St John's Essay Prize Second Runner Up: The case for reform of the requirement for a recognised

Introduction and background

Psychiatric injury, or ‘nervous shock’ as it is often referred to by judges, is a term used by the courts to describe mental injury to a person which stems from a shocking or horrifying event.[1] It is well established that when a person claims in tort for physical injury and mental injury stemming from the same event, the mental element will be factored in to the calculation for damages.[2] However, claims for ‘pure’ psychiatric injury (a psychiatric injury claim with no combined physical injury claim) arising from negligence are seen by the courts as ‘more problematic’ for the law than physical injury, and thus treated differently.[3]

Judges have been concerned about opening the ‘floodgates of litigation’ or allowing fraudulent claims and have consequently placed medically unjustified restrictions on who can claim, namely the requirement for a recognised psychiatric illness. This is a legal definition which has been allowed to dictate who has an actionable claim despite having no medical justification. Reform to this unprincipled area of law is essential if the law is to align itself with medical opinion.

The requirement for a recognised psychiatric illness

The threshold requiring all actionable claims to be for a ‘recognised psychiatric illness’ was introduced by Lord Denning in Hinz v Berry.[4] Lord Denning cited no prior authority in his speech and gave no guiding explanation on the matter. Despite this, this threshold was adopted by subsequent cases and since McLoughlin v O’Brian and others has become ‘embedded … in the law’.[5] It requires claimants to show that what they are suffering is ‘not merely grief, distress or any other normal emotion’, but a recognised psychiatric illness which can be confirmed by a medical professional.[6] This has no medical basis, and was never meant to be used as a legal term.[7]

Psychiatry is a ‘specific medical speciality that aims to prevent and treat mental abnormalities’.[8] Psychiatrists work based on medical models which work with abnormalities associated with biological pathology that indicate illness or disease.[9] These illnesses need not have a significant impact on a person’s life to be diagnosable.[10] This means that a person who’s life is not much impacted by their psychiatric illness would meet the threshold. The threshold is in place to ensure that only those who deserve compensation are eligible to claim for it. However, as it does not necessarily follow that if someone has a psychiatric illness that they are in need of compensation, the current threshold can set the bar too low.[11]

In addition, both Mulheron and Ajuha highlight how the current requirement can also set the bar too high.[12] Psychiatry focusses on ‘abnormal’ emotions and so even incapacitating distress could be insufficient for a psychiatric diagnosis.[13] Some claimants’ incapacitating mental injury will have a large impact on their life but still fall shy of a recognised psychiatric illness, and so they will be barred from claiming. Compensation for psychological harm can be essential in allowing a person to seek help and afford treatment, so it is essential that those who deserve compensation are able to claim for it. This shows that the current threshold is too high in many cases and prevents the tort system from fulfilling its purpose and thus is in need of reform.

Reform

One option for reform is to replace the current threshold with a new one of moderately severe psychological impact.[14] Psychology is an overarching term which refers to any harm to a person’s psyche and can include any mental trauma that can have an impact on a person’s functioning, regardless of whether they have an illness.[15] Using this new threshold is desirable as it is a fairer assessment of how someone has been affected by an event, and is justified by sound medical evidence.[16] It requires more than everyday emotions and feelings and so is still alert to floodgates concerns, allowing for only moderately severe psychological harm to be actionable. Ahuja argues the new foreseeability test is more generous to meritorious claims, but also restricts claims like that in Page v Smith which are less foreseeable, redefining the threshold in a rational way without creating excessive liability.[17]

Should this new test with shifted liability increase the number of claims, it would reflect a genuine social need, not an influx of fraudulent claims; as was recognised over 20 years ago by Lord Wilberforce in McLoughlin.[18] This test leaves some discretion and flexibility up to the courts, allowing the law to develop when necessary. It also relies heavily on expert evidence from psychologists, obviating the risk of any successful fraudulent claims as it would require a claimant to fool a medical professional. Further, there should not be resistance to an overall increase in the number of claims as allowing deserving people who have suffered negligently inflicted psychiatric injury to be compensated is the intended outcome of reform in this area. These changes would bring the law better in line with medical evidence which is favourable as we should be basing rules that relate to people’s mental health and livelihoods on sound medical evidence, rather than the opinions of judges.

Conclusion

In sum, the current threshold for a recognised psychiatric illness to be shown in all cases of psychiatric injury has no medical justification and can set the bar both too high and too low. A good option for reform would be to implement a new threshold of moderately severe psychological impact. This would bring the law much more in line with medical opinion, and mean that those deserving of compensation can claim, and those who aren’t deserving cannot.

[1] Dulieu v White & Sons [1901] 2 K.B. 669, 675.

[2] Halsbury’s Laws of England (2014) vol 29 para 438 <LexisLibrary> accessed 19 February 2018.

[3] Edwin Peel, James Goudcamp, Winfield and Jolowicz on Tort (19th Ed, 2014, Thompson Reuters (Professional) UK Ltd) 129-130.

[4] Hinz v Berry [1970] 1 All ER 1074, 1075; Jyoti Ahuja, ‘Liability for Psychological and Psychiatric Harm: The Road to Recovery’ [2015] Med Law Rev 23 (1): 27, 34.

[5] McLoughlin v O’Brian and others [1983] 1 A.C. 410; Van Soest v Residual Health Management Unit [2000] 1 NZLR 179, 204; Ahuja (n 4) 34.

[6] McLoughlin (n 5), 431.

[7] Rachael Mulheron, ‘Rewriting the Requirement for a 'Recognized Psychiatric Injury' in Negligence Claims’ [2012] OJLS 32 (1) 77, 79.

[8] Ahuja (n 4), 28.

[9] ibid 36.

[10] ibid 28.

[11] ibid 35-37.

[12] Mulheron (n 7) 96-100; Ahuja (n 4) 35.

[13] Ahuja (n 4) 36.

[14] ibid 48-49.

[15] ibid 28.

[16] ibid 49-51.

[17] ibid; Page v Smith [1996] A.C. 155.

[18] McLoughlin (n 5) 421.