Reforming Liability for Psychiatric Injury in Scotland: A Recipe for Uncertainty?
| Published date | 01 November 2005 |
| DOI | http://doi.org/10.1111/j.1468-2230.2005.00569.x |
| Date | 01 November 2005 |
REPORTS
Reforming Liability for Psychiatric Injury in Scotland:
A Recipe for Uncertainty?
Donal Nolan
n
INTRODUCTION
Eventhe judiciary have acknowledgedthat the lawgoverning negligence liability
for psychiatrici njuryis nowi n an unsatisfactory state.
1
At the sam e time, however,
these judicial critics have made it clear that root-and-branch reform must nowbe
brought about by legis lation, rather than through common law development.
2
In
1998, the Law Commission of England and Wales picked up the gauntlet thus
thrown down, and published a Report which recommended legislation liberal-
ising the rules governing claims by so -called‘‘secondary victims’’.
3
Now the Scot-
tish Law Commission has followed suit, with a Report entitled Damages for
Psychia tric In jury.
4
A good deal of common ground is discernible in the two
Reports.The ultra-liberal position, which would equate psychiatric injury with
physical harm and do awaywith all the special restrictionson recoveryby second-
ary victims, is rejected. Instead, it is proposed that some of those restrictions be
scrapped, and others watered down: the requirement that the injury must have
been induced by ‘‘shock’’ is to go, as are the requirements of proximity in time
and space and direct perception of the accident; the requirement that the pursuer
have had a close tie with a person killed, injured or imperilled by the defender’s
negligence is to be retained, but the relationships presumed to give rise to such a
tie considerably extended. More generally, there is support for a shift from‘‘legal’’
restrictions on recovery towards a more fact-oriented approach, focused (among
other things) on reasonable foreseeability.
5
There are also some signi¢cant variations within this new liberal orthodoxy,
however. These a re both methodological and substantive: as regards method, the
legislative schemes proposed by the two Commissions are very di¡erent, while
n
Worcester College, Oxford. I amgrateful to the Faculty of Law, National University of Singapore,
for providingme with such an excellent environment in which to write this paper.
1SeeegWhit e vChiefConstableof the SouthYorkshire Police[1999]2 AC 455,500 per Lord Steyn,511per
Lord Ho¡mann.
2ibid.
3 Law Com No 249, Liability forPsychiatric Illnes s (1998). See H.Te¡,‘Liability for Psychiatric Il lness:
AdvancingCautiously’ (1998) 61MLR 849.
4 Scot LawCom No 196(2004) (hereafter ‘‘Report’’).The Reportwas preceded by Discussion Paper
No 120, Damages for Psychiatric Injury (2002) (hereafter ‘‘Discussion Paper’’), and includes a draft
Reparationfor Mental Harm (Scotland) Bill (hereafter ‘‘Draft Bill’’). Throughout, I shall refer to
the Scottish Law Commission as ‘‘the SLC’’, and the Law Commission of England and Wales as
‘‘the Law Commission’’.
5 In Australia, reform along these lines has been brought about by the High Court: seeTamevNe w
SouthWales (2002) 211 CLR 317.
rThe Modern LawReview Limited 2005
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2005) 68(6)MLR 983^995
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