Tort Law: How would you criticise claims for psychiatric harm...?
Law revision, exam and homework help.
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Tort Law: How would you criticise claims for psychiatric harm...?On the scale of a first?
Basically, I understand that you'd go on to say "opens the floodgates, blah, blah" and do case law, but are there any significant people who criticise it in journals? Like any professionals?
Also, how would you critique them?
Say for example one professional wants to abolish psychiatric harm claims, I just don't understand how you could get a first. I'd probably just say "It's a negative thing, because then there'd be fair system, because claims would go unrecognised"
But how do you get from a 2:2 or say a 2:1 with an answer like that, to a 1st?
I just don't understand how you could bring some originality into that and have an independent essay from the rest, it seems so obvious and limited to what you could say.
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Re: Tort Law: How would you criticise claims for psychiatric harm...?I'm not saying that you're being incredibly lazy (hint; I am saying that) but I've not done delict in a long time and yet ten seconds of research divulges this:
The fly in the bottle and psychiatric damage in consumer law
M.H. Ogilvie
Notwithstanding the very real mental damage occasionally caused by accidents, whether vehicular or consumer, Anglo-Canadian courts have historically been reluctant to expand liability in this area for a number of very understandable *J.B.L. 86 reasons. In Victorian Railway Commissioners v Coultas, 4 the very first case to consider a suit for damages for nervous shock in which a woman fainted and suffered nervous shock when she was almost hit by a train at a railway crossing, Sir Richard Crouch offered two policy reasons for rejecting the claim: first, he feared that such claims would become part of every negligence case, the floodgates argument,5 and secondly, that the courts might experience difficulty in determining whether a claim is imaginary or not.6 These two reasons for caution have been subsequently repeated,7 and additional policy reasons have also been suggested.8 Thirdly, there remains the robust view that the law should simply not compensate at all for what some people regard as a trivial matter, rather should encourage the development of mental toughness and fortitude in the face of the vicissitudes of life.9 Fourthly, human activity should not be unduly burdened by being required to compensate for all hurt feelings resulting from negligence in addition to the physical hurts.10 Fifthly, notwithstanding medical advances insufficient is still known indisputably about mental illness, for example, how it is distinguishable from mere upset; whether it is related to physical factors or independent; and why third parties not immediately threatened by physical harm themselves should respond so severely.11 Sixthly, the imposition of liability for mental trauma which is physically unseeable affects the normal contours of tort law which are determined by physically seeable injury; in this, psychiatric damages are similar to economic loss damages.12 Seventhly, should liability be unduly extended for psychiatric damages, there might be an excessive burden on the insurance industry.13 Eighthly, there may also be cultural reasons for resistance to claims for such injury ranging from the stigma associated with mental illness14 to attitudes toward various factors such as hygiene, diet and cleanliness characteristic of particular cultures or religions.15 -
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Re: Tort Law: How would you criticise claims for psychiatric harm...?Read Lord Steyn's opinion in White v Chief Constable of South Yorkshire. Read the Law Commission "Report on Liability for Psychiatric Illness" (1998). Search the legal databases for academic comment. You don't need originality in undergraduate work to score well. What you should be striving for is a breadth of research and reading which allows you to identify the key arguments and debates surrounding the main issues. It is how well you evaluate and analyse those arguments, hopefully developing and sustaining your own line of argument using appropriate authorities, which will lift you into the higher categories of marks.
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Re: Tort Law: How would you criticise claims for psychiatric harm...?(Original post by Norton1)
I'm not saying that you're being incredibly lazy (hint; I am saying that) but I've not done delict in a long time and yet ten seconds of research divulges this:
The fly in the bottle and psychiatric damage in consumer law
M.H. Ogilvie
Notwithstanding the very real mental damage occasionally caused by accidents, whether vehicular or consumer, Anglo-Canadian courts have historically been reluctant to expand liability in this area for a number of very understandable *J.B.L. 86 reasons. In Victorian Railway Commissioners v Coultas, 4 the very first case to consider a suit for damages for nervous shock in which a woman fainted and suffered nervous shock when she was almost hit by a train at a railway crossing, Sir Richard Crouch offered two policy reasons for rejecting the claim: first, he feared that such claims would become part of every negligence case, the floodgates argument,5 and secondly, that the courts might experience difficulty in determining whether a claim is imaginary or not.6 These two reasons for caution have been subsequently repeated,7 and additional policy reasons have also been suggested.8 Thirdly, there remains the robust view that the law should simply not compensate at all for what some people regard as a trivial matter, rather should encourage the development of mental toughness and fortitude in the face of the vicissitudes of life.9 Fourthly, human activity should not be unduly burdened by being required to compensate for all hurt feelings resulting from negligence in addition to the physical hurts.10 Fifthly, notwithstanding medical advances insufficient is still known indisputably about mental illness, for example, how it is distinguishable from mere upset; whether it is related to physical factors or independent; and why third parties not immediately threatened by physical harm themselves should respond so severely.11 Sixthly, the imposition of liability for mental trauma which is physically unseeable affects the normal contours of tort law which are determined by physically seeable injury; in this, psychiatric damages are similar to economic loss damages.12 Seventhly, should liability be unduly extended for psychiatric damages, there might be an excessive burden on the insurance industry.13 Eighthly, there may also be cultural reasons for resistance to claims for such injury ranging from the stigma associated with mental illness14 to attitudes toward various factors such as hygiene, diet and cleanliness characteristic of particular cultures or religions.15
(Original post by cliffg)
Read Lord Steyn's opinion in White v Chief Constable of South Yorkshire. Read the Law Commission "Report on Liability for Psychiatric Illness" (1998). Search the legal databases for academic comment. You don't need originality in undergraduate work to score well. What you should be striving for is a breadth of research and reading which allows you to identify the key arguments and debates surrounding the main issues. It is how well you evaluate and analyse those arguments, hopefully developing and sustaining your own line of argument using appropriate authorities, which will lift you into the higher categories of marks.
Thanks guys. Not being lazy, just highly confused by what we are to write about acaademics. Makes no sense. I always thought you needed originality to get a first? -
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Re: Tort Law: How would you criticise claims for psychiatric harm...?I suspect that 'originality' is not necessary, nor even advisable, if you mean it in the sense of 'coming up with an idea that no legal academic has ever had before'. There are a lot of very good academics, the undergrad syllabus is relatively basic; if you have an idea which no legal academic has published in a journal somewhere previously, that idea is probably wrong.(Original post by LukeCarson)
Thanks guys. Not being lazy, just highly confused by what we are to write about acaademics. Makes no sense. I always thought you needed originality to get a first?
If you mean originality in the more limited sense of drawing together the existing ideas of academics in a particular way, and giving your own opinion (backed up by appropriate sources), then yes, you need to do that. -
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Re: Tort Law: How would you criticise claims for psychiatric harm...?Commenting on all of the Law threads, haha. Might use that case for my revision too, thank you!(Original post by TimmonaPortella)
Have a look at Melville v Home Office. I compare it with White to show an absurd distinction. -
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Re: Tort Law: How would you criticise claims for psychiatric harm...?Like everyone has said, you don't necessarily need the originality, as I am sure various thinkers have already thought of it, but you DO need a way to present your view in a way that is different from others, whether it be a dramatic criticism that nobody really uses, or whether it means creating your own view.(Original post by LukeCarson)
On the scale of a first?
Basically, I understand that you'd go on to say "opens the floodgates, blah, blah" and do case law, but are there any significant people who criticise it in journals? Like any professionals?
Also, how would you critique them?
Say for example one professional wants to abolish psychiatric harm claims, I just don't understand how you could get a first. I'd probably just say "It's a negative thing, because then there'd be fair system, because claims would go unrecognised"
But how do you get from a 2:2 or say a 2:1 with an answer like that, to a 1st?
I just don't understand how you could bring some originality into that and have an independent essay from the rest, it seems so obvious and limited to what you could say.
Cheers guys. -
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Re: Tort Law: How would you criticise claims for psychiatric harm...?This counts as revision, right? It's my form of procrastination. It's an awful habit. I've checked tsr three times just since I started reading everett v comojo.(Original post by lizolove)
Commenting on all of the Law threads, haha. Might use that case for my revision too, thank you! -
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Re: Tort Law: How would you criticise claims for psychiatric harm...?I feel your pain. Most of my revision that is left to do is the memorisation of cases. I've done the notes, I just need to memorise the outcomes and so on. I've finished Duty of Care in Tort, still go OLA, Damages, defences, nuisance and so on to go. |;(Original post by TimmonaPortella)
This counts as revision, right? It's my form of procrastination. It's an awful habit. I've checked tsr three times just since I started reading everett v comojo. -
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Re: Tort Law: How would you criticise claims for psychiatric harm...?if you're that prepared you probably don't feel my pain, there's some stuff I'm going basically to have to cover again(Original post by lizolove)
I feel your pain. Most of my revision that is left to do is the memorisation of cases. I've done the notes, I just need to memorise the outcomes and so on. I've finished Duty of Care in Tort, still go OLA, Damages, defences, nuisance and so on to go. |;
edit: tbf I know the basics of most areas, it's just getting outlying irritating points sorted that's the problem. Except for consti. I've neglected consti massively. That's going to be pretty much a case of learn-everything-in-a-week.Last edited by TimmonaPortella; 10-05-2012 at 22:21. -
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Re: Tort Law: How would you criticise claims for psychiatric harm...?Consti?(Original post by TimmonaPortella)
if you're that prepared you probably don't feel my pain, there's some stuff I'm going basically to have to cover again
edit: tbf I know the basics of most areas, it's just getting outlying irritating points sorted that's the problem. Except for consti. I've neglected consti massively.
Noooo, I am far from remembering. I hate the idea of remembering all of Tort, but the actual facts that courts come up with specific governing rules to prevent floodgates opening interests me.
Right now I'm trying to suss how you can criticise psychiatric harm in a way that will separate you from saying "opens the floodgates" or expand on it like the OP and also trying to figure out a way to defend the concept in a contradicting view, and I have come up with nothing!
When you said compare the case with White, what did you mean? The extent that psychiatric damage is treated unfairly? I don't understand where to go from there really! -
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Re: Tort Law: How would you criticise claims for psychiatric harm...?Constitutional law. I thought everyone did constitutional law?(Original post by lizolove)
Consti?
Noooo, I am far from remembering. I hate the idea of remembering all of Tort, but the actual facts that courts come up with specific governing rules to prevent floodgates opening interests me.
Right now I'm trying to suss how you can criticise psychiatric harm in a way that will separate you from saying "opens the floodgates" or expand on it like the OP and also trying to figure out a way to defend the concept in a contradicting view, and I have come up with nothing!
When you said compare the case with White, what did you mean? The extent that psychiatric damage is treated unfairly? I don't understand where to go from there really!
In White, the claim to the employee was denied -- there couldn't be any advantage gained by being an employee when subjected to nervous shock. In Melville, the claimant had a job with the home office in which he had to clear out suicides from their cells. He succeeded in his claim for psychiatric harm which he got after the eighth time he did this, on the basis that insufficient counselling was provided. I find this distinction capricious.
You could also criticise Young v Charles Church. C claimed successfully as a primary victim, because he was within the scope of the danger, but what actually caused him the psychiatric harm was his seeing his friend's electrocution. It seems strange and, again, arbitrary that a C can claim successfully in this position.
Good luck trying to defend the position it's pretty much entirely indefensible
Last edited by TimmonaPortella; 11-05-2012 at 01:29. -
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Re: Tort Law: How would you criticise claims for psychiatric harm...?This makes sense, thanks. So you'd basically contradict these ideas of how one was a job requirement, yet he received a claim, whilst White didn't?(Original post by TimmonaPortella)
Constitutional law. I thought everyone did constitutional law?
In White, the claim to the employee was denied -- there couldn't be any advantage gained by being an employee when subjected to nervous shock. In Melville, the claimant had a job with the home office in which he had to clear out suicides from their cells. He succeeded in his claim for psychiatric harm which he got after the eighth time he did this, on the basis that insufficient counselling was provided. I find this distinction capricious.
You could also criticise Young v Charles Church. C claimed successfully as a primary victim, because he was within the scope of the danger, but what actually caused him the psychiatric harm was his seeing his friend's electrocution. It seems strange and, again, arbitrary that a C can claim successfully in this position.
Good luck trying to defend the position it's pretty much entirely indefensible
Constitutional Law, yeah, our university did that in Jan. Administrative law is this term.
I have no defences for the argument apart from 'it defends the public interest' and even with that I have an argument that prevents it from being true!
Just got to google some 'out there' academics! Haha.
Thanks for your advice.
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Re: Tort Law: How would you criticise claims for psychiatric harm...?Sorry, been staying away from TSR. Thinking about suing my college under Hatton v Sutherland. Anyway, yeah, that'd pretty much be my argument.(Original post by lizolove)
This makes sense, thanks. So you'd basically contradict these ideas of how one was a job requirement, yet he received a claim, whilst White didn't?
Constitutional Law, yeah, our university did that in Jan. Administrative law is this term.
I have no defences for the argument apart from 'it defends the public interest' and even with that I have an argument that prevents it from being true!
Just got to google some 'out there' academics! Haha.
Thanks for your advice.
Yeah, I always find it hard to argue that utterly incoherent law is good on policy grounds. Erm, maybe you could make reference to specific instances that aren't terribly stupid. Greatorex v Greatorex seems quite sensible to me. And the involuntary participant doctrine (or whatever it's called, I'm sure you know what I mean) seems good to me. Maybe point to the sensible extensions of "event" and "aftermath" in Galli-Atkinson and, erm, that other case. Someone v an NHS trust. I can't think of any way to defend the law as a whole, though. If you find any articles defending the position I'd appreciate a reply, though I'll probably avoid essays on it and just do problem questions in the exam... -
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Re: Tort Law: How would you criticise claims for psychiatric harm...?Still working on this essay, haha. Thanks for the help. I've been so busy (hence the late reply). Depressing times writing and memorising essays! );(Original post by TimmonaPortella)
Sorry, been staying away from TSR. Thinking about suing my college under Hatton v Sutherland. Anyway, yeah, that'd pretty much be my argument.
Yeah, I always find it hard to argue that utterly incoherent law is good on policy grounds. Erm, maybe you could make reference to specific instances that aren't terribly stupid. Greatorex v Greatorex seems quite sensible to me. And the involuntary participant doctrine (or whatever it's called, I'm sure you know what I mean) seems good to me. Maybe point to the sensible extensions of "event" and "aftermath" in Galli-Atkinson and, erm, that other case. Someone v an NHS trust. I can't think of any way to defend the law as a whole, though. If you find any articles defending the position I'd appreciate a reply, though I'll probably avoid essays on it and just do problem questions in the exam... -
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Re: Tort Law: How would you criticise claims for psychiatric harm...?Most people actually do Tort in their first year. I'm doing it in my first.(Original post by helpnow_please)
I don't want to transfer to law second year anymore o.O
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Re: Tort Law: How would you criticise claims for psychiatric harm...?I'd have to take the modules from first year which mean i get the llb(Original post by lizolove)
Most people actually do Tort in their first year. I'm doing it in my first.
(if i even get a 2:1 this year)
(if i even get a 2:1 this year)
