Tort Law - Psychiatric Injury Flashcards
White v Chief constable of South Yorkshire Police general
Hillsborough police officers
How do L&O suggest we should explain W v Essex CC so it fits under White?
Emphasis on C’s breach of duty instead
Name at least two cases showing application of unwitting agents of misfortune test
Dooley v Cammell; Hunter v British Coal; W v Essex County Council
What case seemed to suggest unwitting agents of misfortune are not primary victims?
Hunter v British Coal
What judge in McLoughlin gave a policy argument against recognising DoC in psychiatric injury widely, and what was it?
Wide definition of shock would need to be limited by proximity of relationship, perception and time and space, and possibility of ‘proliferation of claims’ if not narrowed
What did Lord Bridge say of the relationship requirement in McLoughlin by majority?
Imposes a ‘largely arbitrary limit of liability’
Hunter v British Coal general
Hydrant, only reacted to what he was told
Calvert v William Hill Credit recognised PI
Addiction
Young v Charles Church judgment
Court seemed to solely ask C to prove they were within the zone, irrespective of awareness, or injury as a result of his awareness
Melville v Home Office judgment
Extended occupational stress claims to shock, removing proximity of relationship requirement needed if claiming as a secondary victim
Re Creutzfeldt-Jakobs Disease Litigation general
Growth home, dwarves as children
Mitchell criticising PI
Builds on gender stereotype argument - Phillimore J in White ascertains ‘reasonable’ through gender stereotypes
What case drew a very fine line between it and Alcock?
Galli-Atkinson v Seghal
What judge said that the court in Page v Smith misunderstood the eggshell skull rule, departed from The Wagon Mound and on no previous authority?
Lord Goff in White v Chief Constable
Name two cases which seek to show application of a wider principle of assumption of responsibility?
Farrell v Merton; Sion v Hampstead Health Authority
McFarlane v Caledonia on definition
Court already dealt with definition of rescuers without much of an issue
What argument did the Law Commission find most persuasive for a restrictive approach?
floodates argument of a proliferation of claims from one event, or a mass from many events
Alcock on proximity of perception
Need to see event with your own unaided senses
Who thought it was better to explain employee/employer, prisoner/prison authority cases by ‘breach of relationship’?
Handford
Mullany on liability for communicating distressing news
If you can claim for economic loss caused by negligent misstatement, why not psychiatric injury?
Counselling services are not a panacea to relieve DoC always
Daw v Intel Corporation
Vernon v Bosley
Shock need not be the sole cause, just a cause of psychiatric injury
Was Lord Bridge in McLoughlin in the majority or the minority?
Minority
AB v Tameside, per Brooke LJ
NO AUTHORITY, but intimated any duty found to exist might not be a generalised feature of tort but specific on pre-existing patient/health authority relationship
What did Handford say of cases like employee/employer, prisoner/prison authority cases?
Better to explain them by ‘breach of relationship’ rather than primary/secondary framework - D owed obligation by virtue of a prior relationship
Why did G reject the Law Commission’s recommendations?
Statutory list could allow undesirable claims, reliance solely on relationship test would increase insurance premiums and shock helps with insurers’ evidentiary needs
Abduction, nightmares, psychiatric patient
Palmer v Tees Health Authority
What case found parents were primary victims due to a lack of a primary victim LEGALLY?
In re Organ Retention
Foreseeability generally insulates employer as many hide stress for fear of appearing unable to cope
Pratley v Surrey CC
McCarthy v Chief Constable of South Yorkshire Police
Proved close tie with deceased half-brother
In re Organ Retention Group Litigation general
Babies without insides
McLoughlin v O’Brian general
Road accident of husband and children
W v Essex County Council judgment
HoL declined strike out on the basis that the parents were only told
Mulheron on PI
Insistence on recognised PI is unjustified; should be a lower threshold of ‘grievous mental harm’
Bexson v Lee
100 yard to unconscious body of son allowed
Father two-week vigil
Sion v Hampstead Health Authority
White v CC of South Yorkshire Police judgment
HoL limited Alcock primary victim test to those within the foreseeable zone of danger, or who believed themselves o be within it
What in particular showed the HoL in White v CC were wary of developing primary victim too broadly?
Steyn’s heading ‘thus far and no further’ - leave it to the legislature
What do L&O find problematic about Bingham LJ’s judgment in Sion?
Shock should extend to primary victim
Why was the judgment in Greatorex v Greatorex uncommon?
Followed German law
What case supports Melville v Home Office?
Harman v South Essex Mental Health
Palmer v Tees Health Authority judgment
CoA struck out the claim as it was immaterial that the Mother’s nightmares and fears had been confirmed - did not mean she perceived the event
What did Lord Bridge say of foreseeability in McLoughlin?
Not a crushing burden as D is already guilty of harm
In what case did the court, in considering shock, look at how C subjectively perceived the event?
North Glamorgan NHS Trust v Walters
What judge described shock as a Sudden appreciation of a horrifying event by sight or sound which violently agitates the mind?
Lord Atner
Young v Charles Church general
Fatal electrocution of workmate
What did the Law Commission Report on Psychiatric Illness say of the distinction between primary and secondary victims?
More of a ‘hindrance than a help’
Grieves v FT Everard general
Asbestos pleural placques - No claim for injury in negligence, but developed a PI due to worry of cancer
What case suggests the court may not even require reasonable fear on the behalf of C at all - just whether they were within the zone?
Young v Charles Church
ME
Page v Smith
Greatorex v Greatorex judgment
No claim because would interfere with right to self-determination, and witnessing the suffering of others is part of family life
Page v Smith on foreseeability
Primary victim only needs to prove a TYPE of injury was reasonably foreseeable
Galli-Atkinson v Seghal judgment
Immediacy requirement extended to morgue visit - very fine line between this case and Alcock
What case declined to rule Page v Smith was wrongly decided?
Grieves v FT Everard
Butchart v Home Office judgment
Analogous relationship to employers and employees to find Doc
What judge and in what case called the relationship requirement a ‘largely arbitrary limit of liability’?
Lord Bridge in McLoughlin v O’Brian
what case showed shock need not be the sole cause, just a cause?
Vernon v Bosley
What case preferred the Page test as being ‘much simpler’?
Corr v IBC
Hegarty v EE Caledonia
Per Brooke LJ, reasonable fear is only ‘one part of the test’
Hambrook v Stokes Bros general
Runaway driverless lorry
Melville v Home Office general
Health care officer, 8 suicides
Barber v Somerset CC
No breach of DoC by requiring employee to carry out contractually agreed amount of work
What judge and in what case highlighted that reasonable fear is only ‘one part of the test’ for DoC in PI?
Brooke LJ in Hegarty v EE Caledonia
What does the case of Grieves v FT Everard not rule out?’
‘Fear of the future’ cases
What case showed that reasonable fear by C alone is insufficient?
McFarlane v EE Caledonia
W v Essex County Council general
Abusive foster child
What did Todd say of psychiatric injury area of law?
‘Dreadful mess’
What were the two underlying issues in the early 20th century leading to scepticism of psychiatric injury claims?
Not clear if it had an underlying physical cause, and seen as a woman’s illness
What does Handford argue about the tests for psychiatric and physical injury?
Should be equated - no to floodgate argument as RF is still a ‘considerable hurdle to surmount’
Hatton v Sutherland general
Test case for legal duty and reasonable foreseeability in employers
What did the court find immaterial in Melville v Home Office?
That it was a case involving day-to-day work rather than one event
When was the impact of Donoghue felt in the area of psychiatric injury, and in what case?
1983 in McLoughlin v O’Brian
W v Essex County Council judgment
No proximity, so not secondary, but parents could claim as primary victims
North Glamorgan NHS Trust v Walters general
Coma and transfer of baby
McFarlane v EE Caledonia judgment on reasonable fear
Even if C’s reaction was reasonable, D still needs to have had actual or imputed foresight that C might be imperilled or reasonably believe he was
What case shows there would likely be no issue working out an appropriate definition of ‘rescuer’ under Lord Oliver’s Alcock test, despite Hoffman in White?
McFarlane v Caledonia
If Melville is consistent with White, on what basis must this be?
Basis of breach of DoC in not offering counselling, not suicide itself
What five things did the Law Commission recommend in their Report on Psychiatric Injury?
No proximity need if PI is RF; abandon ‘shock’; self-endangerment should not be an absolute bar; legislation should not touch cases where C only reasonably believes a loved one is hurt; statute of fixed relationships of love and affection
What part of secondary victim test is Bexson v Lee authority for?
Proximity in time and space
What did Lord Wilberforce say of foreseeability in McLoughlin?
It is insufficient
What did Kennedy J say in Dulieu v White?
Doubted if public policy ALONE could justify excluding nervous shock claims
What did Lord Bridge say of the flood gates argument by Wilberforce in McLoughlin?
Over-exaggerated
No breach of DoC by requiring employee to carry out contractually agreed amount of work
Barber v Somerset CC
What absurdity did Atkin LJ highlight in Hambrook v Stokes Bros?
Mother can claim for fearing her own life, but not the life of her children
Johnston v Unisys
Exclusive jurisdiction of employment tribunals so no DoC to dismissed employee’s mental health
Grieves v FT Everard judgment
Page did not apply as not an immediate risk and illness was not a foreseeable consequence
Re Creutzfeldt-Jakobs Disease Litigation judgment
Not immediate risk so Page didn’t apply, but narrower bases of DoC by analogous relationship to doctor and patient
Butchart v Home Office general
Witness to cellmate suicide
Harman v South Essex Mental Health judgment
No need for close tie as not claiming as a secondary victim
what judge and in what case did the HoL follow in Grieves v FT Everard to determine reasonable foreseeability of employer?
Hale in Hatton v Sutherland
What case shows the courts having regard to psychiatric expert opinion in order to determine if addiction is a PI?
Calvert v William Hill Credit
Palmer v Tees Health Authority general
Abduction, psychiatric patient, murder 4
What case suggested that unwitting agents of misfortune ARE primary victims?
W v Essex CC
What did Lord Goff say of Page v Smith in White v Chief Constable?
Misunderstood eggshell skull rule, departure from The Wagon Mound and no previous authority
Hatton v Sutherland on shock
Court should try to separate negligence from other causes of C’s condition when assessing damages
What did Lord Walker say of LJ Hale’s judgment in Hatton?
‘Nothing like statutory force’ and every case is fact dependent
Greatorex v Greatorex general
Son crash, Father fireman
How do L&O think W v Essex CC should be better argued?
Local authority assumed responsibility rather than diluting perception requirement
What did the Law Commission Report say on self-determination?
Give effect to it, but carelessness gives a strong argument for allowing a claim to interfere with self-determination
Donachie v Chief Constable of Greater Manchester judgment
Found DoC as reasonably foreseeable
What did Sir Richard Couch in Victorian Railway Commissioners v Coultas say?
Fear of ‘imaginary claims’ and causation issues in psychiatric injury claims
What case made it significantly easier for primary victims to claim?
Page v Smith
What judge highlighted an issue with the definition of a ‘rescuer’ in White?
Lord Hoffman
How does Stapleton refer to psychiatric injury?
Part of the law which has the ‘silliest of rules’
What judge and what case did the HoL follow in Alcock?
Wilberforce in McLoughlin
How do we know the judiciary accept psychiatric injury area of law is unsatisfactory?
Lord Hoffman in White said the search for principle had been ‘called off’
Dulieu v White relevance
Was nervous shock then, but would it be considered psychiatric injury NOW , because the result was a miscarriage
Who gave a gender-based historical explanation for slow development in PI?
Chanellas and Kerber
Sion v Hampstead Health Authority general
Father two-week vigil
What judge in White v CC made reference to distributive justice, and what was his argument?
Lord Hoffman - if rejected DoC in Alcock, how could they allow White?
what does the case of In re Organ Retention show?
White’s primary victims test is not definitive, and category of primary victims is never closed
What did the court highlight in particular in McLoughlin in order to find a DoC?
Speediness of getting to hospital and their state when she got there
W v Essex County Council general
Abusive foster child
What case said aftermath extends both temporally and spatially forward from an accident?
McLoughlin v O’Brian
Why did Handford not believe floodgates argument is test for physical and psychiatric injury were to be equated?
Reasonable foreseeability is still a ‘considerable hurdle to surmount’
Corr v IBC
Page is a ‘much simpler test’ even if occasionally it leads to damages for an unforeseeable injury
Which academic highlights psychiatric injury can actually last longer and be more debilitating than physical injury?
Handford
Alcock v Chief Constable of South Yorkshire general
Hillsborough - various groups
Grief, distress, anxiety or shock are insufficient
White v Chief Constable of South Yorks Police
Alcock on proximity of relationship
Narrower rebuttable presumption of ‘close tie’ by excluding siblings
What did a bare majority in McLoughlin find?
Atkin’s DoC test did not apply - psychiatric injury requires special, narrower and more limited rules
Which academic advocates wiping out recovery for nervous shock as liability for PI is too expansive?
Stapleton
What were the two examples of those involved ‘mediately’ given by Lord Oliver in Alcock?
Rescuers and ‘unwitting agents of misfortune’
What judge and in what case said that the search for principle had been ‘called off’ in the case of psychiatric injury cases?
Lord Hoffman in wHITE
What case shows the change in name has had an effect on the nature of the claim?
dulieu v White
What case gave a general DoC definition?
Donoghue v Stevenson
Stapleton criticism on psychiatric injury
Wipe out recovery for nervous shock as liability for PI is too expansive
Why did the courts prefer the name PI to nervous shock?
Shock, they believed, trivialised the significance of the illness
What judge in what case doubted if public policy alone could justify excluding nervous shock claims?
Kennedy J in Dulieu v White
What judge and in what case gave two examples of those involved ‘mediately’ as primary victims?
Lord Oliver in Alcock
Dzioban and Tettenborn on AB v Tameside
Duty would have restricted effect on speech and news reporting, so there should be no general feature in tort law of liability for communicating distressing news
In what case did the court decide a court should attempt to separate negligence from other causes of C’s condition when assessing damages?
Hatton v Sutherland
In which case did the HoL decline a strike out on the basis that proximity of perception was not fulfilled due to only being told?
W v Essex County Council
In re Organ Retention Group Litigation judgment
Parents were primary victims because babies had no distinct legal personality - parents analogous to patients
On what basis was a DoC found in Re Creutzfeldt-Jakobs Disease Litigation
Analogous relationship to doctor and patient
Sion v Hampstead Health Authority judgment
Not a single, shocking event
North Glamorgan NHS Trust v Walters judgment
CoA looked at how C subjectively perceived the event - as one long, shocking event
what case is hard to fit with White under unwitting agents of misfortune?
W v Essex County Council
What was the issue with the courts changing the name from nervous shock to PI?
Changed the nature of the claim, focusing on the result as opposed to the cause
What HC of Australia case stated no DoC owed by bearer of bad news to recipient?
Tame v NSW
Farrell v Merton
No need for mother to direct perceive disability at time of delivery of the disabled child as a result of negligence in ante-natal care
Alcock v Chief Constable of south Yorkshire judgment
HoL set down PI DoC requirements, following Wilberforce in McLoughlin
How was a primary victim described in Alcock?
Those involved ‘mediately or immediately’ in the accident
Dulieu v White general
Pub, pregnant woman, miscarriage
Alcock on proximity in time and space
Those going to the morgue knew what happened and significant time lapse
What academic highlighted that Phillimore J in White ascertained ‘reasonable’ through gender stereotypes?
Mitchell
Exclusive jurisdiction of employment tribunals so no DoC to dismissed employee’s mental health
Johnston v Unisys
Dooley v Cammell
crane dropped load, aggravated neurasthenia
Who gave a powerful dissenting speech in White?
Lord Goff
Hunter v British Coal judgment
proximity of time and space still applies to unwitting agents of misfortune, so maybe not primary
Hatton v Sutherland judgment
Employer can assume employee is mentally stable enough for job, and foreseeability of STRESS is insufficient
What did the court in W v Essex CC explicitly refuse to do?
Remove the category of unwitting agents of misfortune
Lord Atner on shock
Sudden appreciation of a horrifying event by sight or sound which violently agitates the mind
What did both the CoA and HoL in Hatton highlight?
No profession is more foreseeable to cause PI than another
What case showed a claim for PI cannot interfere with self-determination?
Greatorex v Greatorex
Hambrook v Stoke Bros on proximity of perception
Still fulfilled even though out of sight and round the corner as she saw the lorry go in that direction
AB v Tameside general
HIV doctor, by letter
daw v Intel Corporation
Counselling services are not a panacea to relieve DoC always
What case revised the primary victim description from Alcock?
White v Chief Constable of South Yorkshire Police
What was set down in Alcock?
HoL set down PI DoC
What case looked at whether addiction was a PI?
Calvert v William Hill Credit
Tame v New South Wales
No DoC owed by bearer of bad news to the recipient - HIGH COURT OF AUSTRALIA
What did Lord Goff say of the primary victim test in White?
Draws arbitrary lines - rescuer to one part of train can claim but not the other, and allows them to claim even if they didn’t know they were in danger
What case showed a primary victim only needs to show a type of injury was reasonably foreseeable?
Page v Smith
Who said psychiatric injury is a part of the law with the ‘silliest of rules’?
Stapleton
Calvert v William Hill Credit judgment
1st instance judgment looking at whether addiction was a PI by making use of psychiatric experts and the DSM
Pratley v Surrey County Council
Foreseeability generally insulates employer as many hide stress for fear of appearing unable to cope
Foreseeability of what was insufficient for DoC in Hatton?
Foreseeability of stress
Page v Smith recognised PI
ME
Sion v Hampstead Health Authority on wider principle of assumption of responsibility
Duty may apply to Father, but not in that case
McFarlane v EE Caledonia on proximity of relationship
Rejected liability to mere bystanders given the subjective nature of ‘horrific events’
What do L&O, despite uncertainty, allow about Bingham LJ’s dicta in Sion?
Case law does show no need for shock in certain primary victim cases where D has assumed responsibility for C’s mental health
McLoughlin v O’Brian on proximity in time and space
Aftermath extends both temporally and spatially forward (i.e. to the hospital)
Grieves v FT Everard on stress-related illness through fear of physical illness
HoL followed Hale in Hatton - employer couldn’t reasonably have known reaction years after employment
Hartman v South Essex Mental Health general
Prison officer, suicide, no counselling
Sion v Hampstead Health Authority, per Bingham LJ
Shock requirement does not extend to primary victim
What academics argue against liability for communicating distressing news as it would restrict speech and news reporting?
Dzioban and Tettenborn
Galli-Atkinson v Seghal general
Dance lesson, killed
Donachie v Chief Constable of Greater Manchester general
Police, tagging car, 9
Chanellas and Kerber
Gender-based historical explanation for slow development - alignment of claims and illness with ‘feminine’ attributes
What case rejected liability to mere bystanders given the subjective nature of ‘horrific events’?
McFarlane v EE Caledonia
What did Lady Justice Hal say of foreseeability in Hatton v Sutherland?
It was enough to establish a DoC
What is the principle of assumption of responsibility used for?
To rationalise occupational stress cases - supported by Handford
White v Chief Constable of South Yorks Police recognised PI
Grief, distress, anxiety or shock are insufficient
