Tort | Negligence
Psychiatric Damage: Liability
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Psychiatric Damage: Liability
[Flash Card 1 of 5]
- Cs can claim psychiatric damage (PD) / refined rules only if pure PD (no physical injury) / pain & suffering covers if flows from personal injury
- all PD cliams / 2 restrictions: medically recognised condition / induced sudden shock / aim: determine genuine claims / prevent floodgates / limit D's possible liability
Medically recognised condition
- Ackner:
.. law gives no damages if the psychiatric injury was not induced by shock...
(Alcock v South Yorkshire Police [1992]) - medically recognised conditions: personality disorder (Chadwick v British Transport Commission [1967]) / PTSD (Leach v Gloucestershire Constabulary [1999]) / pathological grief (Kralj v McGrath [1986])
- insufficient: normal grief (Kralj v McGrath [1986]) / distress (Vernon v Bosley [1997]) / fear: normal emotion (Hicks v South Yorkshire Police [1992])
Sudden event
- insufficient: even if foreseeable C / may gradually suffer PD
- Ackner:
.. sudden appreciation by sight or sound of a horrifying sight or sound or a horrifying event, which violently agitates the mind...
(Alcock v South Yorkshire Police [1992])
Duty of care
- D must owe C duty of care (DoC) / only duty if C a reasonably foreseeable victim
- primary or secondary victims / proximity to incident / different criteria establish DoC
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Psychiatric Damage: Liability
[Flash Card 2 of 5]
Duty of care: primary victims
- D owes primary victim DoC not to cause pure psychiatric damage / if risk physical injury foreseeable
Page v Smith [1996]
- minor car crash / no psychical injury / chronic ME / previously mild
- DoC owed: P primary victim / involved in accident
- primary victim: actual area of danger or reasonably believed he was in danger / secondary victim: witnesses injury to another or fears for safety of another
- primary victims: risk of psychiatric harm not need be foreseeable / if physical harm foreseeable /
outmoded
to treat differently - earlier case: barmaid miscarriage induced shock & fear own safety (Dulieu v White & Sons [1901])
Duty of care: secondary victims
- secondary victim: less closely involved than primary victim / DoC test more stringent / narrow D's liability
Alcock v South Yorkshire Police [1992]
- Ps: relatives Hillsborough victims / assumed PTSD / some spectators / some witnessed tv / Ds: police force / admitted negligence for overcrowding / denied DoC spectators for PD / HoL: no DoC / test not satisified
- test: foreseeability of psychiatric harm: reasonably foreseeable person of normal fortitude in P's position would suffer PD / proximity of relationship: P close relationship of love & affection person endangered by D's negligence / proximity time & space: P present at incident or immediate aftermath / proximity perception: P see or hear / incident or immediate aftermath / with own senses
bits of law
Psychiatric Damage: Liability
[Flash Card 3 of 5]
Duty of care: secondary victims
Secondary victims: foreseeability of psychiatric harm
- objective test: reasonably foreseeable / person of normal fortitude / in C's position / suffer PD?
Secondary victims: proximity of relationship
- close relationship of love & affection with immediate victim
- rebuttable presumption if: parent / child / spouse / C argue other relationships sufficient
- bystander: may be sufficient: petrol tanker school passer by (Alcock v South Yorkshire Police [1992]) / not (McFarlane v EE Caledonia [1994])
Secondary victims: proximity in time & space and perception
- approved in Alcock / P family car crash / hospital 1hr / time & space sufficient: immediate aftermath / victims same condition (McLoughlin v O'Brian [1982])
- time & space insufficient: brother in law / mortuary / 8hrs (Alcock v South Yorkshire Police [1992])
- time & space sufficient: mother / mortuary / 2hrs (Galli-Atkinson v Seghal [2003])
- perception / Lord Wilberforce:
.. The shock must come through sight or hearing of the event or of its immediate aftermath...
(McLoughlin v O'Brian [1982]) - tv / no perception proximity: not identifiable individuals (ethics code) / not equivalent actual sight or hearing (Alcock v South Yorkshire Police [1992])
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Psychiatric Damage: Liability
[Flash Card 4 of 5]
Duty of care: rescuers
- rescuers / PD / after helping at accident / caused D's negligence
- crawled under train / DoC owed: in danger as rescuer (Chadwick v British Transport Commission [1967])
- oil rig / ship 100m away / no DoC: bystander not rescuer (McFarlane v EE Caledonia Ltd [1994])
- police / Hillsborough / HoL: not primary victims / not within range foreseeable physical injury / PD result witnessing immediate
- aftermath / rescuer only primary if in danger or reasonably believes is / reversed Frost CoA (White v South Yorkshire Police [1999)
Breach of duty & causation
- C must also show D: breach DoC & breach caused damage / remoteness issues
- primary victim: can rely egg shell (Page v Smith [1996]) / secondary victim: show PD objectively reasonably foreseeable (person normal fortitude in C's position would suffer PD) / if satisfied C then can rely egg shell (if greater PD than normal suffered)
Misconceptions
- C primary victim: wrongly believes / due D's negligence / caused death or injury (Dooley v Cammell Laird [1951])
- CoA: only Ps at scene / claim for misconception (Hunter v British Coal [1998])
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Psychiatric Damage: Liability
[Flash Card 5 of 5]
Witness to destruction of property
- C can claim / PD / after witnessing destruction of property
- pre Alcock / house fire / P succeed if D DoC not damage property / no distinction physical & PD (Attia v British Gas [1988])
Development of the law
- Law Commission / report Liability for Psychiatric Illness (1998) / recommend statutory DoC: not cause PD / coexist common law / no legislative provision yet
- Alcock: proximity time & space / not applicable
- Alcock: proximity relationship / applicable / close ties love & affection / list of automatically qualify: spouse / parent / child / sibling / cohabitant (at least 2 yrs)
- no sudden shock principle: PD due prolonged trauma not excluded
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