"The English Law on when damages can be claimed for psychiatric harm is largely incoherent. The best solution would be either to abolish the right to make such claims altogether or to remove the inconsistencies in the current law". Discuss.

Victoria Maschio

Group I

“The English Law on when damages can be claimed for psychiatric harm is largely incoherent. The best solution would be either to abolish the right to make such claims altogether or to remove the inconsistencies in the current law”. Discuss.

The English law’s approach to the notion of psychiatric harm, often derogatorily names nervous shock, has tried to find its way in between two diametrically opposite views. On the one hand it is argued that victims of psychiatric illness should be compensated no differently from those persons who suffer physical injuries; on the other, there is a deep skepticism about the reality of the conditions that underlie the label of psychiatric harm, inducing its believers to propose that recovery for it should be altogether abandoned. In the course of this essay I propose to look at these opposing views, then discuss the requirements imposed by the law for a claim in psychiatric illness caused by negligence, and lastly look at the Law Commission’s proposals as to how best resolve the “dreadful mess” that the current law finds itself in.

Historically Chamallas and Kerber argue that the reason why the law has been so reluctant to compensate psychiatric illness is because it was regarded as emotional harm which was caused by the victims “pre existing susceptibility”. Since women were more likely to be prone to the frustrations and stresses that led to such conditions, be it at home or in the workplace, it was seen as a feminine condition which were in contrast to the more masculine characteristics of courage and fortitude. This view has been discredited by the more modern case law as claims for psychiatric illness have been brought by men and women alike although it does give us an insight as to one of the possible reasons for the reluctance by judges to allow compensation for a form of weakness rather than actual injury.

The main two opposing views as to whether compensation should be allowed by the law come from Stapleton and Mullany & Handford. Stapleton argues that since there are no reasonable boundaries in which to frame a cause of action for nervous shock it would seem reasonable to eliminate the whole category of claims. He argues that it is hard to differentiate pathological grief, which is compensated at law, from mere grief which isn’t and that the existence of “loosely” worder medical opinion on the subject would do nothing more than bring the law into disrepute. The law necessitates issues to be clearly defined in order to achieve certainty and justice and this, in his opinion, is not possible in relation to psychiatric illness. He says that “many more individuals would be recognized as presenting the relevant symptoms to their GP’s”.

Mullany and Handford on the other hand argue that psychiatric illness should be considered as much of a “real injury” as physical injury if not more. “Physical pain usually subsides and often long before the psychological impact of distressing events disappears… an injured mind is far more difficult to nurse back to health than an injured body”. They state that “there is no sound or convincing legal, policy, medical, scientific or common sense ground for refusing” compensation for psychiatric illness. In accordance with their view liability should not be limited by proximity tests that have developed in a piecemeal and ...