Even after judicial attempts to clarify the principles governing liability for psychiatric harmloose ends remain. (Street on Torts) Discuss.
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'Even after judicial attempts to clarify the principles governing liability for psychiatric harm...loose ends remain.' (Street on Torts) Discuss. The principle governing the liability for psychiatric harm has attracted many criticisms. It's 'somewhat arbitrary distinction(s)'1, and mismatch between medical knowledge and legal principles2 have justified judicial, legislative and academic calls for reform. Despite these attempts, many loose ends remain. This essay will begin by briefly explaining the rules and principles that govern liability for psychiatric harm as established in Alcock v Chief Constable of South Yorkshire3. Through examining the development of case law, it will be shown that there has been a general judicial hesitance in limiting their judicial discretion and providing definitive answers in order to ensure fairness and limit floodgates. By stressing criticisms offered in the Law Commission Report, by academics and imaginary 'hard' cases, it will be argued that although the judiciary had not succeeded in clarifying the principles governing liability for psychiatric harm in a coherent and morally defensible manner, it has succeed in clarifying their stance on psychiatric claims through their insistence of wide principles in order to maintain control over the wide-ranging circumstances in which psychiatric claims arise. Before examining the principles and case law in regards to psychiatric liability, it is necessary to highlight that there are arguably different meanings of the judiciary clarifying principles governing liability for psychiatric harm. On one hand, the judiciary could clarify the principles in a 'more coherent...morally defensible'4 way by specifying and resolving the many questions that were left unanswered.
In their judgment, Lord Steyn and Lord Hoffmann display their disappointment with the principles governing psychiatric claims. Lord Steyn stated that the 'law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify'21 and Lord Hoffmann went even further in stating that 'no one can pretend that the existing law...is founded upon principle'22. With this in mind, Lord Hoffmann believed that without legislative change, courts must continue to live with them as it is now 'too late to go back on the control mechanisms as stated in Alcock'23. From this, we see the House of Lords incapability of clarifying the psychiatric claims principles in a more coherent and morally defensible manner due to the restraints from precedent. Although Lord Slynn had suggested in W v Essex County Council24 that the primary/secondary classification debate was 'not...finally closed'25, it is clear that the primary/secondary classification is still an arbitrary and rigid principle which courts cannot simply abandon. In relation to Teff's criticism of the mismatch between medical knowledge and current legal principles, Teff acknowledges that there has been several judges which have begun to use more neutral and less emotive terminology in place of 'nervous shock'26, but it is still difficult to understand why the requirement that psychiatric injury be shock-induced from a horrifying event has not be entirely abandoned. This is especially worrisome considering there was no precedent for such a requirement pre-Alcock where decisions have shown that the onset of psychiatric illness 'is more plausibly explained by the gradual, cumulative assaults' as a whole process or experience27.
The Declining Significance of 'Sudden Shock' and the 'Horrifying Event' in Psychiatric Injury Claims' in Sheila McLean, 'First do no Harm' 2006, p304 18 P. Handford, 'Mullany and Handford's Tort Liability for Psychiatric Damage' 2nd ed as extracted in Mark Lunney and Ken Oliphant, 'Tort Law: Text and Materials' 3rd ed. (2008) pg369 19 Harvey Teff, 'Personal Injury: Righting Mental Harms' (2009) 159 NLJ 1243 20 Mark Lunney and Ken Oliphant, 'Tort Law: Text and Materials' 3rd ed. (2008) p355 21 Lord Steyn in White v Chief Constable of South Yorkshire  3 WLR 1509;  2 AC 455 22 Lord Hoffmann in White v Chief Constable of South Yorkshire  3 WLR 1509;  2 AC 455 23 Ibid 24  2 AC 592 25 Lord Slynn in W v Essex County Council  2 AC 592 26 Harvey Teff, Chapter 'No more 'Shock, Horror'? The Declining Significance of 'Sudden Shock' and the 'Horrifying Event' in Psychiatric Injury Claims' in Sheila McLean, 'First do no Harm' 2006, egs of Lord Hoffmann in Gali-Atkinson and Henry LJ in Frost 27 Harvey Teff, Chapter 'No more 'Shock, Horror'? The Declining Significance of 'Sudden Shock' and the 'Horrifying Event' in Psychiatric Injury Claims' in Sheila McLean, 'First do no Harm' 2006, McLouglin v O'Brian and Chadwick 28  EWCA Civ 29 Law Commission, 'Liability for Psychiatric Illness' Report No. 249 (1998) 30 Harvey Teff, 'Personal Injury: Righting Mental Harms' (2009) 159 NLJ 1243 ?? ?? ?? ?? 1
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