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23 Cards in this Set
- Front
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What are the key arguments for restricting compensation for negligently inflicted psychiatric harm? |
Summarized by Lord Steyn in White v Chief Constable of South Yorkshire Police: - Difficult to draw a line between acute grief and psychiatric illness, greater fear of sham claims with diagnostic uncertainty - Effect of increased availability of compensation to potential claims may discourage rehabilitation - Floodgates argument - Potential unfairness to defendant and increased burden on insurers |
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What distinguishes a primary victim of psychiatric harm? |
1. Suffer psychiatric harm as a result of something that has happened to them but suffer no physical injury - Alcock 2. Can recover from actual physical injury/apprehension of danger to physical safety - Dulieu 3. Should be in the danger zone - Page 4. No need to be of 'ordinary fortitude' 5. No policy considerations to limit number of claimants |
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What distinguishes a secondary victim of psychiatric harm? |
1. Suffer psychiatric harm as a result of seeing/hearing about something that has happened to someone else, with their own unaided senses. There must be a close tie or love and affection between them and primary victim, proximity with the event and the occurrence of a shocking event - Alcock 2. Psychiatric injury must be reasonable in person of 'ordinary fortitude', though 'egg-shell/thin skull' rule applies 3. Policies used to limit the number of claimants |
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Alcock & Others v Chief Constable of S. Yorkshire Facts: Hillsborough disaster, in which S. Yorkshire police's negligent crowd-control resulted in the death of 95 people. Claims were brought by people at the stadium, relatives of the victims and individuals who watched on tv. All claimed to have suffered shock Held: Lord Oliver distiguished between primary & secondary victims |
Lord Oliver: Alcock Control Mechanisms: 1. Class of persons - defined by relationship with victim. Unless 'particularly horrific' events, need to be spouse/parent/child with close ties of love and affection 2. Closeness of claimant both physically and temporally to the accident - “sudden and direct visual impression on theplaintiff’s mind of actually witnessing the event or its immediate aftermath” 3. Means by which shock is caused |
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How was 'shock' defined in Alcock? (1) How was it described in Brice v Brown? (2) |
Lord Ackner: "'Shock', in the context of this cause of action,involves the sudden appreciation by sight or sound of a horrifying event, whichviolently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system." (1) Stuart- Smith J: ‘nervous shock’ is a ‘convenient phrase todescribe mental injury or psychiatric illness to distinguish it from, on theone hand, grief and sorrow and, on the other hand, physical or organic injury.' (2) |
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White v Chief Constable of S. Yorkshire Police Facts: Police officer suffered PTSD as a result of their involvement in aftermath of Hillsborough, D admitted was caused by negligence Held: D owed officers as employer to care for the safety ofemployees , butthere was no extension of that duty to protect from psychiatric injury wherethere was no breach of the duty to protect from physical injury. |
Issues with recognizing rescuers as primary victims Originally, rescuers had been treated favorably by court as 'danger invites rescue' (Wagner, NY case) however was held in White that they could only recover if they fit description of primary victims given in Page |
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Page v Smith Facts: claimant suffered ME over a period of timeand was in recovery when he was involved in a minor car accident due to thedefendant's negligence. Not physically injured, but ME was triggered and left chronic Held: provided some kind ofpersonal injury was foreseeable it did not matter whether the injury wasphysical or psychiatric. |
Egg-shell rule: provided some kind ofpersonal injury was foreseeable it did not matter whether the injury wasphysical or psychiatric. Was thus no need to establish that psychiatric injury was foreseeable Primary victim not solely distinguished on foreseeability but also proximity - extended criteria as should be in physical zone of danger without sustaining physical harm |
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Hinz v Berry Facts: MotherP suffered psychiatric shock on seeing her husband and children seriouslyinjured in a road accident, just across the road from where she was. Became morbidly depressed Held: She was entitled to recover as she had demonstrated a recognised psychiatric condition as opposed to feelings of grief and sorrow. |
Lord Denning MR "In English law no damages are awarded for grief or sorrow caused by a person's death. No damages are to be given for the worry about the children, or for the financial strain or stress, or the difficulties of adjusting to a new life. Damages are, however, recoverable for nervous shock, or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of duty by the defendant." |
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Reilly v Merseyside HA Facts: Elderly visitors with physical ailments were stuck for an hour in a hospital lift due to negligent maintenance. Held: Courtruled on appeal that worry, panic and anxiety were normal human emotions in theface of unpleasant experience |
Not recognizable psychiatric injuries; so couldnot claim. |
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Fraser v State Hospitals Facts: Formerpsychiatric nurse sought damages for the effects of various incidents in thecourse of work. Held: Judgeheld there was no duty to protectemployees from unpleasant emotions such as grief, anger, resentment orother normal emotions. |
Judgeheld there was no duty to protectemployees from unpleasant emotions such as grief, anger, resentment orother normal emotions. |
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Dulei v White Facts: C was pregnant and behind the bar in her husband’spub. A horse and cart crashed into the pub. The claimant was notphysically injured but feared for her safety and suffered shock. She gave birthprematurely nine days later and the child suffered developmental problems. Held: an action could lie in negligence for nervous shock arising from areasonable fear for one’s own immediate safety. |
Kennedy J: “... fear is proved to have naturally and directly producedphysical effects, so that the ill results of the negligence which caused thefear are as measurable in damages as the same results would be if they arosefrom an actual impact, why should not an action for those damages lie just aswell as it lies where there has been an actual impact? ...There is, Iam inclined to think, at least one limitation. The shock, where it operates through the mind, must be a shock whicharises from a reasonable fear of immediate personal injury to oneself.” |
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Bourhill v Young Facts: C was pregnant fishwife. D got into car crash near where she was standing & was killed by impact. C heard collision & short while later saw the aftermath of the accident (but no corpse). Went into shock & baby stilborn Held: No duty of care was owed, insufficient proximity |
Decision to limit recovery of damages to incidentswherein the psychiatric damages where a direct effect of negligent actsquestioned... was decided proximity still needed to be present between the breach and loss |
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Farrel v Avon HA Facts: C was father to a newborn child. Atthe birth he was told that his baby son was dead before seeing his son andunderstanding that an error had been made. He sought damages asserting that hehad suffered nervous shock. Held: As a primary victim a claimfor psychiatric injury was possible even where no physical injury was risked. Areal risk of suffering a recognized psychiatric disorder was sufficient. |
Primary victims need not suffer physical harm. Foreseeability of suffering psychiatric harm is enough |
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McLoughlin v O'Brian Facts: C arrived at hospital and viewed her family members bloodied and bruised after the were involved in a traffic accident. Suffered depression and personality change and sued Held: appeal was allowed and theclaimant was entitled to recover for the psychiatric injury sustained. |
House of Lords extended the class of persons who would beconsidered proximate to the event to those who come within the immediateaftermath of the event. Lord Wilberforce:“Experience has shown that to insist on direct and immediate sight or hearingwould be impractical and unjust and that under what may be called the "aftermath " doctrine, one who, from close proximity comes very soon uponthe scene, should not be excluded |
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Berisha v Stone Superstore C arrived at hospital after her bf suffered an injury. Was already on life support at the time (5 hours later). Was at his bedside for 36 hours Held: claim dismissed as she had no real prospect of establishing thatshe witnessed the immediate aftermath of the accident. Injuries & deathof her partner were not part of a single drawn-out event or “seamless tale”. |
Must establish psychiatric harm based on one single event, or the immediate aftermath of such Simlar ruling in Sion v Hampstead HA |
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Simmons v British Steel Facts: C suffered severe blow to the head at work. Angered by negligence of owner and aggravated a skin condition which prevented him from working. Held: Applying Page v Smith, awarded damages |
Lord Rodger said the basic principles are as follows: [1] A defendant isnt liable for consequences not reasonablyforeseeable.[2] A defendant may not be liable for damage causedby the C [3] Subject to [2], if C's injury is foreseeable, D is liable for that injury even if it is more serious/caused differently than could havebeen foreseen [4] D must take his victim as he finds him. [5] Subject again to [2], where personal injury to the claimant is reasonablyforeseeable, D is liable for all the personal injury |
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Walker v Northumberland Facts: C was senior social worker. Suffered nervous breakdown, returned to work and the workload had not changed. Held: dutyto provide a safe system of work, said the judge, extended just as much topsychiatric damage as to physical injury. The first breakdown may not have beenforeseeable, but the second certainly was, and DD had taken manifestlyinadequate measures to protect P's health. |
Court beginning to look at personal injury as including both physical and psychiatric harm |
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Chadwick v British Railways Board Facts: rescuerwho voluntarily spent some six hours helping to bring the dead and injured outof the wreckage at a particularly harrowing train crash suffered foreseeablepsychiatric injury Held: wasawarded damages against British Railways, whose negligence had led to the crash |
Despite having put himself in the zone of danger, rescuer was compensated for psychiatric harm |
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McFarlanev EE Caledonia Facts: manwho had been present on one of the rescue vessels during the disastrous fire atthe Piper Alpha oil platform claimed damages for the psychiatric injury hesuffered as a result Held: Stuart-SmithLJ doubted the dicta in Alcock and said that as a matter of both principle andpolicy, the court should not extend the duty of care to those who were merebystanders & not secondary victims |
Mere bystanders cannot recover, even if cases they might find 'particularly horrific', as it is impossible to establish a hierarchy of horrific events |
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Greatorexv Greatorex Facts: C sued for psychiatric illness after watching his son D involved in a road accident allegedly cause by D's negligence Held: Toimpose a duty of care to secondary parties who might suffer psychiatric injuryas a result of a person's self-inflicted injuries would curtail that person'sright of self-determination and freedom of action |
Eventsmay also give rise to liability if they are shocking enough that "a personof customary phlegm" in the claimant's position might foreseeably havesuffered psychiatric injury. |
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Robertson v Forth Road Bridge Join Board Facts: C sufferedpsychiatric harm after his colleague died while trying to remove a sheet ofmetal from the Forth Road Bridge in windy conditions Held: Claimwas denied despite evidence showing that he had spent the greater part of hisemployment working with the victim. |
Friends cannot satisfy the criteria for secondary victims |
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Corr v IBC Vehicles Ltd Facts: C's husband committed suicide and she sued his employers as he had suffered a severe and debilitating injuryworking for them leading to his depression and suicide Held: Not too remote to recover. Suicide is not an unforeseeable response todepression |
Psychiatric harm may manifest itself physically but still fits the description of primary victim |
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Grieves v FT Everard & Sons Facts: C had been exposed to asbestos, developed pleural plaques and could potentially develop further disease. Cwas so worried he became clinically depressed Held: claimfailed on grounds that his reaction was unforeseeable. |
Suffering psychiatric harm should be foreseeable |
