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David L Donachie v The Chief Constable of The Greater Manchester Police, Court of Appeal, 7 April 2004; Simmons v British Steel PLC, House of Lords, 29 April 2004
These two cases, both decided earlier this year in favour of the claimants, considered the definition of a 'primary victim'. In short, this is a claimant who is directly involved in an accident.
The cases required analysis of the House of Lords decision in Page v Smith 1996 1A C155.
Mr Donachie was part of a team of police officers who had to attach a tagging device to the underside of a suspect's motor vehicle.
The tagging device was battery operated. Attaching such devices is usually done at night when there is little opportunity to be observed.
Because of the urgency of the particular operation it had to be done during waking hours and while the car was parked outside a pub in which the criminals were drinking.
The risk of injury (or death, apparently) if spotted undertaking this task by the criminals was real.
Mr Donachie attached the device and then discovered it was not working. He attempted to do so on a further eight trips before, on the ninth trip, managing to attach it in working condition. The reason was that the battery kept failing.
Fortunately, he was not spotted and was not attacked. Nevertheless, he suffered from the stress of performing the task on so many occasions. He was already suffering from hypertension prior to the event.
There was a history of problems with the batteries provided with the tracking device and, apparently, 30% of new batteries failed. The police had done nothing to solve this problem.
The court held that it was reasonably foreseeable that the defendant's failure to provide reliable batteries would expose the claimant to a risk of injury; that the claimant was a primary victim; and that there was no need to prove that the claimant had been involved in an 'event' as he was a primary victim.
Adopting the House of Lords decision in Page v Smith, as there was a risk of physical injury, it was immaterial whether the claimant subsequently suffered a physical or psychiatric illness.
In my view, the only surprising thing about this case is that it was not decided properly at first instance. The claimant was clearly a primary victim. He was 'involved' in the incident that was foreseeably likely to cause injury, that is, applying the tagging device. Page v Smith is settled law.
Finally, the court had to consider whether there was a need to rely on the judgment in the three cases, reported under the name Fairchild v Glenhaven Funeral Services [2002] UKHL 22, [2002] PIQR P424, [2002] 3 WLR 89, concerning the development of the cancer mesothelioma following exposure to asbestos.
It held that it was not necessary as the defendant's failure was sufficient to satisfy the Bonnington test of 'material contribution' to the injury laid down in Bonnington Castings v Wardlow [1956] AC 613.
The fact is that Fairchild covers this position by saying that material contribution equates to a material increase in risk of injury, as tagging a criminal suspect's car on nine occasions is clearly likely to do.
The House of Lords adopted a similar approach a few weeks later in the Simmons case. The claimant suffered physical injury for which the employer was responsible.
Subsequently, he developed an exacerbation of a pre-existing skin condition and a change in his personality, resulting in severe depressive illness.
The defendants argued, and the court at first instance agreed, that the subsequent injuries were too remote from the accident and not directly attributable.
The Lords reminded us that they have already considered such cases in Page v Smith. Mr Simmons is a primary victim. He was exposed to the risk of physical injury, which he actually suffered.
Following Page, the defendant is equally responsible for any psychiatric illness that results and there is no need to make a distinction between the initial physical injuries and his subsequent mental state.
Foreseeability is irrelevant. The only question that has to be answered is: was there a causal connection between the psychiatric injury and the accident?
In the Simmons case, his anger was, in part, the result of the accident and this set off the subsequent skin condition and change in personality.
In brief, the defendants were liable for physical and psychiatric injuries irrespective of whether the latter were foreseeable.
It is important to keep Page v Smith in mind. Lord Lloyd's judgment is clear and should be referred to if confusion arises over the definition of 'primary victim', or the question of foreseeability of mental injury in such cases.
By Simon Allen, Russell Jones & Walker, Sheffield
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