The Law Commission Consultation Paper No 137, Liability for Psychiatric Illness[1] made radical changes to the scope of recovery for psychiatric injury.he subject matter which has been in contention is negligently inflicted psychiatric illness also

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The Law Commission Consultation Paper No 137, ‘Liability for Psychiatric Illness’ made radical changes to the scope of recovery for psychiatric injury. This was the 3rd paper to be published as the Law Commission noticed it was an area which needed substantial amount of changes, especially after the ruling in Alcock v Chief Constable of South Yorkshire Police by the House of Lords. The subject matter which has been in contention is negligently inflicted psychiatric illness also known as ‘nervous shock’. Hence, this discussion will be based on the special restrictions placed on psychiatric injuries which are not imposed on physical injuries. To further reiterate this point, this could be seen in the case of Cambridge Water Co v Eastern Counties Leather plc where it that even if it’s a Rylands v Fletcher claim, the damage which raised the possibility of compensation must be foreseeable. The current requirements for psychiatric injuries are;

  1. must be a recognised psychiatric injury
  2. injuries suffered by plaintiff must be because of reasonable fear to himself or reasonable fear of real injury to another

For the second requirement, the plaintiff must have a special relationship with the individual in danger and must be present when the event occurred or at least soon after. Furthermore, the normal fortitude rule must be fulfilled meaning it must be ‘shocking’ to a normal person. If its not, the general rule would not apply. This will be touched in detail below.

To start off, there are many reasons behind these special conditions or requirements. Among the common reasons are to avoid a floodgate of cases and exaggerated and fraudulent cases. Others are to avoid contradicting medical opinions and also to emphasize psychiatric injuries are not as serious as physical injuries.

The fear of floodgate of cases resulting from a single case has been the main reason. Lord Edmund Davies and Lord Bridge criticised this reason in McLoughlin v O’Brian stating it’s harsh to limit someone of their rights just because a crowd was around when it occurred. However, the Law Commission do state that it may be arguable that the requirement of a recognised psychiatric injury may be enough.

The reason of fraudulent and exaggerated cases did not sit well with the Law Commission. According to medical evidence, this was highly uncommon due to the availability of technology in conducting psychological tests. Furthermore, the reason of psychiatric injuries not being as serious as physical injuries was inaccurate. As seen in the argument by Mullany and Handford, it stated a wounded mind is harder to heal compared to a wounded body. However, the secondary victim ruling is the real reason behind the floodgates argument. This was why the Law Commission stated the proximity tests should be still in use and mere foreseeability is not sufficient. It stated this while keeping in mind the dicta in Caparo Industries plc v Dickman and Anns v Merton London Borough Council.

Moving on to the type of psychiatric illness which are recognised, in Hicks v Chief Constable of South Yorkshire Police , the House of Lords held that fear, even if of the greatest of degree, is a normal human behaviour and hence, would not be compensable. This is because in negligence, the plaintiff would have to prove that he suffered some sort of damage. Hence, mere emotions would not be sufficient. However, if submitted as distress in non-negligent tort such as harassment, assault or intimidation, then damages could be recoverable. This was seen in Khorasandjian v Bush.

Psychiatric injuries are classified in a vast manner of ways in accordance to its purpose. However, for diagnostic purposes on law, it must be classified in accordance to the criteria given by the American Diagnostic and Statistical Manual of Mental Disorders or International Classification of Diseases and Related Health Problems. Considering that one might be suffering from more than one psychiatric illness, the law recognises this as can be seen that even though ‘simple’ grief is not compensable, ‘pathological’ grief can be and is a recognised psychiatric injury.

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The matters above got approval from arbitrators in the Herald of Free Enterprise arbitration in regards to a capsize of a ferry where the arbitrators made important points in regards to psychiatric consequences of trauma. In the case of Dulieu v White & Sons,  the Court of Appeal decided that psychiatric illness which was caused by reasonable fear of injury to oneself was compensable. However, claims are likely to fail if the defendant can argue that because of the safety in regards to the location of the plaintiff, the plaintiff could not have reasonably feared for his safety. This was seen in the ...

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