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Mental Injury Occasioned by Harm to Another: a Feminist Critique

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Mental Injury Occasioned by Harm to Another: a Feminist Critique Minnesota Journal of Law & Inequality Volume 14 Issue 2 Article 2 December 1996 Mental Injury Occasioned by Harm to Another: A Feminist Critique Elizabeth Handsley Follow this and additional works at: https://lawandinequality.org/ Recommended Citation Elizabeth Handsley, Mental Injury Occasioned by Harm to Another: A Feminist Critique, 14(2) LAW & INEQ. 391 (1996). Available at: https://scholarship.law.umn.edu/lawineq/vol14/iss2/2 Minnesota Journal of Law & Inequality is published by the University of Minnesota Libraries Publishing. Mental Injury Occasioned by Harm to Another: A Feminist Critique Elizabeth Handsley* Introduction ............................................... 392 I. The Historical Development of the Law of Mental Injury ................................................ 396 A. Damage Not Recognized .......................... 398 B. The Impact Rule ................................. 399 C. The Zone of Danger Rule ......................... 400 D. A General Duty of Care in Respect of Mental Injury? ........................................... 405 E. Lingering Limitations ........ ............... 416 1. The Type and Extent of Injury ................ 416 2. Geographical and Temporal Limitations ....... 418 3. The Aftermath/Percipient Witness Rule ....... 419 4. Post-accident Care ............................ 421 5. Liability to the Third Person .................. 421 6. The Plaintiff's "Irrational Guilt Feelings" ...... 422 II. The Policy (Non-) Justifications for the Rules .......... 424 A. Triviality ........................................ 425 B . Fraud ............................................ 427 C. Disproportionality ................................ 431 D. Floodgates ....................................... 436 * B.A., LL.B. (U.N.S.W.), LL.M. (Northwestern), Lecturer in Law, Murdoch University, Perth, Western Australia. I owe a debt of gratitude to the providers of the Carl McGowan Fellowship at Northwestern University School of Law, for their generosity enabled me to complete this work in far more comfortable circumstances than I would otherwise have been able to provide for myself. I am also indebted to Professor Cynthia Grant Bowman and Professor Marshall S. Shapo of Northwestern University School of Law for their guidance when this paper was in its early stages, and to the numerous people who have been in attendance when I have presented oral versions of this paper, for their helpful comments. Thanks also to Ann Hale and to Paula Langley for helping me to put the finishing touches on the article. The editors and I have decided to retain the Anglo-Australian spelling of words that are spelled differently in the United States. We have taken the view that because the power of U.S. culture is threatening the distinctiveness of Australian culture, we are justified in preferring my own "native" tongue. Changes have been made, however, where a difference in usage would make the article unintelligible to a U.S. reader. Law and Inequality [Vol. 14:391 III. The Inconsistency of the Rules with General Tort D octrine .............................................. 440 A. Duty and Foreseeability .......................... 440 1. The Zone of Danger Rule ...................... 442 2. The Dillon Approach .......................... 443 3. The Australian Proximity Approach ........... 445 B. Remoteness, Proximate Cause and the Eggshell Skull Rule ....................................... 447 IV. Feminist Explanations for Judicial Discomfort with Mental Injury ........................................ 458 A. Patriarchal Epistemology and the Mind-Body Split 459 B. Abstract Individualism ........................... 466 C. Implicit Male Norms ............................. 472 1. Triviality and Economics ...................... 473 2. Reasonable Foresight ......................... 477 3. Heroism and Rescue .......................... 480 D. Double Standards ................................ 485 Conclusion ................................................. 486 Introduction This article was inspired by the challenge laid down by Leslie Bender in her 1988 article, A Lawyer's Primer on Feminist Theory and Tort,1 to consider the many ways in which the power histori- cally wielded by men has shaped our legal system, specifically in its treatment of tortiously-inflicted harm.2 Benders work applied fem- inist theory to the law of torts and found that the beliefs or atti- tudes on which the law is based, and which appear to be value-free and gender neutral, are in fact deeply biased and represent only one point of view. In particular, the law contains implicit male norms, which place the male and the masculine at the centre of law's world view and marginalize the female and the feminine. Thus the law generally expects and rewards "reasonableness"-a trait culturally associated with men-and fails to require us to be consciously caring and responsible towards each other-traits cul- turally associated with women.3 Bender's most impressive point, in 1. Leslie Bender, A Lawyer's Primer on Feminist Theory and Tort, 38 J. LEGAL EDUC. 3, 37 (1988). 2. For a compendious summary of work in the area of feminist theory and tort, see Leslie Bender, An Overview of Feminist Torts Scholarship, 78 CoRNLL L. REv. 575 (1993). One writer's work in particular is very closely related to mine, and her article could almost be considered a companion piece to this. See Deborah K Hepler, Providing Creative Remedies to Bystander Emotional Distress Victims: A Feminist Perspective, 14 N. ILL. U. L. Rrv. 71 (1994). 3. See infra parts IV.A-B. 1996] A FEMINIST CRITIQUE my view, relates to the general rule that one cannot sue a "stran- ger" for failure to come to one's rescue. 4 Applying an ethic of care and responsibility, rather than reasonableness, Bender argues that the interest of the "stranger" in autonomy is less important than the interest of the would-be plaintiff in life and health. Bender makes the further telling point that the would-be plaintiff is bound to have relationships with other people, who indirectly will be harmed by that person's injury or death. Thus we might expect that a system of tort law which had been developed by women and with traditionally feminine concerns in mind would impose a duty to rescue, not just for the benefit of the would-be plaintiff, but for the benefit of the whole community. This article develops some of these ideas in relation to another area of tort law,5 namely that which deals with mental injury- otherwise commonly known as "nervous shock" or "emotional dis- tress." 6 The particular focus of this article is psychic, emotional, or psychiatric disability (sometimes with physical consequences) suf- fered as a result of the death of, or of a physical injury to, another person. In the vast majority of cases, some sort of strong emotional tie, either of blood or marriage, binds the plaintiff and the physi- cally injured person. 7 An especially common scenario is mental in- jury arising out of the death of, or serious injury to, a son or daughter. It is for this reason that it will be argued that these inju- ries should be treated as the consequence of the disruption of rela- tionships-something which the law has, by and large, failed to do. Rather, the law appears to have assumed that people's connections with others are unimportant, and it has developed and applied re- 4. See Bender, supra note 1, at 33-36 (discussing "no duty" cases). 5. A very useful complement to my analysis is provided in Hepler, supra note 2, at 78-87. 6. The former expression is current in Britain and Australia, the latter in the United States. It is interesting to note the different connotations raised by the two terms: "nervous shock" sounds more serious and permanent than "emotional dis- tress." This is perhaps a very good lesson in the importance of naming and terminol- ogy, considering that recovery is generally much more limited in the jurisdiction that employs the less serious-sounding term. At the same time, "nervous shock" raises connotations of neurosis, thus presenting plaintiffs in an unsympathetic light from the very start. It is also a medical misnomer, and the terminology "has led to break- down in communication between Medicine and the Law on the subject." John Havard, Reasonable Foresightof Nervous Shock, 19 MOD. L. REv. 478, 478 (1956). I prefer "mental injury" because it reflects the fact that this is indeed an injury, and one to be taken seriously. 7. 1 will resist calling this person the "primary accident victim," as courts and commentators are wont to do, because this leads to conceptual difficulties. Of course, the third person is the "primary victim" in the sense that his or her injury will usu- ally precede the mental injury chronologically. However, it is my purpose to argue that this type of injury is best understood as caused by a breach of a duty owed directly to the plaintiff; the popular terminology obscures this. Law and Inequality [Vol. 14:391 strictive recovery rules accordingly. For example, the law has often privileged people who, in a situation of danger, fear only for them- selves, over people whose primary concern is the safety of others.8 This article develops the argument that this response reflects a fun- damentally masculine world view. Obviously, women are not the only people who suffer mental injury as a result of witnessing the death or injury of another per- son, but mental injury appears to affect women more often than men. A brief survey of the cases in this area reveals that the vast majority of plaintiffs
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