The Tortious Liability of and to Rescuers - Essay Example

Tort Law: In light of policy considerations discuss the tortious liability of and to rescuers al Affiliation) Introduction Tort laws are those laws that provide remedies to individuals who are harmed by the unreasonable actions of other people. Tort laws are often associated with civil suits which are actions that protect the private rights of people. Tort law concept is often meant to redress a wrong affecting a certain person through awarding them monetary damages or compensations. This type of law is often derived through combination of common law principles that arise from legislative enactment and case laws. The tort action is often brought by private citizens and does not depend on an agreement between the parties involved in the lawsuit. Three elements are often present for the tort action to be considered; the defendant or tortfeasor should have a duty to behave or act in a certain manner, the plaintiff must be able to prove that the kind of behaviour which was demonstrated by the tortfeasor failed to conform to the duties owed by the plaintiff and finally the plaintiff should have suffered a loss or injury as a result. The paper aims at discussing the tortious liability of and to rescuers1. The tortious liability of and to rescuers The modern approach towards establishing whether a duty of care is owed comes from the case of Caparo industries pls versus Ors and Dickman. The case is related to Fidelity Company that was previously not doing well and happened to be a target of takeover by the Caparo industries limited. After issuing a profit warning, the shares of Fidelity Company was halved in 1984. Caparo Company then begun to purchase shares in large amounts, reaching a shareholding percentage of 29.9 percent and made an offer to buy the remaining the shares. After taking control of the company, Caparo industries then realized that Fidelity accounts were in the worst state ever and that the director has failed to reveal such2. Caparo sued Dickman for preparing an account with the aims of attempting to recover their losses. The case is the one that resulted to the development of the Caparo three part test. The approach utilized to find a duty of care as well as the test used has kept on changing over years based on whether the court is willing to restrict or expand the liability. Caparo three part test establishes whether there is establishment of a duty of care through raising questions such as; whether the loss or the damage was foreseeable, whether the relationship between the victim and the wrongdoer is sufficiently close as well as whether it is reasonable and just to impose a duty of care. If there is a positive response to the three questions, then the duty of care is confirmed to be in existence. In common law, there is no positive legal obligation to rescue. The law does not force an individual to help another one who is in distress or peril that is caused by other circumstances and not him. However, in cases where a duty exists, a rescuer is required to utilize reasonable skills and care in the rescue. The law targeting liability to rescuers was expanded during the mid-twentieth century supporting them, however, in the past few years, liability to rescuers has been considered more limited. In the Chadwick versus British transport commission [1967] 1 WLR19, a person who took in the rescue team alongside rescue officials at the site of a serious rail disaster, developed nervous shock and committed suicide eventually. Even though the passerby never recognized the victimized, he was able to witness sights that were extremely horrific. The claim of the individual was successful at the end3. The case represented an extension of liabilities that targeted nervous shock that applied to rescuers for several years when they come into contact or participate in rescue mission. Any rescuer present at the site of an accident while it is still taking place may qualify as a primary victim associated with the accident and may be able to recover damages as a result of nervous shock even if they do not suffer physical injury at the site. An example of tort liability associated with rescuers can be explained using the case of Alcock and ors versus Chief constable of south Yorkshire [1992] AC 310. The case was presented at the House of Lords. The case came up from a disaster that took place at Hillsborough football stadium located in Sheffield. The stadium hosted a match between Nottingham forest and Liverpool in 1989. The south Yorkshire police department was responsible for controlling the crowd and was negligent in managing and controlling the large crowd of spectators who moved towards one side of the stadium resulting to a crash that led to death of 95 and injuries to over 400 people. The scene were broadcasted live and repeated on news broadcasts. Over 16 claims arose and brought against the defendant for nervous shock that led to psychiatric injuries. Ten of the claims went through at trial. Ten appeals from the cases made it to the House of Lords4. The cases that made it to the House of Lords included claims made by the sisters, the brothers, fiancé, parents and grand-parents. Some of the claimants watched the incident at the site even though at different areas. Some observed the events through television with others identifying the bodies at the mortuaries. The appeals raised were dismissed. Lord Oliver set out the difference between secondary and primary victims. He stated that, a secondary victim was more than unwilling and passive witness of injuries to others while primary victims were the ones involved immediately or mediately as participants. The claimants were considered as secondary victims due to their absence at the scene. The court rules that for secondary victims to be successful in the claims for psychiatry harm, they are supposed to meet criteria that includes; witnessing the events with their own unaided senses, proximity to the events as well as its immediate aftermath, the close tie of affection and love to the primary victim and that the psychiatric injury should be as a result of a shocking event5. According to Lord Ackner, shock in relation to the accident entailed sudden appreciation by sound or sight of a horrifying event that agitate the mind violently. He stressed that shock does not include psychiatric illnesses that results from the accumulation of gradual assaults on the nervous system after a very long period of time. In the case of Dulieu versus White&Sons [1901] 2 KB, the claimant was behind the bar and pregnant in the public house that belonged to her husband. The claimant feared for her safety and suffered from nervous shock even though she was not physically injured. Nine days later, the claimant gave birth prematurely and the child suffered developmental problems. The court held that an action could lie in negligence for the shock that resulted from a reasonable fear for the safety of the victim. Judge Kennedy revealed that the fear in the victim proved to have directly and naturally produced physical effects, so that the impact of the negligence that led to fear are measurable in damages as the same effect will be when due to actual impact. He however stressed that not all nervous shocks that were occasioned by the production of physical injury and negligence to the sufferer leads to a cause of action6. He reiterated that the shock that operates through the mind must be the one arising from a fear that is reasonable. In the case of McLoughlin versus OBrian [1983] AC 410, the husband of the claimant and 3 of their children were involved in a road accident in which their vehicle was struck by a Lorry as a result of the negligence of the defendant’s driver. Unfortunately, the accident resulted to death of one of the children. An ambulance transported the injured to the nearest hospital. Another son of the claimant was a passenger in a vehicle that was behind the family car. The driver drove him home and reported about the incident to his mother and then took him to the hospital. She saw the suffering of the family members before they cleaned up and treated. As a result she suffered personality change, organic depression and severe shock. She raised an action against the defendant for the shock and psychiatric illness suffered. The case was appealed to the House of Lords after the court of appeal held that no duty of care was owed7. The appeal was allowed by the House of Lords and the claimant was compensated for the psychiatric injuries that she suffered from. Lord Wilberforce held that proximity by hearing or side should be a consideration by the courts especially in the events that it involves family members at rescue or site. In the case of Page versus Smith [1996] 1 AC 155, the claimant was in recovery after suffering from ME for an extended period of time after being involved in a minor car accidents that was linked to the negligence of the defendant. The accident triggered the ME of the patient even though he was not physically injured in the accident. However, the claimant was unable to report back to his place of work as a teacher as a result of the accident. The trial was ruled in favour of the claimant and was awarded one hundred and sixty two pounds in damages. Given that some kind of injuries was foreseeable, it didn’t matter whether the injury was psychiatric or physical8. There was no need to conclude that psychiatric injury was foreseeable. Additionally, the fact that ordinary individuals would not have suffered the kind of injury that was incurred by the claimant was irrelevant. Secondary victims are those that cannot be found within the zone of danger but are witnesses of horrific situations. The four criteria that should be demonstrated by the secondary victims in order to establish a liability are; a close tie of affection and love, proximity to the event and the immediate aftermath, witness of the event with own unaided senses as well as psychiatry as a result of the shocking events. Conclusion The courts have worked to encourage rescuers, and therefore, in many cases the laws on primary and secondary victims are often blurred. The approach often enables the courts to encourage rescuers to succeed even in events where they may fail to do so. Rescuers are often categorized as secondary victims even though they find it challenging to recover as compared to the primary victims. For instance, in the case of White against Chief constable in 1999, Lord Griffiths states that, “If the rescuer is not in any physical danger, it will only be in exceptional circumstances that injury to self in the form psychiatric injury will be foreseen since the law must support the help given to accidents which are daily occurrences”. Rescue is often associated with two separate issues, which includes the duty of care to the rescuers as well as the duty to rescue9. Bibliography Benditt T, Liability For Failing To Rescue (2010) 1 Law and Philosophy Cooke J, Law of Tort (11th ed, Pearson 2013) Dugdale A, Jones M & Simpson M, Clerk & Lindsell on Torts (20th ed, Sweet & Maxwell 2013) Elliot C. & Quinn F,Tort Law (7th ed, Pearson 2009) Franklin M, Vermont Requires Rescue: A Comment (2010) 25 Stanford Law Review Ripstein A, Three Duties To Rescue: Moral, Civil, And Criminal (2007) 19 Law and Philosophy The Failure To Rescue: A Comparative Study (2006) 52 Columbia Law Review Wright J, Tort Law And Human Rights (Hart Pub 2001) Read More