Sunday, July 20, 2008

Case Study: Dulieu v. White

Introduction

Tort law provides remedy to people who have been hurt by the actions of the others and have suffered a loss due to the same. In the wide ambit of tort law, the tort of negligence holds a very prominent position where due to the ‘negligent’ actions of other person(s) injury or loss is inflicted. Psychiatric Injury is a relatively new area where developments are taking place at a very fast pace. Dulieu v. White, which was decided in 1901 is like a building block in this field. The reasons that were previously cited by judges for not awarding compensation on this basis was that it is difficult to probe into the magnitude of psychiatric injury caused and the vast number of cases that the courts will have to take care of as the result of the same. But, subsequently this notion changed. This research paper looks into these developments keeping in view Dulieu v. White as a reference point.
Research Methodology

AIMS and OBJECTIVES: The aim of this research paper is to look into the aspect of psychiatric injury with respect to the famous case of Dulieu v. White, and find out the subsequent impact of the judgment in the future cases.

Scope and Limitations: This scope of this research paper lies in determining the development of field of tort of negligence with a specialized area of psychiatric injury. However, the research paper has only probed into those aspects of psychiatric injury which are subsequently related to the case, a holistic view has not been taken.

Mode of Citation: A uniform mode of citation has been followed throughout the paper.

Sources: The researcher has relied only on secondary sources to write this research paper.

Method of Writing: An argumentative mode of writing has been adopted in writing this research paper.

Research Questions:

  1. What were the hurdles before the courts of not recognizing psychiatric injury as a whole a field for claiming damages?
  2. What are the justifications of a person claiming damages who is actually not present at the time of defendants’ negligent act?
  3. Is ‘remoteness to damage’ an important determinant factor for compensation to be granted under psychiatric injury?

Chapterisation:

Chapter 1: The first chapter deals with the aspect of negligence as tort in general, it looks into the various elements of negligence and how psychiatric injury falls under the ambit of tort of negligence.

Chapter 2: The second chapter qualitatively examines the judgment of the case of Dulieu v. White and also critically throws light on various issues that came across judges in this case along with how it were dealt by them. The ‘thin skull’ theory is discussed in this section.

Chapter3: The various principles that were established by the judges have been looked into critically in the third chapter of this research paper. The subsequent judgments and its impact on the development of tort of negligence have been evaluated.


Chapter 1

Psychiatric Injury

Psychiatric injury comes under the ambit of negligence, now the most important aspect that has to be looked at is what constitutes negligence and what is the meaning when it is said that a psychiatric injury has taken place. The term ‘negligence’ has two meanings in the law of torts –

  1. Negligence as a mode of committing certain trots, e.g. negligently or carelessly committing trespass, nuisance or defamation. In this context, it denotes the mental element.
  2. Negligence is considered as a separate tort. It means conduct which creates a risk of causing damage, rather than state of mind.[1]

The causation of a psychiatric injury is of a recent origin in the development of the tort law. It provides relief when a person may get physical injury not by an impact itself. This important element differentiates it from the other aspects of negligence. In the leading case of Victorian Railway Commissioner v. Coultas[2], did not recognize injury caused by a shock sustained through the medium of eye or ear without direct contact.

They thought that an action could not be sustained in the absence of a physical contact or ‘injury’ being caused. In the case of Wilkinson v. Downtown[3] it was recognized that nervous shock could be a possible area where the plaintiff could claim under the tort law. It was also recognized that all the elements of negligence-

  1. The defendant owed a duty of care to the plaintiff.
  2. The defendant made a breach of contract.
  3. The plaintiff suffered damage as a consequence thereof.

Were completely satisfied to conclude that an act of negligence has taken place in the case of a nervous shock or psychiatric injury. In the subsequent part of this project the researcher has tried to find out how the development of tort of negligence in the field of psychiatric injury has taken place before and prior to Dulieu v. White.
Chapter 2

Dulieu v. White [1901] 2 KB 699

The case of Dulieu v. White which was decided by the House of Lords in 1901, is considered to be a landmark judgment in the area of claiming damages based on psychiatric illness.

Facts

In this case, the plaintiff was the wife of A.R. Dulieu, who carried on the business of a licensed victualler at the Bonner Arms, London. On July 20, 1900, the plaintiff was behind the bar of her husband’s public-house, she being then pregnant, when the defendants’ servant so negligently drove a pair horse driven van as to drive it into the public-house[4]. The plaintiff in consequence sustained severe nervous shock and was and continued to be seriously ill, and on September 29, 1900, she gave birth to a premature child. In consequence of the shock sustained by the plaintiff the child born was an idiot. The plaintiff claimed damages in respect of these matters.[5]

The issues of law that have been looked into the matter by court are –

  1. Did the defendant’s servant who was driving on the road owe a duty of care to the plaintiff who was inside her house and not on the road?
  2. Can remoteness of the damage that was suffered and the plaintiff’s act, can it be a valid ground for not being liable?

Let us look into the principles and issues that have been put before the court and the law which existed prior to the case and what implications does it have on the decision of the case itself.

This is an action for the negligence- that is to say, for a breach on the part of the defendant’s servant of the duty to use reasonable and proper care and skill in management of the defendant’s van.[6] In order to succeed the plaintiff has to prove- “a natural and continuous sequence interruptedly connecting breach of duty with the damage as a cause and effect.”

In regard to the existence of duty it was held that, van and horses in a highway owes a duty of care to use reasonable care and skill so as not to injure either person who, like the plaintiff, are lawfully occupying the property. The legal duty of the defendant exists towards all appears to be identical in character and degree. This is the first principle established in this case. Kennedy J. contended that it does not matter where the person is outside or inside the house. The extent of liability does not change for the two, even though the latter is not on the road. Being inside doesn’t make the defendant taking higher degree for the same.[7]

The defendants had pleaded, as a matter of law, that the damages sought to be recovered are too remote and that the statement of claim upon its face discloses no course of action. It was contended by the defendants that the driving of the carriage into the public house of the plaintiff’s husband and she suffering a nervous shock and therefore miscarriage were too remote a possibility for claim to exist. It was also argued that legal validity of the claim in the statement of action for negligence would exist when there is no immediate physical injury to the plaintiff.[8]

The leading case before this case was decided which acted as a precedent for this case was that of Victorian Railways Comrs. v. Coultas[9] where the appellants gatekeeper negligently invited the male plaintiff and his wife, who were driving in a buggy, to enter the gate crossing when the train was approaching, and, though there was no actual collision with the train, the escape was so narrow and the danger so alarming that the lady fainted and suffered serious nervous shock which produced illness and miscarriage. The Privy Council judgment formulated the earlier established principle of law which will be subsequently be changed by the present case in consideration of Dulieu v. White[10].

Damages arising from sudden terror, unaccompanied by any actual physical injury, but occasioning a nervous shock or mental shock, cannot under such circumstances, be considered a consequence which, in ordinary course of things, would flow from the negligence of the gatekeeper.

It was held that “Remoteness”, as a legal ground for the exclusion of damage in tort, surely means, not severance of time, but the absence of direct and natural casual sequence- the inability to trace it, in regard of the damage, the necessary or natural descent of the wrongful act. It was also held previously in Mitchell v. Rochester Railroad Co.-

“That the result may be nervous disease, blindness, insanity, or even a miscarriage, it no way changes the principle. The results merely show the degree of flight of the damages. The right action must still depend upon the question whether a recovery may be had for fright.”

The counsel for the defendants on the argument referred to American case of Mitchell v. Rochester Railroad Co[11]. The court of Appeal in New York held, that no recovery may be had for fright and also that it could not properly be said to be plaintiff’s miscarriage in that case was the proximate result of the defendants’ negligence. The courts in US held that – “were plainly the result of an accident or unusual combination of circumstances which could not have been reasonably anticipated and over which the defendant had no control.”[12]

The judges of the House of Lords in Dulieu v. White[13] case completely deferred from this opinion of the US court. Lord Kennedy further laid out the principle of ‘thin skull’ over here which occupies a very significant influence which is later discussed in the latter section of the project.

Chapter 3

New Principles and Subsequent Effect

It can only be said that the defendants’ driver negligently driving threatened the plaintiff with immediate bodily injury, and by that threat caused terror which caused the injuries as mentioned. Whether the terror was, in circumstances, a natural and reasonable result of the threat was the question of fact. It may be admitted that the plaintiff, as regard the personal injuries, would not have suffered as she did, and probably not to the same extent as she did, if she had not been pregnant at that time; and no doubt the driver of the defendant could not or never anticipate this condition[14]. But what does that fact matter at all? If the man is negligently run over or otherwise negligently injured to the sufferer’s claim for damages that he would have suffered less injury or no injury at all if he had not had an unusually thin skull or unusually weak heart.[15]

Prior to this case, remoteness of damage was considered to the major ‘loophole’ in seeking remedy under the tort law. But, this case opened up new arena for seeking fair compensation for the damage that has been caused. On the matter of remoteness, the same judge Kennedy J. who propounded the remoteness principle added to it a new essence. It was held in Victoria Railway Co. v. Coultas[16] that : ‘Remoteness’, as a legal ground for the exclusion of damage in the action of tort, surely means, not severance in point of time, but the absence of direct and natural casual sequence- the inability to trace, in regard of damage, the proper hoe in a necessary or natural descent from the wrongful act. He further added in Dulieu’s case that injury to health which forms the main ground of damages in action of negligence, not as a concomitant of the occurrence, but as one of the squeal.

The principle laid out was if the ‘impact’ was not necessary, as if, as must be assumed, the fear is proved to have naturally or directly produced the physical effects so as to ill results of negligence which caused the fears are measurable in damages as the same results would be if arose from an impact? An important limitation has been talked about in the case. The shock, in order to provide action, must arise from the fear of immediate personal injury only.[17] It cannot be contended that seeing other person being killed I had a nervous shock. This was the second principle laid down in this case.

This decision of the courts led to following of a particular trend in the jurisprudence that has taken place in the field of psychiatric injury. From the thin skull principle and the statement that only the person who is directly involved in the incidence can claim compensation was followed until recently. This led to the principle of a primary and a secondary victim whose roots lie in the judgment of Dulieu v. White.[18]

Subsequent Developments

Claimant a witness of danger to others- a secondary victim

The situation here is such that A’s negligence causes injury to B( or puts B in the danger of injury) and C (who is neither injured nor in danger) suffers a shock due to such incident. The leading case in this regard is Alock v. Chief Constable of South Yorkshire[19]. The judges while deciding this case depended upon the principle laid down by the Dulieu v. White case. In Alock v. Chief Constable of South Yorkshire[20], the 10 appellants suffered psychiatric injury as a result of the disaster in Hillsborough Stadium in 1989. As the result of the admitted negligence of the defendants, some 95 people were crushed to death and over 400 physically injured. None of the appellants suffered any physical injury, nor been in the danger of the injury, most of them happen to be not present in the stadium itself were watching the event on the television. Here it was it was felt that there was a need for the law to transform itself into something new and dynamic in order to tackle such situations.[21]

The principles laid down here were beyond the ambit of reasonable forseeability and medical proof of causation on the range of admissible claims. Here three elements were identified[22]

  1. The class of people who should be recognized.
  2. Proximity to those who were involved in the accident
  3. The means by which the trauma to the claimant is caused.

It should also be understood that in practical applications the second and the third points are closely related and should be dealt with close proximity and relationship.

As far as the first element of the class of people the court rejected any arbitrary qualifying test by reference to particular relationships. It was laid down that the “kinds of relationships which may involve close ties of love and affection are numerous, and it is the existence of such ties which leads to mental disturbance when loved one suffers a catastrophe. The question which shall be looked at is the closeness of relationship rather than type of relationship.” But the closeness of relationship is assumed in certain relationships like father and son, mother and son, husband and wife etc. The result is that a mere bystander will not be able to sue.

This was a very important result of the same as the problem of lot of claimed was also touched upon in the case of Dulieu v. White[23] by the judges who cited such reasons for not entertaining many claims.

The second element which must be satisfied is that there must be sufficient proximity of time and place of the event leading to the mental injury. However, there is a considerable extension of this principle to cover the “immediate aftermath” of the event[24]. This was established in McLoughlin v. O’Brian[25] in which a lady whose family met with an accident saw her husband and children after many hours of the accident happening was granted a claim. It was found that circumstance were “distressing in the extreme and capable of producing a effect going beyond grief and sorrow.”[26]

The third element, the means by which the injury is caused, requires that it must be sight or hearing of the event or its immediate aftermath. Notification by third parties (including newspaper and broadcast reports) will not do. In practical terms, a claimant who fails the second element will not be able to satisfy this requirement, though it is possible that there could be a case in which the claimant was in vicinity but failed to satisfy the third requirement.[27]

It can be seen that mental injury only gives rise to cause of action if there is a recognized psychiatric illness. But it is the logical consequence of the second and third requirements that there can be no recovery even if there is there is an illness if it is a product of grief at death of a loved one rather than a reaction causing the death. This may require to carry out the very difficult exercise of “post traumatic stress disorder” and “pathological grief disorder.”[28]

Conclusion

Analyzing the different aspects of the tort of negligence in the ambit of psychiatric injury, it can be said that the case of Dulieu v. White acted as a subsequent light to the future judgments and developments in this field and recognizing the principle of primary and secondary victim whose seeds lie in this case. Dulieu v. White became the second important judgment after Wilkinson v. Downtown which recognized the nervous shock.

Therefore, Dulieu v. White acted as a base to the future development of primary and secondary victim and also laid down the principle of ‘thin skull’ which draws it inference from the American case of Mitchell v. Rochester Railroad Co.

Bibliography

Books:

W.V.H.Rogers, Winfield & Jolowicz on Tort (16th ed., London: Sweet & Maxwell Ltd., 2002)

R.K.Bangia, Law of Torts (18th ed., Faridabad: Allahabad Law Agency, 2005)

G.P.Singh, The Law of Torts (25th ed, New Delhi: Wadhwa & Company, 2007)

Articles

J.Fleming, “The Future of Negligence in Accident Law”, Virginia Law Review, Vol. 53(4)(1967)

Unknown, “Negligence : Duty of Care.”http://www.a-level-law.com/tort/Negligence/duty_lecture.htm

Websites

www.a-level-law.com



[1] (1932) A.C. 562.

[2] (1888) 4 T.L.R. 286.

[3] Supra note 1.

[4] (1901) 2 K.B. 699.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Supra note 2.

[10] Supra note 4.

[11] (1896) 151 N.Y. 107.

[12] Id.

[13] Supra note 4.

[14] Supra note 4.

[15] Supra note 11.

[16] Supra note 2.

[17] Supra note 4.

[18] Supra note 11.

[19] (1991) 4 All. E.R. 907.

[20] Id.

[21] Id.

[22] W.V.H.Rogers, Winfield & Jolowicz on Tort (16th ed., London: Sweet & Maxwell Ltd., 2002) at 107.

[23] Supra note 4.

[24] Unknown, “Negligence : Duty of Care.”http://www.a-level-law.com/tort/Negligence/duty_lecture.htm visited on 16/12/07.

[25] (1982) 2 All. E.R. 298.

[26] Id.

[27] Id.

[28] Supra note 22, at 110.

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