Damages Flashcards
What is actionable damage?
A term given to those interests that have been protected in previous cases.
When is psychiatric injury permitted as damage?
- where it happens subsequent to physical injury,
- ‘nervous shock’ cases,
- occupational stress-induced cases.
Describe the incremental development that has occurred in UK/Irish courts when it comes to recognising psych injuries as injuries in negligence tort law.
A. Psychiatric injuries were only allowed where they were suffered after a physical injury.
B. Then the law moved on to looking at cases where the plaintiff was in danger of physical injury, and reasonably feared physical injury, but actually only suffered psychiatric injuries.
C. Where a plaintiff feared not of immediate physical injury to himself, but to his family members.
D. Finally, the courts said that where a Good Samaritan, in other words a person who rescues a stranger from danger, assists in the aftermath of an accident and suffers psychiatric injury, he could be compensated.
What are primary and secondary victims? Where did these categories originate from? Has this distinction been adopted in Irish courts?
Primary victims: a person might be able to recover where he/she was at risk of a foreseeable physical injury, but in fact suffered a psychiatric injury.
Secondary victims: where a person was not at risk from any foreseeable physical injury, he/she will have a more difficult time recovering in UK courts.
Definition comes from Alcock v Chief Constable of South Yorkshire Police originally, but applied as the following in Page v Smith
The distinction has been adopted in English courts but not expressly in Irish courts.
What are some policy reasons UK courts have cited for limiting nervous shock claims?
Floodgates and fraudulent claims
Unfair to defendants – disproportionate liability
Increase evidentiary issues and lengthen litigation
Shock could encapsulate a very wide net of people affected – need to limit
8What are eight key themes from Lady Hale’s 16 practical propositions in determining liability for stress induced psych injuires from an employment context?
Foreseeability: The injury must be reasonably foreseeable, and this depends on the nature and extent of the work, the employee’s known vulnerabilities, and whether the employer could reasonably have been aware of any risk.
Individual Circumstances: Employers are not expected to foresee injury unless they know of specific signs indicating an employee is at risk.
Reasonableness of the Employer’s Response: Employers are judged based on what is reasonable under the circumstances. They are not obligated to completely eliminate workplace stress but must take reasonable steps to mitigate it.
Nature of Work and Resources: Certain roles are inherently stressful, and employers can expect employees to manage typical job pressures unless there are extraordinary factors or clear signs of harm.
Balance of Competing Interests: Employers must balance their obligations to the stressed employee with their duties to other employees and the operational needs of the business.
Employee Responsibility: Employees are expected to communicate their difficulties to their employers; liability is less likely if an employee does not seek help or disclose their condition.
Practical and Proportionate Steps: The employer’s actions are evaluated on whether they are practical and proportionate, considering available resources and the feasibility of adjustments.
Medical Evidence: A causal link between the employer’s breach of duty and the employee’s psychiatric injury must be established with clear medical evidence.
Irish case
Plaintiff was a fireman employed by defendant. He had been told he was promoted but then later found out this was incorrect. Claim dismissed because the plaintiff did not suffer from a recognizeable psych illness. This was just a normal vissicitude of life.
Larkin v Dublin City Council [2007]
Irish case
Asbestos case where negligence was not contested. As such, damages were awarded. Compare with Fletcher v Commissioner of Public Works [2003]
Swaine v Commissioner for Public Works
Irish Case
Unlike Swaine, liability was not conceded by the defendant. Fletcher was mostly concerned about the possibility he may one day develop mesothelioma. While initially awarded damages in High Court, this was reversed by Supreme Court. They relied on policy considerations to determine no compensation was owed.
**Notable because of public policy being explicitly stated by court. This statement was relied on in future similar cases.
Example of “fear of disease” case
Fletcher v Commissioner of Public Works [2003]
Irish case
The plaintiff’s husband and children were involved in a serious bus accident caused by the negligence of the defendant’s employee. Mother came to hospital in the aftermath of the accident - family suffered various tragedies. One son died. Plaintiff developed PTSD.
Using ordinary criteria of reasonable forseability, Court found it was reasonably foreseeable the mother would develop PTSD based on what she had been put through.
Judgement noted there was no rule in Irish law opposed to the finding of nervous shock. All the events which gave rise to the plaintiff’s disorder were caused by the defendant.
The defendant’s duty of care extends to injuries which are reasonably foreseeable, thus the defendant is liable for the reasonably foreseeable psychiatric illness caused by their negligence.
Mullally v Bus Eireann [1992]
Irish case
Family in car accident. Mother was brought to hospital and experienced nervous shock.
Supreme Court held that in order to recover damages for nervous shock a plaintiff must establish:—
(a) that he or she actually suffered a recognisable psychiatric illness;
(b) that such illness was shock-induced;
(c) that the nervous shock was caused by the defendant’s act or omission;
(d) that the nervous shock sustained was by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff;
(e) that the defendant owed him or her a duty of care not to cause him or her a reasonably foreseeable injury in the form of nervous shock as opposed to personal injury in general.
Kelly v Hennessy [1995]
Soccer disaster case.
Alcock control mechanisms:
Based on three issues:
- The class of persons whose claim should be recognized (defined by their relationship to the victim).
- The closeness of the claimant – both physically and temporarily – to the accident.
- The necessity of, and the means by which, the shock is caused.
Alcock v Chief Constable of South Yorkshire Police
Work-induced psych injury case in which Lady Hale’s 16 practical propositions were adopted into Irish case law.
McGrath v Trintech Technologies [2005]
Creation of ordinary fortitude test not found in Irish law
White and others v Chief Constable of West York
Case establishing Lady Hale’s 16 propositions for workplace stress negligence evaluation
Sutherland v Hatton
