Beruflich Dokumente
Kultur Dokumente
Rachael Mulheron
Professor, Department of Law, Queen Mary University of London.
Email: r.p.mulheron@qmul.ac.uk. The author wishes to acknowledge and thank two anonymous
referees for their very helpful and constructive comments on an earlier draft. The usual caveat
applies.
© Oxford University Press 2012
Abstract—The rules governing recovery for negligently inflicted psychiatric injury are among
the most criticized of all of tort law. However, one area which, to date, has escaped with a
minimum of judicial or academic scrutiny concerns the very threshold requirement for these
actions: proof of a 'recognized psychiatric illness'. This article critiques that longstanding
requirement of English law from two perspectives. First, it is argued that the international
classifications of psychiatric disorders (ICD-10 and DSM-IV) are being misapplied and
misconstrued in the English medico-legal context and that the role (and limitations) of these
classifications are worthy of far greater judicial examination and critical scrutiny than has
typically been the case to date. Secondly, it is contended that the insistence upon a recognized
psychiatric illness, as a threshold requirement, is giving rise to inconsistencies and distortions
in the law and that the requirement is neither legally nor medically supportable in the modern
era. Instead, it is argued that the stage has been reached whereby something lesser than a
recognized psychiatric illness should be sufficient to trigger a compensable injury in law. The
article concludes by suggesting various legal avenues by which to feasibly and robustly 'ring-
fence' the number of potential claims in negligence, should the reform-oriented approach of
this article be adopted.
Keywords: tort, psychology, comparative law
CONSTITUTIONAL LAW
1. Introduction
It is axiomatic in English law that, for the purposes of a negligence claim in which no physical
injury is claimed, mere grief, distress, apprehension, annoyance, worry, sorrow, fear, anxiety,
sleeplessness, outrage, shame, horror or despondency are not compensable. As one court has put
it, '[e]motional
3. Current Problems and Issues Associated with the Use of ICD-10 and DSM-IV
Undoubtedly, expert psychiatric evidence poses considerable challenges for a court. In Dickie v
Flexcon Glenrothes Ltd,71 for example, one had to have some sympathy for Sheriff Braid, who
commented that '[t]he complexity of psychiatry and the difficulty of diagnosing a condition in
any given case were illustrated by the fact that each of the doctors held a different view as to
what condition the pursuer was suffering from'— expert witness D 'initially thought that the
pursuer had a moderate depressive episode in terms of ICD 10 F32.1, changed his mind and
subsequently diagnosed dysthymia (ICD 10 diagnostic code F34.1)'; expert witness R considered
that the claimant 'had developed a depressive disorder (DSM IV diagnostic code 296.22)'; while
expert witness C diagnosed 'an adjustment disorder (ICD 10 diagnostic code F43.22), the
dominant symptom being mixed anxiety and depressed mood'. The fact that one expert was
'somewhat dismissive' of the utility of the classifications (preferring to use, instead, his own
clinical judgment), and that one witness considered another's terminology to be 'old-fashioned',
were also noted by the Sheriff to be further problems when assessing expert psychiatric
evidence.72 All of this led to the unsurprising comment that 'the diagnosis of psychiatric illness
[is] not an exact science'!73
Quite apart from the clashes of psychiatric opinion which can characterize such litigation,74 four
particular problems associated with the use of the diagnostic classifications in negligence
litigation are explored in this section:75 (1) the
Oxford J Legal Studies (2012) 32 (1): 77 at 87
classifications were never designed or intended for legal use, and hence, the caveats and
qualifications that exist in both DSM-IV and ICD-10 are routinely overlooked and rarely
mentioned in judgments; (2) there is continuing uncertainty as to whether the classifications
are a, or the, reference point for a recognized psychiatric illness at law; (3) there is considerable
doubt as to whether judges, and not expert psychiatric witnesses, should (or can) decide whether
the criteria stipulated by the classifications are satisfied; and (4) reliance upon the classifications
can be very problematical, given changing diagnostic criteria which have not, as yet, been
incorporated within the classifications.
Dealing with each in turn:
When the DSM-IV categories, criteria, and textual descriptions are employed for forensic
purposes, there are significant risks that diagnostic information will be misused or
misunderstood. These dangers arise because of the imperfect fit between the questions of
ultimate concern to the law and the information contained in a clinical diagnosis.76
Law commissions77 and legal commentary78 have variously doubted whether close adherence to
the classifications is justifiable because of the translated application from clinical to medico-legal
use.
A perusal of the chapters in both ICD-10 and DSM-IV-TR shows each identified disorder
described by reference to clinical features which present as diagnostic checklists. As one
psychiatrist has remarked, structured checklists (or a 'checklist approach')—which were
particularly heralded by the introduction of DSM-III in 198079—have 'the attraction
of reliability, in that different clinicians are more likely to record the same clinical features in the
same patient, and therefore come to the same diagnosis … [albeit that] there is no tick box in
which the clinician can record such matters as contextual information,
Oxford J Legal Studies (2012) 32 (1): 77 at 88
commonsense, and clinical experience'.80 Apart from this emphasis upon diagnostic reliability,
DSM-III also introduced two important new conditions: 'Post-Traumatic Stress
Disorder'81 (PTSD) and 'Major Depressive Episode'82—also described in a checklist fashion.
However, in two respects, the importance of diagnostic reliability, via checklists, does not easily
translate to the courtroom. For one thing, clinically speaking, an accurate diagnosis (say, whether
a patient has a depressive episode or a mixed anxiety and depressive disorder83) is important
when planning treatment; but from a litigious point of view, the emphasis is different, because
the court is seeking to ascertain whether the claimant has suffered any compensable
damage.84 This limitation which the classifications convey for courtroom purposes was pointed
out in Noble v Owens: 'the precise characterisation of Mr Noble's psychiatric disorder does not
signify. What matters are the symptoms of Mr Noble's condition and the prognosis'.85
Of greater concern, however, is that in developing diagnostic criteria for clinical purposes, the
drafters sought to preclude a mere box-ticking exercise by introducing a number of 'checks and
balances'. These caveats (which exist within both classifications) are a compulsory aspect of
their correct application, especially when relied upon in legal proceedings and, yet (as an
experienced medico-legal expert witness in psychiatry explains) they are seemingly not often
given the attention in court which they deserve.86 Two particular caveats in DSM-IV-TR
(according to this expert) suffice to illustrate the point. For example, malingering (which is
defined in DSM-IV-TR,87and which forms part of the descriptions of various psychiatric
disorders) must be considered and 'ruled out' for PTSD.88 Indeed, malingering should be
'strongly suspected' (according to its definition) when, in combination, the factors of a
'medicolegal context' and 'discrepancy between complaints and objective findings' co-exist89—
hence the need for clinical judgment to always be brought to bear on that question in a
courtroom.90 As a second example of a caveat, all of Axes 1–5 of DSM-IV are relevant to the
claimant's psychiatric diagnosis91—not just
Oxford J Legal Studies (2012) 32 (1): 77 at 89
Axis 1 upon which episodes of mental illness are categorized. Suppose, for example, that a
claimant is diagnosed with depression (from Axis 1), following some alleged negligence by the
defendant. Suppose, too, that the claimant is also a typically anxious person, suffers a painful
debilitating injury and has recently lost his job.92 These events would be coded, respectively, on
Axis II (which deals with 'Personality disorders and learning disability', ie, permanent
abnormalities apparent from adolescence or earlier), Axis III (which deals with 'General Medical
Conditions', including physical health problems) and Axis IV (which deals with 'Psychosocial
and Environmental Problems'). To attribute the diagnosis solely to Axis 1 'would tend to over-
emphasise the role of an adverse event, as against background factors coded on the other axes,
[which] could be held to constitute a misuse of the DSM'.93
Some courts are clearly versed in these issues. Recently, for example, in Kerr v Stiell Facilities
Ltd, the court agreed that a psychiatric assessment of a 'positive psychiatric illness' requires a full
consideration of all five axes;94 while in Dickie v Flexcon Glenrothes Ltd, it was said that the
diagnostic classifications 'do not become a box ticking exercise' and that clinical judgment is
always necessary.95 However, there may be some benefit in counselling expert witnesses (by
professional guidelines or other means) to take full cognizance of the caveats which are inherent
in DSM-IV and ICD-10, to enable their better translation from the clinical setting to the
courtroom.
B. Uncertainty as to Whether the Classifications are a, or the, Reference Point for a
Recognized Psychiatric Illness
Some lack of unanimity is evident across judgments as to whether ICD-10 and DSM-IV should
constitute the reference point for proof of a recognizable psychiatric illness or whether a
psychiatrist's expert clinical judgment may be relied upon instead (to the extent that this clinical
judgment may point to the existence of a compensable mental injury which does not satisfy the
classifications).
There is certainly a school of thought which considers that an expert psychiatrist
can deviate from the classifications if clinical judgment so dictates. In a recent 2009 case from
Scotland (where the English Traditional Rule also applies96), Lord Reed stated that the
classifications 'are not necessarily conclusive';97 while earlier, in Fraser v State Hospitals Board
for Scotland, Lord Carloway remarked that to limit liability to illnesses that appear in the
classifications 'might prejudice the position of an employee suffering from a
Oxford J Legal Studies (2012) 32 (1): 77 at 90
truly new illness'.98 This prompted one Scottish commentator99 to regard the issue of whether the
classifications were exclusive or not as an 'emerging' one which 'has never been authoritatively
tested' (an observation which remains true to this day). A recent Irish case also considered the
classifications 'probably particularly useful in classifying these ailments for research purposes
[but the psychiatrist] relied on her wealth of experience and clinical diagnostic expertise rather
than formulaic categorisations'.100 In the English CJD Litigation, Morland J did not seem to be
particularly wedded to the diagnostic classifications either, stating that they were only of
'marginal help', and that if a psychiatrist's evidence convinces that the claimant has suffered
'either an acute or a chronic genuine mental condition, it matters not what label is put on the
condition'.101Similarly, in a case in which a young girl was involved in a cruise ship disaster and
suffered PTSD, Wright J remarked that 'DSM-3-R may be regarded as a useful guide to
diagnosis, provided that it is not construed as though it were a statute'.102
On the other hand, in the 2008 case of Hussain v Chief Constable of West Mercia Constabulary,
Stanley Burnton LJ described a recognized psychiatric illness as 'one which has been recognised
by the psychiatric profession. In general, they are illnesses that are within the ICD'.103 In
addition, one experienced medico-legal expert witness has opined104 that, while a court or
tribunal might have once accepted the opinion of a psychiatrist which was substantially based on
personal clinical judgment and experience and 'potentially idiosyncratic definitions' of
psychiatric injury, this is no longer the case, particularly since the Meadow case.105
Interestingly, when reviewing the Australian law of negligence in 2003, the Ipp Committee
proposed that adherence to ICD-10 and DSM-IV be replaced altogether by a set of guidelines of
what constituted a psychiatric injury, which would be put together by a panel of experts and for
specific use in litigious contexts.106 On this point, however, the English Law Commission had
earlier disagreed, regarding any statutory definition of what amounted to a recognizable
psychiatric illness (whether by reference to the classifications themselves, or by reference to a
list of specified illnesses for which compensation could be claimed) as 'fraught with difficulty'
and 'not practicable'.107
Oxford J Legal Studies (2012) 32 (1): 77 at 91
One case which illustrates the sometimes tenuous link between the diagnostic classifications and
the courtroom is the seminal, and controversial,108 decision of Page v Smith.109 To recap the
well-known facts, Mr Page was involved in a relatively minor car accident, due to the negligent
driving of Mr Smith who turned right immediately into his path. Mr Page's previous myalgic
encephalomyelitis (ME),110 which he had suffered for some 20 years, became chronic and
permanent. Although that type of injury was deemed to be unforeseeable, recovery was
permitted by the House of Lords (by majority) on the basis that some physical injury resulting
from the accident was clearly foreseeable.111 Significantly, for the issue under discussion in this
section of the article, ME was (and is) not coded in DSM-IV at all, and was (and is) accorded the
briefest of references in ICD-10.112 Furthermore, not one of the 10 separate judgments in this
case, from trial to House of Lords, referred to the diagnostic classifications of ICD or DSM
whatsoever, when describing Mr Page's injury.113 It is ironic that the leading English case on
primary victim recovery in negligently inflicted psychiatric injury law was predicated upon an
injury which had such an uncertain status under the very diagnostic classifications which cases
such as Hussain now suggest to be the benchmark for proof of actionable mental injury.
Nevertheless, if the reforms suggested in this article are adopted, then departures from the
diagnostic classifications should be endorsed, so that a court asks, not whether the claimant has
suffered a psychiatric illness identified in ICD-10 or DSM-IV, but whether the claimant has
suffered some abnormal psychological reaction, as opposed to ordinary human emotions of grief,
distress, etc, to constitute actionable damage. In that regard, this author fully endorses another
commentator's view that '[t]he question is … (or should be), whether [the claimant's condition] is
sufficiently … different from “mere grief or distress” to merit compensation'.114
Oxford J Legal Studies (2012) 32 (1): 77 at 92
C. The Respective Roles of Judge and Psychiatrist Expert Witness
On the one hand, judicial deference to psychiatrist witnesses, when assessing the question of a
recognizable psychiatric injury, is clearly visible in some negligence suits. In the case of baby
MK who was negligently separated from her parents following allegations of abuse, Simon J
stated: '[n]or, in my view, is this an area of law in which the court should infer that there has
been an injury where experts in the field do not.'115 In White, Lord Steyn was equally as adamant:
'[w]here the line is to be drawn is a matter for expert psychiatric evidence'116—a view with which
the English Law Commission117 and leading academic commentary118 have concurred.
On the other hand, it has been judicially suggested that the DSM-IV criteria are expressed in
sufficiently plain factual language to permit a judge to apply those criteria to the facts and decide
whether the pre-requisite psychiatric illness was suffered. The point has particularly arisen in
respect of the disorder of pathological gambling, both in England119 and in Australia,120 where
both courts were prepared to consider the criteria themselves in order to determine whether the
five prerequisites for 'pathological gambling' were met121—as a 'common sense application of the
DSM-IV criteria'.122 The approach of a court applying the diagnostic criteria to the facts at hand
was also evident in Vernon v Bosley (No 1), regarding alleged PTSD, where Evans LJ stated: 'its
symptoms … are behavioural: conduct or speech which is regarded as “inappropriate”, meaning,
as I understand it, not to be expected from a “normal” person. … the starting point for this
particular inquiry is not the opinions of expert witnesses but the factual evidence of what the
plaintiff said and did—how he behaved—during the periods in question'.123 In the same vein, the
Ipp Committee doubted whether the task was one for an entirely medical judgment: '[i]t often
seems to be assumed that whether someone is suffering from a mental illness is a purely medical
question. However, the concept of illness is, to some extent, a social construction, and the
catalogue of mental illnesses is not closed'.124
These contrasting legal viewpoints bring to the fore the respective roles of the judge and the
expert witness in the courtroom, insofar as the diagnostic classifications are concerned.
A. Judicial Support for a Lesser Degree of Mental Harm (Falling Short of a Recognized
Psychiatric Injury)
Most relevantly for English law's purposes, in Hussain v Chief Constable of West Mercia
Constabulary,141 there were contrasting viewpoints put forth by the Court of Appeal on the
subject of what the classical test in McLoughlin v O'Brian (reproduced previously142) actually
meant. As already noted,143 Stanley Burnton LJ remarked, as the traditional understanding of
Lord Bridge's statement, that '[a] recognised psychiatric illness is one which has been recognised
by the psychiatric profession' and cited ICD-10 in support thereof.144 Maurice Kay LJ, however,
was far more cautious. Not only did his Lordship use the terminology of a 'grievous non-physical
reaction' to describe the threshold which could give rise to a claim for pure mental injury arising
from misfeasance, but also pointed out that, in Lord Bingham's description of what amounts to
'material damage' in Watkins145 (another alleged misfeasance case), an inclusive definition was
used: 'material damage includes recognized psychiatric illness, not that it is limited to it as the
only allowable type of non-physical injury'.146 More crucially for present purposes, though, the
following dictum by Maurice Kay LJ was squarely directed towards negligence:
[i]t seems to me that what Lord Bridge was concerned to discount in McLoughlin v O'Brien was
'normal human emotions', not significantly abnormal manifestations of non-physical sequelae. If
my approach does not live easily with the established approach in cases of negligence resulting
in personal injury, I would strive to treat misfeasance in public office exceptionally.147
Oxford J Legal Studies (2012) 32 (1): 77 at 97
This is by no means an isolated incident of judicial questioning as to whether the law has set too
high a threshold for actionable damage in pure psychiatric injury negligence claims. Notably, in
American common law, the tort of negligent infliction of emotional distress requires 'mental
anguish', which can comprise a spectrum of emotional disturbances, from a recognizable
psychiatric injury, to lesser emotions of, say, grief, embarrassment or anger.148 The less onerous
threshold of damage required for the American cause of action has been recognized by law
commission studies,149 by commentators150 and by judges.151 However, Commonwealth law is of
more interest to English law in this area, given the 'inconsistent and confusing' treatment of the
American tort across different states;152 and given the fact that, 'in the United States, the use of
the term, “emotional distress” may or may not indicate that recovery is being permitted for
something less than a recognizable psychiatric illness'.153 Furthermore, the explicit approval of
the English Traditional Rule in many Commonwealth jurisdictions154 renders any departures
from that position there of real significance.
In a number of such jurisdictions, the position has occasionally been put, by senior appellate
judges, that something less than a recognized psychiatric injury should suffice, in cases of
negligently inflicted mental harm. For example, in the New Zealand medical negligence claim
of J&P Van Soest v Residual Health Management Unit, Thomas J preferred the view that even
mental sorrow and distress suffered by grieving relatives ought to be compensable, provided that
the 'mental suffering is of the order, or approaching the order, of a psychiatric illness and
therefore plainly outside the range of ordinary human experience'.155 (The majority in Van
Soest did not agree, however, on the bases that to assess what degree of suffering would fall
outside 'ordinary human experience' would make the test unworkable and that there could be
floodgates
Oxford J Legal Studies (2012) 32 (1): 77 at 98
problems 'to throw the courts open to everyone caused distress'156.) In Scotland too, Lord Prosser
doubted whether the bright dividing line drawn by Lord Bridge in McLoughlin v O'Brian was
desirable: 'between normal emotions and positive psychiatric illness, there will be many types of
suffering, and indeed consequences which are more or less disabling, which Lord Bridge does
not mention'.157 And in Australia, in Tame v New South Wales, one member of the High Court
(Hayne J) remarked that: '[l]ittle explicit attention has been given to identifying the basis upon
which the distinction between psychiatric injury and mental distress is to be made, beyond noting
that it is only the former which is to be compensable', but that the distinction (and the
justifications said to favour it) 'should not be ignored' in the judicial discussion of negligently
inflicted mental injury.158
It is in Canadian jurisprudence, however, that a more liberal view about permitting anxiety-based
damages has been most commonly and cogently suggested. In Mustapha v Culligan of Canada
Ltd,159 the Supreme Court of Canada considered a case in which the claimant suffered a major
and debilitating depressive disorder—a recognized psychiatric injury—upon witnessing dead
flies in an unopened bottle of drinking water supplied by Culligan. Mr Mustapha became
obsessed with the 'revolting implications' which the incident could have had for his family's
health. The claim ultimately failed because this 'highly unusual' injury would not have been
objectively foreseeable in one of ordinary fortitude.160 Of interest, however, was that McLachlin
CJ (writing for the Court) seemingly indicated, in dictum, that something other than the
Traditional Rule would suffice:
[p]ersonal injury at law connotes serious trauma or illness. The law does not recognize upset,
disgust, anxiety, agitation, or other mental states that fall short of injury. I would not purport to
define compensable injury exhaustively, except to say that it must be serious and prolonged and
rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if
sometimes reluctantly, accept. The need to accept such upsets rather than seek redress in tort is
what I take the Court of Appeal to be expressing in its quote from Vanek v Great Atlantic &
Pacific Co. of Canada: 'Life goes on'. Quite simply, minor and transient upsets do not constitute
personal injury, and hence do not amount to damage.161
Oxford J Legal Studies (2012) 32 (1): 77 at 99
Apart from stating that Mr Mustapha indeed suffered from a psychiatric illness which therefore
'qualifies as a personal injury at law',162 her Honour did not explicitly state that such an injury
was required by law, where negligently inflicted pure psychiatric injury is claimed.
McLachlin CJ's observations are significant, because a body of lower-level Canadian
jurisprudence has favoured a departure from the Traditional Rule from time to time.163 In the
Ontario decision of Vanek v Great Atlantic & Pacific Co of Canada,164 the claimant parents
developed a 'chronic anxiety' about the prospect of their daughter developing long-term
consequences from ingesting contaminated grape juice, which fell short of a psychiatric illness.
That was held to be compensable at trial, on the basis that a less serious level of injury simply
warranted a lesser quantum of damages. That particular proposition had been put forward in the
earlier Ontario case of Mason v Westside Cemeteries Ltd,165 in which Molloy J remarked that, if
damages could be awarded for 'physical scratches and bruises of a minor nature', then so too,
damages for 'deep emotional distress' which fell short of a psychiatric condition should be
permitted: '[t]rivial physical injury attracts trivial damages. It would seem logical to deal with
trivial emotional injury on the same basis, rather than by denying the claim
altogether.'166 The Vanek trial court considered that view as having 'unassailable logic and good
sense'.167 (However, on appeal, the Vanek claimants lost, for reasons remarkably similar to Mr
Mustapha—it was not reasonably foreseeable that they would suffer any psychiatric damage
from the ingestion and the Vanek appeal court specifically refused to reconsider whether anxiety-
based damages should be sufficient, merely noting that the Traditional Rule had given rise to
judicial and academic criticism.168) Furthermore, in Mason, Molloy J considered that mere
emotional distress and pain is even more foreseeable from a negligent act than is psychiatric
illness, and hence, is worthy of compensation in the eyes of the law, even if that distress 'does
not degenerate emotionally to the point of actual psychiatric illness'.169
Oxford J Legal Studies (2012) 32 (1): 77 at 100
Against those more liberal sentiments, however, are several lower court
decisions170 since Mustapha, which have concluded (or have applied the principle) that,
notwithstanding the actual words used by McLachlin CJ, the Supreme Court did not change (nor
intend to change) the threshold of actionable mental harm from that of a recognizable psychiatric
injury. This view was most recently restated, in January 2011, by the Ontario Court of Appeal
in Healey v Lakeridge Health Corp.171 Academic commentators have remarked upon both the
confusing terminology and the uncertainty thereby created in Mustapha itself,172 and the wider
ambit of actionable damage which Canadian law has sometimes heralded.173
Taken together, these sporadic statements from Commonwealth jurisprudence evidence a distinct
lack of enthusiasm, on the part of some judges, for the Traditional Rule and for the clear
demarcation which it espouses.
In summary, the suggestion by Maurice Kay LJ—that Lord Bridge's test in McLoughlin has
judicially shifted from that which his Lordship originally intended—is (it is submitted) correct.
Furthermore, a realignment of modern English law on pure mental injury claims, to allow the
types of claims identified by Maurice Kay LJ as 'grievous non-physical injury', would help to
reconcile the conundrums identified in the following sections.
B. The Common Law's Differentiation does not Mean that there is One, Medically Speaking
Recently, in Dickie v Flexcon Glenrothes Ltd, arising from a claim (ultimately unsuccessful) for
mental harm under the Scottish Protection from Harassment Act 1997, the claimant argued that:
'simply because anxiety and psychiatric injury were treated differently by the common law, it did
not mean to say that they were, in fact, different types of injury'.174 Having listened to the
psychiatric evidence, the court agreed:
anxiety and psychiatric harm are both, in my view, conditions with a similar aetiology, both
sharing similar symptoms but with one being more serious than the other. … it seems quite
artificial to attempt to draw a borderline between anxiety and psychiatric illness caused by
harassment. If the victim's emotional reaction to the harassment is of such a degree as to amount
to psychiatric illness there is no logic to treating it
Oxford J Legal Studies (2012) 32 (1): 77 at 101
differently from anxiety. … the victim of harassment is not entitled to damages for a label, but
for what he has actually suffered.175
In Dickie, reference was also made to the fact that, for the purposes of certain statutory claims,
some English judges had not been prepared to draw a distinction between injury to feelings and
depression either—for the reason that these were not different kinds of damage.176 Earlier law
commission studies and courts177 have concluded too, after receiving psychiatric evidence, that
'drawing the line between a recognised psychiatric injury and mere stress or anxiety may not be
easy'.178 Indeed, to pretend otherwise confers an artificiality on the law which medical science
does not support.
Notably, it is not only the difficult line-drawing exercise as to the degree of mental harm which
gives the impression of legal inconsistency—the length of time for which the claimant may suffer
the mental harm can also lead to quite disparate legal outcomes. In Ward v Leeds Teaching
Hospitals NHS Trust, for example, the accepted psychiatric evidence was that the claimant
mother had suffered 'a severe and prolonged bereavement reaction' following the death of her
daughter (arising out of a wisdom tooth extraction). That claimant failed, in circumstances where
the court cast doubt on whether she had suffered a recognized psychiatric illness worthy of
compensation.179 On the other hand, in Tredget and Tredget v Bexley HA (regarding a birth
which was conducted amid chaos and pandemonium in the delivery theatre and where the baby
boy died of his injuries when two days old), both parents were permitted to recover for what the
psychiatric evidence described as 'pathological unresolved mourning'.180 This prolonged reaction
was, in the eyes of the law, seemingly more deserving of compensation than the 'prolonged
bereavement reaction' of Mrs Ward. Indeed, some English case law, subsequent to McLoughlin v
O'Brian, has referred to the non-recoverability of damages for 'transient' or 'transitory' mental
harm181—yet not all compensable recognized psychiatric illnesses for which English claimants
have recovered damages are permanent medical conditions. In this regard, this author
respectfully disagrees with Hayne J in Tame v New South Wales who remarked that '[t]o point to
cases on either side
Oxford J Legal Studies (2012) 32 (1): 77 at 102
of the line [mental distress versus psychiatric injury] and remark on how close they are to the
boundary, and thus to each other, is seldom a valid criticism of the boundary that is
drawn'.182(His Honour preferred to concentrate upon how large that middle-of-the-spectrum band
of cases may be, when considering whether to revise the Traditional Rule, a decision which was
certainly not taken, for the purposes of Australian law, in Tame.) To the contrary of Hayne J's
sentiments, it is submitted that whenever the law turns its face against an aggrieved Mrs Ward
and in favour of a compensated Mr Tredget, in the mid-spectrum of 'damaged claimants', the law
is not sufficiently coherent and defensible and deserves closer scrutiny.
Of course, it is not the contention of this article that all those who suffer transient or trivial
mental distress should recover at law. However, there are undoubtedly claimants who have
suffered from (in Maurice Kay LJ's words183) some 'grievous non-physical reaction', who ought
to be considered as having suffered from some actionable damage at law. This author thoroughly
endorses the views of other commentators184 that to insist upon a recognized psychiatric injury
'may exclude some deserving claimants'. Furthermore, medical science is sufficiently developed
to assist the court to decide whether the necessary threshold of 'mental injury' has been met. As
Thomas J said in Van Soest, '[d]octors can speak with a great deal of precision without needing
to address the question whether the mental suffering is a recognisable psychiatric illness or
not'.185
C. Forcing a Search for Actionable Physical Injury (on Which to Graft a Lesser Mental
Harm)
One tactic to avoid the requirement for a recognized psychiatric injury is to prove some
actionable physical injury (or, to use the phraseology of Watkins,186 some 'material damage' of a
physical type), which then enables the claimant to recover damages for a psychological injury
because it is, or is ancillary to, that physical injury. Not only does this tactic obviate the need to
bring a claim for pure psychiatric injury, but it would also render engagement with the arbitrary
rules governing primary–versus–secondary–victim recovery both unnecessary and incorrect.
There are three possible ways in which proof of some physical injury may permit a route to the
recovery of a lesser type of mental harm, such as distress, worry, etc.
First, the psychological disturbance may, medically-speaking, arise directly from a physical
impairment that is, itself, non-observable (say, a disturbance in
In summary, when judicial support for a lesser degree of mental harm (canvassed in sub-section
A) is coupled with the further suggestions that any bright-line division between mere
psychological harm and compensable psychiatric injury will give rise
to medical and legal distortions and artificiality (discussed in sub-sections B and C,
respectively), a more plausible solution is to allow the lower threshold of psychological mental
harm for all cases in which the claimant is attempting to prove that s/he suffered a mental injury
arising from breach of a duty of care—but to have close regard to the preclusive measures
described in the following Section.
5. How Claims for Lesser Mental Harm might be Ring-Fenced
If English law were to permit recovery for negligently inflicted 'grievous mental injury' which
falls short of a recognized psychiatric injury (to paraphrase Maurice Kay LJ), then a 'powerful
control mechanism' would be removed, according to McLoughlin v O'Brian. How, then, might
such claims be feasibly ring-fenced? In this author's view, the prospects of floodgates of
litigation, should the Traditional Rule be revised, is overstated and highly unlikely, for the
following three reasons.
First, by no means does it follow that the legal possibility of recovering for a lower threshold of
mental injury connotes any automatic duty of care on the defendant's part to prevent that
injury.222 For one thing, except in the case of Page v Smith-type claims (where any pre-existing
vulnerability of the claimant to mental harm is irrelevant, the defendant must take that type of
victim as he finds him223), the normal common law rule of reasonable foreseeability applies,
Oxford J Legal Studies (2012) 32 (1): 77 at 108
ie, whether it was reasonably foreseeable (ie a 'real risk',224 more than a mere possibility) that a
person of ordinary or normal fortitude would have suffered psychiatric injury as the claimant did
in the same circumstances. This objective test places some restriction upon recovery for, as Lord
Porter stated in Bourhill v Young, a negligent defendant is entitled to assume that 'the ordinary
frequenter of the streets' (or, indeed, in any other environment) has sufficient fortitude to endure
upsetting incidents and is not liable 'towards one who does not possess the customary
phlegm'.225The normal fortitude rule has most utility, in English law, in ring-fencing secondary
victim negligence claims226 (and arguably should, in this author's view, apply to primary
victim Page v Smith-type claims too227). Where the normal fortitude rule governs, then if the
claimant's mental harm was so idiosyncratic and unusual that it was highly unlikely to occur (as
in Mustapha, Vanekand other notable cases228), the claimant will fail—albeit that if the
harm was objectively foreseeable in a person of normal fortitude, then it matters not whether the
claimant had an 'eggshell skull personality', for s/he will be able to recover damages for the full
extent of his/her psychiatric injury.229 As the Mustapha Supreme Court explained, were the law
of negligence to be based upon perfect foresight, then a defendant should be liable for a
claimant's unusual or extreme mental reactions to negligent events—but the law is based
upon reasonable foresight only, and hence, the defendant can safely disregard a claimant of
abnormal sensibilities, if a person of normal fortitude would not have suffered a mental injury in
those same circumstances.230
Quite apart from the requisite foreseeability of harm, the parties may not be proximate enough to
warrant legal relations being imposed, an especial difficulty for secondary victims—and however
frequently and vehemently the 'Alcock control mechanisms'231 applicable to secondary victims
may be
Oxford J Legal Studies (2012) 32 (1): 77 at 109
criticized,232 English law shows no signs of abandoning them. Moreover, policy reasons may
preclude a duty of care being owed by a negligent defendant to psychiatrically-injured claimants,
as the claimant police officers who attended the Hillsborough disaster discovered.233 Hence,
proof of a duty of care is by no means assured (and this is quite apart from the considerable
difficulties which may arise for claimants in proving the remainder of the cause of action in
negligence234).
Secondly, as Canadian jurisprudence has noted,235 lesser damage equates to lesser damages—
albeit that the claimant must surmount the de minimis threshold of damage. The Pleural
Plaqueslitigation reiterated this principle in the context of physical damage (ie, scarring is not
sufficient, on its own, to constitute an 'injury' of a physical type). As Lord Hoffmann noted,
'whether an injury is sufficiently serious to found a claim for compensation, or too trivial to
justify a remedy, is a question of degree. Because people do not often go to the trouble of
bringing actions to recover damages for trivial injuries, the question of how trivial is trivial has
seldom arisen directly.'236Nevertheless, the principle that pure psychological injury was too
transient and/or insignificant to sound in damages has been applied in English law237—and
should continue to be rigorously enforced in the context of mental injury claims, should the
Traditional Rule be departed from in the future. Just because the threshold for actionable damage
is lowered does not mean that 'minor and transient upsets' amount to an injury, for as the
Supreme Court of Canada emphasized in Mustapha, they clearly should not.238 The law should
not be an insurer against all psychological (or, for that matter, physical) unpleasantness. A
reduced threshold of a 'grievous mental injury' could be feasibly assessed by reference to
objective factors, such as: how seriously the claimant's cognitive functions and participation in
daily activities was impaired, post-negligence; the length of time for which the impairment was
suffered; and/or the extent of medical care required by the claimant.239
Oxford J Legal Studies (2012) 32 (1): 77 at 110
Thirdly, the court's ability to strike out proceedings, pursuant to CPR 3.4, as constituting an
abuse of process,240 where there is no realistic prospect of an award of more than very modest
damages, has been judicially-adverted to in a variety of contexts,241 including where damages for
pure psychiatric injury have been claimed.242 These case management powers assist the court to
determine the parties' legal rights and obligations in a way which is just and expeditious, in
accordance with the CPR's 'overriding objective'.243 This is to be encouraged, should the reforms
proposed in this article take effect. The damages will often be small, and such cases do not
represent a good use of judicial and litigant resources. This mantra may well apply to preclude
the type of litigation in the aforementioned Canadian case of Mason v Westside Cemeteries
Ltd244(where the damages award for losing the parents' cremated ashes was only Can$1000),
were a like case to be instituted in England.
Hence, if the damages arising from a mere psychological injury are extremely modest, there are
two possible ripostes: the injury does not satisfy the de minimis threshold of damage; or, the case
is infeasible because of the impact of the overriding objective upon all post-Woolf negligence
litigation.
It should be emphasized that it is not contended herein that some requirement of 'sudden shock'
(in the sense of 'a sudden appreciation of a horrifying event, which violently agitates the
mind'245) should attach to the lower level of mental harm which this article advocates, by which
to 'ring-fence' the number of potential claims. Proving a shock-induced psychiatric injury has
long been the legal bane of secondary victim claims for negligently inflicted psychiatric injury—
giving rise to a distinct 'watering down' of what the requirement entails in English law.246 When
coupled (for example) with the English Law Commission's rejection of the requirement in its
Draft Bill,247 with legal commentary pointing out that the concept is 'a nonsense in
Oxford J Legal Studies (2012) 32 (1): 77 at 111
medical terms',248 and with the express abandonment of the requirement in other key
jurisdictions,249 the author reiterates a previously-expressed view250 that proving a 'shock-
induced' mental harm would be best removed from the ambit of negligently inflicted psychiatric
injury claims altogether. Certainly, whatever 'ring-fence' the shock requirement has purported to
provide to date has been so inconsistently applied and so extensively criticized as being arbitrary
and unreasonable, that no purpose is served to mandate it for the lower level of compensable
mental injury contended for in this article.
6. Conclusion
In light of the foregoing analysis, it has been argued in this article that reform of this nook of
negligence law would be both desirable and feasible. In a nutshell, two reform propositions are
put.
First, a strict adherence to ICD-10 and DSM-IV is legally and medically problematical, when
seeking to answer the question, 'has the claimant suffered a psychiatric injury which is actionable
at law?' These problems arise because the caveats and qualifications contained within the
classifications are frequently overlooked; courts sometimes permit claims by bypassing the
classifications altogether; the respective roles of the judge and the expert, when applying the
classifications, have not always been clearly defined; and the currency of the classifications can
be called into question, given advances in psychiatric knowledge (whether based on
epidemiological or other research) which are not reflected in the classifications. A greater
consistency in the courtroom use of the diagnostic classifications is essential, for litigants and
their advisers alike. It has been suggested herein that judges should be more cognizant of the
'checks and balances' within the classifications than is presently the case; that it should be
possible for psychiatric experts to depart from the classifications and to exercise personal clinical
judgment if the circumstances so require; and that the 'starting point' for an analysis of the
diagnostic criteria for psychiatric illness should always be the expert and not the court.
Secondly, English law's use of the Traditional Rule which compels a claimant who has suffered
no physical injury to prove that he/she suffered a recognized psychiatric injury instead is
problematical and should be re-thought. Clearly, when faced with the application of the
Traditional Rule to sometimes harrowing factual situations, some judges in this and other
jurisdictions have increasingly become concerned about precluding anxiety-based claims.
Moreover, it is questionable whether Lord Bridge intended for that strict