Elements And Cases For Test Required To Estbalish Duty Of Care When Losses Arise From The Psychiatric Illness Of Secondary Victims Flashcards
Explain the principle of duty of care for secondary victims
The law of negligence recognises that individuals who are not directly involved in an event may suffer harm as a result of the emotional distress caused by witnessing it. These individuals are known as secondary victims, and to establish a duty of care in cases where losses arise from psychiatric illness, the courts have developed specific tests.
Explain the first element in establishing a duty of care for secondary victims
Proximity is the first element in establishing duty of care for secondary victims. The proximity test requires the court to consider whether there is a close relationship between the defendant and the plaintiff and whether it is foreseeable that the plaintiff may suffer psychiatric harm as a result from the defendants actions.
Explain the leading case for the element of proximity for establishing duty of care for secondary victims.
Alcock v chief constable of South Yorkshire police, where it was held that a duty of care could exist where there is a close relationship of love and affection between the plaintiff and the primary victim, and where the plaintiff witnessed the event with their own unaided senses.
Explain the secondary element for establishing duty of care for a secondary victim
Foreseeability, which requires the court to consider whether the defendant should have reasonably foreseen that their actions would cause psychiatric harm to the plaintiff. In determining foreseeability the court will consider the defendants knowledge of the plaintiffs vulnerability and any other relevant circumstances.
Explain the leading case for foreseeability of duty of care of a secondary victim
Page v Smith, where it was held that a duty of acre could exist where the defendant knew or ought to have known their actions would cause psychiatric harm to the plaintiff.
Explain the third element of duty of care when the losses arise from secondary victims
Control mechanisms, requires the court to consider whether there are any control mechanisms that limit the defendants liability. Control mechanisms may include the existence of emergency services, or other trained professionals who can assist the plaintiff, or the existence of legal or other remedies that can address the harm caused.
What is the leading case for mechanism for duty of care for secondary victims
White v chief constable of South Yorkshire police, where it was held that a duty of care could exist where there were no control mechanisms in place to limit the defendants liability
Conclusion for the frameworks for the duty of acre for secondary victims
Overall, these tests provide a framework for establishing a duty of care in cases where the losses arise from the psychiatric illness of secondary victims. The courts will consider all three elements, including proximity, foreseeability of harm, and control mechanisms, to determine whether a duty of care exists in the circumstances of each case.
