Negligence Duty of Care Psychiatric Damage Flashcards
What is Psychiatric Damage
A recognised illness of the mind ie PTSD, Depression
What are the issues in pure Psychiatric claims
1) fraudulent claims
2) Wheather PD is indipendantly recoverable irrespective of if physical harm was also a risk
3) opening the floodgates (ie major disaster Hillsborough)
What about frudulent claims?
Can only claim if have been diagnosed with a recogined illness of the mind by a competant doctor
Is PD is indipendantly recoverable irrespective of if physical harm was also a risk
Not a simple Yes no awnser courts have developed the following catagories
1) Actual victim
2) primary Victim
3) secondary victim
What is an Actual Victim
An actual victim is one who has a PD alsongside a physical injury damage for PD is recoverable
What is a Prmiary Victim
A Primary Victim is one that was at risk of physical injury”in the danager zone” but did not receive on but has developed a PD as a result of the incident subject to other issues regarding foreseeablity etc damages are recoverable
What is a Secondary Victim
A secondary Victim is one who witnessed a traumatic event but without having been in actual damage “ not in the danger zone” generally damages are not recoverable as a duty of care is not normally establish unless a set criteria is meet
Can damages be recovered for pd for anxierty that a symptomless physical condition may develop in the future
No
Does witnessing an event happening to others grant right of compensation for PD
No cetain conditions must be met first
1) Illness arose as a result of witnessing an incident involving a primary victim to whom there was a tie of close love an affection
2) The promimity in time and space between the accident and the claimant witnessing it or its immediate aftermath
3) has to result from witnessing with their own unaided senses
What is deemed a close tie of love an affection
Spouse/Children /mother/ father ie close relations can be extended to work collegues
What is deemed as proxdimity in time and space
Time witnessed first hand or the imediate aftermath - can extend quite some time
Space - Frozen in time failure to beielive until seen with own eyes
Whats is demed as own unaided senses
Seen for themselves not through being told by someone else or witnessing it in newspaper/TV
What is an Involentery Participant
Someone who beleive that they are involenery responsible for the death or Injury of a workmate
What is Foreseeabily of Harm for secondaty Victims
Seeks to exclude those who are abnormally sensitive with a caviat that if a person a reasonable fortitued would have suffered such an illness that a sensitive person may recover damages
Can damages be recovered if the incident happneds over time
No Event must be a shocking event rather then a gradual realisation
Can damages be recovered when the defendant casued their own injuries
No if the defendant has acted negligently then irrespective of close ties of love an affection damages can not be awarded
CASE LAW - Was the claimant in Physical danger Yes (Pimary victim) - damages recoverable
Dulieu V White 1901 - Horese & cart driven into a bar Dulieu(pregnant) gave birth premiturely
&
Donachie V Cheif Constable of Greater Manchester Poilce 2004 Police officer tryimg to attach a faulty device to a suspects car the suspect was known to be violent
CASE LAW - Was the claimant in Physical danger Yes (Pimary victim) - - Rescuers - damages recoverable
Chadwick V British Transport Police 1967
CASE LAW - Was the claimant in Physical danger no (Secondary victim) - Witnessed the event /Aftermath first hand - damages recoverable
Hinz V Berry 1970 Wife saw the immediate aftermath of a crash involving husband and children who were all injured
&
Hambrook V Stokes 1925 - Witness lorry running out of control to where she throught her children were
McLoughlin V O’Brien 1983 - Told about incident some hours after the event but saw injuries first hand
CASE LAW - Was the claimant in Physical danger no (Secondary victim) - Bystanders - No damages recoverable
Bourhill V Young 1943 heard crash saw blood some time later no tie of affection
& Mcfarlane V EE Caledonia 1994 Witnessed the Piper Alpha disaster but never in actual danager
CASE LAW - Was the claimant in Physical danger no (Secondary victim - Rescuers - No Damages
White V Cheif Constable South Yorkshire Police ( LEADING CASE for Resuers)
Mcfarlane V EE Caledonia 1994
CASE LAW - Was the claimant in Physical danger no (Secondary victim )- Close tie of love an affection yes did not witness event with unadied senses saw on TV - No Damages
Alcock V Cheif constable of South Yorkshire Police 1991 (LEADING CASE ON SECONDARY VICTIMS SET THE TESTS)
CASE LAW -Involentery Participant - Was the claimant in Physical danger no (Secondary victim ) Witnessed Event first hand- Damages recovered
Dooley V Cammell Larid 1951 - rope broke and he witnessed the death of work collegue
CASE LAW -Involentery Participant - Was the claimant in Physical danger no (Secondary victim ) did not witnessed event first hand-
No Damages recovered
Hunter V British Coal 1998 - Thought hed caused the accident - did not witness the event no recovery for survuviours guilt
