Jan 12, 2018 in Law

Law of Recovery for Psychiatric Injury

Law on Recovery for Psychiatric Injury Caused by Negligence is strongly in Need of Reform

Most legal jurisdictions throughout the world now recognize a right to seek redress with regard to the concept of negligently subjected pure psychological harm.1

Common law jurisdictions have been largely slow to recognize such a duty. Even during these present times, following such recognition, there would seem to be a judicial bias in favor of physical injuries, and of restricting the categories of victims.

In piece of work I purpose to examine the current legal implications of the Irish Legal System with regard to the existing, unfavorable law of recovery for Psychiatric Injury caused by Negligence. In my observation I also want to assess the situation in this nation in comparison with two of its close allies: Australia and England. The countries share a lot while implementing some policies in unbelievably parallel ways. They seem to have discordant ideologies especially in legal issues as it will be seen in the way they handle the law of recovery in respect of psychologically unstable individuals who may suffer from unexpected damages due to negligence on the part of others.

In order for anybody to get a better view of the entire concept of the main area of discussion, there is inevitable necessity to jump backwards a little bit. This should help us to get the basics of the law that guides and handles matters of compensation (or recovery) in case of harm and or damages by any given party. This is the Law of Torts. Moreover, there is the tort of Negligence, which we need to at least have a general understanding of how it operates.

Usually, common law jurisdictions define a tort as a civil offense. The Law of Torts has to handle such matters as appropriately as it is necessary; in cases where a person's deed has caused another one significant harm.

In some scenarios, a tort may not necessarily qualify to be an illegal act although harm may be caused. It permits people who have suffered to recover whatever they may have lost. This is quite different from the usual criminal law. The latter comes into play in situations where a person's actions bring damage to society, in general.

A claim in tort may be raised by any affected person. Criminal cases, on the other hand, the state takes responsibility. In some other cases, individuals and even corporate organizations may bring private prosecutions.

One can as well differentiate tort law from equity. With equity, a petitioner complains of a violation of some right. Delict is the equivalent of tort in civil law. A tort may be defined as a personal injury; or a civil deed other than a breach of contract.

In legal terms, negligence occurs when occurs when one breaches their duty of care. According to the law of torts, everyone is responsible for the damages caused around them if they did occur but they could not show any reasonable care in an attempt to avoid it. Simply put, if I pay my uncle a visit then fall on the slippery floor before they give a warning of the status of their floor; I am legally entitled to filing a case against them. They never showed reasonable care which brought about my free fall! This is an issue of great concern in the Republic of Ireland whereby people commit such offences yet the flaws in law enforcement allows the offenders to go scot free.

The republic of Ireland has laws, just like any other independent nation. Among its many laws, there is the Law of Torts. It governs how people get compensated for damages caused out of utmost negligence. This applies across the board.

According to the implementation of the Irish Law of Recovery, many people have raised issues and expressed their dissatisfaction with the entire policy, and the way they implement it in that sovereign state.

In the common law, the most outstanding tort liabilities are cases of lack of care. If the victim can provide evidence that whoever caused the injury acted negligently, without upholding reasonable care to avoid it, tort law will compel the culprit to compensate the grieving party.

However, tort law also recognizes intentional causes of harm, where an individual has deliberately acted carelessly and ends up injuring others.

The ultimate decision under the Australian law that deals with the requirement of a shock in negligently induced psychological injury cases anchored the decisions in several other jurisdictions such as the conflict between Jaensch and Coffey. This case was dealing with the development of a psychiatric problem on the respondent's part by way of being a witness, in the medical personnel informed her that his condition was serious and, having gone to take for some rest, they called her back. Her husband's condition had deteriorated.

One traditional criterion required, in Ireland, to establish a successful claim for psychological damage is a requirement of a shock-induced psychological injury which arises suddenly due to fright, as opposed to a slow onset of such injury by the effects of a difficult collection of issues.

The requirement of a sudden shock built a core component in the call for recovery for psychological harm. The whole concept itself has often been termed nervous shock, which is unsuitable and confuses the entire concept of psychiatric harm with one of the parts which, for the sake of precision, should be discarded.

Medical officers informed the lady that the man’s condition was a bit serious and, having gone for some rest, they called her back in later due to her husband’s deteriorating state.

The High Court of Australia recognized the requirement that, in case of absence of physical injury, the psychological harm suffered should be shock-induced. That is harm caused by sudden, sensory perception, hearing or touching, which is distressing.

Psychiatric injury caused in any other way, besides by sudden shock does not merit being recoverable. In this regard, Brennan J. gave two illustrations: firstly, a spouse suffered a psychiatric harm by way of caring for a tortuously injured partner. Secondly a parent suffers psychological harm because of weird behavior of a mentally challenged child.2

This judgment, especially, and the firm grip onto the sudden shock requirement is the major topic of attracting significant criticism and discomfort among many different scholars.

To begin with, imposing such serious restriction on the right to rejuvenate from a horrible psychiatric injury of that magnitude remains vague. This is evident from the judgment of Brennan J who merely remarks that this is the way it is. He does not, however, give any underlying evidence as a justification for such a firm stand. He strongly rules out any recovery when cases bear the element of the sudden shock component. This comes in spite of the gradual onset psychological damage which may end up as a reasonably predictable aftermath of the negligence of the culprit (tortfeasor).

Besides that, he, unfortunately, fails to give a concrete reason for the exclusion of such. Doing so would perhaps create a scenario that will allow people to make worthy claims. This is, to a great extent, a sign of impunity whereby people with some limited judicial powers can actually scuttle ordinary citizen’s efforts to attain justice. This judge denies people a chance to enjoy their human right; he withholds the necessary common people need to know. He feels he should allow them to get to his level; perhaps he fears competition. Or, maybe he is just a self-centered human being.

This makes everything clear that this is simply an issue of remoteness. Any harm caused would be too far-fetched to constitute any compelling claim for recovery. However, this does not come out clearly from the judgment. In a twist of events, one can argue that the real facts of the case cannot support the justification of the sudden shock requirement in the psychiatric cases like the ones placed before Brennan J.

From his judgment, it is apparent that enough energy is dedicated to ensuring non-disclosure of some reliable facts. In fact, the events are not collectively and chronologically presented to help reach clear conclusions as to whether or not there is recovery for the injured individuals. The question is: why should this not be described as procedurally required?

One needs to assume that the meaning of the term sudden would gain some aspect of immediacy. Brennan, in his judgment, never mentioned or insinuated the concept of sudden shock in this case. What comes out evidently is the illness which affected the Plaintiff; a result of the combined effects of what she witnessed on the 2nd and 3rd June 1979. The realization that her husband's health continued to deteriorate made matters terrible for her. The dicta of Brennan J support this contention when he personally says that she had been under the impression for that period of about a month.

The claimant suffers terribly by virtue of sudden shock and not due to gradual onset of psychological harm over time, as one would commonly expect. In such a case, the liability will attach to the tortfeasor. This remains to be one doctrine that elicits sharp criticisms among academicians. There are also significant conceptual hindrances due to the unbelievable reasoning of the courts of law.

The case of Alcock V Chief Constable of South Yorkshire was the premier case to be expressly handled the necessity of psychiatric harm.It resulted from a sudden shock requirement component in the United Kingdom case. Many players and other individuals who went to watch the beautiful game of football died. This ugly occurrence came about as a consequence of negligence on the part of law-enforcement agents. The authority in charge had to be responsible and stood accountable for such negligence of the officers under him.3

Lord Ackner holds onto the notion that liability for psychological injury can only attach to a tortfeasor where such misfortune arises from the sudden shock. That is to say that only the unexpected appreciation of sight or hearing of a horrifying event could violently agitate the mind. Sometimes things of this nature do not occur. The mind of a person may remain sober they are physically injured. Such restrictions discourage people from valiantly handling their problems brought against them by their treacherous neighbors. When one is emotionally stable then they automatically cease to even imagine of making any claims of recovery. They have to wait till that moment of emotional breakdown to initiate such processes.

Logically, this idea is biased. It only favors those who can act well when they have to. Others who let the intensity of a problem to determine whether or not, they can wipe a tear; and those who never shed tears no matter the situation, always have to deal with their own plights. The legal system does not recognize them even when they have genuine claims for compensation for damages.

The doctrine is yet to include psychiatric illnesses resulting from accumulation of many assaults on the victim's nervous system. Lords Keith and Oliver also termed the requirement of sudden shock, as requiring an abrupt assault on the nervous system, and sudden shock to the complainant's nervous system, respectively. In expressing this serious view, Lord Ackner quoted the instances of Brennan J in Jaensch V Coffey  concerning the cases of gradual onset of psychological injury in the spouse and parent as being inadequate to attract redress.

The judgments of the Lords continue to be criticized for such unwanted division between cases that involve a sudden shock component and the gradual onset of the psychiatric harm. It is possible to trace the mere reason that guided Lord Oliver in the delivery of his judgment.

The Lord states that though the law may be somehow illogical with regard to this issue and quite unfair; it is a crucial policy behind the restraining of the ability to recover for negligently caused psychological injury and the imposition of limits to such recovery, like the requirement that the illness be sustained by sudden shock.

Furthermore, he seems to subsume the sudden shock requirement Moreover, he seems to subsume the sudden shock requirement with the general requirement of proximity. He states that the necessary extent of proximity between parties to the occurrence is established. This could be by the unexpected and direct visual impression on the plaintiff’s mind of witnessing the happening or its immediate result, and to extend liability to cover damages in such cases.

The rules and guidelines in place to facilitate recovery for negligently inflicted psychiatric harm are globally criticized. This is evident in Ireland and even its close neighboring nations, including the United Kingdom.

The law of recovery is a law that deals with money and property directly. This could be the main motivation for the profound commitment by the law-enforcers to twist it and ensure they also benefit from it. Corruption is a factor that promotes impunity and abuse of office. People with itchy fingers will always strive to get in positions that give them an opportunity to manipulate the law for their own sake. Ireland has experienced that bitter reality, and the only way out of the bondage is by embracing reform agendas that can be sustained over the next generations.

In the case of law of recovery for psychiatric injury, there is always one elusive issue that has always caused loopholes in the legal systems with Irish legal system being one victim. This is the issue of perfect proof of a recognized psychiatric illness. It is very difficult to tell whether a given condition is actually psychiatric or the dramatic ingenuity of the interested party. Some people may act and truly look like victims of some circumstance.

However, one area which, to date, has escaped with a minimum of judicial or academic scrutiny concerns the very threshold requirement for these actions: proof of a ‘recognized psychiatric illness’. Everyone can talk about it. Unfortunately, perhaps no one understands it. Sometimes, different groups would or even individuals would conventionally agree on the meaning of the terminology just to fulfill a given need. The diverse interpretations would probably necessitate a common, objective judicial stand concerning. This is the only way to restore sanity among Linguists, Legal Experts, Medical Officers and all other individuals. 

People argue that the international classifications of disorders of psychiatric nature get misapplied and even misunderstood in the English, Medico-legal context. These classifications need deep and intense judicial examination and scrutiny. This has never been the case, posing another difficulty in the quest to find a long-standing solution to all problems emanating from interpretation and comprehension of the law itself.

With such prominent challenges, there is a very difficult task ahead for the responsible individuals entrusted with guarding of the Irish Legal System, generally, as they endeavor to better the Law of Recovery for the Psychiatric Injury.

For Ireland, and any other nation, wishing to have a successful system that would alleviate cries of criticism and discomfort with handling of injurious negligence acts; major stumbling blocks have to be cleared from the way. They are fundamentally two: sudden shock requirement and onset of psychological harm.

The concerned parties never want to discuss the two issues conclusively and vividly. They are the main problems that the reform agenda should target. They ought to be wiped out completely so that forward motion can take place in respect of finding a solution to the pending legal dilemma.

Firstly, they should find a clearly definitive description, and classification of psychiatric disorders. They should then establish stringent measures to identify and deal with opportunistic individuals. These are people who insensitively take advantage of some available situations to oppress their colleagues through unwarranted claims for compensation. Punitive measures should be set up to restrain tricksters from exploiting other innocent individuals.

Besides, proponents of the sudden shock requirement should come out clearly and state their real interests in the plan. They need to explain exhaustively to all the critics why they think and believe that is the way to go. Sometimes people may criticize something or someone out of sheer ignorance. They are, however, allowed to and need to be answered when they ask questions and raise issues worthy of discussions and debates.

In Britain, there are remarkable steps going away from the sudden shock requirement. The law commission of England and Wales is in the forefront in spearheading their citizens towards a future full of hope and confidence in their new system. The commission has released a very comprehensive report on psychiatric illness. They are redefining their entire system with the aim of abolishing the sudden shock requirement completely.4

The developments elsewhere, however, seem to be out of range of the Irish leadership’s ears. It is shocking that not long ago one would hear of the relentless implementation of the highly disregarded legal tactic: sudden shock requirement; operating in full force. This simply means that the Irish position stands uniquely isolated and cannot withstand the regional and global debate. The Supreme Court’s decision of Kelly V Hennessy says it all. That is just an example of many other wayward rulings and shocking occurrences that would not be imagined in such a country during the present century.5

There is urgent need for reforms in Irish Law of Recovery for Psychiatric Injury. Negligence of the highest order is riding high in Ireland and total overhaul of the current legal environment is long overdue. If a system is fine for the regional nations and others in the world then the Republic of Ireland is no exception.6 ireland cannot pretend to be okay when they are lagging behind other developed nations.

It is time for serious change in the laws governing the Irish citizens. Oppressive rule is a political technique which has become obsolete in modern leadership system. The vulnerable members need to be consoled and comforted. This must be done at all levels of an individual’s social circle. If legal justice becomes elusive, yet, it is the symbol of care and fairness for the people; what would have remained of a nation? To answer this, one does not have to think twice; just say ‘Reforms’!

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