negligence and psychiatric harm

Question 1

recognised psych injury

Answer 1

C can only claim for rec psych injury - Hinz V Berry
input of medical professional - in DSM- 5 or ICD- 10
includes PTSD now - not fixed for all time develops over the year

Question 2

coultas case

Answer 2

gatekeeper negligently invited the plaintiff to cross a railway line as a train approached. There was no collision but brushed past claimant and mental distress - arg as result of gatekeeper and sought damages for mental shock

The plaintiff argued that, as a result of the gatekeeper’s carelessness, she had been placed in a situation of ‘imminent peril’
Privy Council - claimants could not recover for psychiatric injury since the relevant harm was too remote.

fear ppl may try their luck and bring untrue claims if accepted this case - policy concern

Question 3

Dulieu v white

Answer 3

1st case psych harm compensated but caution

van hurtled into pub where c working - c suffered miscarriage resulting from fear of personal injury to herself - claim for psych injury succeeded

control device: C must be in zone of physical risk (where reasonable fear or apprehension of danger to one’s own physical safety can arise) . - must be within this zone to be accepted

Question 4

Hambrook V Stokes

Answer 4

truck driver parked on hill with no handbrake, a runaway truck injured C’s child; C did not see the accident itself, got there moments later and suffered mental shock

CoA - analogous to white since C suffered safety of her child - similar as you can fear safety of own physical safety and child - incremental development

Control devices - C apprehended danger through OWN UNAIDED SENSES - eyes and ears

Question 5

Bourhill V young

Answer 5

C (a pregnant fishwife) riding on bus, stepping down and motorcycle goes by, moments later in collision and dies, C doesn’t see this happen but walks down and sees blood

had no relationship with the motorcyclist who was killed; C did not witness the accident. C ‘got in a pack of nerves’.

The claim failed. - C should exhibit ordinary fortitude - reasonable lvl of emotional hardiness

Question 6

King V phillips

Answer 6

taxi driver slowly backed taxi over Cs child who was on tricycle, C in home at some distance but saw taxi reversing and feared for child - suffers psych harm
mother hears her child’s screams and sees tricycle under D’s car.

shock unforeseeable and no duty owed to mother - claim failed

Question 7

Mcloughlin case

Answer 7

C’s husband and three children were involved in a road accident that occurred due to D’s carelessness.
One child was killed; C’s husband and the two surviving children were very badly injured.
C told about the accident two hours after it occurred. C was taken to the hospital where she learned of the fatality and saw the survivors.

Not in zone pf psych danger or seen through own physical senses - arrives in the IMMEDIATE AFTERMATH of accident - can you get compensation for this? - yes

THIS CRITERIA FOR PROBLEM Q:
3 considerations: lord wilberforce
rec psych illness
(i) 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 8

Hillsborough disaster

Answer 8

Alcock case
90 ppl died over 700 injures as supporters of liverpool FC were carelessly allowed into the left lane entrance of the hillsborough ground in sheffield - crushed to death but no claims proved successful

spouses, parents, and children: close ties of love and affection presumed to exist.
In all other cases, C must prove that a special relationship of love and affection exists.

Immediate aftermath: identifying body in mortuary eight hours after the disaster placed C outside the immediate aftermath (per Lord Jauncey (obiter)). - knew going to morgue so not enough sufficient

Question 9

Relationship and duty of care arising

Answer 9

duty of care arises when close ties of love and affection
parents, spouses and children - rebuttable presumption you have ties of love and affection

siblings - need to prove on facts you have a relationship of love and affection
partners - how long have they been partners for? etc - rely on facts too

Question 10

Television broadcasts

Answer 10

BBC allowed to pan across but cant zoom in on individuals being crushed
not the same thing as apprehension through one’s own, unaided senses.

Liability may arise if a broadcaster breaches relevant guidelines and shows scenes of individual suffering.

Question 11

rescuers

Answer 11

Chadwick v British Railways Board: C helped out in the aftermath of the Lewisham train disaster (1957).
C suffered psychiatric injury.
C recovered compensation.

policy - nothing should be done to discourage rescuers from acting in an emergency (Markesinis and Deakin)

Question 12

damage to property

Answer 12

Attia v British Gas: C’s house burned down due to negligence on part of D’s workmen.
D tried to have the claim struck out.
D’s argument was rejected.
C recovered compensation for psychiatric injury.
The parties were in a commercial relationship. Hence, a high level of proximity existed between C and D.

Question 13

Psychiatric Harm and the Eggshell Skull Principle

Answer 13

Mount Isa Mines v Pusey (Australian High Court): the plaintiff sees a colleague in flames (due to D’s negligence).
Shock (to a person of normal fortitude) was reasonably foreseeable.
The plaintiff’s reaction is exceptionally severe (acute schizophrenia).
Eggshell skull principle applied.

Question 14

page v smith

Answer 14

car accident of modest severity; C was not physically harmed. - foreseeable accident
After the accident, C fell victim to m.e. (myalgic encephalomyelitis/chronic fatigue syndrome) – a condition that had affected him for twenty years. (Psychiatric Injury)
At the time of the accident, C’s m.e. was in remission.
House of Lords: C’s claim succeeds. (The Court of Appeal had rejected the claim on the ground that mental harm was not reasonably foreseeable.)
Prior to this CoA rejected and said psych harm was not reasonably foreseeable

C = primary victim - ‘one directly involved in an accident’ so mental injury would not be reasonably foreseeable
eggshell skull principle applicable here

Question 15

secondary victim

Answer 15

suffers psych inury as a con of witnessing or being informed ab an accident involving another - McLoughlin

control devices are employed to limit circ (close rel, proximity and unaided senses)

Question 16

White case

Answer 16

by police officers who suffered psych injury when working aftermath of Hillsborough
couldnt recover as secondary victims - not suitably close to those crushed to death

C arg they were primary victims - directly involved
their working relationship with D supported primary victim classification and they were rescuers

a rescuer claimant can only be primary victim where he objectively exposed himself to physical danger or reasonably believed he was doing so - did not satisfy this

decision in favour of police would be unacceptable - Alcock claimants couldnt recover compensation - concern of distributive justice and imbalance

reasonable foreseeability of psych harm is nec condition - must now estab you are objectively in danger or you reasonably believe you are objectively in danger

Question 17

Hunter v British Coal

Answer 17

Accident in coal mine. D was careless (failure to maintain prescribed minimum vehicle clearances at the accident site).
C struck hydrant in confined space. Hydrant burst while C was searching for stop- valve.
C (now 30 meters from accident scene) hears that colleague may be dead.
C thought he was responsible.
C developed clinical depression.

C not primary victim - not in area of real physical risk

Question 18

categorising primary and secondary victims

Answer 18

judges have the task of redefining

jenny steele - occupational stress - employees who suffer occupational stress will be categorised as primary victims - even in absence of physical danger

Question 19

Annetts

Answer 19

Australian case
young jackaroo goes missing in the outback.
D had assured parents that he would be kept reasonably safe. (Assumption of responsibility.) -
The jackaroo’s body was found months after his disappearance.
His parents suffer psychiatric illness after agonisingly protracted process.
When boy went missing, they were ‘phoned; later shown picture of his skeleton. - insensitive

No sudden shock suffered by plaintiffs.
No direct perception of a distressing event by the plaintiffs.
Neither sudden shock nor direct perception needed to establish liability.

determined to avoid arbitrariness

Question 20

Negligence, Psychiatric Injury, and Family Relationships

Answer 20

Greatorex v Greatorex: driver injured in accident (due to his own negligence [self-inflicted injury]).
Driver’s father (a fire officer) attends the accident and suffers psychiatric injury.
Could father (C) claim for post-traumatic stress disorder?

no - this imposition of duty would restrict D’s right to self determination

Question 21

Jonston V NEI international

Answer 21

asymptomatic pleural plaques (fibrous thickening)
May give rise to, inter alia, anxiety or clinical depression.
applied page v smith but failed

diff = in page there was a foreseeable event
here it is the apprehension that the event may occur

Question 22

Paul v Royal Wolverhampton NHS Trust

Answer 22

While shopping with his two daughters. Paul collapsed and died of a heart attack.
14 months earlier, D (doctor) had seen Paul (who was complaining of pain in his jaw and chest) and failed to diagnose heart problems (which later proved to be fatal).
The claimants sued for psychiatric harm.

Sc - rejected appeals - general rule law doesnt grant remedies to C for effects of the death or injury of another perosn

exceptions:
fatal accidents acts 1976 - can claim for loss of support or bereavement - recover damages from the person who if death had not happened would have been liable to the deceased

claimant has witnessed the wrongful death or injury to someone they love

Doctors’ duty of care is to protect the health of their patients, not to protect their family members from the risk of injury.

A sudden shock to the nervous system is not required for a secondary victim claim.
The event witnessed by the claimant does not need to be horrifying by objective standards.

secondary victim claim requires an “accident” or “external event” to be successful. The court defined an accident as an unexpected and unintended event that causes injury or a risk of injury.