McLOUGHLIN v O’ BRIAN

Proximity, foreseeability and nervous shock, are central to a claim for damages when a mother is witness to the fallout of a multiple vehicle collision, which left one of her children dead.

At a time when common law and judicial confidence preferred to abstain from extending the scope of award, the need for extension became overwhelming in the face of such distress and protracted suffering.

In 1973, the appellant’s husband and three children were involved in a traffic accident involving two articulated vehicles central to the cause of the collision.

The outcome left the husband with bruising and shock, the oldest child with severe head injuries, fractures and bruising, the middle child with fractures, bruising and concussion, while the youngest child aged almost three, had died just moments after the crash.

The appellant was informed of the accident roughly an hour after the tragic event, and was immediately taken to see her family at the nearby hospital.

On her arrival, the appellant saw her husband in a state of shock and visible distress; after which, the hospital staff informed her that their youngest child was dead.

She then witnessed her oldest child screaming and shouting while, her middle child was unable to speak and simply clung to the appellant throughout.

Having initiated a claim for damages under severe shock, organic depression and a change of personality, the court dismissed the claim on policy grounds, in that despite admitting liability for the death and injuries of the immediate victims, there was no duty of care when allowing for the foreseeability that the appellant would suffer resulting psychological injuries.

When heard in the Court of Appeal, the Court ruled that although their was a valid argument that the respondents could have foreseen the impact their negligence would have upon a wife and mother, existing policy denied award to those not present at the scene.

Pursued in the House of Lords, the question in need of address was whether if, by refraining from close analysis and challenge of the existing policy on nervous shock, the judiciary had failed to acknowledge the manifestation of psychological trauma within parties beyond the tragedy, and thereby polluted the course of natural justice.

In Benson v Lee, the court had allowed a claim for nervous shock, when a mother  who having been told by a third party, ran outside her home to find her son had been run over; while in Chadwick v British Railways Board,a nearby resident to a train crash was diagnosed with nervous shock, after arriving at the scene and helping rescue the survivors.

On that occasion, the court had treated the matter as one of special duty, given his willingness to attend and assist.

Contrastingly, it was stated by Reid LJ in McKew v Holland & Hannen & Cubitts (Scotland) Ltd that:

“A defender is not liable for a consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee.”

McKew v Holland & Hannen & Cubitts (Scotland) Ltd

Whereas in the American case Wagner v International Railway Co., Cardozo J explained that:

“Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognises them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer.”

Wagner v International Railway Co.

It was this statement that led the House to consider the appellant’s attendance at the hospital as that of a rescuer at a traumatic event, despite the reluctance of the Court of Appeal to widen the scope of award to those elsewhere, as outlined by Griffiths LJ, who stipulated that:

“[T]he closer the relationship the more readily it is foreseeable that they may be so affected, but if we just confine our consideration to parents and children and husbands and wives, it is clear that the potential liability of the tortfeasor is vastly increased if he has to compensate the relatives as well as the immediate victims of his carelessness.”

While the House agreed that overextension of scope ran risk of abuse of the principle, the time had come to move the parameters of the law in line with increased medical insight, along with a recognition that many years earlier, Australia had taken the liberty of embracing the right to such claims under section 4(1) of the New South Wales Law Reform (Miscellaneous Provisions) Act 1994.

An Act which allowed a parent, husband or wife of a killed, injured or severely distressed party, to claim for nervous shock damages regardless of the spatial or temporal relationship to the accident or event involved.

It was for this reason, along with the obvious need to lead the change required, that the House uniformly upheld the appeal, while clearly noting that legislative reform was now long overdue in this particular field and reminding the parties that:

“Space, time, distance, the nature of the injuries sustained, and the relationship of the plaintiff to the immediate victim of the accident, are factors to be weighed, but not legal limitations, when the test of reasonable foreseeability is to be applied.”

STOVIN v WISE

This appeal case discusses the actions (or inactions) of public bodies, when operating under the guidance of statute and a prerequisite (albeit narrow) duty of care towards the general public.

After a number of road traffic accidents had occurred in a well-known intersection, the focus of  complaint by drivers at the time, centred around a small patch of land on one of the number of corners, which obscured vision and thereby contributed to the now growing number of injurious collisions.

When consideration was taken by the highways agency operating under the local authority to try and remove the affected area, the decision was taken to write to the land owners British Rail, and request that either the State body take steps to remove the blockage, or that permission might be granted for the local authority themselves to carry out the work at cost to the State under section 79 of the Highways Act 1980.

Under the power of such statute, the local authority were at their own discretion, able remove the land at cost to themselves in order to circumvent any undue objections, and while acting in the interest of public safety.

Unfortunately, while the local authority did write to the corresponding public body, and a meeting was held to examine how best to proceed, the letter was ignored by the recipients, and the sender was later moved to another council department, without explaining to anyone that the matter was under review, and that further action was needed.

When the claim for negligence and breach of statutory duty was initiated by the victim of the accident, damages were awarded, and shared liability placed upon the driver and local authority (in varying degrees), after which an appeal was made by the defendant public body.

During the hearing, judge Lord Hoffman’s view of operational policy translated that:

“The distinction between policy and operations is an inadequate tool with which to discover whether it is appropriate to impose a duty of care or not.”

In other words, just because the highways agency and local authority were obligated to provide safe roads and road surfaces to the general public, private land that prevented an unobscured field of view did not render those same bodies liable for a duty of care, even if they had decided to take steps outside of prescribed statute to remove the obstruction at cost to themselves.

This case ties strongly with the constitutional concept of ‘justiciability’, which is to say that because public bodies are created by statute through the democratic process, the court recognises the limitations of their capabilities, and subsequently hesitates to challenge them, while on this occasion the court reminded the parties that:

“Public law is unable to give effective remedy if a road user is injured as a result of an authority’s breach of it’s public law obligations.”

SMITH v LITTLEWOODS ORGANISATION LTD

Foreseeability, and the duty of care for the criminal acts of third parties, seems somewhat overburdening; and so, in this matter the appellants found themselves central to an argument that required brevity in order to restore the flow of justice.

In 1976, the respondents acquired a derelict cinema as part of their national retail expansion programme, and while awaiting the refurbishment process to begin, the site was occasionally occupied by subcontractors and their employees when fully stripping the building bare ahead of the main construction phase.

Over a period of weeks, the site was also accessed by local youths who, on two occasions, started small fires, before having them extinguished by members of the nearby parish church.

Unfortunately, instead of notifying the police or the appellants, those acts went unreported until a third fire was allowed to get out of control, before causing significant damage to a neighbouring property and the church.

Having commenced litigation against the respondents, the now appellants contended that failure to provide adequate security to the site was a breach of duty owed to prevent both access by the youths, and the damage caused to their properties as a result of the fire.

In the first instance, the court agreed that insufficient safety measures on the part of the respondents had granted reasonable foreseeability that the vandalism might occur; and so, awarded accordingly.

Having been heard in the First Division of the Inner House of the Court of Session, it was agreed by the appellants that the respondents had no knowledge of the first two fires, therefore the decision was reversed.

Presented to the House of Lords, the appellants continued to claim for damages, while the House took time to examine the nature of negligence and duty of care for strangers to property and ensuing criminal acts.

In Dorset Yacht Co Ltd v Home Office, it was remarked by Reid LJ that:

“[W]here human action forms one of the links between the original wrongdoing of the defendant and the loss suffered by the plaintiff, that action must at least have been something very likely to happen if it is not to be regarded as novus actus interveniens breaking the chain of causation. I do not think that a mere foreseeable possibility is or should be sufficient, for then the intervening human action can more properly be regarded as a new cause than as a consequence of the original wrongdoing.”

Dorset Yacht Co Ltd v Home Office

While in Bourhill v Young, it was argued by MacMillan LJ that:

“The duty to take care is the duty to avoid doing or omitting to do anything the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed.”

Bourhill v Young

However, it was well illustrated in academic text that:

“[T]he law might acknowledge a general principle that, whenever the harmful conduct of another is reasonably foreseeable, it is our duty to take precautions against it…but, up to now, no legal system has gone so far as this….”

This position was also supported by Sumner LJ in Weld-Blundell v Stephens, who explained that:

“In general…even though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do.”

Weld-Blundell v Stephens

By this it was construed by the House that unless there are exceptional circumstances where the property owner (who by virtue of his inaction) created a circumstance in which damage to another property fell under his remit, perhaps by some unique relationship, and that the foreseeability of such damage was little short of certain, there could be no justification for holding that owner to account;

And so, it was that for this reason, the appeal was uniformly dismissed, while the House reminded the parties that:

“[L]iability in negligence for harm caused by the deliberate wrongdoing of others cannot be founded simply upon foreseeability that the pursuer will suffer loss or damage by reason of such wrongdoing. There is no such general principle.”

HEDLEY BYRNE & CO. LTD v HELLER AND PARTNERS

Duty of care under accusations of negligence, particularly within the carelessness of speech, forms the basis of a claim between a corporate entity and a merchant bank.

On this occasion, the appellant advertising agency had taken steps to ascertain the financial credibility of a new client; which while careless in its execution, left them at a considerable loss when the information proved worthless.

In 1957, the appellants received instruction from a new client requiring a number of advertisements, which was later followed by a request for a structured advertising programme with estimated costs of around £100,000 p.a.

Given the short-term trading history between them, the appellants asked their bank to consult their client’s bank so as to establish their financial standing. 

The reference, which was by no means official, read that their client was ‘a respectably constituted company whose trading connection is expanding speedily’, and that ‘We consider the company to be quite good for its engagements’.

Upon this positive note, the appellants proceeded to organise scheduled television and newspaper slots at cost to themselves, on the strength of the bank’s statement.

Several months later, the appellants concerns for the financial integrity of their client grew to the point where a second reference was requested.

This time, an oral banker’s report was provided for by the respondents, that while detailed enough to warrant a sound response, was issued under the express notice that it was given with no responsibility for the outcome of the enquiry.

Within this report was knowledge that the client was a subsidiary of a parent corporation in the throes of liquidation, but the bank similarly emphasised that they had confidence in the director and his integrity as a businessman.

With written confirmation of the report sent by the bank to the appellants, the terms expressed were relied upon when in light of their client’s liquidation, the appellants suffered losses of around £17,000.

It was this somewhat unsurprising event that triggered a claim for damages, based upon negligence by the respondents when offering statements that were contributory to the appellant’s extension of credit.

In the first instance, the court awarded in favour of the respondents, and when taken to the Court of Appeal, the outcome remained unchanged on grounds that such principles were unreasonably applied to the unrehearsed statements of a banker, and not an official credit report.

Presented to the House of Lords, the principles of negligence peripheral to any contract were examined for exactness, whereupon the dicta of Sir Roundell Palmer in Peek v Gurney initially proposed that:

“[I]n order that a person may avail himself of relief founded on it he must show that there was such a proximate relation between himself and the person making the representation as to bring them virtually into the position of parties contracting with each other…”

Peek v Gurney

There was also mention of Candler v Crane, Christmas & Co; in which, a proposed corporate takeover involved the presentation of company accounts to the prospective buyers, accounts that by all intentions had been carelessly prepared; and on which, the investors had relied when purchasing the firm.

Likewise, in Robinson v National Bank of Scotland Ltd, a guarantor was left facing huge debts when it was argued he had been falsely induced into signing by the lenders, prior to the borrowers lapsing into bankruptcy.

In this matter, Haldane LJ commented:

“[W]hen a mere inquiry is made by one banker of another, who stands in no special relation to him, then, in the absence of special circumstances from which a contract to be careful can be inferred, I think there is no duty excepting the duty of common honesty…”

Robinson v National Bank of Scotland Ltd

While in Shiells v Blackburne, Loughborough LJ stressed that:

“[I]f a man gratuitously undertakes to do a thing to the best of his skill, where his situation or profession is such as to imply skill, an omission of that skill is imputable to him as gross negligence.”

Shiells v Blackburne

In Cann v Willson, the claimants sought the professional opinion of valuers when borrowing against the worth of their home; and having provided what was suggested as a moderate valuation, the claimant defaulted on the required payments, whereupon the sale of the property failed to cover the debt owed.

On this occasion, the court awarded in favour of the claimant on grounds of negligence, want of skill, breach of duty and misrepresentation.

In Nocton v Lord Ashburton, Shaw LJ propagated the principle that:

“[O]nce the relations of parties have been ascertained to be those in which a duty is laid upon one person of giving information or advice to another upon which that other is entitled to rely as the basis of a transaction, responsibility for error amounting to misrepresentation in any statement made will attach to the adviser or informer, although the information and advice have been given not fraudulently but in good faith.”

Nocton v Lord Ashburton

This translated to a recognition by the House that while there was no question that a duty of honesty was inherent to the words of the bankers, there was no evidence to suggest fraudulent or misrepresentative intention; particularly when at the time the advice or report was issued, the respondents had expressed their abject unwillingness to be held to account for the actions of the company discussed.

This left the appellants with no substance upon which to claim damages; and so, the appeal was uniformly dismissed, while the House reminded the parties that:

“[I]f someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise. The fact that the service is to be given by means of or by the instrumentality of words can make no difference.”

DONOGHUE v STEVENSON

In this case, the principle of negligence beyond the strictness of contractual duty becomes pivotal to a claim for damages, when a consumer becomes victim to sickness through the consumption of a contaminated beverage.

In 1928, two friends entered a café in central Scotland and proceeded to order some ice-cream and ginger beer.

Unknown to the appellant, one of the bottles provided contained the decomposed remains of a snail; which when poured onto the ice-cream, left the appellant in a state of shock and later subjected to gastro-enteritis, having partially drunk the ginger beer beforehand.

This resulted in litigation on grounds concerning the manufacturer’s inability to safely store the bottles prior to their filling, a lack of care when considering the potential for those drinks to be consumed by unwitting customers, failure to implement a suitable quality control/inspection system prior to distribution, and failure to use clear, as opposed to dark opaque bottles, to avoid such events.

Although the common law position was comparable between English and Scottish law, the claim was unique in that it circumvented the contractual obligations often found in negligence claims.

In the first instance, the court had allowed the claim, while the Second Divisional court dismissed it by a majority, before the appellant sought relief in the House of Lords.

Here, a number of recent cases were explored to ascertain the extent of liability in matters where there are no contractual obligations.

Erring on the side of restraint as to how far a claim such as this might extend, comments mades by Parke B in Longmeid v Holliday suggested that:

“It would be going much too far to say, that so much care is required in the ordinary intercourse of life between one individual and another, that, if a machine not in its nature dangerous, . . . . but which might become so by a latent defect entirely unknown, although discoverable by the exercise of ordinary care, should be lent or given by one person, even by the person who manufactured it, to another, the former should be answerable to the latter for a subsequent damage accruing by the use of it.”

Longmeid v Holliday

However, in George v Skivington the sale of harmful shampoo, which had been used not by the purchaser but a third party, had allowed claim for negligence caused upon a duty of care by the manufacturer when mixing the ingredients.

Likewise, in Francis v Cockerell, a racecourse spectator injured through the collapse of a viewing stand, was able to recover not from the builder himself, but the agent of the venue.

However, on this occasion the appellant relied upon the words of Lord Brett MR in Heaven v Pender, who clarified that:

“[W]henever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger…”

Heaven v Pender

Therefore, it was argued that regardless of contractual elements, there was by virtue of reasonableness and decency, an inherent encumbrance upon the respondent manufacturer to both evaluate and consider the position of the consumer when preparing and sealing his drinks; and that anything less than that consideration was tantamount to fundamental neglect and tortious liability.

Contrastingly, in Pender Esher LJ had also argued that:

“The question of liability for negligence cannot arise at all until it is established that the man who has been negligent owed some duty to the person who seeks to make him liable for his negligence. What duty is there when there is no relation between the parties by contract? A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them.”

George v Skivington

While in Bates v Batey & Co Ltd, the manufacturers of ginger beer were not deemed liable for an injury caused to an unsuspecting consumer from a defect unknown, and yet discoverable through reasonable investigation.

And so, having evaluated the reluctance of the courts to extend in some instances, while offering generous judgment in others, it was (albeit by a narrow margin) decided that despite no contractual duties to envisage the effects of a contaminated product upon an innocent purchaser, there was an almost ethical prerequisite to remain diligent in the preparation and storage of such substances.

Hence, despite the Second Division of the Court of Session in Scotland’s refusal to acknowledge the appellant’s rights, the House reversed the finding and restored the order of the first judge, while reminding the parties that:

“[T]he omission to exercise reasonable care in the discovery of a defect in the manufacture of an article where the duty of examination exists is just as negligent as the negligent construction itself.”

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