Liability in Negligence for Nervous Shock
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01967.x |
| Published date | 01 July 1994 |
| Author | David W. Robertson |
| Date | 01 July 1994 |
REVIEW ARTICLE
Liability in Negligence for Nervous
Shock
David
W.
Robertson
*
Nicholas
J.
Mullany and
Peter
R.
Handford,
Tort Liability
for
Psychiatric
Damage: The Law
of
‘Nervous Shock,’
Sydney: The Law Book Company Ltd,
1993,
lv
+
333
pp, hb
f48.00.
What might be the essential features of a system of personal injury law, the sole
aim of which was to produce
a
great deal of lucrative and interesting work for its
practitioners
-
its judges and lawyers
-
while benefiting no one else?
Presumably, the necessary features of such a system would include (a) a promise
of awarding damages sufficiently encouraging to attract large numbers of potential
plaintiffs;
(b)
a vague, prolix or arcane conceptual and doctrinal apparatus which
would defer resolution in most cases until the conclusion of trial on the merits,
followed if possible by one or several appeals; and (c) the eventual denial of any
recovery. To the extent that it succeeded in its aim, such a system would rightly be
viewed as perverse.
No
one would design such a system on purpose.
I
The General Conceptual Structure
of
the Negligence Cause
of
Action
The extant Anglo-American law governing negligently inflicted personal injuries
does not much resemble the perverse vision just described. Instead, it tries to
award damages to deserving plaintiffs, penalise and reform accident-productive
defendants, attract only those plaintiffs who will ultimately be deemed deserving,
and resolve disputes as quickly and cheaply as possible. A centrally important
conceptual structure has been developed in pursuit of those aims. In one of its
traditional versions, this structure has three divisions’; in another, four2; and in
a current and
useful
version, five. To recover under the law of negligence, the
plaintiff must establish
‘(1)
[the] existence
of
a duty
.
.
.
of reasonable care;
(2)
breach of that duty [through substandard conduct];
(3)
cause in fact;
(4)
proximate
[or legal] cause [the remoteness issue]; and
(5)
damages.13
From time to time, some modern judges have suggested that it is not vitally
important whether a particular difficulty in a particular case is classified as a duty
*Professor of Law, University of Texas at Austin.
1
‘The conventional analysis of the
tort
of negligence suggests that three elements must be satisfied as a
condition of liability: there must be a duty of care owed by the defendant to the plaintiff, breach of that
duty, and resulting damage’: Mullany and Handford,
Tort
Liability for Psychiatric Damage,
p
60.
(Hereafter,
I
will cite this work as ‘M&H.’)
‘[Tlhe traditional statement of the requirements [is] a duty
to
show care and a breach of that duty by
careless behaviour causing damage, which
is
not
too
remote’: Dias and Markesinis,
Tort
Law
(Oxford:
Oxford University Press, 2nd
ed,
1989)
p
55.
Robertson, Powers and Anderson,
Cases
and
Materials
on
Torts
(St Paul, Minn: West,
1989)
p
136
(hereafter cited as ‘Robertson’).
2
3
0
The Modern
Law
Review Limited
1994
(MLR
57:4.
July). Published by Blackwell Publishers,
108
Cowley Road, Oxford
OX4
IJF and
238
Main Street, Cambridge, MA
02142.
USA.
649
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