Tort Law Take-Home Exam

This question concerns three individual claimants and the potential claims
they may be able to make against Nationwide Bank in relation to the
armed robbery. The bank acknowledged that its security procedures were
insufficient and has admitted negligence in respect of all physical injuries,
but denies any liability towards those claiming for nervous shock. The
actual admission by the bank of their inadequate security can form the
first fundamental requirement where psychiatric harm is claimed the
requirement that the material event was caused by the defendant.1
The second requirement in the constitution of psychiatric illness is of
course proof that a recognised psychiatric injury was suffered, as opposed
to feelings of grief, stress or panic. This principle was applied in the case
of Hinz v Berry2. In the given scenario, Zoe suffered a recurrence of stressinduced chronic fatigue syndrome, which is a recognised mental condition,
thus creates further basis for a claim of psychiatric harm against
Nationwide Bank. One of the most important factors in a claim for
psychiatric injury is the status of the plaintiff as either a primary victim or
a secondary victim, as this status affects the requirements for a successful
claim. Looking at case law and when assessing the likelihood of a
successful claim, there is no doubt that secondary victims have been
treated harshly by comparison to primary victims.3 Lord Olivers
methodology in the case of Alcock4is binding authority in terms of
distinguishing between a claimants status as either a primary or
secondary victim. In the special duty situation of psychiatric injury, a
primary victim is a person who is a participant in an accident, described
by Lord Oliver as someone who is involved in an accident either
mediately or immediately who suffers following what he sees or hears.
Such a person is usually well within the range of foreseeability.5 In the
scenario Zoe was working as a cashier in the bank at the material time,
and was also threatened at gunpoint, which shows she was involved in the
incident. It is therefore clear that she was a participant in the event. The
description of events does not mention that Zoe suffered any physical
harm during the altercation, but the legal authority set out in Dulieu v
White6 is that physical harm need not be suffered for a successful claim of
psychiatric harm, it will suffice if Zoe can demonstrate that she reasonably
1 Darren Calley, Psychiatric Harms, Lecture One
2 [1970] 2 QB 40
3 Chris Turner, Unlocking Torts (Routledge, 2013) pp 132
4 [1992] 1 AC 310
5 V. H. Harpwood, Modern Tort Law (Routledge 2009) pp 50

believed herself to be in danger during the event cause by Nationwide

Banks negligence. The violent and savage nature of the armed robbery
and the key fact that Zoe was personally threatened at gun point should
suffice as Zoe was in the physical zone of danger at the time of the
incident. This links to the issue of the foreseeability of harm on the part of
Zoe, which is governed by the case of Page v Smith7, where the House of
Lords stipulated that where the plaintiff is a primary victim, they did not
have to show that nervous shock or psychiatric injury was a foreseeable
consequence of the events the necessity here was only to demonstrate
the foreseeability of personal injury. This means that Zoe must convey
that she feared personal injury and her recurrence of stress-induced
chronic fatigue syndrome was a result of that fear. Taking account of the
facts and similar related cases such as Alcock, it should be simple for Zoe
to show that she reasonably believed herself to be in danger. Finally,
where the issue of proximity is concerned, Lord Oliver stated in Alcock
that when the plaintiff is a primary victim, the duty owed to the plaintiff
was self-evident; there was no need to satisfy the same proximity
requirements as were applied in the witness cases.8 This concludes all the
issues relating to a successful claim of psychiatric harm; Zoe appears to
have satisfied each requirement and is likely to be entitled to damages
from her employers Nationwide Bank. The scenario omits to state this, but
if an issue arises as to whether Zoe was more susceptible to a recurrence
of stress-induced chronic fatigue syndrome, as a primary victim, she
would be able to use the thin-skull rule, applied in Smith v Leech Brain &
Co9. This is a policy consideration that restricts the ability of tortfeasors to
escape liability on the grounds that the plaintiff was more prone to
personal injury than a normal claimant.

Finally, the issue of economic loss arose from the incident, as the scenario
states that Zoe is unlikely ever to work again. It is possible to claim for
economic loss which is a consequence of injury or damage to property.
This is known as consequential economic loss.10 In this scenario the extent
of the damages Zoe can claim depend on the duration of her
unemployment if she, as predicted will be deemed unfit to work for the
rest of her life, her claim will be substantial and her employers could
6 [1901] 2 KB 669
7 1995] UKHL 7
8 Mark Lunney, Ken Oliphant, Tort Law, Text and Materials (5th edition, OUP 2013)
pp 343
9 [1962] 2 QB 405
10 Brendan Greene, Course Notes: Tort Law (Routledge, 2013) pp 52

possibly be liable to compensate for her projected salary for the rest of
her working life.

The next claimant to advise is Yousef. The first constituent of psychiatric

injury claims (the requirement that the psychiatric injury suffered is a
result of an event caused by the defendants negligence, has already been
established for Zoe, and the principle is identical for Yousef, as both he
and Zoe are employees of Nationwide Bank. Yousef will also have to
demonstrate that the negligence of Nationwide Bank caused him to suffer
a recognised mental illness. Yousef in fact suffered from Cleggs Syndrome
as a result of the effects of the armed robbery. This is a recognised mental
illness, so should satisfy requirements and establish the fundamental
parts of a psychiatric injury claim.
As in all cases in this area, Yousefs status as either a primary victim or
secondary victim is a key factor in terms of issues such as proximity. A
narrow definition of the concept of a primary victim executed by Lord
Lloyd in Page v Smith11, and supported by a majority in White v Chief
Constable of South Yorkshire12follows. Lord Lloyd articulated, In all these
cases the plaintiff was the secondary victim of the defendants
negligence. He or she was in the position of spectator or bystander. In the
present case, by contrast, the plaintiff was a participant. He was himself
directly involved in the accident, and well within the range of physical
foreseeable injury.
As Yousef was on duty as a security guard during the robbery, case law
regarding rescuers may be relevant. In the cases of White v Chief
Constable of South Yorkshire and Frost v Chief Constable of South
Yorkshire Police13concerning the Hillsborough football stadium disaster,
the plaintiffs were in a similar position to Yousef. The claimants in the
aforementioned cases put forward two arguments in order to impose
liability on their employers for suffering post-traumatic stress disorder.
These arguments were, firstly, that there is an employer to employee
based duty to provide a safe place of work, and secondly, they argued
that they were primary victims due to their close involvement in the
rescue. In respect of the first argument, Yousef was on duty at work at the
time of the incident, so if such a duty could be imposed then he would be
subject to it. In respect of the second argument, the majority in White v
Chief Constable of South Yorkshire held that a rescuer is only a primary
victim if they are physically endangered or reasonably believe they are.
11 [1996] 1 AC 155 at 184
12 [1998] 3 WLR 1509
13 [1998] QB 254

The scenario does not necessarily clarify whether Yousef was in the zone
of physical danger, but the nature of his occupation and the incident
suggest that it is likely that he would at least have the grounds for
reasonable belief in danger. His status as a possible primary victim
rescuer is dependent on this belief.
The nature of the psychiatric injury suffered by Yousef gives rise to the
question of whether he may be able to claim as an unwitting agent of
misfortune. This type of victim is that who inadvertently, and through
anothers negligence, became the agent of another persons injury or
reasonably believe they are about to do so.14The injury suffered is similar
to that of the plaintiff in the highly authoritative case of Dooley v Cammell
Laird15, where Donovan LJ ruled that a defendant who felt so wretched he
could not work was entitled to damages. Further case authority for this
area of psychiatric illness tort law in Hunter16, in which it was stated that
these cases did not waive the requirement of spatial and temporal
proximity. In the facts of the case, both proximities appear to be clear;
Yousef was at Nationwide Bank at the time of the robbery in a capacity
which demanded proximity of space. To conclude, it appears that the
necessary requirements have been met for Yousef to be deemed an
involuntary participant, but one possible problem (with the authority of
Monk v Herrington17) is that an unreasonable belief on the part of the
claimant may restrict this category of liability as it has been limited due to
Hunter. The scenario states that there was nothing Yousef could do to
prevent the robbery, so the fact that Yousef feels responsible may be
deemed to be a belief made without a reasonable basis. However, the
area of law still has authority and can be used, provided Yousef can
demonstrate all the aforementioned requirements.

The next claimant to advise is Xavier, who, like Zoe and Yousef is an
employee at Nationwide Bank. The necessity for the incident to be an
event caused by the defendant has already been shown or the previous
two claimants. However, as in all psychiatric harm cases, the status of the
plaintiff as one of the two main types of victims is crucial when assessing
the requirements he or she must demonstrate before a court.

14 Mark Lunney, Ken Oliphant, Tort Law, Text and Materials (5th edition, OUP
2013) pp 353
15 [1971] 1 Lloyd's Rep 271
16 Hunter v British Coal [1999] QB 140
17 EWHC 1879

A secondary victim is someone who, when witnessing an accident, suffers

injury consequential upon the injury, or fear of injury, to a primary
victim.18 In this scenario, Xaviers situation aligns to this definition, as the
nervous shock he suffered resulted from witnessing his brother being shot,
which is of course nervous shock consequential upon the injury of a
primary victim. It has, however already been noted that the courts are a
lot more strict where secondary victims are concerned, due to policy
considerations such as floodgates. This means that Xaviers claim is
subject to more rigorous control mechanisms and extra requirements, as
stipulated in Alcock. It must first be considered whether Xavier suffered a
recognised psychiatric illness, as decided in case law such as Hussain v
Chief Constable of West Mercia Police19. Xavier suffered post-traumatic
stress disorder which has been the basis for claims and has been
identified in law as a medically recognised illness in cases such as
Greatorex v Greatorex20, in which the secondary victim was only barred
from recovering damages due to the policy consideration based on the
self-inflicted nature of the primary victims harm. This means that Xavier
has satisfied the necessity for a recognised psychiatric illness to be
suffered. Another requirement for secondary victims is for them to
establish reasonable foreseeability on the part of the defendant that the
claimant would suffer a psychiatric illness. In respect of this, Lord Wright
in Bourhill v Young21, articulated, The court asks itself in such a case what
the hypothetical reasonable man, viewing the position ex post facto,
would say it was proper to foresee. This approach was rationalised by
Lord Berwick in Page v Smith, who stated, This makes sense where the
plaintiff is a secondary victim. For if you do not know the outcome of the
accident or event, it is impossible to say whether the defendant should
have foreseen injury or shock. It is necessary to take account of what
happened in order to apply the test of reasonable foreseeability at all.22
In the scenario, Xaviers brother was in fact shot. This is likely to be
sufficiently serious in terms of giving rise to the psychiatric injury that was
suffered because of the implications of firearm injuries. Foreseeability is
closely linked with proximity here, and the fact that Xaviers half-brother
was the primary victim may strengthen Xaviers case here, especially
when the extra issue in foreseeability (that there be a reasonable
foreseeability of psychiatric illness to a person of normal fortitude or
18 Simon Alleh, Nervous Shock and Secondary Victims, Law Society Gazette
2013
19 [2008] EWCA Civ 1205
20 [2000] 1 WLR 1970
21 [1943] AC 92 at p110
22 Jenny Steele, Tort Law: Text, Cases and Materials (OUP 2014) pp 304

customary phlegm.23In consideration of all the facts, following the

approaches of Lord Berwick and Wright, it is likely that the need for
reasonable foreseeability on the part of the defendant that the claimant
would suffer a psychiatric illness will be satisfied.

23 Mark Lunney, Ken Oliphant, Tort Law, Text and Materials (5th edition, OUP 2013) pp
343