Negligence and Psychiatric Harm

Question 1

what is the normative question?

Answer 1

should judges pursue corrective justice notwithstanding the fact that the upshot may be an uncertain body of law?

Question 2

what did the OG case Hinz say?

Answer 2

• only claim for recognised psych injury

- damages not awarded fro grief or sorrow from someone’s death

Question 3

what pro claimant development case where van drives into pub and causes woman to miscarry - claim succeeds as physical zone of risks must be reasonable fear to ones safety?

Answer 3

Duljeu v white

Question 4

who said that ever since Duljeu the problem has been defining the outer limit of liability?

Answer 4

Flemming

Question 5

case where truck injured child, and court said C can apprehend danger through her ‘own unaided senses’?

Answer 5

Hambrook

Question 6

what controversial case conflicted with Hambrook where a taxi slowing backing over child and mother hearing child’s screams wasn’t considered reasonable foreseeable harm?

Answer 6

King

Question 7

who criticized the King case saying a child being slowly run over being less likely to cause shock is unrealistic?

Answer 7

Linden

canadian tort law

Question 8

which case gives the immediate aftermath test of lord Wilberforce?

Answer 8

• McLoughlin

Question 9

what happened in the Mcloughlin case?

Answer 9

• c husband and kids in accident, one kid died and other badly injured
  C told 2 hours later
• first said insufficient proximity for the claim
• but house of lords approved claim

Question 10

what was Wilberforce’s immediate aftermath test?

Answer 10

• the closer the tie, the more powerful the claim for compensation will be (relationship);
  (ii) proximity in time and space (and the immediate aftermath doctrine);
  (iii) means of communication (apprehension (shock) through one’s own unaided senses).

Question 11

what did Flemming say about the immediate aftermath test?

Answer 11

• shows a new permissiveness in negligence law

Question 12

what assumption did Alcock case establish in relation to first part of Immediate aftermath test?

Answer 12

• spouses, parents, and children: close ties of love and affection presumed to exist. (but can be rebutted)
• In all other cases, C must prove that a special relationship of love and affection exists.

Question 13

what was the Hillsborough case that said identifying the body 8 hours later placed C outside the immediate aftermath (obiter)?

(protectionist, don’t want these claims coming to court)

Answer 13

Alcock

Question 14

what is the policy for television broadcast and psych harm?

Answer 14

• for Hillsborough not apprehension through unaided senses

- liability may arise is broadcaster breaches relevant guidelines and shows scenes of individual suffering

Question 15

which Australian case for television broadcasts asks ‘was there perception of the distressing phenomenon’?

Answer 15

Coffey

Question 16

what is the case for rescuers where c helped in aftermath of the train disaster and got compo - nothing should be done to discourage resuers

Answer 16

Chadwick

crash in 1957

Question 17

What happened in the ‘breaking new ground case’ of Attia v British Gas?

Answer 17

• C house burn down due to negligence if def’s workmen
• got compo
• parties in commercial relation so high proximity existed

Question 18

Case for eggshell skull principle and what happened?

Answer 18

Mount Isa Mines

• C saw colleague in flames
• shock to normal person foreseeable
• C reaction very severe
• principle applied

Question 19

who described Mcloughlin case as reflecting judicial conservatism and caution?

Answer 19

Robertson 1994

Question 20

what happened in Page (start of primary/ secondary victim distinction)?

Answer 20

• in accident with no physical injury
• falls victim to ME that was in remission before accident (eggshell skull applicable)
• COA reject as mental harm not reason foreseeable
• HOL approve claim saying he was primary victim so mental harm need not be reasonably foreseeable
• foreseeable physical injury enough to ground claim

Question 21

what did Page case say about secondary victims?

Answer 21

• suffers psych injury after witnessing or being informed of accident
• control devices from Alcock and Mcloughlin to limit claims)

Question 22

what was the Hillsborough case where officers claim as secondary victims was rejected as they were not close enough to def and rescuers could only be prim victims?

Answer 22

White

Question 23

who spoke of distributive justice in the Hillsborough case of White saying if the claimants in Alcock weren’t successful the officers should bear the same burden?

Answer 23

John Rawls

Question 24

what did Lord Hoffman say about distributive justice in White?

Answer 24

• idea that cases should be treated alike

- no imbalance in accepting weaker claims when stronger ones have been rejected (Alcock and White)

Question 25

Why did Lord Goff dissent in White?

Answer 25

• ruling turns reasonable foreseeability of physical harm into a ‘necessary condition’ of liability
• wrong to say they weren’t rescuers as psychical danger never a requirement in Chadwick

Question 26

which case supports Goff’s dissent about rescuers in the White case and what happened?

Answer 26

• Wagner (1921)
• suffer psych injury from searching for cousins body with large risk of physical harm
• Goff say its narrowing what is acceptable

Question 27

what are the competing policy claims in White?

Answer 27

• Steyn say need to avoid imbalance and flood of claims

- Goff say should support searchers and rescuers

Question 28

what did Lord Steyn say about developing law beyond White?

Answer 28

• has to be left to parliament

- reached the end of the line with case law

Question 29

what is another case of arbitrary line drawing like White where there was an explosion in mine due to negligence and C thought he was the cause so developed depression - deemed not to be primary victim as no real physical risk?

Answer 29

Hunter v British Coal

Question 30

which case said categorization of primary and secondary victims is not closed?

Answer 30

W v Essex

Question 31

who said in a 2001 lecture that these crude distinctions of physical risk and immediacy are likely to dominate tort?

Answer 31

Lord Steyn

Question 32

What did Steele say about occupational stress claims?

Answer 32

• would be primary victims even without physical danger

- should be treated as distinct type of claim

Question 33

which Australian case went against drawing arbitrary lines in shock cases and what happened?

Answer 33

Annetts

• young farmer boy go missing
• parents suffer psych injury after agonising process of being phoned and later shows pic of skeleton
• court said neither sudden shock or direct perception required

Question 34

what happened in the Pleural Plaques case of Johnston?

Answer 34

• thickening of lungs give risk to stress and anxiety
• wouldn’t use Page to help C as would be extension of law
• Lord Hope used white case to say they won’t develop the law any further here

Question 35

how was Page distinguished from Johnson?

significant of word ‘event’

Answer 35

• Page to do with event (like collision) that can could physical or psych injury
• PP case different as did not arise from event that already happened, its just fear it may occur

Question 36

what happened in the expansive secondary victim case of Crystal Taylor at trial judge?

Answer 36

• woman in accident at work, unexpectedly die 3 weeks later, daughter see death and suffer PTSD
• def appeal treating accident as significant event so no proximity
• trial said sig event was sudden death of mother so no gap between relevant event and harm suffered

Question 37

what did COA say about Crystal Taylor case?

Answer 37

• to allow recovery as secondary victim would allows liability arose months or years after def’s wrongdoing
• courts should not make any substantial developments, leave to parl