#15665 - Actionable Damage - Tort Law

3. ACTIONABLE DAMAGE

In terms of the interests that negligence protects, a hierarchy can be seen in the scope for recovery and how keen the Courts are to assist. Personal injury > property loss > pure economic loss.

Personal injury and property damage are always actionable and further personal injury / property damage / economic loss consequential on D’s breach are recoverable subject to remoteness rules. However, pure economic loss and psychiatric injury are subject to significant restrictions.

PHYSICAL INJURY

Only actual physical injury / illness is recoverable in negligence. An increased risk of suffering an illness in the future is not itself actionable damage; C will not have a claim unless and until the risk materialises and C contracts the illness.

• Rothwell v Chemical Insulating Co [2007]: Cs sued their employer who had negligently exposed them to asbestos. Cs had developed pleural plaques, which were evidence they were at risk of developing asbestos related diseases. HL: Cs could not recover for either the pleural plaques (no evidence they were harmful on their own) nor the risk of developing a disease in the future. Lord Rodger: “Neither the risk of developing those other diseases caused by asbestos fibres in the lungs nor anxiety about the possibility of that risk materialising could amount to damage for the purposes of creating a cause of action in tort.”

PSYCHIATRIC INJURY

Psychiatric injury consequential on physical injury: C can claim for it without recourse to the below rules (confirmed in Alcock) — no need to show a recognised physical illness, can claim for ‘pain and suffering’.

Psychiatric injury consequential on property damage: C can claim if she can show causation and reasonable foreseeability: Attia v British Gas [1987]: D (heating engineers) negligently installed a central heating system which burned down C’s house. CA: accepted C’s claim for nervous shock.

White v CC South Yorks [1999] Lord Steyn articulated the main reasons for limits on recovery for freestanding mental injury:

• The nature of the damage: It can be difficult to distinguish ‘acute grief’ from genuine ‘psychiatric illness’. Drawing the line would require expert evidence, adding to the time/cost of litigation if it was actionable in the same way as physical injury.

  • Criticism: expense of litigation isn’t a valid reason to deny recovery to deserving Cs. It will often be clear that C is suffering from a recognised illness (e.g. PTSD) particularly with modern improvements in the treatment / diagnosis of the mentally ill.

• Allowing recovery can be “an unconscious disincentive to rehabilitation.”

  • Criticism: this doesn’t seem to be based on evidence.

• Allowing recovery would ‘open floodgates’. Two limbs:

  • Indeterminable number of Cs: if there is a bus crash how do you determine number of Cs? Those involved? Watches by roadside? Watches on TV? Related concern is recovery will impose a disproportionate burden on D compared to the magnitude of his negligence.

  • Indeterminable extent of injury: While physical injury has a clear, tangible impact, psychiatric injury is to some extent immeasurable. It has no natural limit.

1. C’s condition must be a recognised medical condition

As Lord Oliver noted in Alcock v CC South Yorks [1992]: grief, sorrow, and anxiety alone are ‘a necessary part of life’ which must be accepted and are not recoverable as psychiatric harm. Recognised types of psychiatric harm include PTSD and depression. Once it is established that C is suffering from a recognised psychiatric condition, the rules on recovery turn on whether C is a primary or secondary victim — distinction drawn in Alcock, and Page.

2. Primary victims

General rule: Where C is in the physical sphere of harm / directly involved and it is foreseeable that he will suffer a physical injury, he can claim if the injury that in fact results is psychiatric.

• Page v Smith [1996]: C suffered permeant exhaustion as the result of a car crash caused by D’s negligence. Lord Lloyd: the question is “whether the foreseeable injury is physical…Once it is established that D is under a duty of care to avoid causing personal injury to C, it matters not whether the injury in fact sustained is physical, psychiatric or both.”

  • Floodgates concern does not apply in primary victim cases. It’s limited by foreseeability of physical injury.

  • D must take C as he finds him: will not escape liability just because C is more prone to psychiatric injury than an ordinary person of reasonable fortitude.

Rescuers are only ‘primary’ victims where they are within the range of foreseeable physical injury / objectively exposed themselves to danger.

• White v CC South Yorks [1999]: Could police officers who attended the Hillsborough Stadium disaster claim against their employer for psychiatric damage? HL: they could only claim under the normal Alcock / Page rule: i.e. if the employer had breached his duty of care in protecting employees from physical harm. Here that was not satisfied.

  • Hoffmann: rescuers should not be ““given special treatment as primary victims when they were not within the range of foreseeable physical injury and their psychiatric injury was caused by witnessing or participating in the aftermath.” This is because:

    • Definitional problems: if rescuers fell into their own category, it would present serious problems in terms of defining ‘rescuer’.

    • Distributive justice: “unacceptable to the ordinary person” for rescuers to be able to recover for psychiatric injury automatically because it would be “unfair between one class of Cs and another.” I.e. the relatives of Hillsborough families were subject to restrictive rules in Alcock, so police had to be treated the same way.

  • Steyn: “to contain the concept of rescuer in reasonable bounds for the purposes of… compensation for pure psychiatric harm, C must at least satisfy the threshold requirement that he objectively exposed himself to danger or reasonably believed that he was doing so.”

• McFarlane v EE Caledonia [1994] C was on a support vessel near an oil rig which exploded. C witnessed the destruction of the rig and the death of 164 people, although the closest he came was 100m. Stuart-Smith LJ: C could claim as a primary victim. This category extends to “C who is not actually in danger, but because of the sudden and unexpected nature of the event … reasonably thinks that he is.” However, the key test is whether D ought reasonably to have foreseen that such a person in the position of C might be killed / physically injured.

Page applied narrowly in Rothwell: Seems the psychiatric illness be caused directly from the exposure to a sudden risk of physical injury, not the later apprehension that harm may occur:

• Rothwell [2007]: C sued for depression / psychiatric illness caused by his fear of developing an asbestos related disease since the pleural plaques meant he was at a higher risk. HL (Lord Hoffmann): Page did not apply to allow C to recover as a primary victim —his injury was caused by worry about what might occur: “it would be an unwarranted extension of the principle in Page v Smith to apply it to psychiatric illness caused by apprehension of the possibility of an unfavourable event which had not actually happened”.

  • Criticism: not clear why C could not recover. In both Page and Rothwell it was foreseeable C would come to physical harm, but C instead suffered psychiatric illness. Seems in Page the psychiatric injury flowed from C being in a position of real physical danger at the time of breach, but in Rothwell, C’s psychiatric injury was caused by the later realisation he was at risk —he was never in ‘danger’ in the sense of fearing for his immediate safety (as in Page).

Involuntary participants in D’s harm to another? In Alcock Lord Oliver suggested C may be a primary victim where D’s conduct causes C to be an involuntary participant in an incident causing physical harm to another and C suffers psychiatric injury as a result. This was developed (although not conclusively, concerned pre-trial hearings on legitimacy of the claim) in:

• W v Essex [2001]: Cs were foster parents. D Council assured Cs that no child would be placed with them who was a known sex abuser. D placed a boy who was a known sex abuser and D abused C’s children. C suffered psychiatric damage from the associated guilt. Lord Slynn: suggests “the law regarding psychiatric injury is still developing and the categories of primary victim is not closed.” It is arguable that Cs may be primary victims based on being an unwitting participation in bringing the abuser into their home.

• Reassessing ‘immediate aftermath’: “the concept of "the immediate aftermath" of the incident has to be assessed in the particular factual situation.” Here, he did not think it necessary that “the parents must come across the abuser or the abused "immediately" after the sexual incident has terminated.”

Hunter can be contrasted to W v Essex —both the parents and C here were ‘unwitting agents of misfortune’ but C here could not claim, whereas the parents in Essex potentially could.

• Hunter v British Coal Corporation [1998] C accidently struck a water hydrant at his place of work (a coal mine), causing a water leak. He left the scene in order to deal with the leak, but while he was away he heard the hydrant burst and was told that it looked like a colleague had died. He suffered a psychiatric illness as a result. CA: C was not entitled to damages as he was not a primary victim, he only reacted to what he had been told.

3. Secondary Victims

A secondary victim is...