Psychiatric Injury Flashcards
Explain the types of Primary Victims, in relation to Psychiatric Injury.
Actual Victim:
* Suffers directly.
Rescuers:
* Actively involved in helping victims of the accident.
* Put themselves in danger.
* Chadwick v British Rail: courts don’t wish to discourage rescuing, thus claim for mental injuries suffered in the act of rescuing will be allowed.
* Hale v London Underground: only professional rescuers who put themselves at risk can claim.
Property Owners:
* Attia v British Gas: if within area of impact + within reasonable foresight of D, can claim.
Near Missers:
* Close by to the scene of an accident + may’ve suffered mental/physical harm.
* Accident could’ve potentially hit them, but hit actually V.
Explain the types of Secondary Victims, in relation to Psychiatric Injury.
Rescuers:
* Actively involved in helping victims of the accident.
* White v Chief Constable of South Yorkshire: rescuers that don’t put themselves physically at risk are secondary victims.
Bystanders:
* Witness/general onlooker to an accident.
* McFarlene v E E Caledonia: wont be able to claim unless they can satisfy Alcock criteria.
Those Suffering Gradual Rather Than Sudden Shock:
* Sion v Hampstead Health Authority: level of responsibility can’t be extended to gradual shock.
* However, where there’s a shorter period of decline in V’s condition, claim may be allowed.
Explain the first element of Psychiatric Injury: Negligence Must Be Established (Primary + Secondary)
- Duty, breach, damage.
- Damage that must be proven to have been caused will be a mental injury.
Explain the second element of Psychiatric Injury: Mental Injury (Primary + Secondary)
- Supported by medical evidence.
- Injury has to be sufficiently serious that C is badly affected by it (long-term injury)
- C has to show loss of part + future earning when they’re struggling with their mental illness.
- Dulieu v White: claim made only if C suffered mental injury as a result of fearing for their own safety.
- Hambrook v Stokes: extended the rule from Dulieu, claim could be made by those suffering shock due to fearing the safety of a family member.
- Mcloughlin v O’Brien: law developed to deal with a mental injury suffered a short-time after an accident.
- For primary victims, confirm tort is complete.
Explain the third element of Psychiatric Injury: Alcock Criteria (Secondary Victims)
- Alcock v Chief Constable Of South Yorkshire: rules initially established.
-
Paul, Polmear + Purchase (2024): clarified the law in relation to claims for psychiatric injury by secondary victims, + amended Alcock criteria- requirements that C needs to prove:
1)Close Ties Of Love + Affection Between C + V: - Relationship must be a close type of relationship (i.e. related by blood, or close friends)
- Relationship must be close in fact- prove with evidence (e.g. recent photos, texts, e.t.c)
2) Proximity In Time + Space Between C + Incident: - C suffered mental injuries at the scene of the accident or in its immediate aftermath (not defined)
-
Paul, Polmear + Purhcase (2024): no need for event witnessed to be close in time to the negligent act, what matters is that C was proximate in time + space to the incident itself, no matter how long after the negligence occurs.
3) C Perceived Accident/Immediate Aftermath With His Own Unaided Senses: - Must see/hear accident/aftermath.
Explain the fourth element of Psychiatric Injury: Threshold Test (Secondary Victims)
- Paul, Polmear + Purchase (2024): also confirmed the threshold test had to be satisfied.
- Would a person of reasonable fortitude have suffered the same reaction + injury as C?
Explain how the defence of Contributory Negligence can be used in relation to Psychiatric Loss.
- Law Reform (Contributory Negligence) Act 1945: any damages awarded to C can be reduced according to extent/level they contributed to their own harm.
- Sayers v Harlow Urban District Council: not a full defence + only results in reduction of damages.
- Jayes v IMI (Kynoch) Ltd: possible for there to be a 100% reduction in damages.
- O’Connell v Jackson: damages can be reduced where motorcyclist fails to wear crash helmet.
- Stinton v Stinton: C accepted lift from drunk driver- knew he was over the limit. Damages were reduced.
Explain how the defence of Consent (Volenti Non Fit Injura) can be used in relation to Psychiatric Injury.
- Subjective- takes into account factors
- Full defence, C accepts voluntary assumption of risk of harm.
To succeed D has to show:
1) Knowledge of the precise risk involved
2) Exercies of free choice by C
3) Voluntary acceptance of risk - S.149 Road Traffic Act 1998: defence can’t be used for road traffic accidents- as of 3rd party insurance.
- Stermer v Lawson: defence wont apply merely because C knows of existence of risk; must have full understanding of nature of actual risk.
- Smith v Baker: wont succeed where C has no choice but to accept risk.
- Sidaway v Governors of Bethlem Royal + Maudsley Hospitals: consent relevant in medical claims.
- If C acts against employers orders + is injured, defence likely to succeed
