Mental Damages Essay Example | Topics and Well Written Essays - 1000 words

Mental Damages - Essay Example First, the elements of negligence should be established. They are duty, breach, causation, damages. According to Caparo v. Dickman [1990] UKHL 2, if the harm that occurs is reasonably foreseeable, there is a degree of proximity between the tortfeasor and the victim, and if it would be just, reasonable and fair to impose liability, then the duty prong of the negligence analysis is satisfied. In this case the harm was reasonably foreseeable – Maria could foresee that something could go wrong if she defied orders, in that she might be incapacitated, which would leave the children essentially unattended. This is exactly the harm that happened, so this harm is reasonably foreseeable. Proximity is also established, in that the children were in Maria’s care.... Maria did not act as a reasonable person, as a reasonable person would have obeyed the rules set forth by the New Horizons regarding employees acting only with trained support staff. Therefore, breach is established. Causation is the next element. The court’s typically use the â€Å"but-for† test – would the damages have occurred but-for the tortfeasor’s actions? (Barnett v. Kensington & Chelsea NHS Trust [1968] 1 All ER 1068). In this case, the actions of Maria were the cause, because but-for her choosing to drive without supervised help, the damages would not have occurred, because there would have been a trained person to help the children on the bus. Damages are next – do Bonita and Ben have compensable damages? After all, they were physically unhurt, but apparently suffered some type of emotional damage from the incident. In this case, the court would look to the case of Page v. Smith [1995] UKHL 7. In Page, the plaintiff was physically unhurt in a minor traffic accident. However, he suffered other damages, which was that he had myalgic encephalomyelitis, and this disease recurred, although it was previous in remission. The court found that Page was a primary victim, which means that the primary victim must only show that personal injury would have been a foreseeable consequence of the tortfeasor’s actions. If this is established, that the victim was unhurt would not preclude the victim from collecting from some kind of nervous shock or psychiatric injury. Further, another case that establishes that primary victims may recover for nervous shock, if they are in danger of being injured, is Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. Therefore, even though the two