Pure Psychiatric harm

Question 1

What does ‘pure’ psychiatric harm mean?

Answer 1

‘Pure’ means it is not consequential upon physical injury.
If there is a duty to protect you against physical injury, then there is also a duty to protect you from psychiatric consequences - Donoghue v Stevenson

Question 2

What are the elements of psychiatric harm?

1st Element

Answer 2

1. The psychiatric harm must be a recogniseable psychiatric illness: Hinze v Berry.
   It does not include grief or sorrow: Mt Isa v Pusey

Question 3

What are the elements of psychiatric harm?

2nd Element

Answer 3

2. The psychiatric harm must be reasonably foreseeable. To determine: Tame, Annet, Gifford v Strang and Jaensch v Coffey.

Question 4

What are the elements of psychiatric harm?

2nd Element: Reasonably foreseeable factors

Answer 4

1. The relationship between the P and the victim. The closer the tie of love and affection, the more likely it was reasonably foreseeable: Jaensch v Coffey
2. The proximity of time and space of the accident.
3. Sudden shock of the Plaintiff.
4. Normal Fortitude of the Plaintiff.
5. Relationship of the victim to Defendant.
6. Relationship of the Plaintiff to the Defendant.

Question 5

Delieu v White

Answer 5

If someone is in the immediate vicinity and the scene is sufficiently horrific, that may qualify the sudden shock of the plaintiff for a bystander.

Question 6

Bournhill v Young

Answer 6

The wife heard the accident, but didn’t see it. She was 45 feet away from the accident. She could not recover for psychiatric harm as a bystander.

Question 7

Hillsborough v Hill

Answer 7

Indeterminate liability issue. If they allow one action, could open the floodgates for many more cases against the defendant.

Police decided to open the gates on the outside of a football stadium to try to prevent crowding outside. As a consequence, there was a massive overcrowding inside the stadium. A number of individuals were crushed to death in the stands in the football pitch. This was all being recorded and broadcasted live on tv.
The argument is what would the consequence be if they held a DOC was owed to all of those relativevs of people who were depicted dying on TV?
The D would be disproportionately liable.

Question 8

Alcock

Answer 8

Didn’t allow recover because of Indeterminate liability

Question 9

Jaensch v Coffey

Answer 9

P has to meet this standard, that psychiatric harm would have befallen a reasonable person of that fortitude.

You also don’t have to be in the immediate vicinity if you perceive the direct aftermath of the incident.

Question 10

McLoughlin

Answer 10

P wasn’t at the site of accident and wasn’t a close family member, but went to the hospital after the accident and perceived them in a state/condition akin to the accident.
Courts allowed recovery.

Question 11

Gifford v Strang

Answer 11

If a person is more involved emotionally, more likely to imply liability

The relationship of D to victim. In this case it was an employer relationship. The father was run over the a forklift. When the kids get told about the accident, they suffer psychiatric harm. The courts took into account the employer relationship.

Question 12

Annetts

Answer 12

Annetts kid who got lost in the outback. Prior, D had given P an assurance that he would look after P’s kid. So there was a specific responsibility for the P for the welfare of her son.

In this case: Employers take on a young guy in Western Aus. His mum is worried about this, the employer gives specific assurance to the mother that he’ll be alright. They send him off to a remote cattle station in the middle of nowhere, unsupervised and he was found dead in the desert some weeks or months later.
They had instalments of shocking news as they had kept getting updates.

Question 13

Tame v NSW

Answer 13

The police don’t owe a duty of care for P as a result of false investigation. If they had this duty, it would cause them to be overly cautious and hinder effective administration of their powers - public policy reason.

Normal Fortitude - in this case, Tame’s reaction were so ‘idiosyncratic’ that she wasn’t of normal fortitude.

She was not able to recover.
In other words, the normal fortitude requirement is that the person must be of normal fortitude and was not particularly susceptible.

Question 14

Greatorex v Greatorex

Answer 14

Somebody should not profit from the actions of the perpetrator when they have that sort of relationship with the defendant i.e. Husband kills A. Wife can’t sue husband for psychiatric damage.

Question 15

Attia v British Gas

Answer 15

Able to get damages as a result of property damage - for mental harm.
But careful of indeterminate liability.
You might as well just claim for property damages.

Question 16

Wicks v State Rail Authority

Answer 16

Police Officers were attending a train derailment. The police officers had arrived after the accident had taken place. They’d then helped the injured out of the train wreckage. Some of them walked through the carriages where people had died.
State Rail Authority argued that the police did not witness the scene of the victim being injured, killed or put in peril.
The court interpreted s30 of the NSW CLA to have an immediate aftermath doctrine built into it.