Suing for Negligence and Nervous Shock - Essay Example

I will bring Mike into the light of the following to determine if they should sue for negligence and for nervous shock It is feasible for mike to bring an action for negligence and for nervous shock in tort. The issue is whether he can bring an action for negligence or for nervous shock and if he succeeds, the extent to which he is going to benefit. In order to establish liability in tort, the courts are seldom concerned with scrutinizing the defendant’s state of mind. Mike must prove that the police have been negligent in performing their duty and he must equally prove that the police owe a duty of care to him. He will begin by proving causation. It should be noted that the police has accepted being negligent, but they dispute the extent to which they are liable. The police negligently pulled Mike back to the extent of having injured himself. In general, the emphasis is on the conduct of the police. However on occasions, mental state may be irrelevant considerations. Although much emphasis is placed on the notion of force in the modern law of tort, there is a comparatively new development. Legal scholars have different notions about the significance of force in ordinary law. However, the need to prove force in order to establish liability in tort became increasingly important towards the end of the 19th century. Keep in mind that as reforms altered social attitudes, the volume of social legislation designed to improve the lives of people actually increased. Ascribing responsibility became easier with the advancement of science as did greater competence in determining causation which made it easy from a pragmatic point of view to establish force. There was a trend from selfish individualism towards greater social and civil responsibility. This trend manifested itself in legal decisions culminating in Donoghue v Stevenson1. Although Donoghue v Stevenson was principally on negligence to defective products, it had greater significance. This significance was that: negligence is a separate tort in its own rights; an action for negligence can exist whether or not there is a contract between both parties; an action for negligence will succeed if the plaintiff can prove that a duty of care is owed by the defendant to the plaintiff and that this duty of care has been breached, and that there is resultant damage which is not too remote; in order to establish the existence of a duty of care, the “neighbor principle” based on reasonable foresight must be applied. It is certain therefore, that Mike can sue the police even though there is no contract between Mike and the police; the police owe Mike, Lewis, Maria and Soraya a duty of care which has been breached; this breach has led to resultant damage (death, nervous shock, permanent incapacity, loss of income) which are not too remote, but it is doubted if the police could have reasonably foreseen the danger. It should be recalled to memory that if the judges in later cases had wished to restrict further developments of the law, they could have treated Donoghue v Stevenson as a departure which could be confined to its own particular facts, or at the very most, have treated it only as applying to consumer cases involving foreign matters in foodstuff. What has materialized is a massive expansion of the law of negligence. In effect, what the notion of duty of care does is to define the interests which are protected by the tort of negligence. I would want to suppose that the effects of negligence on the law of tort are overwhelming and to the best of my knowledge, it is usurping the territory of other torts. What began to happen after 1932 was that judges interpreted that ratio decidendi of Donoghue v Stevenson by stating it in abstract terms of the “neighbor principle” so that whenever a new factual situation presented itself, the judge will ask whether a duty of care is owed in that particular situation. Put simply, if that judges thought it appropriate to compensate a plaintiff in a particular case, it was a fairly straightforward matter of deciding that a duty of care was owed by the defendant and the rest followed, provided of course, that breach and consequent damage could also be established. It is a settled matter that the police have accepted being negligent. On their part, the police may avail themselves of duty of care in certain cases. They will use this as a possible defense. There has now been established that in a number of cases, no duty of care is owed in so many situations of which the police may find themselves in. - No duty of care will be owed in circumstances when a remedy might be available under another compensation scheme2. A question may be asked: as an expert singer, was Mike insured? Mike as well as the uncle ought to have been insured against such unforeseeable risks. Also, Mike and his relations, if insured, might have had compensation under another scheme; for example an accident compensation scheme or a social security scheme. They themselves are negligent if they had not taken these reasonable measures in life. - There is no duty of care owed by the police to the public in general to prevent them from becoming victims of crime3. The police can also claim that they could have done nothing to prevent Lewis because they have no duty of care in general to prevent any member of the crowd from being injured. It only transpired at the show that the sheer number of people in the park will be a safety hazard. If this had been known before the show, the police could not have escaped liability. - No duty of care is owed when it can be shown that the plaintiff caused his own misfortune4. With regards to Mike’s injury, it is certain that Mike caused his own misfortune. He ought not to have endangered himself, seeing the pressure from the stampeding crowd. It is true that he feared for the safety of a loved one. Keep in mind that Mike loves his uncle very much as he has been ‘like a father’ to him since his parents died when he was young. But he should reasonably know that his action was not the best at that moment. There is no duty of care to rescue a person in danger. This rule is an extension of the principle that there is no liability in negligence for a mere omission or failure to act. In theory, it is possible to watch Lewis trampled to death without attracting legal liability. However, if a person undertakes to carry out specific duty towards an individual, a duty of care is owed to the same person and in same instances; the law imposes such duty even if the person upon whom the duty is placed does not wish to take it on. I know Mike will bring up the fact that people employed to rescue or take care of others should have a duty of care towards their probable victims. Keep in mind that people employed to undertake rescue have a duty of care to potential victims5. But this will not relate to police operations. The law in this case is applicable to rescuers such as ambulance services or firefighters. By close examination of the case, it is possible to trace the presence of nervous shock. To what extent will Mike, Maria and Soraya succeed in an action for nervous shock? The position of the law in this case will be difficult to be determined instantly. What is true is that nervous shock, like pure economic loss, is sometimes described as a “grey area” of negligence because judicial attitudes are constantly developing and new formulations of the scope of duty of care are regularly produced. What is nervous shock? It is a rather quaint term used by lawyers of various kinds of psychiatric injury. Physical symptoms may accompany the mental distress which the plaintiff suffers. E.g. heart attack. Although these kinds of physical symptoms may have facilitated claims in the early days when judges were more skeptical about claims of psychiatric harms, it is not now necessary for the plaintiff to prove that physical symptoms were suffered in order to succeed in a claim. However, there must be evidence that the plaintiff has suffered serious psychiatric conditions which is more than mere temporary grief or fright. Medical evidence is very important in claims of nervous shock and psychiatrists now know much more than they knew before. Keep in mind that as scientific knowledge increase, judges should also increase their acceptance of cases which lawyers may refer to as nervous shock6. Nervous shock was thus extended to cases of people who suffered no physical injuries but who suffered mental harm. Remember that there is nothing to be fearful of as in the olden days when judges feared that sickness could be faked, and there was so much psychiatric differences by psychiatrists all related to one case. Therefore, Mike, Maria and Soraya all fall within the ambit of this area of law and can possibly bring an action for nervous shock. Remember that they have suffered psychological harm which goes beyond mere temporal grief or fright. There is no denying the fact that they have suffered nervous shock. In addition to physical symptoms, nervous shock could be manifested in a number of ways. The most recent of these is a condition known as “Post Traumatic Stress Disorder”, which has been identified and this forms the basis of many claims which are brought as a result of accidents and disasters. Post Traumatic Stress Disorder is a serious long-term medical condition which can be distinguished from temporary feelings of shock which most people experience immediately after witnessing an accident. The condition must be traceable to the traumatic event which is outside the normal range of human experience, e.g. threats to an individual’s safety or to that of her relations. Symptoms include irritability, lack of interest in ordinary day life activities and unreasonable or pathological grief; “depression”7 and “personality change”8. Some individuals may be particular prone to a situation and this will compel the courts to place him under the “Egg-Shell Principle” or “Thin-Skull Principle”. The truth of what is intended here is that the plaintiff who is abnormally sensitive would only succeed in an action for nervous if the so-called “normal person” would also have suffered nervous shock of the same kind in the same circumstances. Neurotic individuals seem to be particularly vulnerable9. One thing is certain, all three have suffered nervous shock and this is traceable to the traumatic event at the show. The decisions in Chadwick v British Transport Commission, and Mcloughlin v O’Brian is till good law today as expressed in the words of Lord Wilberforce10: “As we continue to use the hallowed expression “nervous shock” English law and common understanding have moved some distance since recognition was given to this symptom as a basis for liability. Whatever is known about the mind-body relationship (and the area of ignorance seem to expand with that of knowledge) it is now accepted by medical science that recognizable and severe physical change to the human body and system may be caused by the impact, through the senses, of external events, on the mind. There may thus be produced what is an identifiable, an illness, as any that may be caused by direct physical impact.” An example of such a condition will be enhanced grief and horror even if there is no fear of safety11. Shock which however operates through the mind must be shock which arises from immediate fear of personal injury. This limitation, often referred to as the Kennedy Limitation was used to limit the scope of nervous shock to fear of personal harm12. This fell into disuse and courts later extended this to people who had feared for the safety of close relations13. It would be unfair and indeed absurd for the courts to deny a remedy to fear for the safety of a close relation in circumstances when you could have feared for your own safety. Therefore, Mike, Maria and Soraya can bring an action in tort for nervous should. But will they succeed? The courts have slowly moved from the notion of instant shock to an area of shock. Even if the plaintiff is still outside the foreseeable area of impact, damages could still be recoverable as long as the plaintiff was within the foreseeable area of shock. The remnants of this are still existent today14. But the law is not clear whether Mike, Maria and Soraya were within the foreseeable area of shock. But it can be right to say with the advancement of technology, the “area of shock” can be extended to audio-visual settings. It is irrelevant if Mike did not make any calls when the accident occurred. Liability for nervous shock in tort has been expanded in a number of cases. Mclouglin v O’Brian extends the ambit of duty of care to cases hours later in which the victim came upon the impact of shock. But this is still a “grey area” as to whether the aunt and child came within the area of shock. The police are disputing the extent of their liability. Mike must understand the following: The second consideration for a plaintiff is to establish that the defendant has breached a duty of care. The courts will employ a traditional standard which is to ask whether the defendant has observed that requisite standard of care in all circumstances. The standard of care of the “reasonable man” is what is usually expected. Failure to act as a reasonable man would have acted is an indication of negligence. In practice, the position of the reasonable man formula is like a concept of duty of care, a control devise which the judges use to arrive at a decision which they consider to be fair or appropriate in the circumstances. He should not be concerned on what the police did in the circumstances, but what a reasonable man would have done. Per Alderson B15 “negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate human affairs, would do; or doing something which a prudent and reasonable man would not do”. As per Macmillan LJ16 “the standard of foresight of the reasonable man eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in questions”. It will also be unreasonable to think that Lewis was a “proud” man who could have escaped as others would do. It was a settled question whether a person of ordinary phlegm could have suffered in the circumstances17. Lewis is a normal person who could endure by way of shock of what happened in the circumstances. This is equally true of Maria. To impute liability on the police, the courts will look at the following: Reasonable assessment of the risk It is reasonable to assess the risk involved in a particular situation and to consider whether precautions are necessary, bearing in mind the magnitude and likelihood or harm18. There has never been a stampede of any nature. In fact, Mike has no evidence of this. Therefore, the police did not act unreasonably, given the circumstances of the case. In other words, the police did not act unreasonably in failing to guard against the risk Unforeseeable risk cannot be anticipated A reasonable man is not expected to guard against unknown risk and failure to guard against it is not negligence. This is often known as a state-of-the-art defense19. The police did not foresee that a stampede of this nature will happen. Keep in mind that it was only at the latter stages in the show when they realized that the sheer number of people in the park will be a safety hazard. The police could have been liable if this was known before the show. The utility of the conduct The reasonable person assesses the utility of the conduct which is being carried out, e.g. risky measure might be necessary in order to safe life20. The police acted reasonably to pull Mike back, when he attempted to rush to the aid of his uncle. The expense of taking precaution It will not be negligent to fail to take precaution which is prohibitively expensive in the light of a risk which is not very great21. Alternatively, Mike can bring an action against the Regents Park for failing to stop the whole show, if it is established that Regents Park could have foreseen the likelihood of crowd trouble. Experts I know that Mike, Maria and Soraya will believe that the police are experts in handling such cases and they should have acted in the same manner as other experts will do. What is common knowledge is that experts are expected to demonstrate the same high standard of care like experts in the same field or as a reasonably competent person trained in that particular field or profession. But members of a particular profession may be able to escape liability relying on the Bolam Principle22 if they act in accordance to rules accepted as proper by a responsible body of people skilled in that particular art. The justification of the Bolam Principle was stated by Lord Scarman23 in the following words “...there is seldom any one answer exclusive of all others to the problem of professional judgment. A court may prefer one body of opinion to the other. But that is no basis for the conclusion of evidence”. The worst scenario for Mike, Maria and Soraya is that even if they prove all the above, the police can still avail themselves using the Bolam Principle. What is true about this rule is that the rule is unfair to plaintiffs and too protective of the professions. The rule allows the professions to set their own standards when professional standards should be reviewable by the courts. The Bolam test is a state-of-the-art descriptive test based on what is actually done; whereas, negligence is a normative test based on what should be done. While requiring the defendant to conform to a “responsible” body of opinion, the cases never actually defined what is “responsible” and how many people will be required to form a “responsible” body. The rule has been described at yet another example of the profession protecting one another24. Keep in mind that only practices as per Lord Donaldson25 “rightly accepted as proper” should discharge a standard of care. Maria is a person of ordinary phlegm and could not have suffered in the circumstances26. Therefore, she cannot bring an action in tort for nervous shock against the police. Mike and Soraya can bring an action in tort for negligence. I would advise Mike and Soraya that they should seek for alternative dispute resolution such as out-of-court settlement if they are not satisfied with the extent to which the police accept to be negligent. If the police have accepted negligence, they should acknowledge the extent to which the police accept. They should equally verify if Lewis had arranged other compensation scheme, of which they may be beneficiaries to, in case of Lewis’s absence. Finally, they should resort to their insurer if they did contract with one to indemnify them of such a situation. Read More