A Comparative Analysis of Secondary Nervous Shock within Tort law

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A Comparative Analysis of Secondary Nervous Shock within Tort law
Image: ‘Anxiety’ by Mary Woronov

Comparative Analysis of Secondary Nervous Shock within Tort Law

Topp v London Country Bus (South West) Ltd

English Tort Law

Topp v London Country Bus (South West) Ltd
‘London Transport Rt’ by Mike Jeffries

Proximity and lack of foreseeability, prevent this tragic claim for damages when a grieving husband argues that the owners of a minibus are liable for the death of his wife.

In 1988, a minibus owned and driven by bus company staff, was left parked and unlocked with the keys in the ignition, in the lay by of a nearby public house. It was considered normal practice for the drivers of these vehicles to leave them there in that state, as literally minutes later, it would typically be collected and driven by a replacement driver.

On this occasion, the replacement driver failed to turn up for work due to illness, which left the bus unlocked and clearly vulnerable to theft. During the time between the driver leaving the minibus and the accident taking place, the original driver had noticed it had not been taken as expected, and promptly notified his employers. At 11.15pm that evening, an unknown person took the minibus, and shortly afterwards ran down and killed the appellant’s wife as she was out cycling. This led to action being taken against the bus company, on grounds of breach of duty of care, negligence and foreseeability.

In the first instance, the court dismissed the claim, whereupon the appellant claimed the judge erred in law on three grounds, namely (i) judging the claim unreasonable, (ii) holding that the facts fell outside the scope of award for duty of care, and (iii) not finding the respondents liable for the victim’s death.

In Smith v Littlewoods Organisation Ltd, it was cited by Goff LJ that:

“[E]ven though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do . . . [that] may be read as expressing the general idea that the voluntary act of another, independent of the defender’s fault, is regarded as a novus actus interveniens which, to use the old metaphor, ‘breaks the chain of causation.’”

While in Denton v United Counties Omnibus Co, the court agreed that although an omnibus belonging to the defendants was stolen from an unsecured storage yard before bring driven into the claimant’s car, there was insufficient proximity between the owners, and the party liable for the accident to warrant any duty of care.

This translated that the thief and alleged joy-rider, was clearly in no position to consider the danger his actions posed, and irrespective of whether his identity could be established, and unfortunate as it was to have had his wife killed for no reason, a claim of negligence could not reasonably stand, on grounds of proximity and lack of foreseeability, thus the Court dismissed the appeal while holding that:

“[T]here was in the circumstances of this case a relationship of proximity between the defendants and Mrs. Topp. But I entirely agree with the judge that no duty of care is shown either in principle or having regard to the authority of this court…”

Lister v Hesley Hall Ltd

English Tort Law

Lister v Hesley Hall Ltd
Image: ‘Boarding House’ by Debbie Criswell

To read about this case in greater depth, and with the benefit of full OSCOLA referencing, simply purchase a copy of ‘The Case Law Compendium: English & European Law’ from leading booksellers around the world.

Where can I buy it?

The book is available now through most Amazon sites thanks to the brilliance of Print on Demand (POD) technology and it is also printed through Ingram Spark (aka Lightning Source), who, through their worldwide  partnership agreements, supply ‘The Case Law Compendium’ to almost 40,000 retailers, libraries, schools and universities while providing worldwide shipping as standard.

America

Amazon.com, Barnes & Noble

Australia & New Zealand

Booktopia

Britain

 Amazon,   BlackwellWaterstones

Canada

AmazonChapters Indigo

France

Amazon

Germany

Amazon

India

Amazon

Italy

Amazon

Japan

Amazon

Latin America

Amazon Brazil

Amazon Mexico

Spain

Amazon

I cannot emphasise enough just how invaluable this book will become to you as your law course progresses, and you’ll be surprised at just how fast you learn the cases and how your confidence grows when discussing their finer points. I am supremely confident that you will also find yourself returning to the book when studying both for insight and refreshment of knowledge, and I quietly hope you will be equally excited whenever you turn to this unprecedented resource.

Please remember that it was you the worldwide readers, that inspired this book, so you owe it to yourselves to buy it (and use the hell out of it) and to tell your peers and friends everywhere, so that they too can work towards becoming an ‘A‘ student in English law.

– Remember that with ‘The Case Law Compendium’ you can do it.

Electronic Signatures Neil

Proximity

Insight | February 2017

Proximity
Image: ‘Two Houses’ by Beata Dagiel

When we discuss proximity in law, there is frequently divided opinion as to (i) just what is meant, and (ii) in what context such a term can be properly applied. By definition, tort cases almost always rely upon proximity when establishing the claimant-defendant relationship, the relative distance between the two parties, and finally any subsequent obligatory considerations shared. Though for the sake of clarity, let us begin first with the Oxford Dictionary definition of proximity:

Noun [mass noun] nearness in space, time or relationship

Origin: Late 15th century from the French ‘proximité and Latin proximatas, proximus (meaning nearest).

While this explanation appears relatively straightforward, the complexities of human interaction often magnify the context of its use, insomuch as subjective opinion will almost always complicate matters, and leave final judgments in degrees of contention. This is largely due to a collective inability to agree precisely where proximity fits, and how it connects with other strands of legal principle.

Early illustrative proof of the need for exactness would undoubtedly be the speech given by Lord Pearce in Hedley Byrne Co Ltd v Heller and Partners which reads:

“[P]roximity will not be established unless at least the following conditions are satisfied….the plaintiff must be (i) the person directly intended by the maker of the statement to act upon the statement (ii) in a specific transaction of which the maker knows and (iii) for the purpose for which the statement is made. Exceptionally conditions (i) and (iii) may be relaxed provided the plaintiff is a person of whose actual existence (if not name) the maker knows, to whom he knows the statement will be communicated, and who it is likely with a high degree of certainty will act upon the statement in a specific transaction of which the maker knows.”

Or the even earlier words of Lord Atkin’s ‘neighbour’ speech in Donoghue v Stevenson:

“[S]uch close and direct relations that that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act.”

Or, an even simpler definition would be that:

“The claimant must be in an established relationship with the defendant and able to prove that any existing duty of care applied to them, whether through action, inaction or words”

Whichever phrase suits best, the typical contexts for proximity can range from customer and seller, through to diner and chef. In fact, the list of possible scenarios could quickly prove lengthy, yet despite changes in issue, the essence of proximity remains undiluted.

However, the general context of proximity deviated when through the course of accident and tragedy, the witnesses to those sudden and unforeseen events began to claim that the distress and trauma of such emotionally crippling scenes commanded financial assistance from the courts through damages. In those instances, the fluid definition of proximity was echoed  by Lord Wilberforce in McLoughlin v O’Brian, who said:

“Where the relationship between the person killed or physically injured and the person who suffers nervous shock is close and intimate, not only is there the requisite proximity in that respect, but it is readily defensible on grounds of policy to allow recovery.”

Taken further still, the emergence of ‘secondary’ nervous shock forced the principle of proximity into new territory, this time allowing those indirectly receiving terrible news to seek a claim for award under the umbrella of proximation, albeit subject to specific criteria, as defined by Lord  Oliver in Alcock v Chief Constable of South Yorkshire Police, who remarked:

“What remains in issue is whether the defendant owed any duty in tort to the plaintiffs to avoid causing the type of injury which each plaintiff complains. In essence this involves answering the twin questions of (a) whether injury of this sort to each particular plaintiff was a foreseeable consequence of the acts or omissions constituting the breach of duty to the primary victim and (b) whether there existed between the defendant and each plaintiff that degree of directness or proximity necessary to establish liability.”

Here, we see a variance in application of the principle of proximity, and one that demonstrated a generosity of scope over that regulated within everyday examples of arms-length dealings. Whether this broadening stemmed from the degree of harm, or was simply the choice of the courts to extend empathy toward genuine loss, is not easily traceable, but there are now notable differences.

Contrastingly, in the United States, the ‘dangerous proximity test’ is one used to determine criminal liability at federal and state levels. The two key principles being (i) that the defendant was dangerously close to completing the crime, or (ii) so close as to a result that the danger was great. The test itself, was first laid down in 1901, and later adopted by a Judge Learned Hand and read:

“(P)reparation is not an attempt. But some preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to compete it renders the crime so probable that the act will be a misdemeanour, although there is still a locus poenitentiae, in the need of a further exertion of the will to complete the crime.”

While under the Turkish laws of contract, the ‘principle of proximity’ comes into effect where non-specification of parties applicable laws during cross-border transactions leaves the courts with the option to default to the nearest jurisdiction, with the effect of establishing implied and express contractual terms, as was explained by Dr. Gülin Güngor in 2008.

So again and as before, proximity is regularly used to help establish liability, reduce conflict and this time bring levity to matters that might otherwise become bogged down in their own rhetoric. With diverse applications of this flexible principle proving it an inarguable necessity, it concludes that the footnote of this article is really one that suggests proximity is far from a fair weather friend to law and jurisprudence; and that perhaps it deserves to play a greater role in resolving more disputes than is currently afforded access to?

Taylor and another v A Novo (UK) Ltd

English Tort Law

Taylor and another v A Novo (UK) Ltd
Image: ‘Grasp’ by Lucy O’Donovan

To read about this case in greater depth, and with the benefit of full OSCOLA referencing, simply purchase a copy of ‘The Case Law Compendium: English & European Law’ from leading booksellers around the world.

Where can I buy it?

The book is available now through most Amazon sites thanks to the brilliance of Print on Demand (POD) technology and it is also printed through Ingram Spark (aka Lightning Source), who, through their worldwide  partnership agreements, supply ‘The Case Law Compendium’ to almost 40,000 retailers, libraries, schools and universities while providing worldwide shipping as standard.

America Amazon.com, Barnes & Noble

Australia & New Zealand Booktopia

Britain  Amazon,   BlackwellWaterstones

Canada AmazonChapters Indigo

France Amazon

Germany Amazon

India Amazon

Italy Amazon

Japan Amazon

Latin America Amazon Brazil Amazon Mexico

Spain Amazon

I cannot emphasise enough just how invaluable this book will become to you as your law course progresses, and you’ll be surprised at just how fast you learn the cases and how your confidence grows when discussing their finer points. I am supremely confident that you will also find yourself returning to the book when studying both for insight and refreshment of knowledge, and I quietly hope you will be equally excited whenever you turn to this unprecedented resource.

Please remember that it was you the worldwide readers, that inspired this book, so you owe it to yourselves to buy it (and use the hell out of it) and to tell your peers and friends everywhere, so that they too can work towards becoming an ‘A‘ student in English law.

– Remember that with ‘The Case Law Compendium’ you can do it.

Electronic Signatures Neil

McLoughlin v O’ Brian

English Tort Law

Mcloughlin v O'Brian
Image: ‘Collage Car Crash’ by Patrick O’Brian

Note: To read about this case in greater depth, and with the benefit of full OSCOLA referencing, simply purchase a copy of ‘The Case Law Compendium: English & European Law’ at Amazon, Waterstones or Barnes & Noble (or go here for a full list of international outlets)


As with Topp v London County Bus (South West) Ltdthe principle of proximity proves the distinguishing criteria, however this earlier case pushed further the scope of award for damages, with an emerging appreciation for psychiatric nervous shock or trauma.

When the husband and father of four young children is involved in a collision with a commercial articulated vehicle (that had itself just collided with another articulated vehicle), the resulting injuries leave the youngest of the girls dead within minutes, and the father seriously injured, while lapsing in and out of consciousness. After being notified of the crash almost two hours later, his wife (and mother to the children) is escorted to the nearest hospital, where she is confronted with the aftermath of the accident, and left in a state of deep shock and profound distress; the effects of which were to be felt for many months afterwards.

Having chosen to pursue a tortious claim through the owners of the commercial vehicles, the original judges found that proximity and foreseeability precluded eligibility for damages, and so while admission of the daughter’s manslaughter provided financial remedy, the anguish and emotional turmoil of the mother did not.

However, upon appeal, the scope of award for incidents such as this was, for the first time, given consideration enough to result in a new precedent in English tort law, and significant allowances for the impact of psychological trauma upon secondary victims previously considered too remote for inclusion.

Hedley Byrne & Co Ltd v Heller and Partners

English Tort Law

Hedley Byrne & Co Ltd v Heller and Partners
‘Bankruptcy’ by Vladimir Makovsky

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…”

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. While 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…”

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.”

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.”

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 held 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.”