Queries

Whether physical injury only suffices to be held as primary victim; Alternative Claim might be
brought in Negilegence

Can negligence liability be establish on omission

John offers to teach Rose and Carly to waterski at a local lake. They arrive and, before they
get in the boat, John drinks three pints of beer at lunch. He then starts up the motorboat,
gives them some brief instructions and they set off across the lake. Neither woman is wearing
a life jacket. Carly is the first to attempt to waterski and Rose is a passenger in the boat.
Despite Rose’s shouted warnings, John drives so fast and erratically that he drags Carly into
the path of another boat, driven by Harry. The tow rope is broken and Carly, who is not a
strong swimmer, struggles to stay afloat and inhales water. Neesha is an off-duty lifeguard
who sees the accident from the beach and swims out to the scene to assist in rescuing Carly.
Carly suffers severe brain damage due to her near drowning. Rose is now having difficulty
sleeping and has lost her appetite. Harry has begun to drink heavily and feels unable to do his
job. Neesha has been diagnosed with severe depression. Advise the parties.

[Carly]

In relation to primary victim, the courts in Page v Smith held that if it has been established at a
defendant or the duty of care to avoid personal injury to the claimant, he will be liable
regardless of the type of injury sustained. Where personal injury was defined by section 38(1)
of the Limitation Act 1980 as ‘...Including any disease or impairment of a person's physical or
mental condition’. The courts further held that physical injury or the fear of it was sufficient
condition for liability. (White v Chief Constable of South Yorkshire).

Under the rule stated above, it might be argued that C is a primary victim as under the facts of
the case, Cardi has suffered from brain damage, which is a type of physical damage. It falls
under the statutory definition of personal injury as an impairment of a person's physical
condition and thus capable of constituting liability under the precedent of Page. It might be
helpful to add that as physical injury has materialized a liability may be brought as under the
rule of White.

The next thing Carly has to prove is that John owed a duty of care To C. For this she may rely on
the principle enunciated in Donoghue v Stevenson that establishes liability in consideration of
the factors that whether it was reasonably foreseeable that the claimant would suffer physical
injury if proper precautions were not taken. And whether there is a close connection between
wrong and injury (Proximity Requirement; Sutradhar v NERC). It might be argued that John had
the premonition that in cases of emergency such harm may occur to the claimant and therefore
the test of foresight is Satisfied. In relation to proximity. It would be easier to establish that the
harm that has occurred has been a direct result of the wrong committed by the defendant in
not taking care of observing safety precautions of providing safety jackets.

As the duty of care is established, it might be argued that John has reached his duty by falling
below the standard of care expected of him. Asper Glasgow V Muir and Bolitho, The court will
take account of likelihood of harm occurring And as per Miller v Jackson, it might be argued
that the likelihood was increased by State of intoxication. Further, the factor of the seriousness
of harm introduced in Paris V Stepney would be fulfilled as brain damage Fulfills the
requirement and lastly, the difficulty or the expense of eliminating risk was not Extensive and
therefore breach of duty of care might be established as per Latimer v AEC

Causation might can be easily established by applying the but for test given in Barnett v Chelsea
and Kensington Hospital Management Committee. But for John's action of riding water Ski
hastily. And subsequent mission of not providing safety precautions. The harm would not have
occurred. Hence the causation requirement is also met.

For defenses, There are no defenses available to avoid liability.

Rose and Harry

Firstly, we have to prove that both the claimants have suffered from recognized medical illness.
According to the facts, Rose is suffering from sleeplessness and has lost her appetite, which
might indicate that she might be suffering from Post Traumatic Stress Disorder (PTSD), which is
one of the recognized medical illness. While Harry Has got involved in excessive consumption of
liquor has been unable to pursue his job. However, the consumption of alcohol is not treated as
a recognized medical illness and therefore it might be difficult for him to bring a claim for
psychiatric illness.
As Rose and Harry were not themselves at risk of injury but suffered psychiatric illness because
of the incident, they may be considered as secondary victims. However, certain requirements
have to be met, as stated in Alcock V Chief Constable of South Yorkshire. It has to be proved
that both Rose and Harry have a close tie of love and connection, followed by proximity in time
and space. McLoughlin v O’Brian. Also, the means by which the shock is caused has to be
considered. Bourhill v Young. The facts make it evident that the claimants have perceived the
event with their own unaided senses. And therefore, the proximity requirement is satisfied. In
relation to the means by which the shock is caused. The claimants may argue that they
perceived the event through their sight (Unaided Senses) which has violently upset their mind.
Further, for proving close tie love and affection, there may be some difficulty as the facts do not
make it clear that whether Rose and Carly have a close connection which might be evident from
any trust-based relationship. However, there is no such connection between Harry and Carly.
Comparing it with the Alcock case where not even the brothers were able to enforce their claim
and therefore applying it to the present situation, it might be argued that Rose and Harry might
not be able to enforce theirs as well.

Neesha
Neesha was an off-duty lifeguard who went on to save Carly during the incident. Therefore, she
would fall under the head of rescue cases, which is not covered by any of the primary or
secondary victim.
For rescuers to claim psychiatric illness, we have to rely on the authorities of (Chadwick v British
Railways Board) White v Chief Constable of South Yorkshire) and MacFarlane v EE Caledonia. as
per the case of Chadwick the courts held at the rescuers were able to recover for the
psychiatric illness with which that was caused due to their presence or their exposure to the
risk of Harm. However, the courts have modified their approach in White, where they held at a
rescuer has to be in physical danger or reasonably perceive themselves to be in physical
danger to recover for the harm committed. However, it is important to note the facts of
McFarlane case where the courts denied a claim of a person recover for the psychiatric illness
after seeing a horrific event. He did not participate in the rescue and therefore, the courts held
that he was not fit to recover for the harm he was not in a physical danger situation. As he was
a mere bystander and allowing him a claim would open floodgate litigation. The MacFarlane
case can be distinguished from the current hypothetical situation as Neesha, not only seeing
the horrific event, but even rescued of Carly and therefore it might be argued that she might
consider herself to be in physical danger. However, it can be counter argued that she was an off
duty life-guard and therefore she might have the professional swimming skills and therefore
she might not be considered, or she might not perceive herself to be in a physical danger and
therefore it is highly likely that her claim might be successful as per the case of MacFarlane.