TORT 033 Duty of Care Toward Special Classes of Claimant

The Duty of Care Toward Special Classes: Children, Rescuers, Trespassers, the Unborn Child, and Claimants for Psychiatric Harm

Some claimants are owed more than the ordinary duty, and some were historically owed less or nothing at all. Children and rescuers fall in the first class, and the reasons are the same in both: a child cannot appreciate danger, and a rescuer acts under a compulsion the defendant himself created. Trespassers, the unborn child and claimants for psychiatric harm fall in the second, and the law has moved steadily toward each of them. The direction of travel is identical throughout: the categories that once denied a duty altogether have been brought within the law, with control mechanisms substituted for the old blanket exclusions.

The six classes, and the direction in which the law has moved

1. Children

• A higher degree of care is owed to a child, because a child cannot be expected to appreciate a danger an adult would see and avoid.
• The allurement doctrine. Something attractive and dangerous left where children are known to come may found liability even where an adult would have no claim at all.
• Glasgow Corporation v. Taylor [1922] 1 AC 44 is the leading case. A boy of seven died after eating poisonous berries from a shrub in a public park under the Corporation's control. The berries looked like cherries, the shrub was not fenced, and no warning was given. The Corporation was liable.
• The occupier must take account of the habits of children. Where children are known to get in, the fact that a child was a trespasser will not readily defeat the claim.
• A child's contributory negligence is judged by the standard of a reasonable child of his age, and a very young child is ordinarily incapable of it.
• The presence of a responsible adult may affect the answer, since an occupier may in some circumstances assume that small children will be accompanied.

2. Rescuers

• A duty is owed to a person who intervenes to save life or property in an emergency the defendant created, and it is owed independently of the duty owed to the person rescued.
• Haynes v. Harwood [1935] 1 KB 146 is the leading case: a policeman injured stopping a runaway horse and van left unattended in a crowded street recovered damages.
• Volenti non fit injuria does not apply. A rescuer acting under a legal or moral duty does not freely and voluntarily consent to the risk.
• The rescue is not a novus actus interveniens, so the chain of causation is not broken. The maxim is that danger invites rescue.
• The principle protects both the professional and the lay rescuer, though a professional is expected to take the precautions his training provides.
• A wholly foolhardy intervention may still be met by contributory negligence, or in an extreme case treated as breaking the chain.

3. Trespassers

• The duty of common humanity is not the ordinary duty of care. It is measured by what the occupier actually knew, and by what is reasonable having regard to his resources.
• It is higher where the trespasser is a child, and higher still where the occupier knew that children were in the habit of getting in.
• Bird v. Holbrook (1828) long ago settled the other end of the principle: a concealed spring gun is unjustified, and the trespasser's own wrongdoing is no answer to a deliberate trap.

4. The Unborn Child and Prenatal Injury

• A duty may be owed in respect of an injury inflicted before birth. The difficulty was always that at the moment of the negligent act the claimant was not a legal person.
• The answer is that the cause of action accrues on birth, when the damage is suffered by a person capable of suing. The duty is owed to the child the defendant could foresee would be born.
• So a child born disabled by a negligent act done before its birth may sue in its own name, through a next friend.
• The claim is the child's, not the mother's, and is distinct from any claim the mother has for her own injuries.
• In a fatal case the Fatal Accidents Act, 1855 may apply, giving the dependants an action.
• England legislated by the Congenital Disabilities (Civil Liability) Act, 1976; India has no corresponding statute, and the position rests on the common law principles described.

5. Psychiatric Harm

• A recognisable psychiatric illness is required. Grief, distress, fright and sorrow, however genuine, are not enough; the law does not compensate the ordinary emotions of bereavement.
• Primary victims are those within the zone of physical danger, or who reasonably believed themselves to be. Page v. Smith [1996] AC 155 holds that where physical injury was foreseeable, the defendant is liable for psychiatric injury even though that was not.
• Secondary victims are those who suffer through witnessing harm to another. They must satisfy the control mechanisms in Alcock v. Chief Constable of South Yorkshire Police [1992] 1 AC 310.
• The Alcock mechanisms are three: a close tie of love and affection with the primary victim; proximity in time and space to the event or its immediate aftermath; and perception of the event by the claimant's own unaided senses, rather than through a report or a broadcast.
• McLoughlin v. O'Brian [1983] 1 AC 410 extended the immediate aftermath: a mother told of an accident who came to the hospital within about two hours and saw her family before they had been cleaned up recovered.
• The mechanisms exist to limit an indeterminate class of claimants, and they are frankly policy based, which the judgments acknowledge.

6. Pedestrians and Other Road Users

• A driver owes a duty to every other road user, and the class is not narrowed by the other person's own carelessness.
• Greater care is required where children, the elderly or the infirm may be present, because the driver must allow for behaviour an adult in full health would not display.
• Haley v. London Electricity Board [1965] AC 778 makes the point generally: a blind pedestrian fell into an excavation guarded in a way adequate for a sighted person. The Board was liable, because the presence of blind persons on a London street was reasonably foreseeable and the duty had to be measured accordingly.
• The claimant's own want of care goes to contributory negligence, reducing the damages, and not to the existence of the duty.

7. The Direction of Travel

8. The Position Stated Shortly

1. A higher degree of care is owed to children, because a child cannot appreciate danger, and the allurement doctrine may apply: Glasgow Corporation v. Taylor.

2. A child's contributory negligence is judged by the standard of a reasonable child of his age.

3. A duty is owed to a rescuer who intervenes in an emergency the defendant created, volenti does not apply, and the rescue is not a novus actus: Haynes v. Harwood.

4. Addie v. Dumbreck denied a trespasser any duty beyond not being injured intentionally or recklessly.

5. British Railways Board v. Herrington replaced that with a duty of common humanity, measured by the occupier's knowledge of the danger and of the likelihood of trespass.

6. A child born injured by a negligent act done before birth may sue, the cause of action accruing on birth.

7. For psychiatric harm a recognisable psychiatric illness is required; grief and distress are not enough.

8. Primary victims are those within the zone of danger: Page v. Smith holds that foreseeability of physical injury suffices.

9. Secondary victims must satisfy the Alcock control mechanisms: close ties of love and affection, proximity in time and space, and perception by their own senses.

10. Throughout, the law has replaced blanket exclusions with control mechanisms that limit the class of claimants without denying the claim in principle.