LAWS 204 - negligence - mental injury - primary victims.

Front

In what situation can the court award damages to a secondary victim for suffering a mental injury? What is the authority for this?

Back

In the case of van soest, the court held that a secondary victim, can bring claims for damages suffered due to a mental injury, resulting from witnessing a person with a close connection to them, dying or being injured due to the defendants negligence, if the psychiatric injury suffered by the secondary victim is a recoginsed psychiatric injury on the DSM 5.

Front

What is/ is not a recoginsed psychiatric disorder and what is the authority for this?

Back

In the case of Queenstown, the court held that recoginised mental injuries are: PTSD, Major depressive episode, pathalogical greif diorder, and generalized anxiety disorder. However the court also stated that the plaintiff cannot recive compensation for mere greif as greif does not equate to clinical depression.

Front

According to proffesor todd, what is a criteria that must be met in order for a secondary victim to make a succesful claim in court for compensation for a mental injury suffered?

Back

According to proffesor todd, a reasonable person in the shoes of the defendant has to forsee the mental injury occuring within the plaintiff, due to the defendant's neligence, in order for the plaintiff to bring a succesful claim for compensation for a mental injury that they suffered.

Front

In which case will the criteria of forseability, not be met? What is the authority for this?

Back

In the case of Mcfarlane, the court held that the secondary victim must be of normal fortitude in order for the criteria of forseability to be met. If the plaintiff does not have a normal disposition to the mental injury suffered, then a reasoanble person in the defendants shoes, could not have forseen, that their negligence would trigger a psychiatric injury in a bystander.

Front

Can the plaintiff claim against the defendant for negligent infliction of mental injury in accident cases? Why/why not?

Back

Yes, the plaintiff can claim against the defendant for negligent infliction of mental injury in accident cases, because (as was stated in the case of Page v Smith) in accident cases a reasonable man in the shoes of the defendant can foresee that their negligence could cause an accident that could lead to the plaintiff suffering physical and/or mental injuries.

Front

What is the candadian approach to negligent infliction of mental injury? What is the authority for this?

Back

In the case of Saadati, the court held that in canada, it does not matter whether or not the plaintiff is a primary or secondary victim, as long as a reasonable man in the shoes of the defendant can forsee that their negligence could cause the plaintiff to suffer a mental/physical injury, that is enough for the plaintiff to bring a succesful claim in court for negligent infliction of mental injury.

Front

Discuss as to what is a distinction between the english approach and canadian approach?

Back

The english approach does not allow for the primary victim to claim further damages for being predisposed to suffering a mental injury, as was held in the case of Page v Smith, however, the Canadian approach does not draw this distinction between primary and secondary victims, as for both parties/cases, the test is on forseability.

Front

Which approach will be most applicable to cases in NZ? Why?

Back

According to proffesor todd, the canadian approach will be most applicable to cases in NZ.