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Following months of speculation the legendary indie guitar band – Blinking Idiot – are about to embark on a reunion tour of the UK. They are performing a warm-up gig at a small intimate venue when a spotlight falls onto the stage causing a massive explosion killing the band members: Madeleine, Amish and Dave. Unfortunately, the lighting rig (onto which the spotlight was fitted) had been negligently maintained by Rack & Horse Lighting. The sight is particularly gruesome.
You are asked to advise various parties.
The best way to answer this question is to work through each of the potential claimants one by one. Use headings. The key issue here is whether the defendants – Rack & Horse Lighting – owe a duty of care to those who have suffered psychiatrically injured as a result of their negligence. In order to do so, the parties need to establish that they are either primary or secondary victims.
Hannah
Hannah, Amish’s wife, is watching the gig from the VIP area of the venue. She is physically unharmed, but later suffers nightmares and depression. This is particularly traumatic for her as she had previously suffered from depression, but had sought help and recovered.
In order to recover, Hannah needs to have suffered from a recognised psychiatric illness. This requirement is easily satisfied here: you are told Hannah is suffering from depression. However, you are also told that this is a recurrence of a pre-existing condition – that Hannah had previously suffered from depression. It is important then that you discuss the 'egg shell skull' principle (see sections 5.5 and 9.3.1.1). On this basis, Hannah can only recover if someone of 'ordinary phlegm or fortitude' would have suffered psychiatric injury. If this is the case, Rack & Horse Lighting will be liable in full (assuming Hannah fulfils the criteria of a primary and/or secondary victim), even though a particular vulnerability or susceptibility means that the claimant suffers much greater psychiatric harm than might have been anticipated (Brice v Brown [1984]).
Could Hannah be a primary victim? Well, that would depend on how close the VIP area of the venue was to the stage. The closer is it to the stage the more likely it is to fall within the 'zone of danger' (Page v Smith [1996]). The facts are not clear here. Do not make up new facts – but do acknowledge that the facts are ambiguous. State the legal issue – that is, that in order to be a primary victim, Hannah will need to be in the zone of danger, that is at risk of physical injury, at the time her injury occurred – and consider which way this is likely to go on the facts given. This involves stating the relevant ingredients of the zone of danger (for example, the claimant in Page was in the zone of danger as were the police officers who went inside the pens in the Hillsborough Stadium Disaster (White v Chief Constable of South Yorkshire Police [1998]) while those who stayed on the pitch fell outside), assessing whether there is anything here which could put Hannah in the zone – for example the fact that it is a 'small, intimate venue' (although note that the fact that she is 'physically unharmed' points to the opposite conclusion).
A strong answer will then go on to discuss whether Hannah could, in the alternative, be classed as a secondary victim. In order to do so, she needs to satisfy the Alcock control mechanisms as stated by Lord Oliver in Alcock v Chief Constable of South Yorkshire Police.
- the class of persons whose claim should be recognized;
- the proximity of the claimant to the accident;
- the means by which the shock is caused.
On the facts, Hannah is able to establish close ties of love and affection to one of the primary victims (1). She is Amish’s wife – so these are assumed (although, of course, may be rebutted by evidence to the contrary). She is also able to establish the necessary proximity to the accident and immediacy of perception or 'shock' (2 & 3) (she is at the gig). She is, therefore, a secondary victim.
Pete
Pete, Madeleine's brother, is listening to the live radio broadcast of the gig from his hotel room in Paris. He hears the explosion and thinks he can hear Madeleine screaming. He rushes to the airport, managing to catch a flight that is just leaving, and arrives at the hospital three hours after the accident. Unfortunately, Madeleine's body has not yet been moved to the morgue and is still covered in blood and grime from the explosion. He develops post-traumatic shock disorder.
You are told that Pete has developed post-traumatic shock disorder. He is, therefore, suffering from a recognised psychiatric disorder.
Is Pete a primary victim? As Pete is in Paris at the time of the accident – hundreds of miles from the zone of danger – he clearly cannot be a primary victim. As the answer here is straightforward you should not spend long discussing it – identify the relevant law, discuss it and then move on. Extended discussions of law which is plainly irrelevant or straightforward is not only a waste of time - it simply draws attention to the fact that you cannot distinguish the relevant from the irrelevant. Just as being dogmatic in asserting the law is X when it is arguably Y is wrong, it is equally so to assert the position is debatable when in fact the law is clear.
The key issue here is whether Pete meets the criteria in order to be classed as a secondary victim. If you have already outlined the Alcock criteria in your discussion of Hannah's claim – refer back to this. There is no need to restate. As Madeleine's brother, Pete does not have the benefit of the presumption of a close tie of love and affection but may be able to prove it (1). A common error made by students is to assume that siblings cannot claim in negligence for psychiatric injury. Just because there is no presumption of a close tie of love and affection does not mean that there is not one, it simply means that the claimant has to show that there is one.
(2) In any event the fact that he is in Paris at the time of the explosion means that Pete is likely to be too far away to meet the criterion of 'proximity' and 'shock' (2 & 3). However, Pete may be able to show that he encountered the 'immediate aftermath' of the incident. In McLoughlin v O'Brian [1982], Mrs McLoughlin arriving at the hospital 2 hours after the accident and finding her family in a similar state to that encountered by Pete was able to establish that she had happened upon the immediate aftermath, in Alcock, friends and family members arriving nine hours after the accident (albeit as quickly as they could) were unable to recover. Again, you need state the legal issue and consider which way this is likely to go on the facts given. It is worth noting for a time the courts appeared to be quite generous when determining the extent of the immediate aftermath. In Galli-Atkinson v Seghal [2003], for example, the Court of Appeal allowed a mother's claim for psychiatric harm following the death of her daughter in a road traffic accident on the basis that the aftermath of an accident could be viewed as being made up of different component parts in particular the mother's visit to the scene of the accident, and the hospital morgue. Although this case is not directly analogous to Pete's situation as presumably he will go straight to the hospital and he is Madeleine's brother, not parent. However, this should now be read in light of Berisha v Stone Superstore Ltd [2014] and Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015].
(3) The relatives in Alcock who were watching the match on television were unable to claim some of whom, like Pete, thought they saw their family member in the crush. Can Pete's claim be distinguished? The possibility that watching a live broadcast could exceptionally ground a claim if it is clear that the victims have died, for example, if a hot air balloon carrying a number of children to explode live on television was left open in Alcock – however it is very unlikely that hearing an explosion on the radio would fall into this category, although the smaller number of people present may make it more likely that Pete could have heard his sister screaming.
Lucy
Lucy has attended every Blinking Idiot gig in the UK and has travelled to a number of their overseas concerts. She is a founder member of their fan club and regularly contributes to their fan magazine. She always tries to stand as close as possible to the stage. Miraculously she was not hurt by the explosion but has since been overcome with grief.
Lucy's claim fails at the first hurdle. She is not suffering from a recognised psychiatric illness. Mere grief is insufficient to found a claim (Hinz v Berry [1970]).
However, it is worth noting – in passing – that she otherwise satisfies the requirements to be a primary victim. You are told that she 'tries to stand as close as possible to the stage' and so you can assume that she was close enough to be at risk of physical injury (Page v Smith [1996]).
Any discussion of Lucy's potential claim as a secondary victim is largely academic and, as such, should be minimal. It should focus on her inability to meet the first hurdle (close ties of love and affection) albeit while satisfying hurdles 2 & 3 (proximity and shock).
Tim
Tim was one of the first on the scene. He is a trainee ambulance man and this was his first major incident. He rushes to the stage but quickly sees that there is little he can do. He spends the next two hours comforting distraught fans. He later suffers from recurring nightmares and panic attacks.
Although Tim is a 'rescuer', following the decision of the House of Lords in White v Chief Constable of South Yorkshire Police [1998], this makes no difference to the detail his claim. Tim has to meet the primary or secondary victim requirements in order for his claim to be successful.
Is he a primary victim? Assuming that his 'nightmares and panic attacks' are symptoms of a recognised psychiatric illness – he then needs to establish that he was in the 'zone of danger'. On the facts as given, he is never in physical danger. Nor is he a secondary victim. The discussion of both these issues can be relatively brief here. You will have discussed them in full, above, and so all you need to show is that you are aware of the application of the legal issues in relation Tim's claim.
However, the reasoning in White could be distinguished on the basis that it is applicable only to 'professional' rescuers case (section 5.7.1). If so, Chadwick v British Railways Board [1967] might apply. This is a contentious (and weak) argument – rejected by both the Court of Appeal and House of Lords in White – and must be acknowledged as such. Be explicit about the nature of any uncertainty, and by all means offer a tentative view on how a future court might resolve the case. The key issue is whether Tim is a professional (although he's an ambulance man it's his first time), if not his claim could be successful according to the principles in Chadwick.
Stuart
Stuart, one of the roadies, is overcome with feelings of guilt and depression. It was his job to fix the lighting and he feels the explosion was his fault. A subsequent investigation completely exonerates him.
Stuart's potential claim is included here to allow you to discuss those claims which fall outside the primary and secondary victim categorisation. Stuart is an involuntary participant in the incident.
First, Stuart would need to show that his guilt and depression amount to a recognised psychiatric illness (Hinz v Berry [1970]).
An application of the reasoning in Dooley v Cammell Laird & Co Ltd [1951] suggests that Stuart would be able to recover. The claimant in Dooley was able to recover on the basis that he feared his actions had caused injury to others – in Stuart's case this has actually happened. However, the law here is not as straightforward as it might seem. It is important that where legal doubt is identified, you recognise it and look at the relevant case law or statute in detail. However, this detail is selective: only include facts of a case, legal principles, judicial statements where necessary. In Hunter v British Coal Corporation [1999] the Court of Appeal distinguished Dooley, making it clear that even in these 'inadvertent agency' cases the requirement of proximity in time and space still applies. This additional factor (if applicable – the later House of Lords' decision in W v Essex County Council [2000] suggests that Hunter may have been wrongly decided) does not necessarily defeat Stuart's claim. A roadie may be expected to be near the stage during a gig. Again, you have not been given enough facts to come to a definitive conclusion here – so simply identify the issue, suggest which way you think the court is likely to go and what factors it will take into account and move on.
Breach, causation, and defences
Unfortunately, the lighting rig (onto which the spotlight was fitted) had been negligently maintained by Rack & Horse Lighting. The sight is particularly gruesome.
It is essential that you also address the other elements to a claim in the tort of negligence in your answer. In this question, these can all be dealt with easily and quickly at the end of your answer as the issues are the same in relation to each potential claimant.
You are told that the lighting rig has been negligently maintained by Rack & Horse Lighting. In so doing, they have clearly fallen below the standard of care expected of them (Chapter 8) and so will be in breach of any duty of care owed. Similarly, issues of causation and defences are straightforward. It seems reasonable to assume that the spotlight fell onto the stage (causing the explosion) as a result of the lighting rig being negligently maintained (cause in fact). And the explosion and resulting injuries are an entirely foreseeable consequence of this (cause in law) (Chapter 9). Finally, there is nothing in the question to suggest that any defences are open to Rack & Horse Lighting (Chapter 10).
Conclusion
Finally, avoid lengthy conclusions: a crisp summary of the outcome of your analysis is sufficient.