Psychiatric Injury

Front 1

Liability for Psychiatric Damage

Back 1

Traditionally, the courts have been wary

Faked and /or Exaggerated claims

Measurability of damage

‘The floodgates argument’

Any extension should be made by the legislature

Front 2

Development

Back 2

Initially the courts, particularly in the UK, were reluctant to award damages

Front 3

Victoria Ry. Commissioners v. Coultas (1884)

Back 3

Privy Council upheld the defendants appeal against liability.

“Damages arising from mere terror unaccompanied by any actual physical injury, but occasioning a nervous or mental shock, cannot under such circumstances…be considered a consequence which in the ordinary course of things, would flow from the negligence of the gatekeeper”

Front 4

“Zone of Danger”

Back 4

First case to allow a claim for nervous shock was decided in this jurisdiction

Front 5

Byrne v. Southern and Western Ry. Co. [1884]

Back 5

“A hair of my head was not touched; I swear I received no physical injury; I got a fright andshock: I do not mean a physical shake . . .”

Where it was reasonably foreseeable that the plaintiff could suffer physical injury by being present at the scene or zone of danger, then compensation should be awarded for psychiatric injury.

If you were not present at the scene – you could not bring an action.

Front 6

Bell v Great Northern Railway Co. [1890]

Back 6

Plaintiff was entitled to damages for nervous shock. The courts recognised that psychiatric injury was a very serious affliction which deserved as much attention as physical injury:

“was the health or the capacity of the plaintiff for the discharge of her duties and enjoyment of life affected by what occurred to her whilst in the carriage? was this caused by the negligence of the defendants?”

Front 7

The English Position

Back 7

Initially with Coultas, courts rejected the notion of damages for nervous shock.

As society’s knowledge of mental trauma grew, they recognised that it was reasonably foreseeable that, in situations where a plaintiff feared for his own life, he could suffer from nervous shock.

Ensured that the flood of claims the courts feared would be limited only to those present at the scene.

Front 8

Dulieu v.White & Sons [1901]

Back 8

Pregnant woman was behind a bar but D negligently drove his horse drawn cart in the bar. C was not physical injured But she feared for her own safety, suffered shock. She gave birth too early and her child suffered from development issues

Irish approach adopted in England.

Front 9

The Aftermath Doctrine

Back 9

Originally, the courts were of the opinion that nervous shock was only reasonably foreseeable where the plaintiff was within the zone of danger and feared for his/her own life.

Front 10

Hambrook v. Stokes Bros. (1925)

Back 10

D’s employee left a lorry at the top of the hill running without the handbrake. It came downhill. C was walking with children- she knew her children were at the spot where the lorry was approaching. 1 of her children was injured.

She suffered no physical injury but psychiatric illness.

Would be unfair not to allow recovery in a situation where a parent, (although not in the zone of danger herself), witnessed possible injury to her children within the zone.

Zone of Danger (Involved in accident) and witnessing.

Front 11

Created further issues for courts

Back 11

House of Lords attempted to set clear parameters and limits on those who could claim for psychiatric damage where the claimant was not directly involved in the accident themselves.

Ensure compensation for those deserving it and limit the amount of claims

Front 12

McLoughlin v. O’Brien [1983]

Back 12

Bridge - Reasonable Foreseeability (Simpliciter)

Wilberforce - nervous shock suffered by secondary victims in general lacks relational proximity and reasonable forseeability sufficient to create a duty of care.

Front 13

Ssecondary victim

Back 13

A close relationship in terms of love and affection

Closeness to the accident in time and space

Direct perception

Front 14

Alcock v. Chief Constable of South Yorkshire Police [1992]

Back 14

Categorised primary and secondary.

Hillsborough disaster. Could people who were relatives of those injured watching TV claim?

Lord Oliver- primary and secondary victims.

Front 15

Close tie of love and affection

Back 15

Close tie of love and affection – the court was not convinced that two of the plaintiffs who lost brothers in the disaster had proved a close tie of love and affection.

The plaintiff, despite being at the ground, failed to prove that he “loved” his brother, to the satisfaction of the court.

Front 16

Presence at the scene or immediate aftermath

Back 16

Parents of certain victims failed in their action on the grounds that their visit to the makeshift morgue to identify the bodies a couple of hours after the disaster was not to be considered presence atthe immediate aftermath

Front 17

Direct perception

Back 17

Close relatives of the victims who witnessed the disaster on live television, despite knowing their loved ones were at the ground, failed in their actions also. The courts stated that as they had not directly perceived the incident they could not be reasonably foreseeable.

Front 18

Criticism of Alcock

Back 18

Deficiencies in Lord Wilbeforce’s formula.

Two-tiered approach i.e. prove that the damage was reasonably foreseeable PLUS prove close tie of love/affection, closeness in time/space and direct perception (proximity), the courts had created a rigidity which runs contrary to the spirit espoused in Donoghue.

Front 19

Healy

Back 19

Distinction between primary and secondary victims has resulted largely from the sense that mental injury to persons never directly imperilled by an original danger is not in general reasonably foreseeable and requires to be specifically justified.

Front 20

McGrath v Trintech Technologies Ltd. HighCourt (2004)

Back 20

Bouts of ill health. While on sick leave, requested to go to Uruguay On return, absent from work and made redundant.

Cases taken by primary victims for mental harm are not subject to the special proximity limits.

Demonstrated in cases such as above

Front 21

McFarlane v EE Calendonia Ltd. [1994]

Back 21

P was off-duty on board a support ship when an explosion occurred, and the oil rig on which P normally worked was engulfed in flames. P sought damages for psychiatric harm which he suffered by witnessing the destruction of the rig.

Bystanders. The law -bystanders - succeed - unclear.

Front 22

Rescuers

Back 22

If rescuers were entitled to compensation in England, very much depended on whether they were considered to be primary or secondary victims.

Initially, the English courts were in favour of treating this category of plaintiff as being distinct.

Front 23

Chadwick v. British Transport Commission [1967]

Back 23

A major train accident was caused by negligence for which the defendant railways board were liable. A volunteer who took part in rescue work suffered nervous shock and became psychoneurotic as a result of his experiences.

Successful

Front 24

White v. Chief Constable of South Yorkshire [1998]

Back 24

P had all suffered PTSD as a result of their involvement in the aftermath of the Hillsborough Football Stadium disaster.

They would only be considered primary victims if the rescue placed them in physical danger, or in reasonable fear of such danger.

Not entitled to the special status of primary victims simply because they were deemed to be ‘rescuers’.

Front 25

The Irish Position

Back 25

The proximity limitations have not been tested to the same extent as they have been in the England with the Hillsborough disaster.

When the Irish judiciary have had to deal with this area they have refrained from expressly adopting Alcock

Front 26

Mulally v. Bus Eireann [1992]

Back 26

Car being driven by the plaintiff’s husband was involved in a serious road traffic accident with the defendant’s bus resulting in the fatality of one of her sons and serious injury to her husband and two other sons.

Principle adopted by the court was to apply the reasonable forseeability principle simpliciter.

Front 27

Kelly v. Hennessy [1996]

Back 27

Plaintiff’s husband and daughter were seriously brain damaged in a road traffic accident due to the negligence of the Defendant. She heard of the accident by telephone. She began to display symptoms of nervous shock and was then driven by neighbours to the hospital, where she witnessed her husband and daughter in a very distressed state.

Front 28

Hamilton C.J.

Back 28

Plaintiff must suffer from a recognised psychiatric illness

Must have been shock-induced because of the defendant’s negligence

Foreseeable that the accident would cause psychiatric injury

Illness must result from the perception of the actual injury, or a risk of injury

In aftermath situations, must be a close personal relationship between the primary victim & person suffering psychiatric injury

No rule of public policy that plaintiff’s claim for nervousshock, if successful, should be excluded

Front 29

Hybrid Approach

Back 29

Refrained from expressly approving Alcock

Aware proximity factors could lead to injustice

Not adopted the policy limitation approach as in Alcock (Point vi)

Front 30

Bystander Ireland

Back 30

The courts have not expressly tied themselves to Alcock, there is the possibility that the Irish courts may recognise the claim of a bystander where the accident is especially horrific

Front 31

Curran v. Cadbury (Ireland) Ltd. [2000]

Back 31

The machine was turned off. Unknown to the plaintiff, there was a fitter inside the machine repairing it. The plaintiff turned on the machine and immediately became aware of commotion and screams close to her. The plaintiff thought she had killed or seriously injured her fellow employee.

The defendant had fallen short of what the reasonable employer should have done.

Front 32

McMahon J.

Back 32

Decision was primarily based on the reasonable forseeability of the resulting shock which had its origins in the negligence of the employer in not alerting his workers to the fact that the machine in question was being prepared.

Front 33

Cuddy v. Mays 2003

Back 33

Brother died and several other relatives injured. Porter at the General Hospital in Portlaoise. He had the misfortune to be actually on duty that night and was in the Casualty Unit when the ambulances containing the victims, three of whom were already dead, arrived at the hospital.

Close relationship with the parties and physical proximity to the aftermath.

Front 34

Fletcher v. Commissioner of Public Works [2003]

Back 34

Injury concerned here was not nervous shock per se, the injury was not shock induced. It arose from the worry of the plaintiff following his negligent exposure to asbestos by the defendant. That is, it was more incremental in nature rather than the result of a sudden shock.

Keane C. J. Policy reasons why damage for injury of his nature should be limited

Court left open the issue as to whether the plaintiff would have succeeded in his claim if the fear of the disease was a reasonably held fear

Front 35

Devlin v National Maternity Hospital [2008]

Back 35

Hospital wrongfully carried out a post-mortem examination on their stillborn daughter, and removed and retained organs, without the knowledge or consent of the plaintiffs.

"On this law the Plaintiff is not entitled to succeed because the fourth condition is not met"

illness must result from the perception of the actual injury, or a risk of injury

Front 36

Corbett v Ireland [2007]

Back 36

3 incidents, two explosions and helicopter crash.

The judge noted that soldiers had to deal with experiences such as these in the course of theirduties

Front 37

Murtagh v The Minister for Defence, Ireland and The Attorney General 2008

Back 37

Warning bells should have rung about his condition as an immature 21 year old suffering Acute Anxiety States to the extent of loss of consciousness and uncontrollable shaking and fits.

His vulnerability to PTSD should have been obvious