It was the day of the much anticipated Ockington horse races-an annual event- and Faisal was looking forward to seeing his horse (Sherbert) run. Sherbert had twice won the Ockington race, and was tipped to win once again. Sadly, soon after the race began disaster struck when Sherbert was caught by a concealed trap, fell on the track and was kicked to death by other horses. Faisal suffered an immediate collapse and was diagnosed with post-traumatic stress disorder. Faisal was not the only casualty of the Ockington race. In the general chaos, one of the riders was thrown amongst the racing horses and suffered a cracked jaw. His partner, Jill, watching from the starting line feared he was more severely injured and suffered shock as a result. Mandrake, a doctor called to the scene, was so distressed at the sight of the dead horse that she also suffered shock, resulting in a miscarriage. Advise Faisal, Jill and Mandrake as to their rights and liabilities in the tort of negligence.
The tort of negligence provides a remedy for an injury or loss caused to a person due to the failure of another person to abide by a legal duty to take reasonable care.1 It is pertinent to note here that in cases of tort of negligence, along with the injury, harm also has to be endured by the victim of the negligence. That is because negligence is not actionable per se, or as Greene LJ put it: “Negligence in the air will not do; negligence in order to give a cause of action, must be the neglect of some duty owed to the person who makes the claim”.2 Therefore, in this case, each of the three parties, i.e. Faisal, Jill and Mandrake will have to show a legal duty owed to them by the organisers of the Ockington horse race, an injury, and a resultant harm.
Breach of legal duty to take care by organisers of an event - In Cunningham v Reading Football Club,3 the football club was held liable for the injuries sustained by police officers when they were attacked with torn lumps of concrete from the terraces by supporters of a team. The club was held liable due to its negligence in not maintaining the property.4
It is important to define primary and secondary victims in tort of negligence as the cases of Faisal, Jill and Mandrake also fall in these categories as they have all suffered psychiatric or physical injury as a consequence of the events at the races. A primary victim is a person who is psychiatric injury stemming from actual physical injury or from reasonable fear or apprehension of danger to their personal security.5 A secondary victim is someone who suffers psychiatric injury as a result of witnessing someone else being harmed or endangered.6
Faisal has suffered financial loss as well as psychiatric injury as a consequence of the death of his horse and the resultant post-traumatic stress disorder (PTSD). He is a secondary victim under the circumstances. In McLoughlin v O’Brian7 , the House of Lords held that secondary victims will be allowed to recover damages for psychiatric injuries caused due to the negligence of the defendant. Applying the principles of the case, Faisal has suffered shock and PTSD after witnessing the death of his prize horse. There is sufficient proximity to the event as the horse fell and died in front of Faisal’s eyes. The interest of Faisal in his horse is also significant, therefore, he may sue the organisers of the event for their negligence and the resultant psychiatric injury to himself. Faisal has also suffered a financial loss due to the negligence of the organisers. He can also claim damages for the death of his horse.
Jill has suffered a psychiatric injury (shock) after seeing her partner getting hurt after being thrown off his horse. In McLoughlin v O’Brian8 the House of Lords laid out the test for recovery of damages for personal injury resulting from nervous shock. First, there must be a close familial relationship between claimant and victim. In this case, the relationship between Jill and the rider is not familial but it is a close relationship. Second, the claimant must be close proximity to theaccident "in both time and place". In this case, Jill was at the scene of the accident. Third, the shock suffered by the claimant must "come through sight or hearing of the event or of its immediate aftermath”. In this case, Jill has suffered the shock after seeing the her partner fall off his horse and getting injured.
However, as Jill’s partner is jockey at the races, the organisers may raise the defence of volunti non fit injuria, which means that no wrong will be done to the willing. But in Smith v Baker & Sons, 9 it was held that even though a person may acquiesce in the risk does not mean that he assents to the lack of care. (which in this case the organisers are liable for). Therefore, Jill can sue the organisers for the psychiatric harm suffered by her.
Mandrake has suffered a physical injury (miscarriage) as a result of the shock at seeing a dead horse. As a doctor, if she is called to the scene, she is a rescuer and will have to show that she is either a primary or secondary victim. In White, Frost And Others v Chief Constable Of South Yorkshire And Others,10 the court drew an important distinction between primary and secondary victims, that has a bearing on Mandrake’s case. The court held that a rescuer, who is not himself exposed to any physical risk by being involved in a rescue was a secondary victim, and as such not entitled to claim. Primary victims are ‘victims who are imperilled or reasonably believe themselves to be imperilled by the defendant’s negligence’. In Chadwick v. British Railways Board,11 it was held that rescuers or helpers at an accident were to be treated as "primary victims" of the accident, and such persons could recover the damage caused by nervous shock in the same way as personal injury. Waller, J said: “It was foreseeable that someone might try to rescue passengers and suffer injury in the process.”12 Here it is pertinent to mention Bourhill v Young,13where the defendant was held not liable for the claimant, who was pregnant, suffering shock and delivering a still born baby, after witnessing an accident, as her injuries were not foreseeable. The court further went on to add that pregnant women are more susceptible to shock as compared to ordinary people. In this case, Mandrake’s pregnancy and loss could not be foreseen by the organisers, but the general physical harm can be foreseen through their negligence.
In Alcock And Others v Chief Constable Of South Yorkshire Police,14 Lord Oliver observed that the defendant owes a duty of care to those induced to go to the rescue of those in peril as a result of their negligence.
In this case, Mandrake suffered shock and miscarriage on seeing the dead horse. She cannot be treated as primary victim because she did not face threat or danger to her safety due to the actual events. She is a secondary victim. As a secondary victim, the Alcock principle has to be satisfied. She can accordingly sue the organisers for the injury and loss suffered by her.
List of Cases
- Alcock And Others v Chief Constable Of South Yorkshire Police,  UKHL 5.
- Bourhill v Young,  AC 92.
- Chadwick v. British Railways Board,  2 All ER 945.
- Cunningham v Reading Football Club,  PIQR P 141.
- Donohue v Stevenson,  UKHL 100.
- Haynes v Harwood,  1 KB 146.
- McLoughlin v O’Brian,  UKHL 3.
- Page v Smith,  UKHL 7.
- Smith v Baker & Sons,  AC 325.
- White, Frost And Others v Chief Constable Of South Yorkshire And Others,  UKHL 45.
- Horsey K, Rackley E, Tort Law (Oxford University Press, 2013)
- Howarth D, Matthews M, Morgan J, O’Sullivan J, Tofaris S, Hepple and Matthews' Tort Law: Cases and Materials (Bloomsbury Publishing, 2016)
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