"Duty of care is one of the ways in which risks can be allocated in society… This will have both social and economic implications, and hence the technical criteria of duty… should not be taken too literally. They are merely mechanical devices for performing and expressing something deeper, that is a decision or an understanding about how risks should be allocated. " Kidner, casebook on Torts, 7th Ed. P 49
The area of tort law regarding 'a duty of care' in negligence has been a matter of much controversy for some time, the present law does not contain a great deal of clarity and definition in regard to a general principle of who can claim and who cannot. The reasons for this are also highly debatable, however much focus has been directed towards the courts use of public policy considerations as a major cause to why such limitations occur, and as one of the causes of the problematic nature of the field of negligence.
The aspect of 'nervous shock' or 'psychiatric injury' is a sound example of the evident ambiguity arising in the law of tort, as is to be explored below. The first attempt of introducing a general principle in order to assess whether a duty of care should be owed in the tort of negligence was presented in the case of Donoghue v Stevenson1, wherein Lord Atkin stated the outline for this principle, "The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, who is my neighbour?
Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought to reasonably have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question" The basis of this test for a duty of care is clearly focused upon the foresight of harm.
This foresight refers to people whom, in law you ought to have 'in contemplation'. Lord Reid reiterated this basic principle in the case of Home Office v Dorset Yacht Co2. In the case Lord Reid described Lord Atkin's establishment of a general principle as a 'milestone', and that it "ought to apply unless there is some justification or valid explanation for its exclusion. "3 Thus allowing for the Atkin 'neighbourhood principle' to be further developed in the tort of negligence.
The observation of Lord Reid that the principle may not always apply, and therefore another application is justifiable, suggests that the principle of Lord Atkin is not, in every case applicable and somewhat incomplete. This enabled the establishment of a new principle to be formed by Lord Wilberforce in the case of Anns v Merton 4. This principle contains two fundamental stages. The first requirement is that of sufficient proximity or (neighbourhood), as in the Atkin principle, and the second stage is in regard to policy of the proximate relationship given in the first stage.
"It is necessary to consider whether there are any considerations which ought to negate, or to reduce or limit the scope of duty or the class of person to whom it is owed or the damages to which a breach of it may give rise. " 5 This two-stage test presented by Lord Wilberforce has proved to be problematic, principally due to the fact that the test reduces issues of policy to the second stage, whilst the first stage of a proximate relationship must have policy considerations in its own right.
In Peabody Donation Fund v Sir Lindsay Parkinson6 the withdrawal from the Anns test begins with Lord Keith signifying that the scope of a duty of care "must depend on all the circumstances of the case" and that "In determining whether or not a duty of care of particular scope was incumbent on a defendant it is material to take into consideration whether it is just and reasonable that it should be so.
" This addition of the scope to include that it must be 'just and reasonable' persuaded the courts to be reluctant in unequivocally following the Anns two-stage test, this was apparent in the case of Leigh & Sillivan Ltd v Aliakmon Shipping Co. 7, however the pinnacle of this withdrawal from Anns came in Yuen Kun-yeu v Attorney General of Hong Kong8, in which Lord Keith commented that "the two stage test formulated by Lord Wilberforce for determining the existence of a duty of care in negligence has been elevated to a degree of importance greater than it merits, and greater perhaps than its author intended.
" Undoubtedly, foreseeability of harm is lacking in itself to bring about a relationship of 'proximity' it is merely one component which is necessary to establish such a relationship giving rise to a duty of care. Lord Keith maintained that with a test centred upon foreseeability of harm alone "there would be liability in negligence on the part of one who sees another about to walk over a cliff with his head in the air, and forbears to shout a warning".
This argument clearly addresses the 'floodgates' theory and indicates that policy considerations should play a role in limiting the scope of liability under a duty of care. The example given highlights the fear of a test based solely upon foreseeability of harm giving rise to a flood of claims, too much for the courts to bear, and the majority would not prove to be just, fair and reasonable. The present law regarding the requirements for a duty of care to exist was established in the case of Caparo Industries v Dickman9.
Wherein a three-stage test was formulated by Lord Bridge, which consisted of the three fundamentals, foreseeability of harm, a relationship of proximity (including policy considerations) and it must be fair, just and reasonable to impose a duty. It was commented that any extension of negligence in new duty situations would be incremental. The effect of the three-stage test made it a much narrower one in terms of who can claim, and imposes limits upon categories and any extension of the tort of negligence, illuminating the presence of policy considerations.
This introduces the focus of the essay, the aspect of 'nervous shock' or as the courts prefer, 'psychiatric injury, or damage'. This aspect of the law of tort is intimately linked with the principles constituting a duty of care. As mentioned, the test for a duty of care has been limited by the Caparo v Dickman case and the field of psychiatric injury has been a very controversial and troubling state of affairs for the courts for some time.