Duty of Care - Psychiatric Injury Flashcards
Briefly explain liability for psychiatric injury
C can claim for a recognised psychiatric illness stemming from physical injury or reasonable fear of danger to physical safety caused by D
Hicks v Chief Constable South Yorkshire Police
Grief, anxiety and distress do not suffice
NB: anxiety neurosis is a recognised illness, anxiety is not
Alcock v CC for the South Yorkshire Police
- Judge made the distinction between primary and secondary victims in the Hillsborough disaster cases
- Secondary victims claims failed because there was a lack of proximity between them and the event
(controversial, someone could see there brother from the other side of the pitch. This was done for policy reasons i.e. payouts and not wanting to hold the police liable where it can be avoided)
-Alcock mechanisms
What is a primary victim?
Someone who is immediately involved
Page v Smith restricted this to those within a range of foreseeable danger
Page v Smith
C was in a minor car accident but suffered no physical harm, however it triggered his ME.
HL held that if C was in the zone of physical danger and it is reasonably foreseeable that D’s negligence may cause physical harm to C, they can also recover for psychiatric illness.
NB: no physical harm needs to actually be caused, just that it is a possibility.
Rothwell v Chemical and Insulating Ltd
D’s negligently exposed C to asbestos, resulting in plaques which could progress into something more serious. C became so distressed he developed depression. His claim failed because it was not ‘foreseeable’
Judge stated this type of liability should be restricted to accidents
What is a secondary victim?
A secondary witness suffers psychiatric harm as a result of witnessing someone else being harmed
This is limited by a number of policy driven control mechanisms
Bourhill v Young
Restricts secondary witnesses claims, it introduced the test that ‘the psychiatric harm suffered must be reasonably foreseeable in a person of ordinary fortitude’
C was pregnant, she heard a motorbike accident and saw blood on the pavement. Her baby was stillborn. Claim failed because she was more susceptible to shock as she was pregnant,
Therefore, if C suffers shock when an ordinary person would not, D will not be liable even if there is severe phycological harm.
What applies once foreseeability has been established?
The thin skull rule applies
What are the Alcock mechanisms?
Factors considered when determining if a secondary victim should receive compensation
- C’s relationship with victim
- Physical and temporal proximity
- The means by which the shock was caused
What is meant by ‘relationship with immediate victim?’
- There must be a close tie of love and affection between C and V e.g. parents, children
- D can rebut this
What does Stapleton say about ‘relationship with immediate victim’?
this requirement is grotesque, requiring relatives to scrabble for evidence that they had a special love for someone close who is injured/deceased.
Problems with relationship with immediate victim
it is difficult to prove if you are not immediate family
Robertson v Forth Road Bridge Joint Board
C suffered psychiatric injury after his work colleague died at work. The court held there was no close relationship despite evidence that they spent time outside work together and had worked together for years
Exception to relationship with immediate victim
In Robertson the judge said that C could claim if there was no special relationship if the event was particularly horrific, such as a petrol tanker crashing into a school
What is meant by physical and temporal proximity?
C must have proximity to the event, not the consequences
Taylor v A Novo
Evidences that C must have proximity to the event not the consequences
C’s mum was injured at work and died weeks later. C developed PTSD watching her mum die. Court held need to be at the event
McLoughlin v O’Brian
Proximity satisfied when C arrived two hours after accident
Berisha v Stone Superstore Ltd
Proximity wasn’t satisfied when C arrived 5 hours after accident
Galli-Atkinson v Seghal
Proximity satisfied when C arrived several hours after accident - this was described as very generous
What is meant by ‘the means by which the shock is caused’?
- Psychiatric harm must be caused by shock which is ‘sudden appreciation by sight or sound of a horrifying event which violently agitates the mind’ (Lord Ackner)
Sion v Hampstead Heath Authority
Exhibits that there must be a ‘sudden shock’
a father was unable to recover for psychiatric harm as a result of watching his son die over 14 days because it wasn’t a ‘sudden appreciation’
Wild case
Mother was able to claim for psychiatric illness following the birth of her stillborn child through medical negligence
(Compare to Walters where the father claimed and it was unsuccessful, illustrates a gender bias)
Can rescuers claim for psychiatric harm?
Yes, however the approach in Chadwick that sympathised with rescuers was overturned in White. It was held that rescuers must apply via the primary or secondary route:
Lord Steyn ‘a rescuer can only be considered a primary victim if he objectively exposed himself to danger or reasonably believed he was doing so’
Analysis points:
- Lead to arbitrary results, why could a home owner recover for PI when he witness fire damage to his home but not a sibling who saw his brother crushed to death (Alcock)
- Bourhill v Young suggests the false assumption that there is an expected response to tragedy
Lord Steyn’s justifications for a narrow approach to PI
- Difficult to draw a distinction between grief and psychiatric illness. There are doubt regards causation
-Floodgates argument, burdening the court system,
-Legitimacy of some claims, I the threshold is lower it is easier to be fraudulent
‘compensation culture’,
