THE DUTY OF CARE: NERVOUS SHOCK/PSYCHIATRIC INJURY

Question 1

Alcock V Chief Constable of South Yorkshire

Answer 1

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:

1. close ties of love and affection.
2. closeness in time and space to incident/aftermath
3. perception by sight/hearing, or its eq to event/aftermath

Question 2

Page V Smith

Answer 2

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.

Question 3

Young V Charles Church Southern Ltd

Answer 3

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.

Question 4

White V Chief Constable of South Yorkshire

Answer 4

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.

Question 5

Liability for nervous shock not just RF…

Answer 5

RF:

1. relay of person to the indi involved in the accident
2. 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

Question 6

Roberts V Ramsbottom

Answer 6

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

Question 7

Mansfield V Weetabix

Answer 7

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

Question 8

AIDED SENSES:

Answer 8

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

Question 9

UNADIDED SENSES NOT HAVING A CLAIM:

Answer 9

1. 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

Question 10

secondary victim by Lord…

Answer 10

‘sec victim is no more than the passive and unwilling witness of injury caused to others’

Per Lord Oliver, Alcock 1992.

Question 11

what does a secondary victim need to show?

Answer 11

1. Close tie of love and affection
2. Closeness in time/space to incident or immediate aftermath
3. Perception of unaided senses of the incident or the aftermath

Question 12

key secondary victim cases:

Answer 12

McGoughlian V O’Brien:
ALLOWED: wife coming to see family: untreated injuries

Alcock:
establishes the 3 sec victim requirements.

Question 13

McGoughlian V O’Brien

Answer 13

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.

Question 14

Home Office V Dorset Yacht Company

Answer 14

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

Question 15

NSW V Godfrey 2004

Answer 15

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.

Question 16

Stovin V Wise

Answer 16

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.

Question 17

Lord Hoffman in Stovin V Wise

Answer 17

positive conduct: ACT
different legal consequences to an omission…

different due to political/moral/economic issues.

Question 18

BYSTANDER OMISSIONS:

Answer 18

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.

Question 19

once involved…

Answer 19

DUTY OWED:

assuming responsibility : declaring helper liable.
if they act in reliance on your statement and in bigger trouble… LIABLE.

Question 20

bystanders claiming…

Answer 20

virtually impossible due to the definition in

McFarlanes V EE caledonia.
man witnessing explosion on an oil rig
REJECTED CLAIM

Question 21

Rescuers claim:

Answer 21

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.

Question 22

duty of employees

Answer 22

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

Question 23

REEVES V MET POLICE

Answer 23

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.

Question 24

SPECIAL OBLIGATION?

Answer 24

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

Question 25

Kent V Griffiths

Answer 25

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.

Question 26

Watson V British Boxing Board of Control

Answer 26

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.

Question 27

What is a non-delegable duty?

Answer 27

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.

Question 28

Rylands V Fletcher

Answer 28

duty of D to prevent escape of water from reservoir due to operations of an independent contractor : NON-DELEGABLE

Question 29

When is there a duty? Per Lord Sumption

Answer 29

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.

Question 30

Liability of police officers?

Answer 30

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

Question 31

someone injured by a police officers omission?

Answer 31

No DOC unless… (Rylands V Fletcher)

1. they have a level of control,
2. assumed responsibility
   e. g. dorset yachts v home office.

Question 32

DOC owed…

Answer 32

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