Nervous Shock & Psychiatric Damage Flashcards
Psychiatric harm is defined
medically not legally
Recognised psychiatric illness
Hinz v Berry
Positive psychiatric illness
McLoughlin v O’Brian
- Claimant saw her husband and and children in the hospital after an accident
Psychiatric illness
Attia v British Gas
- gas engineer started a fire in a customers house
It must be a medical condition; grief and sorrow is not enough
Alcock v CC S. Yorkshire
- Hillsborough disaster
Depression qualifes
Hinz v Berry
- berry killed hinz in a car crash and Mrs Hinz died of depression
Recurrent mental illness brought on by shock qualifies
Page v Smith
- a car crash triggered the claimants mental illness
Anxiety, bereavement, grief and fright are the ‘normal vicissitudes of life’ and does not qualify
Reilly v Merseyside HA
- Mr and Mrs Reilly were trapped in a hospital lift for over an hour
If the grief is pathological it may qualify
Vernon v Bosley
- dangerous driving had caused the death of the claimant’s daughter
A physical injury or illness brought on by shock qualifies
Bourhill v Young
- witnessed the aftermath of a motorcycle crash and subsequently lost her babay
Any psychiatric illness must be brought on by a sudden shock.
Sion v Hampstead HA
- as a result of hospital staff negligence she watched her son deteriorate and die over 2 weeks
Primary victims
Those worries for themselves: if you were exposed to physical danger or believe you were then you were a primary victim
White v S. Yorkshire - train crash victims (primary)
Monk v Harrington - rescuers (not primary)
Courts will take the ‘eggshell personality’ rule into account for primary victims
Page v Smith
foster parents who fostered a sex offender could be primary victims as they had felt responsibility
W v Essex CC
The victim asleep at home when a car chased into his house was a primary victim
Bourmediene v Delta Display Ltd
Secondary Victims
Those worried for somone else
A secondary victim claim will only be allowed if psychiatric harm is foreseeable
Hambrook v Stokes
- a runaway lorry caused a mother to fear for the safety of her children and subsequently died of shock
Test for whether a secondary victim may recover
Would a person of ‘normal fortitude’ have suffered psychiatric harm (Brice v Brown)
- claimant had a history of mental instability
Alcock test
- was there a close tie of love and affection between the SV and the PV?
- was the SV sufficiently close and proximate in time and place to the incident?
- did the SV directly perceive the incident?
A close tie of love an affection will be presumed between a husband and wife or parent and child
McFalane v Caledonia Ltd
- not found in this case
Witnessing the immediate aftermath of a disaster was sufficiently proximate in time and space
McLoughlin v O’Brian
Not in Taylor v A Novo
Shock must come through sight or hearing of the incident or it’s immediate aftermath
Hambrook v Stokes Bros
Seeing a TV broadcast was insufficient to meet the ‘directly perceived’ test.
Alcock.
Lord Stein in White:
If psychiatric harm were to be placed on the same level as physical injury
- Cause an unconscious disincentive to recover.
- Increase the number of individuals who could claim for damages
- Potential disproportionate burden of defendants
1998 English Law Commission Report Draft Negligence (Psychiatric Illness Bill)
- sudden shock requirements be removed
- 2nd and 3rd Alcock test be removed
- criteria of love and effective be expanded e.g. siblings.
Teff
Divide between ‘primary’ and ‘secondary’ harm is difficult.
- need a more flexible and generous approach
- centred on foreseeability rather than shock and proximity
- Current categories are artificial and deny remedies to those that need it
- floodgates argument is exaggerated.
Stapleton
Current rules are ‘silly’
- artificial limits of liability: relationship, space, time
- a reasonable boundary on claims is unattainable and therefore claims for psychiatric harm should be abolished altogether.
- floodgates argument is exaggerated.
