psychiatric harm structure

Summary

- intro

- define psychiatric harm?

- primary or secondary V?

- rescuer?

- if primary... normal caparo

- if secondary... modified caparo

- breach (reasonable man/risk)

- factual and legal causation

- defences if relevant

- damages

intro

C (NAME) may be able to claim against D (NAME) in the tort of negligence for psychiatric harm.

was there psychatric harm?

For psychiatric harm, there must be a medically recognised psychiatric condition which is long-term (Reilly v Merseyside RHA) where mere grief or anxiety is not enough and medical evidence is required (Vernon v Bosely). Here, [IS THERE OR IS THERE NOT PSYCHIATRIC HARM AND WHY].

was C a primary or secondary V? please know there may be more than one claimaint

The next issue is whether C was a primary or secondary victim (Page v Smith). Primary victims are actually injured, fear for their own safety, or are at risk of physical injury (Dulieu v White). Secondary victims fear for someone else's safety and are not at risk of physical injury themselves (McLoughlin v O'Brian). Here, [WHO IS WHO? IF SOMEONE IS PHYSICALLY HURT DEAL W/ THEM UNDER ORDINARY NEGLIGENCE RULES]

rescuers [if relevant]

There are no special rules for rescuers. However, it is expected that dangerous situations invite rescue. A rescuer may be a primary victim if he or she put themselves at risk of physical injury (Chadwick v BRB). Here, [APPLY WHETHER C OR V IS A RESCUER AND HOW THEY ARE].

if primary...

For rpimary victims, the usual test for duty of care under Caparo v Dickman is used. Here, some harm was reasonably foreseeable to someone in C's position because [HOW IS HARM REASONABLY FORESEEABLE?] (Kent v Griffiths); there was proximity in time, space, or relationship (Bourhill v Young) [WHAT PROXIMITY DOES D HAVE TO C?] and it was fair, just, and reasonable to impose a duty (Hill).

if secondary...

As a secondary victim, C [name] must show that psychiatric harm was reasonably foreseeable to a person of normal phlegm and fortitude as a result of D's actions (Page v Smith). Here, [APPLY HOW PSYCH HARM WAS FORESEEABLE FOR C].

secondary V proximity..... do close ties of love and affection make psychiatric harm foreseeable?

C [NAME] must also satisfy the "control mechanisms" set out in Alcock. First, C must show that close ties of love and affection make psychiatric harm foreseeable. In Alcock, it was confirmed that relationships such as parent/child and spouses would automatically qualify but that all other relationships would have to be proven. Here, [WHAT IS THE RELATIONSHIP BETWEEN C AND D -> CAN EXIST OUTSIDE FAMILIAL OR SPOUSAL RELATIONSHIPS?]

secondary v proximity... was C present at the accident or at the immediate aftermath?

C must be present at the accident or the immediate aftermath. What constitutes the immediate aftermath depends on the facts of the case. Relevant factors include the period of time that has elapsed, the purpose of C's visit and the presentation of the victims (Alcock). In McLoughlin v O'Brian the immediate aftermath was held to extend to two hours after the incident, but in Alcock too much time had elapsed (9 hours) and the purpose was to confirm what was known prior. Here, [C HAS TO BE ON SCENE LESS THAN TWO HOURS AS QUALIFIED IN MCLOUGHLIN AND MAKE IT AS OBVI AS POSSIBLE TO PRESENT IMMEDIATE AFTERMATH I.E IF V COVERED IN BLOOD AND C IS CARING FOR V THEN AND THERE SAY IT!!!]

secondary V proximity... own unaided senses

C must witness the event or the immediate aftermath first hand using their own "unaided senses", not on television (Alcock) or over the phone (Boylan v Keegan). Here, [HOW UNAIDED SENSES?].

secondary V proximity... was C's condition brought on rapidly?

C must also show that the psychiatric harm has been brought on by a sudden shock and not a growing realisation. In Sion v Hampstead a slow development of illness over a period of 14 days was held not to be sudden. Here, [HOW IS C SHOCK SUDDEN?].

secondary V fair, just, and reasonable?

If C can show foreseeability and proximity; it is likely to be fair, just, and reasonable to impose a duty. Here, it is fair, just, and reasonable to impose a duty.

breach - reasonable man and risk factors

The test for breach of duty is objective: has D reached the standard of reasonable [DEFINE STANDARD] carrying out [DEFINE THE ACTIVITY] (Blyth v Birmingham Waterworks). Here, D must reach the reasonable standard of [PROFESSION] doing [ACTIVTY].

Here, harm was likely (Hayley v LEB) because [] and so more care should be taken. Also the potential harm could have been serious (Paris v Stepney LBC) because [] and so more care and precautions should be taken. D could have avoided the potential harm by [] and therefore, D did not take steps in proportion to the risk (Bolton v Stone). Finally, there was no public benefit to D taking the risk [] (Watt v Herts).

Balancing all factors it could be argued that D has fallen below the standard of a reasonable [PROFESSION] doing [ACTIVITY].

factual and legal causation

Factual causation uses the "but for" test (Barnett v Chelsea). Here, [APPLY BUT FOR TEST]. Legal causation asks if the type of damage was reasonably foreseeable (Wagon Mound) [if relly: Hughes v Lord advocate/Bradford v Robinson Rentals]. Here, [APPLY LEGAL CAUSATION AND PLEASE IDENTIFY THE TYPE OF HARM AS PSYCHIATRIC HARM].

Defences [IF RELLY]

If C contributed to the loss, his or her damages may be reduced under the Law Reform (Contributory Negligence) Act 1945 (Harlow v Sayers).

damages

The remedy is damages. The aim of damages is to put C back in the position they would have been had the accident not occurred. Special damages were calcuated up to the date of the trial and might include [WHAT MAY IT INCLUDE]. General damages apply after the date of trial. Here, they might include [WHAT MAY IT INCLUDE].