Legal Side of Psychiatric Harm and Physical Harm - Research Paper Example

 Tort Law In what ways do courts approach psychiatric harm differently from physical harm? Are these differences of approach (if any) justifiable? Introduction: At the very outset, it is necessary to distinguish between psychiatric and physical harm. It could be said that psychiatric harm or injury could be some kind of mental injury caused by events that are seen, or heard by the victim. The sight of dead or injured persons, or hearing sounds during an accident, or mishap, could be a precipitating cause for psychiatric injury, for which a claim for damages may arise. The main aspect regarding psychiatric harm or injury is that it needs to be foreseeable, or predetermined by the person who was so injured, and also in terms of the element of negligence that accompanies such physical acts, or mishaps, that could give rise to such mental conditions. It could be seen in terms of shock, mental anguish and pain, or the after-effects of loss of kith or kin. Thus, mental anguish and depravation could be said to be a leading cause of psychiatric injury, which may or may not be caused by physical injuries. Thus, in the event psychiatric injury compensation is demanded by the applicant, the aspect of negligence, or intent on the part of the defendant needs to be proved beyond reasonable doubt, and also the fact that psychiatric injury has been the direct and immediate result of the action or inactions on the part of the defendant. The aspect of immediate cause is necessary, because where injury is caused by indirect causes; it is quite possible that the claim may not be sustainable, or tenable in a Court of competent jurisdiction. Thus, the very element of psychiatric injury lies in the fact that it is a kind of injury to the mind, or psyche, brought about by the actions of the defendant. Physical harm or injury: It could reasonably be maintained that physical injury could be said to be injury caused to the person, or body of the defendant, which may, or may not harm his psyche. Legal aspects of the nexus between mind and body: The main aspect that needs to be considered in this essay is the interrelationship between body and mind. It is well documented that there is a strong nexus between body and mind, and therefore, what affects the mind may also affect the body, and vice versa. Why is there need for proper assessment of physical and psychiatric injury? There is a need for proper identification between physical and mental injury because of the following reasons: 1. The burden of proof on the part of the applicant is much greater in the case of mental injuries than physical injuries. This is because extent of damages in the event of mental illness is much more difficult to predict and assess, since there are elements of unpredictability and doubts regarding the rationale of behaviour of injured psyches, or minds. It is also more difficult to prove materially the impacts of psychic injury. 2. The second aspect is that Courts also need to be fully convinced that the injury belongs to one category, or the other, or is a combination of both physical and psychic elements. A person who has been a victim in a road accident may have physical injuries, and simultaneously suffer psychic illness caused by shock and trauma arising directly. In such cases the Court needs to take view of both the psychic and physical elements of the case and provide judgement accordingly. 3. The Courts need to strike an equitable balance between perceived injuries and the actual injuries, its material repercussions on the earning capacity of the victims, the period during which the incapacity would continue and also other material aspects that are relevant in determining the extent and quantum of damages that are recoverable by the plaintiff and its terms and conditions. Non-pecuniary damages or losses: The main aspects that need to be seen in the context of psychic and physical injury could be in terms of the element of non-pecuniary damages or losses, or in other words, losses that cannot be determined with any degree of certainty, and hence recompensed. Examples of non-pecuniary damages or losses would death, permanent mental disorder, insanity or such other condition, the extent of whose impact or repercussions cannot be economically determined. It is seen that in the English context, the sum as compensation for tort is paid only once, and that too, as a bulk amount to the beneficiary or the applicant; the English laws do not stipulate periodic payments, unless the contract entered by the parties specifies otherwise. 1 It is seen that the differentiation between physical and psychic injury is more contextual and would depend upon the circumstances surrounding each case. It would also be pertinent to mention in this context that English Courts are circumspect while dealing with mental injuries, or claims arising from mental conditions like mental shock, mental fatigue and anguish, depression, etc., even though it may be an adjunct of physical injury, Morris v. KLM (2001) 3 WLR 351: In the case of Morris v. KLM( 2001) 3 WLR 351, the case arose with regard to probing of a 16 year old at the hands of a co-passenger. She claimed damages for mental injury (clinical depression) arising out of the injury, and not for physical assault. But the Court of Appeal considered that this was outside the ambit of Section 17 of the Warsaw Convention since the relevant provision dealt with physical and not mental injuries 2 King v. Bristow Helicopters (2002): Next, coming to another case, the courts upheld physical diseases (peptic ulcer) arising out of post traumatic stress disorder (PTSD). In King v. Bristol Helicopters (2002), the Court held that the trauma and physical stress undergone by King aggravated his systems and allowed him to place a claim for physical injury arising out of stress 3 Donoghue v. Stevenson case (1932): The Donoghue v. Stevenson case (1932) All ER Rep 1; (1932) AC 562 (House of Lords) is a brilliant example of mental stress caused by consumption of toxic substance (snail in ginger beer bottle). In this case, Lord Atkins stressed on the need to take all precautionary measures to ensure that the highest degree of cleanliness and hygiene in food items are maintained. He also said that it is the bounded duty to exercise care and enforce duty of care to avoid negligence when dealing with neighbours or with people on whom a degree of care and prudence is necessary 4 In this case, the main aspect that was raised was whether the manufacturer of the drink had exercised due care and judgement, keeping in view the foreseeability test, that is, there would be people who would be consuming his soft drinks, and his absence of care could trigger adverse mental health conditions in the minds of consumers. Donoghue v. Stevenson case (1932) is a classic example of how psychiatric injury (mental shock) could occur, due to physical happenings (consumption of toxic ginger beer). Although there were no laws in force at that time regarding recompense for mental injury, this landmark case, perhaps for the first time, stressed the importance of business houses to conform to quality and hygiene standards to avoid mental injury liability. Over the years, it has been seen that the impact of psychic injury has been contested by many UK Courts. Taking the example of Victorian Railway Commissioners v. Coultas (1888) 13 App CAS 222, it is seen that in this case, the plaintiff had a very ‘near’ train accident, but suffered no physical injuries whatsoever. At that time, the Courts believed that mental anguish or shock does not justify recompense, and the petition for compensation for mental injuries was turned down by the Courts 5 Dulieu v. White & Sons (1901) 2KB 669: However, another case turned up during 1901, Dulieu v. White & Sons (1901) 2KB 669, in which a pregnant bar-maid was so distraught at the sight of horse carriage crashing into the pub that she suffered mental shock and had a premature delivery. Her claim was upheld on the ground that her fear for individual protection was the paramount cause for her anguished condition and stress levels, leading to premature delivery of her baby 6 McLoughlin v. O’Brien (1983): However, the aspects regarding mental injury is best discussed in McLoughlin v. O’Brien (1983) 1 AC 410. In this case, the plaintiff was neither a victim, nor a witness of the death of her daughter and grievous injuries to other members of her family. But the distraught and mental anguish wrought by the accident and her shock upon hearing about it was enough ground for making a claim for compensation. In this case, however, the Courts held the foreseeability test and ruled that normal reactions to grief on the loss of near ones do not give rise to damages 7 Some of the elements, besides the aspect of foreseeability, in dealing with psychic and physical injuries, could be seen in terms of the degree of proximity and closeness between the parties and also whether the symptoms produced, during the aftermath of the accident, in physical and psychological terms, has close bearing with the case as such. In the case of a 20th Century case of Bourhill v. Young (1943) AC 92, the applicant heard some sounds and subsequently was in sight of blood in the street. However, she was not a party to the accident, nor witnessed it, nor had any connections with the injured persons. Thus her claim for mental illness arising out of being in the vicinity of the accident site was rejected 8 However, in the case of McLoughlin v. O’Brien (1983), the HOL ultimately established the foreseeability clause in the accident case and upheld the lady’s appeal for damages caused by mental anguish and sorrow caused by the death of one child, and injuries to other members of her family. Adcock v. Chief Constable of the South Yorkshire Police (1991) 4 All ER 907(HL): The Adcock principle, which bedrocks several legal principles relating to extent of psychic injuries and their recompense is being discussed next. This has again be reinforced in the case of Adcock v. Chief Constable of the South Yorkshire Police (1991) 4 All ER 907(HL), which concerned the tragedy in terms of loss of lives and injuries during the stampede at Hillsborough Stadium on April 15, 1989, during a football match between Liverpool and Nottingham in which 95 people were killed and more than 400 injured. 9 Since the deliberation at the match were beamed live on television, many viewers from several parts of the country where also mute witnesses to this tragedy. The mental shock and trauma suffered by people who lost their near and dear ones in this tragedy, interalia, sued the Chief Constable of the South Yorkshire Police and recovered damages, although they may not have been physically present, nor injured personally. The Adcock principle has since been applied to several cases of shock and mental trauma suffered indirectly by people. Greatorex v.Greatorex (2000) 4 ALL ER 769 (QBD): However, the scope of the Adcock principle could not be used in Greatorex v.Greatorex (2000) 4 ALL ER 769 (QBD), wherein a person who sues another for psychiatric injury to the former because of injuries deliberately self sustained by the latter. In the case, wherein a person causes automobile injuries onto himself, and his father, happening to be witness to this self injury, sues his son, the Courts held that this was untenable simply because “a person is under no legal duty, whatever the moral position may be, to look after his own life, and limb, simply in order to save his dependants from the likely psychical effects, on them if he is killed or maimed.” 10 McFarlane v. EE.Caledonia Ltd (1994) 2 All ER 1: In the case of McFarlane v. EE.Caledonia Ltd (1994) 2 All ER 1, it is seen that an oil rigger worker claimed recompense for psychiatric injuries sustained after witnessing a major fire in an oil rig that killed 164 people. 11His claim was bed rocked on the ground that he was an active viewer to the accident and that he was concerned about his own health and safety which cause mental trauma. “Held, that the claimant was entitled to damages because he was more than a mere bystander to the event.” 12 At one time, Courts were reluctant to accept mental shock as a cause for damages, or compensation, whether the cause, or result of physical injury, and tested for aspects like causation, foreseeablity, relationship or otherwise between the applicant and the defendant, mens rea and actus rea of actual situation which gave rise to such claims. However, now it could be seen that the legal position regarding physical and mental injuries and their reparation in money terms has made quantum leaps, and the later judges believed that mental injuries are as significant as physical ones, if not more important. It is also being argued that injuries to the central nervous system, brain and spinal injuries are as much psychic injuries as physical ones, having regard to imminent damages to the mental personality and thinking that such injuries could cause. Stress could trigger larger doses of cortisol: It is believed in recent times that stress factors could result in excess production of stress chemical, cortisol, which could have long term detrimental effect on brain functions 13 These physical symptoms of stress and anxiety associated with physical injuries, or damages could overload brain receptors whose efficiency may be impaired due to repeated stress conditions. Are these differences in approaches justifiable? As has been mentioned earlier, to a very large extent, the settings and circumstances of the case, the conduct of the litigating parties, the perspective of the Judges and the jury and the legal dexterity of the attorneys are major concerns for the justifiability, or otherwise of the case. Justice, fair play and good conscience: The law is fundamentally committed to the upkeep of justice, fair play and good conscience in the conduct of individual case and delivery of the final judgement. The judgment needs to be commensurate with the extent of complicity of the case and seek to indemnify, by redress, the injuries suffered by plaintiff and offer suitable punishment to the culprit, wherever possible. The benefit accruing to the applicant has to be with regard to the extent of monetary losses suffered, and in the event such losses cannot be quantified, like non-pecuniary losses, loss of goodwill, death or permanent mental or physical impairment, it has to be with regard to total or partial loss of future earning and living capacity, etc. In the modern context, most Courts do not distinguish between physical or mental capacities, or losses, nor treat one at lower level of significance than the other. Thus, in the modern context, the question of ‘only psychic’ does not arise, and would be replaced by ‘also psychic’ which conveys the fact that mental risks are considered at par with physical ones, in the eyes of jurisprudence. The most important aspect is that of causation, or what caused the injury, whether it was belonging to physical or mental plane, what was the conduct of parties in reducing the impact of losses to self and others, and whether there is enough evidence to maintain that either the physical impacted upon the psyche or vice versa. The important aspects that the courts need to bear are that while most injuries, whether physical or psychical, have their own characteristics, the impact and its repercussions, monetary or otherwise, on the individuals, the parties involved, and the community or social order to which it belongs, are all major determinants to consider in the context of injury. It is necessary that the party must be involved emotionally, or otherwise, in what transpired and the injury must have directly been the cause of such conduct. It is also necessary that linkage should be established between the action of the event and the final outcome in terms of material losses. It is necessary to consider the two situations to gain a better idea about physical and mental injuries and their impact on others. Case Study 1: Mrs. X, a pregnant lady was crossing the road when she witnessed an accident on site. The lorry crashed into a private vehicle, killing two of the inmates instantaneously. As a result of being a direct witness to the incident, she suffered an abortion, developed hallucinations and shock in its aftermath, and needed to be hospitalised for acute trauma for two weeks. She is now physically progressing well but is still under state of mental shock. She has lodged a case for mental and physical injuries arising directly out of witnessing the accident. Case Study 2: Mrs. X arrives, hours after an accident took place in her neighbourhood. She sees broken glass pieces and some blood stains on the pavement. She suffers shock on seeing some blood, etc. However, these kinds of episodes are the ones she sees in channels and print media. Nevertheless, she files a complaint with local authority for damages for suffering shock. It needs to be seen that in both the above case studies, mental shock and trauma resulted, but the differences were in terms of direct involvement, loss of the baby in the first instance and major shock requiring hospitalization. Definitely, the first case study warrants more quantum of damages than the second. In the second case, the applicant may not be able to substantiate her claims in a competent Court of legal justice. Conclusion: As has been mentioned, there are no readymade templates on which acceptance and recompense for tort could be established. To a very large extent, it would depend upon the complicity of the case, the conduct of the parties and the best judgement available to the Court and the jury. However, the court may seek the assistance of previously decided similar cases, which may help them to arrive at a suitable verdict. This assumes significance in the present context in which tort laws may be invoked for even minor, insignificant occurrences. Bibliography Donoghue v. Stevenson. http://www.safetyphoto.co.uk/subsite/case%20abcd/donoghue_v_Stevenson.htm (accessed August 25, 2009). Judgements- King (AP) (respondent) v Bristow helicopters ltd. (appellants) (Scotland) in Re M (a child by her litigation friend CM) (FC) (appellant). 2002.Parliament.UK. http://www.publications.parliament.uk/pa/ld200102/ldjudgmt/jd020228/king-1.htm(accessed August 25, 2009). King v. Bristow. 2002. http://www.onlinedmc.co.uk/king_v__bristow.htm (accessed August 25, 2009). Liability in psychiatric loss claims. http://74.125.153.132/search?q=cache:TdCr635F5b0J:www.piba.org.uk/assets/docs/psychiatric%2520injury.doc+McLoughlin+v.+O%E2%80%99Brien+(1983)+1+AC+410.&cd=1&hl=en&ct=clnk&gl=in (accessed August 25, 2009). Markesinis, BS. Compensation for personal injury in English, German and Italian law: a comparative outline. 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