Handling Hard Cases and Psychiatric Injury

Question 1

How to approach Delict cases?

Answer 1

Duty of Care
Breach of Duty 
Factual Causation 
Legal Causation 
Remoteness 
Defences

Question 2

Duty of Care in hard cases

Answer 2

Donoghue v Stevenson, neighbourhood principle
Anns v Merton London Borough Council - Two stage test - Reasonable foreseeability and policy considerations
Capoaro Industries Ltd v Dickman - Fair, Just and Reasonable

Question 3

Psychiatric Injury

Answer 3

Physical injury to person including brain, but psychiatric injury to person not personality is hard to distinguish.
Simpson v Imperial Chemical Industries Ltd - Fire caused people to be a ‘wee bit shaky’ but stated that nervous shock must be described as part of an illness or relate to an illness
Rorrison v West Lothian College - There needs to be a label put onto the illness they suffer from
Fear, anxiety and distress aren’t a mental illness, they may not lead to a mental illness.

Question 4

1) Where physical injury to the pursuer’s person or damage to his or her property was actually sustained

Answer 4

Can recover for patrimonial losses, and solatuim. If there are physical damages as well as psychiatric damages then tend to focus on physical, known as piggy back damages. Donoghue v Stevenson, Attia v British Gas plc (House burn down, some psych issues)

Question 5

2) Where physical injury to the pursuer was reasonably foreseeable but purely psychiatric injury was sustained.

Answer 5

Page v Smith - Causes car accident, no physical injury but causes dormant ME to reanimate. Couldn’t foresee, but still held liable. Lords came up with 3 conditions:

1) Assumption some kind of psychiatric injury
2) Assumption all kinds of personal injury are the same
3) Assumption to take victim as they find them

Many want to overrule this decision, Rothwell v Chemical and Insulating Co Ltd - Could part with decision but not this time Mance. Hoffman on the other hand says it should only be used in similar cases yet this is a minor car accident

Simmons v British Steel plc - Liable for personal injury that is foreseeable whether it is physical or psychiatric which is suffered due to wrongdoing.

Question 6

3) Where direct psychiatric injury to the person of the pursuer was both reasonably foreseeable and actually sustained, and (i) the pursuer was known to be peculiarly susceptible to psychiatric injury

Answer 6

Walker v Northumberland County Council - Suffered breakdown due to workload, recovered went back and suffered another due to same workload. Liable for second
Hatton v Sutherland - It is about what the employer knows about the employee, should be able to with stand normal pressures of job, unless particularly susceptible to them.

Question 7

3(ii) Pursuer not known to be particularlysusceptible to psychiatric injury

Answer 7

Dulieu v White & Sons - Van through bar, reasonable she would suffer injury
Rothwell v Chemical and Insulating Co plc - Anxiety about plural plaques but not deemed an illness, must get a specialist to say it is.

Question 8

4)Where indirect psychiatric injury to the person of the pursuer was both foreseeable and sustained

Answer 8

Hillsborough disaster should have foreseen psychiatric injury to people. Primary and Secondary victims - Hard to define primary, but no need unless secondary which are individuals who are affected by the harm suffered by the primary victim.
Bourhill v Young - Fisherlady not reasonable
McLoughlin v O’Brian - Family accident, wife saw immediately after classed as secondary
Alcock v Chief Constable of South Yorkshire Police- Must be close ties, sudden shock, presence at scene

Exceptions for secondary victims - Rescuers recover without filling Alcock test - Chadwick v British Railways Board
Bystander treated different dependant on case - Dooley v Camel Laird & Co Ltd - Load fell on someone blamed self, but employer fault
Salter v UB Frozen and Chilled Foods Ltd - Low beam hit, blamed self reasonable