Introduction

Negligence is one of the most prevalent causes of action within the law of
torts. It governs the liability of a person who fails to exercise a reasonable
standard of care, thereby causing harm to another. The principles of
negligence are not only fundamental to civil litigation but also underpin
many modern statutory regimes. In parallel, the recognition of nervous
shock—psychiatric injury caused by traumatic events—has evolved
dramatically, reflecting society’s growing awareness of mental health.

This discussion will examine:

1. Negligence – its elements, theories, defences (including

contributory negligence), and the special rules applicable to
professionals.

2. Nervous Shock – its meaning, the principle of recovery, the role of

foreseeability, and the distinct positions of primary and
secondary victims.

I. Negligence

A. Definition and Elements of Negligence

Negligence is the breach of a duty of care which causes damage to

another. To succeed in a claim, the plaintiff must prove four essential
elements:

1. Duty of Care

2. Breach of that Duty

3. Causation (both actual and legal/proximate)

4. Damages

1. Duty of Care

A duty of care arises when one person owes a legal obligation to take
reasonable care to avoid acts or omissions that could foreseeably injure
another. The existence of a duty is determined by the test laid down in
Caparo v Dickman [1990] 2 AC 605. The court must ask:

 Was it foreseeable that the defendant’s actions could injure the

plaintiff?

 Is there a sufficient relationship of proximity between the

parties?

 Is it fair, just and reasonable to impose a duty?

Examples

 Road users: Drivers owe a duty to other road users (e.g.,

Donoghue v Stevenson).

 Landowners: Owners owe duties to visitors, tenants, and even

trespassers, albeit to different standards.

 Employers: Employers owe a duty to take reasonable care for the

safety of their employees.

2. Breach of Duty

Breach is established by showing that the defendant failed to exercise the

standard of care of a reasonable person in the circumstances. This is
the “reasonable person” test.

 Ordinary negligence: The standard is that of the “reasonable

person”.

 Professional negligence: Professionals (doctors, lawyers,

accountants) are held to the standard of a reasonable
professional of the same specialty (Bolam v Friern Hospital
Management Committee [1957] 1 WLR 583).

Negligence Per Se

Where a defendant violates a statute designed to protect against a

particular risk, the breach itself may constitute negligence (negligence
per se). The statute must:

1. Be intended to protect a class of persons that includes the plaintiff.

2. Eprescribe a standard of conduct.

3. Prohibit the very conduct that caused the injury.

Example: A driver exceeding a speed limit in an area where children play

may be liable per se.

3. Causation

Causation has two components:

 Actual Cause (Cause in Fact) – “But for” the defendant’s breach,

would the injury have occurred?
If the plaintiff would have suffered the same injury regardless, there
is no cause in fact.

 Legal/Probable Cause (Proximate Cause) – The harm must be a

foreseeable consequence of the breach. The chain of causation
must not be broken.
Example: In Palsgraf v Long Island Railroad Co (1928) 162 NE 424,
the court held that the defendant was not liable because the injury was
not a foreseeable result of the breach.

4. Damages

Damages are the financial compensation awarded to the plaintiff for loss
or injury. They are categorised as:

 Compensatory Damages –

o Special Damages: Economic loss (medical expenses, loss of

earnings).

o General Damages: Non-economic loss (pain, suffering, loss of

amenity).

 Punitive Damages – Rarely awarded in negligence, only where

conduct has been malicious or reckless.

B. Theories of Negligence

While the basic structure of negligence is consistent, there are specialised

theories that apply in particular contexts.

1. Ordinary (General) Negligence

This is the standard form discussed above. The defendant must exercise
reasonable care to prevent foreseeable harm.

2. Negligence Per Se

As noted, a statutory breach can establish negligence without proof of a

breach of the reasonable person standard.

3. Res Ipsa Loquitur

Literally “the thing speaks for itself”. This doctrine applies where:

1. The event is of a kind that would not normally occur without

negligence.

2. The instrumentality causing injury was under the defendant’s

exclusive control.

3. The plaintiff did not contribute to the event.

Example: If a surgeon leaves a surgical instrument inside a patient

post-operation, the presumption of negligence arises (Barnes v Hopkins
[1951] 1 KB 561).
4. Strict Liability (in Negligence Contexts)

Although not strictly a “theory of negligence”, certain activities attract

strict liability—liability without fault. Examples include:

 Abandonment of dangerous substances (Cavanagh v Owen

[1945] AC 604).

 Keeping animals (Rylands v Fletcher).

These are exceptions to the general rule that negligence requires a breach
of duty.

C. Defenses to Negligence

Defendants may raise several defences to negate or reduce liability.

1. Contributory Negligence

Contributory negligence occurs when the plaintiff’s own negligence

contributed to their injury. Historically, this was a complete bar to
recovery (the “all or nothing” rule). Modern jurisdictions, however, have
moved to comparative negligence, where liability is apportioned
according to the percentage of fault.

 England & Wales: The Law Reform (Contributory Negligence)

Act 1945 introduced comparative negligence. The court reduces
the damages proportionate to the plaintiff’s contributory negligence.

Example: If a plaintiff is 30% at fault, they receive 70% of the assessed

damages.

 United States: Most states apply modified comparative

negligence (e.g., the plaintiff can recover only if their negligence is
less than the defendant’s). Some states retain pure comparative
negligence.

2. Comparative Negligence

As above, comparative negligence is the modern approach. It recognises

that fault may be shared and ensures that the plaintiff receives some
compensation even if partially at fault.

3. Assumption of Risk

A plaintiff may be barred from recovery if they voluntarily and

knowingly assumed the risk of injury. The defence requires:

1. Knowledge of the risk.

 2. Appreciation of the risk.

3. Voluntary acceptance of that risk.

Example: A participant in a dangerous sport (e.g., bungee jumping) signs

a waiver. If injured due to an inherent risk, the defence of assumption of
risk may apply.

4. Mitigation of Damages

The plaintiff has a duty to mitigate (reduce) their loss. If they fail to take
reasonable steps to minimise damages, the defendant’s liability may be
reduced.

Example: An injured worker who refuses a suitable alternative job may

have their damages reduced.

5. Statutory Defences

Defendants may rely on statutory provisions that limit liability (e.g., the
Employers’ Liability (Compulsory Insurance) Regulations 1969).

6. Res Judicata & Estoppel

If the issue has already been decided in a previous proceeding, the

plaintiff cannot re-litigate it (res judicata).

D. Negligence by Professionals

Professionals—doctors, lawyers, accountants, architects—owe a higher

standard of care than ordinary persons. This is known as professional
negligence or professional liability.

1. Standard of Care for Professionals

The standard is that of a reasonable professional of the same

specialty, exercising ordinary competence (Bolam test). In Bolam v
Friern Hospital Management Committee, the court held that a
professional is not negligent if he acts in accordance with a reasonable
body of professional opinion, even if another body disagrees.

Criticism of Bolam

 It may allow sub-standard practice to escape liability.

 It can create a “culture of defensive practice”.

Evolution: Montgomery v Lanarkshire Health Board [2015] 2 WLR

1
The UK Supreme Court refined the test. The court held that the standard is
not merely what a responsible body of opinion believes, but whether that
opinion is reasonable. The test now incorporates a patient-centred
approach, requiring clinicians to warn patients of material risks.

2. Expert Evidence

Because professional standards are specialised, expert testimony is

almost always required. An expert will testify about the accepted practices
within the profession at the time of the alleged negligence.

3. Types of Professional Negligence

1. Medical Negligence

o Misdiagnosis, failure to treat, surgical errors, failure to obtain

informed consent.

o Case: Chester v Afshar [2004] 1 WLR 594 – Failure to warn

a patient of a risk of spinal injury held actionable.

2. Legal Negligence

o Wrong advice, failure to file a claim on time, conflict of

interest.

o Case: Hill v Hamilton [1997] 1 WLR 1089 – Solicitor liable

for failing to issue divorce proceedings promptly.

3. Architectural/Construction Negligence

o Design flaws, failure to comply with building regulations.

o Case: Anns v Melbourne City Council – Duty of care owed

by architects to future occupiers.

4. Accounting Negligence

o Misstatement of accounts, failure to detect fraud.

4. Limitations Period

Professional negligence claims are subject to strict limitation periods (e.g.,

3 years from the date of knowledge under the Limitation Act 1980).
This encourages timely claims and promotes certainty.

II. Nervous Shock (Psychiatric Injury)

Nervous shock, also referred to as psychiatric injury, post-traumatic

stress disorder (PTSD), or anxiety neurosis, is a recognised form of
damage in tort law. Historically, courts were reluctant to compensate
mental harm, but the law has evolved to recognise its legitimacy.

A. Meaning and Principle

Nervous shock is a recognised psychiatric condition arising from

exposure to a traumatic event. It may manifest as:

 Anxiety

 Depression

 Phobias

 PTSD

 Sleeplessness

 Hyper-arousal

The principle underlying recovery is that mental distress, if sufficiently

severe, is as compensable as physical injury. The claimant must
prove:

1. A traumatic event

2. Psychiatric injury

3. Causation

B. Foreseeability of Psychiatric Illness

A defendant will only be liable if the risk of psychiatric harm was

foreseeable. The test mirrors the general negligence principle: a
reasonable person should have foreseen that a person of ordinary
fortitude might suffer psychiatric injury.

Key Cases on Foreseeability

1. Dulieu v White & Sons [1901] 2 KB 669

o A horse-drawn cart crashed into a pub where the plaintiff (a

pregnant woman) was working. She suffered shock and later
gave birth prematurely.

o Holding: The defendant’s negligent act created a situation of

danger, and psychiatric injury was a foreseeable consequence.

2. Watt v Hertfordshire County Council [1954] 1 WLR 835

o A fireman witnessed a colleague’s death in a fire. He suffered

nervous shock.
 o Holding: The risk of psychiatric injury to firemen was
foreseeable.

Modern Position

The courts now accept that psychiatric injury is foreseeable in a wide

range of situations, including road accidents, workplace incidents, and
violent assaults.

C. Primary Victims

Definition

A primary victim is a person who directly experiences the traumatic

event. They are physically present and within the zone of danger.

Legal Position

Primary victims face fewer hurdles in claiming nervous shock because:

1. They have suffered a direct physical impact or were

immediately exposed to the event.

2. The causation link is clear.

3. Foreseeability is readily established.

Example: A car accident victim who witnesses the collision and suffers
PTSD is a primary victim.

Case Law

 McLoughlin v O’Brian [1983] AC 410 – The plaintiff witnessed

the injury of her daughter in a car accident and suffered shock. The
House of Lords allowed recovery as a primary victim.

Recovery for Primary Victims

Primary victims can recover for both physical and psychiatric injury.
The burden of proof is lighter, and courts are more sympathetic.

D. Secondary Victims

Definition

A secondary victim is someone who does not directly experience the

traumatic event but learns of it subsequently. This includes:

 Relatives who hear about an accident.

 Friends who witness the aftermath.

 Emergency workers who were not present during the initial incident.
Legal Challenges for Secondary Victims

Recovery for secondary victims is more restrictive. Courts impose strict

criteria to prevent a floodgate of claims and to ensure fairness.

Criteria for Recovery by Secondary Victims

To succeed, a secondary victim must satisfy all of the following:

1. Proximity (Relationship)
The victim must be closely related to the primary victim (e.g.,
spouse, parent/child, sibling). The closer the relationship, the more
likely recovery will be granted.

2. Foreseeability
The defendant must have foreseen that a secondary victim might
suffer psychiatric harm.

3. Perception of the Event

The secondary victim must have perceived the event (seen,
heard, or been present at the immediate aftermath). Mere hearsay
(learning later by telephone or media) is insufficient.

4. Proximity to the Event (Zone of Danger)

Many jurisdictions require the secondary victim to be within the
area of physical danger. This is known as the “direct impact”
rule.

5. Causation
The psychiatric injury must be caused by the traumatic event, not
pre-existing conditions.

Case Law – Secondary Victims

1. Alcock v Chief Constable of South Wales Police [1992] 1 AC 310

 Facts: Relatives of victims of the 1987 Hillsborough disaster

watched the tragedy on television or arrived at the stadium
afterwards. Many suffered psychiatric injury.

 Holding (House of Lords):

o Criteria for Secondary Victims:

1. Relationship: The claimant must be a “primary”

secondary victim (e.g., parent, spouse, child).

2. Perception: The claimant must have perceived the

event or its immediate aftermath.
 3. Proximity: The claimant must have been within the
area of foreseeable physical injury.

o The Lords emphasised that unlimited liability for

secondary victims would be unmanageable.

2. White v Chief Constable of South Yorkshire Police [1999] 2 AC 1

 Facts: The claimant witnessed the death of her daughter in the

Hillsborough disaster.

 Holding:

o Because she was present at the scene and saw the body,
she satisfied the perception requirement.

o The claim succeeded, illustrating that direct perception can

satisfy the test.

3. Campbell v Mersey Community Health NHS Trust [2004] 2 AC 1

 Facts: The claimant heard about her son’s death in a hospital later
that day. She did not witness the event.

 Holding:

o The House of Lords rejected the claim.

o No recovery where the secondary victim did not perceive

the event or its immediate aftermath.

Comparative Jurisdictional Approaches

 England & Wales: Follows the strict criteria set in Alcock.

 United States: Some states adopt a more liberal approach. For

example, California allows recovery if the secondary victim was
present at the scene and suffered shock.

 Australia: Similar to the UK, with a focus on proximity and

perception (Taw v Western Australia [2019] WASCA 85).

Critique of the Secondary Victim Rules

1. Inconsistency: The law differs significantly across jurisdictions.

2. Outdated Notions of Proximity: Modern communication (e.g.,

video calls) allows remote perception, yet the law still emphasises
physical presence.

3. Emotional Validity: Denying recovery to a grieving parent who

hears the news later may appear unjust.
E. Developments and Current Trends

1. Recognition of PTSD

Modern medicine recognises PTSD as a serious condition. Courts are

increasingly accepting expert psychiatric testimony.

2. Expansion to Emergency Services

Police officers, firefighters, and paramedics who suffer PTSD after

traumatic incidents are now recognised as primary victims (Jones v
Livorness [2002] EWCA Civ 1151).

3. Statutory Reforms

Some jurisdictions have introduced statutes to simplify recovery for

secondary victims (e.g., the Compensation Act 2006 in England).

4. Human Rights Considerations

The European Convention on Human Rights (Article 8 – Right to

Family Life) has influenced courts to be more sympathetic to secondary
victims.

Conclusion

Negligence remains a cornerstone of tort law, balancing the need to

compensate victims with the avoidance of excessive liability. The doctrine
has evolved to accommodate professional negligence and to address
the complexities of nervous shock.

The law’s approach to secondary victims reflects a careful balancing

act: recognising the genuine suffering of those who learn of traumatic
events, while preventing a flood of claims that could overwhelm the legal
system.

As society’s understanding of mental health improves, we may see further

refinement of the rules—potentially allowing broader recovery for
secondary victims and ensuring that professional standards remain high.