Psychiatric stress
Question 1
The case has to establish the compensation for traumatic stress as a result of death caused by negligence of a careless driver. The rules are very clear pertaining to this case. The question is whether the driver of the car is answerable to problem of traumatic stress that is being experienced by the three individuals. The other issue is whether the driver owed the victims the duty of care. The tort principles of negligence can therefore be applied in this case since the drivers conduct was that of negligence hence generated traumatic stress and that the illness was not farfetched when we apply the Wagon Mound test.
The rules therefore requires the complainants to have suffered traumatic stress that is easily recognized and if the victim is a secondary complainant, then should have suffered from shock, the traumatic stress should have been foreseen that the complainant would eventually suffer from traumatic stress as a result of the negligence and that the stress can heal if it was as a result of fear of physical injury to himself. The victim ought to prove that the suffering is as a result of traumatic stress. Very minor stresses like grief are not accepted in the court. In most cases the cases that have been listened to include reactive stresses and also stresses after a trauma. The evidence from the expert is also important in order to prove that the complainant has really been affected.
Damages are in general only recoverable where the recognized psychiatric illness was shock-induced. What is required is “a sudden assault on the nervous system or “the sudden appreciation of a horrifying event, which violently agitates the mind .The law does not in general provide recovery for psychiatric illness brought about by an accumulation of more gradual assaults upon the nervous system. A person who has had to cope with the deprivation consequent upon a bereavement,20 a spouse who has been worn down by caring for an injured husband or wife, and a parent made distraught by the wayward conduct of a brain-damaged child are not able to claim for psychiatric illness suffered as a result.
In the case of Hinz and Berry, the court of appeal entertained a case in the award of 40000 Euros as a compensation for psychiatric stresses. Lord Pearson came up with five reasons why he thought the victim was stressed up. One is sorrow and mourning the loss of the husband, worry about the wellbeing of the children, stresses about money due to the death of the sole bread winner, adjusting to a new way of life and also shock as a result of watching the accident happen. Lord stated that only the issue of witnessing the accident take place qualifies to be compensated since the stresses could not have taken place if the victim did not witness the accident happen.
Those who come to rescue the individuals involved in an accident are also protected under the law incas eof any injury as a result of drivers negligence. As with the case of Cardozo J in Wagner v International Railway Co. It is stated that when an accident occurs, automatically rescuers have to come. The law therefore protects this type of reaction which is natural. The law states that this form of reaction is very normal. The law therefore protects them so as not to discourage their actions.
In the case of Chadwick v British railway’s the principle equally applied to the traumatic stresses that came after. This application was eventually approved by Lord Wilberforce in Mcloughlin. The extent to which this law applies is illustrated in Rapley V P 6.10 European Ferries.
The victims therefore ought to receive compensation since their lives have completely changed as a result of the traumatic stress. The rescues is well protected under the law. Further, the family member is also considered as a beneficiary since they witnessed the accident taking place hence traumatic stress.
Question 2a
The moment one agrees to offer advice to another party, a special relationship is established since he is relied upon for special guidance. The person therefore assumes the responsibility of advice. When a court is determining special relationship, the court will look at whether the complainant relied on the experts opinion, whether the professional knew that the complainant was relying on him for the advice In the case of Hedley Byrne & Co. Ltd. –v- Heller & Partners Ltd [1964] AC465 2 it was okay for the victim to rely on the professional for advice. Under the proximity test the Supreme Court ruled that it is reasonable for the party affected to get compensation
Question 2b
In the case of Berg v. General Motors Corp.,57 which was a case touching on the changes in the a pre-tort reform case, the supreme court in the US the Washington Supreme accepted the payment of damages as a result of negligence. In this case, Berg purchased a vessel which eventually did not give him the service. He sued the company thus general motors for selling him a machine which did not work and caused him a lot of economic losses. Berg sued the company for negligence. The court ruled that the manufacturer was not exposed to further law suits since he was protected by the warranty.
The other case involves Stuart v. Coldwell Banker Commercial Group who sued builder of Condominium units so as to compensate for the economic losses for causing economic losses. The builder was accused of negligence. The damages were therefore direct thus the cost of repairing the machine. The judges ruled that when negligence results into risky conditions, the purchaser of the product should be compensated in tort even though the buyer only lost money. The decision in Stuart case does not concur with the Tort changes of 1981. However, it goes against the previous court’s decision in Berg v General Motors Corp. thus the court allowed the victim to be paid the profits as a result of the manufacturer’s negligence.
Question 2c
The case of voluntarily accepting responsibility outside a formal contract was first heard in the courts in the UK when there was claim for the compensation of an economic loss and also in the decision of the House of Lords in Hedley Byrne v Heller. In this case, a court decided that a bank can be found responsible for the information it provided without bearing in mind its usual clients.where it was decided that a Bank can be
liable for a negligent information supplied without consideration to a regular client. In the more
recent case of Henderson v Merrett Syndicate Ltd12, Lord Goff, in looking for the principle which
underlay the decision in Hedley Byrne, referred to passages in the speeches of Lord Morris and Lord
Devlin in that case including a passage in the speech of Lord Devlin where he considered the sort of
relationship which gave rise to a responsibility towards those who act upon information or advice,
and thus created a Duty of Care towards the person so acting. Lord Devlin had said:
“From these statements, and from their application in Hedley Byrne, we can derive some understanding of the breadth of the principle underlying the case. We can see that it rests upon a relationship between the parties, which may be general or specific to the particular transaction, and which may or may not be contractual in nature. All of their Lordships spoke in terms of one party having assumed or undertaken a responsibility towards the other.”
In White v Jones13 (see infra) Lord Goff stated again that the Hedley Byrne principle was “founded upon an assumption of responsibility.” In Galoo Ltd (In liq) & Others v Bright Grahame Murray (a firm) and another14 the Court of Appeal set out to identify the difference between the facts there and those in its previous decision in Morgan Crucible Co Plc v Hill Samuel Bank Ltd15, that allowed the recovery of an economic loss. The question was when is an adviser, e.g. in this case, an auditor, in close proximity with a person suffering loss by relying on his negligently false advice or information? The answer given by the Court of Appeal in Galoo was, when the auditor ‘intends’ that the third party, a particular identified person, will rely on it16. Thus the bidder relying on the auditor’s accounts of the target company in Galoo had his claim dismissed, because, although he was personally known to the auditor, it was not ‘intended’ by the latter that he should rely on his accounts. The leading judgment of Glidewell L. J. relied on Lord Denning’s so-called ‘classic statement’ in Chandler v Crane Christmas & Co. 17. The auditor’s ‘intention’ was meant as referring to his knowledge, and willingness, of the reliance of the plaintiff, not any willingness to inflict on him financial injury through such false information. It must be noted here that a professional making a false statement in the course of doing his every day job, on the subject-matter of his expertise, will find it hard to shift a presumption of negligence in the error. The idea of a ‘voluntary assumption of responsibility’ was used to explain the importance of ‘intended reliance’, and in Galoo it was turned into a new concept of a ‘voluntary inter-personal’ relationship, said to fall short of being a contract only because of lack of consideration proceeding from the plaintiff to the defendant in return for the advice or information18. In Coulthard and others v Neville Russell (a firm)19 , the Court of Appeal, in another case concerning the civil liability
