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Chin, Nicholas N --- "A Remedy for Nervous Shock or Psychiatric Harm - Who Pays?" [2002] MurdochUeJlLaw 46; (2002) 9(4) Murdoch University Electronic Journal of Law

A Remedy for Nervous Shock or Psychiatric Harm – Who Pays?

• Introduction
• Nervous Shock defined as Psychiatric Harm
• Recognizable Psychiatric Damage
• Worry-induced or grief-induced?
• Medical Condition of Psychiatric Harm
• Damages in Tort
• Damages in Contract
• Liability in Negligence
• Foreseeability of Plaintiff
• Foreseeability of Kind of Damage
• Other General Duty Requirements
• Breach, Causation and Remoteness
• Limits of Liability in Negligence
• The Aftermath Doctrine
• Defences
• Contributory Negligence of Primary Victims
• Primary Victims' Culpability vs Secondary Victims' Recoverability
• Liability of Capable/Culpable Primary Victims
• Liability Lies where It Falls
• Opposing policies of the law
• Secondary Plaintiff's Damages independent of Primary Plaintiff's Culpability
• Anomaly of the Law
• Confirmation of the Emerging Trend
• Voluntary Assumption of Risk
• Illegal Activity Negatives Duty of Care
• Limitation Period in Western Australia
• Quantum of Damages
• Policy Considerations
• Duty Situations and Policy Considerations
• Judges and Policy
• Secondary Victims and Policy
• Duty of Care Unlimited by Policy
• Policy Limits Liability
• Policy and Acute Grief
• Policy in Litigation versus Rehabilitation
• Policy and Opening the Floodgates
• Policy and Overburdening Defendants
• Conclusion
• Bibliography
• Notes

Introduction

" . . . there is equally no doubt that the public . . . draws a distinction between the neurotic and the cripple, between the man who loses his concentration and the man who loses his leg. It is widely felt that being frightened is less than being struck, that trauma to the mind is less than lesion to the body. Many people would consequently say that the duty to avoid injuring strangers is greater than the duty not to upset them. The law has reflected this distinction as one would expect, not only by refusing damages for grief altogether, but by granting recovery for other psychical harm only late and grudgingly, and then only in very clear cases. In tort, clear means close--close to the victim, close to the accident, close to the defendant."[1]

1. The above extract shows that victims of nervous shock may be primary or secondary. Primary victims experience shock in respect of their own safety and are participants in the event. Secondary victims experience shock in respect of the safety of others and are non-participants in the event. The former suffers physical injury as well as nervous shock, whereas the latter merely suffers shock as a bystander. The test of liability for psychiatric injury caused to a primary victim is that of foreseeability of personal injury[2] On the other hand, secondary victims face a more complex hurdle when claiming damages for psychiatric injury as the application of legal principles evolved gives rise to massive difficulties.[3]

2. The development of the law on compensation for psychiatric injury for secondary victims, though governed by the common law, has been developing in a piecemeal fashion. It is influenced to a greater extent than other areas of law by policy and forensic difficulties due to the existence of: a) a traditional judicial dichotomy between physical and psychiatric injuries for the purpose of attempting to avoid the evidential difficulties of substantiating psychiatric injuries; b) rules limiting recovery so as to restrict the number of potential claimants.

3. In this essay, we will first attempt to look at what precisely "nervous shock" means. Then, we will see how liability in negligence law for "nervous shock" is circumscribed by scientific, policy and forensic constraints within the confines of torts and contracts law. We will then turn our focus on the requirements grounding liability of defendants in this area of the law and relate them to the nature and strategy of defences available in actions of this nature by potential litigants. An examination is then made of the remedies available for negligently-caused psychiatric harm that would usually take the form of damages. The award of damages is to enable the courts to put genuine plaintiffs as nearly as possible into their pre-wrong positions. Finally, we would not miss having a detailed look at the policy considerations behind the "stage" of compensation for psychiatric injuries. The reader is then led to a conclusion that is both imminent and inevitable for would-be litigants in this area of law of legal practice.

   Nervous Shock defined as Psychiatric Harm

4. Many illustrations of human foibles found plaintiffs for "nervous shock." This label refers to a wide range of recognized psychiatric illnesses such as phobic anxiety, neuroses and post-traumatic stress disorder, which are more than simply grief, upset or unhappiness. It is misleadingly inaccurate for us to use this label, as it tends to disguise a very serious damage,[4] which has elements of greater subtlety than in the case of ordinary physical injury.[5]

5. The law in this area of tortious liability should therefore be expanding and removing unnecessary hurdles in the path of recovery for plaintiffs who are non-profit motivated. Personal injuries to the mind like ordinary physical injuries do deserve proper redress. Their recoverability requires plaintiffs to suffer an "impact" of some contemporaneous physical injury as a guarantee of the genuineness of their claim. This impact rule is the reason for denial of recovery.[6]

   Recognizable Psychiatric Damage

6. "Recognized psychiatric illness"[7] or "psychological or psychiatric Injury"[8] should replace this antiquated label. It must mean the result of an emotional stress and not the emotional stress itself.[9] It does not matter if this illness has healed before proceedings commenced.[10] Physical symptoms resulting from emotional distress although not a "recognizable psychiatric illness" can be compensated only as interference with the peace of mind. Thus recovery is not limited to recognizable psychiatric illness.[11]

7. It is expected that negligence law in Australia will be reformed further so that a plaintiff must suffer a physical injury before he can claim for consequential recognized psychiatric harm and not mere vague feelings of depression.[12]

   Worry-induced or grief-induced?

8. The public usually sympathizes victims with broken bones rather than those with broken minds. This is because when mental injuries do not exhibit overtly outward signs of their effects on their victims, they are considered as casting serious doubts on their existence. Worry-induced psychiatric conditions[13] are recoverable but grief-induced psychiatric conditions are not. [14] Although the law is trying to impose necessary safeguards to prevent unauthentic or illegitimate claims, deserving claimants who suffers injuries short of medically proved psychiatric harm may thus be unnecessarily excluded..[15]

9. The root of mental damage is material and recognizable psychiatric harm that must result from emotions such as fright or horror and not emanate from grief.[16] It is however arguable that emotional or mental suffering that matures into psychiatric harm should be compensable whether they arise from fear or horror or worry, anxiety, anger, disappointment, sorrow or grief.[17]

   Medical Condition of Psychiatric Harm

10. A recognizable psychiatric injury is an illness and not a disease. An illness is a subjective appreciation dimension or the subjective awareness of distress or limitation of function whereas a disease is a definite morbid process with a characteristic train of symptoms or an objective pathology. The subject of a tort claim is best regarded as an illness.[18]

11. This illness bears a direct relation to the condition of the autonomic nervous system in the body of the victim. It involves the "innervation of involuntary structures" and works independently of volition. It conveys and processes sensory inputs from the stomach organs and the motor control of involuntary and cardiac muscles.and glands. Thus mere mental suffering though reasonably foreseeable when not accompanied by actual physical injury cannot be the basis for compensation.[19]

    Damages in Tort

12. Mental distress alone cannot find itself in damages, as there must be "parasitic damages" for damages to be awarded. In short, the mental distress must be attached with a loss consequent upon some recognized wrong.[20] The policy of the law is to award damages for real injuries and not merely legal injuries. As such consequential damages are awarded for intentional torts[21] in some negligence cases[22] like damages for injured feelings and are often lumped together in damages for personal injuries.[23]

13. The requirement for any shock-induced harm in all common law jurisdictions unlike the United States is the prerequisite of some form of significant physical or psychiatric harm that will ground liability[24]

    Damages in Contract

14. Damages for mental distress is now recoverable in contracts[25] and except for breach of promise to marry, it was not recoverable before.[26] It used to award damages for physical,[27] psychiatric[28] and physical inconvenience.[29]

15. Only in 1973 it started to award damages for injured feelings.[30] Thus damages for mental distress is not merely confined to cases in contracts that provide for entertainment and enjoyment[31] or where there are elements of vexation, distress and general disappointment and frustration,[32] or where there exists contractual duty of care,[33] or where the contracts specifically provides for peace of mind and freedom from distress.[34]

16. This field is ever-widening but the relief can only be modest unlike in the United States.[35] The general rule in Australia is that no damages for injured feelings are recoverable in ordinary commercial contracts.[36] The common law systems do not readily accept mental distress as worthy of compensation in accord with what Lord Oliver said of the "impracticality or unreasonableness of entertaining claims to the ultimate limits of the consequences of human activity." [37]

    Liability in Negligence

17. There are six requirements to ground liability in negligence.[38] They are as follows:
    a. Existence in law of duty of care situation or an actionable liability to carelessness (duty);
    b. Carelessness of the defendant who fail to measure up to the standard set by the law (breach);
    c. Causal connection between the careless conduct and the damage (cause in fact);
    d. Foreseeability that the careless conduct could inflict the particular kind of damage on the particular plaintiff (cause in law or remoteness);
    e. Damage attributable to defendant;
    f. Monetary estimate of the damage.

18. In psychiatric injury claims based on negligence, the above ingredients often merge into one another and are not always clearly separated[39] The court is required first to deal with the foreseeability issues. Once this is done, it will be put aside. It will then deal with other questions of duty. Only finally will it consider the questions of breach, causation and remoteness that concern the extent of liability of the defendant. If there are special circumstances of a particular case that warrant rational and well-founded policy arguments, the court may then exercise its discretion to deny the liability of the defendant.[40]

    Foreseeability of Plaintiff

19. Foreseeability is necessary but not a sufficient criterion of liability[41] The plaintiff as an individual or as a member of a class must be foreseeable.[42] The defendant owes a duty only to a foreseeable plaintiff.[43]

    Foreseeability of Kind of Damage

20. The damage suffered must be of a foreseeable kind.[44] The extent of foreseeability of the kind of damage is that of what a reasonable man would not brush aside as far-fetched.[45] The test for psychiatric harm was foreseeability of injury by shock.[46] Victims outside the physical zone of danger may be foreseeable as liable to psychiatric harm.[47] The foreseeability of some kind of psychiatric damage generally only is necessary but the precise nature of the damage need not be foreseeable.[48]

21. The foreseeability of psychiatric damage is to be approached from a common sense point of view enlightened by a progressive awareness of mental illness not only on a question of fact but on the question of law as well.[49]

    Other General Duty Requirements

22. The first simple test of "attributed foresight" that found the defendant's duty of care was found to be too wide[50] It had to be limited by a degree of physical proximity between the defendant and persons or property affected. Later, Lord Atkin revised it to become the "neighbour" principle that a duty of care is owed to anyone so closely and directly affected that the defendant ought reasonably to have it in contemplation when directing his mind to the acts/omissions.[51]

23. This led to a two-stage test of duty: whether proximity exists such that the carelessness of the defendant would be likely to cause damage to the plaintiff. Once established, a prima facie duty of care is said to be owed by the defendant to the plaintiff. The next question is then for the court to look at any considerations that will limit this duty of care.[52] This Ann's principle was later subsumed by Deane J's concept of the duality of circumstantial and causal proximity as the touchstone from which considerations of public policy that enlightens or underlies it should not be divorced.[53]

24. However, the criterion of liability must always be based on the interconnectivity of proximity and foreseeability of damage.[54] The Australian High Court is already expressing doubts as to whether the proximity issue will become a permanent feature of the law of negligence.[55]

    Breach, Causation and Remoteness

25. The plaintiff must establish that the defendant was negligent in that he failed to live up to the standard set by the reasonable person of that position.[56] This "calculus of negligence" connotes that the greater the probability of a serious injury resulting would mean that there is a higher requirement of the defendant to try to do something about it. Factors such as age, intelligence, experience or the circumstances affecting a reasonable member of a particular profession are taken into account in determining that standard. Other factors would be the likelihood of harm, its potential seriousness, the costs of taking precautions and the benefits of that activity. It ought to be viewed from that of a reasonable person in the shoes of the tortfeasor.

26. Even where negligence was admitted, the plaintiff must show the causal link of the defendant's conduct using the "but for" test.[57] This test is not valid for multiple causes or successive injuries[58] and in cases where there are interventions[59] by persons or natural events. Application of common sense principles has relegated the position of this "causa sine qua non" test.[60] Nevertheless this test still occupies center stage and psychiatrists and psychologists have a central role to play in separating truth from falsehood.[61]

27. Remoteness concerns the plaintiff being able to recover for all damages of the particular kind, which flows from the breach even though only the general kind of damage (and not its particular nature, its extent or the manner of its infliction) was foreseeable.[62] In psychiatric injury cases, however, this general principle may not be applicable as it is considered as too remote because the damages are not of the foreseeable kind.[63] Children however recovered for recognizable psychiatric injuries because the damage was of a foreseeable kind even though its extent was not foreseeable and even where over-protective parents had exacerbated those injuries.[64]

    Limits of Liability in Negligence

28. The psychiatric complaint must be attributable to an identifiable shock to the plaintiff's nervous system that was caused by stimuli, which form part of the accident or its aftermath, and not by any remoter consequences. Thus, any gradually developing psychiatric injury is irrecoverable. The sudden impact on the psyche and the shock-induced illness is vital to the cause of action.[65] Psychiatric injury sustained as a result of a combination of what is heard and seen is, however, not precluded from recovery.[66] Thus, a shock-producing event is a tort to the plaintiff.[67] For a bystander recovery, the victim must pass the "nearness, hearness and dearness" tests.[68] The direct victim is not subject to these tests.[69]

    The Aftermath Doctrine

29. The need for the plaintiff to be present at the accident scene in psychiatric damage cases has "been consigned to the lumber room of rejected legal fallacies".[70] The rational for the aftermath doctrine is the foreseeability that a plaintiff not present at the scene would arrive shortly afterwards[71] and suffer nervous shock as a result. The liability results only if the plaintiff has a direct perception of some of the events of the accident including its immediate aftermath.[72] A requirement of direct and immediate sight or hearing of the accident would be impractical and unjust and a plaintiff from close proximity who comes very soon on the scene should not be excluded.[73]

30. The aftermath of the accident "encompasses events at the scene after its occurrence including the extraction and treatment of the injured ... and to the hospital itself .... post-accident treatment."[74] Deane J prefers causal proximity where psychiatric injury results from the impact of matters which themselves formed part of the accident or from contact with more remote consequences of the accident to considerations of physical proximity in the sense of space and time. This preference is less arbitrary and better attuned to legal principles and public policy considerations.[75] The aftermath extended no further than the "immediate post-accident treatment" as it has a temporal connotation.[76]

    Defences

    Contributory Negligence of Primary Victims

31. To reduce her liability, a defendant must show that the direct or primary victim (primary plaintiff) is contributorily negligent. The standard of care of the primary plaintiff's onus to rebut contributory negligence is generally the same as that of the defendant. However, in practice this might be somewhat different.[77] There is no need to show that the plaintiff breached his duty of care,[78] but the issues of causation and remoteness do enter into the question of whether the primary plaintiff's contributory negligence contributed to his psychiatric harm.[79] If so, the damages to be awarded to him are reduced as a result.[80]

    Primary Victims' Culpability vs Secondary Victims' Recoverability

32. In the case of a bystander or secondary victim of shock (secondary plaintiff), his damages should be similarly reduced to reflect the extent of the contributory negligence of the direct victim.[81] If this is the scenario in law, a want of care or contributory negligence of the primary plaintiff is to be identified with the liability of the secondary plaintiff. But the policy of the law dictates otherwise as explained below:

    Liability of Capable/Culpable Primary Victims

33. Common law dictates that a vicariously liable employer pay for his employee's contributory negligence[82] upon the basis that employers by the very nature of their positions are assumed to be more financially solvent than their employees. Similarly, a car owner is liable for the contributory negligence of a third party driver if she allow the latter to drive the car for purposes in which she has interests.[83] It should therefore follow that damages awarded to all vicariously liable secondary plaintiffs be reduced to reflect the extent of the contributory negligence of the primary plaintiff.

    Liability Lies where It Falls

    Opposing policies of the law

34. There are two opposing policies of the law in awarding damages for psychiatric harm founded upon principles of fairness and justice which requires that:
    I liability be transferred to a culpable primary plaintiff upon the basis that the defaulter should pay. When the defaulter cannot do so, the secondary plaintiff would have to "cough up".

    II there is an overriding need to ensure that a financially solvent secondary plaintiff do not meet all of his own losses out of his own funds.[84]

35. A compromise to these opposing policies would be that damages awarded for psychiatric harm to a secondary plaintiff should not be correspondingly reduced to reflect the extent of the primary plaintiff's contributory negligence. This depicts that liability should lie where it has fallen and is indeed appearing to be the emerging trend in the common law.

    Secondary Plaintiff's Damages independent of Primary Plaintiff's Culpability

36. A primary plaintiff's negligence bears no relations to damages awarded for psychiatric harm to a secondary plaintiff. This is founded upon the rationale that the latter is not making a derivative claim. He has his own standing in law. His interests from which his rights are derived are wrongs done to him by the defendant. His own bodily security was threatened and harmed. The psychiatric harm thus sustained are his own personal injuries. These injuries are different from those interests of owners of cars, which are merely interests in property.[85]

    Anomaly of the Law

37. Decided cases do not bear out the above conclusion of the law.[86] These decisions constitute an anomaly because these rules of common law are necessarily limited by the outdated concept of the identification of a secondary plaintiff with the want of care of the primary plaintiff.[87] As stated previously, there is now an emerging clear trend in negligence law to do away with this anomaly.

    Confirmation of the Emerging Trend

38. Secondary plaintiffs' claims are recognized as independent of that of the primary plaintiff in statutory causes of action. The latter's contributory negligence is regarded as irrelevant[88] and does not cause a reduction in the damages awarded to secondary victims.

    Voluntary Assumption of Risk

39. A defendant may assert by way of defence that the plaintiff had voluntarily assumed the risk. Her burden of proof then needs to be discharged by her showing that the plaintiff had a pre-existing and comprehensive appreciation of the nature of that risk and had voluntarily elected to expose himself to that danger.[89]

    Illegal Activity Negatives Duty of Care

40. A defendant may also argue that the plaintiff had been involved in an illegal activity at the time of sustaining a psychiatric harm. This argument could backfire as the plaintiff in this situation can still recover in tort.[90] That defence, however, could be effective if the defendant were to prove that the psychiatric harm is occasioned from an unlawful joint venture undertaken by both parties. This argument hinges on the principle that ex turpi causa non oritur actio is not a ground of defence. Rather, it serves to negative the existence of a duty of care[91] ordinarily owed by the defendant to the plaintiff.

    Limitation Period in Western Australia

41. The limitation period for tort actions of psychiatric harm is 6 years and there is a shorter period for personal injuries in other jurisdictions but not in WA.[92] This period runs from the date when the cause of action accrues or when the damage that gives rise to that cause of action is suffered by the plaintiff.[93] This may coincide with the date of breach of duty or may be much later depending upon the particular circumstances of each case. In psychiatric harm, the limitation cannot begin to run until the damage is suffered or until the plaintiff acquires the necessary knowledge. Any transient or initial shock will not begin the clock.[94]

    Quantum of Damages

42. Mental repercussions of lesions to the body in the form of pain and suffering are forms of personal injuries that are not easily quantifiable in monetary terms. A plaintiff in this regard cannot be compensated to the extent of achieving restitutio in integrum. This non-pecuniary damage has no medium of exchange for freedom from physical and mental torment.[95] Neither do minds that have malfunctioned as a result of violations by traumatic stimuli.[96]

43. Judicial minds are often at loggerheads in finding reasonable compensation for this very real but intangible loss.[97] Awards for psychiatric harm is therefore often arbitrary and unchallengeable[98] Therefore, a comprehensive scheme ought to be in place to provide for better consistency, uniformity and fairness in the award of damages to the mind in the form of a judicial tariff. This approach although objected to[99] in Australia is now seen to be relaxing.[100]

44. A legislative guide such as that of the American Psychiatric Associations's Diagnostice and Statistical manual of Mental Disorders (DSM-III-R) or the World Health Organisation's International Classification of Diseases (ICD) would reflect the relative seriousness of the various psychiatric harm taking into account their duration of disturbance, state of curability/incurability etc. They should be geared to cost of living changes as well.

45. Although the special susceptibility[101] of the plaintiff is not relevant to avoidance of liability of the defendant, it may be relevant in the reduction of damages[102] just as a refusal to undergo medical treatment is.[103] Comparatively, damages awarded to children tend to be generally lower than that of adults on the ground that children are more resilient to mental injuries but this may be excepted.[104]

    Policy Considerations

46. Factors of public policy considerations could center on administrative, economic, social, ethical, moral, philosophical, justice and public interest issues. Ideas of fairness, justice and reasonableness whilst determining the duty of care can also affect policy considerations. They are extrinsic, social and political in nature. Their aims are to provide not only adequate and just remedies but they also deter litigants making false and unjustified claims. Judges when deciding upon a claim for a tortiously-caused psychiatric harm may be affected by considerations such as the likelihood of that harm occurring in the particular circumstances of the case, the magnitude of the burden of guarding against such an injury, and the consequence of placing such a burden upon the defendant.

    Duty Situations and Policy Considerations

47. A judge must draw a line between competing policy considerations: either to provide a remedy to everyone who suffers mental damage as a result of a wrong or extending exposure to tort liability almost without limit. It is always tempting for him/her to impose new duties and, concomitantly, liabilities, regardless of the economic and social burden of the nation. Thus, the courts do generally recognize that public policy and social considerations, as well as foreseeability, are important factors in determining whether a duty will be held to exist in a particular situation. Where duty-situations are extended incrementally in torts by analogy, public policy considerations would "shrink" proportionately. In other words, where judges ignore public policy and social considerations, the expanding concept of duty in modern tort cases flourishes. In fact, the elements of duty have been so expanded in the common law to such an extent that they have become almost a "given" in any tort case. This means that if a party is injured by the conduct of another, there must exists a "duty" on the part of the defendant to avoid such conduct.

    Judges and Policy

48. When confronted with novel situations, judges do make new laws. Their decisions establish precedents that affect future cases. They thus need to consider whether a decision for or against the parties will be beneficial to society generally. Courts have gone through phases in how they deal with policy issues. There is a constant tension between the traditional view of the judge as a mere declarer of the law and arguments for greater transparency in the policy underpinnings of judicial decisions. It is safe, however, to say that that the High Court is now more willing to look at policy issues. Are our judges well-equipped to fulfill a policy role?.

    Secondary Victims and Policy

49. The law of negligence in relation to compensation for psychiatric injury for secondary victims (i.e. claimants who suffers mental damage unaccompanied by physical injury) is generally regarded as unsatisfactory by judges, lawyers, academics, plaintiffs and defendants. The law in the area of psychiatric harm is thus becoming more complex and inconsistent. Defendants face difficulties of legal uncertainty since this area of law depends on policy considerations. There are also forensic evidential difficulties of substantiating an alleged psychiatric injury as well as factual uncertainties regarding the number of potential claimants. For claimants this area is difficult because the law may appear arbitrary and unpredictable such that it is seemingly unfair. Further, as the policy of the law is to inhibit the growth of psychiatric harm litigations, common law has evolved different rules for the recovery of compensation for physical injury and psychiatric harm. For instance, bystanders (as distinct from direct victims) of foreseeable psychiatric harm are unequal to those who sustain personal injuries in the recovery of damages.[105]

50. Public perception that implements the policy of the law is shaping different rules for physical injures and psychiatric harm having regard to the fact that medical reality nowadays treats the latter more seriously than the former. Factors affecting this differential treatment are as follows.[106]

    Duty of Care Unlimited by Policy

51. In psychiatric injury claims, the House of Lords dismissed the public policy argument in the foreseeability and consequently the duty of care issue. It held that the sole test of liability for psychiatric harm was one of reasonable foreseeability without any legal limitation in terms of space, time, distance, and nature of injuries or relationship of plaintiff to victim although those were factors that still need to be considered by the court when assessing damages. Lord Bridge said that there are no policy considerations sufficient to justify limiting the liability of negligent tortfeasors by some narrower criterion than that of reasonable foreseeability. If there were, Lord Scarman said that the policy issue of where to draw the line was definitely not justiciable but remains a matter for legislation. It was even remarked that if such a limit were to be imposed, it would not be on public policy grounds but for the sheer reason of opening the floodgates to claims without limit and largely without merit.[107]

52. Recoverability of damages by a plaintiff for psychiatric harm must either be shock-induced or induced by physical injury inflicted on him by the defendant. Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that psychiatric illness might be a consequence of the defendant's carelessness. A claim will lie in damages for psychiatric harm sustained by reason of actual or apprehended physical injury, not only to the plaintiff, but also equally to a person other than the plaintiff. There is, therefore, no public policy, which limits the duty of care of a negligent tortfeasor who causes injury through nervous shock.

    Policy Limits Liability

53. In negligence law, reasonable foreseeability by the defendant alone is not a sufficient criterion to ground liability on him for psychiatric harm to the plaintiff. Public policy considerations, however, do play a part in three elements namely, in limiting liability to the class of claimants, the physical proximity of the victim of the accident, and the means by which the shock caused the psychiatric harm.[108]

    Policy and Acute Grief

54. Grief and psychiatric harm are often not discernible.[109] Symptoms of physical and psychiatric harm may be similar; there is however, a greater diagnostic uncertainty in the latter. It is confusing when the classification of emotional injuries becomes controversial. For claimants to show psychiatric harm, expert evidence is therefore required. When consultant psychiatrists are called on both sides, the litigation becomes costly and time-consuming. On the other hand, given the lack of such differentiation, problems for the administration of justice could arise. Genuine claims of psychiatric harm on its own may not be entitled to great weight and may not merit due considerations of justice.

    Policy in Litigation versus Rehabilitation

55. Rules differentiating physical and psychiatric harm works in expanding the availability of compensation for victims of shock. Historically, psychiatric harm appears not to obtrude often in cases such as in sport injuries because there is no prospect of recovery of damages in this area. On the other hand in cases of industrial accidents, psychiatric harm is often encountered and often endures until the end of the process of claiming compensation.[110]

56. Thus it may be concluded that the prospect of litigation for shock victims acts as a subconscious disincentive to rehabilitation. As this trend is already evident in cases of physical injuries with concomitant mental suffering, it could reasonably be predicted that cases of pure psychiatric harm may increase litigation. Hence exists the rationale for the policy of the law to limit damages for psychiatric harm.

    Policy and Opening the Floodgates

57. Any abolition or relaxation of the special rules governing the recovery of damages for psychiatric harm would increase the class of persons who can recover damages in tort. Compensation is routinely awarded for psychiatric harm where the plaintiff has also suffered some physical harm. In other words, psychiatric harm resulting from the apprehension of physical harm is enough[111] to merit compensation. In built into such situations are the reasons for restrictions on the classes of plaintiff who can sue: the requirement of the infliction of some physical injury or the need for its apprehension to include an element of immediacy. Pure psychiatric harm sans its characteristic "immediacy" element precludes many potential plaintiffs. Thus the floodgate may be closed.

    Policy and Overburdening Defendants

58. Liabilities for pure psychiatric harm in widely differing situations may result in a overburdening defendants. This can be disproportionate to those tortious conduct involving mere momentary lapses of concentration as in motorcar accident cases resulting in nerve-shocking scenes. Those who have witnessed or assisted at these scenes of tragic events may thus overburden defendants. Protagonists of very wide theories of liability for pure psychiatric loss are suggesting that "workplace claims loom large as the next growth area of psychiatric injury law", the paradigm case being a workman who has witnessed a tragic accident to an employee.[112]

    Conclusion

59. Damage to the psyche has provoked uncertainty and is shrouded in ignorance. Judges often fear what they do not understand and become skeptical when such injuries cannot be verified by sight. A person suffering from anxiety neurosis is likely to be treated lightly and people who are not in a "happy state" often regard small matters as very important.[113] Scientific and medical knowledge is equal to any difficulties of proof of the extent and existence of mental damage. Despite this, it is generally acknowledged that an injured mind is more difficult to nurse back than an injured body.

60. A legitimate basis for restricting the right to redress in deserving cases is due to a small percentage of false claimants slipping through undetected. Judicial decisions have unjustifiably relegated psychiatric damage to a lower status than physical injury, as liability to psychiatric damage should not be artificially constrained by the law.[114] Denial of legal accountability for psychiatric harm should not be on the basis of sympathy but rather when legal, policy, medical, scientific or commonsense grounds justify its refusal. Victims who have been traumatized by negligent and therefore avoidable conduct of others should therefore be awarded damages untrammeled by outdated reasoning that borders on irrationality.

61. An injured person ought to be recompensed even in the odds of inviting multiplicity of actions.[115] To win award of damages for psychiatric harm the plaintiff should prove its existence, its reasonable foreseeability in the context of the particular matrix of circumstances and its causation. It does not follow that liability is grounded on every consequence of foreseeability. The role of sound policy considerations must operate covertly and their influence acknowledged.[116] Only a minority of individuals subject to stressors will yield to psychiatric damage, as the human mind is extremely resilient. It is rarely that nervous shock can induce psychiatric damage[117] and the established rate is at 1%.[118]

Bibliography

White and Others v. Chief Constable of South Yorkshire and Others. Online:http://www.parliament.the-stationery-office.co.uk/pa/ld199899/ldjudgmt/jd981203/white01.htm

V Pickford, 'Page v Smith - A Case of Mere Psychiatric Injury?' [1996] 3 Web Journal of Currrent Legal Issues http://webjcli.ncl.ac.uk/1996/issue3/pickfor3.html

K Wheat, 'Law Commission - Consultation Paper No 137 - Liability for Psychiatric Injury' [1995] 2 Web Journal of Current Legal Issues http://webjcli.ncl.ac.uk/articles2/wheat2.html

L Mikulcov, 'Case Study: White v Chief Constable', The Common Law Society Bulletin - Internet edition (March 1999) http://www.prf.cuni.cz/spolky/cls/bulletin/other/fullwhite.htm.cp895

Law Commission - Report No 249 - Liability for Psychiatric Illness http://www.lawcom.gov.uk/library/lc249/lc249.pdf

Mullany, Nicholas J, Hanford, Peter J, Tort Liability for Psychiatric Damage: The Law of Nervous Shock (1993) The Law Book Company.

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Notes

[1] Quoted from: T. Weir, (7th ed.): Casebook on Tort (1988) (Witherby and Company), at 88

[2] Page -v- Smith [1995] UKHL 7; [1995] 2 All ER 736 at 759, 761 per Lord Lloyd.

[3] Alcock -v- The Chief Constable of South Yorks [1991] UKHL 5; [1992] 1 AC 310

[4] The Foreword by the Right Hon. Sir Thomas Bingham to Mullany, Nicholas J and Hanford, Peter K: "Tort Liability for Psychiatric Damage." The Law Book Company Ltd (1993)

[5] See Bourhill v Young [1942] UKHL 5; [1943] AC 92 at 103.

[6] See: Rea v Balmain New Ferry Co [1896] NSWLawRp 30; (1896) 17 LR (NSW) 92 per Darley CJ at 98.

[7] See: Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5; [1992] 1 AC 310 per Lord Jauncey at 419.

[8] Referred to in s.77 of the Motor Accidents Act 1988 (NSW) .

[9] Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 per Windeyer J at 394-395.

[10] eg. Regan v Harper (1971) Qd R . 191.

[11] Mc Dermott v Ramadanovic Estate (1988) BCLR (2d)45. at 53 where Southin J rejected Lord Denning's limitations of recovery to cases of recognizable psychiatric illness.

[12] See: http://www.cch.com.au/ for: CCH: Second Report of Justice Ipp's Negligence Review Panel (2 October 2002)

[13] Mitchell v Clancy [1960] Qd.R. 62 and Palamara v Fragameni (unreported, Western Australian SC, 13th Oct 1983, no.89 of `1983).

[14] State (Keegan) v Stardust Victims Compensation Tribunal [1987] ILRM 202 at 212

[15] The Times (4th May, 1984) : Whitmore v Euroways Express Coaches Ltd; Swan v Williams (Demolitions) Pty Ltd (1987) 9 NSWLR 172.

[16] Montgomery v Murphy (1982) 136 DLR (3d) 525 at 529-530.

[17] Mellor v Moran (1985) 2 MVR 461.

[18] M Gelder et al: Oxford Textbook of Psychiatry (2nd ed. 1989) 76.

[19] Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5; [1992] 1 AC 310 at 401.

[20] H Mc Gregor , Damages (15th ed, 1988) para 213.

[21] Hickey v Welch (1901) 91 Mo App 4.

[22] Rodrigues v State (1970) 472 P 2d 509 (Haw).

[23] Campbelltown City Council v Mackay (1989) 15 NSWLR 501.

[24] Nicholas J and Hanford, Peter K: "Tort Liability for Psychiatric Damage", The Law Book Company Ltd (1993) 50.

[25] D W Greig and JLR Davies, The Law of Contract (1987) 1411-4.

[26] Hamlin v Great Northern Railway Co [1856] EngR 918; (1856) 1 H & N 408.

[27] Godley v Perry [1960] 1 WLR

[28] Cook v Swinfen [1967] 1 WLR 457

[29] Burton v Pinkerton (1867) LR 2 Ex 340.

[30] Jarvis v Swan's Tours [1972] EWCA Civ 8; [1973] QB 233.

[31] Ibid: per Lord Denning MR at 237-238.

[32] Cox v Phillips Industries Ltd [1976] 1 WLR 638.

[33] Heywood v Wellers [1975] EWCA Civ 11; [1976] QB 446.

[34] Bliss v South East Thames Regional Health Authority [1987] ICR 700 at 718.

[35] Jarchow v Transamerica Title Insurance Co [1975] 122 Cal Rptr 470.

[36] Burns v MAN Automative (Australia) Pty Ltd [1986] HCA 81; (1986) 161 CLR 653.

[37] Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5; [1992] 1 AC 310 at 410.

[38] RWM Dias (ed), Clerk and Lindsell on Torts (16th ed, 1989), para 10.02.

[39] Beecham v Hughes (1988) 52 DLR (4th ) 625 at 665 per Lambert JA.

[40] Mullany, Nicholas J and Hanford, Peter K: "Tort Liability for Psychiatric Damage." The Law Book Company Ltd (1993) 64.

[41] Palsgraf v Long Island Rail Co (1928) 162 NE 99 (NE)

[42] Farrugia v Great Western Railway Co [1947] 2 All ER 565 per Lord Greene MR at 567.

[43] King v Phillips [1953] 1 QB 429.

[44] Wagon Mound (No.1) - Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co [1961] UKPC 1; (1961) AC 388.

[45] Wagon Mound (No.2) - Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd [1966] UKPC 1; (1967) 1 AC 617 at 643.

[46] Ibid: As noted by Viscount Simonds at 426. See also: Marshall v Lionel Enterprises Inc (1971) 25 DLR (3d) 141 at 147.

[47] Hambrook v Stokes Bros [1925] 1 KB 141.

[48] Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383.

[49] Mc Loughlin v O'Brian [1982] UKHL 3; [1983] 1 AC 410 at 432 per Lord Bridge.

[50] Le Lievre v Gould (1893) 1 QB 491 per Lord Esher MR or Brett MR.

[51] Donoghue v Stevenson [1932} AC 562.

[52] Anns v Merton London Borough Council {1978} AC 728.

[53] Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549.

[54] Leigh & Sullivan Ltd v Aliakmon Shipping Co Ltd {1985]QB 350 at 395.

[55] Gala v Preston [1991] HCA 18; (1991) 172 CLR 243 and the extra-curial comments and criticisms of Mc Hugh J in "Neighbourhood, Proximity and Reliance" in PD Finn (ed), essays on Torts (1989) 5 at 36-42.

[56] Vaugham v Menlove [1837] EngR 424; (1837) 3 Bing NC 468.

[57] Tash v Nicholas (1981) 132 NLJ 989.

[58] R J Peaslee,"Multiple Causation and Damage" (1934 47 Har. L. Rev 1127.

[59] Duwyn v. Kaprielian (1978) 94 DLR (3d) 424.

[60] March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506.

[61] Hevican v Ruane [1991] 3 All ER 65 per Mansell J at 71.

[62] The Wagon Mound (No.1) [1961] UKPC 1; [1961] AC 388.

[63] Antoatos v Dunlop, Allsop

[64] Duwn v Kaprielian (1978) 94 DLR (3d) 424 and Nader v Urban Transit Authority (1985) 2 NSWLR 501.

[65] See Chiaverini v Hockey (1992) 9 DLR (4th) 289.

[66] See Richters v Motor Tyre Service Pty Ltd [1972] Qd R 9 per Wainstall ACJ at 16-17.

[67] Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970 125 CLR 383 per Windeyer J.

[68] See: Comment, "Negligent Infliction of Emotional Distress: Formulating the Psychological Inquiry" (1984) 18 sufflok L Rev. 401 at 407.

[69] See: Thing v La Chusa (1989) 771 P 2d 814; 257 Cal Rptr 98.

[70] O'Dowd v Secretary of State for Northern Ireland [1982] NI 210 at 214.

[71] Boardman v Sanderson [1964] 1 WLR 1317, noted by G Dworkin (1962) 25 MLR 353.

[72] Benson v Lee [1972] VR 880.

[73] Young v Burgoyne (1981) 122 DLR (3d) 424.

[74] Jaensch v Coffey (1984) 155 CLR at 607-608.

[75] Ibid: at 606 - 607.

[76] (1991) Aust Torts Rep 81-116 at 69,081

[77] McHale v Watson [1966] HCA 13; (1996) 115 CLR 199. See also: F James & JJ Dickinson, "Accident Proneness and Accident Law" (1950) 63 Harv. L. Rev 769.

[78] Rukavina v Incorporaated Nominal Defendant [1992] VicRp 49; [1992] 1 VR 677

[79] Admiralty Commissioners v SS Volute [1992] 1 AC 129.

[80] Kwok v British Columbia Ferry Corporation (1987) 20 BDCLR (2d) 318.

[81] Mills v Armstrong: The Bernina (1888) 13 App Cas 1 and also Biggs v Woodhead [1939] NZGazLawRp 138; (1940) NZLR 108; Oliver v Birmingham & Midland Motor Omnibus Co [1993] 1 KB 35.

[82] Chaplin v Hawes [1828] EngR 926; (1828) 3 C & P 554; 172 ER 543

[83] Doyle v Pick [1965] WAR 95.

[84] CD Baker, Tort (5th ed, 1991), 192-193.

[85] Bourhill v Young [1942] UKHL 5; [1943] AC 92 at 108.

[86] Dillon v Legg (1968) 441 P 2d 912; 69 Cl Rptr 72.Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5; [1992] 1 AC 310.

[87] Mc Loughlin v O'Brian [1982] UKHL 3; [1983] 1 AC 410 where Lord Russel at 429 said that the court was not concerned with the problem of contributory negligence of the injured son of the plaintiff. This issue was again not addressed in Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383.

[88] The Law Reform (Miscellaneous Provisions) Act, 1944 (NSW), s.4. and similar Acts in ACT s.24; NT, s.25. The Wrongs Act 1936 (SA), s.35a(1)(c); Motor Accidents Act 19

[88] (NSW), s.77.

[89] D M Gordon, "Wrong Turns in the Volens Cases" (1945) 60 LQR 140; T Ingman, "A History of the defence of Volenti Non Fit Injuria" [1981] JR 1.

[90] Henwood v Metropolitan Transport Trust [1938] HCA 35; (1938) 60 CLR 438 at 446 per Latham CJ.

[91] Smith v Jenkins [1970] HCA 2; (1971) 119 CLR 397.

[92] Limitation Act 1935 (WA) s.38(1).

[93] Cartledge v E Jopling & Sons [1963] AC 758.

[94] Ibid: See especially per Lord Pearce at 778-779; J Stapleton, "The Gist of Negligence" (1988) 104 LQR 213, 389.

[95] H West & Son Ltd v Shephard [1963] UKHL 3; [1964] AC 326 at 346 where Lord Morris said: "But money cannot renew a physical frame that has been battered and shattered."

[96] E.g. B(A) v J(I) (1991) 81 Alta LR (2d) 84 p[er VeitJ at 91

[97] Pibworth v Brevan M Roberts Pty Ltd (unreported, South Australian SC, 28 May, 1992), No.770 of 1986).

[98] Tom v Pudovkin (unreported, New South Wales CA, 27th March, 1992, No. 40

[98] of 1990); See also: Ward v James [1966] 1 QB 273 at 296.

[99] Papanayiotou v Heath [1970] ALR 105 per Windeyer J at 110-112

[100] H Luntz, Assessment of Damages for Personal Injury and Death (3rd ed, 1990), 166-168.

[101] due to a pre-existing fragility or "eggshell" mental stability

[102] Dooleyv Cammel Laird & Co Ltd [1951] 1 Lloyds Rep 271.

[103] Macroft v Scruttons Ltd [1954] 1 Lloyd's Rep 395.

[104] Mellor v Moran (1985) 2 MVR 461 per Vasta J at 462-463.

[105] Alcock v. Chief Constable of South Yorkshire Police [1991] UKHL 5; [1992] 1 A.C. 310.

[106] See: White v Others v Chief Constable of South Yorkshire and Others (1998) HL per Lord Goff of Chieveley

[107] McLoughlin v O'Brian [1982] UKHL 3; [1983] 1 AC 410.

[108] Alcock v chief Constable of South Yorkshire Police [1991] UKHL 5; (1992) 1 AC 310.

[109] see Hedley: Nervous Shock: Wider Still and Wider, 1997 C.L.J. 254.

[110] See James v. Woodall Duckham Construction Co. Ltd. [1969] 1 W.L.R. 903 (CA).

[111] See: Page v. Smith [1995] UKHL 7; [1996] A.C. 155

[112] See: Mullany and Handford: Hillsborough Replayed (1997) 113 L.Q.R. 410, at 415.

[113] Clark v Commonwealth (unreported, Victorian SC, 24 Feb 1992, No.31 of 1985).

[114] FH Lawson & B S Markesinis, Tortious Liability for Unintentional Harm in the Common Law and the Civil Law (1982), Vol 1, 47.)

[115] Asbhy v White [1790] EngR 55; (1703) 2 Ld Raym 938; 92 ER 126 at 137, per Holt CJ.

[116] Hill v Chief Constable of West Yorkshire [1989] AC 53.

[117] See: Butcher v Motor Accidents Board (1984) Victorian Motor Accidents Cases 72-026 (CCH) per Mr. Higgins at 83,141.

[118] J Helzer, "Post-Traumatic Stress Disorder in the General Population" (1987) 317 N Eng J Med 1630.