Law of Tort is a civil wrong for which the Law provides a remedy to the injured party and obtain compensation from the person who causes the injury. Such wrongs include negligence, nuisance and defamation. Winfield defines the meaning of the Tort Law as follows: “Tortuous liability arises from the breach of a duty is towards persons generally and its breach is redressible by an action for unliquidated damages”. Purpose of tortuous liability: to give compensation, indemnity or restitution for harms also, to determine rights, as well as to punish wrongdoers and deter wrongful conduct, in addition to vindicate parties and deter retaliation or violent and unlawful self-help. Tort law protect interest of the people in the cases where someone has suffered an unwanted harm. For which as following: Physical injury, psychiatric injury, distress, financial loss, annoyance by neighbours, reputation, damages to property.
“The courts have denied worthy Claimants a remedy in some situations because of the floodgates argument”.
Psychiatric harm is a form of personal injury. Historically, in old cases “nervous shock” was medically recognized as a psychiatric illness. It has been characterized by ignorance because of the suspicions and fear that opening up liability would produce a flood of claims such as fraudulent or genuine. In the later case of Attia v British Gas nervous shock was described it as a “misleading and inaccurate expression.” Also, in the case of Reilly v Merseyside Regional Health Authority where the Court of Appeal held that normal human emotions, together with their normal physical consequences, did not constitute either psychiatric illness or physical injury. The court distinguished between physical and psychiatric harm- that is, damages to one’s body and damages to one’s mind.
In the case of Sion v Hampstead Health Authority law makes a distinction between “primary” and “secondary” victims to restrict the possibility of the claims, as it was held that nervous shock must result from a sudden, traumatic event. Moreover to limit the potential numbers floodgates claims, psychiatric injury suffered must be a medically recognized condition. Such as post-traumatic stress disorder, personal disorder, as well as miscarriage and pathological grief. However, it is difficult to put strike mechanism on the psychiatric injury.
Primary victims it has been established that if physical injury is foreseeable the Defendant is liable for any personal injury, whether physical or psychiatric, which claimant suffered as a result. In the case of Duliev v White & Sons Kennedy J. stated that shock, when it operates through the mind, must be a shock which arises from a reasonable fear of immediate personal injury to oneself. An addition in the case of Mc Farlane v E.E. Caledonia the claim failed on the reasons of foreseeability and it was not reasonably fear for his life. In the case of Corr v IBC Vehicles Ltd House of Lords held that it was primary victim and psychiatric suffer was to be considered the same ‘type’ of harm as his foresseable physical injuries. Moreover in the case of Page v Smith primary rule applies even if the physical injury did not in fact occur. However, it is not possible to recover in the Tort Law of negligence for mere grief, distress or anxiety which is illustrated in Rothwell v Chemical & Insulating Co Ltd case. In addition Hicks v Chief Constable of South Yorkshire Police The court held that fear, of whatever degree, is a normal human emotion and therefore not recoverable.
For the secondary victim recovery is limited by a number of policy-orientated control mechanisms. Foreseeability alone is not sufficient; they have to satisfy the three “control Mechanisms” which is illustrated in Alcock v Chief Constable of South Yorkshire. Fist mechanisms is draw in Bourhill v Young where suffered must be reasonably foreseeable and exists of the relationship. A second control mechanism is illustrated in McLoughlin v O’Brien that the claimant must be present at the scene or immediate aftermath. Further, identification of a victim in the mortuary 8 or 9 hours later was insufficient. Also, claimant must have perceived the event with their own unaided senses. However court can be more generous.
Many of the losses in tort law are encounter when looking at negligence is in some way ‘economic’. There is a separate set of rules relating to economic loss because the courts have felt the need to ensure that a defendant does not attract limitless liability as a result of his actions. Economic losses can be caused by: damages to property and acquisition of defective goods or property. Basic rule of Economic loss is that there is not liability for pure economic loss caused by the negligence action. The difference between ‘pure’ economic laws illustrated in Spartan Steel Alloys Ltd v Martin & Co which concerning consequential economic loss. Lord Denning MR highlighted various policy considerations with explanation of the restrictions of the claims“-This is a hazard which we all run”. It seems then, the main reasons for the courts to rely on an exclusionary rule in relation to pure economical loss that such claims would lead to a flood of claims of that nature. This, in turn, could lead to “crushing liability”. ‘Floodgates’ argument is grounded on the assumption that is better to prevent all claims by denying liability than allow, a ‘flood’ of claims. From the history there are a lot of arguments to restrict on the ability to claim for economic loss, for example in the case of Cattles v Stockton Waterworks Co. There are a few exceptions which a claimant must fall within in order to be able to recover these stem primarily from Hadley Byrne v Heller and Partners. In addition in the case of Junior Books Ltd v Veitchi Co Ltd House of Lords allowed a claim to be made in negligence for pure economic loss. In the later cases exceptions were culminating from more generous position regarding pure economic loss which is illustrated in Caparo Industries v Dickman[ and Murphy v Brentwood District Council cases which closed the door on claims for pure economic loss. Murphy cases overruled Anns v Merton London Borough Council case and held that the council was not liable in the absence of physical injury. Also in Junior Books Ltd v Veitchi Co Ltd case Lord Bridge, put question on the case where the House of Lords allowed a claim to be made in negligence for the pure economic loss.
Negligence has become the predominant tort. According to Rogers’s (2002) definition negligence is “the breach of legal duty to take care, which results in damages undesired by the defendant, to the plaintiff”. Since the landmark case Donoghue v Stevenson ‘negligence’ in tort law, provide a remedy where injury party or loss is cause to the victim by the ‘wrongdoer’s failure to keep to a legal duty to take reasonable care. The focus of the tort of negligence is the ‘quality’ of the defendant’s conduct- what must be shown is that the defendant acted unreasonably and breached of that duty. Liability of negligence can only be established where the defendant’s breach cased damages which is not too remote. According to the Jason and Tamsin situation, to prove Jason’s negligence liability is such activity as a driving a car need to look at leading case of establishing a duty of care in novel areas of the tort of negligence such as Caparo Industries Ltd v Dickman. It was reasonably foreseen that Tamsin would suffer injury and loss which is illustrated in Hughes v Lord Advocate. Also, in the case of Anns v Merton London Borough Council Lord Wilberforce held that there was sufficient proximity between the authority and the tenant to enable a duty to be owed and there was no reasons not to impose the duty. Even if in later case Anns decisions was retreated, still Tamsin is reliable for the compensation as the relationship of proximity exist before duty of care as Tamsin was his girlfriend. In addition Anns case was overulled by the Murphy v Brentwood District Council.
Moreover, it was just, fair and reasonable that the law should recognise a duty on the defendant to take reasonable care not to cause that damages to the claimant. According to Mitchell & Anr v Glasgow City Council case what is fair just and reasonable will depend on the proximity of the relationship between that parties and other relevant factors e.g. public policy.
Need to decide whether the Joson’s breach of that duty- has not come up to the standard of the care required by law. According to Nettleship v Weston case learner driver has convicted of driving without due care and attention and was liable to the 50 per cent of the damages and suffers of her instructor. Also, in the case of Roberts v Ramsbottom defendant was held to be liable on the basis that the fell below the objective standard of the reasonable driver. However, in later case Mansfield v Weetabix Ltd Court of Appeal held that the defendant was not liable for the damages caused to a shop when the lorry he was driving crashed into it. According to the Magnitude of risk case Paris v Stepney Borough Council  Jason should foreseen the risk and ensure the safety of the Tamis and make sure that she put a seatbelt. However, according to the Law reform Act 1945 stated contributory negligence has the effect of reducing the damages payable to a successful claimant on the basis it was partly his own fault. According to the Jones v Livox Quarries Ltd case Tamsin was acting negligence at the moment when she did not put her seat belt. She suffers head injuries which in her case was life threatening but did her actions contribute to the damages suffered it is the decision of the court with medical background of explanations. According to the Stapley v Gypsum Mines Ltd case, court made a description that damages should be reduced as a result; it cannot be 100% but can be more that 50%.
According to coursework scenario next step will discuss tort liability of Dr House. Public authorities are liable like anyone else for “ordinary negligence”. National Health Service can be sued for medical negligence for the doctor, but duty of patients is well established, so normally the issues is “breach”, no duty. Duty of care was established in the case of the wrongful pregnancy claim McFarlane v Tayside Health Board case. Special standards of professionals are illustrated in the Bolam v Friern Hospital Management Committee case as a “Bolam Test”. Also, in the Moy v Pettman Smith case against a barrister, it was requires to show that the error was one which no reasonably component member of the relevant profession would have made. In addition court held that the doctor was not reliable for the paralysed patient while undergoing an operation on her back in the case of Sidaway v Bethlem Royal Hospital. However, Bolam test has also been criticised for being too protective of professionals by the Bolith v. City & Hackley Health Authority; the majority of doctors’ opinion was that he should have be intubated but still was enough doctors who said they would not have intubated to persuade. In addition Sidway has been criticized by the Chester v Afshar case where the House of Lords held that the doctor breached his duty of care by not informing the patient of a very small risk.
In another way to penalise doctors for every error, finally it will increase the amount of claim and defensive medical practise. According to the Lord Woolf (2001) “compensational culture” statistics only 17 per cent of the cases are successful in claims against NHS.
But there is another question where did the Dr House negligence actually cause the death of the Tamsin, which is illustrated in tort law as causation. Factual causation is the breach of duty that must be the factual cause of the damages is known as “But for…? Illustrate in case of Cork v Kirby Maclean Ltd. Also, in the Barnett v Chelsea and Kensingthon Hospital management Committee case where court held that that as the doctor’s negligence was not a necessary condition for the man’s death, he could not be liable for it. In addition, in the case of McWilliams v Sir Williams Arrol and Co. Ltd court held that even the employers and the occupiers of the site where in breach of the respective duty in not providing a safety belt, still they were not liable in damages because their breach of duty was not the cause of the damages provided. Moreover, Dr Hous’s was only one person how could cause the Tamsin’s death, known as the one of the multiple cause of the damage in factual causation. Which is shown in Wilsher v Essex Area Health authority case, it was five possible causes of the baby’s blindness. In addition to be successful claimant need to show the balance of probability, it is more than 50per cent likely; this is known the case of MgGhee v National Coal Board. In addition in the case Rahman v Arearose Ltd court held that each defendant was negligence and liable to pay some compensation.
Next step will describe suffers of Jason’s negligence of carelessness driving with the result of the Mahmood’s death. According to the tort liability Ambreen the friend of the Mahmmod who was the witnessed of the accident could sue for the psychiatric injury and Irina, girlfriend of the Mahmood was severely depressed and unable to work. According to the special of unforeseeable claimant test which is illustrated in the case of Bourhill v Young case whether claimant would have to been in the contemplation of a reasonably man. Also in the general requirement of liability psychiatric illness must be recognised and grief, unhappiness distress is not sufficient which is illustrated in Grieves v FT Evarard & Sons . To get compensation psychiatric injury must be caused by witnessing a sudden, traumatic event according to the Sion v Hampsteed Health Autority case. In addition in the case of Reilly v Merseyside Regional Health Authority case where court was held that the couple was not liable for the nervous shock as the claimant must involve an actual, recognised psychiatric condition capable of resulting from the shock of the incident, and recognised as having long term effects and claustrophobia was not accepted as injury. In the Sion case court distinguished between “primary” and “secondary” victims to restrict the availability for claims.
According to our scenario Ambreen was primary victim as he was exposed to reasonably foreseeable physical injury and it his suffers was caused to reasonably fear of his friend death. Also Kennedy J stated that: ‘Shock, when it operates through the mind, must be a shock which arises from a reasonable fear of immediate personal injury to oneself’. However, ‘Kennedy’ test was distinguished in Hambrook v Stokes Bros case.
In relation to law if physical injury is foreseeable the defendant is reliable for any personal injury, whether physical or psychiatric, which he suffers as a result which is illustrated in Simmons v British Steel case. Still same rule applies even if the Ambreen did not get any physical injury what it illustrated in Page v Smith case. Also in the case of Corr v IBC Vehicle Ltd case it was held that the psychiatric illness was to be considered the same ‘type’ of harm as his foreseeable physical injuries. Back to the Grieves v FT Evarard case Lord Hope held that ‘the category of primary victim should be confined to persons who suffer psychiatric injury caused by fear or distress resulting from involvement in an accident caused by the defendant negligence.
Irina is a secondary victim as she is a “passive and unwilling witness to injury caused to others”. The psychiatric injury suffered must be reasonably foreseeable in a person of ‘ordinary fortitude’ in the same circumstances. Back to the Bourhill v Young which is mentioned above the notion of ordinary phlegm or fortitude, is invoked as a means of assessing the ‘validity’ of a claimant’s emotional reactions in the face of trauma. Irina probably suffered more emotional harm rather than normal person does, even so according to the Brice v Brown case of ‘egg shell skull’ principle. In the circumstances, if only the particular vulnerable would suffer at all, there is no liability. However, if a person of reasonable fortitude would duffer, then the defendant is liable for all the injury actually suffered by the claimant even though the injury was more severe because of the claimant’s particular vulnerability. Foreseeability alone is not sufficient; in addition they have to satisfy the tree “control mechanisms which is illustrated in Alcock v Chief Constable of South Yorkshire case. According to the nature of relationship such a close relationship of love and affection with the victim that it was reasonably foreseeable that the claimant would suffer psychiatric illness, also such relationship between spouses, parent, children’s and fiancées, in other cases there is requirement to prove such a relationship which is stated in Robertson v Foth Road Bridge Joint Board  case. Also, Irina needs to satisfy proximity in time and space, need to be presented at the scene or immediate aftermath. According to the Mcloughlin v O’Brien case Mrs McLoughlin arrived at the hospital two hours later after the accident, in Alcock Robert Alcock’s claim failed. Also in the case of The Hillsborough Stadium disaster claimant arrival ,nine hours after the incident, was to late -the blood on this body said to be already ‘to dry’ to allow recovery. However, in the case of Galli-Atkinson v Seghal case court allowed mother to claim for psychiatric injury following the death of her daughter in a road traffic accident. All the three control mechanism need to be satisfy to put liability on the defendant. Irina, is not able to satisfy thids test as she must have to perceive the event with her own unaided sense. In the case of Sion v Hamspted Health Authority fathers claim was denied for psychiatric harm sustained as a result watching his son die. Nevertheless, it was criticized by the Law Commission in its Report on Liability for Psychiastric Illness  where judges try to Escher its more restrictive effect which is illustrated in North Glamorgan NHS Trust v Walters  case.