Law Of Negligence And Remedy For Psychiatric Harm.


The compensation to the psychiatric illness in English legal system has remained controversial for the incapability for injunction of remedy through logical and principle implementation of the law. These implications have been addressed over the years in order to expand the categories for extended recognition of psychiatric harm to the secondary victims through the law of negligence . The orthodox arbitrary for the recognition of psychiatric illness as “nervous shock” has been referred to expand the criteria for policy consideration including illness and psychological injuries for compensation to the potential plaintiffs and claimants . The coverage of psychiatric illness, under the law of negligence is defined as the traumatic accident followed by a nervous shock in terms of conceptualized mental disorders.

The nature of this mental illness is acute and reversible through appropriate medical therapy to foster positive social and developmental dimensions. Therefore, psychiatric illness may exist in the form or Post Traumatic Stress Disorder as per the illustration of Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) . The symptoms recognized for DSM-IV by the World Health Organization are prone to a wide array of psychological imbalances and severe traumatic reactions, having extreme effects over lifestyle, development and threat to physical integrity of the victim . The categorization of psychiatric illness PTSD enables makings consideration for criminal proceedings and compensation to the harms caused due to negligence .

The Provision for Psychiatric Harm in Law of Negligence

As per the Law of Negligence, consideration for dutiful obligation to remedy and compensation to psychiatric injuries enable balancing the trauma resultant due to careless conduct . The infliction of psychological imbalances and traumatic experiences suffered by the plaintiff are secured through legal claims for adequate care and imbursement of support on part of the defendant as per the consideration to severity of illness and susceptible mental disposition impacting lifestyle and mental well-being. However, the implication to recognition of potential claims by the sufferers is critical to be analyzed since the harms inflicted are invisible and needs to be evaluated through psychiatric expertise and medical techniques. The assessment approach incorporates medical techniques in order to measure the severity of psychological symptoms and damages caused to balance off the legitimate claims .

Statuary Limitations to Psychiatric Harm

The recognition of claims in regards to the psychiatric illness in the orthodox English legal system has been based on the quantum of Law of Tort for practical understand of the judges and lawyers to depict necessities for administering cases. In order justice mechanism, courts have referred to various elements of the negligence on part of the defendant for damage reconciliation . The elements of law of negligent are attributed to directly link the psychiatric shock and breach of duty for imposition of liability for the negligence reflected. For instance, in McLoughlin v O’Brian ; the measurement for the imbursements were based on three medical tests for recognizing and categorizing physical and psychiatric symptoms allowing to balance effective remedy and recovery for the injury caused. As suggested by the Steyn L J in White v Chief Constable of South Yorkshire Police ; the inconsistencies for psychiatric evaluation of symptoms are evident to administer proportionate remedy. In addition, the incapacities are also prone to fraudulency and exaggeration of the claims made, causing injustice and less desirability of the Law of Tort and negligence to address psychiatric illness . In the case of White the plaintiff, police officers had experienced the psychological injury with administration of professional responsibilities at the Hillsborough disaster. However, none of the police officers had been prone to physical injury during the conquest. The decision in regards to the claimants was overturned by the House of Lord in contrary to the decision of the Court of Appeal due to lack of insufficient evident for physical injuries to the police officers. Furthermore, as per the House of Lords these plaintiffs didn’t fulfill the criteria of primary victims and the fact that their job responsibility obligated them to safeguard the workers was getting harmed was inconsiderate for injunction of the duty of care and recovery of damages. In the argument the House of Lord further explained that since the police officers had witnessed the destructive events very closely, this doesnot entail the proximity of relationship and natural affection that is incurred towards the relatives and loved ones. Therefore, the prevalence of the recent cases in legislative statute denote the expansion of criterion for effective proximity to foresee administration of duty of care and recovery by extending the unified principles to favorable approach and make consideration to extraordinary situations .

Alcock Control Mechanism for Psychiatric Harm

The administration of various control approaches to the witnesses and aftermath for breach of duty attempt to utilize the foresee ability tests in regard to the psychiatric symptoms for assessing proximity of damage and classifying the victims with aftermath involved . However, the implications persisted to this approach for the restrictions towards the claimants in applying for future cases. This consisted of control mechanism to examinethe affection and emotional proximity towards injured relatives and family members. For over a decade, the control mechanism of alcock remained controversial for enforcement of duty of care. For instance, the approach administered in Alcock v Chief Constable of South Yorkshire effectively deployed damage recovery whereas, in the case of McLoughlin the alcock approach considered the narrower criteria for foresee ability of recovery . According to the report by Law Commission in 1998; the need for scrutiny in the applications for claims is essential through adequate compliance with the legal laws and reforms, however medical and psychiatric complexities are inadequately addressed, restricting the approach for recovery of primary and secondary victims. Subsequently, this incurs in yielding medical insurance and liability coverage costs that are supplementary to the recovery administration . As per the civil liability clause in English judicial system; the enactment of the standardized principle for negligence is less formal and comprehensive requiring analytical decision making in contrary to the holistic Common Law to administer efficacy in wide array of complex situation for the claimants of recovery. However, loopholes exist with emergence of insurance upsurge and crisis to restrict optimal recovery of the plaintiffs victimized due to negligence. The inadequacies are prevalent in contemporary cases such as by late 18th century the Privy Council enacted the law restricting the imbursement of psychiatric harms which are accompanied with physical symptoms and injuries. In case of Victorian Railways Commissioners v James Coultas & Mary Coultas the miscarriage cause to the plaintiff was considered susceptible to the unintended self harm, in contrary to consider the fright plaintiff experiences due to narrowly missing of carriage by the defendant’s train. The court of Richard L J expressed the conceptualization of imaginary claims for insufficiency in the medical tests to furnish the evident for physical harm .

Contemporary Cases to Address Psychiatric Harm

Contemporary cases have been evident for the complex nature of expandable recovery to psychiatric illness. In Dulieu v White & Sons ; the court of Kenned L J emphasized on the medical tests for measuring severity of the nervous shock raised due to negligence and breach of duty. The test further classified the plaintiff into primary and secondary victims in consideration to the evidence and reviews by the witnesses at administration of injury, as an essential requirement to hold liability of the defendant Similarly, the Kennedy test was adapted in the case of Page v Smith by Lord Lloyd L J to understand foreseeable differentiation in remedy to primary and secondary victim to classify psychical and psychiatric harms . However, the inefficacy to the remedy reconciled was evident due to limitations inherited in the definition of primary victims to disregard the psychiatric harm and elementary focus to the physical damages caused . Therefore, the injunction of remedy partially denied the imbursement of psychiatric injuries to the plaintiff. The foundation to recovery the right for non-physical injury was followed till the late 20th century in English courts as evident in the Bell v Great Northern Rly Co of Ireland ; the plaintiff woman suffered miscarriage due to nervous shock caused with the carriage running down the hill. The unintended breach of duty on part of the defendant was compensated through relating the psychiatric symptom of fear with injury caused to the body. Thus, the Privy Council fostered the decision for recovery of plaintiff. In this regard,Palles CB promoted the comprehension of extensive impacts supplemented to the psychiatric trauma and regarded the form of fear as potential form of illness caused . The case of Bell v Great Northern Rly Co of Ireland remarks the extension to the considerations and classification of psychiatric harm to assure individual’s right to safety and recovery. Furthermore, the complexities raised over the time for consideration of fear as a psychiatric illness in Fatal Accidents Act of 1846 in United Kingdom, to consider the claims of bystanders and witnesses for the right to safety due to fear in recovering damages . For instance, in Hambrook v Stokes Bros, the plaintiff mother experienced fear for protecting her children when she confronted the driverless truck approaching from across and consequently died of fear at the spot with miscarriage. In this regard the Court of Appeal considered plaintiff’s appeal and considered the nervous shock for fear on one equal to the fear for others. Efforts for extensive support and critical consideration are evident throughout the legal history of United Kingdom. In Owen v Liverpool Corporation ; the Court of Appeal recognized the potential damages not only limited to the personal safety of the plaintiff but also the acute symptoms of destruction and mourning followed due to horrific incident on part of the defendant when the mourners travelling in carriage to the funeral had suffered nervous shock to see the corpse splitting out of the coffin and fell on the ground. The court of MacKinnon L J in this regard considered other aspect as to human life to consider nervous shock suffered . Yet inconsistencies to consider categories of psychiatric harm is evident through even in late 20th century, when the court refused the duty of care to the plaintiff on the basis of self believe and perception for charging defendant against the fright experiences on hearing a collision. The predictability of fraudulent and imaginary charges is difficult to identify due to lack of appropriation of the statute and law of negligence in regard to psychiatric harm . Similarly, in King v Phillips the classification of psychical and psychiatric injuries were the basis to be followed in the court of Denning L J when the injunction of remedy to the plaintiff mother was disregarded for no impact of defendant’s action when fright emerged to see her son’s tricycle under the taxi, hence her son was injured and duty of care was criticized . The recognition of physical injuries has remained confined to the measure of severity of nervous shock, while the efforts to expand assistance remained consistent for making reasonable considerations. For instance, the duty to care was refused yet again in Boardman v Sanderson when the plaintiff father was refused the injunction of compensation due to potential shock when the plaintiff ran to save his infant from the car backing from garage. Hence, no physical injuries were caused due to negligence to both parent and the infant.

On contrary, the case of Hinz v Berry is evident for the imbursement of physical remedies and duty of care to the plaintiff in the aftermath of accident killing off her husband and causing injuries to the child. In this regard, the court of Denning L J recognized the psychiatric illness with emphasize on suffering of bystanders and witnesses due to accident to a closed relative . Furthermore, the statute for negligence to pay off psychiatric harms was elaborated by the Lord Bridge L Jin accordance to the House of Lord declared injunction of duty of care to defendant for the nervous shock inflicted with witnessing of daughter’s death due to the negligence on part of the defendant’s negligence. The inhibition of recovery damages were recognized foreseeable by the court . Lord Bridge L J suggested the consideration for wide range of circumstances and factors triggering the development of emotional trauma through legal and medical professional assistance. According to him, insight development to the law of negligence in vital for genuine foresee ability and compensation .

EnglishLegal Approach to Psychiatric Harm

The trends of contemporary English cases exhibit a comprehensive approach and efforts to inject wide classification of psychiatric and traumatic symptoms in assessing rights and duties of care in pursuit of legal statute of negligence. The injunction of remedy was constituted on the basis of element of proximity for relationship between the parties involved, circumstances experiences and real risk of psychological and physical harms to the suffer. The prevalence of the recent cases in legislative statute denote the expansion of criterion for effective proximity to foresee administration of duty of care and recovery by extending the unified principles to favorable approach and make consideration to extraordinary situations . Despite development and extension to the law of negligence for accommodating remedy and foreseeable recovery, the House of Lord also imposed the restrictions over the categorization of plaintiffs through mainstreaming the primary and secondary victims, such that the primary victims denotes the individual for directly experiencing the accident and the secondary victim and the bystanders and passive witnesses to the psychiatric injury caused. Subsequently, arises the implication to the lordship and judiciary for assessing the aftermath of by standing and validating the psychiatric symptoms for injunction of duty for care . According to Lord Ackner L J in regard to the Alcock v Chief of South Yorkshire Police ;the nervous shock may be of impermanent however, the psychological injury may cause devastating impact over the emotional affect in the aftermath. As quoted by the Casebook on Tort; the Lord Steyn clarified in White v. Chief Constable of the South Yorkshire Police that the claimants by police officers as employees to the constable are refused the entitlement of remedy to psychiatric suffering in the post disaster without evident psychical harm, since this attribute is consistent to their professional responsibilities . Despite extension of reforms and attempt to adapt to the controversial circumstances, the judicial decisions in have been deemed to criticism over the course of history in United Kingdom.

As criticized by Hanford in 1996; the psychiatric injuries caused due to a mere accident have embarked developmental issues and medical complexities for over more than twenty years of age, subsequently, making it difficult to assess the severity for duty of care and recovery claimed . On contrary, Lord Steyn’s viewpoint is opposed to that of Lord Hoffman L J who suggests, that the plaintiff are entitled to be presented with an opportunity to evidently support claims for nervous injuries having severe impact to wellbeing. He suggests that the difficulty in underpinning the reforms as per the low of tort are restricted in nature and not confined to address complex situation for legal justification and corrective measures for recovery. As seconded by Cardozo C J in Ultramares Corporation v Touche, Niven & Co. the development of the law must contribute to bring in the balanced consideration for distributive and corrective justice, inclusive of instrumental judgment for indeterminate time, amount and class .


As suggested by Fiss, the need for a comprehensive and subjective instrumental judgment is essential in the law of negligence to assist in foresee ability for breach of duty . He described the corrective justice as to protect the idea of freedom and relationships through mindful examination and instrumental consideration. As seconded by Lord Hoffmann L J the proposition to the Law of Tort in English legislation would notably formulate guidelines and useful spectrum for the quantum of adequate compensation and elimination of fraudulent and imaginary claimants . Consequently, this would eliminate undesirable distinctions on part of the judiciary for unsatisfactory judgment. Moreover, this would also address the floodgate arguments and contradictions for public policy consideration for liability in psychiatric injuries in more decisive manner.

Reference List :

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