Understanding the Standard of Care in Law: Duty, Breach, and the Reasonable Person Test
Standard of care
It is an appropriate level of care which a person is reasonably expected to reach the bench mark which is determined on the basis of the standard of a reasonable person. This means 'how a reasonable person would act in the normal circumstances, if he owed a duty of care, so as to avoid causing damage to other, whether he was successful or not'. General standard of care is as follows:
For a defendant to be deemed negligent, he must have breached his duty of care towards the plaintiff. In order to be deemed as breaching the duty of care, his actions must be proven to fall below the standard of care likely to be taken by the reasonable man. Establishing a breach of duty and ascertaining the standard of care is complex and before establishing that the duty of care has been breached the plaintiff must first prove that the defendant owed him a duty of care.The standard of care is defined as the measures that a reasonable person (in the circumstances of the defendant) takes to reduce the risk of harm. This is an objective standard where the 'reasonable person' test is applied to determine if the defendant has breached their duty of care. In other words, it is the response of a reasonable person to a foreseeable risk. The standard of care naturally varies over time, and is affected by circumstantial factors. Thus, when a standard of care is established in one case, it will not automatically become a precedent for another - each case is judged on its own facts.
In the usual case, having established that there is a duty of care, the claimant must prove that the defendant failed to do what the reasonable person ("reasonable professional", "reasonable child") would have done in the same situation. If the defendant fails to come up to the standard, this will be a breach of the duty of care. This is judged by reference to the following factors:What did the defendant know? According to Denning LJ in Roe v Minister of Health (1954) 2 AER 131, the defendant will only be liable if the reasonable person would have foreseen the loss or damage in the circumstances prevailing at the time of the alleged breach of duty.What was the degree of risk? The greater the risk that serious harm can be inflicted, the greater the precautions that the defendant will be required to take. In Bolton v Stone [1951] AC 850, [1951] 1 All ER 1078, a cricket club was not negligent when a ball was hit out of the ground and injured the plaintiff, because the likelihood of this occurring was so small that the defendant could not be expected to have taken precautions. In Miller v Jackson ([1977] QB 966, [1977] 3 WLR 20, [1977] 3 All ER 338 however, the ball was hit out of the ground several times every season. In these circumstances, the club was expected to take precautions.How practical were these precautions? In Wilson v Governor of Sacred Heart Roman Catholic Primary School (1997) EWCA Civ 2644 it was held that a primary school was not negligent in not employing someone to supervise the playground after the close of school hours and until all the children had left. In Haley v London Electricity Board [1964] 3 All ER 185, a blind man fell into a hole in the ground that was indicated by a visual sign. He became deaf as a result. It was held that it was foreseeable that a blind man would be walking on the street and the risk of him injuring himself justified the precautions of putting up a barrier. The test is a balance of reasonableness of precautions against the likelihood of injury being sustained.What is the social importance of the defendant's activity? If the defendant's actions serve a socially useful purpose, then they may have been justified in taking greater risks. Thus, in Watt v Hertfordshire CC (1954) 2 AER 368, the fire brigade was not negligent in getting the wrong vehicle to the scene of an accident because valuable time would have been lost in getting the best vehicle there to help. Since 26 July 2006, this consideration has had a statutory basis under section 1 of the Compensation Act 2006.Common practice. A defendant complying with a common practice in his area of activity will usually be considered to have met the standard of a reasonable man, unless the court judges the practice itself to be negligent. In Paris v Stepney Borough Council (1951) 1 AER 42 although there was a practice of not providing employees with safety goggles, the Council owed a special duty to protect the claimant because he had already lost the sight of one eye. The Bolam principle
The Bolam test was established in 1957 following the decision of the court in Bolam v Frierm Barnet HMC in which the court concluded that a doctor might be able to avoid a claim for negligence if he can prove that other medical professionals would have acted in the same way. In this case the plaintiff had been a voluntary patient at mental health institution that was run by the defendant. Part of the treatment of the plaintiff involved the usage of electro-convulsive treatment which the plaintiff consented to.
It was the contention of the plaintiff that the hospital had been negligent in not giving him any relaxant drugs or restraining him during the treatment. He alleged that if the hospital had done this he would not have been injured by flailing around and that due to their negligence he ought to be entitled to compensation. The plaintiff also claimed negligence on the grounds that the doctors had failed to warn him of the possible risks involved.In reaching his decision McNair J accepted the evidence from the expert witnesses that the general consensus of the medical profession was against the use of relaxant drugs and that using restraints could increase the risk of fractures rather than prevent them. The judge also noted that it was common practice not to warn patients of such risks unless the risks were high or the patients specifically asked about the risks involved. The conclusion reached was that the hospital could only be regarded as negligent if the doctor failed to carry out the procedure in variance to how another medical professional would have done.In the case of Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital Lord Diplock, Lord Templeman and Lord Scarman all affirmed the application of the Bolam principle. Lord Diplock commented that the doctor was right to refuse to warn the patient of the possible complications. In his summing up he stated"The only effect that mention of risks can have on the patient's mind, if it has any at all, can be in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor it is in the patient's interest to undergo. To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor's comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way. The Bolam test should be applied."Chatterton v Gerson. The claimant suffered from severe pain due to a post-surgical scar. She was referred to the defendant, a doctor who specialised in pain treatment. The defendant told the claimant that he advised surgery which would block the sensory nerves around the scar. He also told her that there was a risk this would cause numbness and temporary muscle weakness.The claimant agreed to undergo the surgery. It only gave her temporary relief, and caused some numbness in her right leg. For this reason, the claimant underwent the surgery a second time. On the second occasion, the defendant failed to warn the claimant that she might experience numbness or muscle weakness. The second surgery caused the claimant to completely lose the sensation in her right leg and made her pain even worse. The claimant sued the defendant for negligence The High Court held in favour of the defendant. The claimant gave valid consent to the surgery, so there was no battery. The doctor had fulfilled his duty of care in negligence. This case is no longer good authority for the standard of care owed by doctors who have a duty to warn. This is a result of the decision in Montgomery v Lanarkshire Health Board [2015] UKSC 11. The decision whether to disclose medical risk to patients is not within the scope of the Bolam principle, which states that only where the risk was such that no responsible body of medical opinion would have supported the withholding of advice that failure to offer it would be negligent.Instead, doctors are under a general duty to disclose all risks that a reasonable person or a reasonable doctor would think that a patient would consider to be significant.
A relationship of proximity in Lord Atkin's sense must exist before any duty of care can arise, but the scope of the duty must depend on all the circumstances of the case. Proximity refers to how close you are between events or people that can impact legal responsibility. Proximity is the relationship between you and me to find out whether a duty of care exists. If In case we are in close proximity, I may owe a duty of care to you. Once this proximity exists then, I have to take reasonable care to foresee that I do not cause loss or harm to you. Once foreseeability and proximity are made out, a prima facie duty of care is established and failure to take care of this duty is known as breach of duty.Proximity means the nearest cause which is responsible for the injury i.e. It involves the notion of nearness or closeness, a nexus or relationship. In other words, it means that if the person who has suffered an injury is directly or rather proximately suffered the loss. Bourhill v Young. Mr Young had been negligently riding his motorcycle and was responsible for a collision with car in which he himself suffered fatal injuries. At the time of the crash, Mrs Bourhill (C) was in the process of leaving a tram about 50 feet away. C heard the crash and, after Mr Young's body had been removed from the scene, she approached and witnessed the immediate aftermath. C was 8 months pregnant at the time of the incident and later gave birth to a stillborn child. C subsequently brought an action against Mr Young's estate, claiming she had suffered nervous shock, stress and sustained loss due to the negligence of D.The principal issue on appeal to the House of Lords was whether D owed a duty of care to C. In order for such a duty to be found it had to be said that that C was both sufficiently proximate to the incident itself and, if so, that D ought reasonably to have foreseen that, in driving negligently, he might cause psychiatric damage to a person hearing the crash from C's position.Held, D was not liable for any psychiatric harm that C might have suffered as a result of the accident. It was not foreseeable that C would suffer psychiatric harm as a result of D negligently causing a loud traffic accident, nor was C sufficiently proximate to the scene of the crash itself. D, therefore, could owe no duty of care to C.
Hillsborough disaster
Incident in which a crush of football (soccer) fans ultimately resulted in 97 deaths and hundreds of injuries. The crushing occurred during a match at Hillsborough Stadium in Sheffield, England, on April 15, 1989. The disaster was largely attributed to mistakes made by the police.An FA Cup semifinal match was scheduled between Liverpool and Nottingham Forest on April 15, 1989, at Hillsborough, a neutral venue. The sold-out game was expected to draw more than 53,000 fans. To prevent hooliganism, fans for the two teams were directed to enter from different sides of the stadium. Liverpool supporters with tickets for the standing terraces were to enter along Leppings Lane. There they were to pass though one of seven turnstiles, after which there were two tunnels that opened into "pens," areas enclosed by high fences with a narrow gate. Central pens 3 and 4 were accessed from the main tunnel, while the side pens were entered through the less prominent corridor.Due to the limited number of turnstiles, a bottleneck formed as approximately 10,100 fans attempted to enter the stadium on the Leppings Lane side. By about 2:30 pm, some 30 minutes before kickoff, more than half of those fans were still outside. Hoping to ease congestion, Yorkshire Police Chief Superintendent David Duckenfield, who had little experience policing soccer matches at Hillsborough, approved the opening of exit gate C at approximately 2:52 pm. Some 2,000 fans entered through that gate, and, although the side pens were relatively empty, the majority headed to the main tunnel and the already crowded pens 3 and 4. As fans rushed into those pens, a deadly crush resulted, with people frantically trying to escape.
A number of law officials initially believed the problem to be unruly fans, and it was not until five minutes after kickoff that the match was halted. However, police never "fully activated the major incident procedure." Poor communications and coordination further complicated rescue efforts, and in numerous cases fans provided assistance and medical attention. In total 97 people were killed; one of the victims died in 1993 when he was taken off life support, and another with brain damage passed away in 2021. In addition, more than 760 were injured.A large number of suits were filled. The claims were brought against the Chief Constable of South Yorkshire Police, who was responsible for the policing and safety arrangements at the stadium. The claimants were relatives and friends of the victims who either witnessed the disaster live or saw it unfold on television. They included parents, siblings, spouses, and other close relatives who suffered psychiatric injury as a result of either witnessing the event or learning about it shortly afterward. The claimants sought compensation for psychiatric injuries (nervous shock) suffered due to the traumatic events at Hillsborough. The House of Lords emphasized the need to limit liability to prevent an indeterminate number of claims and to ensure that only those who were directly and severely affected could claim compensation. The claimant must be present at the scene of the accident or its immediate aftermath. This requires spatial and temporal proximity to the incident. The claimant must directly perceive the event or its immediate aftermath with their own unaided senses. Dulieu v White and Sons.
The plaintiff, in the present case, was standing behind the bar of a public house at the Bonner Arms in Bethnal Green from the roadway. She was pregnant at the time when the incident happened. Then the defendant's servant negligently drove horse-drawn carriage into the building of the public house. The horse-drawn carriage did not hit the plaintiff because the defendant stopped it just before the carriage was about to hit her. As consequents to such incident, the plaintiff suffered from a shock and gave birth after nine days of the incident prematurely to a baby who was said to be an idiot by the plaintiff.
The plaintiff then claimed damages for the tort of negligence against White and sons. The plaintiff further sought damages for the shock which was caused to her by the incident. The defendants contended that the tort of negligence requires physical injury which was, in the present case, too remote. The defendants further claimed that the psychiatric harm suffered by the plaintiff, due to the fear of getting hit, was not foreseeable and thus, they are not liable to pay any damages to her.
It is an appropriate level of care which a person is reasonably expected to reach the bench mark which is determined on the basis of the standard of a reasonable person. This means 'how a reasonable person would act in the normal circumstances, if he owed a duty of care, so as to avoid causing damage to other, whether he was successful or not'. General standard of care is as follows:
For a defendant to be deemed negligent, he must have breached his duty of care towards the plaintiff. In order to be deemed as breaching the duty of care, his actions must be proven to fall below the standard of care likely to be taken by the reasonable man. Establishing a breach of duty and ascertaining the standard of care is complex and before establishing that the duty of care has been breached the plaintiff must first prove that the defendant owed him a duty of care.The standard of care is defined as the measures that a reasonable person (in the circumstances of the defendant) takes to reduce the risk of harm. This is an objective standard where the 'reasonable person' test is applied to determine if the defendant has breached their duty of care. In other words, it is the response of a reasonable person to a foreseeable risk. The standard of care naturally varies over time, and is affected by circumstantial factors. Thus, when a standard of care is established in one case, it will not automatically become a precedent for another - each case is judged on its own facts.
- Special standards
- The standard of "the man on the Clapham omnibus" is not applied in all cases, since this might lead to unfairness. There are defendants for whom this standard is much too low and would exonerate an obvious wrongdoing. In other cases, the standard may be seen as too demanding of the defendant in the circumstances. The most common examples are the cases of specialist defendants, inexperienced defendants, and child defendants.
- Adjustment of Reasonable person standard
- Skilled defendants (specialists)
- The test of an ordinary average person would not be appropriate for defendants that profess or hold themselves out as professing a certain skill. The "man on the Clapham omnibus" does not have that skill, and the conduct expected from a skilled professional is not the same as could be expected of an ordinary man in the same circumstances. The general standard applied to professionals is therefore that of a "reasonable professional", e.g. car mechanic, doctor etc.
- Breach of the duty owed, Sabol v. Richmond Heights General Hospital (1996)
- The court stated that the nurses' actions were consistent with basic professional standards of practice for medical-surgical nurses in an acute care hospital. They did not have nor were they expected to have specialized psychiatric nursing training and would not be judged as though they did.
- Novices
- Novices in a certain area of skill must show the same standard of care as a reasonable person with that particular skill. No allowance is given for the defendant's lack of experience.
- Wilsher v Essex Area Health Authority (1986) 3 All ER 801
- Expects a junior doctor to perform compliant to the standard of a competent and skilled doctor working in the same post.
- Wells v Cooper (1958) 2 All ER 527
- States that someone who does DIY jobs repairing their own house is expected to show the same standard of care as a reasonably skilled amateur in the particular trade involved. However, they are not required to reach the standard of a professional.
- It is important to note that
- The claimant's knowledge of the defendant's lack of experience in the skill he is exercising does not result in the standard being lowered. In Nettleship v Weston, a driving instructor was injured due to a mistake of his student. The student argued that the instructor was aware of her lack of experience, but the Court of Appeal refused to accommodate this fact in their decision on the standard of care expected from her. At the same time, the teacher's award of damages was reduced due to his contributory negligence.
- Skilled defendants (specialists)
- Children
- While no allowance is made for novices, the courts are prepared to lower the standard of care expected of children, on account of their age. A child defendant is expected to meet the standard of a reasonable child of the same age.
- Gough v Thorne (1966) 3 All ER 398:
- A 13½ year old girl was not contributorily negligent when she crossed the road without looking after being beckoned by a lorry driver and was hit by a car driving at excessive speed.
- In the case of children
- The reasonable person standard is adjusted to that of the age of the child in question.
- Mullin v Richards
- A 15-year-old girl engaged in play-fighting with rulers with another 15-year-old girl. During the game one of the girl's ruler snapped, causing a splinter to hit the other girl in the eye which resulted in blindness. The injured girl alleged negligence of the other girl for her injuries.
In the usual case, having established that there is a duty of care, the claimant must prove that the defendant failed to do what the reasonable person ("reasonable professional", "reasonable child") would have done in the same situation. If the defendant fails to come up to the standard, this will be a breach of the duty of care. This is judged by reference to the following factors:What did the defendant know? According to Denning LJ in Roe v Minister of Health (1954) 2 AER 131, the defendant will only be liable if the reasonable person would have foreseen the loss or damage in the circumstances prevailing at the time of the alleged breach of duty.What was the degree of risk? The greater the risk that serious harm can be inflicted, the greater the precautions that the defendant will be required to take. In Bolton v Stone [1951] AC 850, [1951] 1 All ER 1078, a cricket club was not negligent when a ball was hit out of the ground and injured the plaintiff, because the likelihood of this occurring was so small that the defendant could not be expected to have taken precautions. In Miller v Jackson ([1977] QB 966, [1977] 3 WLR 20, [1977] 3 All ER 338 however, the ball was hit out of the ground several times every season. In these circumstances, the club was expected to take precautions.How practical were these precautions? In Wilson v Governor of Sacred Heart Roman Catholic Primary School (1997) EWCA Civ 2644 it was held that a primary school was not negligent in not employing someone to supervise the playground after the close of school hours and until all the children had left. In Haley v London Electricity Board [1964] 3 All ER 185, a blind man fell into a hole in the ground that was indicated by a visual sign. He became deaf as a result. It was held that it was foreseeable that a blind man would be walking on the street and the risk of him injuring himself justified the precautions of putting up a barrier. The test is a balance of reasonableness of precautions against the likelihood of injury being sustained.What is the social importance of the defendant's activity? If the defendant's actions serve a socially useful purpose, then they may have been justified in taking greater risks. Thus, in Watt v Hertfordshire CC (1954) 2 AER 368, the fire brigade was not negligent in getting the wrong vehicle to the scene of an accident because valuable time would have been lost in getting the best vehicle there to help. Since 26 July 2006, this consideration has had a statutory basis under section 1 of the Compensation Act 2006.Common practice. A defendant complying with a common practice in his area of activity will usually be considered to have met the standard of a reasonable man, unless the court judges the practice itself to be negligent. In Paris v Stepney Borough Council (1951) 1 AER 42 although there was a practice of not providing employees with safety goggles, the Council owed a special duty to protect the claimant because he had already lost the sight of one eye. The Bolam principle
The Bolam test was established in 1957 following the decision of the court in Bolam v Frierm Barnet HMC in which the court concluded that a doctor might be able to avoid a claim for negligence if he can prove that other medical professionals would have acted in the same way. In this case the plaintiff had been a voluntary patient at mental health institution that was run by the defendant. Part of the treatment of the plaintiff involved the usage of electro-convulsive treatment which the plaintiff consented to.
It was the contention of the plaintiff that the hospital had been negligent in not giving him any relaxant drugs or restraining him during the treatment. He alleged that if the hospital had done this he would not have been injured by flailing around and that due to their negligence he ought to be entitled to compensation. The plaintiff also claimed negligence on the grounds that the doctors had failed to warn him of the possible risks involved.In reaching his decision McNair J accepted the evidence from the expert witnesses that the general consensus of the medical profession was against the use of relaxant drugs and that using restraints could increase the risk of fractures rather than prevent them. The judge also noted that it was common practice not to warn patients of such risks unless the risks were high or the patients specifically asked about the risks involved. The conclusion reached was that the hospital could only be regarded as negligent if the doctor failed to carry out the procedure in variance to how another medical professional would have done.In the case of Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital Lord Diplock, Lord Templeman and Lord Scarman all affirmed the application of the Bolam principle. Lord Diplock commented that the doctor was right to refuse to warn the patient of the possible complications. In his summing up he stated"The only effect that mention of risks can have on the patient's mind, if it has any at all, can be in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor it is in the patient's interest to undergo. To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor's comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way. The Bolam test should be applied."Chatterton v Gerson. The claimant suffered from severe pain due to a post-surgical scar. She was referred to the defendant, a doctor who specialised in pain treatment. The defendant told the claimant that he advised surgery which would block the sensory nerves around the scar. He also told her that there was a risk this would cause numbness and temporary muscle weakness.The claimant agreed to undergo the surgery. It only gave her temporary relief, and caused some numbness in her right leg. For this reason, the claimant underwent the surgery a second time. On the second occasion, the defendant failed to warn the claimant that she might experience numbness or muscle weakness. The second surgery caused the claimant to completely lose the sensation in her right leg and made her pain even worse. The claimant sued the defendant for negligence The High Court held in favour of the defendant. The claimant gave valid consent to the surgery, so there was no battery. The doctor had fulfilled his duty of care in negligence. This case is no longer good authority for the standard of care owed by doctors who have a duty to warn. This is a result of the decision in Montgomery v Lanarkshire Health Board [2015] UKSC 11. The decision whether to disclose medical risk to patients is not within the scope of the Bolam principle, which states that only where the risk was such that no responsible body of medical opinion would have supported the withholding of advice that failure to offer it would be negligent.Instead, doctors are under a general duty to disclose all risks that a reasonable person or a reasonable doctor would think that a patient would consider to be significant.
- C was a pregnant woman of small stature and a diabetic.
- On childbirth, her doctor did not inform her of the 9-10% risk of shoulder dystocia among diabetic women, where the baby's shoulders are unable to pass through the pelvis.
- Baby was born with deformity as a result of shoulder dystocia.
- Counsel for D presented professional witnesses who stated that it was proper practice not to disclose risks.
- The Court of Session ruled that there was no negligence based on the Bolam principle.
- Appeal allowed, doctor was negligent as he should have informed C of the risks.
- Managing Director, Kerala Tourism Development Corp. Ltd. v. Deepti Singh & Ors.
- The Supreme Court ordered Kerala Tourism Development Corporation Ltd. to pay Rs. 62,50,000 to the family of a man who died after drowning in the swimming pool at Hotel Samudra in Kovalam, stating that hotels that offer swimming pools to their visitors owe a duty of care.
- Satyendra Pratap Singh travelled with his family to Hotel Samudra for a vacation. He was swimming in the pool when all of a sudden, he became insensible and descended into the water. Witnessing this, a foreigner dove into the water and pulled him out. Despite being taken to the hospital, he passed away. His wife filed a complaint before the consumer forum against KTDC wherein NCDRC concluded that the hotel's management had provided inadequate service, also noting that the on-duty lifeguard was given the responsibility of serving drinks despite his actual obligation.
- In the appeal, the Apex Court bench agreed with the NCDRC's findings and noted that the duty of care stems from the fact that the pool is likely to become a potential source of hazard and danger if it is not properly maintained and watched over by trained personnel. It's possible that not every visitor to the pool will be a proficient swimmer. The hotel administration can predict the potential consequences of neglecting to maintain the pool and its equipment. Not only good physical facilities are necessary for safety compliance, but human supervision for pool users is also necessary.
- The Court took into consideration the ingredients of the torts of negligence i.e. existence of a duty of care, a breach of the duty through action or omission and damages arising as a consequence of the breach and relied on the case of Caparo Industries plc v. Dickman (1990) 2 ac 605 wherein it was observed by the House of Lords that three ingredients are necessary for the existence of a duty of care: (i) foreseeability of the damage; (ii) proximity of relationship between the parties; and (iii) whether it is 'just, fair and reasonable' that the law should impose a duty of care.
- Also, heavy reliance was placed by the court on the case of India Tourism Development Corporation Limited v. Miss Susan Leigh Beer wherein due to the growth of algae on the swimming pool's tiles, the respondent slipped into a pool maintained by the appellant and suffered serious injuries and it was ruled that the appellant did have a duty of care toward the respondent, according to a division bench of the Delhi High Court.
A relationship of proximity in Lord Atkin's sense must exist before any duty of care can arise, but the scope of the duty must depend on all the circumstances of the case. Proximity refers to how close you are between events or people that can impact legal responsibility. Proximity is the relationship between you and me to find out whether a duty of care exists. If In case we are in close proximity, I may owe a duty of care to you. Once this proximity exists then, I have to take reasonable care to foresee that I do not cause loss or harm to you. Once foreseeability and proximity are made out, a prima facie duty of care is established and failure to take care of this duty is known as breach of duty.Proximity means the nearest cause which is responsible for the injury i.e. It involves the notion of nearness or closeness, a nexus or relationship. In other words, it means that if the person who has suffered an injury is directly or rather proximately suffered the loss. Bourhill v Young. Mr Young had been negligently riding his motorcycle and was responsible for a collision with car in which he himself suffered fatal injuries. At the time of the crash, Mrs Bourhill (C) was in the process of leaving a tram about 50 feet away. C heard the crash and, after Mr Young's body had been removed from the scene, she approached and witnessed the immediate aftermath. C was 8 months pregnant at the time of the incident and later gave birth to a stillborn child. C subsequently brought an action against Mr Young's estate, claiming she had suffered nervous shock, stress and sustained loss due to the negligence of D.The principal issue on appeal to the House of Lords was whether D owed a duty of care to C. In order for such a duty to be found it had to be said that that C was both sufficiently proximate to the incident itself and, if so, that D ought reasonably to have foreseen that, in driving negligently, he might cause psychiatric damage to a person hearing the crash from C's position.Held, D was not liable for any psychiatric harm that C might have suffered as a result of the accident. It was not foreseeable that C would suffer psychiatric harm as a result of D negligently causing a loud traffic accident, nor was C sufficiently proximate to the scene of the crash itself. D, therefore, could owe no duty of care to C.
Hillsborough disaster
Incident in which a crush of football (soccer) fans ultimately resulted in 97 deaths and hundreds of injuries. The crushing occurred during a match at Hillsborough Stadium in Sheffield, England, on April 15, 1989. The disaster was largely attributed to mistakes made by the police.An FA Cup semifinal match was scheduled between Liverpool and Nottingham Forest on April 15, 1989, at Hillsborough, a neutral venue. The sold-out game was expected to draw more than 53,000 fans. To prevent hooliganism, fans for the two teams were directed to enter from different sides of the stadium. Liverpool supporters with tickets for the standing terraces were to enter along Leppings Lane. There they were to pass though one of seven turnstiles, after which there were two tunnels that opened into "pens," areas enclosed by high fences with a narrow gate. Central pens 3 and 4 were accessed from the main tunnel, while the side pens were entered through the less prominent corridor.Due to the limited number of turnstiles, a bottleneck formed as approximately 10,100 fans attempted to enter the stadium on the Leppings Lane side. By about 2:30 pm, some 30 minutes before kickoff, more than half of those fans were still outside. Hoping to ease congestion, Yorkshire Police Chief Superintendent David Duckenfield, who had little experience policing soccer matches at Hillsborough, approved the opening of exit gate C at approximately 2:52 pm. Some 2,000 fans entered through that gate, and, although the side pens were relatively empty, the majority headed to the main tunnel and the already crowded pens 3 and 4. As fans rushed into those pens, a deadly crush resulted, with people frantically trying to escape.
A number of law officials initially believed the problem to be unruly fans, and it was not until five minutes after kickoff that the match was halted. However, police never "fully activated the major incident procedure." Poor communications and coordination further complicated rescue efforts, and in numerous cases fans provided assistance and medical attention. In total 97 people were killed; one of the victims died in 1993 when he was taken off life support, and another with brain damage passed away in 2021. In addition, more than 760 were injured.A large number of suits were filled. The claims were brought against the Chief Constable of South Yorkshire Police, who was responsible for the policing and safety arrangements at the stadium. The claimants were relatives and friends of the victims who either witnessed the disaster live or saw it unfold on television. They included parents, siblings, spouses, and other close relatives who suffered psychiatric injury as a result of either witnessing the event or learning about it shortly afterward. The claimants sought compensation for psychiatric injuries (nervous shock) suffered due to the traumatic events at Hillsborough. The House of Lords emphasized the need to limit liability to prevent an indeterminate number of claims and to ensure that only those who were directly and severely affected could claim compensation. The claimant must be present at the scene of the accident or its immediate aftermath. This requires spatial and temporal proximity to the incident. The claimant must directly perceive the event or its immediate aftermath with their own unaided senses. Dulieu v White and Sons.
The plaintiff, in the present case, was standing behind the bar of a public house at the Bonner Arms in Bethnal Green from the roadway. She was pregnant at the time when the incident happened. Then the defendant's servant negligently drove horse-drawn carriage into the building of the public house. The horse-drawn carriage did not hit the plaintiff because the defendant stopped it just before the carriage was about to hit her. As consequents to such incident, the plaintiff suffered from a shock and gave birth after nine days of the incident prematurely to a baby who was said to be an idiot by the plaintiff.
The plaintiff then claimed damages for the tort of negligence against White and sons. The plaintiff further sought damages for the shock which was caused to her by the incident. The defendants contended that the tort of negligence requires physical injury which was, in the present case, too remote. The defendants further claimed that the psychiatric harm suffered by the plaintiff, due to the fear of getting hit, was not foreseeable and thus, they are not liable to pay any damages to her.
- Issues Before the Court
- Whether fear alone was enough to create a mental injury claim in the present case?
- Whether fear alone was enough to create a mental injury claim in the present case?
- Ratio of the Case
- The court was of the opinion that although the plaintiff had not suffered any physical injury, the traumatic incident, of the driver losing control over the horses and thereby driving them into the building where the plaintiff was working behind her husband's bar, led to nervous shock and the premature birth of her child. In this case, mental illness was escorted by a physical injury i.e. miscarriage.
- Moreover, the plaintiff had established that the 'nervous shock' which was caused by the accident, resulted from her fear for her own safety.
- In other words, the 'terror wrongfully induced and inducing physical mischief gives a cause of action.' The plaintiff could recover in respect of the physical consequences of 'nervous shock' caused by reason of 'reasonable fear of immediate personal injury to oneself'.
- It was held that an action could lie in negligence for nervous shock which had arisen from a reasonable fear for one's own (in the present case, plaintiff's) immediate safety. Such an injury could be compensated.
- In obiter, Kennedy, J. suggested this rule might also cover cases where the shock is produced, "by horror or vexation arising from the sight of mischief being threatened or done either to some other person, or to her own or her husband's property."
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ISBN No: 978-81-928510-0-6
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