Nervous Shock and the Commission Concern - Essay Example

? Nervous Shock Lecturer Introduction When it comes to the mental shock case, there has been a numberof concerns about the elements involved which are considered as being of great subtlety as compared to the case of other physical injuries that occur ordinarily. There are these elements in the mental shock case that have given rise to many debates and concerns on the specific scope of its legal liability. Physical illness has had many liabilities in history characterized by suspicion, fear and ignorance. Past cases have ignored the causes of psychiatric illness. The cases have also witnessed medical discipline judicial suspicion devoted to psychiatric illness treatment as well as the fears associated with opening liability that may lead to a number of claims. The liability of this law is considered to transform into the simplistic notion that if an event is not seen then there is no way it can be proved to have resulted to any harm. This has led some courts to consider psychiatric damage as being less important and not worth any compensation unless the damage is associated with physical injuries that can be measured and seen objectively1. Courts have in the recent past refused to consider psychiatric damage on equal basis as other physical damages. The House of Lords came to the agreement that in case of any physical injury affecting a plaintiff in circumstances that are foreseeable, no matter how trivial they may be, but end up not taking place, then the plaintiff is viewed to be in a position to recuperate from psychiatric illness even without concerns on whether the condition was foreseeable. Any foreseeable or case of physical injury to some extend legitimate the plaintiff claims of psychiatric illness. The physical injury primacy in the dominion of compensation has proved to be apparent even in situations where the courts are taking part in allowing psychiatric illness recovery. The “greater subtlety elements” of Lord Macmillan are applicable in cases of psychiatric illness that are not offered by physical injury means to the affected plaintiff2. The Current Law The present law on psychiatric illness liability which does not result from the plaintiff’s physical injury is summarized in two House of Lords decisions; Alcock v Chief Constable of the South Yorkshire Police (1992) 1 AC 310 and McLoughlin v O’Brian. In the McLoughlin case, the husband to the plaintiff as well as her children were victims of a road accident that had resulted out of the defendant’s negligence. The plaintiff received news about the accident two hours later and moved to the hospital where she learned of the death of one child and witnessed the injuries of the rest of her family members in circumstances that were so distressing. The House of Lords agreed unanimously to hold the claim of the plaintiff for psychiatric illness as to sail through. However, the house disagreed on the appropriate approach of testing liability. Lords Edmund and Wilberforce argued that the psychiatric injury foreseeability was not necessarily the main requirement. Lords Scarman and Bridge opted for a test that was solely based on foreseebility. This was untrammeled by temporal, physical and spatial limits that were proved to be largely subjective in how they were applied. These factors included in the aftermath test by Lord Wilberforce that led to a direction towards the extent of foreseeability of psychiatric illness. The main issue in the Alcock case was the decision status ruled in McLoughlin v O’Brian case. Its concern was whether the case came up with a liability test that was based solely on psychiatric illness foreseeability or were there other policy factors taken into consideration in determining the liability’s ambit? The case was concern about the actions taken against the police after the disaster that occurred in the Hillsborough stadium in 1989. In the disaster, 95 people lost their lives and more than 400 were injured. The disaster came about after too many fans were permitted to get into an area that was confined within the stadium. The events were televised live showing that the actions were caused by 16 individuals. According to the Alcock case, it was stated that a plaintiff must either hear or see the event if not its aftermath3. The psychiatric illness that is passed on through the communication of an event by a party that was not present in the occurrence is regarded as being insufficient. The televised scenes were considered as to have been communicated through a third party as they did not portray the suffering the victims went through and thus the viewing of the scenes that were televised could not be considered as being equal to a situation where the plaintiff hears or is within sight of an event or its aftermath. Despite the fact that the pictures on television gave rise to distress and anxiety feelings, this was considered as being the same as being narrated to about the event by a party who was not present at the scene. Some of these identified individuals were in the stadium; however, they were not at the scene of the incident. A part from a single case where the plaintiff was a fiancee, the rest of them were relatives to the victims. The difference between the two cases was that none of the plaintiffs were parents or spouse to the victims who lost their lives or suffered physical injuries. In Alcock, it was ruled that a person owned by duty was not in any way limited with reference to the type of relationship in question; like wife and husband or child and parent. The significant factor was the relationship that existed between the plaintiff and the primary victim involving close ties of affection and love. Such a tie had to be first proved by the plaintiff. The presumption was that ties like these existed between spouses and in the relationship between parents and children though not witnessed in close friendship or other family relationships. The ties happen to be stronger in the event of engaged couples as compared to married couples who have stayed together for many years. The accused policemen in the case admitted of being liable to negligence in respect to the victims injured and killed in the incident. The police however denied that it was their responsibility to care for the plaintiffs. The House of Lords using the aftermath test of Lord Wilberforce dismissed the actions of the plaintiff4. This decision was based on the neglect act the defendant had made the plaintiffs to think they voluntary led to injuries or deaths and the psychiatric illness resulting to the plaintiff’s shock of the supposed fact consciousness. Considering the fact that the negligence of the defendant had foreseeably led the plaintiff to be in an unwilling position to take part in the event was enough to come up with a close relationship between the two. The main question in this situation is whether the plaintiff’s injury was rationally foreseeable. The other situation is where the plaintiff happens to be an unwilling and passive witness of the others injuries. In this case, psychiatric injury is being attributed to have witnessed another person’s misfortunes in a case where the plaintiff was not threatened personally or did not directly take part act. In this situation, several considerations have to be noted; the relationship nature between the primary victims and the plaintiff, the plaintiffs proximately to the accident or the immediate aftermath, the plaintiffs’ means of perceiving an event or responding to information and the causative manner of the psychiatric illness. It has been argued that there prevails a distinction between primary victims in situations where the plaintiff is expected to demonstrate that he or she genuinely suffered from psychiatric illness and secondary victims where the plaintiff is expected to meet the further requirements fails to honor analysis. It is a validation of the current law state and does not justify the varying liability rules that are applicable. The distinction in the Alcock case between secondary and primary victims should not be used as the basis to treat the law differently. It is just a way of classifying plaintiffs so as to offer explanations about the current legal structure. The Commission Concern When viewing the liability law for psychiatric illness, there are always two fundamental issues that have to be addressed. The first concern is why psychiatric victims are treated differently from other victims suffering from physical injuries. The difference can be viewed in terms of compensation, but still this has to be clearly expressed and has to be scrutinized by the public. There has been a major criticism of the current state of law concerning the courts move to come up with arbitrary criteria in their applications in an effort to put limits on psychiatric illness that have been inflicted out of negligence. The state of law also fails to abide to medical understanding of the occurrences of such damages. The other concern is whether psychiatric illness is harmful to the extent that it needs protection by the tort system. The concern in this second case is to whether such plaintiffs suffering from such a loss should be compensated and why? The tort system has already appreciated the significance of compensation when it comes to psychiatric illness now that courts allow recovery is situations where; the plaintiff sustains physical injuries regardless of how trivial the injuries may be and in situations where the plaintiff did not suffer any physical injury but satisfies the House of Lords’ criteria re-stated in Alcock. More so, psychiatric illness can get very serious for the victims while in some cases it can be debilitating than the physical injuries. The psychiatric injuries significance and the suitability of the psychiatric illness claims were recognized by law more than fifty years ago. This is evident in the Bourhill v Young (1943) AC 925. In this case, Lord Macmillan appreciated the fact that a mental shock may result to more serious consequences than the ones caused by physical impact. In the Aclock case, the Lordships passed that in order for the psychiatric illness of the plaintiff to be actionable, it must have been caused out of shock, that is, the nervous system being assaulted suddenly. Lord Ackner explained this by refereeing to “shock” to mean an abrupt appreciation by either sound or sight of an event that is horrifying, which in turn stirs the mind and without the inclusion of psychiatric illness that will result after some time from an assault that gradually affects the nervous system. This makes psychiatric illness excluded from the feeling of having to adjust to the deprivation consequent caused by loosing a loved one. Policy Factors The commission has come up with a number of factors behind the attitude of the court towards psychiatric illness. Psychiatry has produced several suspicions as a discipline especially on the ability to distinguish false claims from genuine ones by medical professional raising fears of flooded fraudulent claims. Although there are possibilities of claims of frauds, this should not be taken as the main factor to question psychiatric compensation. There are also claims of fraud for physical injury cases and especially in the exaggerating symptoms form. However, this is easily dealt with by using the forensic process. Fear should now be directed towards the guanine claims. The policy factor that can be considered as to be a valid reason for limiting the plaintiffs entitlement to damages claim when it comes to psychiatric illness is in cases where such damages occur out of negligence of another party. Psychiatric illness is governed by a strange policy which declares that the greater the damage extent caused, the more the need for the defendants’ protection from legal responsibility. Plaintiffs facing risks of being victims of such lose are better placed to be insured against such risks and in a cheaper manner than the potential defendants. This however is not applicable in psychiatric illness as the same kind of argument would mean that plaintiffs have to insure themselves against negligence risks which inflict physical injuries. The other objection that has come up concerning the extension of psychiatric illness liability is the event where the liability of the defendant becomes disproportionate. According to the tort system, the liability is seen to be disproportionate. This remains a standard negligence criticism reflecting a moral responsibility principle in which damages awards are not related to the extent of the fault of the defendant. The commission has dismissed most of these policies and objections raised. The objections raised included; differences in medical opinions may arise as a result of psychiatric thinking fluidity and the consideration that psychiatric illness is not as serous as bodily injuries. The commission dismissed these objections by stating that the courts have proved to be incapable of differentiating between psychiatric opinions and the expert opinions in other many spheres. Also, it has been proved that psychiatrists happen to be just as consistent in how they are diagnosed as the rest of the physicians. The Commission admits that psychiatric illness deserves to be protected by the law just like physical injury6. The commission has also raised concerns about plaintiffs being taken as secondary victims in most of the cases. The comment of the commission in this is that the floodgate arguments should be restated in disaster cases as well as events where there are no applications of the plaintiff being considered as the primary victim. Reform Options After reviewing the psychiatric illness liability, there are several options that can be taken; doing away with all the psychiatric illness liability without considering physical injuries, leave the current recovery rules unchanged, amend a section of the most random rules by doing away with recovery restrictions thus extending liability and treating psychiatric illness liability in the same way physical injury is treated. The commission views the whole situation as to be in need of reforms. These reforms according to the commission have to come in legislation form. The law on psychiatric illness liability has been entirely made by judges. The arbitrary and irregular rulings that happen to be the law’s hallmark in this area are not a good show in the process of making laws by the judicial. The courts are also unlikely to be in a position to get free from the intellectual muddle in which they have found themselves to wander considering the restrictive position taken in the Alcock case7. The law commission also views the situation as to have another option of taking an appropriate route. While the commission is against the going back to an actual requirement or physical injury apprehension to the plaintiff, the commission is in agreement of a possible special limitation over reasonable foreseeability in which the defendant happens to have injured someone out of negligence or imperiled another person who is not the plaintiff in the case. This means that the commission is willing to accept some of the policy factors. Nevertheless, the principles of liability of the Law Commission aims at extending the liability scope through abandoning the closeness requirement in space and time as well as its perception through individual’s unaided senses in the event of a close relationship of affection and love between the primary victim and the plaintiff. This step will be appropriate in abolishing the distinction that is believed to exist between the aftermath of an event and the immediate aftermath of the same event. This will however open up a wide range of possible plaintiffs compared to those rejected earlier in the Alcock case. Some situations like providing evidence based on televised events would qualify. This proposal does away with some of the main planks that were restricted on recovery in Alcock8. The Commission however plans to retain some of the planks like the one on closeness of the relationship of affection and love while at the same time consulting if there should exist a fixed relationship list creating a closeness that is presumed to be rebuttable. The plank conditioning plaintiffs with psychiatric illness to be “shock” induced has left the commission to remain uncertain. This remains the most anomalous of the existing restrictions. It appears to have resulted from the development of the “nervous shock” law. Even in situations where a person suffers from a trauma in an assault form affecting the nervous system making the person most likely to get psychiatric illness, it remains a matter of caution. However, this is not a justification for the exclusion of a plaintiff who gets psychiatric illness in a given time limit. Conclusion How the law on psychiatric illness has been developed in the past years is a reflection of the gradual understanding of the illness causes and the increasing acceptance of how its consequences are. However, judicial skepticism echoes on psychiatry validity as a discipline and how important its subject is has remained for a long time filled with fear that a large number of possible plaintiffs are waiting to join the compensation list. This is easily witnessed in the shape in which the liability rules have taken the arbitrarily to choose certain plaintiffs considered to be liable to compensation while leaving out others who equally deserve such compensation. The rules achieve this through what it terms as policy. The policies happen to articulate in some cases but normally appear to be legal categories that are meaningless leading to the law being discredited. Some cases still hold on to the Cartesian division between the body and the mind without appreciating the fact the increasing medical knowledge leads to the distinction between the two becoming more untenable9. However, the argument about the law treating psychiatric illness the same way physical injury is treated does not completely settle on scientific demonstration of inextricable links that exist between the body and the minds welfare. This considers the practical outcome of these damage forms and states that there exists no basis that is sensible enough to treat psychiatric damage as deserving less protection from the law. Bibliography Hedley, S., ‘Hillsborough-Morbid Musings of a Reasonable Chief Constable’ Cambridge Law Journal 16, 1992. Mulliany, N & Handford, P., Tort Liability for Psychiatric Damage, Sydney: The Law Book Co., 1993. Napier, M & Wheat, K., Recovering Damages for Psychiatric Injury, London: Blackstone Press, 1995. Nasir, K., ‘Nervous Shock and Alcock: The Judicial Buck Stops Here’, 55 Modern Law Review 705, 1992. O’Brien, L., ‘The Validity of the Diagnosis of the Post Traumatic Stress Disorder,’ Journal of Personal Injury Litigation 257, 1994. Swanton, J., ‘Issues in Tort Liability for Nervous Shock’ Australian Law Journal, 1992 Teff, H., ‘Liability for Negligently Inflicted Nervous Shock’, Law Quarterly Review, 1983 Weller, M, ‘Post-traumatic stress disorder,’ New law Journal, 1993 Wheat, K., ‘Nervous Shock: Proposals for Reform,’ Journal of Personal Injury Litigation, 1994 Read More