BILL and at risk of physical harm, regardless

BILL V
POWERPLUS PLC

To begin with, the issue here is whether or not
Bill can seek damages for negligence for psychiatric illness.  As shown in Chadwick
v British Railway Board1,
to claim for psychiatric illness, the claimant must show a recognised
medical condition usually induced by shock. In this case, Bill’s depression is
a recognised medical condition induced by the shock of Annie dying in his arms.
In order to prove this however, the claim must fulfil the traditional
requirements for an action for negligence2.
That is, the defendant must owe the claimant a duty of care, the defendant must
be in breach of that duty and the claimant must have suffered damage as a
consequence.

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DUTY OF CARE

 The
defendant must owe the claimant a duty of care3.
Duty of care is relatively difficult to prove in cases of psychiatric harm, as
duty is usually owed if the claimant could be reasonably foreseeable as a
victim.

There are two major classifications for a
victims namely; primary victim and secondary victim.  In Page v Smith (1996)4 a
primary victim is a victim who was directly involved in the accident and at
risk of physical harm, regardless of whether or not it was actually suffered.  As long as physical harm is reasonably
foreseeable, establishing foreseeability of psychiatric harm is unnecessary5.
People that assist in an accident are secondary victims because they usually do
not know the victims6.
However, because of their response to the cry of distress, they are treated
differently7.
Lord Steyn, in White v Chief Constable of South Yorkshire8
Police established that a rescuer could only be considered as a primary victim
if he ‘objectively exposed himself to a danger or reasonably believed he was
doing so’. The courts have usually concluded that defendants don’t only owe a
duty of care to those  who they have
initially endangered by their negligence, but also to those who rescue those
initially endangered victims9.

 In this
case, Bill is primary victim as rescuer. 
It is reasonably foreseeable for a person, who is exposed to the
negligent act of using faulty gas valves, to be at risk of suffering a physical
harm. He ran back into the house help and assist Annie after the explosion. The
house was devastated, and Annie was on fire, he proceeded to extinguish the
fire, knowing it could burn him at any time, which would make the situation
objectively dangerous.  Although, he
suffered no physical damage, the risk of it, is sufficient to make him a
primary victim. The fact that it was the negligent act of fitting a faulty gas
valve, that endangered Bill, establishes a duty of care between Power plus and
Bill.

In conclusion it can be said, that a duty of
care is owed by Power plus to Bill, due to the fact that he is a primary victim
as a rescuer.  It is important to note
however, that due to policy reasons, the courts can be quite reluctant to find
duty of care as rescuer, as shown in Alcock10.
This is due to the fact that, they wouldn’t want to open floodgates for claims.
However in White11,
the courts established that rescuers would only be considered primary victims
if, they were objectively exposed to danger, even if the rescuer wasn’t
necessarily of this danger.

BREACH OF THE DUTY OF CARE

The next thing to consider is that there needs
to be a breach of that duty. The claimant needs to show that the defendant was
in breach of that duty. A breach of duty can only be found if the defendant’s
conduct falls below that of the reasonable standard set by the law12,
as seen in Blyth v Birmingham Waterworks13.
In other words, the defendant must be at fault.

 When
Annie and Bill were called out to fix the gas leak, they found an old pipe
which needed replacing. The fact that Power plus had installed a faulty gas
valve in a house with an old gas pipe, is standard that falls well below the
reasonable standards expected by a gas maintenance company. It is their job to
maintain gas infrastructure within a home and install working gas valves
without faults.

Therefore, in conclusion, Power plus have
simply breached their duty of care, as they had installed a faulty gas valve,
which was conduct that was well below the standard expected of Gas Company.

CAUSATION.

The final element needed for a claim to succeed
is causation14,
in other words, the damage the claimant suffered as a consequence of the
negligent actions of the defendant. The defendant must have factually caused
the damage, as shown in Barnett v Chelsea15.
In addition, the defendant must also have legally caused the claimant’s damage
as seen in Mcghee v NCB16, without
being too remote.

In application, but for the negligence of Power
plus in breaching their duty of care, would Bill’s psychiatric harm have occurred?
In other words, but for exposing Bill as a rescuer, to danger, by installing faulty
gas valves, would Bill’s psychiatric harm have occurred? The simple is yes. If
Power plus had done their job by making sure they installed proper gas valves,
then Bill’s psychiatric harm caused by the shock from trying to save Annie
would not have occurred. In addition, Power plus’s installation of faulty gas
valves, did materially contribute, as it led to a dangerous situation for Bill,
who they sent to do his job.

 Finally,
psychiatric harm must not be too remote. To prove this we must consult Wagmound
No117,
which establishes that the damage must be one that is foreseeable. If it is,
then the defendant will be liable for all damages, regardless of the extent of
it. When applied to this,it is reasonable to see that psychiatric harm could
occur, as an explosion could lead to all sorts of trauma, be it physical or
psychological. Although, the defendants could argue that they had reasonably
foreseen that their negligence could cause the claimant some psychiatric harm,
therefore their liability should be limited to the cost of the time taken of
work18.
However, when the egg/thin skull rule as seen in smith v leech brain, is
applied, the defendant must take the victim as he finds him19.
In other words, regardless of whether or not he already had depression prior to
the accident, they would still be held liable

Therefore, in regards to Bill, it is quite
clear that Powerplus’s breach of their duty factually and legally caused Bill’s
psychiatric harm. It is also safe to conclude that the damage is not too
remote.

In conclusion, having proven that Power plus
owed Bill a duty of care, power plus was in breach of that duty, and breach was
the not too remote cause of Bill’s damages, it is safe to conclude that Bill
will be able to sue for Negligence for Psychiatric illness and succeed. Bill
will be able to claim general damages as shown in Bennett v Greenland Houchen
& Co20.

PC KEANE
V POWERPLUS PLC

To begin with, the issue here is whether or not
PC Keane can seek damages for negligence for psychiatric illness.  To claim for psychiatric illness, the claimant
must show a recognised medical
condition usually induced by shock21.
In this case PC Keane’s depression is a recognised medical condition
induced by the shock of Annie dying in his arms. In order to prove this
however, the claim must fulfil the certain requirements.

DUTY OF CARE

The defendant must owe the claimant a duty of
care. Duty is usually owed if the claimant could be reasonably foreseeable as a
victim22.

It has generally been established, that the
defendant would usually owe a duty of care, to those, that would respond to an
emergency23.
There are two major classifications for a victims namely; primary victim and
secondary victim.  In Page v Smith (1996)24 a
primary victim is a victim who was directly involved in the accident and at
risk of physical harm, regardless of whether or not it was actually suffered.
In this case, PC Keane does not fulfil the requirements of a primary victim, as
he was not directly involved in the accident, and according to White25,
he could not be a rescuer, as he was not within the zone of danger.  There was no risk of harm to him, as the fire
had been extinguished, and the situation was no longer objectively dangerous.

 Therefore, the only other way he could claim
is a secondary victim.  “A secondary
victim is a victim who suffers psychiatric injury as a result of witnessing
someone else being harmed or endangered”26.
There are certain requirements that must be fulfilled for a secondary victim27,
if duty of care is to be found. These requirements include; psychiatric harm
must be foreseeable as seen in Mcloughlin v O’Brian(1982)28,  the relationship between the victim and claimant
must have been a close “of love and affection” as shown in Alcock v Chief
Constable of South Yorkshire Police(1992)29,
a proximity in time and space30,
and finally there must be proximity of perception, as seen in Sion v Hampstead
Health Authority31.

The claimant must prove that psychiatric
illness was reasonably foreseeable. This connotes showing that a person of
“ordinary fortitude” or “customary phlegm” might reasonably have suffered
psychiatric illness in the circumstances32. When
the facts are considered, it is reasonably foreseeable that a police officer or
a person responding to an emergency call of an explosion, where he witnesses
distressing and extreme circumstances, would suffer a psychiatric illness. This
can be supported by consulting Bourhill v Young33.

However, to find duty of care as a secondary
victim, we would need more than just reasonable foreseeability34.
We would need to consider the relationship between Annie the victim and PC
Keane.  The only relationship PC Keane
has with Annie, is the relationship between a police officer and victim, which
as a matter of fact, does not fall under the class of persons whose claim would
be recognised as a result of their relationship with the victim. The class that
would be recognised is that of “love and affection”. There, is no evidence to
show that this existed. This is shown in Alcock35,
where people who tried to claim psychiatric injury from seeing people die, saw
their claim rejected, due to the fact that they did not have the requirement of
a close relationship of “love and affection “with the “immediate” victim. The
courts require that the close relationship must at least mirror that between a
spouse, husband, parent or child36.

The next requirement would be that of proximity
in time and space. The Lords in Alcock, said that succeeding as a secondary
victim requires the defendant to show a high degree of proximity to the
accident in time and space37.
In other words, they have to either witness the accident as it goes on, or witness
its immediate aftermath. PC Keane, did not witness the accident, however he did
witness a burnt Anna literally dying in Bill’s arms. In other words, he did
witness the immediate aftermath. Therefore, this would suffice, as meeting the
requirement, as he was within proximity in time and space.

The last requirement to meet  is that there must be a proximity of
perception38.
In other words, As lord Jauncey put it in Alcock39
“. The means by which the shock is caused constitutes a second control,
although in these appeals I find it difficult to separate this from Proximity.”
This is quite similar to proximity in time and space requirement, except the
courts added “sudden shock40”
to it. In other words, as said in Alcock41, “the
psychiatric illness in question must result from the sudden psychological
impact of, witnessing a single event or in its immediate aftermath”. When we
consider the facts, we can find that the depression could be said to have
resulted from the traumatic psychological impact of seeing a burnt Annie, being
comforted and eventually dying in Bill’s arm.

In conclusion, however, due to the fact, that
PC Keane did not fulfil the requirement of a close relationship with the victim
of “love and affection”, we cannot find duty of care.  If duty of care cannot be found, Power Plus
cannot be held to liable; as the courts would require all the elements for
negligence to be fulfilled before liability can be found. Therefore, PC Keane’s
claim would fail.

EDWARD V
POWERPLUS PLC

The issue here is whether Edward can claim
damages in negligence for psychiatric harm. To prove this, Edward must show
that he is suffering from a recognised medical condition usually induced by
shock.  This is a basic
requirement and it is proven in Alcock42
where Lord Ackner says “the law gives no
damages if the psychiatric injury was not induced by shock. Psychiatric
illnesses caused in other ways, such as from the experience of having to cope
with the deprivation consequent upon the death of a loved one, attract no
damages”.

When the facts are applied, we
find that it needs to be a recognised psychiatric harm. As shown in Hicks v
Chief constable of South Yorkshire Police(1992)43,
the law does not regard grief or anxiety , which is the psychiatric effect
Edward experienced, as a recognised psychiatric harm.

It is possible to note that,
although with the facts presented, had he suffered from a recognised
psychiatric illness, we would have had to identify what sort of victim he was.
However, the first requirement is that the psychological harm must be a
medically recognised one44.
Overwhelming grief is not a medically recognised. Although, grief was seen to
be recognised as a medically recognised illness in Kralj v Mcgrath45,
this will not apply to this case, as the claimant in that case suffered from “Pathological
grief”, which is a medically recognised.

Therefore, due to the fact
that all Edward suffered was just grief, he will not be able to claim in
negligence for psychiatric harm, due to the fact that he was not suffering a
recognisable psychiatric harm.

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