Tort 3 - Psychiatric harm and employer liability Flashcards
Problem with psychiatric harm
As with pure economic, not sufficient proximate relationship between C and D.
General rule cannot recover.
Consequential psychiatric harm allowed.
Pure psychiatric harm
Psychiatric harm without physical impact.
Must be caused by;
sudden shock
medically recognised psychiatric illness or
shock-induced physical condition (heart-attack).
Cannot be gradual build-up (unless employer).
Need too amount to defined and diagnosed illness.
Different types of victim
Requirements above for both - then consider primary or secondary.
Primary -
Someone actually involved;
in area of danger
reasonably believed in danger
Duty of care owed when;
- pure psychiatric harm provided foreseeable injury
Although not necessary injury had to occur.
Secondary victim -
Witnesses injury to someone else or
fears for safety of another person.
Requirements for secondary -
foreseeability of psychiatric harm (reasonably foreseeable for someone or normal fortitude0.
Proximity of relationship -
close relationship of love and affection with person endangered.
presumption where - parent/child - husband/wife and fiance/fiancee.
D can put evidence to rebut.
If falls outside where presumed C must prove close relationship existed.
Proximity in time and space -
be present or in immediate aftermath.
Proximity of perception -
must see or hear accident, or immediate aftermath with own sense.
Not through third party.
Rescuers
Officers not awarded pure psychiatric harm.
Rescuers treated the same as any other victim.
Rescuers still to display normal fortitude.
If in danger area - primary victim.
Breach of duty and causation
Egg-shell skull rule
Reasonably foreseeable for that person with defects..
Secondary must still show reasonably foreseeable that person of normal fortitude would suffer.
However once done can rely on ‘egg-shell’ skull rule in relation to causation.
Employers liability
-
Most employers bound to take out insurance. (Employers Liability (Compulsory Insurance Act 1969).
Employers common law duty
Reasonable care for employees safety while at work.
To provide -
competent staff
adequate material
a proper system of work and supervision.
Latimer fourth duty
-safe place of work.
Non-delegable duty.
Competent staff
Competent fellow workers.
Knew about risk of pranking workmen (liable).
Knows or ought to know about risk of particular worker.
Psychological as well as physical.
Need to consider
-selection of staff
-provision of training.
-provision of supervision
-dismissal of employees
Adequate plant and material
-inadequate
-or does not supply equipment needed for the job.
must provide and maintain it.
Needs to establish
-fault of third party (manufacturer)
-causation
Safe system of work
Not enough to provide safe system. Reasonable steps to ensure that it is complied with.
-training
-supervised
-monitoring operation
Safe workplace
Reasonable steps again.
Non-delegable (e.g. not indepedant contracts like occupiers liability).
Even where employees sent.
Stress at work
Can cover stress.
Whether injury to health through stress was reasonably foreseeable.
Court should consider;
nature and extent of work done by employee
-signs from employee themselves
Psychiatric harm rules do not apply
Breach of duty
Breach if fails to meet standard of care expected of reasonable employer in its position.
Magnitude of risks and costs of precautions.
Health and Safety at Work Act 1974-
obligations to carry out risk assessments and provisions of information for training.
Breach is a criminal offence.
-not actionable in civil offence.
-what risks ought to have foreseen
-what precautions ought employer have to take.
If covered by statutory health and safety regulations highly relevant.
Defences
Consent
Voluntary assumption of risk
