Chapter 2 Pt 2 - Psychological/Psychiatric Harm Flashcards
When is psychiatric harm claimable in negligence?
When it results from direct physical injury (‘consequential physical harm’)
In which two situations can pure psychiatric injury (psychiatric injury which does not result from physical injury) be claimed?
1 - nervous shock suffered by someone involved in or having witnessed an accident
2 - where an employer breaches a duty not to cause foreseeable workplace stress
What are the three policy considerations which govern the law regarding nervous shock?
Fear of fraudulent claims, difficulty proving causal connection between act and suffering, and danger of opening floodgates
What are primary victims and give a case law example
Victims directly involved in the accident or within the zone of physical danger - Dulieu v White [1901]
What are secondary victims and give a case law example
Victims not directly involved but who suffered harm as a result of witnessing the accident - Bourhill v Young [1942]
What is the current approach in relation to awarding damages for nervous shock to secondary victims, and what case law did this arise from?
Damages for nervous shock can only be awarded to secondary victims who witnessed the accident (e.g. on tv). If the accident was not witnessed, damages for nervous shock are only awarded to a spouse, parent or child of the primary victim. A criteria must be satisfied by a secondary victim before they can be awarded damages, arising from HoL decision in Alcock v Chief Constable of South Yorkshire.
What three things must a claimant establish in a psychiatric harm claim?
1 - defendant owed a duty of care
2 - defendant breached the duty
3 - the claimant has a clinically recognised psychiatric illness as a result of the defendant’s negligence which is potentially worthy of compensation
What is the rule for damages regarding sorrow and grief, stated by Lord Denning in Hinz v Berry [1970]?
Damages are not recoverable for grief and sorrow, the court has to draw a line between sorrow and grief and nervous shock and psychiatric illness which damages are recoverable for.
What must a primary victim prove in order to claim damages for nervous shock, and what case law did the rule come from?
They must show the defendant could have foreseen personal injury, physical or psychiatric. They don’t need to prove that psychiatric injury was foreseeable providing they can show that some injury was foreseeable. (Page v Smith [1995]).
What must secondary victims prove in order to claim damages for psychiatric injury?
That the psychiatric injury was reasonably foreseeable to someone of reasonable fortitude
What five factors established by Lord Oliver in Alcock v Chief Constable of South Yorkshire [1992] should be taken into account when determining if a duty of care is owed to secondary victims?
1 - sudden shock (must be a result of trauma and not slow realisation)
2 - must be reasonably foreseeable in claimant in circumstances
3 - proximity of time and space (claimant must be at scene/there soon after)
4 - proximity of claimant and person in incident (closer = more foreseeable)
5 - proximity of perception - claimant should have seen or heard event or aftermath with own senses
What was held in White v Chief Constable of South Yorkshire Police [1999] regarding rescuers and psychiatric injuries?
That it must be very rare that a rescuer will be held to have suffered foreseeable psychiatric injury as a result of their rescue
What was established in the case of Wilkinson v Downton [1897] regarding damages for shock?
Damages could be claimed for deliberately caused shock (in case law claimant was successful in claim after friend joked her husband was in an accident)
