Psychiatric Evidence and Judicial Fact-Finding
| Date | 01 July 1999 |
| DOI | 10.1177/136571279900300303 |
| Published date | 01 July 1999 |
| Subject Matter | Article |
Psychiatric
evidence
and
judicial
fact-finding
By
Tony
Ward*
De
Montfort
University,
Leicester
Psychiatric
and
psychological evidence forms an
important
element
in
three
kinds
of
personal
injury
actions;' those where
the
plaintiff
is
physically
injured
and
also claims to have suffered psychiatric
harm;
those where symptoms
which
the
plaintiff
attributes
to physical
injury
are
attributed
by
the
defendant
to psychological causes;
and
those where
the
plaintiff
is physically
uninjured
but
claims damages for 'nervous shock'. The
last category is subject, in English law, to a complex
and
arbitrary set
of
limitations on liability," In a
recent
judgment
reviewing
the
considerations
of
policy
which
are said to justify those restrictions, Lord Steyn pointed
out
that
because
there
was
'greater
diagnostic
uncertainty
in psychiatric
injury
cases
than
in physical
injury
cases',
the
classification
of
emotional
injury
was often
controversial, leading to 'costly
and
time
consuming'
litigation.'
It
is certainly
true
that
some nervous shock cases have been extremely
time
consuming:
Vernon
v
Bosley,
for example, involved 68 days
of
evidence, a
132-page judgment,"
and
three
hearings in
the
Court
of
Appeal."
Page
vSmith
reached
the
House
of
Lords on a
point
of
law,"
but
then
required asecond
Court
of
Appeal
hearing
to resolve
the
issue
of
causation. In Arrowsmith v
Beeston,"
on
the
other
hand,
the
Court
of
Appeal considered
that
the
trial
• I am greatly
indebted
to Barbara Harvey for
her
insight
into
the
problems discussed in this
article
and
into
the
mysteries
of
English
tort
law.
1 This article does
not
deal
with
psychiatric evidence
about
children,
which
raises special issues:
see J.R. Spencer
and
RFlinn, The
Evidence
of Children, 2nd
edn
(Blackstone Press: London, 1993)
ch.9.
2 Law Commission, Liabilityfor
Psychiatric
Illness (1998); H. Teff, 'Liability for Psychiatric Illness:
Advancing Cautiously' (1998) 61
MLR
849; N. Mullany 'English Psychiatric
Injury
Law -
Chronically Depressing' (1999) 115
LQR
30.
3 [1999]1 All ER1 at 32-3. 'On its own', Lord Steyn added,
'this
factor may
not
be
entitled
to
great
weight'.
4 (1995) 28
BMLR
1
5 [1994] PIQR337; [199711 All ER 577;
Vernon
v
Bosley
(No.2)
[1997]1 All ER 614.
6 [1995] 2 All ER 736.
7 Lawtel 18
June
1998
(CA).
180
THE
INTERNATIONAL
JOURNAL
OF
EVIDENCE
&
PROOF
To continue reading
Request your trial