Week 20: Part IV Special Cases - Negliegnce II Flashcards
Bourhill v Young [1943]
Defines the scope (proximity). Established that road users don’t owe a duty of care to everyone, but only those considered to be their neighbour, or those directly impacted by the consequences of their actions.
Walker v Northumberland City Council 1995
Management refused to reduce workload, resulting in a nervous breakdown, and when the victim returned to work, suffered another nervous breakdown, posing the question was the damage reasonably foreseeable.
Who is considered a primary victim?
A person who whom the duty of care is owed – they are within the scope of the negligent act, they may themselves have been physically harmed
What is the necessary requirement to be considered a primary victim?
In order to claim as a primary victim, it must be shown that the injured person ‘participated’ in the event
See Dooley v Cammell Laird and Co Ltd [1951]
Who is considered a secondary victim?
Has suffered shock from fear for another person – still foreseeable and within the scope of the negligent act, but could not have been harmed themselves (i.e. outside potential physical harm)
What is the necessary requirement to the recover damages as a secondary victim?
- Injury must have been foreseeable, and the victim in question must be within the scope of the incident (proximity).
- Not all bystanders can claim.
Simpson v ICI 1983
- It is not enough for the purposes in each case to show simply that they for a fright sand suffered an emotional reaction, if no visible disability or provable illness or injury followed – Lord Robertson
- What does this tell us? Harm must be recognisable psychiatric condition
- Pursuer did not suffer any recognised condition. There was not provable illness/injury
Page v Smith [1996]
A reaction to an immediate and horrifying impact, resulting in some recognisable psychiatric illness. There must be some serious medical disturbances outside the range of normal human experience -Lord Keith
- Medical condition (ME) was reactivated after a minor road traffic accident
- The House of Lords held that the claim for compensation should succeed, on the basis that if they had suffered any physical injury at all (which in this case they had not) they would be entitled to damages
- Personal injury will therefore include psychiatric harm
- It is enough to establish that physical injury was reasonably foreseeable
- You don’t need to additionally establish psychiatric injury
Dulieu v R White and Sons [1901]
- Pregnant woman suffered severe shock when a horse van was negligently driven into a bar where she worked – as a result the baby was born prematurely
- Court allowed recovery of damages
- Women worked in a pub, horse drawn carriage smashed through the wall, she prematurely gave birth to her baby, carriage driver had allowed someone not qualified to drive.
Hambrook v Stokes [1925]
- Can a claim be made for fear for the safety of children?
- A distinction was drawn between shock caused by what the mother saw ’with her own eyes’ and what she had been told by bystanders, wherein liability would be excluded
- The claim succeeded
- Lorry left without the hand break on, at the top of the hill. Women left her children at the bottom of the hill. She turned around, child hit, she dies from shock. Highlights that damages are recoverable for another.
McLoughlin v O’Brian [1983]
- The House of Lords allowed the claim and reviewed the law to avoid ‘arbitrary lines’
- Not physically present at the scene – can fear for another be claimed?
- Court considered the necessary degree of proximity
- Set out tests to restrict liability – judicial safety valve
- Class of persons, close in time and space, how the shock was sustained
- Women’s family was injured in an accident. M was not at the scene and not informed until afterward. Taken to hospital and seen her family. Psychiatric injury.
- Must be connected through sight/sound of the incident.
What was the tests established in Alcock et al v Chief Constable South Yorkshire [1992] 1 AC 310 to determine whether a secondary victim is entitled to damages.
- Close tie of love and affection (between the secondary and primary victims)
- Presence at the event or the immediate aftermath
- Direct perception
What is meant by direct perception?
““Shock.” in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system.” (at 401)
Sudden appreciation by sight or sound of a horrifying event.
Robertson v Forth Road Bridge Joint Board 1995 SC 364
- Robertson and colleague had spent nearly all of their working lives together, and went for a drink together once a week
- A large piece of metal sheeting was being moved in the back of a van, when the wind picked up and Robertson’s colleague was blown over the side of the bridge
- Sudden tragic loss of a work colleague – unsuccessful, why?
- No tie of love and affection
Young v McVean [2015] CSIH 70
- Young passed the scene of a car accident, seeing the badly damaged car, therefore witnessing the immediate aftermath
- Young was later informed that their son had been killed by the driver of the wrecked car – unsuccessful, why?
- Had it been her son’s car she would have a sudden/direct appreciation of the incident
Wilkinson v Downton [1897] 2 QB 57
- Falsely told Wilkinson that their husband had had a serious accident – it was intended that this be believed – held liable for shock and medical expenses
Re (a minor) v Calderdale & Huddersfield NHS Foundation Trust [2017] EWHC 284 (QB)
- Concerned a mother and grandmother who allegedly both had suffered PTSD after the mother experiences and the grandmother witnessed the traumatic delivery of the mother’s child
- The infant suffered brain injury during the protracted birth
- The grandmother was present and witnessed the birth – does this satisfy Alcock?
- Yes. Met the criteria.
Liverpool Women’s Hospital v Ronayne [2015]
- Husband who witnessed his wife suffer complications over a 36-hour period as a result of negligently performed hysterectomy
- This was deemed not to satisfy the Alcock criteria – why?
- Where as in Calderdale & Huddersfield a botched birth is easy to see, complications arising from a botched hysterctomy isnt identifiable to the someone not trained in medicine - therefore he didnt have a sufficient perception of the negligent act.
Paull and another (appellants) v Royal Wolverhampton NHS Trust (Respondent)
[2024] UKSC 1
- Can an individual make a claim for the psychiatric injury caused by witnesses the death or other horrifying event of a close relative as a result off earlier clinical negligence
- An appeal conjoining three cases, all deaths argued to be caused by negligence
- Two children present when their father suddenly passed from cardiac arrest
- Tested and discharged, should have been tested differently
- Parents witnessed their child’s death from lung disease they argued ought to have been diagnosed and treated earlier
- History of strange incidents, misdiagnoses of exhaustion.
- A parent who found their child deceased from undiagnosed pneumonia
- Had been 3 days before to the GP, difficulty walking, difficulty breathing, sent her home on anti-depressants and antibiotics.
- Judge refused to radically depart from the settled law, therefore considering the third criteria had not been met, therefore the damages could not be recovered.
- The negligent event was determined to be the misdiagnosis as opposed to be the death of the primary victim in these cases
Attia v British Gas Plc [1988]
- Attia engaged British gas to install central heating in their home and returned to find their loft on fire resulting in the house and its content becoming extensive damaged – the fire had been caused by the defender’s negligent installation of the central heating
- Attia claimed for the nervous shock sustained after seeing this damage
- It was held by the court of appeal that Attia could recover if they could prove that rhe harm suffered was reasonably foreseeable
Can you recover psychiatric damages for the loss of property?
Yes, if the damages were reasonably foreseeable.
Hunter v Hanley 1955 SC 200: IMPORTANT
Pursuer alleged that the defender, a doctor, was negligent in using a needle which was not suitable for treating the patient.
Test to establish Professional Negligence:
- It must be proved that there is a usual and normal practice
- Tt must be proved that the defender has not adopted that practice
- The course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care
Bolam v Friern Hospital Management Committee
The test is the standard of the ordinary skilled man exercising and professing to have that special skill A man need not possess the higher expert skill; it is well established law that is sufficient if her exercises the ordinary skill of an ordinary competent man exercising that particular art. [586].
