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past year question and answer - (OLA, Neg,Psychiatric Injury)
Law of Tort (LAW209)
University of Liverpool
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Q8 2017
In January 2017 , Sheila , who lives in Cambridge , came to London for a two - month visit with her daughter Ruth and her family. She had not seen them in three years. In February , she took her six - year - old granddaughter Linda to the children's playground , run by St John's Church. The local council , the Richmond Council , had a statutory power to inspect such playgrounds but had not done so for six years. Linda played on slide sliding down one time her foot was caught and she suffered a nasty gash on her ankle. Sheila managed to extricate Linda and took her to the Accident and Emergency Department at the London Bridge Hospital. There was a long queue of patients waiting for treatment. Rosie , the nurse who first examined Linda , classified her as low priority. Linda was not fully examined for eight hours. By that time Sheila had telephoned Ruth , who joined them at the hospital. When she was eventually treated , Linda's wound was found to be badly infected. The wound did not heal and to save Linda's life it was necessary to amputate her foot. Medical evidence showed that if she had been attended to immediately on arrival , she would have made a complete recovery after a few weeks. As a result , both Sheila and Ruth have suffered a recognised psychiatric injury. Advise Linda , Ruth and Sheila on their respective claims , if any.
Outline: 1) Linda v St John’s Church- OLA 2) Linda v Richmond Council- Negligence 3) Linda v Rosie- professional negligence (special skills are involved) 4) Ruth v Rosie- Psychiatric injury (secondary victim- not in the zone of physical danger) 5) Sheila v Rosie- Psychiatric injury (secondary victim- not in the zone of physical danger)
Answer: Linda’s representative vs St John’s Church Linda’s representative would bring an action against St John’s church under Occupiers’ Liability. This is because Linda’s injury is as a result of the conditions of premise. Therefore, it is more appropriate that the claim should be under Occupiers’ Liability. The St
John’s Church would be occupier on the facts as per the case of Wheat v E’Lacon where the St John’s Church has sufficient degree of control over the premise. It is clear that the St John’s Church has the right to allow or disallow anyone into the playground. Therefore, they have sufficient control. Linda is considered as a visitor. This is because normally such playgrounds are opened to the public and therefore the claim will be under Occupiers’ Liability Act 1957 (OLA). If Linda is a visitor, under S2(1) of OLA 1957 , St John’s Church will owe Linda a duty of care. The relevant standard of care is provided under S2(2) i. to take such steps to ensure the visitor is reasonably safe in using the premise for the purpose he is inviting for. The court will also take into account other factors to determine whether the church has fallen below the standard. On facts, S2(3)(a) OLA 1957 will be relevant. If a child is involved, the court will have expected a higher standard and therefore it is easier to argue that the church has breached its duty. However, is it possible to push the responsibility to the parents or any adult who is supervising the child. The case of Phipps v Rochester Corporation will be relevant where the court pushed the responsibility to the parents because occupiers will be entitled to expect that a 5 year- old boy would be supervised by his parents in a construction area. However, on the facts, this is a playground and the grandmother was presented at the time of incident. It is difficult to push the liability to the grandmother because of a playground should be safe for the child. Therefore, most probably there is a breach on the part of the church. It is concluded that the claim can be successful.
Linda’s representative vs Richmond Council As far as the local council is concerned, Linda’s representative might have a claim against them under the tort of negligence. Duty of care is established because the local council has a statutory power to inspect such playground i., they are expected to do so and therefore they can be a duty of care.
For breach, in discharging their duty, the court will apply the reasonable man test i. whether a reasonable person in the position of the local council would have done the same thing. The duty existed to ensure that the playground is safe for children, therefore if the duty is not discharged, there is a high likelihood of harm and as per the case of Miller v Jackson, this will indicate a breach of duty. The high likelihood of harm in this scenario can also cause a serious harm to the children. In Paris v Stepney BC , the court concluded that
have recovered within a few weeks. Therefore, the but for test in Barnett v Chelsea and Kensington HMC is satisfied. It is also reasonably foreseeable that such wound can get infected and lead to amputation and therefore the damage is reasonably foreseeable. The Wagon Mound rule is satisfied i. legal causation is established.
Ruth, Sheila v Rosie As far as Ruth and Sheila are concerned, they can bring a claim for psychiatric injury. In establishing duty of care, the two pre-conditions of recovery must be satisfied. Firstly, it must be a recognisable psychiatric injury as per the case of Hinz v Berry. Medical evidences must be adduced to prove this. If both Ruth and Sheila are able to provide evidences, then they will satisfy the first pre-conditions. Second pre-condition is the test of reasonable foreseeability. After Page v Smith , for primary victim, reasonable foreseeability of physical injury is sufficient while for secondary victim, it has to be reasonable foreseeability of psychiatric injury. Therefore, the distinction between primary victim and secondary victim is very important. According to Lord Oliver in Alcock v Chief Constable of South Yorkshire Police , a primary victim is someone in the zone of physical injury. If the victim is outside the zone of physical injury, he will be a secondary victim. Both Ruth and Sheila will be considered as secondary victim and therefore, the core question is whether psychiatric injury is reasonably foreseeable. It is reasonably foreseeable when you witness something horrifying occurring to someone else that the person witnessing could suffered psychiatric injury. The additional proximity requirement as mentioned by Lord Wilberforce in Alcock is needed to be considered for the secondary victim i. love and affection, proximity in time and space, actual sight and hearing and lastly the psychiatric injury must be induced by shock. For Ruth, there is a presumption as a mother, there is love and affection. For Sheila, she has to bring evidence to prove love and affection. Proximity in time and space and actual sight and hearing are satisfied. For the requirement of the psychiatric injury must be induced by shock, the current scenario and the case of Sion v Hampstead Health Authority need to be contrast where in Sion , the duration is 2 weeks before the operation but in this case the amputation is expected to be on the same day therefore, it can be argued that the psychiatric injury is induced by shock.
Two pre conditions of recovery 1) Recognised psychiatric injury (Hinz v Berry) 2) Test of foreseeability (Page v Smith) -Primary victim (Reasonable foreseeability of physical injury) -Secondary victim (Reasonable foreseeability of psychiatric injury) -Lord Oliver- Alcock- difference between 1st and 2nd- Zone of physical danger -2nd Victim-Additional proximity requirement- Lord Wilberforce- Love and affection, proximity in time and space, actual sight and hearing, must be induced by shock (Lord Keith)
past year question and answer - (OLA, Neg,Psychiatric Injury)
Module: Law of Tort (LAW209)
University: University of Liverpool
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