Psychiatric Injury Flashcards
Why is psychiatric injury different from physical injury?
Much more of a worry (historically) that people were putting it on.
Much more subjective and dependent on what people can endure, physical injury mostly the same for everyone and more visible
Who are primary and secondary victims?
Primary = those who were directly involved in an accident
Secondary = those who see or learn of others being killed or injured & experience sudden shock
What are the policy concerns when it comes to psychiatric injury? (Gardner)
Fear of floodgates - clog up system
Don’t want to impose disproportionate burden on defender to pay whe tortious conduct might not have been that bad
Fear of bogus claims (more historical, now we know more about mental health)
Expert evidence formerly problematic
Underclaiming, don’t want to make it too difficult
Sympathy for plaintiff had encouraged courts to extend scope of the law (McLoughlin)
Evidential issues as so far from initial act
Distinguishing between acute grief & psychiatric illness
Compensation might dissuade people from getting better quickly, want to get their money so stay ill?
What is psychiatric harm?
Claims for pure mental harm where the act or omission of the wrongdoer gives rise to mental harm without also causing physical or other injury to victim.
Requirements to prove primary victim’s psychiatric injury
- Directly involved in accident and well within range of foreseeable physical injury
- Foreseeability of psychiatric injury is not necessary
- Thin skull applies & don’t have to be a person of ordinary phlegm
(Page v Smith)
Requirements to prove secondary victim’s psychiatric injury
Recognising psychiatric illness (Page v Smith) not normal vicissitudes of life
Nervous shock - sudden appreciation by sight or sound (Alcock)
Reasonable foreseeability plus ‘ordinary fortitude’ standard (Page v Smith)
Proximity - both familial & time and space
What are the requirements for establishing proximity in secondary victims?
Familial - close tie of love and affection (Alcock). Previously presumed that only husband & wife, parent & child relationships could claim. Now others can prove existence of such a relationship. Brothers may not succeed (Alcock)
Time & space - at event or its immediate aftermath (McLoughlin)
Not seeing bodies in mortuary some 8 hrs later (Alcock). Not TV watchers - media amplification & not close enough
Criticisms of current law
1) Close tie of love and affection - illusory and perhaps unnecessary. Fact that they suffered such harm shows closeness? But floodgates! Fixed list? No, variable for every person
2) sudden shock - ignores huge number of mental illnesses contracted over long period.
3) ordinary fortitude - extra hurdle, really hard for people to claim. Why shouldn’t thin skull apply here as to primary victims or not at all? Surely defender shouldn’t get off because inflicted more harm on a vulnerable person
4) Rescuers
- only where at risk of physical harm, fair? But would not sit well with alcock, if relatives could not claim. Want to encourage people to rescue!
Reform proposals?
1) liable for intentional harm, unless pursuer could reasonably be expected to endure it
2) same for unintentional but pursuer had to show that they had a recognised mental disorder & reasonably foreseeable
3) secondary victims have to show close relationship with immediate victim / acted as rescuer (easier to satisfy than close tie of love & affection)
4) all victims req’d to be of ordinary fortitude
5) abolish Page v Smith rule that physical harm risk necessary for psychiatric
McLoughlin v O’Brian
One of pursuer’s children killed, while her husband & other children were injured in car accident. Reported to m while at home, went to go see them at hospital. Suffered shock. Critical question - could a person who was not present at the scene of grievous injuries, but rather the aftermath still recover damages?
Foreseeable that she would immediately come to the scene. Immediate aftermath should also be included. Her position analogous to that of a rescuer, went to go and help / comfort.
Alcock v Chief Constable
Hillsborough. Hundreds killed in stands. Could relatives / friends outside normal scope succeed?
Law presumed that those who are more remotely related to the deceased will possess such fortitude & phlegm as will protect them from harm
TV - no, due to media amplification etc
Not set list. Where could prove close tie of love & affection
White / Frost v Chief Constable
Police officers who were present at Hillsborough. PTSD caused by police negligence. Chief constable owed police a duty to take care for physical wellbeing of officers, but not psychiatric injury where there had been no risk of physical injury.
Professional rescuers take on these risks. Would not sit well with Alcock - fans in stadium could not claim so why should police?! Floodgates issue.
Liability where had acted as rescuers much harder to prove than in Chadwicj
Bourhill v Young
Motorcyclist overtook tram on its near side and crashed into car turning right. Mrs B, on far side of tram didn’t see collision but heard noise & saw deceased’s blood on road later. Miscarried. Not foreseeable as she was completely outside the risk of forseeable harm . You don’t owe duty to protect every single person against psychiatric injury if you crash
Lord Steyn criticised the law in White by saying there was
“A patchwork quilt of distinctions which are difficult to justify”
