Essay: Negligence – the Alton Towers accident

Whilst there is obvious expectancy to experience fright on a ride, health and safety at Alton Towers should be paramount importance. In a high profile position such as this it is often that Merlin entertainments will accept liability as early as possible to limit further damage to their reputation. It is of my opinion the victims on the ride at the time of the crash are undoubtedly entitled to compensation although I don’t think any amount of money will make up for the fact four victims have suffered life changing injury’s whilst others are physically injured, the carnage could of killed somebody. This case appears to be a repeat of the 2006 runaway mine train accident when 20-30 people ended up injured. (BBC, 2006)
Negligence is a tort in contract law that is the failure to do something or take proper care of something, that a reasonable person is expected to do. For example; if taking a child to Alton Towers for the day, you have a duty of care to ensure the child is safe and well. If the duty of care is to cause damage that is a breach to the claimant. Kelly et al (2014)
(Donoghue V Stevenson, 1932) formed the foundation of negligence, before 1932, a duty of care was not recognised. The realisation of duty of care led to manufacturers selling products/services taking full responsibility for any damage caused to the end consumer ultimately having a dramatic impact on society. This meant that paying customers in the park are treated the same as somebody purchasing a ticket for another person’s use if the item caused damage. Kelly et al (2014)
The Health and Safety act governs duty on those operating rides to ensure members of the public are not at risk, along with ride designers, manufacturers, controllers etc. With so many organisations involved this can prove to be a time consuming process investigating with contractors, ride designers etc.
When identifying victims it is important to distinguish between primary and secondary victims as this can distinguish the type of negligence. There are two types of primary victims, those in the zone of danger and those on the ride at the time of the accident; usually claims are valid and straightforward as we can examine proximity and visible injuries. However, a secondary victim is considered to be anybody that is not in the zone of danger but witnessed the event unfold. A leading case on duty of care is (Caparo V Dickman, 1990) sets out the tests we must prove to establish a duty of care, the formal requirements are as follows;
The first test we must establish is reasonable foreseeability we have to ask was there a legal duty and was the defendant owed a duty. To examine this we look at case law to help us make a decision.
Bourhil V Young
Held: no duty owed as she was not a foreseeable victim.
This test is flawed as it is to vague, but we see negligence as a fluid principle this has to be applied to varied and problematic situations of lives today.
This brings me onto my next point nervous shock.
Case law on nervous shock
In English law today, nervous shock is considered to be an injury or psychiatric illness it if often triggered by witnessing a distressing event.
Nervous shock was first established in the case of Byrne v Western Railway Co. The rail points were left open; a train arrived and broke through the wall. The claimant was successful in his claim. The decision of this case increasingly recognised nervous shock.T he secondary victim has to hear or see the awful event happening or prove a duty existed, they cannot claim damages coming from another block of rides that are located at the other side of the park.
In my opinion witnessing is a difficult area, medical evidence will need to be given, being upset, frightened or grieving is not sufficient enough and it is not always easy to determine the extent of a psychiatric injury in regards to what would be the right amount of compensation, but in today’s society medical needs are increasing since the birth of the Lynch decision which is the view that psychiatric injury should be no more difficult than a physical injury, (Butler )
Those who experience nervous shock will find law more restrictive than negligence causing physical injury/property damage. Nervous shock has often been criticised as it can be said to cover a wide range illnesses in negligence.
The second test the courts will examine is proximate relationships and close tie of love and affection
Watson V British Boxing board
Proximity is a crucial element of the tests as it determines whether a witness to an event can claim or not.It has been put forward to the courts in 1988 that the proximity test should be abolished however this was not acted on and sits in the large pile of commission reviews. Ultimately this would have meant those secondary victims claims put forward in regards to the Hillsborough disaster would have been successful.
The Hillsborough disaster allows us to think about the victims, the law assumes that when you are a parent, child, engaged or married there is a close tie of love and affection and all were successful in their claims. However, secondary victims, brother, uncles, friends, grandparents failed to sue as the courts assumed that they do not have a close tie of love and affection, this could be argued the party’s had a close relationship again this can be difficult to prove. The neighbour principle can be criticised as it is set deliberately high so people will not succeed. This case highlights negligence on the part of the police force as they made a massive mistake in letting people in those gates, it is the same as a citizen not abiding the law they will be punished therefore police should suffer the consequences of their actions. The victims families have had to suffer in silence during the ordeal for 27 years when the police admitted gross negligence.
Bystanders are usually secondary victims and will have to fulfil all tests to satisfy a claim. However, there are some cases where a secondary victim can become a primary victim such as; someone watching the ride at the time and the ride gliding towards the operating box where they was stood causing damage, Dulieu V White & sons. This is a significant cse as it helps us to decide if they has been a breach or not.
Rescuers at the scene are treated as secondary victims as they are unable to satisfy the proximity test, I would agree in the law as this would be wrong to discourage brave rescuers who push in to help injured, if every rescuer team was to get compensation this would not be fair and reasonable as this is terms of employment. However, controversially the secondary victims at Hillsborough, ie. Relatives of those injured were unsuccessful whilst police officers, rescuers, at the event were successful in their claims, by involvement in their negligence, they became primary victims, encompassing the tests. Is there any justice in the system today, why are the police force not treated the same as secondary victims when they put themselves in danger.
It would be honourable if psychiatric damage, physical injury and nervous shock to be awarded in this instance but there has to be a limit as to what the law can allow, the law says shock has to be sudden and expected. If there was compensation for all the victims there would be lots of legal claims, insurance premiums would go up, and me and you would be expected to pay for them as a result.
(Taylor v A Novo, 2013) is significant as it highlights the perception of a claimant of an event as it happens and not when it passes. Secondary victims must be present when the negligence occurs and the immediate aftermath in order for a claim to succeed. In this case the claimant’s mother suffered an accident at work, recovered, and then a few days later collapsed and died.
(Mcloughlin v O’Brien, 1983: 410) stated the law cannot compensate the world at large, this brings me on to my next point that in today’s society we have quick access to news everywhere, with the instant uploading of videos and pictures makes it more likely for family’s to witness injury. Those who watched the crash on TV, were not sufficient enough claims for a duty of care owed, they fail the proximity test, it was not reasonably foreseeable if you watched someone upload on you-tube. Should that mean everybody that watches distressing things on the BBC news be compensated, I don’t think it would be fair and reasonable to impose such law. Although I can emphasise with the pain that this would cause watching your child suffer, surely this is the same as being at the incident and should undoubtedly be awarded for the prolong suffering. The law is quite reasonable as generally secondary victims can’t sue but Alcock says if they satisfy the four tests they can, as a result less claims are processed(Hewitt et al., 2015)
The third test is weather it is fair and reasonable to impose a duty. These tests are often criticised as someone prolong suffering is not allowed compensation, this can be deemed an unfair rule.
To conclude, it is fairly obvious secondary victims at Alton Towers will have to pass all tests before any successful claim, and many who have suffered psychiatric injuries will not be compensated, in my eyes this is unfair but the law is built on legislation followed by parliament interpreted by judges, if we do not abide we face punishment.
The Alton Towers case is an example of punishment as they were found negligent under the Health and safety act and as a result fined £5m giving them rise to maintain higher health and safety monitoring. This case was an interesting area to examine as it made me think about the safety of people around us and our neighbours, it would be impossible to set up organisations without the regard to what is around us. If we do not do the right thing it is deemed below the standard of a reasonable person when someone is injured.
It can be said that for parliament to act on new legislation will be when these issues are addressed, societal changes cannot happen if the law does not recognise the social media age, as the current law is outdated it would be wishful is parliament would act on this.