Mapa mental
Psychological/Psychiatric Harm
Conteúdo do mapa
Psychological/Psychiatric Harm
"Psychiatric illness"
"Psychiatric injury"
- Pure psychiatric injury = controversial
- This is psychiatric injury not resulting from physical injury, and claimable in two situations:
- Where someone suffers nervous shock due to being involved in an accident, or witness to an accident
- Where someone suffers workplace stress
- Heavily circumscribable to avoid opening the floodgates
- This is psychiatric injury not resulting from physical injury, and claimable in two situations:
- Two categories of victims:
- PRIMARY VICTIMS
- Someone directly involved in the accident or who is within "the zone of physical danger"
- If the person claiming damages for nervous shock is also a PRIMARY VICTIM of negligence, he can recover damages, only if he can show that the defendant could foresee the personal injury, physical or psychiatric
- Doesn't have to prove the PSYCHIATRIC INJURY is foreseeable
- Only needs to show SOME injury was foreseeable
- PAGE V SMITH [1995]
- Claimant was injured in a minor car accident caused by the defendant's negligence. He was not physically injured, but the shock caused his pre-existing CFS to significantly worsen.
- HoL held that the defendant was LIABLE.
- PAGE V SMITH [1995]
- Only needs to show SOME injury was foreseeable
- Doesn't have to prove the PSYCHIATRIC INJURY is foreseeable
- SECONDARY VICTIMS
- Someone not directly involved in the accident (and in no physical danger) but suffers psychiatric injury as a result of what he sees/hears happening
- Must show that the psychiatric injury itself was reasonably foreseeable to a person of "reasonable fortitude"
- ALCOCK v CHIEF CONSTABLE OF SOUTH YORKSHIRE [1992]
- Lord Oliver:
- As far as "passive witnesses" of an event are concerned, five factors should be taken into account:
- SUDDEN SHOCK
- There must be a sudden shock as a result of a "traumatic experience" or "event" rather than a slow realisation
- PSYCHIATRIC HARM
- FORESEEABILITY
- Must be reasonably foreseeable in the claimant in the circumstances. A more demanding test.
- PROXIMITY OF RELATIONSHIP
- PROXIMITY
- Between claimant and primary victim.
- The closer the love and affection between the two, the more likely the shock was foreseeable
- Rebuttable presumption between parents, spouses and children
- The closer the love and affection between the two, the more likely the shock was foreseeable
- PHYSICAL PROXIMITY
- Between the claimant and the accident, or it's aftermath.
- The claimant must be at the scene of the accident or arrive soon afterwards
- Between the claimant and the accident, or it's aftermath.
- PROXIMITY OF PERCEPTION
- How the claimant became aware of the events.
- Claimant must see or hear the event, or it's immediate aftermath with HIS OWN SENSES
- Live broadcast not ruled out
- Claimant must see or hear the event, or it's immediate aftermath with HIS OWN SENSES
- How the claimant became aware of the events.
- These 5 factors apply in McFarlane v Caledonia Ltd [1995]
- Claimant witnessed an explosion on the "Piper Alpha" oil rig, which he worked on, from a support ship 100 metres away.
- Court of Appeal dismissed claim for psychiatric damage as he was not a "rescuer" merely a bystander who was therefore unable to establish a sufficiently close enough relationship with the victims to enable his claim to succeed.
- Claimant witnessed an explosion on the "Piper Alpha" oil rig, which he worked on, from a support ship 100 metres away.
- SUDDEN SHOCK
- As far as "passive witnesses" of an event are concerned, five factors should be taken into account:
- Lord Oliver:
- PRIMARY VICTIMS
- Pure psychiatric injury = controversial
"Nervous shock"
Long been claimable in negligence when it results from direct physical injury
- Consequential psychiatric harm
Historical Development
- THE FIRST SUCCESSFUL CLAIM
- Dulieu v White [1901]
- A barmaid who was serving customers in a pub saw a horse and cart out of control crashing into the pub. She was pregnant at the time and the shock caused a still birth.
- Held to be sufficient that she was reasonably in fear of her own safety (primary victim)
- A barmaid who was serving customers in a pub saw a horse and cart out of control crashing into the pub. She was pregnant at the time and the shock caused a still birth.
- Dulieu v White [1901]
- Bourhill v Young [1942]
- Claimant was 8 months pregnant and suffered nervous shock, giving birth to a stillborn after a fatal motorcycle accident occurred 50 yards away from her. The shock was caused by hearing the crash and seeing blood on the road afterwards.
- Motorcyclist's personal representative was not liable as she was a bystander, with no duty owned (secondary victim)
- Claimant was 8 months pregnant and suffered nervous shock, giving birth to a stillborn after a fatal motorcycle accident occurred 50 yards away from her. The shock was caused by hearing the crash and seeing blood on the road afterwards.
- Chadwick v British Railways Board [1967]
- Lewisham train crash 04/12/1957 in which 90 people died. Mr Chadwick, local window-cleaner and "small and agile man" spent 12 hours crawling amongst bodies and parts inside the claustrophobia-inducing wreckage, administering pain killing injections and comforting the injured and dying.
- He suffered severe psychiatric injuries (primary victim). Whilst not physically harmed, he was in the danger zone
- High Court held his widow, who pursued the case after he died, should be awarded just over £1,500, as he suffered foreseeable harm as a result of the defendant's negligence.
- He suffered severe psychiatric injuries (primary victim). Whilst not physically harmed, he was in the danger zone
- Lewisham train crash 04/12/1957 in which 90 people died. Mr Chadwick, local window-cleaner and "small and agile man" spent 12 hours crawling amongst bodies and parts inside the claustrophobia-inducing wreckage, administering pain killing injections and comforting the injured and dying.
- McLoughlin v O'Brian [1982]
- Claimant was able to recover damages for nervous shock after one of her children was killed, and her husband and two others were injured in a road accident. She didn't witness the crash, only heard about it and visited her family in hospital afterwards.
- She suffered a severe and lasting depressive illness
- HoL held that she should be compensated because her nervous shock was a reasonable foreseeable consequence of the defendant's negligence.
- The first case in which damages had been awarded to someone who had not physically been very close to the accident
- Claimant was able to recover damages for nervous shock after one of her children was killed, and her husband and two others were injured in a road accident. She didn't witness the crash, only heard about it and visited her family in hospital afterwards.
- Alcock V Chief constable of South Yorkshire [1992]
- Current law on secondary victims is based
- Hillsborough football stadium disaster, in which 96 people were crushed to death as a result of poor crowd-control measures
- HoL refused to extend the principles from McLoughlin to relatives other than spouses, parents and children or to those who saw the accident on the television
- HoL put in place some explicitly policy-driven requirements for a duty to arise not to carelessly cause pure psychiatric harm to accident witnesses
- HoL refused to extend the principles from McLoughlin to relatives other than spouses, parents and children or to those who saw the accident on the television
- THE FIRST SUCCESSFUL CLAIM
Current Law
- Any case involving nervous shock, the claimant must establish the following:
- The defendant owed a duty of care
- The duty of care was breached
- The claimant has clinically recognised psychiatric illness, worthy of compensation, and caused by defendant's negligence.
- Any case involving nervous shock, the claimant must establish the following:
Claimable harm
- Damages are not claimable for normal sorrow or grief
- Hinz v Berry [1970]
- The pregnant claimant and one of her children witnessed a car accident involving her husband and other children. She saw a number of her family members lying bleeding in the road and suffered from severe depression.
- She was awarded £4,000 for nervous shock
- Court of Appeal held that damages were only available for the clinical psychiatric damage suffered from actually witnessing the event.
- Lord Denning:
- Somehow or other the court has to draw a line between sorrow and grief for which damages are not recoverable; and nervous shock and psychiatric illness for which damage are recoverable.
- Lord Denning:
- Court of Appeal held that damages were only available for the clinical psychiatric damage suffered from actually witnessing the event.
- She was awarded £4,000 for nervous shock
- The pregnant claimant and one of her children witnessed a car accident involving her husband and other children. She saw a number of her family members lying bleeding in the road and suffered from severe depression.
- Hinz v Berry [1970]
- Damages are not claimable for normal sorrow or grief
Other Claimable Pure Psychiatric Harm
- Workplace Stress
- Negligently caused workplace stress does not need to be triggered by sudden shock. Psychiatric injury was the only kind of harm suffered by the primary victim in:
- Walker v Northumberland County Council [1995]
- Claimant, employed by the defendant council, suffered a nervous breakdown because of pressure of work. He returned to work after he was promised assistance, but only limited help was given and he subsequently suffered a further breakdown and had to give up work permanently.
- Court found that although the first breakdown was not foreseeable, after it's occurrence it was clear that the claimant was at risk of mental illness and the defendant owed him a duty to find support. It had not done so, so was therefore liable.
- Claimant, employed by the defendant council, suffered a nervous breakdown because of pressure of work. He returned to work after he was promised assistance, but only limited help was given and he subsequently suffered a further breakdown and had to give up work permanently.
- Walker v Northumberland County Council [1995]
- Negligently caused workplace stress does not need to be triggered by sudden shock. Psychiatric injury was the only kind of harm suffered by the primary victim in:
- The Rule in Wilkinson v Downton [1897]
- Deliberately caused shock is always actionable.
- The claimant successfully claimed damages for nervous shock from the defendant, who told her as a joke that her husband had been injured in an accident.
- Deliberately caused shock is always actionable.
- Workplace Stress
Informações
- Descrição
- Diploma Tort of Negligence Mapa Mental sobre Psychological/Psychiatric Harm, criado por Hannah Thompson em 20-02-2018.
- Criado por
- Hannah Thompson
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