Tort - Psychiatic Harm Flashcards
What is it the leading case on primary victims? Three points of law.
Page v smith
D always owes a DoC to a primary victim. Primary V is someone who suffers psychiatric harm after being directly involved in an accident, provided some form of PHYSICAL harm was reasonably foreseeable. (The psychiatric harm doesn’t need to have been foreseeable).
This case established the egg-shell personality rule.
So you don’t actually need the v to have suffered physical harm, but physical harm does have to have been reasonably foreseeable in the context of the accident.
What must you have in order to be able to claim for psychiatric damage? Case?
What else did this case establish?
A recognisable psychiatric illness. Shock is not enough (nervous shock is a legal, not medical, term!)
White 1999
Rescuers may also be classed as primary Vs (so there is no such thing as a separate category of rescuers). If they’re not primary Vs then have to assess if they fulfil the Alcock criteria for becoming secondary Vs.
Bystanders can’t claim (probably wrong on this point, see Alcock)
Police can’t claim just because an event like Hillsborough is outside the scope of normal police work. If the families can’t claim then neither can the police.
Lord Hoffmann: reasons of fairness and policy preclude the police from claiming in such a circumstance.
What did Lord Steyn say in White?
Rescuers are primary Vs if they exposed themselves to physical danger or reasonably believed they were doing so
Have to establish that the psychiatric condition was CAUSED by the perception of personal danger.
He also said rescuers couldn’t claim but he was probably wrong on this point (see Alcock)
What did Lord Hoffmann say in White?
What did the decision in White indicate in terms of the approach to psychiatric harm cases?
There is no scope for incremental development in this area of the law (in relation to rescuers)
Said police can’t claim (a trying to claim since Hillsborough outside normal police work) for reasons of fairness (families couldn’t claim so they shouldn’t be able to either) and policy (floodgates).
The judgment in White indicates a restrictive approach to rescuers and bystanders.
Hoffmann left the door open to “unwilling participants” where they reasonably believe they are responsible for the deaths of others and fear for their own life.
What is the difference between a primary and a secondary victim, as outlined in Alcock?
Primary Vs = those who were directly exposed to physical danger
Secondary Vs = a V who is more than the passing and unwilling witness of injury to another and so not directly involved.
What were the four control mechanisms laid down in Alcock? Why were they laid down?
They were laid down to stem the flow of claims arising out of the Hillsborough disaster.
A. Dearness (spouses and partner-child presumed, however everyone else must adduce evidence to prove their dearness. No Brian Harrison’s claim - brother - was rejected)
B. Nearness - proximity - identifying a body some 8/9 hours later was not near enough.
C and D. Hereness.
The means of perception (Ackner and Oliver allowed the idea that I’ve TV may give rise to a claim where the V was recognisable and real-time).
The manner of perception
Lord Ackner allowed the possibility that an unrelated bystander (no dearness) may claim if the event was “particularly horrifying”. The exams,e given was a petroleum tanker exploding into a school in session.
In which case was a woman’s family involved in a crash? Was her claim for psychiatric harm successful?
What is the relationship between this case and Alcock?
What are the critiscisms of the case?
McLoughlin v O’Brien
Here she witnessed them BEFORE they had been cleaned up, so there was proximity. Sufficiently close in TIME and SPACE.
Said there has to be a positive psychiatric illness.
Tension between lords Wilberforce and Lord Bridge.
Lord Wilberorce laid out criteria that would later become the control mechanisms in Alcock.
Bridge focused on foreseeability of psychiatric harm (so he was treating psychiatric harm like physical harm). Lord Wilberforce prevailed.
Criticisms: promotes ambulance-chasing (I.e. To get to scene/hospital while still sufficiently gruesome)
In which case was the event not sufficiently horrific? Was the person a bystander or a rescuer?
McFarlane
Oil rig explosion. Person was a bystander.
Court said the event wasn’t sufficiently horrifying (even though he saw people on fire and saw them trying to escape)
Harsh decision. Who’s to say what is more horrific?
In which case did the C not actually see the bike crash, but heard it and saw blood? What was the point of law in this case?
Bourhill v Young
C was trying to sue the estate of the person who died. Failed. No duty of care between her and the motorcyclist.
What must c witness in order to be able to claim?
The event or its immediate aftermath.
Taylor v A Novo
The C didn’t witness her mother’s accident, but witnessed her mothers death as a result of the accident three weeks later.
In which case was it said that the “immediate aftermath” should be determined on the facts in each case?
W v Essex
Can’t draw a general line in the sand
Which case would you use as the authority for the fact that the means of perception of the accident/it’s immediate aftermath must be through sight or hearing?
Hambrook v Stokes Bros
Didn’t see the lorry hit her children, but could see it was about to. Then saw immediate aftermath of the accident, so the claim was successful.
Which case would you use as the authority for the manner of perception point?
What must the psychiatric illness have been caused by?
Liverpool Women’s Hospital v Ronanyne 2015
The psychiatric illness must have been caused by a specific shocking event, and not a chain of events.
Needs to be a singular, exceptional or horrifying event.
In this case wife went into hospital for surgery, surgery went wrong. Husband was prepared for sight of her so wasn’t deemed shocking enough for him to be able to claim for psychiatric damage.
Which case was about the Wembley Stadium disaster?
What was the point of law?
Monk v Harringon 2008
C heard accident in radio and rushed to help.
There was no claim either as a rescuer or an unwilling participant since he was never in fear of his own life and it wasn’t reasonably foreseeable that he would blame himself for the events. He came to it voluntarily and post-accident.
What are the four policy reasons for the limitation of claims in psychiatric harm cases?
Lord Steyn in White:
1. Cost and time
Have to consult psychiatrists on both sides. There would be implications for the administration of justice if more claims were allowed.
2. Litigation can be an (unconscious) disincentive to rehabilitation
3. Floodgates argument
4. Liability on defendants may potentially become disproportionate to the tortious conduct due to the number of claims which would be allowed to be brought. E.g. A car accident - one momentary lapse of concentration and a whole group of witnesses would be able to claim.
