Tort

Introduction

To establish a duty in tort, the claimant has to show a duty of care, a breach of that duty and that the breach caused the injury to him. This injury can be physical, psychiatric or economic.

Clive’s psychiatric harm

Duty of care

It is assumed that Clive is able to prove that the “severe shock” he suffered when he saw Simone’s body is medically recognised as psychiatric harm as required in Hinz vs. Berry . In Nettleship vs. Weston , it was held that all drivers owe other road users a duty of care. In every sense of the judgment in Nettleship, Raj owes a duty of care to other road users. However, Clive is not a road user, he was merely manning the butcher shop and as such is not privy to this duty of care.

Clive, however, has an alternative way of proving duty of care. In Page vs. Smith , Lord Lloyd was confident that as long as the primary victims were able to show that they were in the “zone of danger”, there is no “problem opening the gates to litigation” because their numbers were already limited and that was no need to implement strict limitations on primary victim claims. Lord Hoffman in Rothwell vs. Chemical Insulating Co and Lord Walker in Corr vs. IBC agreed that Page vs. Smith was a simple yet practical test to determine liability. Following such strong authorities, Clive only has to prove that he was in the “zone of danger” when the coach careened into the butcher shop and hence was a primary victim for Raj to owe him a duty of care. Once both the “severe shock” and “zone of danger” elements of a psychiatric duty of care is proven, Clive, as a primary victim of the accident, will be able to claim a duty of care owed to him by Raj.

Breach of duty

Raj has clearly breached this duty by “failing to notice” the coach pulling out in front of him.

Causation

There are 2 limbs of causation that have to be fulfilled before a tortious claim is allowed. Factual causation follows the “but for” test and legal causation follows a “reasonably...