Chapter 11Business and the law of tortThe next important case was the following decision of
the House of Lords.
Breach of duty
After establishing the existence of a duty of care, the
claimant must show that this duty has been broken by
the defendant. The test for deciding whether there has
been a breach of duty is whether the defendant has failed
to do what a reasonable person would have done or has
done what a reasonable person would not have done.
Whether the defendant’s conduct amounts to a breach
of duty depends on all the circumstances of the case. The
court will consider a range of factors including:
■the likelihood that damage or injury will be incurred;
■the seriousness of any damage or injury;
■the cost and ease of taking precautions;
■the social need for the activity.335
that he did not owe a duty of care to the claimants. The
House of Lords dismissed all the claims. Their Lordships
held that a person can only recover for nervous shock
which causes psychiatric illness as a result of appre-
hending the infliction of physical injury (or the risk of
physical injury) to another person (the primary victim) if
he can satisfy the test of reasonable foreseeability that
he would be affected by psychiatric illness as a result of
the accident because of the close relationship of love
and affection with the primary victim and the test of
proximity in terms of the claimant’s connection in place
and time with the accident. The three requirements for a
successful claim are: (i) the claimant must have a close
tie of love or affection with the person killed; (ii) he was
close to the accident in terms of time and space; and
(iii) he witnessed the incident or its immediate aftermath,
rather than hearing about it from a third person.Pagev Smith(1996)The claimant (Page) was involved in a car accident
caused by the defendant’s negligence. Although the
claimant was not physically injured in the accident, it did
cause a reoccurrence of ME (chronic fatigue syndrome)
from which he had previously suffered. The House of
Lords held that the defendant was liable. A distinction
should be drawn between primary victims, who were
within the range of foreseeable physical injury, and all
other victims (secondary victims) who must satisfy the
tests set out in Alcock’s case. Page was a primary
victim. The defendant could reasonably foresee that his
conduct would expose Page to a risk of personal injury.
Page did not have to show that nervous shock was
reasonably foreseeable or that Page was particularly sus-
ceptible. (This is an application of the principle known as
the ‘thin skull’ rule, which means that you must take your
victim as you find him.)The principles established in Alcockand Page were
applied in the following case which also related to the
Hillsborough disaster.
at Hillsborough Stadium and being involved in the after-
math of the disaster. They sued as employees and as
rescuers. The House of Lords held that they were not
entitled to claim. As employees they were secondary
victims and they did not have a sufficiently close rela-
tionship with those who were killed or injured to meet the
test laid down in Alcock.In order to recover compensa-
tion as rescuers, the claimants would have to show
objectively that they had exposed themselves to danger
or reasonably believed that they were doing so. There
were strong public policy reasons which prevented them
from recovering when the relatives of those killed had
been denied compensation in the earlier case of Alcock.Whitev Chief Constable of South
Yorkshire(1999)
A number of police officers sued the defendant Chief
Constable for damages for post-traumatic stress dis-
order which they suffered as a result of being on dutyBoltonv Stone(1951)Miss Stone was hit by a cricket ball while standing on the
highway outside a cricket ground occupied by the
defendant cricket club. The evidence was that in the last
30 years balls had been hit into the highway on only six
occasions, no one had been hurt and at the point where
the ball left the ground there was a 17-foot protective
fence. The House of Lords held that for negligence to be
established there must be a reasonable likelihood of the
event occurring and injury being caused as a result. The
risk of injury to those on the highway was so small and
the cost of ensuring that balls could not be hit outside
the ground so high, that a reasonable person would not
have taken the precautions. The cricket club was not
liable for Miss Stone’s injuries.In Boltonv Stone, their Lordships struck a balance be-
tween the magnitude of the risk of injury to passers-by
and the precautions required to prevent injury. As Lord
Radcliffe stated: