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:
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:
McFarlane hows that it is not good enough to show something is paicultlary horrific under secondary victim
Discuss case
Whichcase concerned the prixitimity in time and space of a secondary victim?
Seghal
Seghalconcerned the prixitimity in time and space of a secondary victim
discuss case
claim allowed. Mother visiting the mortuary regarded as part of the aftermath of the accident.
Which case concerned what meant by how shock is caused?
Sion v Hampstead Health Authority
Sion v Hampstead Health Authority concerned what is meant by how shock is caused. Discuss case
A father was unable to recover for psychiatric harm sustained as a result watching his son die over a period of 14 days while becoming increasingly aware that the hospital were negligent in their treatment of him.
A father was unable to recover for psychiatric harm sustained as a result watching his son die over a period of 14 days while becoming increasingly aware that the hospital were negligent in their treatment of him.
Sion v Hampstead Health Authority concerned what is meant by how shock is caused. Discuss case
what must one suffice in order to claim for injury as a primary victim?
Physical injury must be foreseeable. However psychiatric injury itself need not be foreseeable. No need for the claimant to be of ‘ordinary fortitude’ (Page).
what must one suffice in order to claim for injury as a secondary victim?
Psychiatric harm must be foreseeable in a person of ‘ordinary fortitude’ in the same circumstances as the claimant.
______ victims has no policy considerations to limit the number of claimants
primary
policy is used to limit the number of ______ victims
secondary
Which case considered stress at work?
Barber v Somerset Council
Barber v Somerset Council, under stress at work, considered what?
The test is ‘whether a harmful reaction to the pressures of the workplace is reasonably foreseeable in the individual employee concerned’
The test is ‘whether a harmful reaction to the pressures of the workplace is reasonably foreseeable in the individual employee concerned’
Barber v Somerset Council, under stress at work, considered what?
Under the authority to Chadwick v BRB, before White, the dicta of Lord Oliver in Alock suggested rescuers could expect to recover. The court has traditionally treated rescuers favourably. Which case was it said that
‘Danger invites rescue’
Wagner v international railway
Under the authority to Chadwick v BRB, before White, the dicta of Lord Oliver in Alock suggested rescuers could expect to recover.
Discuss the case of Chadwick
C was the widow of a window cleaner was able to recover for the psychiatric harm suffered by her husband as a result of his particularly harrowing and gruesome experience giving help and relief to victims of a severe rail crash over the course of 12 hours. HELD: C recovered
C was the widow of a window cleaner was able to recover for the psychiatric harm suffered by her husband as a result of his particularly harrowing and gruesome experience giving help and relief to victims of a severe rail crash over the course of 12 hours. HELD: C recovered
Under the authority to Chadwick v BRB, before White, the dicta of Lord Oliver in Alock suggested rescuers could expect to recover.
Discuss the case of Chadwick
Under the authority to Chadwick v BRB, before White, the dicta of Lord Oliver in Alock suggested rescuers could expect to recover.
However it is now considered as inequitable to treat rescuers more favourably which was established in which case?
White v Chief Constable of South Yorkshire Police
Under the authority to Chadwick v BRB, before White, the dicta of Lord Oliver in Alock suggested rescuers could expect to recover.
However it is now considered as inequitable to treat rescuers more favourably which was established in White v Chief Constable of South Yorkshire Police
Discuss case
All of the claimants were police officers who had been on duty the day of the Hillsborough Stadium Disaster. . All had suffered psychiatric illness (PSTD)
HELD
HL accepted the narrow definition of primary victim given by Lord Lloyd in Page, ie that one had to be ‘directly involved in the accident and well within the range of foreseeable physical injury’.The police were not primary victims because they were never in physical danger.
majority held that a rescuer had to satisfy a threshold requirement that he ‘objectively exposed himself to danger or reasonably believed he was doing so’ (at 499). On the facts, none of the four police officers was exposed to personal danger and none thought he was so exposed.
All of the claimants were police officers who had been on duty the day of the Hillsborough Stadium Disaster. . All had suffered psychiatric illness (PSTD)
HELD
HL accepted the narrow definition of primary victim given by Lord Lloyd in Page, ie that one had to be ‘directly involved in the accident and well within the range of foreseeable physical injury’.The police were not primary victims because they were never in physical danger.
majority held that a rescuer had to satisfy a threshold requirement that he ‘objectively exposed himself to danger or reasonably believed he was doing so’ (at 499). On the facts, none of the four police officers was exposed to personal danger and none thought he was so exposed.
Under the authority to Chadwick v BRB, before White, the dicta of Lord Oliver in Alock suggested rescuers could expect to recover.
However it is now considered as inequitable to treat rescuers more favourably which was established in White v Chief Constable of South Yorkshire Police
Discuss case
In the case of white who gave the Chadwick brother analogy?
Lord Goff in dissent
What were the 4 arguments for restricting compensation in relation to negligently inflicted psychiatric harm were summarised by Lord Steyn in White?
) The difficulties of drawing a line between acute grief and psychiatric illness and the greater diagnostic uncertainty in relation to psychiatric claims (based on a fear of sham claims and doubts as to causation).
(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) (at 493–4).
What is the argument against those reasons stated by Lord Steyn in White?
fraudulent and exaggerated claims are just as likely under physical harm as the extent or duration of pain cannot be proved. Such as cases of whiplash with some claims reaching almost £90,000
What is the effect of Page v Smith?
it puts primary victims at an advantage to secondary victims through this extension of the thin skill rule as they can recover images even if it was sustained because the claimant lacked the fortitude or natural phlegm of an ordinary person
In what way did the HOL rejected the Page argument that the metal harm did not have to be reasonably foreseeable as long as physical harm was, in Rothwell?
they confined page to cases where the events actually occurred
Under proximity in time and place what did Berisha hold?
the claimants case was rejected after arriving at a hospital 5 hours after her partner was injured at work and was put on life support.
It was held that seeing a loved one unconscious cannot be found to confer secondary vicim status on the claimant
The requirement for pshyiatric harm to be as a result of shock has been criticised by who?
the Law Commissionin Report on Liability for Psychiatric Illness
The requirement for pshyiatric harm to be as a result of shock has been criticised bythe Law Commissionin Report on Liability for Psychiatric Illness
. What was their argument?
that the control mechanisms narrow a class of claimants in an already excluded class
What is a positive argument for the restriction of ‘shock’ in the Alock control mechanisms such as in Sion v Hampstead Health Authority?
welcomed result for the NHS which would otherwise be unguarded from almost any person who developed psychiatric harm from witnessing loved ones die in a hospital following clinical negligence
What has Burrows and Burrows argued against the restrictions imposed by the ‘shock’ criteria of the Alcock mechanism?
that it is hard to resist the conclusion that the need for a sudden and shocking event is an unnecessary and arbitrary restriction as psychiatric illnesses are not caused by a sudden shock
The case of Walker is an example of a stress at work case. Discuss this case?
In this case the claimant was a social services manager who suffered a second nervous break down as a result of pressures at work
HELD:
There was no breach on part of the employer at the first time but there was for the second as there was reasonable foreseeability
In this case the claimant was a social services manager who suffered a second nervous break down as a result of pressures at work
HELD:
There was no breach on part of the employer at the first time but there was for the second as there was reasonable foreseeability
The case of Walker is an example of a stress at work case. Discuss this case?
what are 5 foreseeability factors for stress at wrk?
1) interrelationship between employee and employer
2) the nature of the work
3) signs of stress
4) size and scope of nusines/savailable resources
5) once the threshold is crossed, it is immaterial whether a person of ordinary fortitude would have not suffered the same harm
In the case of White what was corrective justice abandoned for?
cautious pragmatism
What case is the prime example of an involuntary participant?
Dooley
The prime examples of an involuntary participant is Dooley and Monk
Discuss first case
In this case the claimant operated a crane at work which due to the employers negligence had broke and fell onto a ship where men were working
HELD:
Successfully recovered for psychiatric illness suffered due to the fear that the land would incur or kill someone
In this case the claimant operated a crane at work which due to the employers negligence had broke and fell onto a ship where men were working
HELD:
Successfully recovered for psychiatric illness suffered due to the fear that the land would incur or kill someone
The prime examples of an involuntary participant is Dooley and Monk
Discuss first case
The prime examples of an involuntary participant is Dooley and Monk
Discuss second case
In this case the claimant suffered psychiatric injury after supervising the installation of a platform that he later heard fall and injure workmen, believing it was due to himself
HELD:
Denied claim as although the primary victim category could extend to unwilling participants who reasonably felt that they put another in danger, there was no reasonable basis in this case to believe this
In this case the claimant suffered psychiatric injury after supervising the installation of a platform that he later heard fall and injure workmen, believing it was due to himself
HELD:
Denied claim as although the primary victim category could extend to unwilling participants who reasonably felt that they put another in danger, there was no reasonable basis in this case to believe this
The prime examples of an involuntary participant is Dooley and Monk
Discuss second case
Both academic commentators and judges agree that the law in relation to recovery for negligently inflated psycjaitic harm is unsatisfactory. What has Lord Steyn suggested?
that it is a patchwork quilt of distinctions which are difficult to justify
