were doing no more than their duty in the case. This ruling sealed the potential room for blanket awards for people involved in jobs that required rescue. Thus, people taking up rescue jobs need to be prepared for difficult and gruesome situations without having to endure psychiatric damages. As a term of employment, it is logical to get the workers in such sensitive jobs to be aware of the job they are taking and difficult situations they were handling. Directly Actionable Psychiatric Harm Cases in the Workplace However, in cases where a public officer and employer in such a situation is put in a job activity that put their lives in undue danger, that individual can make a claim on the basis of negligence on the part of the employer. In the case of Donachie V Chief Constable of Greater Manchester13 a police officer who had to take extra risk in fixing a spying device on a suspect's car due to the fault of the police service and other officers had the right to claim damages. This is because he took risks and got scared and had to do and redo the implantation over and over again. Due to this, he was stressed, experienced high blood pressure and eventually got a stroke. This shows that psychiatric harm could be actionable directly if the employer was negligent per se and the employer failed to take reasonable steps in dealing with a foreseeable possibility of psychiatric strain. In Walker V Northumberland County Council14 a social worker suffered a second nervous breakdown after struggling to cope with heavy a caseload. Her employers were found liable for psychiatric harm because they knew reasonably that their employee was vulnerable to a nervous breakdown. However, they did almost nothing to prevent it from happening. Thus, they were made to pay damages for not taking reasonable measures necessary to relieve the pressure the employee in question was suffering under a heavy workload. This establishes a general duty of care that is placed on employers to ensure that they protect their employees from psychiatric harm. Duty of Employers to Protect Employees from Psychiatric Harm In the case of Waters V Commissioner of Police for the Metropolis15, a police woman claimed that she was sexually assaulted by a male police officer outside work hours and since the case was not handled appropriately by the police department, she went through severe psychiatric harm. It was held that an employer is liable to prevent physical injury and in the process, the employer also has the obligation to present psychiatric harm16. This is because of the general rule that anyone who is injured in the workplace by the negligence of employer has the right to damages under English law. There is also a general rule that indicate that any injury in the workplace caused by the negligence of an employee can lead the victim to sue for damages from the employer17. This implies that where an employee suffers from the negligence of a co-employee, that employee can sue the employer for the psychiatric injuries as well as the physical injury. This is because the employer negligently breached the implied duty of care and if psychiatric harm is incurred, an employee can sue for it. In bringing together all the different components and elements of psychiatric injuries and the liability to sue for them, the following five steps can be identified18: 1. Has the employee developed a real psychiatric injury? Is there evidence that proves it? 2. Were the working conditions responsible for the risks of psychiatric harm? 3. Had the employer known with reasonable certainty? 4. If the employer knew about the risks, did he take any reasonable care? 5. If he did not take any reasonable care, did it reasonably contribute to the psychiatric harm? These five pointers play a role in the definition of the obligations and liabilities of an employer concerning an employee's psychiatric harm. There is a general duty that is imposed on the employer to ensure that the working condition is good and there are no risks of psychiatric harm. Hence, the employer will have to ensure that care is taken. And where psychiatric harm occurs, the employee will have to ensure that he proves it and the employer's effort to limit it will also play a role in determining damages. Conclusion Generally, the basic principles of tort which include neighbourliness, duty of care, foreseeability and negligence define the relationship between employees and employers. Also it must be noted that the nature of psychiatric harm is such that it cannot be proven logically and empirically as other issues and matters. Thus, there is the need for a high degree of proximity to link each case between employee and employer. In most cases though, an employer will be liable to psychiatric harm where they have an obligation to protect an employee from physical injury. This is because there is a duty of care that is generally placed on an employer to protect employees. There is also an obligation incumbent upon employers to take responsibility for the action of other employers who cause injuries, both physical and psychiatric to other employees. Hence, the employer has the responsibility to take reasonable steps to ensure that their employers are protected form physical and psychological harm. Normally, the work of people who signed up to take up certain traumatic and difficult jobs do not allow them to make claims for psychiatric harm. However, in cases where they are primary victims or secondary victim, they might be entitled to damages. Books Bermingham Vera and Brennan Carol. Tort Law. Oxford. Oxford University Press. 2010 Deakins Simon, Johnston Angus and Markesinis Magil. Markesinis and Deakins Tort Law Oxford: Oxford University Press. 2012. Hughes Rick, Kinder, Andrew and Cooper Gary. International Handbook of Workplace Trauma Support. London: Wiley. 2012. Kidner Richard. Casebook on Tort Oxford: Oxford University Press, 2010 MacDonald, Lynda. Wariness at Work: Protecting and Promoting Employee Health and Wellbeing. London: CIPD, 2010. Cases Alcock v Chief Constable of South Yorkshire Police [1992] 1 A.C. 310 Anns v Merton London Borough Council [1978] AC 728 Bourhill V Young [1943] AC 92 Caparo v Dickman [1990] HL Chadwick v. British Railways Board [1967] 2 All ER 945 Donachie V Chief Constable of Greater Manchester [2004] EWCA Civ 405 Donoghue V Stevenson [1932] AC 562 Dulieu v White [1901] 2 KB 669 Page V Smith [1995] UKHL 7 Sutherland Shire Council v Heyman [1985] 157 CLR 424 Walker V Northumberland County Council [1995] 1 All ER 737 Waters V Commissioner of Police for the Metropolis [2000] 1 RLR White V Chief Constable of South Yorkshire Police and Others [1999] 2AC 455 Read More