Negligence: Psychiatric Illness Flashcards
How have the courts been able to draw a distinction in cases of Psychiatric Illness
drawn a distinction between claims in respect of medically recognised Psychiatric Illness and claims for mere grief sorrow and distress
Where does the problem arise in successfully establishing negligence in such cases
often breach and causation are not disputed. The issue is whether there is a duty and whether the injury is too remote?
What was said in White V Chief Constable of South Yorkshire: Lord Steyn about policy considerations
Policy considerations have undoubtedly played a role in shaping the law governing recovery for pure psychiatric harm”
What is the balance that needs to be created
A balance between fairness to the injured party and the defendant needs to be established.
What is the floodgates argument
raises concerns about: proliferation of many claims from a single event (Alcock); proliferations of many claims from a mass or single events; diverting societal resources; unfairness to D; impact on insurance and wider social utility; imposing a burden disproportionate to the negligent conduct.
What is crushing liability
psychiatric illness can lead to the inability to work and extensive care may be needs. The damages may be large, and perhaps disproportionate to the actual breach. Therefore, it would not be fair to impose liability.
What has helped with fears of fraudulent claims
Concerns that psychiatric claims are ‘invisible’ injuries and are easier to take.
ICD-10 and DSM-V classification system, with recognised psychological tests have helped distinguish between genuine and false claims.
Issue with interface of rehabilitation
Could the process interference adversely with the process of rehabilitation?
White V Chief Constable of South Yorkshire Police there is three categories of claimant
- Claimants who suffer psychiatric illness as a result of having been physically injured by the defendant’s negligence;
- Claimants who are put in physical danger, but in fact suffer only psychiatric illness (primary victims)
- Claimants who, though are not in any physical danger themselves, suffer psychiatric illness as a result of witnessing the death, injury or imperilment of another person (immediate victim) with who they have a close tie of love affection with. (secondary victims)
In which cases do no restrictions apply you simply apply smith
A claimant may suffer: a physical injury only (no psychiatric injury); a physical injury and psychiatric injury (e.g. severe injury plus PTS) and a physical injury leading to psychiatric injury (e.g. injury that develops into a chronic pain condition, or a loss of a limb causes depression.
What is the position taken in pure psychiatric injury cases
may only claim where the injury amounts to a recognised psychiatric injury. “A person is not liable, in negligence, for being a cause of distress, alarm, fear, anxiety, annoyance, or despondency, without any resulting recognised psychiatric illness” Tame V NSW
What does Recognised psychiatric injury includes
Traumatic stress disorder, personality change, hysterical personality disorder, reactive depression. Pathological grief reaction, anxiety neurosis, chronic fatigue syndrome.
What is not recognised as psychiatric injury
anxiety, fright/fear, grief, insomnia, sorrow, unpleasant emotions, claustrophobia (although this has appeared to be controversial)
Which case shows that the old law was slow to to recognise claims for psychiatric injury
Victorina Railway Commissioners V Coultas (D negligently opened a level crossing gate when it was unsafe to do so, the car crossed. Although no physical injury actually occurred, C, feared for her life and suffered severe shock) It was held that there was no liability for psychiatric injury in the absence of physical injury. There was no foreseeability that this would have caused psychiatric injury, only the foreseeability of physical injury
After Victorian Railways where was a more liberal approach taken
Delieu V White & Sons (C, a pregnant barmaid, was behind the bar when a negligently driven carriage crashed through the pub. She suffered shock and as a result suffered a miscarriage.) It was held that an action could lie in negligence for nervous shock arising from a reasonable fear for one’s own immediate safety. The courts sought to control the scope of liability through the use of the impact theory. According to this theory the plantiff would be able to recover for psychiatric injury provided it was caused by reasonable fear of being physically injured by D’s negligence.
Which case shows how the law developed to cover claimants who had not been in danger, but suffered psychiatric injury as a result of witnessing a loved one being injuried or placed in peril by D’s negligence.
Hambrook V Stokes (Pregnant mother accompanied her three children to school, and left them to walk a short distance by themselves as usual along a bend in the road. The children were out of sight, when an out-of-control lorry came down the hill at speed and around the bend her children had just walked around. The mother was afraid they would have been killed by the lorry, and suffered shock which lead to a miscarriage with medical complications, causing her death.) It was held that this was a claim which was recoverable. It is foreseeable that people could suffer if they are in perceptual distance from such negligence. However, it was made clear in the ratio that this only applied to situations where P suffered psychiatric illness because of the fear of the safety of her own children.
Which case was it not foreseeable that she would suffer
• Bourill V Young (A pregnant woman while descending from a tram, heard a road accident occur some distance away. She later attended the scene of the accident and saw the blood on the road, and subsequently had a miscarriage due to the shock) was the next case which came to the HoL after 20 years. It was held that she was not a foreseeable claimant.
Where does the modern case law stem from
case McLoughlin V O’Brien (C’s husband and her three children were involved in a serious road accident. She did not witness the accident. After an hour after the accident, she was informed that her son was dying. She went straight to the hospital where she was told her 3-year-old daughter had died. She could hear her son screaming when she arrived, and saw her husband and other child in a distressed state, still covered in blood, oil and mud. She suffered from psychiatric illness). It was held that the law extended to cover situations where the P had not seen or heard the actual event, but had come upon its immediate aftermath.
In McLoughlin V O’Brian three factors would need to be considered in each case;
- The class of person whose claims should be recognised,
- The proximity of such persons to the accident; and
- The means by which the psychiatric illness was caused.
What are the two types of case that will arise
• There are two types of cases: 1) Where the claimant was endangered (Dulieu V White) 2) Where a third party was endangered (Bourhill V Young)
What are PV
• PV are those ‘directly involved in the accident… and well within the range of foreseeable physical injury’ Page V Smith per Lord Lloyd. Therefore, provided that physical harm is reasonably foreseeable, there is no need to show that psychiatric harm was also reasonably foreseeable.
Facts of Page V Smith
(C was involved in a minor car accident, but was not physically injured. Prior to the crash he had suffered from ME (chronic fatigue). The illness had been in remission at the time of the accident, but the accident triggered a recurrence of the disease, which became chronic and permanent.) The CoA held that the D driver was not liable, because it could not be reasonably foreseen that that his negligence would have caused psychiatric injury. HoL overturned and held that reasonable foreseeability of psychiatric injury need not be established when physical injury was foreseeable. The reasoning being that when there is danger of physical injury, the law should regard psychiatric injury as the same kind of harm. Applied the eggshell rule.
