Question 6

Humphrey was travelling to work on the top deck of a bus when the bus swerved
violently, crashed into a bus stop and overturned. The bus then remained tilted
precariously to one side. Humphrey was trapped on the upper deck for some time but he
was not physically injured. He has since suffered from a severe nervous condition –
prompted first by the thought of what his fate might have been – and second by watching
one of the people at the bus stop – a complete stranger to him – slowly dying of her
wounds. It emerged that the collision was caused by the bus driver, Felippe, who fell
asleep at the wheel. Felippe has suffered permanent, life-changing injuries. His daughter,
Chloe, arrived at the hospital where her father was being treated, two hours after the
collision. When she saw her father still covered in dirt and blood she collapsed. Chloe has
now been diagnosed as suffering from post-traumatic stress disorder. It was pure chance
that Malcolm Smith, a police officer called to the scene, and involved in the rescue of
many of the injured, came across his twin brother, Salcome Smith. Salcome had been
standing on the opposite side of the road when the crash happened but was so shocked at
what he saw that he suffered an immediate heart attack. When Malcolm Smith found his
brother he was close to death. Malcolm held Salcome in his arms as he died. Malcolm has
since been unable to continue work as a police officer due to the distress caused by his
brother’s death.

Advise the parties as to their rights and liabilities in the tort of negligence.

Answer:
The issue to advise in its “narrow” post-White sense. Success of the claim will depend
on, if the injury is medically recognized? And Whether parties able to claim as primary
victim or secondary victim?

F as bus driver OWES DUTY OF CARE FOR both passengers and pedestrians
(Nettleship v Weston). Objectively he breached his duty as per reasonable driver with
such care and skill. By sleeping, not looking where he is going and bus swerved
violently, Carsh into a bus stop and overturned. Thus his conduct fall below the
reasonable standard of the driver. It was foreseenbale that such breach could cause
damage to the passangers and other road users (Langley v Dray).

Further to see that if such breach of duty caused actionable injury to the victims in
question and is that injury too remote we will take case by case below.

Humphrey (Primary Victim)

Following White v Chief South Yorkshire Police, in order to be owed a duty as a primary
victim of the alleged negligence, which has less restrictive requirements to satisfy, first
requirement is satisfied that Humphery was placed in physical danger through the
defendant’s F negligent act however he did not get any physical injury. (Dulieu v White
& Sons) Other ground of claim for psychiatric injury had grounds to reasonably fear for
his physical safety which is not in question here, but he in fact suffer only psychiatric
illness (As Lord Denning noted in Hinz v Berry, what is needed is a medically recognised
psychiatric injury) by watching one of the people at the bus stop – a complete stranger to
him (Not in close relationship as defined by Lord Ackner in Bourhill v Young), had
always denied recovery who suffered psychiatric illness as a result of witnessing
accidents.

Chole ,M and S Smith Secondary Victims:

Unlike Humphery As Chole ,M and S Smith were not involved in the crash by them
self, , therefore they should be advised on the restrictive law for secondary victims
governed by Alcock .

Suffer psychiatric illness as a result of witnessing the death, injury or imperilment of

For S plaintiffs who did not have a very close family relationship with the “immediate
victim” of the accident would have to be “very carefully scrutinised”. As regards
proximity to the accident, this had to be “close in both time and space”, ordinary people
could be expected to withstand the rigours of witnessing injury to a stranger on the roads
without suffering psychiatric illness. Secondly, plaintiff had not feared for his own
physical safety. “impact theory” and holding that he could not recover because he was
outside the area of foreseeable physical impact According to Lord Wilberforce, “such
persons must be assumed to be possessed of fortitude sufficient to enable them to endure
the calamities of modern life”.

Secondly refer to case (Bourhill v Young)A nervous breakdown would satisfy this
requirement although we do not know if he is of reasonable fortitude. In psychiatric
illness cases, successful claimants must establish that they are suffering from medical
conditions such as “post-traumatic stress disorder (PTSD)” as in case of Chole is
satisfied, but for M mere distress is not covered but Chole requires advice as to the
Alcock control mechanisms. But claiming against a negligent father for his condition
causing injury is question of unique consideration.

Thirdly issue is whether he has sufficient proximity in time and space to the incident. For
M it is satisfied but earlier two test failed while for Chole must have personally been at
the incident. (Alcock ) but coming across the immediate aftermath of the incident with
one’s own senses is sufficient (McLoughlin v O’Brien [1983] as seen father with dirt of
accident and blood. However, Chole situation is more analogous to the actual case of
McLoughlin, novel situation is silent on time which is well established to be satisfied for
her claim Chole should have the necessary time limit to overcome this mechanism. The
final requirement of Alcock is in relation to the means with which her breakdown was
caused. Psychiatric injury must be caused by perceiving the incident for M & S it was too
remote to claim under AAlock and impact theory. e.g. Smith v Johnson & Co
(unreported, but considered in Wilkinson v Downton and Dulieu v White
Appling Greatorex principle, F is a primary victim who does not owe a duty
of care to Chole ( family member) in circumstances where his self-
inflicted injuries caused psychiatric injury to chole.
In conclusion:

However, Filpee was not driving to a reasonable standard. This means Filpee needs to be
advised of the ‘eggthey ll skull’ rule. This provides that the defendant must take the
claimants as they find them and they will be liable for the entire harm caused, even where
it is greater than expected owing to a particular condition of the claimant. This might
seem at odds with the principle from The Wagon Mound (No. 1), but it has been held to
still apply (Smith v Leech Brain & Co. Ltd). No Valid defences of Consent; UCTA 1977
illegality; Contributory Negligence in given facts available to Filpee. Claims of H,M,S
are likely to not be successful because these were too remote for successful consideration
under tort and C is likely to be successful in his claim on the basis of the facts provided.