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It is clear that psychiatric injury presents the law with the most profound problems and it has only kept it under control by drawing a series of arbitrary lines. Discuss the above statement.

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Introduction

1. "It is clear that psychiatric injury presents the law with the most profound problems and it has only kept it under control by drawing a series of arbitrary lines." Discuss the above statement. (40 Marks) To some extent, the above statement could be considered to be true. The law to psychiatric injury in tort is based on common law rulings and there is no set statutory provision to govern psychiatric matters. This is due to the fact that psychiatric illness is a matter involving a person's mind and mental emotions are always subject to change in changing situations. Courts have however made various attempts to categorise psychiatric illness in a 'series of arbitrary lines' to set a framework for various types of psychiatric illness claims. The courts will only grant remedy to what is 'medically recognised psychiatric illnesses such as, post traumatic stress disorder, organic depression and so on. Acute emotions such as grief and distress have no ground to a claim of psychiatric illness in law. Although the term, 'nervous shock' has been disapproved by the judiciary and replaced by 'psychiatric illness'1, psychiatric illness has to be caused from sudden shock of witnessing or participating in a event2 There are two types of claimants, primary victims and secondary victims. Primary victims are those claimants who have suffered psychiatric illness by being physically injured or who are put in physical danger but only suffer psychiatric illness due to the defendant's negligence. ...read more.

Middle

This was the foundation of the modern law psychiatric claims. Thus, all claims had to meet three requirements in order to be compensated for psychiatric illness: the class of persons whose claim should be recognised; the proximity of such persons to the accident; and, the means by which the psychiatric illness was caused. As will be discussed, modern cases of secondary victims still follow Lord Wilberforce's 'control mechanisms' but the Law Commission in 1998 published a report to further enhance the law to psychiatric claims omitting two of Lord Wilberforce's control mechanisms. The first requirement is that in order to claim for psychiatric illness there has to be a tie of love and affection for the person affected, 'the closest of family ties'8. Generally in English courts the relationship of husband/wife and parent/child are the only ones where damages have been recovered.9 Lord Wilberforce held this restriction as he believed that 'defendants cannot be expected to compensate the world at large'10. In Alcock v Chief Constable of South Yorkshire11Lord Keith believed that fianc�(e)s should also be included as with spouses and the decision was a little harsh as the plaintiff in Alcock lost her fianc� whom she had a relationship with for four years. The Law Commission however, is deemed to propose a statutory 'fixed list' of relationships. ...read more.

Conclusion

The commission points that the duty of care owed by the defendant to a secondary victim is an independent duty the duty is only owed in circumstances where it is 'just and reasonable'15. The Law Commission report 1998 seeks to abolish the event proximity and the psychiatric cause control mechanism. To conclude, it could be said that the law of psychiatric injury is not and will never be expected to be stable as psychiatric illness is awkward to define exactly. There is no statutory act to govern this matter and Lords in courts have to establish a successful claim by foregoing cases. Liability for psychiatric injury is in a growing stage. At first the 'impact theory' was established from Dulieu v White & Sons. Then considering the fact that it excluded secondary victims Lord Wilberforce introduced the 'control mechanisms'. On the contrary, Lords Bridge and Scarman believed that liability for psychiatric illness should be decided by applying a broad test of foreseeabilty and that Lord Wilberforce's 'control mechanisms' do not define the circumstances in which psychiatric illness is recoverable16 and now the Law Commissions are proposing reports to alter the 'control mechanisms' and give psychiatric illness a statutory meaning. As Giliker and Beckwith put it in their words: 'the law on psychiatric illness, like the law on economic loss, suffers from a lack of coherence'17. This justifies Winfield and Jolowicz point that psychiatric injury 'presents the law with the most profound problems'. ...read more.

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