Psychiatric Harm Flashcards
If psychiatric harm is suffered alongside a physical injury what guidance does the courts follow?
The caparo guidelines of reasonable foreseeability, proximity and whether it is fair just and reasonable are used to establish a duty of care( consequential psychiatric harm)
What is the difference between consequential psychiatric harm and pure psychiatric harm?
Consequential harm is mental harm caused as a consequence to a physical injury, eg suffering flashbacks after being involved and hurt in a car accident.
Pure psychiatric harm is when the victim experiences only mental illness. This may arise from witnessing a traumatic event or seeing a family member die.
To make a claim in negligence for pure psychiatric harm, what must the claimant show/prove?
The claimant must have a recognised psychiatric illness, such as depression or PTSD.
Grief, anxiety(mild) or distress cannot be recovered(Hicks v chief Constable of South Yorkshire police(1992)
Parents could not recover a claim for distress for what their two daughters felt before their deaths at the Hillsborough stadium.
A sudden shocking event rather than an ongoing mental health illness.
In Dulieu v White and sons[1901] the court accepted that a woman experienced a ‘nervous shock’ as a result of a horse and cart crashing into her window when she was washing glasses.
Distinction between sudden and continuous is the flood gate controls.
What are the tests used to establish a duty of care for pure psychiatric harm suffered for primary victims?
Primary victims- must be in the zone if physical danger.
If physical injury was reasonably foreseeable, then a claimant can also recover for any psychiatric harm suffered( which did not need to be reasonable foreseeable)
Page v Smith[1996] 1 AC 155
claimant involved in a car accident, although no physical injury occurred, a recurrence of his ME occurred. The courts defined his ME as a psychiatric illness rather than a medical condition which had become chronic and permanent and stopped him from working. He was awarded damages. This also works alongside the principle that a defendant must take the victim as they find him (egg shell rule)
The psychiatric harm has to be caused by an event not by a fear of what might occur.
Rothwell v chemical and insulating co ltd [2007]
Can’t recover for fear of future disease even though it was a manifested medically recognised condition (asbestos)
What tests are applied to determine if a duty of care arises for a secondary victim?
Secondary victims are witnesses to an incident without being in the zone of danger.
The tests are more restrictive
1-reasonable fortitude-the harm suffered was reasonably foreseeable in someone of ordinary fortitude.In Bourhill v Young [1943] AC 92, the woman who miscarried could not claim for psych harm as she was not of reasonable fortitude.
2-Alcock v cc of South Yorkshire police [1992] 1 AC 310
Alcock control mechanisms( Hillsborough test case for family/friends)
*relationship of love and affection(parents and spouses-others must be proved) Robinson v forth road bridge joint board [1995]-no relationship of love and affection between work colleagues despite close friendship outside of work.
*close proximity in time between the event and witnessing it( Mcloughin v O’Brien [1983]. Mother arrived 2 hours after family involved in Rta that killed one child. Saw husband and other children in an upsetting way. Psych harm claimed allowed.
BUT
in Alcock-brother in law that witnessed makeshift mortuary at Hillsborough was denied psych harm claim( 8 hours). There isn’t a time limit but will be assessed in an individual case.
*physical presence at the scene-‘ a sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind’ so viewing an event from television will have less impact than if they were physically there. Ward v Leeds teaching hospital nhs trust [2004], climb dismissed as the events that happened to her daughter although distressing were not a sudden shocking incident.
Which case established primary and secondary victims?
Page v Smith 1996
RTA -no physical harm but exacerbation of ME
HELD -If the defendant could reasonably foresee physical harm even if they were not hurt, the claimant could recover for psychiatric harm too.
What was Bourhill v Young 1943 about and what was its legal principle?
Suffered miscarriage after seeing aftermath of RTA, claim failed.
The court held that as she was pregnant she was not of ordinary fortitude which is a requirement to make a claim in psych injuries.
Who are classed as primary victims?
Those in the zone of danger (Page v Smith 1996)
In Alcock, it was stated that in extreme case a bystander may be able to recover for a truly shocking event without any immediate relationship or had suffered physical harm. However, this was denied in
Mc Farlane v E.E. Caledonia 1994
On rescue boat helping victims on nearby oil rig that was on fire. Claimant feared for his life as the rescue boat was very near to the fire.
Claim denied-no duty of care owed as it was not reasonably foreseeable to a man of ordinary fortitude.
(Policy consideration-why should he have a successful claim when family members were denied).
Unwilling participants
Dooley v Cammell Laird & Co Ltd 1951
Plaintiff was crane operator-sling snapped and load fell in area where workmen were.
His claim was as a primary victim (even though not in area of danger) as he was put in position of thinking he had involuntarily caused another’s death or injury.
What is the leading case that refers to rescuers?
White v Chief Constable of South Yorkshire Police 1999
Claim brought by the police officers present at Hillsborough, they could not be classed as either primary or secondary victims. They wanted to be treated as rescuers or employees. This was not permitted.
Hoffman felt it was wrong that police could recover for psych harm but families couldn’t ‘once the law has taken a wrong turning-incrementalism cannot provide the answer’
