To what extent should the law concerning the recovery of damages in negligence for psychiatric illness be liberalized

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To what extent should the law concerning the recovery of damages in negligence for psychiatric illness be liberalized?

In this essay we are asked to discuss on the main tort issue of recovery of damages in negligence for psychiatric illness and to what extent should to be liberalized. This paper in order to give an adequate analysis is going to be separated in the following areas:

  1. The Present Law.

  1. Criticism on the principles of the Present Law.

  1. Law Commission Report No 249 on "Liability for Psychiatric Illness" (1998).

  1. Conclusion.

  1. The Present Law:

Since 1901 when a Divisional Court ruled that a pregnant barmaid could recover damages for nervous shock caused by her fright at seeing a pair-horse van being driven into the bar where she was serving, English law has recognized a cause of action for psychiatric illness. The principles that make up the scope of liability in negligence for psychiatric illness have evolved over the century and it may be broadly summarized as follows. Firstly, there is a general precondition for recovery. It is well established law that there is no compensation for mere grief and distress in the absence of other injury: "In English law no damages are awarded for grief or sorrow caused by a person's death…Damages are however recoverable for nervous shock, or…for any recognizable psychiatric illness caused by the breach of duty of the defendant." By contrast, compensation for psychiatric illness is well established: "While damages cannot…be awarded for grief and sorrow, a claim for damages for "nervous shock"…can be made without the necessity of showing direct impact or fear of immediate personal injury for one's self..." 

Secondly, there is a classification of primary victims and secondary victims. The law on compensation for psychiatric illness unaccompanied by other injury has traditionally used an analysis, which considers claimants as either "primary victims" or "secondary victims". This dichotomy was emerged from the case of Page. In this case House of

Lords held that the plaintiff was a primary victim because he was directly involved in the accident. Generally, primary victims experience shock in respect of their own safety; they are participants in the event.  Secondary victims experience shock in respect of the safety of others; they are passive and unwilling witnesses of injury caused to others by the negligent defendant.

Primary Victims:

It is now clear from Page that the test of liability for psychiatric injury caused to a primary victim is that of foreseeability of personal injury. Lord Lloyd stated that: "Liability for physical injury depends on what was reasonably foreseeable by the defendants before the event.  It could not be right that a negligent defendant should escape liability for psychiatric injury just because, though serious physical injury was foreseeable, it did not in fact transpire.  Such a result in the case of a primary victim is neither necessary, logical nor just." Moreover, he stated that: "There is no justification for regarding physical and psychiatric injury as different "kinds" of injury...it matters not whether the injury sustained is physical, psychiatric or both. Applying that test in the present case, it was enough… and it is irrelevant that the plaintiff did not, in fact, suffer any external physical injury."

Secondary Victims:

The law relating to liability for psychiatric injury in respect of secondary victims is complex; it has evolved in a piecemeal fashion from a number of House of Lords decisions. It has decided that control mechanisms, as a matter of policy, had to be contained to claims for nervous shock in order to restrict the categories or persons who can claim and thereby prevent the flood of claims. The starting point is McLoughlin v O'Brian, where the plaintiff was able to recover for nervous shock consequent on seeing the "aftermath" of an accident involving her family even though her first encounter with them was at hospital about 2 hours after the event. In McLoughlin, Lord Wilberforce confidently adopted the “aftermath test” and additional limits were required: close relationship with the victim and proximity in terms of time and space. The law for secondary victims was reviewed again in the Hillsborough cases. White related to a number of test cases by police officers that had been on duty at the ground. Alcock concerned claims by relatives of those who were directly involved in the disaster.  Both cases show a similar approach of limiting liability for psychiatric injury on policy grounds in the case of secondary victims. A framework for dealing with cases of this type may be conveniently summarized by the following control mechanisms:

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1.        The plaintiff must have sustained a recognized psychiatric illness;

2.        Psychiatric illness was reasonably foreseeable;

3.        There must be proximity of relationship between the plaintiff and the primary victim. A relationship of closeness based on ties of love and affection;

4.        There must be a "shocking" or traumatic event;

5.        There must be proximity in space and time of the secondary victim to the shocking event ("the aftermath").

  1. The psychiatric illness must have been caused by the shocking events.

  1. Criticism on the Principles of the Present Law:

The law of negligence in relation to compensation for psychiatric injury ...

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