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Negligence: positive acts causing psychiatric illness - Coggle Diagram
Negligence: positive acts causing psychiatric illness
Accident cases
Injury to C
Straightforward: can recover compensation for psych. illness suffered as a result of being injured, however unforeseeable (
Simmons v British Steel)
Almost injury to C
Can sue in negligence for psych. illness if DoC owed on the basis it was reasonably foreseeable
physical harm
might result:
Page v Smith
. Exception to the usual rule that harm must directly correlate to the DoC which was breached.
Injury/almost injury to 3rd party
Complex formula and complex case law! Requires both reasonable foreseeabilit and, depending on category, a specific additional element. See McBride p144ff. Categories: close and loving relationship; assisting the victim; sense of responsibility; horrific events witnessed.
3rd party accident cases in detail
Close and loving relationship
Alcock v S Yorks Police
. Such a relationship must be proved, AND illness must have been triggered by seeing accident or its immediate aftermath in sufficient detail. (What counts as "immediate" aftermath? See
McLoughlin v O'Brian
: 2hrs was immediate there, but 7-8 hrs in
Alcock
was not
Rescue
Must be reasonably foreseeable that B would suffer psych illness as a result of assisting; AND that B was in physical danger
HoL distinguished police Hillsborough case (
Frost v S Yorks Police
) from
Chadwick v British Transport Commission
on this basis. NB Lord Goff dissented and thought this unsatisfactory (what if two people assist, one is in danger, the other not, both suffer PTSD? Even if one in danger was not aware of it?)
Sense of responsibility
Reasonable foreseeability AND present at the scene
Dooley v Cammell Laird & Co:
weak rope used in crane, crane driver felt responsible for near-accident.
Above qualified in
Hunter v British Coal
: C had not directly witnessed accident, claim turned down
See also W v Essex CC: council held to have DoC when child placed in parents' care abused their other children (
Hunter
wrongly decided? Or distinguish between sexual abuse and physical accidents?)
Bystanders
"defendants cannot be expected to compensate the world at large
- Lord Wilberforce in
McLoughlin v O'Brian
some authority for a claim if the accident was
"of such horror as would be likely to traumatise the most phlegmatic spectator
- Lord Oliver in
Alcock
Self harm
Greatorex v Greatorex
: son did NOT owe father DoC not to crash his car, when father witnessed immediate aftermath as fire officer
Right of determination would have been infringed. Does this fail to account for difference between
deliberate
and
accidental
self-harm?
Public policy: claims amongst family members could lead to arguments about contributory negligence, generally undesirable
Non-accident cases
Bad news
Generally, damages not recoverable for being told about/hearing about an accident etc (Lord Ackner in
Alcock
)
Based on words, not the event being described: hence 1) illness triggered by insensitive language/conduct; 2) misinformed about an accident etc.
AB v Tameside & Glossop Health Authority
: patients informed they may be HIV+ by letter. Counsel for D conceded they owed DoC not to break news in this way (though CoA found no breach of this duty)
Allin v City and Hackney HA:
mother misinformed baby had died. First instance judge appears to have assumed a DoC existed here. Cf.
Wilkinson v Downton
Humiliating or degrading treatment
Wainwright v Home Office
: humiliating prison strip search. Did NOT sue for negligence, but could they have done?
Stress at work
Walker v Northumberland CC:
DoC owed to assist on return to work after 1st nervous breakdown, to avoid the 2nd. 1st made the 2nd reasonably foreseeable.
Courts uneasy about this: Lord Rodger in
Barber v Somerset CC:
a DoC in this context "does not sit easily with...contractual arrangements" and would impede efficiency/effectiveness
Aus case:
Koehler v Cerebos
- "insistence upon performance of a contract cannot be in breach of a DoC". Unclear if English courts would follow this
dictum
.
Hatton v Sutherland:
NO DoC owed if the employer isn't made aware of the employee struggling to cope
Fear of future harm
Can't rely on
Page v Smith
(psych harm an immediate result of almost suffering physical harm) -
Rothwell v Chemical & Insulating Co
Thus need to show separate DoC geared towards protecting C from suffering psychiatric illness: reasonable foreseeability of harm required
Example:
Group B Plaintiffs v Medical Research Council
- injected with growth hormone infected with CJD. Once risks were known, psych illness from fear of future harm was reasonably foreseeable.
Pure distress
Damages recoverable in negligence if they would be recoverable for breach of contract:
Hamilton Jones v David & Snape
Hinz v Berry
: no damages to be awarded for grief, sorrow, worry, etc.
Wilkinson v Downton
Redundant as claim available in negligence? Need only show 1) D treated C in an unjustifiable way which caused C physical injury or psych illness; 2) intent to cause harm (see Rhodes v OPO)
Rhodes v OPO
: injunction to prevent publication of book by father which could foreseeably cause psych illness in the son. UKSC overturned on basis of public interest (freedom of expression): conduct was justifiable. Also no intent to cause harm.
the
“imputation of an intention by operation of a rule of law…has no proper role in the modern law of tort
.” Intention is a question of fact, and can’t be imputed based on a rule