Pyschiatric Harm - Finish rescuer Flashcards
Page v Smith
IMPORATANT - main case for primary victims
Issue: did a minor road accident cause the victim to have a permanent condition
Facts:
1.minor acdcident caused remission of chronic fatigue syndrome
2.page could not work
3.no physical injury
3 outcomes
1.REASONABKE FOREEABILITY OF PHYSICAL HARM - if so it does not matter if the physxhiatric harm was not foreseeable
2.RECOGNIZED MEDICAL CONDITION/ physchiatric = ie,grief or distress does not constitute
3.THIN SKULL RULE = if the victim had a preexisting medical condition it does not matter if the D did now know. If V suffered a greater degree of harm due to preexisting condition, D is still liable for harm
McFarlane v EE Caledonia (1994)
Primary victims
V must REASONABLY BELIVE THEIR IN DANGER
Outcome: court said no because although C was assisting people, where an oil rig caused boat accident the boat was very far away from the scene. He was not a rescuer so not primary or secondary victim
Young v Charles (1997)
Primary victims
Rule= REASONABLY believe they are IN A ZONE of PHYSICAL DANGER
scalfolder
-Mr young worked with a skilled scaffolder
-Mr young passed something to his worker friend and friend was fried by electricity
-Mr Young argued pyshiatric harm, he claimed he didn’t fear for his own safety he feared for his friends safety (which in Hambrook would mean no liability) however court said
Issue:
Outcome:Mr young was entitled to believe that he was in danger as a reasonable person would when passinga round electric cables
McLoughlin v Jones (2003)
Primary legislation
Rule: Wrongful incarceration can be risk of physical harm
Issue: was mr mcloughin in foreseeable risk of harm
Coutcome: coiurt said yes being in prsion in that specific circumstance as being an innocent person was reasonable to believe in ahrm. Even though mr mscloughin did not necessary believe so. So his psychiatric harm was valiadated
Outcome: circmstances itself can be feared, rather than accident
Johnston v nei
Primary legislation
Must be FEAR of IMMEDIATE danger NOT FUTURE DANGER
back in day many men exposed to asbestos and no how mesothioma)
(many worked with it for an employer that negligently exposed them)
(many developed plueral placks found in victims lungs when exposed to asbestos and in most cases CAN LEAD to mesothioma) however placks in your lungs was distinct from the disease, thus cannot claim you mesothiolma
-claimant thus argued instead pyshiatric illness
-this claim failed because they could not show the zone of danger
-’zone of danger’ = immediate risk of danger NOT protection from future events
-so fear the claimants had that theyd develop cancer and die? Not valid
Bourhill v young
Secondary victims
Rule: must have forseeability of psych harm and proximity to danger = cannot be a MERE BYSTANDER
Issue: was she a secondary victim
Facts:
1.Mrs Bourhill had stumbled upon the aftermath of Young’s motorbike accident
2. Saw about 100 yards away the wreckage, the blood, the commotion of people
3.she suffered nervous shock (called post traumatic disorder now) as a result of what she witnessed.
(there was normally women and pregant people that were claimants during this time)
Analysis:
She is not a primary vitcim because…
Unlike the claimant in Dulieu v White Mrs Bourhill was in no physical danger. (she was not in the range of physical harm)
Unlike the claimant in Hambrook v Stokes she had no connection with the deceased/injured. (there was no relation between claimant and the harmed person, unlike mrs hambrooks kids)
McLaughlin v Obrian
Secondary Victims
Rule: Reasonable Foreseeability and 3 Proximities - Time and Space, Perception and Immediate Aftermath
Issue 1: was mrs mcloughin a secondary victim although not being in immediate physical danger?
Facts:
Mrs M at home. Her husband and children were involved in a car accident 2 miles away (caused by the def’s negligence).
•Mrs M was told of accident about 1 hour later
went to hospital and saw husabnd injured, children crying etc.
•Mrs M suffered severe shock, depression and a change of personality.
Outcome: yes, she was a secondary victime
Issue 2: what were the legal rules that could allow her claims to succeed
Analysis: she was not a primary victim but she was similar to mrs bourhill minus two important distinctions.
She had suffered serious physchiatric injury due to the defendants negligence and it was forseeable that she would suffer as a result.
Proximity = The element of ‘proximity’ however was the main feature (per lord wilberforce)
3 proximities per Lord Wilberforce in Mcloughin Obrian
- Proximity of ‘Time and Space’
Lord : “But she was not at the scene of the accident” (should be there at the time of the incident or immedaite aftermath)
Court: Although Mrs McLoughlin did not witness the accident itself, she did see the ‘aftermath’ of the event (we should not separate the event from the immedaite aftermath. What she saw was still a traumatic thing
• Proximity of ‘Perception’
“But Mrs McLoughlin was told about the event by a neighbour” (she didn’t see the incident)
But she was present at the immediate aftermath and witnessed a horrifying event first hand (we must extend the event, she did see technically by seeing the effects)
• Proximity of ‘Relationship’
• “But how does this differ from Mrs Bourhill?”
Unlike Mrs Bourhill, Mrs McLoughlin has a significantly close relationship with those injured
(without this element anyone could make a claim who saws the traumatic events later. You must have some relationship. Mrs bourhill didn’t but mrs mcloughin did)
A lock v Chief Constable
Secondary Victims
Issue:
Facts:
-spectators etc died (all different types of claimants, some present at the match, some watched on tv, heard on radio, some persons lost their loved ones, lots heard about it)
-on tv it was wide ange shots couldn’t see everything, on radio could only hear some chaos etc.
Claims for damages for psychiatric illness brought by 15 relatives and a fiancee of the victims of the tragedy.
•Some claimants had been present at the match, but not in the area where the disaster occurred.
•Other claimants had watched the events on TV or heard it on the radio.
•The Chief Constable denied he owed a duty of care to the claimants.
3 outcomes plus the Wilberforce principle applied
Wilberforce = forseeability of psychological harm and proximity
Proximity of Relationship-a close tie of love and affection.
•The Lords held that proximity is presumed in the case of a spouse, parent or child, and possibly fiancé.
•More distant relatives must show that their relationship is VERY CLOSE
•Thus, the claims of brothers, sisters, brothers-in-law would all fail…
2.
Proximity to the traumatic event also includes coming upon its ‘immediate aftermath’ – see McLoughlin v. O’Brian.
•Alcock – The HoL held that ‘immediate aftermath’ did not extend to cover those who had attended temporary mortuaries 8 or 9 hours after the Hillsborough disaster. - most victims died from asfixiation or crushing their bodies were not damaged they lied peacefully, unlike in mcloughin
(one of the claimants argued that the aftermath should extend to 4am in the morning, 9 10 hours because he was frantically looking for his son and found him dead at 4am. Court said no body was fine and aftermath cannot be extended that long)
3.
Proximity of Perception
•Claimant must see or hear the terrible event or its immediate aftermath with “their own unaided senses” - some claimnats saw what happened but through a sanitzed and low definiton version on tv or radio.
•Notification by a third party (e.g. newspaper, TV, radio, or someone else) will not do.
•Those who saw the Hillsborough disaster on TV did not establish the necessary proximity.
•Lord Ackner said that a claim might not necessarily be ruled out, however, but this would be an exceptional case (the court recognises that there are videos w high defintion etc, it does not rule this out but it says most cases…)
(being in person you would experiene noises, smells etc.)
What 2 additional rules were added as a reuslt of hillsborough (in addition to foresight and proximinity)?
In addition to the requirements of foresight and proximity
•Shock must be caused by a ‘sudden appreciation’ of danger. There must be a sudden impact on the nervous system.
•The event must be one which is sufficiently horrific as to be likely to cause shock to a person of ordinary fortitude
Walter v North Glamorgan (2002)
Rule = EXTENDED the AFTERMATH PERIOD to 36 hours after and different outcome than Alcock, sudden appreciation
hillsborough shows different for claimants to succeed
Issue: was mrs walters a secondary victim
Facts:
1. Son was sick took him to nhs glamorgan
2. They misdiagnosed him and said take him to london hospital and he will be fine
3. On the way there, They spoke to consultants who said they cant wait for him to get better
Arrive in london and the doctors say glamorgan was wrong and he will die and he did
Outcome: yes physictruc secondary injury, BUT later proven to be inapplicable.
Why: no sudden appreciation of shock which would have resulted in psych. She had the whole car ride and speaking to consultant which prepared her. The last step was that he finally died after a long exhaustive journey
NO SUDDEN SHOCK
Galli Atkinson
Rule: EXTENDED AFTERMATH PERIOD
Issue: was a couple of hours considered the aftermath?
Facts:
1.daughter hit by speeding car
2.mom came home and saw aftermath, police cars, ambulance etc.
3.didnt know if it was her daughter or not. Went to the mortuary a couple of hours later
4.in her mind she tried to convince herself it wouldn’t be her daughter
5.saw her daughter dead, looked like she was in a really bad accident
Rule: (more like mcloughin) claimant can argue secondary victim when witnessing dreadful event hours later. Aftermath period extened
Taylor v a novo
Rule: WEEKS LATER DOES NOT SUFFICE, daughter witnessed moms body weeks later
Issue: did mrs taylor witness the shocking event, horrifying aftermath
Outcome: no mrs taylor did not, primary victim was injured but weeks had passed
Facts:
•A woman was injured at work due to the defendant’s negligence
•A few weeks later the woman died of her injuries
•Her daughter was present at her mother’s death but she was not present at the scene of the original incident
(if the courts allowed this claim how far would they stretch the element of time and space. Too far removed)
Paul v Royal
Rule: claimant CANNOT claim secondary victim unless they witness the accident
Issues: were the claimants secondary victims (did they witness the shockinge evemt with their own unadied senses, were they in time and space close enough to the death of a loved one)
Rule: claimant cannot claim secondary victim unless they witness the accident
Facts:
• In all three appeals a family member died as a result of medical negligence.
• In all cases this death occurred some time after the event
• In two cases the death occurred in the presence of a family member. In the third the family member was present at the immediate aftermath
• In all cases, stated the Court of Appeal “The question turns on the relevance of any time intervals between the clinical negligence, the damage caused by it, and the horrific event that ultimately causes the psychiatric injury to the claimant.”
“For a secondary victim to be sufficiently proximate to claim for psychiatric injury against the defendant whose clinical negligence caused the primary victim injury, the horrific event cannot be a separate event removed in time from the negligence.”
On this basis all of the claims were dismissed. Leave to appeal to the Supreme Court granted
Duleiu v white
Primary victims, early case
Facts
crashed through window of pub where V was working
-V suffered nervous shock – which meant psychiatric harm and physical harm
-Physical harm was that she lost her child
Issue: did V reasonably believe she was in danger
Outcome: court said yes and to the extent that caused her to lose her child.
Rule: V must reasonably believe herself to be in danger
Hambrooke v stokes
Primary victims, early case
Lorry heading down a hill
-V sees lorry heading down in the direction of her
-She could not find her kids and believed they were down the hill where the lorry was heading
-There was a collision
-She argued she suffered nervous shock from believing her kids were harmed
Issue: did V reasonably believe her kids would be harmed
Outcome: Dulieu case would not apply because courts argued Hambrook feared for safety of others not herself
Rule: V must fear for own safety not safety of others
