Psych Harm

Question 1

Law Comm 1998 Proposals?

Answer 1

• Parli remove distinction and add duty to protect from psych harm into general negligence.
• Articulate fixed set of relationships where claims allowed.

Question 2

Page v Smith?

Answer 2

First laid distinction between PVs/SVs.

PVs – ask ‘is risk of personal injury reasonably foreseeable?’

Question 3

Rothwell v Chemical & Insulating Co?

Answer 3

HofL -> Page won’t cause practical difficulties if confined to situation where foreseeable event might cause physical and/or psych injury.

Question 4

W v Essex CC?

Answer 4

Cs foster parents whose bio kids abused by foster teen -> suffered depression and PTSD after learning of abuse.

HofL – Cs could claim as PV or SV and categories of victims aren’t closed.

Question 5

McLoughlin v O’Brian?

Answer 5

First successful claim for psych injury in HofL.

Focus on foreseeability and proximity – recognised need to limit extent of admissible claims.

Lord Wilberforce set three elements for SV to satisfy -> SV must have closest of family ties to PV one.

Question 6

Alcock v CC of South Yorks Police?

Answer 6

Cs were relatives of victims from Hillsborough disaster.
Via various mediums, they were witnesses to the disaster.

HofL further restricted ability for SVs to claim.

Lord Oliver – two types of victims:
Primary – involved mediately or immediately as a participant.
Secondary – a passive and unwilling witness of injury caused to others.

Lord Keith:
Liability for psych injury depends on a reasonable foreseeability + relationship of requisite proximity.
Requisite relationship = close tie of love and affection between C and PV.
Presumed in parent/child, spouses, engaged persons – less immediate must be proven.

Question 7

Lord Oliver, Alcock, said what about rescuers?

Answer 7

They’re in PV category

Question 8

White v CC of South Yorks Police?

Answer 8

HofL - rescuers can only recover if exposed to personal danger/reasonably believed themselves to be in danger (Chadwick) or satisfy criteria of SV

Question 9

Justification behind rescuers in White?

Answer 9

More deserving family members failed to recover in Alcock

Question 10

What did Lord Steyn say in White?

Answer 10

Potentially disrespectful if bereaved relatives denied compensation whereas curious spectators who barely participated in rescue could recover.

Question 11

What did Lord Hoffmann say in White?

Answer 11

Public would think law unfair if police but not family could recover – concerned with distributional justice.

Question 12

What did Lord Goff say in White?

Answer 12

Public would understand diff standards bc injury more immediate.

Question 13

What did Lord Griffiths say in White?

Answer 13

Artificial/unnecessary control -> what rescuer ever thinks of his own safety?

Question 14

What did Lord Griffiths, White say about expectations of people?

Answer 14

Customary phlegm

Question 15

McFarlane v EE Caledonia?

Answer 15

CofA rejected C’s claim due to history of minor psych illness

Question 16

Smith v Leech Brain?

Answer 16

Pre-existing frailty of C no defence in physical injury cases.

Question 17

Page v Smith re thin skull rule?

Answer 17

D must take his victim as he finds him.
No defence D doesn’t have knowledge of C’s existing condition.

Question 18

Reason for harsh rules according to Steyn, White?

Answer 18

Floodgates - relaxing rules may increase no. of claims
Noted increase in prev decade - esp involving workplace stress, armed services etc.

Question 19

Who said law on when psych harm can be compensated is patchwork of distinctions difficult to justify?

Answer 19

Steyn, White

Question 20

Steyn’s suggestions on reform to psych harm law in White?

Answer 20

Prohibit recovery for pure psych harm.
But contrary to precedent and v controversial.

Abolish all special rules applicable to psych harm.
But precedent rules out this option, and significant policy considerations against it.

But only for Parli to undertake radical reform.