Courts Have Developed And Limited Law For Psychiatric Victims - Free Essay Example

Sample details Pages: 8 Words: 2270 Downloads: 4 Date added: 2017/06/26 Category Law Essay Type Critical essay Level High school Did you like this example? Critically analyse the way the courts have developed and limited the law in relation to claims for psychiatric harm by secondary victims Date authored: 24 th May, 2014. As Lord Steyn noted in his judgment in White and Others v. Chief Constable of South Yorkshire and Others, 1 the law on the recovery of compensation for psychiatric harm is: a patchwork quilt of distinctions which are difficult to justify What Lord Steyn meant by this is that; the law regarding claims for psychiatric harm has been developed in a piecemeal way through common law and can often be seen to conflict with itself in many areas.2 It is due to this that claims by secondary victims for psychiatric harm are often hard to assess as to their likely success and merit in a court of law. 3 There is also an argument that recent policy decisions by judges have overly restricted a secondary victims access to justice. First of all it is important to understand what is meant by the terms primary and secondary victims in relation to psychiatric harm and what the difference between these potential claimants is. Primary victims were first identified in Dulieu v White 4. Th is case established that a primary victim can recover damages for psychiatric injury stemming from actual physical injury or from a reasonable fear or apprehension of danger to their physical safety. This was expanded in Page v Smith5 Don’t waste time! Our writers will create an original "Courts Have Developed And Limited Law For Psychiatric Victims" essay for you Create order where it was held that if physical harm is foreseeable, the claimant can recover in respect of both physical and psychiatric harm, even where the latter is not in itself foreseeable. This reasoning was applied in Corr v IBC Vehicles Ltd6 where the House of Lords held that Corr was a primary victim and his psychiatric illness was the same ‘type of harm as his foreseeable physical injuries. His suicide was not an uncommon manifestation of depression. It could be argued that Lord Lloyds definition of a primary victim as a party who is within the zone of physical danger7 limits the primary victim category. However, Lord Hope in Grieves v FT Everard Sons8 cautioned against expanding this category for policy reasons and to prevent opening the potential floodgate for psychiatric harm claims. These same cautious policy considerations can also be seen when examining the secondary victim category and the criteria needed to make a claim as a secondary victim for psychiatric harm. There is also confusion among judges and claimants about which category a claimant may fall in to. 9 A secondary victim can be described as someone who is not personally at risk of physical injury but who suffers psychiatric injury as a result of witnessing someone else being harmed or endangered. One of the main policy considerations for this category of claimants is that the psychiatric injury suffered must be reasonably foreseeable in a person of ‘ordinary fortitude in the same circumstances. In Bourhill v Young10 the House of Lords rejected a claim on the grounds that the claimant was not herself in physical danger and that she was particularly susceptible to shock. It could be argued that this area of law should follow the thin skull rule established in Smith v Leech Brain Co11 and that just because a person is particularly susceptible to harm, this should not remove the defendants liability.12 Indeed, the modern approach set out in McLoughlin v OBrian 13 does not place so much emphasis on a persons fortitude but more on the principles of reasonable foreseeability or by independent policy-based factors. These factors include the closeness of the relationship between the claimant and accident v ictim, the proximity of the claimant to the accident itself and whether the shock was induced by what the claimant saw or experienced as opposed to what they were told after the event. It could be argued that this is a much fairer system as it allows for a more level playing field for claimants and that the (possibly outdated) notion of a persons fortitude is partially dispensed with. However, after this case the mood shifted towards a more restrictive approach in Alcock v Chief Constable of South Yorkshire Police. 14 This was a test case involving ten representatives of the friends and families of the victims of the Hillsborough disaster and it is from this case that many of the issues surrounding secondary victims arises. None of the claimants were able to recover as primary victims as they had not been directly involved in the disaster but the court had to consider whether they could recover as secondary victims. The Chief Constable of South Yorkshire Police admitted negligence in respect of those who had been killed or injured at Hillsborough but argued he did not owe a duty of care to those who had suffered psychiatric damage as a result of seeing or hearing the news of what had happened. The claims were rejected by the Court of Appeal and the House of Lords and Lord Oliver set out guidelines (known as Alcock control mechanisms) as to when a claim should be allowed. These related to the class of persons whose claim should be recognised, the proximity of the claimant to the accident a nd the means by which the shock is cause. This has severely limited the scope for who may be classed as a secondary victim and has arguably led to confusion and therefore a lack of parity in judgements.15 Firstly it must be shown that there is a ‘close tie of love and affection between the claimant and the accident victim. This is presumed in spouses; and parents and children (this can be rebutted) but not presumed in siblings and other relatives (they must prove this tie exists). It could be considered that this is unfair and overly limiting. Asking a sibling to prove they had a close relationship to a victim could be argued to be emotionally damaging, especially considering the claimant may already be suffering from a psychiatric illness due to the death of a loved one. Conversely, presuming this relationship between parents and children may not be the correct approach. A claimant who did not have a particularly close tie to a parent may attempt to make a spurious claim based on this policy. Secondly a claimant must prove their proximity to an accident or happen upon its immediate aftermath to have a successful claim. However, cases have shown that this policy rule may be overly subjective and is not applied evenly or fairly across all cases. For example in Mcloughlin 16 it was agreed that witnessing the victims injuries two hours after the event was enough to establish proximity. However, in Alcock17 it was deemed that witnessing the aftermath nine hours after the event was not sufficient to establish proximity and therefore establish a claim. The later case of Galli-Atkinson v Seghal18 allowed a mothers claim for psychiatric harm saying the aftermath could be viewed as being made up of different parts – the visit to the scene and the hospital morgue. These three differing judgements show that Lord Steyns patchwork comment to be accurate when dealing with secondary victims. Thirdly there is the requirement that there must be immediate perception and shock. That is to say that the harm must be sustained as a result of the sudden and direct appreciation of a shocking or horrifying event rather than as the result of a continuous process of dealing with or responding to such events. Potentially conflicting judgments can also be seen here which may overly limit the scope for potential claimants. In Sion v Hampstead Health Authority19 it was ruled that a father did not satisfy the immediate perception requirement as he watched his son die over a fourteen day period. However in Walters v North Glamorgan NHS Trust20 a mother was allowed to recover for damages after the death of her baby son. The Court held that the aftermath wasnt confined to one moment in time and the thirty six hour period could be classed as a single horrifying event. Limiting claims in this way could be considered very unfair. Not everyone is affected by events in the same way and is it fair to say that because someone took a long time to die means that a claimant has suffered less psychiatric harm because of this? 21 It could be argued that in fact, they may have suffered more psychiatric harm due to the prolonged nature of the events. Other potential secondary victims have also seen their scope for claiming limited in recent cases; for example, psychiatric harm suffered by emergency service workers and rescuers. In the past the judi ciary have tended to allow claims for rescuers.22 However in White 23 the House of Lords held that neither a rescuer nor an employee was placed in any special position in relation to recovery for psychiatric harm by virtue of being a rescuer or employee. This therefore limited claims for recovery for psychiatric harm. It could be argued that emergency services personnel should be limited in their scope for claiming psychiatric damage as they would have known and accepted the risk by entering in to this line of work. However, establishing a blanket approach may limit their access to justice for extremely horrific events resulting in psychiatric harm. Claims for witnessing self harm have also been limited. Where a claimant suffers psychiatric harm after witnessing the defendant negligently injure himself public policy grounds have been used to deny recovery for damages. 24 There have been calls for legislative intervention. The Law Commission Report on Liability for Recovery f or Psychiatric Illnesses 1998 25 concentrated on the position of secondary victims recognising the flood gates arguments. It suggested the ‘control mechanisms in Alcock should be modified by restricting the criteria of proximity and concentrating on the requirement of a close tie of love and affection. The Law Commission recommended a fixed list of relationships where a close tie would be conclusively proved. It also recommended the abolition of the requirement of a sudden shock and that it should include negligently inflicted psychiatric injury that had developed over a number of years. The Commission also wanted liability for situations where the defendants actions in imperilling themselves caused the claimants psychiatric illness. They incorporated a draft bill (Draft Negligence (Psychiatric Illness) Bill) and attached it to the Report but Parliament has yet pass this in to legislation. In conclusion then, while it is fair to say that not everyone should be able to claim for witnessing an accident, as it would lead to an overwhelming number of cases, there is an argument that the courts may have overly limited the scope under which a secondary victim can claim. The proximity considerations, closeness of relationship and immediate perception requirements have been shown to be potentially over limiting and unfair. Judgements could also be said to be inconsistent and this makes it difficult for the public to have confidence in the court system. It is likely that legislation is needed to codify existing case law to allow for a fairer system with greater parity and consistency. However, the fact that sixteen years have passed since the initial draft stage of legislation aimed at solving the problems, shows that this is not a priority for recent governments. Bibliography Cases Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 Bourhill v Young [1943] AC 92 Chadwick v British Railways Board [1967] 1 WLR 912 Corr v IBC Vehicles Ltd [2008] UKHL 13 Dulieu v White [1901] 2 KB 669 Galli Atkinson v Seghal [2003] EWCA Civ 697 Greatorex v Greatorex [2000] 1 WLR 1970 Grieves v FT Everard Sons Ltd [2007] UKHL 39 McLoughlin v OBrian [1983] 1 AC 410 Page v Smith [1995] UKHL 7 Sion v Hampstead Health Authority [1994] EWCA Civ 26 Smith v Leech Brain Co [1962] 2 QB 405 Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792 White and Others v. Chief Constable of South Yorkshire and Others [1998] UKHL 45; [1999] 2 AC 455 Journals and Reports Hogarth A, Unpicking the Patchwork Quilt Secondary Victims and Psychiatric Injury Where are we now? [2010] 12KBW Kotak D, Communication with relatives and carers — another source of litigation [2008] JICS 212, 213 Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998) Leverick F, Counting the ways of becoming a primary victim: Anderson v Christian Salvesen. [2008] ELR 258, 263 Texts M Elliot, Secondary victims of negligence in (eds), Litigating Psychiatric Injury Claims: Personal Injury and Medical Negligence (1st, Bloomsbury Professional, London 2012). Websites Patten K, Patchwork quilt law (newlawjournal.co.uk 2013) https://www.newlawjournal.co.uk/nlj/content/patchwork-quilt-law accessed 23/05/2014 1 White and Others v. Chief Constable of South Yorkshire and Others [1998] UKHL 45; [1999] 2 AC 455 2 Keith Patten, Patchwork quilt law (newlawjournal.co.uk 2013) https://www.newlawjournal.co.uk/nlj/content/patchwork-quilt-law accessed 23/05/2014 3 Andrew Hogarth, Unpicking the Patchwork Quilt Secondary Victims and Psychiatric Injury Where are we now? [2010] 12KBW 4 Dulieu v White [1901] 2 KB 669 5 Page v Smith [1995] UKHL 7 6 Corr v IBC Vehicles Ltd [2008] UKHL 13 7 Supra Note 3 Page v Smith [1995] UKHL 7 8 Grieves v FT Everard Sons Ltd [2007] UKHL 39 9 F Leverick, Counting the ways of becoming a primary victim: Anderson v Christian Salvesen. [2008] ELR 258, 263 10 Bourhill v Young [1943] AC 92 11 Smith v Leech Brain Co [1962] 2 QB 405 12 M Elliot, Secondary victims of negligence in (eds), Litigating Psychiatric Injury Claims: Personal Injury and Medical Negligence (1st, Bloomsbury Professional, London 2012). 13 McLoughlin v OBrian [1983] 1 AC 410 14 Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 15 Supra Note 3, p7 16 Supra Note 13 17 Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 18 Galli Atkinson v Seghal [2003] EWCA Civ 697 19 Sion v Hampstead Health Authority [1994] EWCA Civ 26 20 Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792 21 D Kotak, Communication with relatives and carers — another source of litigation [2008] JICS 212, 213 22 Chadwick v British Railways Board [1967] 1 WLR 912 23 Supra Note 1 24 Greatorex v Greatorex [2000] 1 WLR 1970 25 Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998)

Global Warming And Its Effects On The World - 1074 Words

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Subjects to Citizens Locke, the Enlightenment Free Essays

The idea of people as citizens rather than as subjects originates in 16th century Europe, during the Early Modern Period. During this period, European social order was in a state of flux as the rule of kings was confronted with a persistent and determined challenges defined by social forces that were pushing for more secular and democratic governments. There were both individuals and events that today may be seen as powerful drivers of those forces, and among them are John Locke, the Enlightenment, and the French Revolution. We will write a custom essay sample on Subjects to Citizens: Locke, the Enlightenment or any similar topic only for you Order Now As such a force, the Enlightenment, which began during the mid-17th century and remained a major political and philosophical phenomenon until approximately 1800, had tremendous impact in the rise and triumph of democracy over monarchy. The Enlightenment was catalyzed by the persistent discourse of a number of philosophers and historians, one of the foremost of which was John Locke. The magnitude of change introduced by the Enlightenment is rendered more clearly when viewing that period in context of the preceding era—the Medieval Period, during which the rule of kings prevailed, sustained by an embedded religious institutions that qualified the lineages of kings for ruler ship through divine ordainment. The Church enjoyed considerable reciprocity from the crowns by doing so, because rulers recognized the equity that religion held in the minds of their â€Å"subjects†, and found value in making mutually beneficial agreements with the church to preserve this closed loop cycle of maintaining and preserving a rigid social order. The losers of course were the â€Å"subjects† of those kingdoms, who ultimately had little say in who ruled them, and who were indoctrinated into a life of mute slavery and poverty, deprived of both education as well as the right to imagine upward social mobility, much less the access to opportunities to actually pursue such improved quality of life. It was the endpoint of these social dynamics, and the progressive deterioration of social responsibility throughout the dual leadership trees of church and crown, that catalyzed the French Revolution during the last decade of the 18th century. The French Revolution, in a nutshell, was the revolt of the long repressed peasantry against what they rightfully recognized as a corrupt governmental power cartel defined by the closed loop relationships between the crown and the Church. The French Revolution really punctuates the spirit of the Enlightenment, because the Enlightenment was all about waking people up to the notion that they had a right to select their leaders and that anybody was capable of exercising reason and logic in doing so, and most importantly that exercising those capacities was a much better answer to society’s problems than continuing to rely on superstitious belief in the right of a lineage of kings to continue ruling despite worsening social conditions. It was not until the French Revolution however that the Enlightenment really manifested full force. John Locke died nearly a century before the French Revolution, but he played a key role in developing the philosophies that activated and drove the Enlightenment, particularly through his composition of the Two Treatises. In these documents, he makes an effort to refute the notion that people do not have the capacity or knowledge or political understanding to select their own rulers. Locke’s philosophical arguments here really took those of opposing contemporaries like Sir Robert Filmer, whose viewpoints closely reflect the social order maintained by pre-Enlightenment establishment. Filmer’s Patriarcha: The Natural Power of Kings Defended Against the Unnatural Liberty of the People, a composition that presented arguments supporting the pre-existing social order of monarchic rule. The prevailing establishment justified monarchic rule through a number of arguments, both sociological and religious. Among these, they did so by arguing that a nation is like a family, with the population as the children as the king as the parent. Another argument was that to share the power of leadership in a democratic manner would be to invite and embrace the breakdown of social ethics, presumably because the natural disposition of a populace is to chafe under rules and laws and to desire more freedom, and that the endpoint of this would be excessive liberties, the deterioration of morality and ultimately the rise of an era where selfish and unjust rulers would take power. Rulers believed that the population simply could not, nor would they ever in a sustainable manner be capable of, responsibly selecting its own leaders. Locke challenged these ideas by introducing the concept of the Commonwealth, which would be defined by a social contract whereby the members of the Commonwealth participate in surrendering a certain level of liberty in order to ensure the stability of society and the preservation of the community. This surrender would only be the minimum required to preserve the peace, safety and security of the commonwealth, and part of this would involve the implementation of a democratic or republican system by which citizens would have at least a representative body in the government to ensure their needs were addressed. Notably, this was a key factor that activated in the French peasantry a desire to overthrow the First and Second estates, which they felt were taxing them without caring for their needs or interests. How to cite Subjects to Citizens: Locke, the Enlightenment, Essay examples