Tort Law - Negligence - Psychiatric Damage Flashcards
What is this area of law often referred to as?
Nervous shock.
And covers situations where claimants in negligence cases suffer psychiatric harm
What needs to be proved for a claim to be valid?
It must be proved that the claimant suffered a recognised psychiatric condition. A claim will fail if it is only proved that the claimant suffered from symptoms such as distress or upset after an incident or grief following the death of a loved one
Classifying victims: what is a primary victim?
A primary victim is someone that is directly affected by the negligent incident as they reasonably fear for their own safety. This is a person that suffers some form of personal injury or property damage as a result of the incident, they may also then suffer psychiatric harm as a result of their other injuries/losses. In these circumstances the standard principles of negligence apply to the psychiatric harm as an extension of their other injuries.
A near missed, a person very close to the incident who was almost injured will generally be regarded as a primary victim
Classifying victims: what is a secondary victim?
A secondary victim is someone that is not directly affected by the incident and does not reasonably fear for their own safety as a result of the incident. Secondary victims have additional criteria to satisfy in order to establish a duty
Classifying victims: what is a rescuer?
A rescuer may be regarded as a primary or secondary victim depending upon whether they were placed in physical danger at the time of conducting their rescue efforts. If a rescuer is in danger and reasonably fears for their own safety they are a primary victim. If when conducting or assisting in the rescue efforts the claimant takes a minor role away from the danger the claimant will be treated as a secondary victim
Classifying victims: which case supports a rescuer being a primary victim?
Chadwick v British Rail. Held: the claim was successful, he was regarded as a primary victim as it was foreseeable that he would suffer some form of harm in his forms of assistance
Classifying victims: what will a by stander or a witness be regarded as? Which case supports this?
A by stander or witness will be regarded as a secondary victim as they themselves are not in physical danger.
McFarlane v EE Caledonia. Held: the ship had not got into close proximity with the disaster, nor was the claimant in anyway connected to the victims, so he was regarded as a secondary victim and his claim failed
The alternative duty tests for secondary victims: which case held the situations where a claim can be made?
McLoughlin v O’Brian. Held:
- A claim could be made by someone who had close ties of love and affection with a victim of the accident
- The shock could be suffered either at the scene of the accident or within its immediate aftermath
Which case established a three part test that must be satisfied in order for a duty of care to be owed for a secondary victim? What are the three parts?
Alcock v Chief Constable of South Yorkshire.
- The claimant must have close ties of love and affection with the victim. This can include blood, relationships and close friends.
- The claimant suffered injuries at the scene or in its immediate aftermath.
- The claimant suffered the shock through their own unaided senses.
A person must suffer the psychiatric harm at the incident or in its immediate aftermath. Although in some cases courts have demonstrated some leniency. Which case shows that?
North Glamorgan NHST v Walters. A mother was in hospital with her baby and awoke to her baby having a seizure. The hospital told her that the condition was treatable and the baby was transferred to another hospital. Upon arrival she was told that her baby was in life support and had brain damage, the baby died 36 hours after the seizure. The court allowed her claim against the hospital for psychiatric harm following the 36 hours of distress.
What is the threshold test? Which case clarified this?
Page v Smith.
The court took the opportunity to clarify that in relation to secondary victims it must be proved that the psychiatric harm was foreseeable. This is known as the threshold test and it must be proved that an ordinary person of reasonable fortitude would also have suffered psychiatric harm in the circumstances.
