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Psychiatric injury and the problem of the precise scope of legal liability…
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Therefore, unlike physical injury, a threshold of psychiatric harm is required. This distinction is because; expensive expert witnesses are required to establish the exact nature of the psychiatric injury, which has time and cost implications for the administration of justice.
Although this is questionable whether it is a sufficient reason for treating psychiatric injury differently, lesser conditions such as mere grief should not warrant liability
To conclude, there is a need to cure the defects in the existing law but no need for attempts to codify the law on psychiatric injury. There should be core legislation creating a new duty of care and replacing the common law on psychiatric injury. (PROPOSED BY THE LAW REFORM COMMITTEE) This should 1. Stipulate certain relationships which should be treated as giving rise to one of the close tie of love and affection 2. Remove any requirement for presence at the scene of the accident or its immediate aftermath 3. This duty should be owed whether the defendant is a victim or not 4. The duty of care should not be imposed if its imposition is not fair, just and reasonable. HOWEVER, since the government rejected the Law Commission Report's proposal, it would be preferable for the courts to continue to develop the law on liability in respect to psychiatric illness rather than attempting to impose a statutory decision
There is uncertainty because the close tie of love and affection are not defined precisely accordingly.
In Mcloughlin, the claimant arrived 2 hours later while the bodies are unclean, yet the relatives in Alcock who arrived later having traveled further were denied a claim. It is also questionable whether the result would have been the same if the bodies have been cleaned in McLoughlin. This issue is far from clear and reinforces the statement that the law on psychiatric injury is still in a complete mess
Even the judiciary has come to the consensus in Alcock that the law is unsatisfactory - Lord Oliver being unable to defend the law 'as either entirely satisfactory or as logically defensible". This has led to widespread calls for reform, notably from the Law Commission. A significant aspect is to remove the second and third mechanisms owing to the unjust results that they can bring. If this is able to be adopted the floodgates of litigation would be prevented from opening by retaining some control but in a more logical and fairer way
The basis is that in Alcock, there is a lack of proximity and the English law never allowed for recovery through the lack of proximity.
Another consideration was that the prospect of compensation may act as a disincentive to recovery. Stapleton calls this a well-intentioned desire to protect the claimant's condition deteriorating through the stress of a trial (Psychiatric illness worsening during a trial and therefore propounds the liability onto the defendant further which the defendant would thereby be hard to disprove). However, this is doubted by Teff, who argues there is little evidence to support the assertion
This could seem unfair to others and it is suggested that the law is inclined towards the protection of mothers. Thus, the criticism is that the requirements of 'sudden shock' and 'direct perception' of a distressing phenomenon or its 'immediate aftermath' have operated in an arbitrary and capricious manner because the necessary element of 'suddenness' is not fulfilled