TORT LAW!!! (Nervous Shock) Plz help!!

I assume this is for a problem question. Break it down into who might have a claim, and whom they have a claim against. Then look at whether the requisite elements are present. You need several elements to have a claim in negligence. What are the tests for each element, and where are they from?

For example, if you are looking at nervous shock, you're probably going to be looking at Alcock. If the facts in the situation you're asked to advise on are different, does the same test apply? Is the result the same? Do you need to consider whether there should be a duty of care?

You need to go through it as systematically as you can. It might help if you posted more of the problem, and we could give you a pointer in the general direction (without telling you how to do it).

Reply 2

OP

Original post by jjarvis

I assume this is for a problem question. Break it down into who might have a claim, and whom they have a claim against. Then look at whether the requisite elements are present. You need several elements to have a claim in negligence. What are the tests for each element, and where are they from?

For example, if you are looking at nervous shock, you're probably going to be looking at Alcock. If the facts in the situation you're asked to advise on are different, does the same test apply? Is the result the same? Do you need to consider whether there should be a duty of care?

You need to go through it as systematically as you can. It might help if you posted more of the problem, and we could give you a pointer in the general direction (without telling you how to do it).

Thank you so much for your help! :smile:

Well basically, an employee whilst on duty drove his car carelessly, killing 5 people and colliding with another car in which the victim of the car was also killed. Partner of one victim suffers nervous reaction. Husband of one victim had to identify body who is now consumed by grief and anciety. One victim involved is left traumatised and a rescuer now feels he cannot leave his home..

Hope that makes it a little clearer! Thanks again!

Reply 3

Original post by Lish88

Thank you so much for your help! :smile:

Well basically, an employee whilst on duty drove his car carelessly, killing 5 people and colliding with another car in which the victim of the car was also killed. Partner of one victim suffers nervous reaction. Husband of one victim had to identify body who is now consumed by grief and anciety. One victim involved is left traumatised and a rescuer now feels he cannot leave his home..

Hope that makes it a little clearer! Thanks again!

No problem.

You need to think about the various parties who *might* have a claim--families of the five people killed, the partner who suffered a nervous reaction, the husband who identified a body, the victim who was not kill but has been traumatised, and the rescuer. Who among them has a claim, and why?

There will be different claims for the different parties.

Look at the Hillsborough football disaster case--Alcock v Chief Constable of South Yorkshire [1991] 4 All ER 907. That should be a good place to get you started for psychiatric trauma in its myriad dimensions.. You noted in your first post the distinction between "primary" and "secondary" victims, which comes from this case.

What damage have the families of the dead victims suffered, and how is that damage handled in the law?

What damage has the surviving victim suffered?

Go through each class of potential claimant, and consider whether the requisite elements to show a cause of action are present.

Reply 4

TKC

McLoughlin v O'Brien [1983] might be relevant for the husband's case as it involves the shock of a woman who sees her injured family in hospital. Alcock does establish limits though, in terms of: time, space, relationship and medium of experience.

Also don't forget that 'damages' have to have occurred. In Alcock, Lord Bridge says that the first hurdle to a claim is proving recognised psychiatric injury "not merely grief, distress or other emotion".

Reply 5

OP

That's great! Thanks guys! :biggrin:

But would the duty of care be owed to the employer or employee? As the employee who commiteed a tort was on duty when it happened.. x

Reply 6

DiZZeeKiD

16

Original post by Lish88

That's great! Thanks guys! :biggrin:

But would the duty of care be owed to the employer or employee? As the employee who commiteed a tort was on duty when it happened.. x

The duty of care is owed to any resulting victims - nothing to do with vicarious liability etc.

Reply 7

OP

Original post by DiZZeeKiD

The duty of care is owed to any resulting victims - nothing to do with vicarious liability etc.

Omg i'm so confused now.. Who would be in breach of this duty? As in if this was taken to court would the victims sue the employer or the employee even though the employee was the one who committed the tort?

I'm pretty sure according to vicarious liability the employer is reponsible if the employee was still on duty? x

Reply 8

Original post by DiZZeeKiD

The duty of care is owed to any resulting victims - nothing to do with vicarious liability etc.

You're right that a duty of care is only relevant with regard to people who suffer damage (there might be other duties of care, but there's no cause of action without damage, so that's immaterial here). That said, the OP does need to consider whether the employer is vicariously liable for the damage to the victims. This is relevant b/c the company almost certainly has more money than the employee, and might also carry insurance. Vicarious liability is a part of the question here, or the problem wouldn't have made it clear that the tortfeasor is an employee acting in the course of his work. You need to consider the issue, even if you ultimately claim that there is no vicarious liability in this instance.

(edited 13 years ago)

Reply 9

Original post by Lish88

Omg i'm so confused now.. Who would be in breach of this duty? As in if this was taken to court would the victims sue the employer or the employee even though the employee was the one who committed the tort?

I'm pretty sure according to vicarious liability the employer is reponsible if the employee was still on duty? x

You're on the right lines here--you need to determine under what circumstances employers are vicariously liable, and whether they exist in this instance. The employee would be the party in breach of a duty, but the employer might be vicariously liable.

Reply 10

DiZZeeKiD

16

Original post by jjarvis

You're right that a duty of care is only relevant with regard to people who suffer damage (there might be other duties of care, but there's no cause of action without damage, so that's immaterial here). That said, the OP does need to consider whether the employer is vicariously liable for the damage to the victims. This is relevant b/c the company almost certainly has more money than the employee, and might also carry insurance. Vicarious liability is a part of the question here, or the problem wouldn't have made it clear that the tortfeasor is an employee acting in the course of his work. You need to consider the issue, even if you ultimately claim that there is no vicarious liability in this instance.

Yeah, sorry I should have been clearer. I didn't mean it has nothing to do with vicarious liability in terms of the question as a whole just with regard to who the duty of care was owed to. Also, sometimes they throw in a random element such as vicarious liability even though it might not form the bulk of the question just to see if you pick up on it - you obviously have a lot of ground to cover in this essay!

Reply 11

OP

Original post by jjarvis

You're on the right lines here--you need to determine under what circumstances employers are vicariously liable, and whether they exist in this instance. The employee would be the party in breach of a duty, but the employer might be vicariously liable.

Thank u =)

what is the difference between vicarious liability and employers liability? which would be more relevant in this case? as in i know duty of care was owed to all the victims, that duty was breached by the employee. If this was taken this to court who will be held liable? Will it be both, because of vicarious liability. Or would it be just the employee as he was driving carelessly? And because of his careless driving these individuals were killed? x

Reply 12

DiZZeeKiD

16

P.S You might also want to look at Page v Smith on the issue of foreseeability :smile:

good luck!

Reply 13

OP

Original post by DiZZeeKiD

P.S You might also want to look at Page v Smith on the issue of foreseeability :smile:

good luck!

thanks dizzee kid! lol.. i shall do that :smile:

x

Reply 14

Original post by Lish88

Thank u =)

what is the difference between vicarious liability and employers liability? which would be more relevant in this case? as in i know duty of care was owed to all the victims, that duty was breached by the employee. If this was taken this to court who will be held liable? Will it be both, because of vicarious liability. Or would it be just the employee as he was driving carelessly? And because of his careless driving these individuals were killed? x

I'm not particularly familiar with vicarious liability (we've not covered it in depth, just in outline as it's related to particular cases), so I'm afraid I can't help you much here.

Also, was there a duty of care to all of the victims to protect them from the particular damage they suffered? I wouldn't be so quick to reach that conclusion.

Reply 15

gethsemane342

11

Original post by Lish88

Thank u =)

what is the difference between vicarious liability and employers liability? which would be more relevant in this case? as in i know duty of care was owed to all the victims, that duty was breached by the employee. If this was taken this to court who will be held liable? Will it be both, because of vicarious liability. Or would it be just the employee as he was driving carelessly? And because of his careless driving these individuals were killed? x

Employer's liability = can the employee sue the employer because the employer breached a duty etc

Vicarious liability = can someone hurt by the action of an employee sue the employer.

OK, first thing to do BEFORE anything else is: was the employee negligent at all. Everyone else has discussed that so i won't add anything to it.

Now, assuming he was (and he must be because he killed someone and so people can claim for the dead folk under that act i forget the name of but if you really need, can unearth from my notes) then you look at vicarious liability.

The question here is: was the employee acting in the course of his duty? The general test for this is the Salmond and Heuston test which is if the actions were intertwined with the employee's duty and thus within the scope of his duty (ie not a frolic of his own). The alternative test, probably for intentional torts only but would probably lead to similar results with negligence, is the Lister test which is if the employee's actions were "sufficiently connected" to his job.

If you reach the conclusion that the employee was acting in the course of his duty (for example, he's driving on his boss' orders) then the employer may be sued. If the employee is 'on a frolic of his own' (e.g. he's driving to the pub for a pint instead of to pick up some package on the opposite side of town and he's not meant to be in the car and was told specifically not to be in the car) then only the employee can be sued.

Reply 16

Cheers for the info on employer's/vicarious liability, Gethsemane--that was my impression but I didn't want to give the OP a bum steer.

The Act is, I believe, the Fatal Accidents Act, but I don't remember the year. Edit: wiki'd it. Fatal Accidents Act 1976.

Reply 17

OP

Original post by jjarvis

Cheers for the info on employer's/vicarious liability, Gethsemane--that was my impression but I didn't want to give the OP a bum steer.

The Act is, I believe, the Fatal Accidents Act, but I don't remember the year. Edit: wiki'd it. Fatal Accidents Act 1976.

How would you relate the Alcock rule to rescuers?? As in forseeablity?? It states that there must be a 'close relationship of love and affection'??? But if it's just a general person how would you do this?

Thank you! x

Reply 18

OP