The Irish Tort Law - Essay Example

Topic: Irish tort law Introduction: This paper seeks to analyze the status of the Irish tort law on the basis of the comment that “limitations on liability [ for nervous shock] which involve the drawing of gruesome distinctions, do the law no credit.” (Cane, P.,1993, p.74) To afford attain the same there is a need to answer know what are these limitations that have been imposed on liability for nervous shock. After knowing the limitations the same will be evaluated on the basis of the comment stated earlier. In making the evaluation, we will conclude whether there is basis to make a proposal with corresponding reason, if any. 2.0 Analysis 2.1.1 Define nervous shock Before we go to the analysis proper there is a need to define what is ‘nervous shock’? Cane, P. (1993) defines the term saying: “This term is often now objected to as having no obvious meaning, and terms such as ‘mental injury’ or ‘psychiatric damage’ are often put in its place. But such terms do not capture the full range of situations covered by the older term, and so we have decided to retain it. Nervous shock is injury caused by the impact on the mind, through the senses, of external events.” He explained the term as follows: This term is often now objected to as having no obvious meaning, and terms such as ‘mental injury’ or ‘psychiatric damage’ are often put in its place. But such terms do not capture the full range of situations covered by the older term, and so we have decided to retain it. Nervous shock is injury caused by the impact on the mind, through the senses, of external events. Injury caused by the impact on the mind of external events, which is recognized by law, is of three types physical injury — a pregnant woman may suffer a miscarriage or a person may suffer a heart attack or a stroke; psychological injury such as hysteria, neurosis, depression or any other recognized psychiatric illness; and psychosomatic effects of psychiatric illnesses, such as paralysis. 2.1.2. What is the legal rule in the compensatability of the regarding nervous shock? Cane (1993) answered the above question by saying: It must be stressed at the outset that no difficulty arises about awarding damages to a person who suffers nervous shock or even mental distress short of nervous shock, where this follows from the infliction of physical injuries on the sufferer. As well as damages for recognized psychiatric conditions, a person who is, for example, run over in a road accident may recover damages for mental distress such as pain and suffering, awareness of a shortened expectation of life, discomfort and inconvenience arising from confinement to bed or hospital or wheelchair. The extent to which such damages may be awarded where physical injury has also been suffered has never been treated as raising a problem involving the duty of care, but merely as involving a problem in the assessment of damages…”. Now we can start the analysis with the following question. 2.2.1 What limitations have been imposed on liability for nervous shock by case law and how justified is the above comment? As there is no issue in nervous shock arising from or related to physical injury, the limitations imposed on liability for nervous shock alone as taken from the book of Cane, P. (1993) can be summarized as follows: 1. Only those nervous shock caused by physical injury to the person suffering or damage to that person’s property may be compensatable. 2. Compensation is available only to those persons who have close ties of love and affection to the injured or the deceased. 3. Compensation is available in the form of damages for bereavement in case of death. The Cane, P. (1993) essentially cited difficulty in proving nervous shock and the floodgate argument as the reasons of the courts in sustaining the above restrictions or limitations. He explained the courts reasons as follows: Several arguments have traditionally been put forward to justify this reluctance. One is that mental injury which has no physical symptoms, or only psychosomatic symptoms, is relatively difficult to prove. The law attempts to deal with this problem by providing that mental injury not accompanied by physical injury to its sufferer is only compensatable if it amounts to some ‘recognizable psychiatric illnesses. (Emphasis supplied) Thus, expert medical evidence will normally be necessary to establish that the plaintiff has suffered nervous shock in this sense. Mere grief, anguish, fear, unhappiness, humiliation, outrage and so on, however distressing they may be, are (with one exception) only compensatable if they are the result of physical injury to the person suffering any of these feelings or perhaps, of damage to that person’s property. Comment: The court may have reason do so because law is not just case of arguments. It also talks of facts which must be supported with evidence, hence the rules of evidence in court proceedings. Damages need to proven by evidence, hence mental illness alone with out the physical injury requires may not have been the result of defendant’ s negligence. Cane (1993) further said: It may be that in practice, much more will turn, in settled cases on the effect of the symptoms on the plaintiff’s lifestyle (e.g. is he or she confined to bed, unable to work, and so on), rather than on whether the symptoms amount to a recognized psychiatric illness, especially in cases where the claim is accompanied by claims for physical injury by other members of the plaintiff’s family. Comment: The court has good reasons in these arguments. The explanation again is plausible since litigants go to court in order to enforce a right that is winnable and therefore backed with concrete evidence, otherwise, one would just wasting money. The general rule in practice is that what is easier to prove the better. In explaining the second reason for the limitation, Cane, P. (1993) said: Another reason for the restrictive approach to mental distress is the so-called ‘floodgates argument’: if recovery for mental distress were allowed simply on the basis that it was foreseeable, there might well be a flood of claims which would clog up the court system and divert too many of society’s resources into compensating the victims of nervous shock at the expense of the many who presently receive little or no compensation even for physical a result of negligent conduct. The force of the floodgates argument is disputed by judges and commentators. Comment: The ‘floodgate argument’ in not only about foreseeability but also the court’s solemn role to interpret the provision of the tort law, in which one of the requisites for liability is the presence of direct relation of the defendant’s negligent act and the damage done. This is closely related to the need for proof to establish the basis of the claim between the physical injury and the mental injury. Hence removing this requirement could encourage many cases in court which are hard to prove and thereby result to clogged cases, which are of course being avoided by the court. In other words, why allow a case in court if it cannot withstand the test of evidence? 2.2.2 How justified is the comment: "Limitations on liability [ for nervous shock] which involve the drawing of gruesome distinctions, do the law no credit." What prompted the author to make said statement arose of courts’ distinction that is being made between a nervous shock that is caused by a physical injury and those that are not related to physical injury. The author deemed as gruesome the distinctions made by the court in limiting the liability for nervous shock for those caused or related with a physical injury. He deemed the court distinctions as arbitrary and uncertain. He therefore tried to establish inconsistencies in court decisions saying: This principle has not, anyway, been consistently followed. For example, in one case a volunteer who helped victims of a tube crash at the scene of the accident, recovered damages for nervous distress suffered as a result.41 In another case, a crane driver recovered damages for shock suffered as a result of fear for the safety of his fellow workers when the load fell off his crane.42 A firm line has always been drawn between those who suffer shock merely as a result of being told of events which may cause them distress and those who actually witness the event or its aftermath; the former have not been allowed to recover. Even leaving aside the question of whether this distinction has any scientific basis, the advent of simultaneous broadcasting of sporting and other events has put severe strain on the law. In the Hillsborough stadium case, some of the plaintiffs claimed damages for shock suffered as a result of seeing terrible events on television. The House of Lords held that the television pictures in this case were not sufficiently equivalent to being in the stadium itself to warrant recovery, although the judges did not rule that a media broadcast might be detailed and graphic enough to give rise to a claim. This, too is an intolerably arbitrary and uncertain distinction. Comment: The author fails to appreciate the deeper reason for the distinction. The court explained through Lord Wilberforce in discussing AC & Anor v Cabin Hill School & Ors[2005] NIQB 45 (6 May 2005), said: "Finally, and by way of reinforcement of "aftermath" cases, I would accept, by analogy with "rescue" situations, that a person of whom it could be said that one could expect nothing else than that he or she would come immediately to the scene - normally a parent or a spouse - could be regarded as being within the scope of foresight and duty. Where there is not immediate presence, account must be taken of the possibility of alterations in the circumstances, for which the defendant should not be responsible.    Subject only to these qualifications, I think that a strict test of proximity by sight or hearing should be applied by the courts. The argument in cases cited by the author involving a volunteer and a crane driver, although they are not relative of the victims, is buttressed by Lord Wilberforce in the above decision, that a person for whom responsibility for damages is possible could be a. person with in the scope of foresight and duty- which means not necessarily a parent or spouse could come to the rescue. The court decision to consider a volunteer and a crane driver is therefore not inconsistent as justify Cane’s statement that distinctions are gruesome. To convince his readers the Cane, P. (1993) attributed possible views on the status of the courts distinction when he said: Two views are possible of the status of these restrictions on the liability. One is that they are legal limits imposed, independently of and additionally to the requirement of foreseeability , to meet the floodgates arguments and as recognition of the relative unimportance of compensating for mental distress as opposed to physical injury. Comment: The author is zeroing in by supposing that the court is really reluctant to liberalize the restriction on liability because of floodgates argument without again understanding the deeper reason for it, which is of course the need for foreseeability because of the nature of tort as a source of liability. To restate the principle, a tort requires negligence and negligence presupposes foreseeability. Hence if there is no foreseeability there is no tort and then there is nothing to talk about the floodgate argument. In other words, the floodgate argument is made as public policy because of the nature of tort itself as a source of liability. Cane, P. (1993) further forwarded: It is clear that in some cases the two approaches may produce different results. For example, it may he foreseeable that a person might suffer shock if told in sufficient detail of horrific injuries to a loved one; but if there is a rule of law that merely being told of an accident does not generate liability, then the fact that the shock was foreseeable in the particular case would be irrelevant. Comment: The author fails to appreciate the relationship of foreseeability and the fact of merely being told of an accident. The rule of non recovery of compensation on merely being told is premised on the lack of foreseeability of the defendant’s negligent act. The purpose of the law is to connect the direct effect of negligence on the resulting damage via foreseeability and not to contradict itself. The author confuses the elements of a tort in forming his arguments. He further proceeded: The most important question is whether we wish to allow psychiatrically induced loss given the many other calls on the society’s and given that only a tiny proportion of all accident victims receive any tort compensation at all. Once we have answered this question affirmatively, there seems little reason not to allow recovery for any recognized psychiatric illness and for any physical and psychosomatic consequences, provided only that the illness was not in the circumstances , so unlikely an eventuality as to be called unforeseeable. Comment: The author has faulty premise. The tiny proportion of all accident victims receiving any tort compensation does not have something to do with the award of damages for purely psychosomatic or mental illness. He has not shown any empirical evidence to support his conclusion and fails to appreciate the role of courts in deciding on the basis of evidence and not purely on arguments. 2.2.3 What proposals have been made with regard to law reform in this area and what reforms, if any, would you suggest? Base on the analysis of the author’s arguments and the recent decisions of the court on nervous shock which are now called psychiatric illness, I have nothing to amend about the Irish law on tort. The court has not intimated in its most recent decisions that the present status of law is unfair. It just said, it is developing. In a recent case of AC & Anor v Cabin Hill School & Ors [2005], the court said that recovery of compensation for psychiatric injury has been a developing area of law throughout the last century. On this premise, the only thing that I would like to propose is for psychiatric profession to draw the clear line what psychiatric illness is or not. For the courts will depend upon them a lot for the award of damages. The concept of nervous shock must give to the development of science and technology hence, hence the requirement for psychiatry in tort cases. As to claim of the author that the award of damages for bereavement was objectionable saying that it does not seem right that when nothing is awarded in such a case, damages should nevertheless awarded for the death of the child. I believe that award of the damage for bereavement was not meant to prevent filing of claim under the tort. It was not meant also to disregard the suffering of the relative of the victims hence they could still file a claim but subject to requirements of proof. Because of this, I also decline to recommend any changes and in the absence of evidence to do so. 3. 1 Conclusion: The law must be stand as is. Distinctions are made by the court because it has reasons in doing so. The principle in tort is the there should be negligence and damage and that there must be a direct relation between the cause and effect between the act or omission and the damage. The effect could be appreciated in the foreseeability of the result of the act. If every nervous shock will be compensated then many people would come to court alleging of mental injury. Individual’s susceptibility to mental injury or nervous shock varies and without the related physical injury it is difficult to prove the same. In addition, there is also this floodgate argument which is still a present public policy as a reason of upholding the present state of Irish tort law. As can observed in court decisions, it is not that the court is strict in giving awards for nervous shock it is just that defendant has no legal duty for alleged tort committed because of lack of foreseeability. 3.2 Recommendation Based on analysis made there is no basis to sustain the argument of the author since he fails to take into consideration the deeper explanation of the court in the mentioned case Hence, I recommend that the Irish Tort law should stay as it is. Bibliography: 1. Cane, P. (1993) Atiyahs Accidents, Compensation and the Law. 5th ed. at p.74.) 2. AC & Anor v Cabin Hill School & Ors[2005] NIQB 45 (6 May 2005) Read More