Compensation as a Result of Skyrides Tort

Several issues need to be discussed in this scenario to establish if Abdul, Brian and Christine can successfully claim for compensation as a result of Skyride’s tort.

Whether Skyride Ltd owed a duty of care to all the parties involved is the first issue to consider, as Duty is only one element in the tort of negligence for it must be shown that not only was the defendant under a duty towards the claimant to be careful, but also that he failed to achieve the required standard of care and that that failure caused the damage, and finally that the damage was not too remote a consequence of the act.

Duty of Care

It is considered that one of the main ways to claim for compensation is through the doctrine of a Duty of Care which is when one party is liable to another in negligence. In Donoghue v Stevenson (1932) [1] the “neighbour principle” was established. Lord Atkins stated that “You must take reasonable care to avoid acts or omissions….likely to injure your neighbour.”

Secondly, Lord Atkin enunciated a broad principle of liability. A duty was owed to ‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected.’

For the defendant to be able to foresee a risk of being harmed, the claimant is not required to be individually identifiable. They merely have to fall within a category where the risk of harm was foreseeable. We are already told that this was the most popular ride was the roller coaster. In Ann’s v Merton (1978) [2] , a two stage test was established and changed the way the neighbour test was applied. [3] The leading case used to establish a duty is given in Caparo (1990) [4] where the courts are required to consider three main questions. The first question is whether there was proximity, in terms of a relationship, between the claimant and the defendant? 2) Was the damage reasonably foreseeable? The courts enquire whether a reasonable man ‘The man in the street’ [5] would have foreseen the risk of damage, had they been in the defendant’s position, 3) was it just, fair and reasonable to impose such a duty? Policy factors have always been present in the formulation of the duty issue but have been variously expressed.

The essential question is whether the relationship between the claimants Skyride is of sufficient ‘proximity’—that it imposes upon the latter a duty to take care to avoid or prevent that loss which has in fact been sustained.

Breach of Duty

The next question is whether there has been a breach of the duty of care. Has Skyride actually been negligent?

Has Skyride conformed to the standard of care expected of a reasonable person?

In Glasgow Corporation v Muir [1943] AC 448 the objective test of a reasonable man was set out by Lord Macmillan.

‘The standard of foresight of the reasonable man is, in one sense, an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question.’

Whilst it is up to the courts to decide if the actions of Skyride were in breach of their duty to the claimants, no reasonable man would have expected a carriage to come off the roller coaster, if they had of no one would have used the ride in the first place.

In the case of Hayley v London Electricity Board 1965 [6] it was held that the defendant should have reached a higher standard of care where there was an increased likelihood of injury. A roller coaster coming of the rails is going to have a significant likelihood of injury and therefore Skyride should have provided a much higher standard of care than they did.

The greater the risk to the passengers on the roller coaster, the greater precautions needs to be taken by Skyride as illustrated in Bolton V Stone [7] and Miller V Jackson [8] .

Causation

The next stage is to determine that without the defendants act would the claimant have suffered loss of damage. Factual causation (the ‘but for’ test) is the starting point for the courts in determining but for the actions of defendant the claimant would not have suffered a loss. This is called the ‘chain of causation

The case that best illustrates this issue is Barnett v Chelsea and Kensington Hospital Management Committee 1969 [9] .The legal principle in this case that the Dr’s failure to treat the patient did cause his death and therefore the chain causation was broken and the Dr was not liable.

It could be argued that ‘but for’ the negligent conduct of Skyride, Abdul would not suffered any damage, Dave would still be alive, Brian would not be traumatised and Christie would not have witnessed Dave dying.

Although Abdul has suffered mental illness in the past he only needs to show that the actions of Skyride materially contributed’ to his illness. As illustrated in Bonnington Castlings Ltd v Wardlaw 1956 [10] .

Remoteness

The next issue is remoteness. In Abdul’s case he has a pre-existing medical condition. This is referred to as the ‘egg-shell rule’, in other words Skyride must take Abdul as they find him. This is where the type of injury is foreseeable but the severity is not due to an pre-existing medical condition as illustrated in Smith v Leech brain & Co Ltd 1962 [11] . The egg –shell skull rule also applies to psychiatric damage Brive v Brown 1984 [12] .

Nervous Shock Brian and Abdul

Nervous Shock can be defined as a legally recognised mental disorder which is commonly called Post Traumatic Stress Disorder (PTSD), usually triggered by witnessing an accident [13] . In McLoughlin (1983) [14] Lord Bridge defined nervous shock as; “A positive psychiatric illness.” To have a successful claim for nervous shock the plaintiff must prove they have suffered from a genuine illness as medical evidence will be needed to prove this [15] . There are three different categories which determine the class of the plaintiff. White (1998) [16] classified the three as; 1) Primary Victims, [17] where a plaintiff is personally involved in the actual event and were psychiatrically injured as a result. 2) Secondary Victims, [18] where a plaintiff is not involved in the actual event but suffers psychiatric injury as a result of witnessing the event and 3) Rescuers, [19] where a plaintiff is not involved in the actual event but put themselves in the way of danger and suffer psychiatric injury as a result.

Abdul witnessed the event take place, where as Brian was informed of the incident by telephone. The Secondary victim requirements upheld in Alcock include; 1) sufficient reliance with the victim in terms of love and affection, 2) proximity in time and place must be the immediate aftermath, 3) he/she must see or hear the event happen, and 4) the event must be traumatic. McLoughlin took the same approach and applied set requirements to help identify Secondary victims [20] . Dave was in the carriage that plunged to the ground Brian was not in close proximity however with regards to their relationship, it can be seen to be a close friendship as they were father and son. The accident itself was clearly traumatic as a death had occurred and so the foresee ability of Brian suffering from nervous shock is expected. With the requirements set in Alcock, Brian may not be successful with his claim. He had a sufficient relationship with Dave as he was the father so there was love and affection and the event itself was undoubtedly traumatic for him. However, he did not see or hear the incident take place; he was informed over the telephone, which must be in the immediate aftermath. Depending on the length of time from when the accident took place, presuming it was a few hours after, it will not be categorized as the immediate aftermath. The House of Lords have stated that merely being informed of the accident by a third party [21] is not sufficiently immediate [22] . It was not foreseeable that Brian would receive a telephone call informing him that his son had died due to negligent of Skydive

I would advise that both Brian and Abdul are to be classified as Secondary victims [23] and on the basis of satisfying the requirements; they can sue Skyride for compensation [24] . The more foreseeable the harm the more likely the court will hold the relationship as proximate, fair and reasonable to impose a duty and will therefore be able to claim compensation. The final category of claimant is the injured rescuer. It would advise Christie that in order to sue Skyride she must show that she is s Primary victim. In Alcock rescuers were considered Primary victims; however in White in order for her to show that she was a Primary victim she must show actual or apprehended danger. As she was not she would be classified as a Secondary victim making it difficult for her the claim.