Duty of care, Causation, Psychiatric illness, Defences

Second Tort Problem

Albert is admitted as a patient to the Trustham Hospital for psychiatric observation on account of his increasingly erratic behaviour. Two days later, an explosion as a nearby factory causes many casualties. The hospital, being under pressure to provide beds for emergency cases, discharges a number of patients early, including Albert. Shortly afterwards, Albert goes to the crowded town centre, where he sees a parked car with the keys left in the ignition. He gets into the car, drives off at great speed and crashes into a stationary van. Albert himself is unhurt. He gets out of the car and pushes Brian, the first person he sees in the street, through a plate glass window, severely injuring him. The shop assistant, Cheryl, who narrowly avoids being physically injured in the incident herself, is greatly distressed and too traumatised to return to work for several weeks.

Albert is subsequently convicted of causing grievous bodily harm and sentenced to eight years' imprisonment. While he is in prison, there is a marked deterioration in his mental condition, a deterioration which he attributes to the effect on his mind of his brutal attack on Brian.

Discuss

The torts committed here are those of negligence, trespass to the person, namely assault and battery, trespass to goods and conversion. There are also possible actions for third party liability.

As regards Trustham Hospital, Albert could bring an action against the authority for discharging him early. He would be trying to receive damages in negligence for the deterioration in his mental condition; something he claimed was the result of his attack on Brian. Albert would have to establish that the health authority owed a duty of care, that the duty was breached and that this breach caused the accident for which damages are being sought. A duty of care is established by the principles set out in Caparo 1 which state that the damage must be reasonably forseeable by a reasonable person, there was must be a proximity of relationship between the claimant and the defendant, and that finding in favour of the defendant must be fair, just and reasonable. As Albert is attempting to sue a health authority he is questioning the acts of doctors. When professionals are being questioned the test for breach of duty of care is the Bolam 2 test. Professionals are judged by the standard of the reasonable man who possesses the same skill as them. If the expert in question could be judged to have acted reasonably by a reasonable body of professional opinion then there will be no breach.

In this case the hospital was under pressure to provide beds. If the courts hold that a reasonable body would have would have released Albert early in order to meet this demand then liability will not be imposed. It is also hard to establish duty of care in these cases. This difficulty to establish duty and breach relates to the courts reluctance to find professionals liable, as they believe that it will affect the way in which they conduct their business. Furthermore, it is possible that Albert's actions would be judged as a novus actus interveniens. If his conduct could be regarded as being unreasonable in the circumstances then Albert would be found to have broken the chain of causation 3 and he would not be able to bring a successful action. Albert's demonstration of random violence and criminal behaviour would more than likely be viewed as an unforeseen and unreasonable result of his early release and so would constitute a novus actus. In any event, as a matter of social policy, this case will fail following the precedence of the case of Clunis v Camden and Islington Health Authority 4. The judgment of Beldam, L.J. in this case dictated that actions made against health authorities by psychiatric patients seeking to hold the authorities liable for not preventing them from committing criminal acts, are doomed to failure. The reason for this blanket exclusion is that such decisions would be against public policy, so Albert would be very unlikely to succeed.

Secondly, Brian could try to impose third party liability on the health authority for Albert's attack. Third party liability is notoriously difficult to establish. Essentially, it is a failure to prevent harm. This is established by showing that there was a duty to take positive action. He would claim that the health authority had a duty to control Albert's behaviour and that the relationship between the authority and Albert warranted the imposition of positive obligations. Brian would be claiming that the health authority owed a duty to keep Albert in its care. Should the court rule that Albert's action did constitute a novus actus interveniens then the chain of causation would be broken and Brian's claim would not succeed. However, if it was held that Albert did not break the chain then this argument may succeed in convincing the courts that the authority owed Brian a duty of care. However, as previously mentioned, it is hard to show that professionals breach that duty of care. Again the health authority's actions would be judged against the actions of the reasonably responsible health authority. Still, a further difficulty in attempting to establish third party liability is that the action that caused the damage has to satisfy a high likelihood test. Brian was not a highly likely victim. The case of Palmer v Tees A.H.A.5 found that the mother of a girl murdered by a psychiatric patient could not claim against the health authority under third party liability because it was held that the girl did not hold a 'special status' of a highly likely victim6 . The reason for such stringency is to avoid the floodgates of liability opening, much for the same reason that doctors are somewhat protected in negligence actions by the Bolam test 7 . As Brian was unknown to Albert he would not be a highly likely victim and his action would fail.

The owner of the car could bring an action against Albert for conversion, the equivalent of theft in tort. "Conversion is defined as wilfully dealing with the claimant's property in a way that amounts to a denial of the claimant's rights over it, whereby the claimant is deprived of the use and possession of the property.8 " In this case Albert took the car without permission. The car owner could attempt to sue Albert for the damage that would have occurred to his vehicle when it collided with the stationary van.

The owner of the car may be liable under the tort of negligence to the owner of the stationary van. In order to establish negligence the stationary van owner would have to satisfy the aforesaid test for negligence set out above. In this case it would more than likely be reasonably forseeable that the car would be stolen, and also reasonable to assume that the theft of the car may result in damage to somebody else's property. Proximity may be harder to prove however. The degree of proximity differs with regards to what type of damages is sought. The law holds drivers who have caused personal injury liable when they don't know the victim because the claimants would have been relying on drivers to drive carefully. There is an argument that in this case that proximity could be established because the stationary van owner would have been relying on other vehicle owners to look after their vehicles. The test for breach in this case is the reasonable man test. If it were judged that a reasonable man would not have acted as the defendant did then the duty of care is regarded to have been breached. It is likely that a court would find that no reasonable man would leave the keys in the ignition of their car and then leave that vehicle unattended in a busy town centre. Nonetheless this action would more than likely fail. Following the precedence of the case of Topp v London Country Bus (South West)9. Ltd the action would not succeed on the grounds of causation. This case involved a bus driver leaving the keys in his bus and then leaving the vehicle unattended. A third party subsequently stole the bus and in the course of the theft a woman was knocked down and killed. It was held that the bus driver, although negligent in leaving his keys in the bus, was not liable, as his actions did not cause the accident.10

The owner of the van could also bring an action against Albert for damaging his property by trespass to goods. Firstly it must be shown that Albert's actions must have directly caused the damage to the van. The case of DPP v K11 found that the defendant had directly caused damage to the claimant when he poured acid into a hand-dryer that the claimant later used and was damaged by. The act of crashing a car into property therefore would satisfy the directness test. Secondly the damage must be actionable. Trespass to goods is commonly viewed as actionable without proof of damage but the damage in this case is evident. The van owner must also prove that Albert demonstrated possession. The tort states that this need not be ownership but control.12 Albert would therefore have demonstrated possession. However the action could fail because Albert's hitting of the stationary van may be hard to prove intentional. Again the case of Wilson v Lombank Ltd13 found that intention to act was required in this tort. In this case Albert probably did not intend the act of driving the car into the stationary van. For this reason the action may fail.

A further action that could be brought against Albert is one of battery, brought by Brian. Battery is an example of trespass to the person. It must be intentional.14 In addition the action must also directly cause the damage.15 It is also a requirement that immediate force be shown. The judgement of Robert Goff L.J. in the case of Collins v Wilcock16 demonstrated that immediate force related to actions that could be judged as a "greater degree of physical contact than is reasonably necessary in the circumstances for that purpose.17 " As the requirements for battery are satisfied, Brian would have a high chance of bringing an action for battery successfully against Albert.

Cheryl could also attempt to bring an action against Albert on two grounds, firstly for assault and secondly for causing her psychiatric harm. In order to successfully sue for assault Cheryl would have to show that Albert either intended for her to apprehend immediate physical harm or was reckless in his actions, this follows the precedence of R. v Venna 18. Cheryl must also prove that the apprehension was immediate and direct. Cheryl herself must have apprehended that physical force was about to be used against her.19 Albert obviously did not intend for Cheryl to apprehend imminent physical force as he attacked Brain and not Cheryl. It could be argued that Albert was reckless as he pushed Brian through a window, without regard for safety. However as the attack was not on Cheryl she would not have apprehended danger herself, imminent or otherwise. For these reasons, an action for assault would more than likely fail.

Cheryl could also attempt to sue Albert for causing her psychiatric harm. It is difficult to establish liability for psychiatric harm, mainly because the courts are reluctant to award damages for fear of opening the floodgates to an abundance of litigation. Cheryl's claim would be based on the idea that she was a secondary victim to the attack on Brian as she was obviously not the victim of it. Cheryl would have to show a number of things as per the case of Alcock v Chief Constable of South Yorkshire20 . Firstly she would have to establish a close proximity of relationship with the victim, secondly "some close involvement with its immediate aftermath 21" and finally that the harm was caused by a sudden shock, which did not include merely hearing about the incident. The case also established that the relation between the primary and secondary victim is that the primary victim must be "a loved one22 " and that this relationship was presumed between parents and children and spouses but not between any other people. As Cheryl and Brian did not share a relationship of love and affection and would not be able to prove one as Alcock23 dictates, her action would probably fail.

Finally, it is possible that the car owner, van owner and Cheryl could also have attempted to bring a claim in third party liability against the health authority as they could claim that they were directly affected by the choice to release Albert early. However, as established earlier, it is likely that the courts would find that Albert's irrational behaviour broke the chain of causation and such claims would not succeed.

In conclusion, the actions of the van owner suing Albert for trespass to goods, the car owner suing Albert for conversion and Brian suing Albert for battery could all succeed. The other actions would more than likely fail for the reasons detailed above.

  1. Caparo Industries plc v Dickman (1990) 2 A.C. 605[^ Return]
  2. Bolam v Friern Hospital Management Committee (1957) 2 All E.R. 118[^ Return]
  3. McKew v Holland and Hannens and Cubitts (Scotland) Ltd [1969] 3 All E.R. 1621 which found that the claimant had acted unreasonable in walking down a flight of stairs without a handrail with a damaged ankle.[^ Return]
  4. [1998] 3 All E.R. 180[^ Return]
  5. [1999] Lloyd's Rep. Med. 351[^ Return]
  6. The reason being that she was not known to the defendant nor did she stand out as being in particular danger despite the fact that she lived close to him[^ Return]
  7. op. cit.[^ Return]
  8. Tort; Paula Giliker & Silas Beckwith; Sweet & Maxwell Ltd; London; 2001; p.281[^ Return]
  9. (1993) 3 All E.R. 448[^ Return]
  10. The reasoning Dillon, L.J. gave in his judgement was that the bus driver was held to have no control over the unknown third party, arguably just as the owner of the car had no control over Albert.[^ Return]
  11. [1990] 1 W.L.R. 1067[^ Return]
  12. Wilson v Lombank Ltd [1963] 1 W.L.R. 1294. a man who was not the true owner of a car was found to be in possession of it at the time of a trespass because he was controlling it.[^ Return]
  13. ibid[^ Return]
  14. James v Campbell (1832) 5 C. & P. 372. shows that there need be no intention to cause the actual damage, just an intention to act[^ Return]
  15. Scott v Shepard (1773) 2 W. Bl. 892. showed that this necessity could be flexible but in any event it is clear from the facts that the action directly caused the damage. [^ Return]
  16. [1984] 1 W.L.R. 1172 [^ Return]
  17. ibid, as per Goff; L.J. - The reason that this distinction is made between intentional acts and immediate force is that without it all instances of physical conduct with another could result in litigation. [^ Return]
  18. [1976] Q.B. 421.[^ Return]
  19. Stevens v Myers (1840) 4 C. & P. 349. which stated that a man who had been threatened by physical violence that had not been carried out had been victim to an assault and not a battery[^ Return]
  20. [1992] 1 A.C. 310 at 398[^ Return]
  21. ibid, as per Hidden. J[^ Return]
  22. ibid, as per Hidden. J[^ Return]
  23. ibid[^ Return]

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