Generally: recoverable in exceptional circumstances only, though courts are slow to accept it as head of damage for which tort of negligence could scope of recovery severely restricted Psychiatric Injury
a) Compensate Excluded: grief or sorrow (except for claim for bereavement in damages) b) symptoms: preoccupation w/event, Included: post traumatic stress disorder intrusive memories, increased arousal, sleeping difficulties, irritability, outburst of anger, overreaction to reminders of event, personality change etc.
Victims (1) Primary – suffers psychiatric injury after being directly involved in accident or being within the zone of danger and is either: a. Persons to whom physical injury is a foreseeable consequence of D’s negligence o Page v Smith-collision b/w cars, no physical injury to C but within hours of coming home felt obviously exhausted, claimed accident caused the return of Chronic Fatigue Syndrome from which he suffered in mild form for past 20 years. Unlikely he’d beable to ever work again. Lord Lloyd for majority in HL held that: a) where physical injury to C was a foreseeable consequence of D’s negligence, C is also a primary V for purposes for the law on psychiatric injury b) b/c in cases of physical injury to primary Vs, D is under duty not to cause him foreseeable physical injury, same applies to psychiatric injury
– to be treated as one so in psychiatric injury cases type of damage for purposes of foreseeability primary V placed in foreseeable physical danger won’t have to prove psychiatric injury was also foreseeable +
decision to conflate 2 types of injury potentially reduced impact of Wagon Mound foreseeability in PI cases.
Bailey & Nolan: both principles should be discarded & replaced w/clearer, more rational ones. In the mean time courts should continue to distinguish Page where circs are sufficiently different & its application would cause injustice. a) C’s presence in area of foreseeable physical risk shouldn’t ensure her classification as primary V for purposes of liability for psychiatric injury. Instead primary Vs should be defined as all those who suffer psychiatric injury as a result of death, injury, imperilment of another. Would ensure criteria for secondary Vs laid down in Alcock would apply in all cases where rationale for those criteria is satisfied so that attempts to limit primary V category to those in the area of foreseeable physical risk would be doomed to fail. b) Psychiatric & physical injury should be regarded as different types of damage so that in all primary Vs cases it would be required for psychiatric injury to be foreseeable in a person of ordinary fortitude, unless D knew or should have known of C’s particular suspectibility (apparently correct app of thin skull rule!) NB: there are many signs in both judiciary & Law Commission that Page v Smith won’t last, though Lords in Rothwell preferred to “leave it for another day”. b. put in fear.
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