Canadian Social Science
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.
Keywords
Full Text:
PDFReferences
American Psychiatric Association. (2013). Diagnostic and statistical manual of mental disorders (5th ed.). Washington DC, APA.
Barlow, D. H. (2002). Anxiety and its disorders (2nd ed.). New York, NY: The Guilford Press.
Birks, P. (Ed.). (1996). The frontiers of liability. Oxford, Oxford University Press.
Boon, S. (1997). The treatment of traumatic memories in DID: Indications and contraindications. Dissociation, 10.
Buttler, D. (1997). Identifying the compensable damage in “nervous shock” cases. Torts Law Journal,
Courtois, A. C. (Ed.). (2009). Treating complex traumatic stress disorder. New York, The Guilford Press.
Earengey, W. G. (1992). The legal consequences of shock. Medico-Legal Journal, 60.
Ellard, J. (2003). Communication in distress. Australia Journal of Law, 77.
Evans, R. W. (1994). The effects of litigation on treatment outcome with personal injury patients. American Journal of Forensic Psychology, 12.
Fleeming, J. G. (1998). The law of torts. Sydney, LBC.
Freckleton, I. (2002). New directions in compensability for psychiatric injuries. Psychiatry, Psychology, and Law, 9.
Freud, S. (1953). Beyond and pleasure principle. London, Hogart Press.
Friedman, M. J. (Ed.). (2007): Handbook of PTSD: Science and practice. New York, NY: The Guilford Press.
Gelder, M. (Ed.). (2001). Oxford textbook of psychiatry. Oxford, Oxford University Press.
Hales, R. E. (Ed.). (1999). Textbook of psychiatry (3rd ed.). Washington DC, American Psychiatric Press.
Helzer, J. (1987). Posttraumatic stress disorder in the general population. New England Journal of Medicine, 317.
Hilson, C. (2002). Liability for Psychiatric Injury: Primary and secondary victims revisited. Professional Negligence, 18.
Horowitz, M. J. (2001). Stress response syndrome (4th ed.). New York, NY: Jason Aronson.
Jones, M. (1995). Liability for psychiatric illness – more principle, less subtlety. Journal of Current Legal Issues, 4.
Lawson, F. H. (1982). Tortious liability for unintentional harm in the common law and the civil law. Tort Law Review, 1.
Lunney, M., & Oliphant, K. (2010). Tor law: Text and materials (4th ed.). Oxford University Press.
McIvor, C. (2007). Liability for Psychiatric Harm. Professional Negligence, 23.
Mendelson, G. (1998). The interfaces of Medicine and Law. Aldershot. Darthmoud Publishing.
Mullany, N. J., & Handford, P. R. (1993). Tort Liability for Psychiatric Damage. Sydney, The Law Book.
Steele, J. (2007). Tort Law: Text, cases, and materials. Oxford, Oxford University Press.
Teff, H. (2009). Causing psychiatric and emotional harm. Oregon, Oxford.
Van der Hart, O. (Ed.). (2006). The haunted self. New York, NY: WW Norton.
World Health Organisation. (XXXX). ICD-11 international classification of mental and behavioural disorders. Geneva, WHO.
Zepinic, V. (2001). Suicidal risk with war-related posttraumatic stress disorder (Chapter 14). In B. Raphae (Ed.), Diversity and mental health in challenging times. Sydney,
TCMH.
Zepinic, V. (2008). Healing traumatic memories: A case study. Dynamische Psychiatrie, 5-6.
Zepinic, V. (2010). Hidden scars: Understanding and treating complex trauma. London, Xlibris.
Zepinic, V. (2012). The self and complex trauma. London, Xlibris.
Zepinic, V., Bogic, M., & Priebe, S. (2012). Refugees’ views of the effectiveness of support provided by their host countries. European Journal of Psychotraumatology, 3.
DOI: http://dx.doi.org/10.3968/%25x
Refbacks
- There are currently no refbacks.
Copyright (c)
Reminder
- How to do online submission to another Journal?
- If you have already registered in Journal A, then how can you submit another article to Journal B? It takes two steps to make it happen:
Submission Guidelines for Canadian Social Science
We are currently accepting submissions via email only. The registration and online submission functions have been disabled.
Please send your manuscripts to css@cscanada.net，or css@cscanada.org for consideration. We look forward to receiving your work.
Articles published in Canadian Social Science are licensed under Creative Commons Attribution 4.0 (CC-BY).
Canadian Social Science Editorial Office
Address: 1020 Bouvier Street, Suite 400, Quebec City, Quebec, G2K 0K9, Canada.
Telephone: 1-514-558 6138
Website: Http://www.cscanada.net; Http://www.cscanada.org
E-mail:caooc@hotmail.com; office@cscanada.net
Copyright © Canadian Academy of Oriental and Occidental Culture 
