In order to establish whether Lord Steyn’s statement is accurate the justifications of the current laws regarding negligently caused psychiatric harm must be assessed. This area of law can be particularly emotive, with criticism aimed at the current categorisation of victims which cause many cases to fail. Through the examination of current judicial approaches to the categorisation of victims and the implementation of various controls and restrictions this essay will assess whether Lord Steyn’s criticism is justified and whether reform is necessary.
The first point to consider is how ‘pure psychiatric harm’ is defined in law. Firstly, in order for an injury to be actionable, the harm must be medically recognised (Hinz v. Berry [1970] 1 All
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Whilst the judiciary repeatedly reaffirms the need for control measures, it is argued that the law in its current state is unfair as it limits claims for harm that occurs gradually (Alcock). It also questionable whether the restrictions on claims which require greater analysis into the illness is justifiable. Lord Denning stated in White v. Chief Constable of South Yorkshire [1999] 2 AC 45 that such claims are restricted due to the cost and time requirement of expert opinion in establishing whether a condition is considered medically …show more content…
It was held in Page that there is no distinction between psychiatric and physical harm in the case of a primary victim, and providing that the risk of physical injury was reasonably foreseeable a duty would be owed. It is not necessary for the risk of psychiatric harm to be foreseeable as demonstrated in Dulieu v. White & Sons [1901] 2 KB 669. Due to the nature of the circumstances this is generally accepted as a suitable way of dealing with primary victim claims. If a person fails to satisfy the criteria of a primary victim they are deemed a secondary victim. Here, it is likely that the victim has witnessed the event or feared for the safety of another but was not in any danger themselves. As with primary victims, there must be a medically recognised condition induced by shock. The test to establish whether a duty is owed to secondary victims was set out in Alcock. It is much more stringent than the test for primary victims and greatly restricts potential claims. The judiciary impose these restrictions in order to prevent limitless claims, establish genuine psychiatric illness and restrict liability for
Corrigan, Watson and Ottati (2003) argue this strong stigma has legitimized a historically inequitable system of treatment for those with mental illness. As far back as the Middle Ages, the mentally ill were sent to prisons because they were perceived as dangerous. Beginning in the 19th century, they were transitioned to asylums and hospitals due to the widely held belief that they were not only dangerous, but also i...
Mr McKinnon must have, under the assumption of risk, known that there was a possibility for the risk of injury resulting in paralysis. Over data collected over a period of six years, showed that a total of 12 players in the rugby league code [1997 – 2002] have suffered from spinal injuries (Carmody D, et.al 2005.) This assumes that Alex must have known the possible risks and under the Civil Liability Act 2002, section 5G, “injured persons presumed to be aware of obvious risks.” Thus resulting in the assumption that he knew what could happen in such a high contact sport. Once again, this can be seen in the case Cafest v. Tombleson [2003] NSWCA 210. In this case Julianne Tombleson went roller-skating and broke her right wrist, claiming that she was not properly informed of the risks involved with the activity. However, the court found that there was a myriad of pre-emptive warnings to skaters such as highly visible signs that stated protection gear available for hire and that the rink centre will not be held legally liable to any injuries that may be sustained. This confirms and rectifies the concept of volenti non fit injuria. If the risks are clearly set out and known, one could not claim negligence for compensation, relating to the fact that Alex indisputably would have realised the potential
Scull, Andrew. “Moral Treatment Reconsidered: Some Sociological Comments on an Episode in the History of British Psychiatry.” In Madhouses, Mad-doctors and Madmen, edited by Andrew Scull. 105-121. Philadelphia: University of Pennsylvania Press, 1981).
... G. (2007). Overview of psychiatric ethics V: Utilitarianism and the ethics of duty. Australasian Psychiatry, 15950, 402-410. Doi:10.1080/10398560701439640. Retrieved from the EBSCOhost database.
It has long been acknowledged that an offender who, due to mental disorder, is incapable of understanding the nature and quality of a criminal act, or of knowing that it was wrong, should not be convicted. Bill C-54 the Not Criminally Responsible Reform Act deals with the accused who has been found Criminally Responsible because of mental disorder. Not Criminally Responsible (NCR) is defined in Section 16 of the Canadian Criminal Code, stating that if someone is deemed NCR he or she can not be held accountable for the offence they committed, if at that time they were suffering from a mental disorder. The Bill will enact three main factors which will affect the mental disorder regime in the Criminal Code and the National Defence Act. The Bill
Medical malpractice cases are difficult for the families who have lost their loved one or have suffered from severe injuries. No one truly wins in complicated court hearings that consist of a team of litigation attorneys for both the defendant and plaintiff(s). During the trial, evidence supporting malpractice allegations have to be presented so that the court can make a decision if the physician was negligent resulting in malpractice, or if the injury was unavoidable due to the circumstances. In these types of tort cases, the physician is usually a defendant on trial trying to prove that he or she is innocent of the medical error, delay of treatment or procedure that caused the injury. The perfect example of being at fault for medical malpractice as a result of delaying a procedure is the case of Waverly family versus John Hopkins Health System Corporation. The victims were not compensated enough for the loss of their child’s normal life. Pozgar (2012) explained….
In an article I found in the French newspaper (24heures/24h), which addressed an issue suffered by a lot of people in Montreal; A woman by the name of Nadya Mirarchi who fell and badly broke her ankle, underwent an operation, and is now suing the city of Montreal who are responsible for the incident. This incident has caused serious problems to a lot of people a relevant example being Mirarchi's inflammation and formation of clogs in her ankle as well as having to wait until the inflammation wares off so she could restore her ankle`s natural state and carry-on with her daily life routine.
The current law on non-fatal offences is contained in the Offences Against the Persons Act 1861 (OAPA). The Offences Against the Persons Act 1861has been deemed unsatisfactory, and in 1998, the law commission issued a draft bill suggesting reforms to both structural and specific aspects of the offences. In the 1998 draft Bill, however, injury is defined as excluding “anything caused by disease”, except for the purposes of the offence of deliberately causing serious injury. The Offences Against the Persons Act 1861 was one of many pieces of legislation to consolidate numerous areas of the law into single pieces of legislation within the same year. Beside from purely consolidating the existing law, the Act reveals a lot about the political and
First it is necessary to establish whether PC McGarry was in the "zone of danger". As he tended to the injured Wormold it is likely that he was very close to the accident, especially as he is a police offer, rather than a medic. As was the case with Guinness, it is unlikely that he would be found to be in the "zone of danger" because he was not, as far as we know, on board the balloon. He also cannot be described as a secondary victim as he does not fulfil the requirements as set out in Alcock. As far as the facts of the case that we know, PC McGarry does not have a close tie of love and affection with the victim, therefore he does not satisfy the
It was inconceivable that the complainant would have consented to the injuries which were infect inflicted on her. Consent must be freely given and fully
This offence has now been extended, which creates two new criminal offences of ill health or purposefully neglecting an individual, who is not able to make their own relevant decisions. This applies to all individuals who are not able to make decisions due to them being mentally unstable, no matter what setting they are in. The act that has been put in place offers individuals protection, especially for those that
This entails the courts fear of receiving an increase of claims regarding psychiatric injury since the symptoms of psychiatric injuries are wide ranged and it is capable to affect a wide range of people. This issue of ‘floodgate’ is mainly apprehension that this rapid increase of the same claim could obstruct the court system by spending too much compensating all victims of psychiatric injury . An example of the ‘floodgate’ policy being the one of the reasons not to compensate the victims could be seen in the case of Alcock v Chief Constable of South Yorkshire [1992] . This case included victims who witnessed the Hillsborough disaster and claimed to suffer from ‘nervous shock’ due to witnessing the event, therefore, since there were a large amount of victims and most of the victims were not primary victims and that by accepting the claims would only increase the amount of potential claims since the disaster was broadcasted on national TV thus, a larger number of potential victims. Therefore this ensures that there are lower ricks of economical loss since claims of psychiatric injury are more difficult to diagnose than physical injuries.
Criminal responsibility is the moral practice of holding an individual accountable for there crimes. This responsibility allows people who are found guilty of crimes to endure punishment or rehabilitation, which can vary in different countries and legal systems. This not only punishes and discourages crime but also allow people to see the tools of state power and the symbolic power that it has to show the community the consequences for the individual, at least when looking at serious criminal offences. This demand on individual responsibility also hold person to account for the conduct, and often society want a response that condemns remorse or regret for their actions and to reflect on their tort (Tadros, 2010). Although individual responsibility holds persons reasonable for crimes, there are certain circumstances which persons are exempt. For example, children under a certain age to not have the mental capacity of being responsible agents which refereed back to as the Latin term ‘doli incpax’, incapable of forming intent to commit a tort. In Queensland, the federal law surrounding criminal liability states that persons under the age of 14 are doli incapax (Australian Parliament, nd) This exemption can also be perceived with persons who have mental illness. These exemption are reasonable due to that some people are incapable of controlling or understanding their mental and physical actions, therefore providing reasonable outcomes for those don’t have mental guilt or physical capability to commit a crime (Australian law reform commission, 2015). This acknowledgment to those who don’t understand criminal wrongs in relation to Mens rea and Actus reas, caters to the society diversity and overall doesn’t make a person liable for a criminal act that they didn’t have the capacity to undertake.
It is apparent that insanity, automatism and diminished responsibility share similarities and differences in their range of application and in definition. Insanity and automatism are most similar in that they both are full defences (with different outcomes) which exist when a defendant does not have the necessary actus reus or mens rea, whereas diminished responsibility is a partial defence which only applies to murder. The source of the defendant’s mental abnormality is the greatest point of distinction between all of the defences. Whether the abnormality is internal, external or a diagnosed medical condition will play a significant role in which defence can be used. As defences they are all used for a similar reason, and that is to eliminate or reduce liability for criminal offences.
Teff, H. (1998) Liability for Negligently Inflicted Psychiatric Harm: Justifications and Boundaries, The Cambridge Law Journal 57,1, 92