Negligence II: Psychiatric Harm, Omissions & Defences Flashcards
What are the requirements for psychiatric harm?
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
How have the rules on psychiatric injury been developed?
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
What else was said in the case of Alcock v Chief Constable of South Yorkshire?
-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)
What is the difference between primary and secondary victims?
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
What does the case of White v Chief Constable of South Yorkshire tell us?
Having a status as a rescuer does not give an exception to the limitations in Alcock
What was said about psychiatric injury in the case of Attia v British Gas?
If psychiatric harm is suffered as a result of physical damage to property then this is recoverable
How has the case of Paul developed the law on pyschiatric injury?
Paul v Royal Wolverhampton NHS Trust
* No longer a requirement of sudden shock, no medical basis for such idea
* No requirement of witnessing a ‘horrifying event’ as there is no available scale of horror
* Requirements not satisfied in this case because there was no accident or immediate aftermath, which is external, there was only the materialisation of a medical condition
What is the liability of public authorities for omissions?
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
What is the general rule on omissions in negligence?
Usually no liability for omissions, there is no general duty of care to guard against harmful conduct of third parties (Smith v Littlewoods)
When will a private party be liable for an omission?
Smith v Littlewoods gives 4 cases in which a private party will be liable for a failure to act / actions of a third party:
1. Relationship between the parties creates an assumption of responsibility on behalf of D for the safety of C
2. Relationship of control between D and a third party that causes the damage (e.g. Dorset Yacht case)
3. D creates or permits a source of danger to be created, which is interfered with by third parties and this was foreseeable
4. D fails to remove a source of danger which he is aware of
What two cases confirm the liability of public authorities such as the police?
Michael v Chief Constable of South Wales, police do not owe a general duty of care to the public at large nor do they owe a duty of care towards victims of crime
Robinson v Chief Constable of West Yorkshire, the ordinary principles of negligence apply to the police, no special immunity
What case shows an exception to the general rule that emergency services do not owe a general duty of care?
Kent v Griffiths, where assurance is given to a caller that help is on the way they have a specific duty to that person
How has the recent case law developed the principles for a duty of care in relation to omissions?
Tindall v Chief Constable of Thames Valley Police
* No duty on the police to warn of a risk as it was not reasonably foreseeable that if they did not warn they would be making things worse. No reason to know that a driver had been warning people prior
* There was no special case here to make the position better as they had not assumed responsibility, the police had no special status and they had not taken control
* No general duty of care to confer benefits on people. If this is not a case of worsening does a special condition apply? Is there an assumption of responsibility
HXA v Surrey County Council
* Social workers had not assumed responsibility for children, the case was analgous to the Poole decision
* However there can be some cases in which a local authority will assume responsibility, e.g. where care order is obtained and authority assumes parental responsibility or their safety has been entrusted to them
* Reliance is not always needed, e.g. where there is a child with learning difficulties it would be wrong to require reliance
Can a duty of care be owed for a negligent misstatement?
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
What case shows a failure to warn about a medical risk?
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
What defences can apply to a case in negligence?
- Contributory negligence (Jones v Livox Quarries)
- Volenti non fit injuria
How will contributory negligence be determined?
- Law Reform (Contributory Negligence) Act 1945
- Jones v Livox Quarries: A person is guilty of contributory negligence if he ought to have reasonably foreseen that if he did not act as a reasonable prudent man, he might be hurt himself. Must not only be a circumstance of the accident but a cause of it
- Reeves v Commissioner of Metropolitan Police: Duty of care can still arise where a person injures themselves deliberately if they are unaware of the risk, too young or not of sound mind
- Froom v Butcher: In seatbelt cases, if damages would have been the same there is no reduction. If damages would have been prevented altogether, 25% reduction. Where injuries would have been less severe, 15% reduction
How might a person exclude their liability for injury?
Unfair Contract Terms Act 1977:
* S1 sets out definitions
* S2(1) A person cannot by contract term or notice exclude or restrict liability for death or personal injury from negligence
* S2(2) In other loss or damage, this is only allowed where it is reasonable
* S2(3) Person’s agreement or awareness is not to be taken as a voluntary acceptance of any risk
(BUSINESS TO BUSINESS)
Consumer Rights Act 2015
* S61-71 sets out requirements for unfair terms
* S65: Trader cannot by term or notice exclude liability for death or personal injury from negligence. Person is not taken as having voluntarily accepted risk (this applies to negligence and the OLA 57 duty)
* S73: does not apply to term or notice that reflects mandatory statutory or regulatory provisions
* S75: Makes schedule 4 effective
(BUSINESS TO CONSUMER)
S149(3) Road Traffic Act 1988
How does the defence of volenti non fit injuria operate?
- ICI v Shatwell: Where employees deliberately disobey an order though they known the risk involved, volenti will be a complete defence where the employee is only vicariously liable
- Nettleship v Weston: Knowledge of the risk is not enough, nothing will suffice short of an agreement to waive any claim for negligence
What is the defence of illegality?
- Gray v Thames Trains: You cannot recover for losses from criminal sanctions imposed as a result or your own illegal act, not can you recover for damage which is the consequence of your own criminal act
- Patel v Mirza: The rationale of the defence is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (Policy approach, a person should not profit from his wrongdoing)
How does the defence of illegality operate?
Patel v Mirza, there are three considerations to make
1. Purpose of the prohibition transgressed and whether this would be enhanced by denying the claim
2. Any other public policy that denying the claim may affect
3. Whether denying the claim would be proportionate to the illegality, noting it is not for the civil courts to punish individuals
Made clear in Henderson v Dorset Healthcare that the old principle in Gray can still apply alongside Patel
