Monday, 1 July 2013

[Torts] Psychiatric Harm

Psychiatric Harm

Relationship of P to victim
Relationship of D to victim
Relationship of D to plaintiff
Proximity in time and space
Normal fortitude
Annetts; Gifford
Annetts; Gifford
Jaensch; Annetts; Reeve v BCC

Bystanders and rescuers
            Rescuers might seek to recover as a mere bystander
                        But rescuers who come to clean the scene is not witnessing the direct aftermath?
                        Wicks interpreted “at the scene” liberally so that time frame can be reasonably extend to witnessing the aftermath of accident, at least whilst persons are still at risk (section 30(2)(a) CLA NSW)

            Traditionally cannot recover (Bourhill v Young)
            IF there are close physical proximity and sudden shock, unrelated to primary victim, it is reasonably foreseeable (McHugh J in Gifford)
            If accident is particularly “horrific” (Alcock)
            Categories of plaintiff are not technically enclosed (Brennan J in Jaensch)

            Key question- whether he suffered a recognizable psychiatric illness (Hinz) that was reasonably foreseeable (Annetts, Tame). This approach acknowledged in Wicks (at [33]).
            Is it reasonably foreseeable that a rescuer would see such a scene? Normally yes and then the case weakens.
            Does he qualify as a rescuer? Consider if he arrived right after the event-

Recovery is denied in cases involving bedside vigils: Anderson v Smith

Television viewers
            McHugh J: Central question when the claimants are not family members to the person injured is whether they are neighbours in the Atkinian sense of that term. It depends on ‘whether the plaintiffs were so closely and directed by…’ and whether they have ‘close and loving relationship’
Lord Wilberforce’s Three Rules
            1. There is a limit on the class of persons who can claim; only the closest of family ties may recover
            2. There needs to be proximity in “both time and space”; he means direct and immediate sight or hearing of the incident.
            3. Shock caused by way of communication was not recoverable.

From Annetts and Gifford
Gleeson: Reason for establishing a duty between the plaintiffs and defendants is because of the pre-existing relationships between the plaintiffs and the defendants. Although not clear whether this is a precondition to recovery for communicated nervous shock but it will remain as a key factor
Gaudron: Her Honour was reluctant to abandon the direct perception rule and therefore it would be hard to claim for psychiatric harm from viewing TV.
Hayne: Pre-existing relationship was a decisive factor. Recovery therefore is highly likely as his Honour also disregards proximity as a requirement.
Gummow and Kirby: Three rules of Lord Wilberforce are still relevant because more than foreseeability is required. Absence of direct perception and sudden shock or pre-existing relationship is unlikely to allow a claimant to succeed.
Callinan: His Honour’s decision seems to favour recovery when there is special relationship. He extended immediate aftermath to include communication of news. His Honour opinioned that the communication must occur as soon as reasonably practicable. 
McHugh: His Honour did not exclude liability for communicated nervous shock. He placed, however, a high emphasis on relationship between the primary victim and the plaintiff.
Overall: They required more than mere foreseeability and did not restrict liability in cases involving communicated nervous shock. However, all judges seem to have evinced that ‘close tie of love and affection’ is an important factor.

Caring family member
            Anderson v Smith denies recovery in cases involving bedside vigils.
            Principles from Annetts, however, seem to be against this precedent as Annetts rejected suddenness as requirement of communication. However, it is questionable whether suddenness is rejected as a requirement onset.

False dissemination of tragic news and causing family member to suffer psychiatric illness
            The claim is likely to succeed on the basis that there are fewer concerns about indeterminacy. Wilkinson should be cited.

Economic loss as a result of psychiatric harm
            Recovery never likely if the court follows the NSW Supreme Court decision of Sloss v NSW

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