Seminar 6 Teff Article Quiz PDF

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Seminar 6 Special Liability Regimes – Negligently Inflicted Psychiatric Injury Article Reading Exercise 1. If you were to reference this article in an assignment such as a coursework, what reference would you use? (Please refer to the Coventry House Referencing Guide) Harvey Teff, ‘Liability for Negligently Inflicted Psychiatric Harm: Justifications and Boundaries’ (1998) 57(1) CLJ pp. 91-122

2. At the time at which this article was written, at which institution was Harvey Teff a professor? University of Durham

3. On page 93, how does Teff describe the limitations placed on recovery by secondary victims? Teff writes that these limitations “defy logic and preclude recovery except in narrowly defined circumstances”.

4. On page 93, how does Teff describe the requirement that secondary victims, other than those where a close tie of love and affection is presumed, must prove a close tie of love and affection with the primary victim of the negligence? Teff writes that this “represents an embarrassment to the legal process as well as to the substantive law”.

5. On page 94, Teff quotes Jane Stapleton as having said ‘no reasonable boundaries for the cause of action [can] be found and this [is] an embarrassment to the law’. Where does this quotation derive from? Jane Stapleton’s article ‘In Restraint of Tort’ written in 1994

6. Explain the term ‘compensation neurosis’. What are Teff’s arguments in respect of limiting recover due to ‘compensation ‘neurosis? The term compensation neurosis is used both to signify/imply malingering (the fabricating of symptoms/illnesses) and also as a general term covering both genuine illness and deliberate deceit. It should not be considered as a primary determinant of the recovery process, there is little evidence to indicate that fraud and malingering actually pose major problems. Compensation neurosis is comparatively rare as a determinant of the recovery process.

7. Which case does Teff utilise on page 102 in order to explain the difference between psychological illness and normal human emotions and their normal physical consequences? Reilly and Reilly v Merseyside Regional Health Authority [1995] 6 Med.L.R. 246 8. How does Teff use the analogy with a ‘slight scratch’ to support his arguments in respect of recovery for pure psychiatric injury. He says that no one would sue in negligence for just a “slight scratch”, or a momentary fright. People do not sue for what they see as rather small or insignificant because they know that a claim for something so pathetic will not succeed. 9. How does Teff use the cases of Johnstone v Bloomsbury Health Authority [1991] 2 All ER 293 and Walker v Northumberland County Council [1995] 1 All ER 737 to further his own argument in the section entitled ‘The growth of liability for stress and injury to feelings’? In these cases, the injury did not have to be shock induced or caused by a single event and the judgements did not address the existing case law on psychiatric illness – this is indicative of development away from the nervous shock mainstream.

10. Summarise Teff’s arguments in respect of: a) Sudden Shock Alcock elaborated on the form which shock must take – sudden shock. The current scope of liability in negligence for “pure” psychiatric damage is that the plaintiff must have suffered a recognised psychiatric illness, induced by sudden shock. The concept of sudden shock encourages debateable distinctions and comparisons which defy a medical understanding of how psychiatric conditions arise.

b) Contingent Proximity Factors Contingent proximity factors are sudden shock, spatial proximity, time, and means of perception. The treatment of proximity as dependent on physical or temporal closeness and closeness of familial relationship has permitted random outcomes which do not correlate with each other (arbitrary). There is also a distorted interpretation of foreseeability. The spectre of floodgates in relation to proximity is unconvincing. Most people do not have sufficient emotional involvement for a recognisable psychiatric disorder to arise, let alone be foreseeable. The focus should be on how bound up with the defendant’s act the claim is, rather than on contingent proximity factors which may include: the number of hours passed since the event prompting the claim, the number of miles the plaintiff was from the scene; whether the plaintiff should be recognised as a primary or secondary victim etc. Reasonable foreseeability is subject to these contingent proximity factors which must be sufficient; fair, just and reasonable.

c) The Primary/Secondary Divide Page v Smith was a classic case of misplaced line drawing. Although Lord Lloyd’s differentiation was designed to minimise the risk of floodgates, it was destined to produce more litigation and more anomalous line-drawing. The label of ‘secondary victim’ confers an inferior legal status on certain claimants and makes them seem less deserving of a remedy. It would be better if a claim had a broad based liability regime rather than a bare status of primary or secondary victim.

11. At page 116, how does Teff describe the concern that basing compensation on reasonable foreseeability alone would lead to a proliferation of claims? A number of people foreseeably injured are denied a remedy because of an unsubstantiated and exaggerated concern. Teff suggests that a framework rooted in reasonable foreseeability but sensitive to realities of psychiatric harm would be more fitting.

12. At page 117, how does Teff suggest that the control mechanisms for ‘secondary victims’ should be considered? What effect does he perceive that this will have? Teff argues that control mechanism should instead be indicators. Reducing the status of the control mechanisms for the secondary claimant from control mechanisms to indicators would stop liability for psychiatric illness from being more incoherent that several other areas of negligence law.

13. How does McLachlin J describe the proximity in Canadian National Railway v Norsk Pacific Steamship Co. (1992) 91 D.L.R. (4th) 289, at p.368-369? Proximity cannot function as a decisive criterion. Proximity should not be a test in itself but a broad concept. It should be an umbrella term, covering many different circumstances in which the relationship between the parties is just and reasonable to permit recovery.

14. Summarise Teff’s argument in respect of ‘causal proximity’ Causal proximity is focused on closeness of causal connection and helps to decide whether psychiatric harm to the plaintiff should have been within the defendant’s contemplation. It facilitates a rational view of culpability....