[sonalid]

Hi Everyone,

I'm been given an assignment for Tort Law from university based on psychiatric injury and am SO LOST. Was wondering if someone could help me as to how to go about this question and ideas... MANY THANKS


‘In approaching the question whether the law should, as a matter of policy, define the criterion of liability in negligence for causing psychiatric illness by reference to some test or other than that of reasonable foreseeability it is well to remember that we are concerned only with the question of liability of a defendant who is, ex hypothesi, guilty of fault in causing the death, injury or danger which has in turn triggered the psychiatric illness. A policy which is to be relied on to narrow the scope of the negligent tortfeasor’s duty must be justified by cogent and readily intelligible considerations, and must be capable of defining the approprriate limits of liability by reference to factors which are not arbitrary’.
McLoughlin v O’Brian [1983] AC 410, per Lord Bridge, at 441.

Discuss the above statement of Lord Bridge in the context of subsequent developments in the law relating to compensation for psychiatric injury, caused by the negligent actions of a tortfeasor. Is existing law in this area satisfactory? If not, how might it be improved?


Maximum Word Limit: 2500 words (the word limit excludes citations in footnotes, but includes discursive comments in footnotes).

[sophie_snail]

(Original post by sonalid)
Hi Everyone,

I'm been given an assignment for Tort Law from university based on psychiatric injury and am SO LOST. Was wondering if someone could help me as to how to go about this question and ideas... MANY THANKS


‘In approaching the question whether the law should, as a matter of policy, define the criterion of liability in negligence for causing psychiatric illness by reference to some test or other than that of reasonable foreseeability it is well to remember that we are concerned only with the question of liability of a defendant who is, ex hypothesi, guilty of fault in causing the death, injury or danger which has in turn triggered the psychiatric illness. A policy which is to be relied on to narrow the scope of the negligent tortfeasor’s duty must be justified by cogent and readily intelligible considerations, and must be capable of defining the approprriate limits of liability by reference to factors which are not arbitrary’.
McLoughlin v O’Brian [1983] AC 410, per Lord Bridge, at 441.

Discuss the above statement of Lord Bridge in the context of subsequent developments in the law relating to compensation for psychiatric injury, caused by the negligent actions of a tortfeasor. Is existing law in this area satisfactory? If not, how might it be improved?

What are you struggling with? Try highlighting the key issues, as there's a lot of gooblydegook in that quote...

On a sunny easter morning, here's just what I think off the top of my head.
- Outline the pscychiatric illness test - must be directly involved in the incident, and not secondary to it; for example there was a case where I woman was stepping off a bus and saw a motorbike accident (or something like that), and suffered psychiatric illness but the courts said that innocent bystanders have to show 'customary phlegm' (i.e. need to man up)
- But courts do recognise family members, i.e. woman who heard about her family in an accident.
- Set out the relevant test (can't remember it but something like spouses and children are fine, but not brothers/sisters etc.
- Talk about the Hillsborough Disaster case law, and how nobody actually succeeded in a claim, and the tests that developed from that.

Then just critically analyse it?
Is it too strict? If it was made any easier to claim, would we have floodgates of claims (this is the common argument used)... Are the courts being a bit heartless towards family members that are obviously seriously affected by whatever happened? Is the rule for 'life savers' (e.g. emergency services) a good rule, i.e. they have a higher threshold to fulfil?

Hope this helps somewhat

[TimmonaPortella]

The obvious place to start is White-_"the search for principle was called off in Alcock". Note, one of the later cases (I forget which) is hard to reconcile with it, you might want to note that. The line between Hatton v Sutherland and White is hard to find. In the later case (I don't have time right now to find out what it was called) an employee of the home office, as part of his job, had to remove a body of a person who had committed suicide from a cell. After he'd done so (and this is something he'd done a few times in his job), he contracted some kind of pscyhiatric disease, and was able to claim under Hatton. Just to note an area of incoherence that isn't immediately obvious following alcock and page v smith.

The "customary phlegm" case is Bourhill v Young.

[sonalid]

(Original post by TimmonaPortella)
The obvious place to start is White-_"the search for principle was called off in Alcock". Note, one of the later cases (I forget which) is hard to reconcile with it, you might want to note that. The line between Hatton v Sutherland and White is hard to find. In the later case (I don't have time right now to find out what it was called) an employee of the home office, as part of his job, had to remove a body of a person who had committed suicide from a cell. After he'd done so (and this is something he'd done a few times in his job), he contracted some kind of pscyhiatric disease, and was able to claim under Hatton. Just to note an area of incoherence that isn't immediately obvious following alcock and page v smith.

The "customary phlegm" case is Bourhill v Young.

Thanks for your response. I had a couple of queries:

a) what do you mean by "the line"
b) and how did the white and hatton cases relate to alcock and/or smith as I didn't understand your last line

[TimmonaPortella]

(Original post by sonalid)
Thanks for your response. I had a couple of queries:

a) what do you mean by "the line"
b) and how did the white and hatton cases relate to alcock and/or smith as I didn't understand your last line

Sorry, I'll get back to this, trying to rush through a large amount of criminal work right now in a very short time so it might be a day or so until I get chance.