Psychiatric injury Flashcards
1
Q
Primary victim test (4)
A
- Page v Smith
o C in car accident – not physically harmed
o After accident C fell victim to ME – condition had affected him for twenty years but was in remission – started again after accident
o C’s claim for psychiatric injury succeeds
o Primary victim – one directly involved in an accident
o If a primary victim, metal injury need not be reasonably foreseeable - Dulieu v White
o Van hurtled into pub where C was working – C suffered miscarriage from fear
o Claim for psychiatric injury succeeds
o Control device – C must be in zone of physical risk (where reasonable fear of apprehension of danger to one’s own physical safety can arise)
o Judges exercise caution – balance principle (urge to do corrective justice) with policy (cautious about flood of claims) - White v Chief Constable of South Yorkshire Police
o Police officers who suffered psychiatric injury due to working in aftermath of Hillsborough disaster
o Claimants could not recover as secondary victims as not close enough relationship to victims
o Tried to argue were primary victims as employment relationship meant had direct involvement and as rescuers they were directly involved
o As a rescuer claimant, to be primary victim, must objectively expose yourself to physical danger and reasonably believe you are at risk – police officers could not satisfy this
o Deciding in favour of police officers would be extending the law – policy arguments:
1. Further expansion should be for Parliament not judges – separation of powers to democratic branch
2. Decision in favour of police officers would make law too broad – floodgate of claims
3. Claimants in Alcock who had close relationship with victims were refused compensation so to compensate police officers would be an imbalance – distributive justice (defensible accommodation of interests) - Hunter v British Coal
o Accident in coal mine. D careless (failure to maintain prescribed minimum vehicle clearances at accident site
o C struck hydrant in confined space – hydrant burst
o C (30 metres from accident scene) hears colleague may be dead – thought he was responsible – developed clinical depression
o C was not primary victim as not in area of real physical risk – 30 metres away was too far to be in zone of physical risk
1
Q
Must be recognised psychiatric injury (1)
A
- Hinz v Berry
o C can only claim for recognised psychiatric injury
o Damages not awarded for grief or sorrow caused by person’s death
o Includes PTSD
o Acute mental distress would not be recognised
2
Q
Secondary victim test (5)
A
- McLoughlin v O’Brian
o C’s husband and 3 children involved in road accident due to D’s carelessness
o One child killed, C’s husband and 2 surviving children injured
o C told about accident 2 hours after it occurred – C taken to hospital where she learned of fatality and saw injuries
1. Closer the tie, more powerful the claim for compensation will be (relationship)
2. Proximity in time and space (immediate aftermath doctrine)
3. Means of communication (shock through one’s own unaided senses)
o C fell within immediate aftermath and could recover compensation - Alcock v Chief Constable of South Yorkshire
o Claims brought by loved ones of victims of Hillsborough disaster
o Claims were rejected
o Close ties of love and affection presumed to exist between spouses, parents, children
o However identifying body in mortuary 8 hours after disaster meant C was outside of immediate aftermath - Hambrook v Stokes
o Runaway truck injured C’s child – C did not see accident itself
o Control device: C must apprehend danger through own unaided senses - King v Phillips
o Taxi reverses backwards and mother saw her child’s tricycle under taxi – feared for safety of child
o Distinguishable from Hambrook as slow reversing of taxi different to speeding truck down hill – rejected claim - Television broadcasts
o Not the same as apprehension through one’s own unaided senses
o Liability may arise if broadcaster breaches relevant guidelines e.g. cannot show scenes of an individual suffering
o Australia – Cf Jaensch v Coffey – if you can perceive distress through the television you can claim compensation – English law very cautious compared to Australia
3
Q
Critical commentary of psychiatric injury (5)
A
- Houston
o If we start being generous to claimants, they will take advantage so judges must proceed cautiously to avoid floodgate of claims
o Natural fear around acute mental distress being included - Sunstein
o Judges develop decisional minimalism
o Judges extend law for just one particular case but leave it for future judges to make clearer advancement in the law - Teff
o Judges decisions to reject claims in Hillsborough cases came not purely from policy concerns but a lack of progressive understanding about mental illness
o There is no explicit reference to medical determinants of psychiatric illness - Davie
o Alcock case conveys HofL balance between concern over floodgate of claims so adopts restrictive approach but is not prepared to commit itself to ruling out gradual expansion of boundaries of liability
o HofL did just enough to rule out dangerously large categories of claimants such as strangers to primary victim who hear about it on TV, loved ones who suffer psychiatric break-down, and loved ones told of accident or identified body in mortuary - Australian proposal for reform
o Annetts v Australian Stations Pty Ltd
Young worker goes missing, later find body. Parents shown pictures of body
Parents did not suffer sudden shock and was no direct distressing event through own unaided senses
Neither of these needed to establish liability – Australia move away from arbitrary English law – there is a generosity missing in English law
Parents still able to claim compensation for psychiatric injury
