Chapter 3 Guidance on answering the questions in the book

Duty of care II: bodily injury and psychiatric illness

The first issue in psychiatric illness cases will be whether the claimant has suffered a psychiatric illness: Rothwell v Chemical and Insulating Co Ltd. In this case, we are told that both claimants have suffered such. The next question is what category of claim is being made. With Jeff, this is unclear. But it seems arguable that he was a primary victim of negligence because he was both within the zone of danger when rescuing a child from a burning house and also ‘overcome by fumes’, which appear to have had a temporary physical effect. These fumes might have had the ability to kill him. If Jeff was a primary victim, then he would be able to recover so long as it was reasonably foreseeable to a person in the position of the defendant that, if they failed to take care so as to cause a fire which required the attendance of a fire officer, that that officer might suffer some form of ‘personal injury’ – whether physical or psychiatric: Page v Smith. This would have been foreseeable to a person in Myra’s position. If Jeff cannot claim on this basis, then he would have to make a claim as a secondary victim – but he has no ties of love and affection to persons endangered: White v Chief Constable. As to Myra, it is her own negligence which has imperilled her son, her dog and Jeff. In the circumstances, it would be difficult for her to be able to make claim against the rescuer. Moreover, although she might be seen to have a ‘tie of love and affection’ to the dog, there have been no successful secondary victim cases with respect to animals killed or injured by negligence. Moreover, the Attia v British Gas case is a very shaky foundation for making a claim with respect to injury to ‘property’ (in the dog). Don’t forget that, in order to succeed in the tort of negligence, rules of not only duty need to be satisfied, but those relating also to breach and causation.

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