Unit 3 Flashcards

1
Q

What is consequential psychiatric harm?

A

Any mental harm which follows directly from a physical injury. This will be included in their compensation for their physical injury.

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2
Q

What is pure psychiatric harm?

A

Harm that is caused to the claimant without any physical impact or injury.

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3
Q

What are the requirements for recovering under pure psychiatric harm?

A
  1. Injury must be a medically recognised condition or psychiatric illness.
  2. Psychiatric damage must have been caused by a sudden event or a sudden shock, or a shock induced physical condition
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4
Q

Does distress and simple anxiety, grief or fright count as a medically recognised condition which can be recovered for?

A

No.

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5
Q

Can pure psychiatric harm be recovered for where there is a gradual build-up of events?

A

No.

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6
Q

Who are the 2 types of victims in pyschiatric harm?

A
  1. Primary
  2. Secondary
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7
Q

What is a primary victim?

A

A person who suffers psychiatric injury as a result of being DIRECTLY involved in the incident.

– They must have been in danger, or reasonably believed they were in danger.

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8
Q

What is a secondary victim?

A

A person who suffers psychiatric harm as a result of seeing or hearing about something that has happened to someone else (e.g., witnessesing a car crash as opposed to being in it)

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9
Q

What are the 5 Alcock control mechanisms needed to be satisfied for secondary victims to recover?

A

1) Foreseeability of psychiatric harm

2) Sufficient relationship between claimant and victim

3) Proximity in time and space

4) Perception of events with claimant’s unaided senses;

5) Suddent assualt on the nervous system

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10
Q

What is the test for 1) foreseeability of psychiatric harm?

A

It must have been reasonably foreseeable that a person of “normal fortitude” would suffer from psychiatric harm.

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11
Q

If someone of normal fortitude would have suffered some psychiatric injury, how much can the claimant claim?

A

Claimant can recover the full extent of her psychiatric injury, even if they have a pre-existing condition.

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12
Q

Are siblings included in the Alcock condition for relationship between claimant and victim?

A

No.

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13
Q

What is required for there to be a sufficient relationship between the claimant and victim?

A

A close tie of love and affection.

– Rebuttable presumption of this between parents/children and spouse/partner.

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14
Q

For proximity under Alock, what is required?

A

Claimant must have witnessed the incident itself or its immediate aftermath.

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15
Q

Under Alcock, does witnessing events via a TV or radio broadcast suffice for perception of events?

A

No.

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16
Q

What is required for perception of events?

A

Claimant must have percieved the incident with their own, unaided senses.

17
Q

Can a sequence of events over a 36-hour period constitute a single, sudden event?

A

Yes.

18
Q

Does watching a child die over 2 weeks constitute a sudden event?

A

No.

19
Q

Can rescuers be primary victims?

A

Yes.

20
Q

What is consequential economic loss?

A

Financial loss that is a direct result of personal injury or property damage caused in negligence.

21
Q

Is there a duty to not ccause consequential economic loss?

A

Yes. The full amount of consequential economic loss is recoverable.

22
Q

What is pure economic loss?

A

Financial loss as a result of the negligent act of another party which is not accompanied by any damage to a person or property.

23
Q

What is the general rule for pure economic losses?

A

Not recoverable.

24
Q

What is the rule for economic loss from defective goods or a defective item of property?

A

Any loss as a result of acquiring a defective item of property is pure economic loss and is not recoverable.

25
Q

If a defective good causes personal injury/damage to property is this recoverable?

A

Yes. This is consequential economic loss.

The damage to the defective good itself is not recoverable as this is pure economic loss.

26
Q

What are the two forms of ‘unconnected economic loss’?

A
  1. Economic loss caused by damage to the property of a third party – Pure economic loss.
  2. Economic loss caused where there is no personal injury or physical damage to property. – Subdivided into two further kinds of losses (a) negligent actions (b) negligent statements
27
Q

What is the test for a duty to arise under negligent misstatement?

A

Heller test:

1) A special relationship between claimant and defendant

2) Assumption of responsbility by defendant; and

3) Reasonable reliance placed by the claimant on the defendant’s statement.

28
Q

For a special relationship to exist under a negligent mistatement what must the claimant establish?

A

Claimant must establish that the defendant:

a) communicated the statement to the claimant ;

b) made the statement in relation to a particular transaction; and

c) knew that the claimant was likely to rely on the statement

29
Q

Are special relationships more likely to arise in a business context for misstatement?

A

Yes.

30
Q

Is it possible for a friend to make a negligent misstatement?

A

Yes. If they presume expertise which transforms the social interation into a business interaction.

31
Q

What will the court ask to inquire if there was an assumption of responsibility for the statement?

A

Did the adviser know the purpose for which the advice was required?

Did the adviser know that the advice would be communicated to the advisee (either specifically or as a member of an ascertainable class)?

Did the adviser know that the advisee was likely to act on the advice without independent inquiry?

Was the advice acted on by the advisee to its detriment?

32
Q

Does the mere knowledge on part of the defendant that someone may rely on their statement imply assumption of responsibility?

A

No.

33
Q

Do businesses assume responsibility to take care in providing references?

A

Yes. They owe this duty.

34
Q

White v Jones

A
  • Lawyer failed to draw up a will favourable to the client before the testator died, causing the claimant (third party) to be disinherited. Court held the lawyer had assumed a responsibility for the disinherited third party.

Liable under negligent misstatement.

35
Q

To satisfy ‘reasonable reliance’ part of heller test, what is required?

A

Claimant must demonstrate they relied on the statement and, that the reliance was reasonable.

36
Q

Does the statement need to play a real and substantial part in inducing the claimant to agree to the deal?

A

Yes.

37
Q

What is cumulative causation?

A

Cumulative causaition of fact is where the defendant’s actions materially contributed to the claimant’s damage.