Psychiatric harm Flashcards
Is psychiatric harm a tort?
no, it is a type loss in a negligence claim
its finding may affect the way in which courts deal with DoC
What is psychiatric harm?
What are the 2 either/or requirements for a loss to be categorised as psychiatric harm’?
a form of psychiatric illness that the claimant has suffered as a result of the perception of traumatic events.
The psychiatric harm must be either:
(a) a medically recognised psychiatric illness; such as clinical depression, or PTSD (post-traumatic stress disorder).
(b) a shock-induced physical condition (such as a heart attack).
note: Liability will not arise for fear, distress or mental grief caused by negligence, as these are not medically recognized forms of psychiatric illnesses. Hinz v Berry [1970]
What are the 3 types of possible victims in a case of psychiatric harm?
- Actual victim
- Primary victim
- Secondary victim
Who is considered an ‘actual victim’ in a claim for psychiatric harm?
How is DoC established for this person?
Person who suffered PHYSICAL harm and possibly also psychiatric harm.
-> establishing if a DoC was owed:
1. Precedent
2. Caparo test
Who is considered a ‘primary victim’?
How is DoC established for this person?
Someone who doesn’t suffer physical harm but YES PSYCHIATRIC harm as a result of reasonable fear for their own physical safety.
This is an objective test.
They are in the danger zone.
-> Is a DoC owed?
- psychiatric harm is medically recognised/ shock-induced physical condition
- Harm was reasonably foreseeable?
Thin-skull rule -> If physical injury is reasonably foreseeable, the defendant is liable for the full extent of the psychiatric harm, even if the claimant has suffered to a greater extent as a result of a pre-existing condition. - Normal principles for determining DoC:
a. precedent?
b. Caparo test -> proximity & fair, just and reasonable
Who is considered a ‘secondary victim’?
How is DoC established for this person?
Someone who does not suffer psychical harm, but who suffers PSYCHIATRIC harm due to the fear for someone else’s safety. They’re not in the danger zone.
-> Is a DoC owed? (Alock test)
- Was psychiatric harm (not just physical) reasonably foreseeable in a person of ordinary fortitude in the same circumstances?
In Bourhill v Young [1943] it was held that a shock-induced still-birth caused by the sight of blood from an accident, was not foreseeable in a person of ordinary fortitude. Thus, no duty of care was owed.
The ‘thin skull’ rule -> If psychiatric harm is foreseeable, the claimant can recover damages for all psychiatric harm they suffer, even if they have suffered to a greater extent than could have been foreseen because of a predisposition to mental illness (Brice v Brown [1984]).
- Is there a proximity of relationship between the claimant and the victim?
Requirement for there to be close ties of love and affection with the actual victim.
- Is there proximity in time and space?
Secondary victim must be present at the scene of the accident or its immediate aftermath.
Alcock made it clear that there would be no duty owed to a secondary victim who is merely told about a shocking event (including via a newspaper or television). The shock must be caused by the claimant seeing or hearing the event or its immediate aftermath.
- Was the psychiatric harm shock-induced?
Must be reaction to the immediate and horrifying impact’ of the event and ‘a sudden assault on the nervous system’ (Alcock), rather than a gradual realisation of what has happened.
- Additional considerations
Is it fair, just an reasonable?
Floodgates?
Is there a DoC where D has ‘assumed responsibility’ to ensure C avoids reasonably foreseeable psychiatric harm?
Yes -> D owes a DoC to C
Can an employer be liable for work-related stress?
Yes as in Walker v Northumberland County Council [1995]
An employer owes their employees a duty of care in respect of psychiatric harm caused by stress at work. There was no breach in relation to the first nervous breakdown as this was unforeseeable. However, there was a breach in relation to the second given this was reasonably foreseeable as the claimant’s workload was not reduced. As there was a sizeable risk that the claimant would suffer a second nervous breakdown and the likely gravity of that illness, the defendant should have taken measures to ensure the workload was permanently reduced.
What are the main elements which, if shown, could mean that an employer would be in breach in occupational stress claims?
(from Barber v Somerset County Council [2004] )
(1) Psychiatric harm to the claimant was (or ought to have been) reasonably foreseeable to the employer;
(2) Foreseeability depends upon the relationship between the characteristics of the claimant and the requirements made of them by the employer, including:
(a) The nature and extent of the work being undertaken. Was the workload much more than normal for that job, was the work particularly emotionally or intellectually demanding etc;
(b) Signs of stress. Indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise they should do something; and
(c) The size and scope of the business and availability of resources. This includes the interests of other employees and the need to treat them fairly. What steps could and should the employer have taken.
-> Once this ‘threshold’ is crossed, it is immaterial whether a person of ordinary fortitude would have suffered the harm.
Is pure economic loss a tort?
No, it is a type of loss in a negligence claim
What is pure economic loss?
financial loss that doesn’t flow from damage to the claimant’s property or injury to their person.
What are the 3 main categories of pure economic loss?
(illustrated by Spartan Steel & Alloys Ltd v Martin)
(1) Economic loss not flowing from damages to person or property A bad investment, missed contractual opportunity, loss of inheritance.
(2) Loss arising from damage to property of another Weller & Co v Foot & Mouth Disease Research Institute [1965]
(3) Defective items A defective product was always defective. Your property hasn’t been damaged, but it’s not worth what you thought it was, this is pure economic loss. The cost of replacing or repairing that product is also purely economic. Murphy v Brentwood District Council [1990]
Is there a general DoC with regards to pure economic loss?
No
What are 3 common law exceptions to the general rule that there is no DoC owed in relation to pure economic loss?
- Wills Solicitors drafting wills owe the beneficiaries of the will a duty of care. Where a will is negligently drafted leading to a loss of an inheritance, the solicitor will be in breach of his duty of care to the will’s beneficiary. White v Jones [1995]
- Work References The person writing the reference owes the subject of that reference, a duty of care to provide an accurate reference. (Spring v Guardian Assurance plc & Others [1995]. In addition to the duty of care owed to the person requesting the reference (Hedley Byrne)
- Pure Economic Loss caused by negligent misstatements:
Where the pure economic loss was caused by a negligent statement (also known as a negligent misstatement), the courts might find a duty of care was owed.
NOTE: Where the misstatements cause physical harm, then the usual duty of care rules apply to the question of duty (Perrett v Collins [1998]).
Where there is no precedent on pure economic law exceptions, what test will the court use to see if an exception ought to be made to the default position?
- Reasonable reliance test
(C relied on D’s advice and; it was reasonable for them to do so and; D knew or ought to have knows that C was relying on this advice) - Voluntary assumption of responsibility by D making his statement
- Is there a special relationship of trust and confidence between the parties?
