8/3/2019 4a Psychiatric Damage - Nervous Shock

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Psychiatric Damage(Nervous Shock)

History

Early

No compensationIntentional or

Negligence

WilkinsonvDownton1897

Intentionto act whichleads to harm

Recent

Khorasandjianv Bush'93

Hunter vCanaryWharf - '97

Wong vParkside NHS Trust 2001

W vHome Office 2002

19th-early20th century

No recovery for negligently causing psychiatric damage, until...

Fear for safetyDulieuvWhite 1901

Fear for others' safetyHambrook vStokes '24

Neighbour principle extensionNervous shock - Alcock

BUT...

Control mechanism

ForeseeableBourhill vYoung '42

Reasonable fortitudeBrice vBrown'84

Now: 1-aryor 2-aryvictimsPage vSmith'95

Questions

Would simulcasts be treated inthe same way as Alcock

What issues are left unresolved byAlcock

What are the implications of following each judgment in McCloughlin

BystandersWhat if P not in danger but fears they're in danger

RescuersShould be a separate category...

Or subject to same controls as other psychiatric victims

Work stressWould personbe a primaryvictim...

W vEssexCC 2000Is rigid distinctionbetween1ary and 2aryvictims falling from favour

Is there a difference betweenAccident & Non-Accident cases

P must establish

1. P suffered a psychiatric illness from a horrifying accident

2. P was close enoughto the incident to be able to claimEither as a Primaryvictim

By being involved in the "zone of danger"

Or as a Secondaryvictim

3. Secondaryvictims must establish

i. Close ties of love & affectionFamilyties are rebuttable inthe absence of such close ties

ii. Close in"time & space"By being nearby& witnessing the "immediate aftermath"

iii. Directly perceived the incident "throughown sight & hearing"

4. Rescuers are subject to the same controls

Other

Self-harmGreatorexv Greatorex2000

D doesn't owe P a duty of care if P suffers PTSD from seeing D's self-inflicted injuries

Firemanfather suffered PTSD while rescuing sonfrom car crashed caused by son's negligence

Policyissue - family suing familydecided to not allow claim on grounds that would infringe son’s right to get drunk

Propertydamage witness

Attia vBritishGas '87

Womansuffers shock returning home to see BG set building onfire

BG held liable

Bridge judgement in M v O, wrong that could complain for property, post Alcock, can’t claim for dead relatives

Bingham LJa scholar’s life work of research or composition were destroyed before his eyes as a result of a defendant’s careless conduct

Owens vLiverpool Corp. '39

Tramcar hit and damaged hearse, coffinoverturned

Mourners suffered mental shock

D found liable

Work stress

Walker vNorthumberland CC '95

Stress at overload reviewing child abuse cases

Time off after breakdownReturned, 2nd breakdown due to c ontinued overload

Found owed dutyonly regarding 2nd breakdown

Hoffmanviewed as primaryvictim, strainof overwork whichled to psy damage

Leachv ChCons Glos Constab '99

Appropriate adult inFred West interviews

PTSD, stroke as a result

CA held: Police owed dutyof care for support & counselling

HattonvSutherland 2002

4 cases combinedSchool, Council, factory

Employer cantake employee at face value

Unless made aware of a problemCan assume that employee can handle normal pressures of job

Dooleyv Cammell Lairdpre Alcock, involved crane load falling into hold of ship, feared killing work colleagues

sufficient proximity

CJD Group B vMedical ResearchCouncil

small number of patients, people injected withhuman growthhormone, didn't realise that itwould make more susceptible to developing CJD, what about fearing for safety in future

Difference betweenprimary victims experiencingsomething now and someone that foresees it

openup possibility of massive claims for asbestosroofing, allowed in this area because so few claimants

Bad news

AB v Tameside & Glossop HA '97Patients not told face to face that healthworker was HIV+

Held: D not negligent for informing byletter

CJD Group B Claimants vMed Research Council 2000

Child dwarfs injected w/ Hartree HGH

Found this could cause CJD, but not had yet contracted CJD

Dutyowed

Avoid psychiatric as wella s physical illness

Psychiatric illness could be caused byD's negligence

Damages recoverable, if could prove psychiatric illness

Damage for fear of the future

Allinv City& HackneyHA '96

Ater hard labour, told that babywas dead

Suffered PTSD6 hours later told that babyhad survived

No authority for dutyof careD conceded that theyowed a duty

Intentionallyca usingpsychiatric harmWilkinsonvDownton

Wright J “the defendant has wilfully done an act calculated to cause physic al damage to the plaintiff, i.e. to infringe her legal right to personal safety; and has therebyin fact caused physical harm to her. That proposition, without more, appears to me to state a good cause of action, there being no justificationalleged for the act”

Where the defendant’s intentional act causes damage indirectly to the claimant there can be no action in the Tort of Trespass.Rule inW v D may provide a remedy, an intention to do an act that naturally leads to harm to the claimant is probablyenough

Egg-shell rule

Brice vBrown'84

If nervous shock foreseeable, not important that extent unforeseeable

P had nervous disorder

Worry about daughter in accident had detrimental effect on P's mental stability

Page vSmith

P had ME

Accident brought it on

Take your victim as you find them

Applies where claimant is primaryvictim

Making factual distinction betweenall other cases and cases involving stress, bad news, eggshell skull and public policy cases on the grounds thatthere was a special relationship. Inother cases where physical or psy trauma generally no relationship, but there is an assumed responsibility

Public policy

White vChCons S Yorks PoliceCan'tfind for police if don't find for relatives

Hunter vBritish Coal CorpAttempt to limit category of liability to unwitting agents of misfortune

White puts this whole categoryin doubt

New developmentsW vEssexCC 2000

http://www.childabuselawyers.com/WvEssex.htm

Parents sue CC for bringing sex abuser into their home

Foster child abuses their children

Cansue a public body now...

parents of four childrenfostered another child onone proviso that hadn't been sexuallyabused or had done anyabusing itself, givena boyby authorities that theyknew to have a record, suffered trauma as felt that they were responsible for exposing their childrento the risk

CA struck out

HL reinstated, Slynnsaid logical from McLoughlin and Caparo, fair just and reasonable, to such anextent that ignored categories.

Paul Hogarth-Blood