Pyschiatric Injury Flashcards
Why is psychiatric harm, a form of personal injury, referred to as a problematic duty area?
as the courts maintain a clear distinction between physical and psychiatric harm by restricting when a duty of care is owed
The key arguments for restricting compensation in relation to negligently inflicted psychiatric harm were summarised by Lord Steyn in which case?
White v Chief Constable of Yorkshire Police
The key arguments for restricting compensation in relation to negligently inflicted psychiatric harm were summarised by Lord Steyn in White v Chief Constable of Yorkshire Police.
Name the 4 arguments
1) The difficulties of drawing a line between acute grief and the greater diagnostic uncertainty in relation to psychiatric claims
2) The effect the increased availability of compensation might have on potential claimants, particularly as a disincentive to rehabilitation.
3) The significant increase in the class of claimants who could recover and the alleged danger of an over-proliferation of claims (the ‘floodgates’ argument).
4) The potential unfairness to the defendant of imposing damages out of all proportion to the negligent conduct (including the increased burden on insurers and, ultimately, all insurance policy holders
What is a primary victim to psychiatric harm?
this is someone who suffers psychiatric injury as a result of being directly involved in an accident and is either himself physically injured or put in fear or injury
What is a secondary victim to psyhcitauc harm?
• suffers psychiatric harm as a result of witnessing or being informed about an accident that has happened to someone else (such as witnessing a car crash involving other people).
It has long been established that a claimant is able to recover damages for psychiatric injury stemming from actual physical injury or from a reasonable fear or apprehension of danger to their physical safety
FROM WHICH CASE
Dulieu v White 1901
The test toto establish a duty of care is what?
one of reasonable foreseeability of risk of physical injury:
The test to establish a duty of care is one of reasonable foreseeability of risk of physical injury. What case established this?
Page v Smith
The test to establish a duty of care is one of reasonable foreseeability of risk of physical injury.
This was established in Page v Smith. Discuss
The claimant’s car was involved in a minor road traffic accident caused by the defendant’s negligence. Although the claimant suffered no physical injury, the accident triggered the recurrence of the claimant’s ME, a condition which causes severe fatigue, which had been in remission at the time of the accident.The claimant argued that this had become chronic and permanent as a result of the accident.
HELD:
• where it is reasonably foreseeable that the defendant’s negligence may cause physical harm to the claimant and, as such, the claimant is a primary victim, they could also recover for any psychiatric harm they suffer.
Which 2 cases establish primer victims?
Page v Smith and
Rothwell
Rothwell is a primary victim example case. Discuss case
The claimant had been exposed to asbestos in the course of his employment and had developed pleural plaques. He was physically healthy and the pleural plaques themselves would not themselves have caused any illness. They were, however, evidence that asbestos had entered his body and showed that the claimant, therefore, might in the future develop an asbestos-related disease. The pleural plaques themselves were not sufficient to ground a claim. However the claimant was so worried about the risk that he became clinically depressed (a recognisable psychiatric illness). He argued that since it was reasonably foreseeable that the defendant’s negligence put him at risk of physical injury (of contracting asbestosis or mesothelioma) he was a primary victim and hence should be owed a duty of care in respect of his psychiatric illness on the basis of Page.
HELD:
• His claim failed on the ground that his reaction was unforeseeable. While it was to be expected that the developing pleural plaques would cause anxiety to the person of reasonable fortitude, there was no evidence that it would lead them to have such a serious reaction that they would become mentally ill. HL rejected Page argument that since claimant within area of potential physical harm, the mental harm did not have to be reasonably foreseeable.
Recovery inn secondary victim situations is limited by policy control mechanisms such as?
1) the psychiatric injury suffered must be reasonably foreseeable in a person of ‘ordinary fortitude’ in the same circumstances.
2) thin skull rule
3) the Alcock Control Mechanisms
Recovery inn secondary victim situations is limited by policy control mechanisms such as that he psychiatric injury suffered must be reasonably foreseeable in a person of ‘ordinary fortitude’ in the same circumstances.
What case established this?
Bourhill v Young
vRecovery inn secondary victim situations is limited by policy control mechanisms such as that he psychiatric injury suffered must be reasonably foreseeable in a person of ‘ordinary fortitude’ in the same circumstances.
this was established in Bourhill v Young. Discuss
the claimant was across the street when there was a negligently caused crash, however she did not see it, but she did see the blood on the pavement. She later suffered serious psychiatric harm and her child was stillborn about a month after the acciden. She was not a primary victim given her distance from the accident.
HELD:
. It was accepted that a driver owes a duty of care to other road users or persons in premises adjoining the highway, but only when they were ‘so placed’ that they would reasonably be expected to be physically harmed by the driver’s failure to take care.
Recovery inn secondary victim situations is limited by policy control mechanisms such as the thin skull rule.
Which case discussed this
Brice v Brown
Recovery inn secondary victim situations is limited by policy control mechanisms such as the thin skull rule.
This was discussed in Brice v Brown. Discuss case
C, a woman aged 42, had suffered from a hysterical personality disorder since childhood.Due to D’s negligence as a driver he caused an accident in which C’s daughter suffered what appeared to be a very serious injury.This had a severely detrimental effect on P’s mental stability,
HELD:
provided nervous shock was reasonably foreseeable
The tortfeasor must take the victim as he or she is, the only question is whether psychiatric damage is itself a reasonably foreseeable consequence of D’s negligence.
C, a woman aged 42, had suffered from a hysterical personality disorder since childhood.Due to D’s negligence as a driver he caused an accident in which C’s daughter suffered what appeared to be a very serious injury.This had a severely detrimental effect on P’s mental stability,
HELD:
provided nervous shock was reasonably foreseeable
The tortfeasor must take the victim as he or she is, the only question is whether psychiatric damage is itself a reasonably foreseeable consequence of D’s negligence.
Recovery inn secondary victim situations is limited by policy control mechanisms such as the thin skull rule.
This was discussed in Brice v Brown. Discuss case
As a general rule, there was no duty of care to prevent secondary victims from suffering mental harm. However the HL was persuaded to widen the scope of tortious liability for psychotic injury in which case?
McLoughlin v O’Brian
As a general rule, there was no duty of care to prevent secondary victims from suffering mental harm. However the HL was persuaded to widen the scope of tortious liability for psychotic injury inMcLoughlin v O’Brian
Discuss case
Mrs McLoughlin suffered psychiatric harm after happening upon the ‘immediate aftermath’ of a serious car accident. She arrived at the hospital 2 hours after the accident.
HELD:
Her claim was allowed on the basis that the claimant had come upon ‘the immediate aftermath’ of the accident, and had personally seen the effects of the accident on her family.
The issues of McLoughlin v O’Brian were examined in which case?
Alcock v Chief Constable of South Yorkshire Police
The issues of McLoughlin v O’Brian were examined inAlcock v Chief Constable of South Yorkshire Police
Discuss case
friends and families of the victims of the disaster at Hillsborough football stadium who had suffered from medically recognised psychiatric illnesses as a result of what they witnessed during the disaster and its aftermath.
HELD:
1. close relationship of love and affection with the primary victim
2. proximity to the accident had to be close in time and space
3. shock must have been suffered through seeing or hearing the accident (tv is insufficient)
Which case shows an insufficient closeness as per the Alcock mechanism?
Robertson
Roberstonhows an insufficient closeness as per the Alcock mechanism
discuss
claimants colleague and friend died and suffered psychiatric harm.
HELD
His claim was denied despite evidence showing that he had spent the greater part of his employment working with the victim. They had often walked to and from work together and had gone out socially during the week. Not sufficient to constitute necessary degree of love and affection.
claimants colleague and friend died and suffered psychiatric harm.
HELD
His claim was denied despite evidence showing that he had spent the greater part of his employment working with the victim. They had often walked to and from work together and had gone out socially during the week. Not sufficient to constitute necessary degree of love and affection.
Roberstonhows an insufficient closeness as per the Alcock mechanism
discuss
What case shows that it is not good enough to show something is paicultlary horrific under secondary victim?
McFarlane
McFarlane hows that it is not good enough to show something is paicultlary horrific under secondary victim
Discuss case
C developed post-traumatic stress disorder after witnessing the Piper Alpha oil disaster
HELD:
claim failed. Not only was it impossible to establish a hierarchy of horrific events, but to do so would wrongly reduce establishing a duty in such cases to a question of foreseeability:
