DOC - psychiatric harm

DOC - psychiatric harm

1. WITH PHYSICAL INJURY

   • general rule: when you suffer a physical injury, you can recover compensation even for emotional or mental consequences regardless whether that constitues a specific diagnosed medical injury
     • pre-injury terror - fear of what is going to happen next
       • Hicks v Chief Constable of South Yokshire [1992]
         • FACT: football stadium - ccrushed HELD: 30 mins insuffucient to sustain claim - no DOC
           • Ratio: if you died very quickly, the fear of that death is not something that can substantiate a claim
       • Roberts v Lestrange [1985]
         • FACT: motorbike accident - passed away 4 days later HELD: 4 days is sufficient for a caliam to get off the ground - got DOC

2. WITHOUT PHYSICAL INJURY (pure psychiatric harm)

   • McLoughlin v O'Brian: must be a positive psychiatric illness - medically recognised psychiatric injury
     • Primary victim
       • Victorian Railway Commissioners v Cultas [1888]
         • FACT: allowed to cross - almost hit by train HELD: cannot claim
         • Dulieu v White [1901]
           • FACT: horse - pregnant barmaid - miscarriage HELD: can claim
       • foreseeability
         • Page v Smith [1996]
           • as long as some personal injury is foreseeable is sufficient, no matter it is physical or psychiatric injury
           • Grieves v F T Everard & sons and others [2007]
             • FACT: asbestos - pleural plaques HELD: no DOC - cannot claim
               • RATIO: event must have happened, CANNOT be might happen in the future
       • Thin Skull Rule
         • Brice v Brown [1984]
           • FACT: road accident - mom & daughter - severe psychiatric harm HELD: can claim
             • RATIO: even though the psychiatric injury suffered from C was unforeseeable, as long as some psychiatric injury was foreseeable it is sufficient
       • Zone of Danger
         • in the zone of danger but it was not the reason they suffered psychiatric injury
           • Young v Charles Church (Southern) Ltd [1997]
             • FACT: fellow worker electrocuted - saw the explosion but primarily worried about the worker HELD: can claim
               • RATIO: physically in the zone of physical danger is sufficient
         • not in the zone of danger but thought they are
           • McFarlane v EE Caledonia [1994] & Hegarty v EE Caledonia [1997]
             • RATIO: if the claimant's fear is genuine from the beginning & a person of ordinary fortitude in C's position might go on to suffer psychiatric harm, DOC can arise
     • secondary victim
     • Secondary victim
       • suffered as a result of shock of witnessing a distressing event
         • Sion v Hampstead Health Authority [1994]
           • FACT: accident - father sit by bedside - deteriorated - coma - died HELD: no DOC
             • RATIO: psychiatric injury induced by gradual onset of injury cannot claim
         • Tredget v Bexley HA [1994]
           • FACT: childbirth - broke shoulder - deprived of oxygen- brain damage - died HELD: can claim
             • RATIO: in some occassions, period of time can be extended to be event
           • Walters v North Glamorgan NHS Trust [2003]
             • FACT: epileptic seizure - hospital negligent in saying that he hasn't suffered brain damage - emergency - no chance of recovery - switched off machine 36 hours later HELD: can claim
       • reasonably foreseeable - psychiatric injury must be reasonably foreseeable to a person of ordinary fortitude
         • Bourhill v Young [1943]
           • FACT: pregnant - heard impact of the crash - saw blood - nervous shock HELD: cannot claim - not reasonably foreseeable by a person with ordinary fortitude
       • thin skull rule
         • must come into play after satisfy reasonable foreseeable test
       • proximity
         • relationship
           • claimant must have a close tie of love and affecion with the injured person
             • Alcock: rebuttable presumption that close tie of love exist between spouses, parent and child
               • other cases, have to adduce evidence
                 • Robertson and Rough v Forth Bridge Joint Board [ 1995]
                   • FACT: work tgt for many years - fell down from bridge HELD: no DOC
                 • Attia v British Gas [1988]
                   • FACT: left her house to the gas worker - inflamed when she came back HELD: can claim
                     • However, this case was decided before the restriction, hence the court might question do you like yourproperty as much as you love your wife
         • time and space
           • must come upon immediate aftermath
             • McLoughlin v O'Brian
               • FACT: rushed to hospital an hour later - husband and children covered in blood and oil - one child died HELD: can claim - it is as if she has came upon the accident scene
             • Alcock
               • FACT: large number crashed into death - went to the mortuary 9 hours later to find the bodies HELD: cannot claim - all you do is only identifying the body