Fear of the “Floodgate of Liability” and Acknowledgment of the Recognisable Psychiatric Damage Into English Law of Tort

Abstract

It is well-known that damages to a victim’s psyche can occur due to witnessing or being victim of the traumatic event(s), and this was first recognised in ancient Greece. However, it took centuries for this to be recognised by the common law. It originated within the concept of nervous shock which was first introduced by the Coultas case through negligence in the duty of care. Before the Supreme Court of Victoria (Australia), the jury awarded damages for the shock which, however on a further appeal, the Privy Council held that the damage was too remote. This decision opened a door which was not shut until the present time: the strict relatedness between the physical and psychological injury and the recognition of psychiatric damages for recovery in the absence of physical injury.
There is no doubt that the Alcock case has been considered as a “test case” for last two decades which shows all dilemmas and differences in endorsement of psychiatric damages within the English law of tort. This case certainly reflected the scepticism and uncertainty in acknowledging psychological injury and in some court cases, ignorance of medical opinion, or the courts’ concerns about “opening the floodgates” to limitless or unrestricted liability and its ramifications for the insurance industry, or inherent problems of establishing a causative link, or imposing administrative and/or practical difficulties of psychiatric damages to produce a long-term protection to the mental tranquillity.