Negligence II

Question 1

What are the requirements for psychiatric harm?

Answer 1

McLoughlin v O’Brian
1. A close familial relationship between the claimant & victim
2. There must be close proximity to the accident in both time and place
3. Shock suffered must come through sight or hearing of the event or its immediate aftermath

Question 2

How have the rules on psychiatric injury been developed?

Answer 2

Alcock v Chief Constable of South Yorkshire (Hillsborough)
1. Psychiatric illnesses caused not by shock, such as by the experience of losing a loved one, attracts no damages
2. Damages for psychiatric shock from merely being informed of, or reading, or hearing about the accident are not recoverable
3. Mere mental suffering, although reasonably foreseeable, if unaccompanied by psychiatric injury, is not recoverable
4. There is yet no authority that a negligent person or his estate is liable for psychiatric shock sustained as a result of self-inflicted injury or death by the negligent person
5. “Shock,” involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. Psychiatric illness caused gradually is not recoverable

Question 3

What else was said in the case of Alcock v Chief Constable of South Yorkshire?

Answer 3

-A loving relationship is presumed with husband/wife and parent/child, other situations burden of proof is on the C
-Watching the accident on TV was not sufficient for the third element (potentially could in different situations)

Question 4

What is the difference between primary and secondary victims?

Answer 4

Page v Smith
-Primary victims are those involved in the accident
Secondary victims are those not directly involved but who suffer as a result of what they see or hear

Question 5

What does the case of White v Chief Constable of South Yorkshire tell us?

Answer 5

Having a status as a rescuer does not give an exception to the limitations in Alcock

Question 6

What was said about psychiatric injury in the case of Attia v British Gas?

Answer 6

If psychiatric harm is suffered as a result of physical damage to property then this is recoverable

Question 7

What two cases confirm the liability of public authorities such as the police?

Answer 7

Michael v Chief Constable of South Wales, police do not owe a general duty of care to the public at large
Robinson v Chief Constable of West Yorkshire, the ordinary principles of negligence apply to the police, no special immunity

Question 8

What case shows an exception to the general rule that emergency services do not owe a general duty of care?

Answer 8

Kent v Griffiths, where assurance is given to a caller that help is on the way they have a specific duty to that person

Question 9

What is the general rule on omissions in negligence?

Answer 9

Usually no liability for omissions, there is no general duty of care to guard against harmful conduct of third parties (Smith v Littlewoods)

Question 10

What are the exceptions for when a private party can be held liable for an omission as laid down in Smith v Littlewoods

Answer 10

1. Where the relationship between C & D creates an assumption of responsibility
2. There is a relationship of control between the D and third party who causes the damage
3. D creates or permits a source of danger to be created which is interfered with by third parties
4. D fails to remove a source of danger which he is aware of (does not have to create the danger)

Question 11

What is the liability of public authorities for omissions?

Answer 11

Gorringe v Calderdale MBC
A private law duty in tort cannot be inferred from the mere existence of statutory power or duty, must be shown there is a Parliamentary intention to create a duty. In the absence of a right to sue for breach of the statutory duty, it would be absurd to hold that D was under a common law duty

Question 12

What defences can apply to a case in negligence?

Answer 12

Contributory negligence (Jones v Livox Quarries)
Volenti non fit injuria

Question 13

Can a duty of care be owed for a negligent misstatement?

Answer 13

Hedley Byrne v Heller
In general an innocent but negligent misrepresentation gives no cause of action. However an exception applies when expressly or by implication:
1. The party seeking information or advice was reasonably trusting the other to exercise a degree of care
2. The other ought to have known they were relying on it
3. An answer was given without qualification

This is for economic loss suffered

Question 14

What case shows a failure to warn about a medical risk?

Answer 14

Chester v Afshar
Eventhough there was no causation anyway as C still would have had the surgery if they knew, the claimant should have been warned of the risk