psychiatric injury Flashcards
What is psychiatric damage?
- Recognised psychiatric illness
- Verified on basis of medical evidence
- Long-term psychiatric consequences e.g. PTSD
- Claimants must show using medical evidence that they have a recognised psychiatric injury
excludes: Grief / sorrow
Emotional distress
Ordinary shock / distress
why do Courts tend to limit liability when someone has suffered psychiatric harm?
- Difficulty of diagnosis
- Fraudulent claims
- Fear of ‘floodgates’
what is a primary victim?
Someone who is injured or fears he will be injured and suffers psychiatric harm as a result.
what are the types of primary victim?
- ‘Those involved directly in an accident’: Claim for PI even if escaped and feared his own safety
Even if PI is not foreseeable – some sort of harm is foreseeable - ‘Rescuers’: involved in accident but attends scene as rescuer. Must be engaged in rescue activity & fear for own safety during the activity
case examples for those directly invovled? (primary)
- Page v Smith: road traffic accident C. escaped physical injury but the accident re-triggered his ME (chronic fatigue) The eggshell skull rule – we take the victim as we find them
- Donachie case: police officer who was required to attach a tracking device to a car. the device was defective and he had to make nine trips to the car the risk grew each time.
case examples for rescuers? (primary)
- White case: C. police officers at the Hillsborough disaster. HOL said someone who is not involved, but attends the scene as a rescuer can qualify as a primary victim if they suffer psychiatric damage.
They must be engaged in rescue activities AND fear for their own safety. C. never feared for their own safety as they were not in any danger. - Chadwick case: attended the scene of a fatal train crash. he suffered acute anxiety neurosis and received treatment as an inpatient for 6 months. C. was engaged in rescue and feared safety.
What is a secondary victim?
Someone who is not in personal physical danger but witnessed an event or aftermath
what rules do secondary victims have to satisfy?
a) Alcock’s rules
b) The injury is caused by sudden shock
c) Reasonable fortitude
d) A primary victim owes no duty to a secondary victim
what are the 3 Alcock rules? (secondary)
- C must have a close tie of love and affection
- C must be close to the accident in time and space
- accident must be perceived by the C with his own senses.
what is Alcocks 1st rule? (secondary)
The claimant must have a close tie of love and affection with the person killed, or injured or in danger.
In Alcock itself grandparents, siblings, uncles and close friends all failed in their claims.
what is Alcocks 2nd rule? (secondary)
The claimant must be proximate in time and space
excluded both a claimant who had been in a different part of the stadium at the time, and a claimant who was sitting in a coach outside the ground
what case did the relax Alcocks rules to allow a claim at witnessing the aftermath?
McLoughlin v O’Brian: suffered psychiatric damage as a result of what she had seen and heard + witnessed the immediate aftermath
what is Alcocks 3rd rule? (secondary)
The accident must be perceived by the claimant’s own senses
why do claimants injury have to be caused by sudden shock? (secondary)
Sion case: the claimant suffered psychiatric damage after watching his son die over a period of days after a road accident but not sudden
why do claimant have to be of reasonable fortitude? (secondary)
has to be reasonably foreseeable and that a person of reasonable fortitude/strength would also have sustained the injury. i.e. a person with a reasonable mental and emotional strength in facing adversity or danger.
