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Tort - Psychiatric Damage

Sam Grimley Tort Law Inglés 42 fichas

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  1. 1From which case does the distiction between 'primary' and 'secondary' victims of nervous shock originate?Alcock v Chief Constable of South Yorkshire (1991)
    FACTS: families who whitnessed the hillsborough disaster on television
    Held: It was necessary to distiguish between 'primary' victims, directly 'in the danger zone' and 'secondary' victims, not in the danger zone. Alcock used this to distiguish the ratio in previous cases, and to formalise the distiction. So, although the terms were not in use until Alcock, it is permissible to define earlier cases in the light of Alcock's distinctions.
    Held: It was necessary to distiguish between 'primary' victims, directly 'in the danger zone' and 'secondary' victims, not in the danger zone. Alcock used this to distiguish the ratio in previous cases, and to formalise the distiction. So, although the terms were not in use until Alcock, it is permissible to define earlier cases in the light of Alcock's distinctions.
  2. 2What has to be 'foreseeable' to satisfy the first criterion of the Caparo test, for primary victims of psychiatric harm?Physical harm.
  3. 3What has to be 'foreseeable' to satisfy the first criterion of the Alcock test, for secondary victims of psychiatric harm?Lord Lloyd in Page v Smith [1996]: ‘foreseeability of psychiatric injury remains a crucial ingredient when the claimant is a secondary victim, for the very reason that the secondary victim is almost always outside the area of physical impact, and therefore outside the range of foreseeable physical injury’
  4. 4Define a 'primary victim' of nervous shock. Explain how we test for whether there is 'duty of care' in those circumstances.Someone who has reasonable (objective test) fear of being physically harmed, but is, in fact, not injured, and only damaged psychiatrically. They are 'in the danger zone'. The standard Caparo test applies.
  5. 5Define a 'secondary victim' of nervous shock. Explain how we test for whether there is 'duty of care' in those circumstances.Secondary victims do not fear for their own safety, and are not in the danger zone. They typically fear for the safety of a close relative (spouse, parent/child), and are close to the event in time and space.
  6. 6When do you not need to treat psychiatric shock as a 'problem category'?When it accompanies personal injury. It is then bundled in with the injury claim.
  7. 7What are the implications, for your answers, of psychiatric shock being a 'problem category'?You can't rely soley on precedents, you must always apply a test (either the Caparo for primary, or the Alcock for secondary), and use precedents to guide the way you apply the test.
  8. 8How do you structure an answer about psychiatric damage resulting from negligence?1. first identify that psychiatric damage is the issue as opposed to any other loss. 2. State: "if this is a recognised psychiatric harm (Reilly v Merseyside), then the court will…" (you don't need to know the recognised harms, but you need to show you know it has to be recognised).
    3. Identify the type of victim - primary or secondary (Alcock).
    4. Apply appropriate test establish duty (Primary - Caparo, Secondary - Alcock).
    5. Discuss remaining elements of negligence (breach, causation, remoteness, defences).
  9. 9What is contained in the test for psychiatric harm in secondary victims? What is the case authority?1. Foreseeability of psychiatric rather than physical harm (so an objective test applied to psychiatric harm), which means: 2 .Proximity of relationship between the claimant and ‘the victim’ (parent/child, married/engaged couple likely to qualify, siblings/grandparents unlikely);3.Proximity in time and space; 4.The manner of perception–sudden shock perceived by one’s own senses unaided(strong links with proximity in time and space); and 5.The injury must be the result of sudden shock. As clarified in Alcock v South Yorks (1999).
  10. 10Principle: one of the first cases which recognised you could claim, even when you hadn't suffered physical injury directly.Until this case, physical harm was also necessary. Defines primary victim as one in the 'danger zone'.
    Dulieu v White (1902)
    Facts: The claimant was a barmaid working in a bar and was pregnant. A horse and carriage crashed through the window. She wasn't directly injured, but the shock triggered a psychiatric illness in her. As a result, she gave birth prematurely, and her baby was not properly psychologically developed.
    Held: this is one of the first cases where the claimant successfully sued for shock, and the physical consequences that ensued afterwards.
    Dulieu means 'of the place' in French 'of here'. The barmaid was 'of the place' where an injury might happen, even though she wasn't injured. The man driving the carriage was completely White. It happended in the year king Edward asceded the throne, and she was serving king edward potatoes when it happened.
  11. 11Principle: you can only claim for those psychiatric harms directly related to the shocking event. Psychiatric harms that are 'normal' such as grief, cannot be claimed for.Hinz v Berry (1970)
    Facts: a mother with four children, for foster children, and another child on the way. They stopped have tea. While the tea was being prepared, some of the children went off to pick bluebells. A car came round the corner and mowed down the husband. The wife witnessed this. She was claiming grief and sorrow over her husband's death, she was worried about the children's future, and what they'd seen, she was under considerable financial strain because her husband was the main breadwinner, she had difficulty adjusting to her new life as a single mother of lots of children, she was also claiming for the depression she had suffered as a result of witnessing the accident.
    Held: "Bluebell time in Kent". Of all those psychiatric conditions, the only one you can claim for is the depression suffered as a result of witnessing the accident. That is the only one "directly" linked to the defendants breach, everything else you would have suffered whether you had witnessed the accident or not.
    The mother was cooking beans an berries when the accident happened. 1970 - Paul McCar
  12. 12Give an example of a case with a clear primary victim of nervous shock.Defines primary victim as one in the 'danger zone'.
    Page v Smith (1996)
    Facts: the claimant was a passenger in a car crash. He was not injured, but the psychological stress triggered ME that was otherwise in remission.
    First time the Caparo test was applied to victim of nervous shock.
  13. 13Principle: a modern case confirming the judgement of Denning in Hinz v Berry (1970). You must suffer a "recognised psychiatric condition" and not just normal human emotions.Reilly v Merseyside Health Authority (1995)
    Facts: husband and wife who, due to the negligence of the defendant, we are trapped in a lift for one hour and 20 minutes. The wife was worried about the husband's angina, the husband was worried about the wife because she was claustrophobic.
    Held: The claimant was turned down because these were "normal human emotions". You haven't suffered a recognised psychiatric condition. Policy. If you could claim for any normal human emotion, claims would get out of hand.
    Imagine Marty O'Reilly singing ferry 'cross the mersy, stuck with his whole band in a hospital lift. On one of the floors, Diana is being interviewed by Martin Bashir -1995.
  14. 14Are bystanders or rescuers given special status in the law in relation to nervous shock? What is your authority?No. Smith v Chief Constable of South Yorkshire Police (1999). Couldn't allow the police to get favourable treatment over the families of victims. They are still secondary victims, if they are not directly in the 'danger zone' and objectively fearing for their own safety.
  15. 15What if the claimant is in the danger zone, but doesn't fear for their safety, they are just distressed by what they saw. Can they claim as a primary victim, or is apprehension of danger necessary? What is the authority?They can make a claim as a primary victim, even if they don't apprehend the danger. It's an objective test.
    Chadwick v British Railways Board (1967)
    Facts: The claimant was someone who had gone to help after a train crash. He was quite small, so he was asked to take medical supplies into the carriage, because he could crawl through.
    Held: he was in the "danger zone". The claim was not because he feared for his safety, but his safety was objectively at risk. Thus, he was identified as a primary victim.
    Dan Chadwick, is climbing through a railway carriage. Oblivious as he is, he doesn't claim to be scared, but is just bonkers. He claims for that. In 1967 the Abortion Act was passed, someone in the train was having an abortion.
  16. 16Principle: Rescuers are primary victims if they are in danger, and secondary victims if they are not. An example distinguishable from White v South Yorks (1999)Cullin v London Fire Service (1999)
    Facts: the claimant was a fireman. He had been attending a fire in a block, two of his colleagues inside got into difficulties. He went in several times to help, but didn't manage to save them. The evidence suggests that he was fearing for their safety, and that's what triggered off a psychiatric condition.
    Held: the court said that, following Chadwick, and distinguishing from White v South Yorks, even though he did not claim to fear for his own safety, he was in the "danger zone", and therefore was a primary victim.
    Same year as White v South Yorks. London Calling. London Cullin. Cullin v London Fire Service.
  17. 17Give a case that follows Alcock in defining bystanders as secondary and not primary victims, if they are in no objective danger.McFarlane v E.E. Caledonia (1994)
    Facts: The claimant was not a rescuer. Claimant had been on the Piper Alpha oil rig, that was set on fire. The claimant had been taken off the rig, and was in a boat some way away. The claimant feared for their safety.
    Held: despite council arguing that he was a primary victim, the court held that, no, he was not in the "danger zone". He was objectively not in danger. It was not a "reasonable fear". He was a secondary victim, and subsequently the claim failed.
    Seth McFarlane (drawing a family guy picture), walking down Caledonian road talking on his EE Phone. There's a massive oil rig on Caleldonian road that exploades, he witnesses it and wants to claim. But he was only a bystander. This happened in 1994, The year Jamiroquai's first album was released, Jamiroquai are playing 'too young to die on the oil rig'.
  18. 18Give a case that defines rescuers as secondary and not primary victims, if they are in no objective danger.White v Chief Constable of South Yorkshire (1999)
    Facts: the case brought by police involved in th Hillsborough disaster. Claim that they had suffered psychiatric damage.
    Held: he Court of Appeal argued that a duty was owed, and classified them as primary victims. Because they were on duty at the time, and were helping people, that gave them a classification of primary victim. When it got to the House of Lords, they made it clear no, they are not primary victims. Being at work doesn't give them any special status. Primary victims have to be "in the danger zone". The police themselves were never in danger. They were classified as secondary victims, and consequently the claim failed. Policy consideration of consistency with Alcock, not giving police a favourable judgment, and the relatives and unfavourable one, was cited in the ratio.
    All the police officers at Hillsborough were white with shock. Prince 1999 was playing in the courtroom.
  19. 19What is the test, for secondary victims, laid out in Alcock? An expansion of the Caparo test.1. Forseeability. Was psychiatric damage foreseeable?
    2. Proximity of relationship between victim of physical harm, and claimant of psychiatric harm. Closeness of relationship.
    3. Proximity in time and space with the victim of physical harm.
    4. Loss must be caused by sudden shock.
    5. Fair, just and reasonable to impose a duty (policy considerations).
    Aide: 5 ps. Predictability, Proximity of relaitonship, proximity in time and space, POW!, Policy.
  20. 20On what authority do we use the Caparo test for Primary victims of nervous shock?Page v Smith (1996)
    Facts: the claimant was a passenger in a car crash. He was not injured, but the psychological stress triggered ME that was otherwise in remission.
    Held: First time the Caparo test was applied to victim of nervous shock.
  21. 21How do courts establish whether a psychiatric condition is medically recognised?Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric
    Association (DSM), Glossary of Mental Disorders in the International Classification of Diseases (ICD), and medical history/notes, expert evidence and precedent.
    Aide: DSM (Diagnostic Statistical Manual), IDC (International Classification of Diseases) and medical history, precedent, and expert advice.
  22. 22Physical Injuries sustained as a result of psychological harm can also be included in a claim. What are the restrictions on this, and give an authority.The psychological harm must be recognised for the physical harm to be seen as stemming from that.
    Mazhar Hussain v Chief Constable of West Mercia [2008]
    The claimant suffered from anxiety and stress which he argued caused numbness in his left arm and leg.
    Held: The court held that stress and anxiety were not medically recognised psychiatric illnesses, and the physical symptoms did not amount to material damage
    Maz is the one claiming, she's not 'hard', thus is moaning about nothing. She's in Hereford, which is the home of the west mercia police force. It's the year of the finacial crash, so she needs money.
  23. 23Name an authority for Post-Traumatic stress disorder as a recognisable condition.Frost v Chief Constable of South Yorkshire (1999)
    A parallel case to White v South Yorks
    David Frost was at Hillsborough and suffered post traumatic stress disorder.
  24. 24Name an authority for ME as a recognisable condition.Page v Smith (1996)
  25. 25What if grief goes beyond normal levels? Name an authority.Vernon v Bosley (No 1) [1997]
    Aide: Vernon Kaye is super super sad, crying. Bosley is a village near Macclesfield. He's in Bosley cementary all day every day. He's so sad about the landslide labour victory, because he's a total tory.
  26. 26What if the claimant had a pre-existing psychological condition, which exacerbated the claim? What impact would that have? Give an authority.A claim is allowable if physical harm is foreseeable. Any recognised psychological harm that ensues can contribute to the compensation that can be claimed, even if this relates to a pre-existing condition.
    Page v Smith (1996)
    Facts: driver involved in a crash, not physically injured. The psychological stress triggered ME that was otherwise in remission.
    Held: ME pre-existing psychological condition. The "eggshell rule" or "thin skull rule" was applied. Because some harm was foreseeable, the increased harm was also allowable, despite the fact it was a result of a pre-existing condition.
    Jimmy Page was in a car with Toby Smith. Toby Smith crashed and Jimmy Page's ME reappeared, making him an even worse guitar player. Soice Girls breakthough. Wannabe is playing on the car stereo.
  27. 27What if the person at whom of the fear is directed in a claim by a secondary victim is also the defendant? Name an authority.The claim will fail.
    Greatorex v Greatorex [2000]
    Father was a fireman who attended the scene. The victim was his son who died in a motorcycle accident. He sued his son's estate.
    Held: failed
    Great-or-ex. "Be great or die trying" Be great or expire. The son was trying to be great by riding and living fast, he died. He wasn't thinking about his father though, was he? His father lost everything - his son and his claim. The accident happened on new years day 2000.
  28. 28What if a claimant has been told about a horrific situation that impacts a close loved one? Could their claim succeed? Give authoritiesThere is no direct authorithy to show it would succeed, but W v Essex County Council [2000] shows the may have a case to argue. This was only a 'striking out' proceedure, it never went to trial, but it was not striken out.
    W v Essex County Council [2000]
    Facts: parents with an existing family took in foster children. They said to the council "Can you make sure you don't place a child with any kind of history of abuse in the family because we are concerned about our other children". The council placed a boy in the family who they knew to have a history of abuse and he abused one of the children. The parents did not witness any of this they were told about it by the local authority after happened.
    Held: this never went to trial, but survived and attempted striking out motion by the defendant, which indicates the court had some sympathy with the arguments. Treat with caution. Claimants were proposing that being told about an event could constitute sudden shocking event.
    Dispute: policy. Any time someone's killed or injured someone has to tell relatives about it. This could massively
  29. 29W v Essex cont.expand the definition of a shocking event. Probably conflicts with Liverpool and Taylor. Lord Wilberforce said in McLoughlin that hearing about an event cannot be considered shocking enough. Also Alcock said it musth be ‘the sudden appreciation by sigh tor sound of a horrifying event which violently agitates the mind’. But perhaps the courts are willing to look again at this question?
    15 year old boy abusing other children in the W hotel in Essex. As soon as the parents heard about it they were so shocked, they wanted to carry out an air strike on the building, the strick never happened.
  30. 30What if the claimant, as a secondary victim, whitnessed the scene, but didn't realise 'til later that their close relative was the one in involved? Authority?Depends how much later, if it's only a short time until they realise - 2 hours - it may be regarded as a 'single event'.
    Galli-Atkinson v Seghal (2013)
    Facts: A young girl was knocked over and killed by the defendant's negligent driving. The mother was in the vicinity at the time, she saw the accident site, but had no idea her daughter was involved. She tried to look for her daughter we couldn't find her. It was only sometime later she heard that her daughter was involved. Two hours after the accident she was in the hospital identifying her daughter's body.
    Held: proximity in time and space: although she became aware it was her daughter involved sometime after the accident, she was actually at the scene. This is a much clearer example of proximity in time and space, than McLoughlin v O'Brian (1983).
    Dispute: contrast with Alcock, where secondary victims arrived at the mortuary 9 hours later, and this was considered too late.
    Nick Atkinson playing through a Gallien Kruger amp. Hit by a segway ridden by Hal ritson. In the crash the 'en Kruger' is knocked off the face of the amp.
  31. 31What if the claimant is very close in terms of relationship, witnessed the death, 3 weeks after the accident, but wasn't present at the moment of the accident? Will their claim to be a secondary victim succeed? Give an authority and explain reasoning for judgment.Not close enough in time and space.
    Taylor v A Novo (UK) Ltd (2013)
    Facts: a daughter had suffered psychiatric damage as a result of her mother having been injured, due to negligence, at work. The daughter was not present at the accident. Three weeks later, the mother died, and she was there at the hospital.
    Held: proximity in time and space: the court held that she wasn't present in the immediate aftermath of the accident, and three weeks was too late to say it was still part of the accident. The justification was limiting floodgates: "had the death occurred at the time of the accident then the claimant who was not present would not have been able to recover. To say that she could recover merely because the death occurred at a later time when she was present would be a result which would not reflect “what the ordinary reasonable person would regard as acceptable” (per Lord Dyson). Cited Lord Steyn in White, stating “thus far and no further” in relation to the development and extension to this area of law.
    Daughter was sewing at bed. Company "A" new portuguese company (novo).
  32. 32What reasons were given in Alcock for the images on television not constituting proximity for secondary victims?There are broadcasting rules prohibiting the broadcast of the suffering of identifiable victims, so a viewer could reasonably only experience grave concern and not 'sudden shock'. However, a theoretical exception was stated - if there was a live broadcast of an event so horrific, there could be no survivors, such as a hot air balloon disaster.
  33. 33Alcock states that psychiatric harm must be the result of ‘the sudden appreciation by sight or sound of a horrifying event which violently agitates the mind’. Give an example of a successful claim that stretches the limits of 'sudden event'.North Glamorgan NHS Trust v Walters (2002)
    Facts: acts of medical negligence inflicted on a baby over 36 hours. The mother witnessed some of these acts. The mother was there throughout.
    Held: shock. The court held that this did constitute a single shocking event.
    Dispute: the courts were being quite generous to the mother, this judgement has been questioned subsequently, see Liverpool Women's Hospital NHS v Ronayne (2015) and Sion. It seems that Walters is out of step with these judgments.
    Glamorgan is in South Wales, near Cardiff. So the mother and child are Welsh. Its in the north of the southern most district in wales. The doctor is many Walter Gladwins, he's very negligent, over 36 hours.
  34. 34Alcock states that psychiatric harm must be the result of ‘the sudden appreciation by sight or sound of a horrifying event which violently agitates the mind’. Give an example of an unsuccessful claimSion v Hampstead Health Authority (1994)
    Facts: a boy was involved in medical negligence. The father was by his side when he died. The father didn't witness the negligent event, but came to realise slowly over some weeks that it was the result of negligence.
    Held: This wasn't a reaction to a sudden shocking event that the father witnessed. The father experienced the normal grief of losing a son, this was gradual and and cumulative, and not the result of a single shocking moment.
    Dispute: contrast with Glamorgan v Walters
    Son is in Zion. The dad is a rasta. S+zion = Sion. Listens to reggae music whilst the son dies. It takes place in that hospital in Hampstead. Channel Tunnel is opened in 1994. He's come over on the Channel Tunnle to see his boy.
  35. 35Other than Floodgates and Crushing Liability, name 5 policy considerations that apply only / particulary to claims made by secondary victims.• Danger of fraudulent claims
    • Evidentiary difficulties and complexity of claims
    • Litigation is a disincentive to rehabilitation
    • Need for consistency and certainty
    • Should be left to Parliament
  36. 36Principle: the first case to expand the notion of proximity in time and space, for secondary victims, to include the immediate aftermath.McLoughlin v O'Brian (1983)
    Facts: and mother was not present at a road accident involving her family. She arrived at the hospital to see her husband, and two of her children covered in mud and blood. And heard at that point, that her daughter had been killed. She suffered psychiatric damage.
    Held: proximity in time and space: the courts held that the immediate aftermath was sufficiently proximate in time and space. Policy. This had effect of opening the floodgates.
    Dispute: this occurred at a time at which the courts were expanding liability in this area. It has been criticised since, but they're not going to overrule it, but it represents the outer limit.
    Sarah McLouglin is the mother. When she arrived at the hospital she sang 'Ohh Brian' the name of her husband. Then she heard her daughter had been killed. This all happened in 1983 when… The CD first goes on sale. Sarah McLoughlin had released her first CD.
  37. 37Barisha v Stone Superstore (2014)Facts: The claimants husband suffered an injury at work. She rushed to hospital, and arrived five hours after the accident occurred. Her husband was on life support, and she was asked to make the decision to turn the life support machine off.
    Held: proximity and time and space: the court found no proximity. Although this was a horrific experience, it was normal for anyone visiting a sick loved one in hospital. The immediate aftermath of the accident was not witnessed, the loved one was being cared for in hospital. Policy. The court had to be very careful to restrict this kind of claim, otherwise anyone who went to a hospital after an accident could claim for psychiatric damage.
  38. 38Liverpool Women's Hospital NHS v Ronayne (2015)Facts: following an act of medical negligence, husband witnessed his wife swell up horrifically. He said "she looked like the Michelin man". The wife made a full recovery, but the husband claimed for psychiatric damage.
    Held: shocking event: The court held that he did not witness the act of negligence, simply the symptoms of illness. No "shocking event" could be found. Policy. If every relative who witnessed symptoms of negligence could claim, the courts would be overwhelmed.
  39. 39Principle: the exacerbated harm caused by pre-existing conditions, are allowable if some harm is foreseeable.Brice v Brown (1984)
    Facts: a woman was in a car accident with her daughter. The daughter suffered an injury, which turned out not to be serious. The mother had "hysterical personality disorder". A recognised condition. She suffered a serious psychological reaction.
    Held: following the "eggshell personality rule", you "take your victim as you find them". So, because some harm was foreseeable, the total harm experienced by the victim was allowable in the claim.
  40. 40What if a claimant as a secondary victim hears the accident, and then sees blood afterwards?Bourhill v Young (1943)
    Facts: claimant was a fish wife, she was pregnant, she was stepping off the tram and she heard a crash. Later, she saw some blood on the road. She suffered a psychiatric condition as a result, and subsequently miscarried. The accident was a motorcyclist who killed himself. The claimant was suing his estate for negligence. Importantly, the shock came first, then the personal injury.
    Held: foreseeability. It was not foreseeable this harm would be caused. People need to have a certain tolerance for bad things. The case was in wartime, when lots of horrible things are happening. She was a fish wife, and used to seeing blood and guts. Proximity. The claimant had no proximity to the victim, she was not related to him, did not know him, and was not close enough in time and space – did not even see it. Policy. The reason she suffered her personal injury, was due to her pre existing condition, pregnancy, and a reasonable objective man would not have suffered it.
  41. 41Bourhill v Young AideBour - like a boar, but with 'u'. Your face on a Boar, on a hill. This is the one that heard the crash, a pregnant boar with your face on it, on a hill. The crash was some one very young. Like a child. Boars are used to seeing blood and guts of fish, which is what they eat. 2 years before my dad was born. The pregnant boar was having my dad, but gestation is 2 years.
  42. 42Academic Considerations

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Descripción
Tort Law Fichas sobre Tort - Psychiatric Damage, creado por Sam Grimley el 21/04/2019.
Creado por
Sam Grimley · abr 2019
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21 abr 2019
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