Psychiatric Injuries: Duty Owed?
The law of negligence deals with relationships, harm, suffering and losses and within the confines of many statutes, the common law and equity, must make determinations on such emotions and outcomes.
Whilst the source of many claims under the tort of negligence come about because of harm, this is not the primary concern of the field ? it is a fine balancing act between the harm suffered and the rights possessed so as to claim for such sequential suffering.
Whilst It is believed, a far reaching duty of care is owed to all
, this is in fact not always the case and there exist areas of the law of negligence which are severely restricted- notably the law of psychiatric injury for secondary victims.
Within this essay an examination of the law of psychiatric injury, and examine the reasoning for why a duty of care is not always owed.
A brief analysis of the development of the area will be given before examining the current state of the law and show how case precedents have created truly restrictive constraints for many victims on the back of policy and the courts misguided appreciation of psychiatric harm.
PSYCHIATRIC INJURY: SLOW TO DEVELOP
Psychiatric harm is a form of personal injury which falls under the confines of the law of negligence liability. Historically, the courts? view of psychiatric injury was distinct from that of physical harm,
resulting in its slow development within the confines of the wider jurisprudence.
In the early developmental periods of modern day negligence in the 1930?s
, there was still a general lack of understanding relating to how the mind worked and further ignorance of how comparable psychical and psychological disorders can be, notably in their impact on an individual?s wellbeing.
Given the limited knowledge of psychiatric injury, there existed real fear within the courts that any broad recognition of psychiatric harm
would result in many fraudulent claims, as individuals sought to take advantage of the courts lack of understanding.
Further to this was the ?floodgates?
argument, which is noted in Alcock
. It was feared that permitting a far-reaching duty of care would open the flood gates to an array of compensation claims resulting in a burdensome impact on the legal system.
In addition, it was argued that financial incentives could curtail a victim?s motivation to seek rehabilitation
and recognising a duty of care should not encourage greed and dishonesty
. A final argument elucidated was the potential unfairness to the defendant of imposing damages out of all proportion to the negligent conduct, a far-reaching injury would potentially dilute the notion of proximity and foreseeability
and would have across-the-board consequences in relation to additional burdens to insurers and insurance policy holders.
All the above policy considerations have been, and to a certain degree today, still contribute to the routine...