FACTS:

On 11 April 1996 the First Defendant had been drinking with a friend, who is the Part 20 Defendant in the proceedings. The First Defendant was driving a car belonging to the Part 20 Defendant, who had given him permission to drive the car and was a passenger in it. Whilst overtaking on a blind brow the First Defendant negligently drove over on the wrong side of the road and was hit by an oncoming vehicle. The Part 20 Defendant was uninjured. The First Defendants head was injured and he was unconscious for about an hour. Initially he was trapped inside the car. The police, ambulance and fire services attended the scene of the accident.

Among the fire officers who attended the scene was the First Defendants father, the Claimant. At the time of the accident he was employed as a Leading Fire Officer. He was nowhere near the scene of the accident when it happened. He went there in the course of his employment.  Having been informed that his son has been injured, he attended to him. The Claimant was later diagnosed as suffering long- term post traumatic stress disorder as a result of the accident.

The First Defendant was subsequently convicted of driving a motor vehicle without due care and attention, driving without insurance, and failing to provide a specimen.

The Claimant brought proceedings claiming damages against the First Defendant, his son. Since the First Defendant was uninsured at the time of the accident, the Motor Insurers Bureau was joined as a Second Defendant. The Second Defendant in turn brought proceedings against the Part 20 Defendant seeking an indemnity against him.

It was decided that the court should determine three preliminary questions of law 

1. Does a primary victim (i.e. the First Defendant) owe a duty of care to a third party in circumstances where his self-inflicted injuries caused that third party psychiatric injury?
2. On the agreed facts, did the First Defendant owe the Claimant a duty of care not to harm himself?
3. On the agreed facts, did the First Defendant owe the Claimant a duty of care not to cause him psychiatric injury as a result of exposing him to the sight of the First Defendant’s self- inflicted injuries?

The Queen’s Bench, before Justice Cazalet, determined the preliminary questions of law.

HELD:

The Role of Policy Considerations

Justice Cazalet commenced his judgement by clarifying the current position of the law relating to negligence and duty of care. It is encapsulated by Lord Bridge of Harwich in Caparo Industries PLC v Dickman [1990] 2 AC 605 at p 617;

“[I]n addition to the forseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the laws as one of “proximity” or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other”

Next he mentioned the case of Alcock v Chief Constable of South Yorkshire Policy [1992] 1 AC 310 Lord Oliver of Aylmerton at 411 E put the matter as follows;

“[I]n the end, it has to be accepted the concept of “proximity” is an artificial one which depends more upon the court’s perception of what is the reasonable area for the imposition of liability that upon any logical process of analytical deduction”

He too concluded that the restrictions on the existence and scope of the duty of care in this area were founded upon policy considerations rather than upon any logical requirements.

Again in Page v Smith [1996] 1 AC 155 at 197F Lord Llyold of Berwick explained that in nervous shock cases involving claims by those not directly involved in the accident the law insists on certain control mechanisms “in order as a matter of policy to limit the number of potential claimants”

Finally in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 493 A Lord Steyn stated;

“Policy considerations have undoubtedly played a role in shaping the

law governing recovery for pure psychiatric harm”

He then went on to identify a number of distinctive features of claim for psychiatric harm which he suggested might in combination account for the differential treatment by our law of physical injury and psychiatric harm.

The Control Mechanisms

The control mechanisms, restrict the scope of the duty of care, are claimed by claimants who are not directly threatened by the accident but learned of I through seeing it or hearing of it were defined in Alcock. In White Lord Hoffman at 502 G-H stated them in summary form;

“(1)      The Plaintiff must have close ties of love and affection with the victim. Such ties may be presumed in some cases but otherwise be established by evidence

(2)       The Plaintiff must have been present at the accident or its immediate aftermath

(3)       The psychiatric injury must have been caused by direct perception of the accident or its immediate aftermath and not upon hearing about it from someone else”

Primary and Secondary Victims

In Page v Smith Lord Lloyd, placed emphasis upon the distinction in nervous shock cases between the position of a primary victim of an accident, who is directly involved as a participant and is within the range of foreseeable physical injury, and that of a secondary victim, whose psychiatric injury is caused by witnessing or participating in the aftermath of an accident which causes or threatens death or injury to others. The main difference was that the primary victim can recover damages for psychiatric injury even if the injury was unforeseeable.

Having summarised the current position Justice Cazalet analysed the competing submissions as to whether a duty of care situation arose.

The Claimant as Rescuer

Counsel for the Claimant first submits that the First Defendant owed the Claimant a duty of care in his capacity as a rescuer. Lord Oliver summarised the position of the rescuer at 408B in Alcock;

“it is well established that the Defendant owes a duty of care not only to those who are directly threatened or injured by his careless acts but also to those who, as a result, are induced to go to their rescue and suffer injury in doing so. The fact that the injury suffered is psychiatric and is caused by the impact on the mind of becoming involved in personal danger or in scenes of horror and destruction makes no difference”

Cazalet J was also drawn to the authority of White. The House of Lords concluded by a majority of three to two that for policy reasons rescuers should no longer be regarded as coming into a special category. The effect of the majority decision is that in order to recover compensation for pure psychiatric injury suffered as a rescuer the claimant has at least to satisfy the threshold requirement that he objectively exposed himself to danger or reasonably believed that he was doing so. Where the element of personal danger is lacking his position is no difference from that of other secondary victims who are subject to control mechanisms see White at 497A.

The dissenting judges Lord Griffiths and Lord Goff accepted that it should only be special case that rescuers who were not in any physical danger should be permitted to recover for their psychiatric injury. At 484F Lord Goff, having described the circumstances in which the rescuer found himself in Chadwick v British Transport Commission [1967] 1 WLR 912 as “wholly exceptional”, stated

“it must be very rare that a person bringing aid and comfort to a victim or victims will be held to have suffered foreseeable psychiatric injury as a result”

Counsel for the Claimant submitted that his Lordship not follow the majority opinion in the House of Lords on the grounds that it would constitute an unwarranted departure from previous authority which had firmly established the rescuer claiming damages for psychiatric injury as being within a special category. Justice Cazalet could not accept this, he saw it no less than an attempt to reopen the argument which was rejected in White. The majority decision in that case was that a rescuer seeking to recover damages for purely psychiatric injury is to be regarded as a secondary victim having no special status. In the present case it was accepted by both sides that the Claimant was never in any physical danger nor in fear of danger, therefore the Claimant was unable to succeed on the sole ground that he was a rescuer.

The Claimant as Father

Counsel for the Claimant submitted that, as the First Defendant’s father, he meets all the control mechanisms applicable to claims by secondary victims. Counsel for the Second Defendant, the MIB, agreed that the close ties of love and affection and the direct perception mechanism were satisfied. He however, opposed the second requirement namely being present at the accident in the immediate aftermath.

Cazalet J addressed and determined this point relatively straightforwardly. He was heavily influenced by the decision of McLoughlin v O’Brian in which the House of Lords held that claimant was present in the immediate aftermath when she attended hospital to see her injured family over an hour after the accident. He concluded that the facts in the present case were much stronger, namely the Claimant seeing the First Defendant trapped in the wreckage in need of help, both as to timing and as regards location. He rejected the submission of the defence and found that the Claimant did satisfy all three of the control mechanisms for a secondary victim.

The Claimant as Rescuer and Father

Another submission from Counsel for Claimant is that the dual status of the Claimant as a rescuer and a close relation gives rise to a unique set of facts that justify the court treating him as a primary victim. He argues that the First Defendant’s negligent driving made it reasonably foreseeable that (1) there might be a serious accident, (2) it might cause death or serious injuries, (3) the attendance of the emergency services might be required, and (4) since the location of the accident was close to the Claimant’s place of employment, he might come to the scene in his role as a fireman trained to deal with road traffic accidents.

Cazalet J reiterated that forseeability of injury is not if itself sufficient to create a duty of care in this area of law. In his opinion, the Claimant’s submission is quite irreconcilable with the majority decision in White. In such a case it is the fact that the rescuer is a close relative not the fact that he is a rescuer which brings him into the category of claimants prima facie entitled to claim damages.

He did go on to say that there may be occasions when police officers, ambulance drivers, doctors, nurses and other hospital workers will find themselves professionally concerned in an emergency situation involving an injured close relative. He did not see why the fact that in such cases they will have dual status of rescuer and close relative making them any better placed to recover damages than they would be on the basis of either status considered individually.

The First Defendant’s Conviction

Counsel for the Claimant further submits that a person driving on a highway owes a general duty to others who may be affected by his driving. Since the First Defendant’s self- inflicted injuries flowed from conduct for which he was criminally liable brings the case into a special category.

His Lordship rejected this, acts causing self-inflicted injuries may be deliberate or negligent, but there seems to be no reason in principle why the fact that such an act gave rise to criminal liability should cause it to be treated differently from other deliberate or negligent acts which do not give rise to criminal consequences.

Duty owed by victims of self- inflicted injuries: the authorities

There exists no reported English decision on the question whether a victim of self- inflicted injuries owes a duty of care to a third party not to cause him psychiatric injury. Lord Ackner referred to the issue in Alcock at 401;

“as yet there is no authority establishing that there is liability on the part of the injured person, his or her estate, for mere psychiatric injury which as sustained by another by reason of shock, as a result of a self-inflicted death, injury or peril of the negligent person, in circumstances where the risk of such psychiatric injury was foresseable. On the basis that there must be a limit at some reasonable point to the extent of the duty of care owed to third parties which rests upon everybody in all his actions”

A number of authorities were put forward for both the Claimant and the Defendants.

Authorities put forward by the Defendant include Jaensch v Coffey, Harrison v State Government Insurance Office (Qld) and Another (1985) Aust. Tort Reports 80-723, Dwyer v Dwyer (1969) 90 WN (Pt 2) (NSW) 86. Particular importance was paid to the following cases;

Lord Goff in White at 471 H stated:

We should be wise to heed the words of WIndeyer J spoken nearly 30 years ago in Mount Isa Mines Ltd v Pusey (19700 125 CLR 383 at 396;

“The field is one which the common law is still in course of development. Courts must therefore act in company and not alone. Analogies on other courts, and persuasive precedents as well as authoritative pronouncements, must be regarded”

Bray CJ at p 256 in Kohn v State Government Insurance Commission (1976) 5 SASR 225;

“…A man or his representatives can hardly be legally responsible for the injurious effect of his own death”

Counsel for the Defendant also referred the court to the judgement of Zeeman J in King v Motor Accidents Insurance Board [1991] Aust. Tort Reports para 81- 134  at p 69, 274:

As a matter of principle it might be though that the plaintiff ought not to be denied damages for his psychiatric injury merely because of the fact that it is a product of the  of the death of the tortfeasor. A possible basis for denying relief is that there existed no duty of care on the part of the tortfeasor not to injure himself and that the damages are the product of such injury. I do not find this persuasive…I must accept that this area is governed by policy considerations which limit the availability of the remedy. The dictum of Deane j in Jaensch v Coffey states … it requires the plaintiff’s claim for damages for psychiatric injury to be denied upon the basis that it falls into a category which is not compensatable by reason of policy considerations”

Justice Cazalet stated that the weight of the Commonwealth authorities to which he was referred tended to support the Defendant’s submission that there was no duty of care in the situation that was under consideration.

Counsel for the Claimant submitted that as a matter of law no claim can be entertained where the primary victim is the negligent Defendant himself and the shock to the Claimant arises from witnessing the victim’s self-inflicted injury, is not only unworkable but also unjust in that it would preclude claims such as those train drivers who suffer nervous shock when a person throws himself in front of their train in order to commit suicide.

Counsel for the Claimant referred Justice Cazalet to a number of authorities. First, to the dictum of Watkins LJ in R v Criminal Injuries Commission Board ex parte Webb [1986] Q13 184 at 196, where he said that the person committing suicide “ may well be in breach of a duty of care owed to the driver and the passengers”

Next, attention was drawn to Lord Hoffman’s comments in White at 5071- 1- 508A :

“this is an elegant, not to say ingenious, explanation, which owes nothing to the actual reasoning in any of the cases. And there may be grounds for treating such a rare category of case as exceptional and exempt form the Alcock control mechanisms”

Justice Cazalet conclusion was that none of the authorities presented to him were adequate, each of them raise materially different consideration from those in the case before him. He did not find himself assisted by the submissions bases on the case Watkins LJ’s engine driver.

Duty owed by victims of self- inflicted injuries: Policy Considerations

Cazalet J stated that despite the authorities appearing unfavourable to the concept of a victim of self-inflicted injuries owing a duty of care to a third party not to cause him psychiatric injury, there is no binding decision. As a result Cazalet took it upon himself to come to a successful accurate conclusion. Undoubtedly this required analysis of policy considerations.

There were a number of issues which his Lordship had to consider and address. Firstly, arguments were presented by the Defendant’s Counsel attacking the finding of a duty on the grounds of a person’s right of self determination. Attention was drawn to the decision of the German Bundesgerichtshof in a case reported at (1971) BGHZ 56, the court reasoned that;

A person is under no legal duty, whatever the moral position may be, to look after his own life and limb simply in order to save his dependents from the likely psychical effect on them if he is killed or mained. To impose such a legal duty would be to restrict a person’s self- determination in a manner inconsistent with our legal system”

Relying on this opinion, Counsel for the Defendant argues that to impose the proposed liability for psychiatric harm caused to another through such act would be to curtail the right of self-determination and the liberty of the individual. Justice Cazalet accepted that this was a powerful objection to the imposition of such a duty and to extend that duty would be to create significant further limitation upon an individual’s freedom of action.

The next issue to be considered was regarding policy and the potential of allowing close relatives to sue the negligent individual for damages for psychiatric injuries. Since a claim for psychiatric illness suffered by a secondary victim in consequences of injury to a primary victim is not admitted by our law unless the three elements of the control mechanism are present, it follows that it would normally only be in cases where close family ties exist between the primary and secondary victims that the particular issue with which this case is concerned will arise.

Justice Cazalet concluded, to allow a cause of action in this type of situation is to open up the possibility of a particularly undesirable type of litigation within the family, involving questions of relative fault as between its members. Issues of contributory negligence might be raised, not only when the self- inflicted harm is caused negligently, but also where it was caused intentionally. Further, where a family member suffers psychiatric harm as a result of the self-inflicted injuries of another family member, the psychiatric illness in itself may well have an adverse effect upon family relationships which the law should not astute not to exacerbate by allowing litigation between those family members. In his opinion, to permit a cause of action for purely psychiatric injury in these circumstances would be potentially productive of acute family strife.

He ended his judgement regarding duty owed by victims of self –inflicted injuries by commenting on the Law Commission’s report, at paras 5.34 – 5.44 which considered the same issues as the case before him. The report gives weight to the argument that to create a duty of care in the situation under consideration would place an undesirably restrictive burden on a person’s self-determination. It recommends that legislation should provide for such a duty to exist where the Defendant has negligently harmed himself, but for the courts top have the scope to decide not to impose the duty where the Defendant has chosen to harm himself. The purpose of the latter provision would be to allow room for respect to be accorded to the Defendant’s right of self- determination.

Conclusion

Justice Cazalet came to the conclusion that the policy requirements affecting duty of care clearly outweighed the arguments in favour of there being such a duty. He found that there was no duty of care owed by a primary victim of self-inflicted injuries towards a secondary party who suffered psychiatric illness as a result of those injuries.

The answers to the three preliminary questions of law were;

(1)               A primary victim does not owe a duty of care to a third party in circumstances where his self-inflicted injuries caused the third party psychiatric injury

(2)               On the agreed facts the First Defendant did not owe the Claimant a duty of care not to harm himself

(3)               On the agreed facts the First Defendant did not owe the Claimant a duty of care not to cause him Psychiatric Injury as a result of exposing him to the sight of the First Defendant’s self- inflicted injuries.

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