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Common and Public Law LIABILITY FOR PSYCHIATRIC ILLNESS A Consultation Paper LAW COMMISSION CONSULTATION PAPER No 137 The Law Commission was set up by section 1 of the Law Commissions Act 196 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Brooke, Chairman Professor Andrew Burrows Miss Diana Faber Mr Charles Harpum Mr Stephen Silber QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WClN 2BQ. This consultation paper, completed on 28 February 1995, is circulated for comment and criticism only. It does not represent the final views of the Law Commission. The Law Commission would be grateful for comments on this Consultation Paper before 1 August 1995. All correspondence should be addressed to: Mr D R Symes Law Commission Conquest House 37-38 John Street Theobalds Road London WClN 2BQ (Tel: 0171-453 1213) (Fax: 0 171-453 1297) It may be helpful for the Law Commission, either in discussion with others concerned or in any subsequent recommendations, to be able to refer to and attribute comments submitted in response to this consultation paper. Any request to treat all, or part, of a response in confidence will, of course, be respected, but if no such request is made the Law Commission will assume that the response is not intended to be confidential. The Law Commission Consultation Paper No 137 COMMON AND PUBLIC LAW LIABILITY FOR PSYCHIATRIC ILLNESS A CONSULTATION PAPER HMSO 0 Crown copyright 1995 Applications for reproduction should be made to HMSO Copyright Unit ISBN 0 11 730222 8 Printed in the United Kingdom for HMSO D6297932 3/95 Cl8 G559 10170 THE LAW COMMISSION LIABILITY FOR PSYCHIATRIC ILLNESS CONTENTS Paragraph Page PART I: INTRODUCTION 1.1-1.11 1 PART 11: THE PRESENT LAW 2.1-2.55 8 INTRODUCTION 2.1 8 PRINCIPLES OF LIABILITY 2.2-2.5 1 8 (1) The plaintiff must suffer a recognised psychiatric illness that, at least where the plaintiff is a secondary victim, must be shock-induced. 2.4-2.8 10 (2) It must have been reasonably foreseeable that the plaintiff might suffer a psychiatric illness as a result of the defendant’s negligence. 2.9-2.1 1 13 (3) The plaintiff can recover if the foreseeable psychiatric illness arose from a reasonable fear of immediate physical injury to himself or herself. 2.12 15 (4) Where the defendant has negligently injured or imperilled someone other than the plaintiff (but probably excluding the defendant himself or herself) and the plaintiff, as a result, has foreseeably suffered a shock-induced psychiatric illness, the plaintiff can recover if he or she can establish the requisite degree of proximity. 2.13-2.41 16 (a) The class of persons whose claims should be recognised 2.20-2.28 19 Persons with a tie of love and afSection to the primay victim 2.20-2.22 19 Persons with no tie of love and affection to the primay victim 2.23-2.28 20 (i) Bystanders 2.23-2.25 20 (ii) Rescuers 2.26-2.27 21 (iii) Involuntary participants 2.28 23 (b) Closeness of the plaintiff to the accident in time and space 2.29-2.32 23 ... 111 Paragraph Page (c) The means by which the shock is caused (ie the requirement of perception through one’s own unaided senses) 2.33-2.39 26 Third party communication 2.33-2.35 26 Live television broadcast 2.36-2.38 27 Recorded television and radio broadcast 2.39 29 (d) Where the primary victim is the defendant (ie self-inflicted injury) 2.40-2.4 1 29 (5) Where the defendant has negligently damaged or imperilled property belonging to the plaintiff or a third party, and the plaintiff, as a result, has foreseeably suffered a psychiatric illness, it would appear that, in certain circumstances, the plaintiff can recover for that illness but the necessary criteria for recovery are unclear. 2.42-2.44 30 (6) It is unclear whether there can be liability for the negligent communication of news to the plaintiff which has foreseeably caused him or her to suffer psychiatric illness. 2.45-2.48 31 (7) There are miscellaneous instances (ie other than those covered by propositions (3) (5) and (6) above) where a primary victim probably can recover for a psychiatric illness foreseeably caused by the defendant’s negligence. 2.49-2.51 34 PFUNCIPLES OF ASSESSMENT AND LEVELS OF DAMAGES 2.52-2.55 35 PART 111: THE MEDICAL BACKGROUND 3.1-3.16 38 (1) Shock-induced psychiatric illness 3.2-3.4 38 (2) Post-traumatic stress disorder (PTSD) 3.5-3.9 40 (3) Prevalence and statistical probability 3.10-3.15 45 PART IV: POLICY ARGUMENTS FOR LIMITING RECOVERY 4.1-4.13 51 (1) Fear of the “floodgates” opening 4.2-4.6 51 (2) Fraudulent and exaggerated claims 4.7-4.9 54 (3) Conflicting medical opinions 4.10 56 (4) Psychiatric illness is less serious than bodily injury 4.1 1 57 (5) The plaintiff is commonly a secondary victim 4.12-4.13 57 PART V: OPTIONS FOR REFORM 5.1-5.70 59 (1) Should there no longer be liability for negligently inflicted “pure” psychiatric illness? 5.3 59 (2) Should it be a requirement that the psychiatric illness sustained by the plaintiff be by reason of actual or apprehended physical injury to the plaintiff? 5.4-5.6 60 iv Paragraph Page (3) What should be the law where the defendant has negligently injured or imperilled someone other than the plaintiff, and the plaintiff, as a result, has foreseeably suffered a psychiatric illness? 5.7-5.52 62 (;) Should the reasonable foreseeability test be not only a necessay but also a sufficient test for the duty of care? 5.7-5.12 62 (i;) In applying the reasonable foreseeability test, should the plaintay be assumed to be a person of reasonable fortitude? 5.13 65 (ii;) Is any change required in relation to the establishing of a close tie of love and affection between the plaintay and the prima y victim? 5.14-5.20 66 (iv) Should the requirements of closeness in time and space, and of perception through one’s own unaided senses, be abandoned where there is a close tie of love and affection between the plaintaff and the primaly victim? 5.21-5.28 68 (v) Should those who cannot establish a close tie of love and affection to the primay victim be able to recover? If so, in what circumstances? 5.29-5.37 72 (a) Bystanders 5.29-5.30 72 (b) Rescuers 5.31-5.35 73 (c) Involuntary participants 5.36-5.37 75 (v;) Should one abandon the requirement (in seconday victim cases) that the psychiatric illness must have been shock-induced? 5.38-5.40 75 (vi;) Instead ofJ or in addition to, other restrictions, should it be a requirement that the psychiatric illness be of a particular severity? 5.41-5.44 77 (vi;;) Should recovey be barred where the primary victim is the defendant? 5.45-5.5 1 78 (ix) Where the plaintay sufJers psychiatric illness from the communication of true news about a primay victim, when does the communication of the news break the chain of causation between the negligence of the defendant causing the injuy to the prima y victim and the psychiatric illness of the plaintap 5.52 81 (4) What should be the law where the defendant has negligently damaged or imperilled property belonging to the plaintiff or to a third party and the plaintiff, as a result, has foreseeably suffered a psychiatric illness? 5.53-5.56 81 V Paragraph (5) Should there be liability for the negligent communication of news to the plaintiff foreseeably causing him or her to suffer a psychiatric illness? 5.57-5.60 83 (6) Should there be liability where an employer has negligently overburdened its employee with work thereby foreseeably causing him or her to suffer a psychiatric illness? 5.6 1-5.63 85 (7) Is legislation required in relation to negligently inflicted psychiatric illness? 5.64-5.70 86 PART VI: SUMMARY OF RECOMMENDATIONS AND CONSULTATION ISSUES 6.1-6.26 88 APPENDIX: OTHER JURISDICTIONS SCOTLAND 1-4 94 IRELAND 5-6 96 AUSTMLIA 7-2 1 96 (1) Common law 7-14 96 (2) Statutory modification 15-21 101 i NEW ZEALAND 22-27 105 CANADA 28-32 107 THE UNITED STATES 33-43 110 (1) The status of DiZZon 36-40 111 (2) A general foreseeability analysis 41 114 (3) The physical manifestation and severity tests 42-43 115 FRANCE 44-45 117 GERMANY 46-48 118 vi PART I INTRODUCTION 1.1 This is the third consultation paper in our “examination of the principles governing and the effectiveness of the present remedy of damages for monetary and non- monetary loss, with particular regard to personal injury litigation”.’ This paper differs from those so far published under Item 11 of our Fifth Programme of Law Reform in focusing on liability rather than the assessment of damages2 It became clear during our work on the assessment of damages for non-pecuniary loss3 that there was widespread concern over this area of personal injury litigation, especially following the decision of the House of Lmds in the leading case of Alcock z, Chief Constable of South Yorkshire Police.4 We therefore concluded that a review of damages “with particular regard to personal injury litigation” should address the problem of negligently inflicted psychiatric illness.
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