Tort 3 - Duty of Care 2

In Dulieu v White (1901) the plaintiff was sitting at the bar in a public house that belonged to her husband, she was pregnant at the time, when a horse and cart crashed into the establishment. The plaintiff suffered from severe shock that resulted from her being on the premises at the time the defendant crashed into it and she subsequently fell severely ill. She gave birth to a premature baby 9 days later and the child as he or she grew up did not display the level of intelligence that other children his or her age would display and the plaintiff argued that the child’s premature birth and the subsequent inability to cope was the result of the shock and the serious illness that she had suffered as a result of being in the public house at the time of the incident. The plaintiff sued.

The court held that the defendant had a duty of care not to frighten the plaintiff by his actions and if the resultant injury is not too remote than the plaintiff can claim. However, mere fright alone will not suffice and the fright has to be followed by some form of physical injury. The fright must also be the natural result or consequence of the defendant’s actions.

Hence there are three elements to claims involving nervous shock or psychiatric illnesses, which is in effect what the defendant is claiming for. They are as follows:-

i) The defendant owes the plaintiff a duty of care i.e. a duty not to frighten her or cause her some form of physical or mental harm

ii) The fright is followed by some form of physical or mental injury and

iii) The type of physical or mental injury would be the type of injury that is the natural result or consequence of the defendant’s actions or it is foreseeable that the injury would be the likely result of the defendant’s actions.

In Haynes v Harwood (1935) the defendant had left his horse drawn van unattended and someone had thrown a bottle at the horses which caused the horses to bolt down a busy street. The plaintiff, a policeman was on duty at the time and he saw the ensuing ruckus from his window. Having determined the cause of the commotion he then tried to stop the horses and was injured as a result. The plaintiff sued and the court held that he was entitled to be compensated for the injuries that he had suffered or incurred. The defendant should have taken reasonable care to ensure that his horse drawn van was secure.

The principle is still in application today and owners of vehicles still have a duty of care to ensure that their vehicles do not cause injuries to others. Let’s take the example of someone parking a car on a slope. If the driver forgets the brakes there is a possibility that the car may roll downhill and cause some type of injury or damage to someone and therefore the driver of a vehicle has a duty to ensure that the vehicle is secured before he or she moves away from it.

Is it possible for the defendant to argue that the plaintiff’s injuries were the result of actions that he had undertaken voluntarily i.e. volenti non fit injuria or when a person voluntarily puts himself in a position that would most likely result in some form of injury and hence the plaintiff’s actions negates any liability on the part of the defendant?

We have to look into the facts of the case. The plaintiff in Haynes v Harwood (1935) was a policeman who has a responsibility to keep the peace. From all accounts the incident took place in broad daylight or at a time when the policeman was most likely on duty and thus it was his responsibility to ensure that the peace was kept and that no unwanted incidents occurred during his watch and therefore he was merely doing his duty.

It is also possible to argue that the policeman had gone over and above his duty by putting himself at risk and therefore should be in some form or manner rewarded for his actions as per Glasbrook Brothers v Glarmorgan County Council (1925).

In Hambrook v Stokes Brothers (1925) a mother suffered severe nervous shock that resulted in a chronic illness when she saw a lorry run downhill towards the bend where she had just left her children. She took instant fright and moments later another person approached her to tell her that one of her children was injured.

As it turned out the injury was slight but by that time the mother had gone into shock and the resultant illness that was brought on by the initial shock eventually led to her death. Her husband sued and was successful. The court held that the defendants had a duty to ensure that their vehicle was secure.

The courts might be more willing to award claims for nervous shock or mental illnesses when the victim is a parent who has suffered an illness because he or she feared for the safety of his or her child. Such illnesses are both realistic and foreseeable.

Copyright © 2019 by Dyarne Ward and Kathiresan Ramachanderam