Negligence duty of care cases

Negligence Duty Of Care Cases
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EXISTENCE OF A DUTY
Donoghue v Stevenson [1932] AC 562, HL

By Scots and English law alike the manufacturer of an article of food, medicine or the
like, sold by him to a distributor in circumstances which prevent the distributor or the
ultimate purchaser or consumer from discovering by inspection any defect, is under
a legal duty to the ultimate purchaser or consumer to take reasonable care that the
article is free from defect likely to cause injury to health:-
So held, by Lord Atkin, Lord Thankerton and Lord Macmillan; Lord Buckmaster and
Lord Tomlin dissenting.

Relationship between claimant and defendant

Smoldon v Whitworth & Nolan [1997] PIQR P133, CA

The plaintiff, who was aged 17 at the time, suffered very serious personal injuries
when playing hooker in a colts rugby match, when a serum collapsed, and his neck
was broken. He claimed damages against the first defendant, a member of the
opposing team, and against the second defendant, the referee. The claim against
the first defendant was dismissed, and there was no appeal against that decision.
The plaintiff argued that the second defendant owed him a duty of care to enforce
the Laws of the Game, to apply them fairly, to effect control of the match so as to
ensure that the players were not exposed to unnecessary risk of injury and to have
particular regard to the fact that some of the players (including the plaintiff) were
under the age of eighteen at the date of the match. The second defendant accepted
that he owed the plaintiff a duty of care, but argued that the first defendant's duty to
the plaintiff was only to refrain from causing him injury deliberately or with reckless
disregard for his safety, that this standard of care itself qualified or informed his own
standard of care, and that he could only be liable where he had shown deliberate or
reckless disregard for the plaintiff's safety. The judge adopted the plaintiff's definition
of the second defendant's duty. He found that the second defendant had not
enforced safety requirements set out in the Laws of the Game which contained
special provisions relating to players aged under nineteen, and requiring front rows
to engage in a crouch-touch-pause-engage sequence. He also found that there had
been roughly three or four times the number of collapsed scrums that would not be
abnormal in such a game, at the conclusion of the last of which, close to the end of
the match, the plaintiff sustained his injuries. He found that as as a consequence of
the second defendant's failure to instruct the front rows sufficiently and require the
crouch-touch-pause-engage sequence the relevant scrum collapse and the

consequential injuries to the plaintiff occurred, in breach of the second defendant's
duty of care to him. The second defendant appealed.

Held, dismissing the appeal, that the judge had adopted the correct formulation of
the second defendant's duty. It was not necessary to show a high level of probability
that if the scrum collapsed serious injury of the kind which occurred was a highly
probable consequence; serious spinal injury was a foreseeable consequence of a
collapse of the scrum and of failure to prevent collapse of the scrum, and that was
sufficient. The plaintiff was not volens to the risk of injury; he had consented to the
ordinary incidents of a game of rugby, not to a breach of duty by the official whose
duty it was to apply the rules and ensure, so far as possible, that they were
observed.

Control of land or dangerous things

Dominion Natural Gas v Collins and Perkins [1909] AC 640, PC

In actions for damages in respect of an accident against the appellant gas company
it appeared that the appellants were not occupiers of the premises on which the
accident had occurred and had no contractual relations with the plaintiffs, but that
they had installed a machine on the said premises, and the jury found that the
accident was caused by an explosion resulting from gas emitted, owing to the
appellants' negligence, through its safety valve direct into the closed premises
instead of into the open air:-

Held, that the initial negligence having been found against the appellants in respect
of an easy and reasonable precaution which they were bound to have taken, they
were liable unless they could shew that the true cause of the accident was the act of
a subsequent conscious volition, e.g., the tampering with the machine by third
parties.

Haynes v Harwood [1935] 1 KB 146, CA

The plaintiff, a police constable, was on duty inside a police station in a street in
which, at the material time, were a large number of people, including children.
Seeing the defendants' runaway horses with a van attached coming down the street
he rushed out and eventually stopped them, sustaining injuries in consequence, in
respect of which he claimed damages:-
Held, (1) that on the evidence the defendants' servant was guilty of negligence in
leaving the horses unattended in a busy street; (2) that as the defendants must or
ought to have contemplated that some one might attempt to stop the horses in an
endeavour to prevent injury to life and limb, and as the police were under a general
duty to intervene to protect life and property, the act of, and injuries to, the plaintiff
were the natural and probable consequences of the defendants' negligence; and (3)
that the maxim "volenti non fit injuria" did not apply to prevent the plaintiff recovering.
Brandon v. Osborne Garrett & Co. [1924] 1 K. B. 548 approved. Cutler v. United
Dairies (London), Ld. [1933] 2 K. B. 297 distinguished, and dicta therein questioned.
Decision of Finlay J. [1934] 2 K. B. 240 affirmed.

A company, which carried on business as builders and contractors, undertook work
on a well which involved clearing it of water. The well was some fifty feet deep and
about six feet in diameter. H, a director of the company, and W and another
workman employed by the company, erected a platform twenty-nine feet down the
well and some nine feet above the water and lowered on to it a petrol-driven pump.
After the engine of this pump had worked for about one and a half hours it stopped
and a haze of fumes was visible in the well. The working of the petrol engine created
also a dangerous concentration of carbon monoxide, a colourless gas. H returned to
the well after working hours that evening and observed the haze and noticed a smell
of fumes. On the following morning at about 7.30 a.m. H instructed the two workmen
to go to the well, but said to W "Don't go down that bloody well until I come". The
workmen arrived at the well at about 8.15 a.m., and, before H had arrived, one of the
workmen went down the well and a few minutes later the other workman also went
down it. Both were overcome by fumes. A doctor, who was called to the well, went
down the well with a rope tied to his body in order to see if he could rescue the men,
though be had been warned not to go. He also was overcome by fumes. Endeavour
was made to haul him to the surface by the rope, but the rope caught in a down pipe
in the well and he could not be brought to the surface until help arrived some time
later. He died shortly afterwards. The court found that H had acted in good faith but
that he lacked experience and did not appreciate the great danger that would be
created in the well and did not seek expert advice on the proper method of emptying
the well. In actions for damages for negligence resulting in the death of W and the
doctor damages were awarded, but those awarded in the case of W were
apportioned, one-tenth of the responsibility being attributed to W. On appeal,

Held: (i) the defendant company were liable for negligence causing the death of W
because the method adopted to empty the well had created a situation of great
danger to anyone descending the well on the morning in question, and the defendant
company were negligent in that no clear warning of the deadly danger was given to
W on that morning, H's order not to go down the well until he came being insufficient
to discharge the defendant company's legal duty to take reasonable care not to
expose W to unnecessary risk, though the apportionment of one-tenth of the
responsibility to W would not be disturbed.
(ii) the defendant company were liable for negligence causing the death of the doctor
because it was a natural and proper consequence of the defendant company's
negligence towards the two workmen that someone would attempt to rescue them,
and the defendant company should have foreseen that consequence; accordingly
the defendant company were in breach of duty towards the doctor.
Dictum of Lord Atkin in M'Alister (or Donoghue) v. Stevenson ([1932] All E.R. Rep. at
p. 11) applied.
(iii) no defence to the claim arising out of the death of the doctor was
afforded either (a) by the principle of novus actus interveniens, for that did not apply
where, as in the present case, the act in question was the very kind of thing that was
likely to happen as a result of the negligence. Dictum of Greer, L.J., in Haynes v.
Harwood ([1934] All E.R. Rep. at p. 107) applied.
or (b) by the maxim volenti non fit injuria, for that could not be successfully invoked
as a defence by a person who had negligently placed others in a situation of such
peril that it was foreseeable that someone would attempt their rescue. Dictum of
Greer, L.J., in Haynes v. Harwood ([1934] All E.R. Rep. at p. 108) applied.
(iv) the doctor had not acted recklessly or negligently and had neither caused nor

contributed to his own death.
Per Willmer, L.J.: bearing in mind that danger invites rescue, the court should not be
astute to accept criticism of the rescuer's conduct from the wrongdoer who created
the danger.
Decision of Barry, J. ([1958] 3 All E.R. 147) affirmed.

ECONOMIC LOSS

CARELESS ACTS

(a) As a consequence of physical damage to a third party's property

Cattle v Stockton Waterworks (1875) LR 10 QB 453

Defendants, a waterworks company, under their Act laid down one of their mains
along and under a turnpike-road, made under an Act which declared the soil to be in
the owners of the adjoining land, subject only to the right to use and maintain the
road. K. was owner of land on both sides, at a spot where the road was carried
across a valley on an embankment, and wanting to connect his land on either side,
K. employed Plaintiff at an agreed sum, to make a tunnel under the road. In doing
the work, it was discovered that there was a leak in the Defendants' main higher up
the road, and on the Plaintiff digging out the earth, the water from the leak flowed
down upon the work and delayed it, so as to cause pecuniary damage to the Plaintiff,
for which he brought an action against Defendants:

-Held, that assuming K. could have maintained an action against Defendants for
injury to his property (as to which the Court gave no opinion), the damage sustained
by Plaintiff by reason of his contract with K. becoming less profitable, or a losing
contract, in consequence of the injury to K.'s property, gave Plaintiff no right of action
against Defendants. -The tunnel was formed by digging through half the width of the
road, forming the tunnel, and then completing the other half in the same way. Before
commencing the work K. obtained the consent of the road surveyor and the trustees:
-Held, assuming K. could, under the circumstances, have been indicted for the
nuisance to the high road, the partial obstruction to the highway did not render the
whole proceeding so illegal as to prevent Plaintiff who was engaged in it from
recovering damages for a wrong.

Weller v Foot and Mouth Disease Research Institute [1966] 1 QB 569, QBD

The principle of the common law that a duty of care which arises from a risk of direct
injury to person or property is owed only to those whose persons or property may
foreseeably be injured by a failure to take care is not affected by the decision in
Hedley Byrne & Co., Ltd. v. Heller & Partners, Ltd. ([1963] 2 All E.R. 575); in order to
have a right of action for negligence a plaintiff must show that he was within the
defendant's duty to take care, and he may then recover by way of damages for the
direct and consequential loss reasonably foreseeable, but, though proof of direct loss
is not an essential part of the claim, he must establish that he was within the scope
of the defendant's duty of care (see p: 570, letter D, post).

In consequence, as was assumed, of the escape of a virus imported by the
defendants and used by them for experimental work on foot and mouth disease at
land and premises owned and occupied by them, cattle in the vicinity of the premises
became infected with the disease. Because of the disease an order was made under
statutory powers closing cattle markets in the district, with the result that the
plaintiffs, who were auctioneers, were temporarily unable to carry on their business
at those markets and suffered loss. The court was required to assume that the loss
to the plaintiffs was foreseeable and that there was neglect on the part of the
defendants which caused the escape of the virus. On the question whether in law an
action for damages would lie for the loss,

Held: (i) an ability to foresee indirect or economic loss to another person as the result
of a defendant's conduct did not automatically impose on the defendant a duty to
take care to avoid that loss; in the present case the defendants were not liable in
negligence, because their duty to take care to avoid the escape of the virus was due
to the foreseeable fact that the virus might infect cattle in the neighbourhood and
thus was owed to owners of cattle, but, as the plaintiffs were not owners of cattle, no
such duty was owed to them by the defendants. Hedley Byrne & Co., Ltd. v. Heller &
Partners, Ltd. ([1963] 2 All E.R. 575) distinguished. Donoghue (or McAlister) v.
Stevenson ([1932] All E.R. Rep. 1) and Morrison Steamship Co., Ltd. v. S.S.
Greystoke Castle (Owners of Cargo) ([1946] 2 All E.R. 696) considered and applied.
(ii) the plaintiffs were also not entitled to recover under the rule in Rylands v. Fletcher
([1861-73] All E.R. Rep. 1) because they had no interest in the cattle endangered by
the escape of the virus and the loss to the plaintiffs was not a sufficiently proximate
and direct consequence of the escape of the virus. Dictum of Blackburn, J., in Cattle
v. Stockton Waterworks Co. ([1874-80] All E.R. Rep. at p. 223) applied.

(b) As a consequence of acquiring a defective item of property

Dutton v Bognor Regis UDC [1972] 1 QB 373, CA

By s 1 of the Public Health Act 1936 it was the duty of a local authority to carry the
Act into execution. Pursuant to that duty, and under the statutory authority contained
in s 61 of the Act to make building byelaws, the Bognor Regis Urban District Council
('the council') made byelaws regulating (inter alia) the construction of buildings in
their area. The Act provided the council with powers to enforce the byelaws. The
byelaws were in standard form and could not be relaxed except with the Minister's
consent. The byelaws governed every stage of building work; in particular byelaw 18
provided that the foundations of a building should be properly constructed to sustain
the loads of the building and to prevent any settlement that might impair its stability.
The byelaws also provided for the appointment of surveyors and inspectors to visit
building work to see whether the byelaws were being complied with. Offences
against the byelaws were punishable by a fine. In 1958 a builder, H, bought land in
Bognor Regis for the purpose of developing it as a housing estate. He laid out the
land in plots. One of the plots was on the site of an old rubbish tip, the tip having
been filled in and the ground made up to look like the surrounding land. In October
1958 the builder submitted plans of this plot to the council for byelaw and planning
approval. The plans showed that the house to be built on the plot had normal

foundations for the type of soil in the area. In October 1958 the council gave byelaw
approval to the plans, under the 1936 Act, on the printed form for that purpose. The
form contained a note that all foundations and drains must be examined by the
council's surveyor before being covered up, and that no new premises were to be
occupied before being certified by the council's surveyor. A batch of notice forms
was sent to the builder, with the form of approval for him to notify the council of the
progress of the work. Planning permission for development of the plot was then
granted. Having got the necessary approvals, the builder started work on the plot in
1959. While digging the trenches for the foundations he came on the remains of the
rubbish tip; so he made the outer trench deeper than usual and reinforced the
concrete floor with a steel mesh, but he did not bother about the inner walls. He duly
notified the council that the foundations were ready for inspection. The council sent
their building inspector to inspect them. The inspector approved the foundations for
the purpose of the building byelaws. In doing so the inspector failed to carry out his
task properly for had he made a competent inspection of the foundations he could
easily have detected that the house was being built on a rubbish tip and that, in
breach of the byelaws, the foundations laid by the builder were not properly
constructed having regard to the nature of the land since they were not strong
enough to take the load of the house. Having obtained approval for the foundations,
the builder went ahead in building up the house to damp-proof course level, and the
work at that stage too was passed by the council's surveyor. The house was finished
at the end of 1959, and early in 196o the builder sold it to C. In December 1960 C
sold the house to the plaintiff. As the house was new the plaintiff did not herself
employ a surveyor but it was common ground that if a surveyor had been employed
he could not have found out about the hidden defect in the foundations. The
surveyor of the plaintiff's building society passed the house. Soon after the plaintiff
had moved into the house in January 1961, the walls and ceiling cracked, the
staircase slipped and the doors and windows would not close. This was due to
subsidence of an internal wall caused by the inadequate foundations. The condition
of the house got worse and in 1963 a surveyor instructed by the plaintiff's solicitor
found out that the house had been built on a rubbish tip. In 1964 the plaintiff issued a
writ against the builder and against the council for negligence claiming damages of
£2,740 (being £2,240 for the cost of repairing the house and £500 for diminution in
its value).

Held - (1) The council, through their building inspector, owed a duty of care to the
plaintiff to ensure that the inspection of the foundations of the house was properly
carried out and that the foundations were adequate, for the following reasons-
(i) There was no basis for the contention that, since under the 1936 Act the council
merely had a power to examine the foundations and therefore could not be held
liable for failing to exercise that power, it followed that neither could they be held
liable for failing to exercise the power with proper diligence; that contention could not
be sustained because-
(a) the effect taken together of the 1936 Act and the byelaws made thereunder by
the council was to give the council control over building work and the way it was
done; (per Lord Denning MR and Sachs LJ) that control carried with it a duty to
exercise their powers properly and with reasonable care; in particular the council
were bound to take reasonable care to see that the byelaws were complied with and
to appoint competent inspectors for the purpose;
(b) (per Sachs and Stamp LJJ) even if all that the council had was a 'mere power'

they were nonetheless liable for the negligent exercise of that power as the
negligence occurred in the course of a positive exercise of it; the assumption of
control over building operations by the making of byelaws was a positive act and
thereafter any negligence in the exercise of their control could give rise to liability;
thus (per Sachs LJ) failure to inspect the foundations at all might according to the
circumstances have constituted negligence; (per Stamp LJ) but for the failure to
make a proper inspection the damage could not have occurred to the plaintiff; the
situation could not be equated with one where an authority bid failed to exercise their
powers to prevent damage which would otherwise have occurred in any event;
Geddis v Bann Reservoir Proprietors (1878) 3 App Cas 430 applied;
(ii) It could not be argued that, in view of the fact that the builder, as the owner of the
property, could not be held liable under the principle in Donoghue v Stevenson,
therefore the council could not be held liable for passing the builder's bad work
because-
(a) (per Lord Denning MR and Sachs LJ) the distinction between liability for chattels
and liability for real property was unsustainable; the principles enunciated in
Donoghue v Stevenson were applicable to an owner of realty; accordingly a builder
who created a hidden defect was not absolved from liability merely because he was
the owner of the premises which he had built; dictum of Lord MacDermott in
Gallagher v McDowell [1961] NI at 41 applied; Bottomley v Bannister [1932] 1 KB
458 not followed;
(iii) The building inspector owed a duty of care to the plaintiff as a professional
adviser even though the plaintiff had not thought about and placed reliance on the
inspector's conduct, because a professional man who gave advice on the safety of
buildings, machines or material owed a duty to all those whom he knew, or ought to
have known, might suffer injury if his advice were unsound.
(iv) The relationship between the building inspector and the plaintiff was sufficiently
proximate to form the basis of a duty of care, although the plaintiff was only, a
subsequent purchaser, since any defect in the foundations once covered up could
not possibly come to light as a result of an intermediate examination but only when
the damage appeared, therefore the inspector ought to have had the plaintiff in mind
as someone likely to suffer damage if he was negligent in inspecting the foundations.
(v) (per Lord Denning MR and Sachs LJ) As between the council and the plaintiff
there existed a duty situation because-
(a) although the plaintiff's claim fell within the wide principle stated in Donoghue v
Stevenson, that principle was not of universal application; it was a question of policy
whether it should be applied to the novel claim for negligence made against the
council; however, since the primary object of the legislation was to protect
purchasers of houses from jerry building it followed that, unless there were
countervailing reasons of policy which would lead to a contrary conclusion, the
council, who could afford to bear the loss, should be held liable to purchasers for
failure to carry out the responsibility which had been entrusted to them under the
relevant legislation;
(b) there were no countervailing reasons why the council should not be held liable;
as the builder would be liable for building the house badly there was nothing wrong
in holding the council liable for passing the bad work and (per Sachs LJ) it was, in
this category of case, particularly important that dual liability of the builder and
council should exist; to impose liability on the council would not adversely affect the
work of building inspection and to permit this new type of claim in negligence would

not in practice lead to a flood of cases which neither the local authority nor the courts
could handle.

(2) The council were liable to the plaintiff for the damage caused by the breach of
duty by their building inspector in failing to carry out a proper inspection of the
foundations; the plaintiff was not precluded from recovering damages on the ground
that her loss was solely economic because (per Lord Denning MR and Sachs LJ) the
damage to the house was physical damage and the plaintiff was entitled to recover
the cost of repairs: (per Sachs and Stamp LJJ) as an action in negligence lay for
economic or physical loss, the correct test in ascertaining whether any particular
damage was recoverable was not whether it was physical or economic damage, but
what range of damage was the proper exercise of the power designed to prevent or
what was the character of the duty owed; applying that test there was nothing, in the
nature of the loss sustained by the plaintiff to preclude a claim being maintained for
that loss; accordingly the plaintiff was entitled to recover the damages claimed
against the council as representing the cost of repairing the house although (per
Sachs LJ) it was doubtful whether damages could be awarded for any reduction in
market value.

Dulieu v White [1901] 2 KB 669

By her statement of claim A. alleged that while she was sitting behind the bar of her
husband's public-house (she then being pregnant) B.'s servant negligently drove a
pair-horse van belonging to B. into the public-house. A. in consequence sustained a
severe shock which made her seriously ill and led to her suffering a miscarriage.
(She gave premature birth to a child. In consequence of the shock sustained by the
plaintiff the said child was born an idiot.)

Held, that the statement of claim disclosed a good cause of action against B.
Per Kennedy, J.: Mere fright not followed by consequent physical damage will not
support an action, but if it is followed by consequent physical damage, then, if the
fright was the natural result of the defendants' negligence, an action lies, and the
physical damage is not too remote to support it.
Per Phillimore, J.: Where there is a legal duty on the defendant not to frighten the
plaintiff by his negligence, then fright with consequent physical damage will support
an action. .
Victorian Railway Commissioners v. Coultas (58 L. T. Rep. 390; 13 App. Cas. 222)
considered and questioned.

Hambrook v Stokes Bros [1925] 1 KB 141, CA

The defendants' servant left a motor lorry at the top of a steep and narrow street
unattended, with the engine running, and without having taken proper precautions to
secure it. The lorry started off by itself and ran violently down the incline. The
plaintiff's wife, who had been walking up the street with her children, had just parted
with them a little a point where the street makes a bend, when she saw the lorry
rushing round the bend towards her. She became very frightened for the safety of
her children, who by that time were out of sight round the bend, and who she knew

must have met the lorry in its course. She was almost immediately afterwards
informed by bystanders that a child the description of one of hers had been injured.
In consequence of her fright and anxiety she suffered a nervous shock which
eventually caused her death, whereby her husband lost the benefit of her services.
In an action by the husband under the Fatal Accidents Act:-

Held (by Bankes and Atkin L.JJ.; Sargant L.J. dissenting), that, on the assumption
that the shock was caused by what the woman saw with her own eyes as
distinguished from what she was told by bystanders, the plaintiff was entitled to
recover, notwithstanding that the shock was brought about by fear for her children's
safety and not by fear for her own. Dictum of Kennedy J. in Dulieu v. White & Sons
[1901]1 2 K. B. 669 disapproved.

Greatorex v Greatorex and Others [2000] The Times LR May 5, QBD

There was no duty of care owed by a victim of self-inflicted injuries towards a
secondary party who suffered only psychiatric illness as a result of having witnessed
the event causing the injuries or its aftermath.
The policy considerations against there being such a duty owed clearly outweighed
the arguments in favour, since to impose liability for causing psychiatric harm in such
circumstances, particularly where the parties were members of the same family,
would be potentially productive of acute family strife.

Mr Justice Cazalet, sitting in the Queen's Bench Division, so stated when dismissing
an application on a preliminary issue in proceedings brought by the claimant,
Christopher Greatorex, for damages against the first defendant, John Simon
Greatorex, the second defendant, the Motor Insurers' Bureau, and Haydon Pope,
joined as a defendant in the proceedings under Part 20 of the Civil Procedure Rules
by the MIB who were seeking an indemnity on the basis that he had allowed the first
defendant to drive his car without insurance against third-party risks in breach of the
Road Traffic Act 1998.

Mr Nicholas Mason for the claimant; Mr Graham Eklund for the MIB; neither the first
defendant nor Mr Pope appeared or was represented.

MR JUSTICE CAZALET said that there was no reported English decision on the
issue which in essence, was whether a victim of self-inflicted injuries owed a duty of
care to a third party not to cause him psychiatric injury.
The agreed facts were that the first defendant, who had been drinking, negligently
drove a car belonging to his friend, Haydon Pope, on the wrong side of the road.
In the crash which occurred the first defendant suffered head injuries and was
unconscious for about an hour. Initially he was trapped inside the car.
The claimant, who was the first defendant's father and a leading fire officer, went to
the scene in the course of his employment and was subsequently diagnosed as
suffering from long-term severe post-traumatic stress disorder as a result of the
accident.
His Lordship said that Caparo Industries plc v Dickman ([1990] 2 AC 605) had
confirmed that, besides foreseeability of damage and proximity between the parties,

it must also be fair, just and reasonable to impose a duty of care in a particular
situation.
A quartet of House of Lords decisions, starting with McLoughlin v O'Brian ([1983] 1
AC 410) and continuing through Alcock v Chief Constable of South Yorkshire Police
([1992] 1 AC 310), Page v Smith ([1996] 1 AC 155) to White v Chief Constable of
South Yorkshire Police ([1999] 2 AC 455) showed that the existence and scope of
the duty of care in the area of negligently inflicted psychiatric injury were founded
upon policy considerations.
Where a claimant who was not put in personal danger by an accident claimed
damages for psychiatric injury arising out of the accident, he could succeed only if, in
addition to satisfying the requirement of foreseeability, he also met the requirements
of the control mechanisms defined in Alcock which had been conveniently
summarised by Lord Hoffmann in White.
Those were that the claimant must have had close ties with the victim, have been
present at the accident or its immediate aftermath and that the psychiatric injury
must have been caused by direct perception and not upon hearing of it from another
person.
His Lordship said it was clear from the decision of the majority in White that a
rescuer seeking to recover damages for purely psychiatric injury was to be regarded
as a secondary victim having no special status.
The claimant thus failed in his claim qua rescuer as on the agreed facts he had
never been in any physical danger.
Although as a father he clearly met the requirements of the control mechanisms
governing a claim for psychiatric injury suffered by a secondary victim of an accident
laid down in White, his dual status as father and rescuer added nothing, in terms of
proximity, to his status as the first defendant's father.
Although there was no English decision on the point, the preponderance of opinion in
the Commonwealth authorities which had been cited was unfavourable to the
concept of a victim of self-inflicted injuries owing a duty of care to a secondary victim
not to cause him psychiatric harm.
To impose liability in such circumstances would be to curtail the right of self-
determination and liberty of the individual, creating a significant further limitation
upon an individual's freedom of action.
Because of the requirements of the control mechanism, the issue with which the
court was concerned would normally only arise where there were close family ties
between the primary and secondary victims.
Home life might involve many instances of a family member injuring himself through
his own fault.
To allow one family member to sue another family member in respect of psychiatric
injury suffered as a result of the former being present when the injury was sustained
or having come upon the other in his injured state would be to open up the possibility
of a particularly undesirable type of litigation within the family, involving questions of
relative fault as between its members and be potentially productive of acute family
strife.
Given the policy considerations involved, any decision that there should be civil
liability to a secondary victim who suffered psychiatric harm in consequence of a
primary victim's self-inflicted injuries would be better left to Parliament as the best
arbiter of what the public interest required in this difficult field.

Employees

Dooley v Cammell Laird [1951] 1 Lloyd's Rep 271, Liverpool Assizes

Negligence - Joint tortfeasors - Breach of Shipbuilding Regulations, 1931, by
occupiers of yard - Common law negligence of sub-contractors - Contribution -
Remoteness of damage - Nervous shock - Ship being fitted out in first defendants'
shipbuilding yard - Insulation work on board being carried out by second defendants
- Plaintiff crane driver in employ of first defendants - Crane and driver (plaintiff)
loaned by first defendants to second defendants - Defect in sling supplied by second
defendants, resulting in slingload of repairing materials being precipitated into ship's
hold in which men were working - No physical injuries in fact caused to workmen by
fall and no risk of physical impact upon plaintiff - Claim brought by plaintiff in respect
of nervous shock thereby sustained - Alleged failure by first defendants to take
"Precautions against injury from falling materials" as required by Shipbuilding
Regulations - Regulations re-enacted by Factories Act, 1937 - "Risk of bodily injury
to persons employed" - Duty of second defendants towards plaintiff - Extent of duty
of care - Foreseeable danger - Bodily injury to persons not actually within risk of
physical impact - Measure of damages - Third-party indemnity proceedings brought
by first defendants against second defendants - Right of first defendants to
contribution - Shipbuilding Regulations, 1931, Regulations 33, 36 - Law Reform
(Married Women and Tortfeasors) Act, 1935, Sect. 6 - Factories Act, 1987, Sect. 60.

- Held, that the first defendants were in breach of their statutory duty under the
Shipbuilding Regulations in that they failed to comply with the regulations requiring
them to take ("Precautions against injury from falling materials"; that second
defendants were under a duty of care towards plaintiff, who was within the range of
foreseeable danger of physical impact or shock, and that they were in breach of that
duty in supplying a defective sling; and that accordingly plaintiff was entitled to
damages against both defendants in respect of the nervous shock proved to have
been sustained.

- Held, further in the third-party proceedings, that first and second defendants were
joint tortfeasors and that first defendants would be indemnified by second defendants
in respect of three-quarters of plaintiff's claim and three-quarters of the costs.

Young v Charles Church Ltd [1997] The Times LR May 1, CA

An employee who suffered psychiatric illness after seeing a workmate electrocuted
close to him could recover damages for breach of statutory duty under regulation
44(2) of the Construction (General Provisions) Regulations (SI 1961 No 1580).
The Court of Appeal so held in a reserved judgment allowing an appeal by the
plaintiff, Ian Young, against the dismissal by Sir Maurice Drake, sitting as a judge of
the Queen's Bench Division on June 13, 1996, of his claim for damages for
negligence and breach of statutory duty for psychiatric injuries sustained when
working as a labourer for the second defendant, Southern Construction Services, on
the land of the first defendant, Charles Church (Southern) Ltd.

Regulation 44 of the 1961 Regulations provides: "(2) Where any electrically charged
overhead cable or apparatus is liable to be a source of danger to persons employed
during the course of any operations or works to which these regulations apply ... all
practicable precautions shall be taken to prevent such danger . . ."

Mr Martin Porter for the plaintiff; Mr Guy Anthony for the defendants.

LORD JUSTICE EVANS said that the plaintiff claimed damages for a severe
psychiatric illness which he had suffered since May 1989 following an accident at his
place of work when a workmate alongside him had been electrocuted and killed.
His Lordship, having held that the defendants were liable to the plaintiff in damages
for negligence at common law, turned to the alternative claim for breach of statutory
duty.
The defendants admitted that they were in breach of regulation 44(2) of the 1961
Regulations as regarded the deceased but they denied that they were in breach as
regarded the plaintiff, because he was not injured or affected by electrocution,
meaning the transmission to him of electric current. The defendants submitted that
the plaintiff's injury was not of a type or inflicted in a manner which the statute was
intended to prevent.
His Lordship would hold simply that regulation 44(2) was not limited to physical
electrocution. The statute gave protection to employees from the kinds of injury
which could be foreseen as likely to occur when the electrical cable or equipment
was allowed, in the words of the regulation, to become a source of danger to them.
That certainly included mental illness caused to the plaintiff by the shock of seeing
his workmate electrocuted so close to him and in circumstances where he was
fortunate to escape electrocution himself.

Lord Justice Hutchison delivered a concurring judgment and Lord Justice Hobhouse
agreed.

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