Donachie v Greater Manchester Police

For a primary victim, reasonable foreseeability of a risk of physical injury is sufficient to establish a duty of care, even where the injury actually suffered is psychiatric, physical of a different kind, or follows an unforeseeable psychiatric route. The claimant need not prove that the feared event, such as an assault, occurred. Control mechanisms applicable to secondary victims do not apply. A tortfeasor must take a primary victim as found, so unknown pre-existing vulnerability does not defeat foreseeability. In personal-injury claims, causation ordinarily uses the but-for test. A finding that culpable exposure to extreme stress caused or materially contributed to injury may therefore suffice without resort to an exceptional risk-based test.

David Donachie, a police officer, suffered a stroke after repeated attempts to attach a tracking device to a suspected criminal’s car. The repeated attempts were caused by defective batteries. The Manchester County Court found breach of duty and causation, but dismissed claims in negligence and for breach of statutory duty because the injury was not reasonably foreseeable. The judge treated the claimant as a secondary victim, found no separate assault or similar event, and considered the Chief Constable’s lack of knowledge of his hypertension significant. The claimant appealed on foreseeability. The Chief Constable sought to uphold the decision and cross-appealed on causation. The central issues were the classification of the claimant, the relevance of unknown vulnerability, and whether causation was established.

Auld LJ gave the judgment of the Court, with Latham LJ and Arden LJ agreeing. The claimant’s appeal was allowed and the respondent’s cross-appeal on causation was dismissed.

1. The trial judge had found that defective batteries substantially increased the risk of discovery and assault by prolonging the claimant’s exposure beneath the vehicle. Those findings established a reasonably foreseeable risk of physical injury. There was no legal requirement that the risk involve imminent physical harm.
2. Applying Page v Smith [1996] 1 AC 155, the same foreseeability test applies to physical and psychiatric injury, although its application differs for primary and secondary victims. The claimant was a primary victim because he was directly exposed to a foreseeable risk of physical injury. It was unnecessary to prove that the suspected criminals actually emerged or assaulted him. Sutherland v Hatton [2002] PIQR P221 concerned a case in which no reasonably foreseeable risk of injury of any kind had been established and did not govern this case.
3. Once foreseeable physical injury brought the claimant within the duty of care, it was immaterial that the injury actually suffered was a stroke following psychiatric injury, rather than an assault. The Chief Constable had to take the claimant as found. The absence of knowledge, or reasonable means of knowledge, of his pre-existing hypertension did not defeat foreseeability or causation. The Court added, obiter, that the onset of fear causing injury could itself have been treated as the relevant event if an event requirement had applied.
4. The foreseeability issues in negligence and breach of statutory duty were essentially the same. The ordinary causation rule remained the but-for test, as identified in Bonnington Castings Ltd v Wardlaw [1956] AC 613 and discussed in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32. The exceptional material-increase-in-risk approach was unnecessary.
5. The trial judge had found that the culpable excess exposure to extreme stress caused or materially contributed to the stroke. Causation was primarily a factual matter, and there was no proper basis for appellate interference.

The case was remitted to the Manchester County Court for directions and disposal of quantum. The respondent was ordered to pay the claimant’s costs, subject to the specified trial-costs arrangements.

1. Court of Appeal (Civil Division): In [2004] EWCA Civ 405, allowed the claimant’s appeal, dismissed the respondent’s cross-appeal on causation, entered judgment for the claimant, and remitted the case for directions and disposal as to quantum.
2. Manchester County Court: On 28 February 2003, His Honour Judge Tetlow dismissed the claims in negligence and for breach of statutory duty, despite finding breach and causation, on the basis that the injury was not reasonably foreseeable.