THE DUTY OF CARE: NERVOUS SHOCK/PSYCHIATRIC INJURY Flashcards
LEARN CASES
Alcock V Chief Constable of South Yorkshire
Hillsborough disaster - extensive claimants.
cases allowed to test the limits of sec victims and principles of DOC so not everyone who is a victim can recover.
DON’T have to show legal relationship. JUST that a DOC is owed to claimants.
SEC VICTIM NEEDS TO SHOW:
- close ties of love and affection.
- closeness in time and space to incident/aftermath
- perception by sight/hearing, or its eq to event/aftermath
Page V Smith
Driving collision: significant psychiatric injuries sustained, stopping Page from working again due to CFS.
HL: not separating psychiatric/physical injury
IF personal injury is foreseeable, inc physical, then c. can recover for psychiatric injury even if it is greater.
Young V Charles Church Southern Ltd.
Young V Charles Church Southern Ltd
MAIN: it does not matter if psychiatric injury is not foreseeable.
Provided C. in zone of danger and some physical injury is foreseeable, CAN CLAIM.
Two men sent into setting w/negligently wired electrics. One man dies, Young can claim.
White V Chief Constable of South Yorkshire
Whether employers owe a DOC to their employees to protect them from psychiatric injury in the course of their employment.
SAME PRINCIPLES APPLY: need to fit into the primary/secondary victim category. (no special rule for rescuers.
Liability for nervous shock not just RF…
RF:
- relay of person to the indi involved in the accident
- C req to be close to accident.
relationship:
the closer the emotional tie the greater the changes of success.
proximity to the accident:
C must be approximate in time and space
shock resulted from being told by a third person:
NOT SUFFICENT
Roberts V Ramsbottom
woke up and had a stroke, told wife he felt strange, got into car and drove into town: he crashed into 5 cars, in particular Mrs Roberts
LIABLE: he KNEW of illness
Mansfield V Weetabix
tumor in pancreas, skipping into coma, UNAWARE
crashed, wasnt aware he was expected to reach SOC
UNAWARE of capacity
reasonable driver would continue to drive
NOT LIABLE : binding on CA
AIDED SENSES:
NO liability for being told your loved one is injured. HAVE TO SEE IT FROM YOUR OWN SENSES.
Alcock: big issue.
• Viewing live broadcast television cannot be equated with direct perception by C.’s own unaided senses:
– because the necessary degree of proximity is lacking: Alcock
– because broadcasting codes of conduct prohibits identification of recognisable individuals (if broadcasters broke this rule, there would be a novus actus interveniens) – not reasonably foreseeable that C. would be affected : Alcock
– because television broadcast includes cameras at different points, angles and pan/zoom, with commentary, which is different from human perception (hyperreal): Alcock
IF DO, company is liable and not O.G. respondent.
BUT would be unfair to sue BC and not the person causing the event.
suing media: novel DOC
UNADIDED SENSES NOT HAVING A CLAIM:
- level of editorial judgement being applied, bound by particular BC rules etc
showing individualised victim, even though you may know, doesn’t take pictures to allow people to be identified, and if they do, its on the TV companies rather than south Yorkshire police.
More compelling reason: about perceiving it in the way you could as an individual: trauma being caused of something being put in danger, negligently
TV experience is different to reality, e.g. a commentator, edited pictures : zoomed in etc.
Mechanisms via TV that makes things feel more intense
secondary victim by Lord…
‘sec victim is no more than the passive and unwilling witness of injury caused to others’
Per Lord Oliver, Alcock 1992.
what does a secondary victim need to show?
- Close tie of love and affection
- Closeness in time/space to incident or immediate aftermath
- Perception of unaided senses of the incident or the aftermath
key secondary victim cases:
McGoughlian V O’Brien:
ALLOWED: wife coming to see family: untreated injuries
Alcock:
establishes the 3 sec victim requirements.
McGoughlian V O’Brien
C. hears about accident concerning her family (one child died and 2 kids and husband injured)
Runs to A&E where all being treated and she sees their untreated injuries.
RF: C would suffer psychiatric injury THUS allowing her to bring her claim.
Two hour period seen short enough to fill the proximity of this time requirement.
Home Office V Dorset Yacht Company
Home Office responsible for prisons and young offenders institutes: rehabilitation focus
Go on camping trip : overnight, guard falls asleep.
OMISSION of job. boys sneak out and steal yacht, causing significant damages.
court argued: guards in position of control and RF damage could be caused if job not executed properly.
LIABLE.
also said, if they had got further away, not liable. had to be damage caused by act of escape.
NSW V Godfrey 2004
NSW V Godfrey 2004
prisoner escapes and robs a shop 3 months later.
shop try to claim: not liable. if he had done so on escape, different.
they cannot be held liable just because they are aware of a prisoner.
Stovin V Wise
the availability of a private law claim in negligence in respect of a failure of a LA to comply w/public law discretion.
FACTS: LA aware of bank of land obstucting view where 3 accidents happened.
C. injured in another crash and brought claim against LA.
ISSUE: could LA be found to owe a CL DOC if it had not complied w/public law obligation.
HELD: HL allowed authorities appeal.
Highways Act allowed LA the power to remove obstuctions. statutory power did not give CL claim for non-performance.
Not F, J & R to impose a duty in these circumstances.
Lord Hoffman in Stovin V Wise
positive conduct: ACT
different legal consequences to an omission…
different due to political/moral/economic issues.
BYSTANDER OMISSIONS:
No duty to intervene and prevent harm:
OSTERLIND V HILL
D watched while people drowned and not req to rescue.
E. law does not impose a liability on D when event caused by C or a third party.
Generally no liability for failure to rescue them.
once involved…
DUTY OWED:
assuming responsibility : declaring helper liable.
if they act in reliance on your statement and in bigger trouble… LIABLE.
bystanders claiming…
virtually impossible due to the definition in
McFarlanes V EE caledonia.
man witnessing explosion on an oil rig
REJECTED CLAIM
Rescuers claim:
suffer trauma as a result of rescue…
CHADWICK V BRB 1967:
dragged by police to rescue ppl from train crash
he WAS able to claim even though he didnt know anyone injured.
special rule for rescuers???
HOWEVER:
in White V Chief constable of South Yorkshire:
NO CLAIM: no special rule for rescuers, need to fit into primary/secondary victim claim.
duty of employees
special relay and assumption of responsibility: LIABLE
those in positions to help:
once act on situation, they assume the critera and need to better OR keep the same… cannot worsen the situation.
THUS doc owed. e.g. Reeves V Met police
REEVES V MET POLICE
committed suicide : AR and charge of Reeves welfare when in the cell.
that he will not leave the cell worse off than when he entered them.
SPECIAL OBLIGATION?
CERTAIN relays give automatic assumption of responsibility e.g. doctor and patient
not to make patient worse, oath in law
OTHER relays: e.g. sol/client
coming into contact w person, owe a duty NOT to make it worse by omissions
DUTY TO DO SOMETHING
Kent V Griffiths
C. asthmatic, GP there, called 999 and the ambulance stated they would be there shortly. C relied on this instead of driving, amb never came.
LIABLE
no need to rely on AR, but as she did, liable.
Watson V British Boxing Board of Control
Watson suffered traumatic brain injuries from fight. Assumed adequate medicial support would be on side to help, wasnt and thus became worse off.
As he relied on BBBC to give right advice, he did not give extra medical cover, not treated properly leading to him being MUCH worse off.
if you AR and dont meet standard: WILL BE LIABLE.
What is a non-delegable duty?
ordinary principle: ‘is displaced and the duty extends beyond being careful, procuring careful performance of work delegated to others.’
In Woodland V STA the ECC had a non-delgable duty to keep vun. party, woodland safe and therefore makes them liable.
Where D employs an independent contractor to perform a function, of which becomes inherently hazardous/liable to become so in course of work.
Rylands V Fletcher
duty of D to prevent escape of water from reservoir due to operations of an independent contractor : NON-DELEGABLE
When is there a duty? Per Lord Sumption
i. C, vunerable/dependent on D protection against risk of injury
ii. seperate ancedecent relationship between C and D
w/element of control placing C under charge of D where a positive duty to protect the C from harm has been assumed.
iii. C has no control over how D performs obligations.
iv. D delegated to a third party some integral part of the duty where 3rd party is exercising that purpose, D care of C, w/the attendant in control.
v. 3rd party negligent in performance of relevant function assumed responsibility.
Liability of police officers?
re-establsihed in micheal v chief constable of south wales:
NOT liable for omissions as long as not two critera
do not have special relay w/any random person on the street.
NO reason to treat police officers differently from anyone else.
when they injure someone by ACT and injury is RF: DOC owed e.g. Robinson
someone injured by a police officers omission?
No DOC unless… (Rylands V Fletcher)
- they have a level of control,
- assumed responsibility
e. g. dorset yachts v home office.
DOC owed…
Omission of PA: NO duty to compensate if failure to perform.
e.g. Stovin V Wise / Mitchell V Glasglow
do not owe a private duty.
regulatory power gives power to ACT not a correspondence to HAVE to act
