Case Arguments for a Psychiatric case.
THE CHIEF CONSTABLE OF THE COUNTRYSHIREPOLICE (Respondent)
FACTS
On 30 January 2016, the Countryshire police received a tip-off that two middle-aged men who had previous convictions for burglary and firearms offences, were planning a night-time raid on the “Precious Knick-Knacks” warehouse on a local industrial estate. Police officers were stationed in the vicinity of the premises and two police marksmen, Earp and Wyatt, were positioned inside the building.
Two intruders were seen to enter the building and one of them was shot and fatally injured by Earp. The victim turned out to be a fifteen-year-old boy, Adam, who was carrying out a burglary with his seventeen-year-old brother Brian. Neither of them had previous convictions and neither was armed. Wyatt, who had already apprehended Brian without any resistance, was horrified when he saw the younger boy gunned down by Earp. Earp had wrongly assumed that Adam was carrying a gun. In fact, he was carrying a large torch.
Wyatt suffered a severe psychological illness as a result of the incident and has since had to retire from the police force. He claims that the whole police operation was “botched”. He asserted that the police officers outside the premises should have realised that the two boys were not the men the police were hoping to apprehend and that the fatal shooting of an unarmed fifteen-year-old boy was completely unjustified. Wyatt is now suing the Chief Constable of the Countryshire Police, seeking to hold him vicariously liable for the negligence of the police officers and, in particular, Earp.
On a preliminary issue as to whether Earp (or other police officers) owed a duty of care to Wyatt not to cause him injury through shock, Dodge J held that no such duty arose.
THE APPEAL
Wyatt has appealed to the Court of Appeal in respect of this decision on the basis that the judge erred in law when he concluded that that no duty of care was owed in the circumstances of the case. He had concluded that:
1. It was not reasonably foreseeable that a mere bystander would suffer psychiatric injury through witnessing the death of a fellow human being in the absence of a close relationship to the victim. It made no difference that the victim was still only a child or that the death arose from a deliberate act.
2. Wyatt was employed as a police marksman. He knew that circumstances might arise in which he or his colleague would have to use their guns. He was also aware that in these difficult situations there was always a possibility of a miscalculation being made. These were risks which Wyatt could be taken to have voluntarily assumed. It was not, therefore, just and reasonable to hold that Wyatt was owed a duty of care.
Michael Wronged
Justice Chambers
Buckhampton
December 1st 2017
22. SOME SUGGESTED CASES AND READINGS FOR THE MOOT PROBLEM
General work: Halsbury’s Laws of England
Practitioner’s work: Clerk and Lindsell on Torts (21st Edition), Chapters 8 and 13
BASIC CASE LAW
Page v Smith [1996] AC 155 (primary victims; range of foreseeable injury)
Alcock v Chief Constable for South Yorkshire [1992] 1 AC 310 (Passive and unwilling witness of injury caused to another; whether psychiatric injury reasonably foreseeable consequence of D’s negligence. Position of “secondary victims”.)
White v CC of S. Yorks [1999] 2 AC 455 (PTSD; policy restrictions on liability; range of foreseeable injury)
Young v MacVean [2015] CSIH 70; 2016 S.C. 135
McFarlane v EE Caledonia [1994] 2 All ER 1 (bystanders to horrific events)
Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588 (issue of what is horrific).
Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194 (relevant event)
Werb v Solent NHS Trust (QBD) 15 March 2017
1998 Law Commission Report (Law Comm No 249)
Consider Employer’s responsibility to provide safe system of work
Barber v Somerset CC [2004] UKHL 13 (employer has to give positive thought to welfare of employees) Can the employer assume that the employee is up to the normal pressures of the job?
Grieves v FT Everard & Sons Ltd [2007] UKHL 39 (creation of foreseeable risk of asbestos related disease did not create foreseeability that it would cause psychiatric illness to a person of reasonable fortitude)
In the case of Mr Wyatt, the judge had erred in concluding that it was not reasonably foreseeable that a bystander would suffer psychiatric injury by witnessing the death of a fellow human being yet Mr Wyatt did not have a close relationship with the victim. This is not true because the police officer Mr Wyatt was a primary victim since he was part of the operation and saw it all happening because he was part of the police operation. This is a conclusion made per the Lord Oliver judgement in the Alcock V Chief Constable of South Yorkshire where he set out a clear distinction between primary victims that are involved in the issue and secondary victims who are passive and are unwilling to inflict injury on others. In the case, of Mr Wyatt he was an active participant in the operation. Moreover, he was within the physical danger zone and he saw it all live.
In the Page V smith (1996(1 AC 155 case the approach was refined for such claims. Where an objective approach needs to be taken to determine whether the claimant was in a zone of Physical danger. In the case of Mr. Wyatt, he was in a physical danger zone and such a shooting was foreseeable. This is provided because such a personal injury or psychological effect was foreseeable this is because the shooting could have had an adverse effect on the well-being of any person.
The second conclusion by the judge that Mr. Wyatt was an employed police marksman who knew that such circumstances could arise where he or his counterpart would use a gun. As well as the argument that he was aware of the scenario under which he was working and that he was well aware a miscalculation was possible is completely erroneous. This is based on Page v Smith [1996] 1 AC 155 which clearly shows that such a reasoning is not plausible. Since a primary victim only needs to establish that the physical harm that is inflicted on him in this case a psychiatric problem is as a result was foreseeable. In fact from the arguments of that case, there is no requirement by law that a psychiatric injury can be foreseen that is provided the personal injury could be foreseen.
In the same light, provided the physical injury that is the killing could be foreseen, there was no basis for arguing whether the injury on Mr. Wyatt was psychiatric or physical. As a consequence of this, there was no need to find out whether the psychiatric injury on Mr Wyatt was foreseeable. Furthermore, based on the McFarlane v E. E. Caledonia [1994] 1 Lloyd’s Rep 16 an ordinary person could not have suffered the same injury that Mr. Wyatt experienced since his unique scenario should be handled as occurring to him as an individual under the provisions of the skin skull rule.
Based on the arguments of Alcock v Chief Constable of South Yorkshire, a psychiatric injury must be caused by shocking events. In the case of Mr Wyatt, the events were shocking since the shooting were both horrifying and violent which ultimately agitated his mind.
The conclusion therefore is that the Chief Constable of the Countryshire Police and police officers involved in the operation such as Earp should be held accountable for the events that led to the killing of Adam
Facts of the case
1. That the judge was wrong in dismissing Mr. Wyatt’s case since it had a legal basis of argument. This is because Mr Wyatt was a primary victim who could have undergone psychological turmoil arising from the events of the shooting.
2. Psychiatric injury was not unique to Mr. Wyatt since in any person in such a situation could have suffered the same psychiatric problem Mr. Wyatt despite their professional field.
Bibliography
Cases
Page v Smith [1996] AC 155 (primary victims; range of foreseeable injury)
Alcock v Chief Constable for South Yorkshire [1992] 1 AC 310 (Passive and unwilling witness of injury caused to another; whether psychiatric injury reasonably foreseeable consequence of D’s negligence. Position of “secondary victims”.)
McFarlane v EE Caledonia [1994] 2 All ER 1 (bystanders to horrific events)
Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588 (issue of what is horrific).
