psychiatric injury Flashcards
Hinz v Berry outcome
C can only claim for recognised psychiatric injury, damages not awarded for sorrow caused by a person’s death.
what did C argue and what did Privy council argue in Victorian Railway v Coultas
- plaintiff sought damages for mental injuries from shock
- Privy Council stated that claimants could not recover for psychiatric injury since the relevant harm was too remote. Harm of this sort was not sufficiently proximate to carelessness, to justify a successful claim.
what was the policy concern in Victorian Railway v Coultas
‘a wide field of imaginary claims’.
what did Victoria railways say about remoteness
‘Damages arising from mere sudden terror, unaccompanied by any actual physical injury, but occasioning a nervous or mental shock, cannot under such circumstances … be considered a consequence which would flow from negligence’
what was held in Huston v Borough of Fremansburg
-if we start to accept new claims it could open floodgates and a negative blame culture
Dulieu v White outcome (2)
- novel claim
- Claim for psychiatric injury succeeds
what was the control device founded in Dulieu v White
C must be in the zone of physical risk (where reasonable fear or apprehension of danger to one’s own physical safety can arise)
what did Fleming hold in Dulieu v White (2)
‘the problem has been to define the outer limit of liability’ (uncertainty theme)
-Judges expand the law in an effort to do justice, putting in place more and more doctrinal developments that generate new uncertainties
what was the new control device founded in Hambrook v Stokes (2)
C apprehended the danger through her ‘own unaided senses’
-For a successful claim in psychiatric harm, you must suffer shock through your own unaided senses.
Bourhill v Young
what 2 things did the courts argue for
- claim failed but C was not in the ‘zone of physical risk’
- courts argued for a test of reasonable foreseeability
- argued for area- specific duty of care doctrine which Dulieu and Hambrook agreed
King v Phillips outcome (2)
- while reasonable foreseeability of shock was, according to Denning LJ, the relevant test, harm to C was not reasonably foreseeable
- distinguished from Hambrook (taxi and lorry speeds are different)
what did Linden argue in response to the outcome in King v Phillips
-that ‘to say that slowly running over a child is less likely to cause shock to the mother than doing so quickly is unrealistic’
what was there a lack of McLoughlin v O’Brian, compared to Hambrook and King
a lack of proximity as C heard about incident 2 afters occurrence- but claim was still successful
McLoughlin v O’Brian
what are Lord Wilberforce’s 3 considerations
(i) the closer the tie, the more powerful the claim for compensation will be (relationship);
(ii) proximity in time and space (and the immediate aftermath doctrine);
(iii) means of communication (apprehension (shock) through one’s own unaided senses).
McLoughlin v O’Brian]
what category did the C fall under
the ‘immediate aftermath’ and so could recover compensation
how did Fleming describe the ‘immediate aftermath’ principle as seen in McLoughlin v O’Brian
as showing a ‘new permissiveness’ in negligence law- the law was extended here
Alcock v Chief Constable of South Yorkshire
what does Steele say
Steele: we see the HoL pursuing a protectionist agenda- determined not to extend the law, so claim failed in Alcoc
what was held in Alcock v Chief Constable of South Yorkshire (about relationships)
- spouses, parents, and children: close ties of love and affection presumed to exist.
- in other cases C must prove a special relationship of love and affection existed
Alcock
when may liability arise from television broadcasts
-Liability may arise if a broadcaster breaches relevant guidelines and shows scenes of individual suffering
what was held in Jaensch in response to Alcock about seeing something distressing on TV
That whether you see something distressing in person or on TV, you should still be able to bring a claim
Chadwick v British Railways Board- concerned a what
a rescuer
Chadwick v British Railways Board outcome
- C suffered psychiatric injury as a result of helping in the aftermath of a train disaster
- received compensation
what was the policy argument in Chadwick v British Railways Board
accommodating [rescuers’] claims, on the ground that nothing should be done to discourage rescuers from acting in an emergency’
Attia v British Gas outcome (3)
- C’s house burnt down due to carelessness of D’s workmen
- C recovered compensation for psychiatric injury
- parties were in a commercial relationship. Hence, a high level of proximity existed between C and D
Mount Isa Mines outcome
egg shell skull principle applied
how has Robertson described this development of the law
he described the development as reflecting judicial ‘conservatism and caution’
Page v Smith
what type of victim was the C as described by the courts and why (2)
a ‘primary victim’- one directly involved in an accident
-because he was a primary victim, mental injury need not be reasonably foreseeable
Page v Smith outcome (3)
- suffered a psychiatric injury after a car accident
- Reasonably foreseeable physical injury would provide C with a sufficient basis on which to ground his claim
- egg shell skull principle applicable for psychiatric harm
what is a secondary victim
someone who suffers psychiatric injury as a consequence of witnessing or being informed about an accident that involves another (e.g., Mrs McLoughlin)
how are the claims by secondary victims limited
A range of control devices are employed to limit the circumstances in which claims by secondary victims can be successfully advanced (see Mcloughlin and Alcock on close relationships, proximity (temporal and spatial), apprehension through one’s own, unaided senses)
why could C’s not recover as secondary victims in White v Chief Constable of South Yorkshire Police
-Cs could not recover as secondary victims. They were not in suitably close relationships with those who were crushed to death in the stadium
what 3 arguments did the C’s put forward in White v Chief Constable of South Yorkshire Police
- C’s argued that they were primary victims. (Direct involvement)
- C’s argued that their working relationship with D supported a primary victim classification.
- and that they were rescuers
what 3 arguments did the C’s put forward in White v Chief Constable of South Yorkshire Police
- C’s argued that they were primary victims. (Direct involvement)
- C’s argued that their working relationship with D supported a primary victim classification.
- and that they were rescuersand that this supported a primary victim classification
- court could not decide in favour of police officers
what did Lord Steyn hold in White v CC about when a rescuer-C can be a primary victim
where: ‘… he objectively exposed himself to [physical] danger or reasonably believed he was doing so’
in White v CC why did the courts not decide in favour of the police officers (4)
- because we would be expanding the law
- it is a matter of the legislature to expand the law, not the judiciary (separation of powers
- A decision in favour of the police officers would bring an unacceptably wide liability rule into existence, opening floodgates
- imbalance argument: if the police officers recovered compensation, while the more deserving claimants in Alcock were left uncompensated, the result would be ‘imbalance’- concerns corrective justice
what was the argument in White about distribute justice (look at Alcock case)
(3)
- because of the inability of C’s to sue in Alcock successfully, the C’s in White should bare the same burden
- distributive justice: like cases should be treated alike
- Weaker claims should not be accepted while stronger ones are rejected (imbalance). The Alcock claim was a stronger claim, it would not be acceptable to respond positively to a weaker claim
What did Lord Goff argue about in Chadwick v BRB and Page v Smith
Page v Smith:
-reasonably foreseeable physical harm was ‘a sufficient condition of liability’ (for primary victims).
Chadwick:
-neither objective exposure to physical danger nor reasonable fear of physical danger were identified as requirements of liability
Wagner v International Railway Co outcome and Lord Goff’s opinion
- plaintiff suffered psychiatric injury having searched (at some risk of physical harm to himself) for his cousin’s body
- Lord Goff interprets Cardozo J’s judgment as supporting claims by searchers (as well as rescuers)
what 2 things does Lord Steyn emphasise in White
(i) the need to avoid imbalance
(ii) and the danger of a flood of claims
what does Lord Goff emphasise in Chadwick and Wagner
emphasises the judiciary’s long-standing readiness to accept claims by
rescuers
White
‘Thus far and no further’- explain
The judiciary have went as far as they could. To go further would be controversial and generate uncertainty- we should leave future development to Parliament
White
arbitrary line drawing- explain (3)
Is it arbitrary to draw a distinction between primary and secondary victims?
Why do we draw a distinction between apprehension to one own’s unaided senses and seeing something terrible on TV?
The pursuit of justice seems to have generated uncertainty
what does Lord Steyn say in White about negligence law being an imperfect system of justice (3)
imbalance argument
- police officers met a lot of requirements (reasonable foreseeability)
- but their claim was rejected as it wasn’t strong as other’s arguments
- The imbalance argument places a limit on the range of claims judges can accept. [Distributive justice trumps (or stymies the pursuit of) corrective justice.]
Hunter v British Coal outcome
- C was not a primary victim. He was not ‘in the area of real physical risk’
- claim rejected. Another case where worries around arbitrary line drawing are relevant
2 cases where worries of arbitrary line drawings were present
- White
- Hunter v British Coal
W v Essex CC
what did Lord Steyn say about the categorisation of primary and secondary victims
the categorisation of those claiming to be … primary or secondary victims is not … finally closed’
what did Lord Steyn say in his lecture about primary and secondary victims
that immediacy and physical contact will dominate English law- for someone to be a primary victim
what does Steele say on occupational stress
- employees
- absence of physical danger
- primary beneficiary to avoid psychiatric injury
- Employees who suffer occupational stress will be categorised as primary victims
- even in the absence of physical danger
- ‘The claimant … could be described as the primary beneficiary of the distinct duty to avoid psychiatric injury
what case is an occupational stress case
Walker
Annetts v Australian Stations Pty Ltd (2 reasons for why there was liability)
- parents suff shock but there isn’t immediacy (no sudden shock)
- no direct perception of a distressing event by the plaintiffs (King, Hambrook)
- but there was still liability
Annetts v Australian Stations Pty Ltd outcome (2)
there was still liability despite no sudden shock or no direct perception of a distressing event
-court wanted to avoid arbitrariness
Greatorex v Greatorex (3)
- farther suffered psychiatric injury due to a collision his son suffered (through his own fault)
- court said he can’t claim and we’re unwilling to apply negligence law in the familial context
- Also, imposition of duty would unduly restrict D’s right to self-determination
Johnston v NEI international
- what was the claim about
- Page v Smith
- White
- whether a disease which could give rise to a mental health condition, could be litigated
- court said no- to apply Page v Smith would be an ‘unwarranted extension’ in the law
- Applying White: ‘thus far and no further’- the courts aren’t going to develop English law further
how was Johnston v NEI distinguished from Page v Smith
Page: confined to cases where there was ‘a foreseeable event (a collision) which might cause physical injury or psychiatric injury or both
Johnston: the pleural plaques case was different since the psychiatric injury did not arise from an ‘event’ that had already happened. The event- the onset of a disease.
-It was caused by the apprehension that the event may occur
Crystal Taylor v A Novo
- did the claim succeed?
- policy
- claim rejected: there are strong policy reasons why the claim was rejected as if the D owed a duty of care, she could bring a claim years later even
- There are strong policy reasons for restricting liability towards secondary victims, liability should not be extended except by parliament
Crystal Taylor v A Novo
distinction between primary and secondary victims
To allow T to recover as a secondary victim would be to establish a liability rule that could (subject to the requirement of causation) be invoked by claimants months or possibly years after a defendant’s original
wrongdoing.
-the distinction between primary and secondary victims is well established and the courts don’t need to make any substantial developments, as this should be left to Parliament
