Tort Formative Problem Question
- Created by: kennedylily
- Created on: 05-12-19 14:06
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- Advising Penny
- 2. Duty of Care?
- Yes: Doctors owe a special duty of care to their patients
- Bolam v Friern Hospital Management Committee [1957]: "The test is the standard of the ordinary skilled man exercising and professing to have that special skill"
- Dr Akram was not acting in an appropriate manner as dictated by his profession
- Bolam v Friern Hospital Management Committee [1957]: "The test is the standard of the ordinary skilled man exercising and professing to have that special skill"
- Yes: Doctors owe a special duty of care to their patients
- 1. What is the Issue?
- Dr Akram has destroyed all embryos without consulting Penny before doing so
- Penny is "devastated and locks herself in her room for four days, having suffered severe emotional trauma"
- Penny is suing Dr Akram in the tort of negligence (psychiatric harm)
- 2. Actionable Damage - Psychiatric Harm?
- In Hinz v Berry [1970], Lord Denning stated that "[d]amages are however recoverable for nervous shock or... for any recognisable psychiatric illness caused by breach of duty by the defendant."
- Need the opinion of a professional psychiatrist; 'severe emotional trauma' could amount to PTSD or depression
- Penny's symptoms must fulfil the DSM-5 criteria for that illness
- 4. Primary or Secondary Victim?
- In order to be the primary victim, Penny must have been in the zone of physical danger
- In Alcock v Chief Constable of South Yorkshire [1991], Lord Ackner stated that "Mere mental suffering, although reasonably foreseeable, if unaccompanied by physical injury, is not a basis for a claim for damages"
- Therefore, it is likely that Penny is not the primary victim
- In Alcock v Chief Constable of South Yorkshire [1991], Lord Ackner stated that "Mere mental suffering, although reasonably foreseeable, if unaccompanied by physical injury, is not a basis for a claim for damages"
- In order to be the secondary victim, three criteria must be considered from Alcock [1991]
- "1. The class of persons whose claim should be recognised"
- A parent and child relationship is considered to be strong, however this claim may fail as the foetus was not yet born or being carried by Penny
- "2. The proximity of the plaintiff [both in time and space]"
- Penny was not in the 'immediate aftermath', so likely doesn't fulfil this criteria
- "3. The means by which the shock is caused"
- As Penny didn't physically see any of the aftermath, it is likely that she doesn't fulfil this criteria either
- Therefore, it is likely that Penny is not the secondary victim
- "1. The class of persons whose claim should be recognised"
- In order to be the primary victim, Penny must have been in the zone of physical danger
- In conclusion, it is unlikely that Penny has a strong claim against Dr Akram for negligence
- 2. Duty of Care?
- Need the opinion of a professional psychiatrist; 'severe emotional trauma' could amount to PTSD or depression
- Penny's symptoms must fulfil the DSM-5 criteria for that illness
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