Causing Psychiatric and Emotional Harm Reshaping the Boundaries of Legal Liability

by Teff, Harvey

• ISBN13: 9781841132167
• ISBN10: 1841132160
• Format: Hardcover
• Copyright: 2009-01-15
• Publisher: Hart Publishing

Summary

Though mental harm can be profoundly disabling, the law imposes strict limits on who can recover damages for it. In the absence of physical injury, compensation is not normally available for negligently caused mental suffering, however severe, unless it c

Author Biography

Harvey Teff is Emeritus Professor of Law at Durham University. Formerly Head of the Durham Law Department, he has been a Visiting Professor at the University of Iowa. His previous books include Thalidomide – the Legal Aftermath (with CR Munro, 1976) and Reasonable Care – Legal Perspectives on the Doctor-Patient Relationship (1994). He has written extensively on liability for psychiatric harm and medical negligence.

Table of Contents

Acknowledgements	p. vii
Table of Cases	p. xiii
Table of Statutes	p. xxi
Psychiatric Harm, Emotional Suffering and Legal Redress	p. 1
Categorising Personal Harm	p. 1
Introduction	p. 1
Mental and Emotional Harm	p. 4
Some Problems of Classification	p. 5
Medical	p. 5
Legal	p. 7
Underlying Hostility: Disparaging Intangible Harm and its Redress	p. 10
Mind and Body	p. 10
The Stigmatisation of Mental Illness	p. 12
The 'Blame and Claim' Culture	p. 18
Embracing Liability for Mental and Emotional Harm	p. 20
Some Modern Statutory Developments	p. 20
The Special Case of Psychiatric Illness Caused by Stress at Work	p. 22
The Scope for Liability at Common Law	p. 26
Mental Distress resulting from Breach of Contract	p. 26
Damages in Tort for Mental Distress	p. 28
Some Criminal Law Comparisons	p. 31
Caveat and Conclusion	p. 33
The Development of Redress for Emotional Harm and Nervous Shock	p. 37
'Harm' at Common Law	p. 37
Minimum Actionable Harm at Common Law	p. 37
Early Legal Views on Intangible Harm	p. 40
The Victorian Era and 'Railway Spine'	p. 41
Development of Liability for 'Mental And Nervous Shock': The 'First Hundred Years'	p. 43
Recoverable Harm: a 'recognisable psychiatric illness'	p. 52
An Overview of the Period	p. 54
Conclusion	p. 56
Contemporary Provision for 'Accident-Based' Psychiatric Illness	p. 59
McLoughlin v O'Brian: Policy or Principle?	p. 59
The 1990s: From Alcock to Page to White-'Thus Far and No Further'?	p. 65
Alcock v Chief Constable of South Yorkshire Police	p. 66
Alcock on Appeal	p. 67
Proximity of Relationship	p. 68
The 'Immediate' Aftermath	p. 69
The Mode of Communication	p. 69
Sudden and Gradual Assaults on the Nervous System	p. 70
Page v Smith and White v Chief Constable Of South Yorkshire: The 'Patchwork Quilt' Embedded	p. 74
Primary/Secondary/Both/Neither?	p. 75
The Mixed Messages of Page v Smith	p. 77
Confused Legal Doctrine	p. 77
The Unfulfilled Promise of 'Law Marching with Medicine'	p. 82
Hillsborough Revisited	p. 83
A Misconceived Public Relations Exercise in the Name of Distributive Justice?	p. 91
White v Chief Constable of South Yorkshire: Weary Resignation?	p. 93
Liability for Psychiatric Harm 'Beyond the Mainstream'	p. 97
Introduction	p. 97
Negligent Provision of Services	p. 99
Communicating Bad News	p. 103
Negligent Communication of Information	p. 103
Fear for the Future	p. 109
Medical Negligence: The Declining Significance of the 'Sudden Shock' of a 'Horrifying Event'	p. 113
Introduction	p. 113
Lord Ackner's Conception of Shock	p. 115
The Event	p. 115
Suddenness	p. 116
Horror Violently Agitating the Mind	p. 117
Claims resulting from Medical Negligence	p. 117
Negligence Causing Psychological Detriment	p. 122
The Doctrinal Basis for Exceptions to the Special Rule Structure	p. 125
'Assumption of Responsibility'	p. 126
A Reversion to First Principles	p. 128
An Australian Exemplar: Tame v New South Wales; Annetts v Australian Stations Pty Ltd	p. 130
Legislative Developments	p. 135
Conclusions	p. 137
Policy Concerns	p. 141
Some Common Policy Justifications for Special Controls	p. 141
Diagnostic Uncertainty	p. 143
Litigation and Rehabilitation	p. 145
Liability Disproportionate to Culpability	p. 148
The Potential for Proliferating Claims	p. 149
The Potency of the 'Floodgates Fear'	p. 149
Disincentives to Claiming	p. 151
The Claims-handling Process	p. 153
The Frequency of Claims	p. 155
Personal Injury Claims in General	p. 155
The Incidence of Claims for Psychiatric Harm	p. 158
The Impact of Employees' Claims for Stress-Induced Psychiatric Illness	p. 161
Conclusion on the Floodgates Fear as regards Psychiatric Harm	p. 165
Broader Policy Considerations	p. 166
Chilling Effects: The 'Perils' of a Risk-Averse Society	p. 166
Risk Aversion and Mental Harm	p. 169
A Proposal For Reform	p. 171
A New Test for Remediable Suffering	p. 171
The Substantive Basis of Liability	p. 171
The Case for a Monetary Threshold	p. 177
Is a Monetary Threshold a Step Too Far?	p. 179
Conclusion	p. 183
The Proposed Framework in Outline	p. 185
Remaining Barriers to Reform	p. 186
A Legally Undervalued Core Value	p. 186
Lingering Doubts Specific to the English Law Context	p. 188
Concluding Remarks	p. 189
Bibliography	p. 191
Index	p. 201
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