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Overall, Title: Unit 7 Learning Aim A: Tort and liability in negligencefor psychiatric harm
Dear Louise,
CM165JB
LAW4US
LAW4US@GMAIL.COM
07506 53580
I am writing to you regarding the accident that occurred involving your boyfriend, Andrew,
and Samantha. I understand that you have suffered severe psychological distress as a result
of witnessing Andrew's injuries. I would like to explain to you the law on negligence and
psychiatric harm and how it may apply to your situation. The law of negligence is a legal
principle (that was set out in the case of Donoghue and Stevenson 1932), this Is used when
one party owes a duty of care to another and causes injury or loss to someone else because
of their reckless or careless behaviour. This is established in the three-stage test (Caparo
test- Caparo v Dickman 1990) (1) this establishes the following. Firstly, if a duty of care was
owed by the defendant to the claimant, the next step of the three-step test is establishing if
the defendant was in breach of that duty this is set out in the case of Vaughan v Menlove
(1837) (4) the last step of the three-step test is the one of the defendants breach caused
the damage to the claimant. Psychiatric harm refers to mental or emotional damage caused
to an individual from someone else's actions, the current law on psychiatric harm was
established in the landmark case of Alcock v Chief Constable of South Yorkshire Police in
1992 (2). The case laid down the legal framework for claims for psychiatric harm in cases of
negligence, establishing the criteria for both primary and secondary victims eg primary must
be directly involved and secondary must be an individual who suffers harm as a result of
witnessing the event or its aftermath they shall then be entitled to compensation for the
psychiatric harm. Types of psychiatric harm accepted by courts include post-traumatic stress
disorder (PTSD), depression, anxiety these must be recognized by medical experts and
proven to be caused by the defendant's breach of duty in order to establish accountability.
If we now apply the three-stage test to the incident that occurred first, it must be
determined if Samantha owed Andrew and other possible victims a duty of care. Samantha
did not drive safely and was distracted by texting. Her breach of that duty by losing control
of her car and crashing into a pillar caused vibrations that led to Andrew falling off his ladder
and sustaining injuries. She had a duty of care to other road users, pedestrians, and others
working nearby, including Andrew, as a motorist on a busy street. Secondly, Samantha must
be proved to have violated her duty of care. Samantha was distracted while driving and lost
control of her automobile, resulting in a crash. The crash's vibrations also jolted Andrew's
, ladder, causing him to tumble and receive injuries. Samantha's failure to do her duties was
the direct cause of Andrew's injuries. Finally, Samantha's breach of duty must be displayed
to have caused Andrew and you harm or injury. In Andrew's instance, his shattered leg and
arm are unmistakable evidence of the accident's damage. The extreme psychological
distress you had as a result of witnessing Andrew's injuries is proof of the injury caused by
Samantha's breach of duty in your instance. With all this taken in it is possible that
Samantha is liable for the harm caused to Andrew and you. The information suggests that
Samantha breached her duty of care and caused harm to Andrew and you. This means that
psychiatric harm has occurred to you as Andrew is of “closeness” to you (relationship as set
out in Alcock v Chief Constable of South Yorkshire Police [1992] ) however, it is also possible
that Andrew or the owner of the property where the ladder was situated may also be liable
if they failed to take reasonable precautions to ensure Andrew's safety. The possible
defence from Samantha would be the one of contributory negligence this may be argued on
the basis that Andrew was cleaning windows on a ladder, which is inherently risky.
However, this is unlikely to be a successful defence as Samantha's breach of duty was the
direct cause of Andrew's injuries and the main cause of your severe psychological distress
for six months.
The likeliest verdict if the case went to court would be the one of you (Louise) being
successful in a claim for psychiatric harm as a secondary victim this is because of the Alcock
guidelines as you had proximity to the claimant eg must be in close proximity to the
accident or its immediate aftermath. You also have a close relationship (boyfriend) you have
a close relationship of love and affection with the primary victim, and the psychiatric injury
must arise from the shock of witnessing the accident or its immediate aftermath. The next
thing you experienced was shock you have suffered a recognised psychiatric illness, eg
psychological distress because of the shock of witnessing the accident or its immediate
aftermath. The damages you would receive would be the ones of special and general
damages. Special damages refer to specific financial losses incurred as a result of the injury,
such as medical expenses and lost income. General damages, on the other hand, refer to
non-financial losses, such as pain and suffering, loss of enjoyment of life, and emotional
distress. Given the severity of how the psychiatric harm was that it affected you for 6
months you would not receive this is due to the fact you only were distressed the case that
set this out was the one of Tame v NSW 2003 the case set the precedent that only being
distressed.
Yours sincerely,
Ryan
Dear Samiara,
CM165JB
LAW4US
LAW4US@GMAIL.COM
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