Worksheet 11

Rewriting the Requirement for a 'Recognized Psychiatric Injury' in Negligence Claims
Rachael Mulheron
Professor, Department of Law, Queen Mary University of London.
Email: r.p.mulheron@qmul.ac.uk. The author wishes to acknowledge and thank two anonymous
referees for their very helpful and constructive comments on an earlier draft. The usual caveat
applies.
© Oxford University Press 2012
Abstract—The rules governing recovery for negligently inflicted psychiatric injury are among
the most criticized of all of tort law. 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'. This article critiques that longstanding
requirement of English law from two perspectives. First, it is argued that the international
classifications of psychiatric disorders (ICD-10 and DSM-IV) are being misapplied and
misconstrued in the English medico-legal context and that the role (and limitations) of these
classifications are worthy of far greater judicial examination and critical scrutiny than has
typically been the case to date. Secondly, it is contended that the insistence upon a recognized
psychiatric illness, as a threshold requirement, is giving rise to inconsistencies and distortions
in the law and that the requirement is neither legally nor medically supportable in the modern
era. Instead, it is argued that the stage has been reached whereby something lesser than a
recognized psychiatric illness should be sufficient to trigger a compensable injury in law. The
article concludes by suggesting various legal avenues by which to feasibly and robustly 'ring-
fence' the number of potential claims in negligence, should the reform-oriented approach of
this article be adopted.
Keywords: tort, psychology, comparative law
CONSTITUTIONAL LAW
1. Introduction
It is axiomatic in English law that, for the purposes of a negligence claim in which no physical
injury is claimed, mere grief, distress, apprehension, annoyance, worry, sorrow, fear, anxiety,
sleeplessness, outrage, shame, horror or despondency are not compensable. As one court has put
it, '[e]motional
Oxford J Legal Studies (2012) 32 (1): 77 at 78

responses to unpleasant experiences of even the most serious type do not found a claim for
damages'.1
Instead, the claimant must establish—as a minimum threshold requirement— that he or she was
suffering from some 'recognized psychiatric illness' in order to found a claim for negligently
inflicted pure psychiatric illness.2 That 'Traditional Rule' (as it will be described in this article)
has been oft-reiterated by the House of Lords,3 consistently applied by lower courts4 and
endorsed by the English Law Commission.5 The requirement for a claimant to prove a genuine
psychiatric disorder, as opposed to something less (discussed in Section 2), has been judicially
said to operate as a 'powerful control mechanism'6 for these types of claims.
This article seeks to refute that doctrinal mantra in two respects. The first challenge (the subject
of analysis in Section 3) concerns the role of the American Diagnostic and Statistical Manual of
Mental Disorders (DSM-IV-TR)7 and the International Statistical Classification of Mental and
Behavioural Disorders (ICD-10)8 in negligence litigation involving pure psychiatric injury. To
determine the threshold requirement of a recognized psychiatric illness, English courts
historically have referred to what the Court of Appeal has observed to be the 'considerable
degree of international agreement on the classification of mental disorders and their diagnostic
criteria',9which are contained in DSM-IV and ICD-10. However, from both legal and medical
perspectives, the role (and limitations) of these classifications are worthy of far greater judicial
examination and critical scrutiny than has typically been the case to date.
The second challenge to the Traditional Rule (explored in Section 4) concerns the law's
insistence upon a recognized psychiatric illness, as a threshold requirement, in the first place.
The author accepts that the Rule has a long-standing pedigree in English law (and, in the main,
has been accepted to be the legal position in jurisdictions which share close ties with English
negligence law, such as Australia,10 Singapore,11 Canada,12 Ireland,13 Scotland14 and New
Zealand15). However, it will be submitted that the principle is neither legally nor medically
supportable in the modern era. Instead, it is argued that the stage has been reached (given the
advances in psychiatric knowledge and the inconsistencies and distortions in the law to which the
rule is giving rise) whereby something lesser than a recognized psychiatric illness should be
sufficient to trigger a compensable injury in law. Notably, not only has that proposition enjoyed
a measure of judicial16and academic17 support, both in England and elsewhere in Commonwealth
jurisprudence, but the topicality of the issue is highlighted by the fact that, recently, in January
2011, the Ontario Court of Appeal considered the very question of whether or not the threshold
for compensable damage in Canadian law was a recognized psychiatric injury—and called it
(rightly, in this author's opinion) 'a matter of legitimate debate'.18
Thereafter, the article will outline, in Section 5, how the cause of action in negligence and the
medical assessment of what constitutes a mental injury sufficient to warrant compensation will
provide numerous opportunities by which to 'ring-fence' the number of potential claimants, if the
reform-oriented approach of this article should be adopted. The revised approach to pure mental
injury claims which is advocated in this article is not intended, nor is it envisaged, to 'open the
floodgates' to such litigation. Indeed, the comments of

Staughton LJ in the pure psychiatric injury case of Sion v Hampstead HA—that '[t]he common
law has to choose a frontier, between those whose claims succeed and those who fail', that
'[e]ven the resources of insurance companies are finite', and that '[n]or is it in the public interest
that every misfortune in this life, even if caused by the negligence of another, should lead to
litigation and damages'19—must be carefully borne in mind.
The many arbitrary legal rules which govern recovery in the field of negligently inflicted pure
psychiatric injury claims have drawn extensive criticism from a variety of respected sources—
law commissions in England20 and Scotland,21 judicial enquiries,22 academic
commentators,23 English judiciary24 and foreign judiciary.25 Of those numerous legal rules, this
article tackles one which has not been the subject of nearly as much critical examination—that of
the threshold requirement of a 'recognized psychiatric illness'—and suggests that a reform of this
rule is both warranted and workable.
2. The Requirement of a Recognized Psychiatric Illness at Law
A. The 'Traditional Rule'
The locus classicus test of pure psychiatric illness claims in negligence was established by Lord
Bridge in McLoughlin v O'Brian:
the first hurdle which a plaintiff claiming damages of the kind in question must surmount is to
establish that he is suffering, not merely grief, distress or any other normal emotion, but a
positive psychiatric illness.26
Also variously labelled as a 'genuine',27 'recognized',28 or even 'recognizable'29 psychiatric illness,
the test (where satisfied) evidences that some actionable damage has been sustained, for which
the law of negligence may provide a remedy.
While English law has long been willing to recognize and compensate for negligently inflicted
pure psychiatric injury,30 there is no doubt that, as a control mechanism, the Traditional Rule has
precluded a variety of such claims. Take the examples of Mr Reilly, a hospital visitor who was
trapped in a jammed hospital lift for a considerable period of time and who suffered a mere
anxiety disorder;31 Ms Bancroft, a patient who alleged that she was treated for cervical cancer
too conservatively for the first years of the disease and that she suffered 'anxiety and a neurotic
depression' as a result;32 little baby MK, who was wrongfully diagnosed as having sustained an
'inflicted' and 'non-accidental' leg fracture (she suffered from brittle bone disease) and was
separated from her parents for eight months, following which she displayed behavioural
disturbances and reduced development of 'the attachment dynamic' between parents/child;33 and
Ms Younger, who was incorrectly diagnosed with coeliac disease, as a result of which she
claimed that being instructed to follow a gluten-free diet (which the court said '[did] not arise
consequent upon physical injury') meant that she 'suffered a real effect on her enjoyment of life',
amounting to psychological harm.34 In none of these cases did the respective claimants overcome
the threshold of a recognized psychiatric injury, and hence, all failed in their claims.
B. Reasons for the 'Traditional Rule'
To which legal reasoning, precisely, the requirement to prove a recognized psychiatric illness is
attributable, is a source of some considerable judicial division of opinion. At least three separate
reasons have been proffered.

First (and most commonly), the Traditional Rule is judicially said to be 'one of policy',35 (indeed,
'reasons more to do with policy than logic'36), which circumscribes the duty of care which a
defendant may otherwise owe a mentally injured claimant. These policy reasons are both
numerous and varied. As mental injury is, in its nature, 'capable of affecting so wide a range of
people, [there is] a real need for the law to place some limitation upon the extent of admissible
claims'.37 Probably the most important of the policy justifications, the Traditional Rule ring-
fences the potential number of claimants (arising, say, out of a large group of spectators who
witness a horrific accident) and, thereby, reduces the risks of 'indeterminate liability'38 and of
'impos[ing] an unreasonable or disproportionate burden on defendants'.39 In addition, psychiatric
harm is 'less objectively observable than physical injury', and hence, is perceived to be easier to
fake or to exaggerate40 ('difficult to prove or disprove'41). What constitutes mere psychological
harm is said to be 'more captive to shifting medical theories and conflicting expert evidence'42—
especially given that 'medical science has so far been less successful in demonstrating the nature
of psychiatric illness and the processes whereby it is brought about by the psychiatric
route'.43 Also, permitting claimants to sue for mental injury is 'likely to operate as an unconscious
disincentive to rehabilitation'.44 Conversely, allowing recovery for mere anxiety could
actually create or at least prolong that type of 'psychological injury'45 or, as Morland J put it, 'the
existence of the belief to such entitlement might well create the psychological injury which
otherwise would not have occurred'.46 It is also said that proof of a recognized psychiatric injury
'depends greatly upon the credibility of the claimants and their expert witnesses whose advocacy
is often impossible to refute', and hence, '[i]n these kinds of cases there must necessarily be a
healthy measure of judicial scepticism if there is to be a fair adjudication'47 (that 'scepticism'
being evident by permitting only recognized psychiatric illnesses). Furthermore, it is not in the
best interests of society to permit mere distress claims, as '[e]very man and woman is expected to
face
such situations with such fortitude as he or she can muster.'48 Moreover, from a distributive
justice point of view, physical harm is more important than mere psychological injury.49 To
round out this impressively long list of policy reasons, it is said that many of the concerns about
abusive or vexatious claims 'recede, if full force is given to the distinction between emotional
distress and a recognisable psychiatric illness.'50
An alternative justification for the Traditional Rule is that damages for feelings of grief, anxiety,
bereavement, etc, are too remote to be compensable in law. Indeed, in the view of Evans LJ
in Vernon v Bosley (No 1), the Traditional Rule
is not [a] policy-induced rule, recognised in McLoughlin v O'Brian and later decisions, which
limits the scope of the duty of care, but rather a restriction on the heads of damage which may be
recovered by a successful plaintiff. In technical legal terms, damages for 'normal' grief and
suffering may be said to be too remote to be recoverable in law.51
However, this reasoning is, with respect, difficult to follow, for mental harm of whatever
description is surely of a 'type' or 'kind' of injury that is foreseeable under the ordinary principle
in Wagon Mound,52 should a defendant behave negligently. In Alcock, for example, Lord Oliver
stated that 'suffering and shock' arising out of accidents to loved ones was entirely foreseeable,
and that 'if the claim is based, as it must be, on the combination of proximity and foreseeability,
there is certainly no logical reason why a remedy should be denied in such a case', so that any
'limitation must be based upon policy'.53 Lord Ackner observed, in the same case, that '[m]ere
mental suffering, although reasonably foreseeable, if unaccompanied by physical injury, is not a
basis for a claim for damages'54 and then proceeded to discuss the policy issues which limit the
law's willingness to compensate for pure mental harm. Similarly, in the unusual circumstances
of Attia v British Gas plc, where the claimant's anxiety and depression resulted, not from any
apprehension of personal injury, but from witnessing her home burning after the defendant's
allegedly negligent installation of central heating, Bingham LJ (as he then was) was entirely
satisfied that when 'applying the ordinary test of remoteness in tort, … the defendant should
reasonably have contemplated psychiatric damage to the plaintiff as a real, even if unlikely,
result of careless conduct on his part.'55 With respect to the general rule in contract law that
contract-breakers are not liable
for distress caused to innocent parties, Bingham LJ also considered that rule to be 'not …
founded on the assumption that such reactions are not foreseeable, which they surely are or may
be, but on considerations of policy'.56 Hence, in light of these observations, the position put in
this article is that mental harm which falls short of a recognized psychiatric illness may not be
reasonably foreseeable on the particular facts at issue,57 but that, as a type of injury, it is not so
remote in law that it is irrecoverable.
A third reason underpinning the Traditional Rule is that, however distressing anxiety, anger, etc,
may be for the claimant (and however 'damaging' these emotions may be in medical terms), it is
only a recognized psychiatric illness which meets the de minimis threshold of damage which the
law will compensate in negligence.58 As Lord Bingham noted in Watkins v Home Secretary59—a
case concerning alleged misfeasance in public office which, like negligence, requires proof of
damage—any torts which are not actionable per se will require some 'material damage' to be
proven: 'an expression understood to include recognised psychiatric illness, but not distress,
injured feelings, indignation or annoyance.'60 This rationale was applied, for example, in Reilly,
the trapped-in-a-lift case—'here, there was no recognisable psychiatric injury, but only normal
emotion in the face of a most unpleasant experience'; and, moreover, Mr Reilly's emotional
difficulties and fear whilst trapped had some physical consequences (vomiting and sweating)
which were not sufficient either, because the physical manifestations were only slight and not
deemed worthy of compensation.61
As will be considered in Section 5 of the article, this de minimis rule of damage will serve as an
important ring-fence around the scope of recoverable mental injury, should the reforms put
forward in this article ultimately find acceptance in English law.
C. The Tools by Which to Satisfy the 'Traditional Rule'
As stated in the Introduction, either DSM-IV (by the American Psychiatric Association) which
stipulates diagnostic criteria for mental disorders or ICD-10 (by the World Health Organization)
which is a statistical classification of all diseases with a specific section on mental disorders, is
typically used where expert psychiatric evidence is required to prove either the existence, or lack,
of a recognized psychiatric injury. Under each classification, each recognized mental disorder is
given a unique reference code, and as the English Law

Commission noted, they 'represent the two main diagnostic classificatory systems used by the
psychiatric profession'.62
Judicially, it has been remarked that there was 'no suggestion that one was better than the other,
although DSM-IV covers a wider range of symptoms and is more prescriptive than its ICD
counterpart.'63 However, from a psychiatrist's point of view, DSM-IV-TR is far better-developed
than ICD-10,64 because of its exclusive focus on mental health.
The classifications have suffered from various academic criticisms, in the specific context of
negligence litigation. For example, Wood comments that ICD-10 'describes few stress-related
disorders, beyond F43.0: acute stress reaction (which includes disorientation, agitation and
anxiety) and F43.2: adjustment disorder (which includes depressed mood, anxiety, worry and
inability to cope)' and that, in negligence stress-related litigation, 'the number of acceptable
diagnostic categories may actually be somewhat limited'.65 Mayou points out that, in ICD and
DSM, '[a]ll psychiatric diagnoses … are descriptive and somewhat arbitrary. It can be expected
that over time the definitions will be refined in light of epidemiological, aetiological and other
evidence'.66 Kennedy remarks that the process of scientific validation for the ICD-10 and DSM-
IV categorizations does not, of itself, prevent 'legitimate differences … between experienced
experts. … In general, gross differences between psychiatrists can usually be reconciled by a
more detailed assessment of the clinical history over a lifetime, drawing on primary sources
(independent informants, contemporaneous medical, educational or work records)'.67 Case
observes that the legal weight to be given to the classifications is problematical, when courts are
prepared to refer to a diagnosis of pathological grief disorder68 and, yet, the condition has yet to
be accepted in either classification.69 Stannard remarks of the classifications that there is a
tension between fitting psychiatric disorders into distinct categories or ascribing them to some
point along a continuous spectrum, and that while 'modern psychiatry tends to
aspire to the former, as does the law, a lot of the tests used in the diagnosis of psychiatric
disorder are of the latter sort'.70
The following section examines four important difficulties, associated with the use of the
classifications in medico-legal work, and which have been particularly identified in recent case
law.
3. Current Problems and Issues Associated with the Use of ICD-10 and DSM-IV
Undoubtedly, expert psychiatric evidence poses considerable challenges for a court. In Dickie v
Flexcon Glenrothes Ltd,71 for example, one had to have some sympathy for Sheriff Braid, who
commented that '[t]he complexity of psychiatry and the difficulty of diagnosing a condition in
any given case were illustrated by the fact that each of the doctors held a different view as to
what condition the pursuer was suffering from'— expert witness D 'initially thought that the
pursuer had a moderate depressive episode in terms of ICD 10 F32.1, changed his mind and
subsequently diagnosed dysthymia (ICD 10 diagnostic code F34.1)'; expert witness R considered
that the claimant 'had developed a depressive disorder (DSM IV diagnostic code 296.22)'; while
expert witness C diagnosed 'an adjustment disorder (ICD 10 diagnostic code F43.22), the
dominant symptom being mixed anxiety and depressed mood'. The fact that one expert was
'somewhat dismissive' of the utility of the classifications (preferring to use, instead, his own
clinical judgment), and that one witness considered another's terminology to be 'old-fashioned',
were also noted by the Sheriff to be further problems when assessing expert psychiatric
evidence.72 All of this led to the unsurprising comment that 'the diagnosis of psychiatric illness
[is] not an exact science'!73
Quite apart from the clashes of psychiatric opinion which can characterize such litigation,74 four
particular problems associated with the use of the diagnostic classifications in negligence
litigation are explored in this section:75 (1) the
classifications were never designed or intended for legal use, and hence, the caveats and
qualifications that exist in both DSM-IV and ICD-10 are routinely overlooked and rarely
mentioned in judgments; (2) there is continuing uncertainty as to whether the classifications
are a, or the, reference point for a recognized psychiatric illness at law; (3) there is considerable
doubt as to whether judges, and not expert psychiatric witnesses, should (or can) decide whether
the criteria stipulated by the classifications are satisfied; and (4) reliance upon the classifications
can be very problematical, given changing diagnostic criteria which have not, as yet, been
incorporated within the classifications.
Dealing with each in turn:
A. Lack of Cognizance of the Classifications' In-built Caveats

The diagnostic classifications were not intended or approved for legal (forensic) use, but were
designed for research and clinical diagnostic purposes, as DSM-IV itself points out:
When the DSM-IV categories, criteria, and textual descriptions are employed for forensic
purposes, there are significant risks that diagnostic information will be misused or
misunderstood. These dangers arise because of the imperfect fit between the questions of
ultimate concern to the law and the information contained in a clinical diagnosis.76
Law commissions77 and legal commentary78 have variously doubted whether close adherence to
the classifications is justifiable because of the translated application from clinical to medico-legal
use.
A perusal of the chapters in both ICD-10 and DSM-IV-TR shows each identified disorder
described by reference to clinical features which present as diagnostic checklists. As one
psychiatrist has remarked, structured checklists (or a 'checklist approach')—which were
particularly heralded by the introduction of DSM-III in 198079—have 'the attraction
of reliability, in that different clinicians are more likely to record the same clinical features in the
same patient, and therefore come to the same diagnosis … [albeit that] there is no tick box in
which the clinician can record such matters as contextual information,
commonsense, and clinical experience'.80 Apart from this emphasis upon diagnostic reliability,
DSM-III also introduced two important new conditions: 'Post-Traumatic Stress
Disorder'81 (PTSD) and 'Major Depressive Episode'82—also described in a checklist fashion.
However, in two respects, the importance of diagnostic reliability, via checklists, does not easily
translate to the courtroom. For one thing, clinically speaking, an accurate diagnosis (say, whether
a patient has a depressive episode or a mixed anxiety and depressive disorder83) is important
when planning treatment; but from a litigious point of view, the emphasis is different, because
the court is seeking to ascertain whether the claimant has suffered any compensable
damage.84 This limitation which the classifications convey for courtroom purposes was pointed
out in Noble v Owens: 'the precise characterisation of Mr Noble's psychiatric disorder does not
signify. What matters are the symptoms of Mr Noble's condition and the prognosis'.85
Of greater concern, however, is that in developing diagnostic criteria for clinical purposes, the
drafters sought to preclude a mere box-ticking exercise by introducing a number of 'checks and
balances'. These caveats (which exist within both classifications) are a compulsory aspect of
their correct application, especially when relied upon in legal proceedings and, yet (as an
experienced medico-legal expert witness in psychiatry explains) they are seemingly not often
given the attention in court which they deserve.86 Two particular caveats in DSM-IV-TR
(according to this expert) suffice to illustrate the point. For example, malingering (which is
defined in DSM-IV-TR,87and which forms part of the descriptions of various psychiatric
disorders) must be considered and 'ruled out' for PTSD.88 Indeed, malingering should be
'strongly suspected' (according to its definition) when, in combination, the factors of a
'medicolegal context' and 'discrepancy between complaints and objective findings' co-exist89—
hence the need for clinical judgment to always be brought to bear on that question in a
courtroom.90 As a second example of a caveat, all of Axes 1–5 of DSM-IV are relevant to the
claimant's psychiatric diagnosis91—not just
Axis 1 upon which episodes of mental illness are categorized. Suppose, for example, that a
claimant is diagnosed with depression (from Axis 1), following some alleged negligence by the
defendant. Suppose, too, that the claimant is also a typically anxious person, suffers a painful
debilitating injury and has recently lost his job.92 These events would be coded, respectively, on
Axis II (which deals with 'Personality disorders and learning disability', ie, permanent
abnormalities apparent from adolescence or earlier), Axis III (which deals with 'General Medical
Conditions', including physical health problems) and Axis IV (which deals with 'Psychosocial
and Environmental Problems'). To attribute the diagnosis solely to Axis 1 'would tend to over-
emphasise the role of an adverse event, as against background factors coded on the other axes,
[which] could be held to constitute a misuse of the DSM'.93
Some courts are clearly versed in these issues. Recently, for example, in Kerr v Stiell Facilities
Ltd, the court agreed that a psychiatric assessment of a 'positive psychiatric illness' requires a full
consideration of all five axes;94 while in Dickie v Flexcon Glenrothes Ltd, it was said that the
diagnostic classifications 'do not become a box ticking exercise' and that clinical judgment is
always necessary.95 However, there may be some benefit in counselling expert witnesses (by
professional guidelines or other means) to take full cognizance of the caveats which are inherent
in DSM-IV and ICD-10, to enable their better translation from the clinical setting to the
courtroom.
B. Uncertainty as to Whether the Classifications are a, or the, Reference Point for a
Recognized Psychiatric Illness
Some lack of unanimity is evident across judgments as to whether ICD-10 and DSM-IV should
constitute the reference point for proof of a recognizable psychiatric illness or whether a
psychiatrist's expert clinical judgment may be relied upon instead (to the extent that this clinical
judgment may point to the existence of a compensable mental injury which does not satisfy the
classifications).
There is certainly a school of thought which considers that an expert psychiatrist
can deviate from the classifications if clinical judgment so dictates. In a recent 2009 case from
Scotland (where the English Traditional Rule also applies96), Lord Reed stated that the
classifications 'are not necessarily conclusive';97 while earlier, in Fraser v State Hospitals Board
for Scotland, Lord Carloway remarked that to limit liability to illnesses that appear in the
classifications 'might prejudice the position of an employee suffering from a
truly new illness'.98 This prompted one Scottish commentator99 to regard the issue of whether the
classifications were exclusive or not as an 'emerging' one which 'has never been authoritatively
tested' (an observation which remains true to this day). A recent Irish case also considered the
classifications 'probably particularly useful in classifying these ailments for research purposes
[but the psychiatrist] relied on her wealth of experience and clinical diagnostic expertise rather
than formulaic categorisations'.100 In the English CJD Litigation, Morland J did not seem to be
particularly wedded to the diagnostic classifications either, stating that they were only of
'marginal help', and that if a psychiatrist's evidence convinces that the claimant has suffered
'either an acute or a chronic genuine mental condition, it matters not what label is put on the
condition'.101Similarly, in a case in which a young girl was involved in a cruise ship disaster and
suffered PTSD, Wright J remarked that 'DSM-3-R may be regarded as a useful guide to
diagnosis, provided that it is not construed as though it were a statute'.102
On the other hand, in the 2008 case of Hussain v Chief Constable of West Mercia Constabulary,
Stanley Burnton LJ described a recognized psychiatric illness as 'one which has been recognised
by the psychiatric profession. In general, they are illnesses that are within the ICD'.103 In
addition, one experienced medico-legal expert witness has opined104 that, while a court or
tribunal might have once accepted the opinion of a psychiatrist which was substantially based on
personal clinical judgment and experience and 'potentially idiosyncratic definitions' of
psychiatric injury, this is no longer the case, particularly since the Meadow case.105
Interestingly, when reviewing the Australian law of negligence in 2003, the Ipp Committee
proposed that adherence to ICD-10 and DSM-IV be replaced altogether by a set of guidelines of
what constituted a psychiatric injury, which would be put together by a panel of experts and for
specific use in litigious contexts.106 On this point, however, the English Law Commission had
earlier disagreed, regarding any statutory definition of what amounted to a recognizable
psychiatric illness (whether by reference to the classifications themselves, or by reference to a
list of specified illnesses for which compensation could be claimed) as 'fraught with difficulty'
and 'not practicable'.107
One case which illustrates the sometimes tenuous link between the diagnostic classifications and
the courtroom is the seminal, and controversial,108 decision of Page v Smith.109 To recap the
well-known facts, Mr Page was involved in a relatively minor car accident, due to the negligent
driving of Mr Smith who turned right immediately into his path. Mr Page's previous myalgic
encephalomyelitis (ME),110 which he had suffered for some 20 years, became chronic and
permanent. Although that type of injury was deemed to be unforeseeable, recovery was
permitted by the House of Lords (by majority) on the basis that some physical injury resulting
from the accident was clearly foreseeable.111 Significantly, for the issue under discussion in this
section of the article, ME was (and is) not coded in DSM-IV at all, and was (and is) accorded the
briefest of references in ICD-10.112 Furthermore, not one of the 10 separate judgments in this
case, from trial to House of Lords, referred to the diagnostic classifications of ICD or DSM
whatsoever, when describing Mr Page's injury.113 It is ironic that the leading English case on
primary victim recovery in negligently inflicted psychiatric injury law was predicated upon an
injury which had such an uncertain status under the very diagnostic classifications which cases
such as Hussain now suggest to be the benchmark for proof of actionable mental injury.
Nevertheless, if the reforms suggested in this article are adopted, then departures from the
diagnostic classifications should be endorsed, so that a court asks, not whether the claimant has
suffered a psychiatric illness identified in ICD-10 or DSM-IV, but whether the claimant has
suffered some abnormal psychological reaction, as opposed to ordinary human emotions of grief,
distress, etc, to constitute actionable damage. In that regard, this author fully endorses another
commentator's view that '[t]he question is … (or should be), whether [the claimant's condition] is
sufficiently … different from “mere grief or distress” to merit compensation'.114
C. The Respective Roles of Judge and Psychiatrist Expert Witness
On the one hand, judicial deference to psychiatrist witnesses, when assessing the question of a
recognizable psychiatric injury, is clearly visible in some negligence suits. In the case of baby
MK who was negligently separated from her parents following allegations of abuse, Simon J
stated: '[n]or, in my view, is this an area of law in which the court should infer that there has
been an injury where experts in the field do not.'115 In White, Lord Steyn was equally as adamant:
'[w]here the line is to be drawn is a matter for expert psychiatric evidence'116—a view with which
the English Law Commission117 and leading academic commentary118 have concurred.
On the other hand, it has been judicially suggested that the DSM-IV criteria are expressed in
sufficiently plain factual language to permit a judge to apply those criteria to the facts and decide
whether the pre-requisite psychiatric illness was suffered. The point has particularly arisen in
respect of the disorder of pathological gambling, both in England119 and in Australia,120 where
both courts were prepared to consider the criteria themselves in order to determine whether the
five prerequisites for 'pathological gambling' were met121—as a 'common sense application of the
DSM-IV criteria'.122 The approach of a court applying the diagnostic criteria to the facts at hand
was also evident in Vernon v Bosley (No 1), regarding alleged PTSD, where Evans LJ stated: 'its
symptoms … are behavioural: conduct or speech which is regarded as “inappropriate”, meaning,
as I understand it, not to be expected from a “normal” person. … the starting point for this
particular inquiry is not the opinions of expert witnesses but the factual evidence of what the
plaintiff said and did—how he behaved—during the periods in question'.123 In the same vein, the
Ipp Committee doubted whether the task was one for an entirely medical judgment: '[i]t often
seems to be assumed that whether someone is suffering from a mental illness is a purely medical
question. However, the concept of illness is, to some extent, a social construction, and the
catalogue of mental illnesses is not closed'.124
These contrasting legal viewpoints bring to the fore the respective roles of the judge and the
expert witness in the courtroom, insofar as the diagnostic classifications are concerned.

The medical opinion on this issue, however, prefers the view (perhaps unsurprisingly) that
diagnosis is a matter of clinical judgment, which can be rendered deceptively and misleadingly
straightforward because of the checklist fashion and non-technical language in which the various
mental disorders are described in ICD-10 and DSM-IV. For one thing, the authors of DSM-IV
were clearly alive to the point, stating in the Introduction that: 'It is important that DSM-IV not
be applied mechanically by untrained individuals. The specific diagnostic criteria included in
DSM-IV are meant to serve as guidelines to be informed by clinical judgment and are not meant
to be used in a cookbook fashion', and that 'additional information is usually required beyond
that contained in the DSM-IV diagnosis. This might include information about the individual's
functional impairments and how these impairments affect the particular abilities in
question.'125 Additionally, one psychiatrist experienced in giving evidence in medico-legal cases
gives the example of a 'depressive episode' from ICD-10 which is referenced according to a
number of symptoms ('marked tiredness', 'appetite diminished', etc126)—while the symptoms are
'readily understandable by the layman, making the exercise [of diagnosis] at least technically
feasible', that avenue overlooks the clinical judgment, skill and training and daily experience of
clinical practice, which the psychiatrist brings to bear on the issue of diagnosis.127 Furthermore,
this clinician makes the further point that, given that an expert is required, by the Civil Procedure
Rules,128 to provide a 'true and complete professional opinion', a 'true' opinion might adhere
closely to the checklist of symptoms, but a 'complete' opinion necessarily requires a more
'holistic' appreciation of the claimant, gained from practical clinical judgment and experience.129
In light of the preceding contrasting views, it is submitted that the expert witness's application of
the criteria contained in the diagnostic classifications to the claimant's circumstances, rather than
a judge's factual enquiry, is the preferable 'starting-point' (to adopt Evans LJ's words, but with
respect, to contradict his Lordship's views in Vernon v Bosley), when determining whether a
recognized psychiatric injury has been sustained. However, where expert psychiatric
opinion differsas to whether or not the claimant has suffered such an injury, then the correct
diagnosis of the claimant's condition will properly be an 'essential issue for the court to
resolve'.130
D. Changing Diagnostic Criteria which are Not Reflected in the Classifications
As described in 2008 in Murtagh v MOD (Ireland),131 psychiatric diagnoses have responded to
social events of the day. WWI 'saw the addition of the diagnosis of “shell shock” and “battle
fatigue” to the index of psychiatric illnesses', with symptoms of irritability, etc; at the time of the
Korean War, DSM-I (published 1952) included the disorder, 'gross stress reaction'; by the time
of DSM-II (1968), when no wars were on foot, that disorder was deleted from the manual; and
the recognition of PTSD emerged in DSM-III, 'largely from studies carried out on returning
veterans of the Vietnam War'.132
One criterion for a diagnosis of PTSD is the 'exposure to a traumatic stressor', according to the
diagnostic checklist in DSM-IV-R.133 ICD-10's definition provides similarly: '[t]he patient must
have been exposed to a stressful event or situation (either short-or long-lasting) of exceptionally
threatening or catastrophic nature, which would be likely to cause pervasive distress in almost
anyone'.134 However, for some time, epidemiological studies (for example, a 1996 study in the
Detroit area135) have strongly suggested that factors other than a traumatic stressor play a role in
the genesis of this psychiatric injury.136 The Detroit study revealed that only a fraction of the
sample population had been diagnosed with PTSD (7.8%), and yet, a very large percentage of the
same population (89%) had experienced at least one defined traumatic event. In addition, one of
the physicians who propounded the criteria for PTSD admitted, in 2008, that traumatic stressors
were 'neither necessary nor sufficient to produce PTSD', and that 'pre-incident vulnerability
factors (eg, psychiatric history) and post-incident social support contribute more to post-trauma
morbidity than does the magnitude of the presumed aetiological trauma'.137
Indeed, well prior to these comments, the problematical nature of requiring a claimant to adhere
strictly to the diagnostic criteria for PTSD had already

been judicially adverted to in Vernon v Bosley.138 For later cases, such as B v Murray,139 in which
the claimants failed to prove PTSD because of the non-occurrence of some life-threatening
event, the revised thinking of what amounts to a correct psychiatric diagnosis of PTSD poses
interesting questions as to whether such claimants would be able to surmount the threshold of a
'recognized psychiatric illness' in modern parlance. In any event, the re-assessment of PTSD
means that the descriptors and criteria in DSM-IV-TR have been somewhat overtaken by current
research and re-thinking—and it serves as an example of the problem caused by the
classifications containing potentially out-of-date medical science, which was referred to by the
English Law Commission.140This must represent another caveat upon the strict application of the
classifications in the courtroom.
It is apparent from the foregoing examination that, for four separate reasons, the use of the
official diagnostic classifications of DSM-IV-TR and ICD-10 in the medico-legal context has
given rise to some substantial medical, legal and practical dilemmas. If these diagnostic
classifications are to continue to receive close attention in the courtroom, then a more consistent
answer to the four conundrums posed in this Section would be advisable, for the benefit of
litigants, their lawyers and their experts. In particular, it has been suggested that the inbuilt
caveats in the classifications ought to be given due and careful attention; that the classifications
should not necessarily be treated as the sole diagnostic tool to assess whether an actionable
injury has occurred (particularly evident when changing medical diagnostics may not be
incorporated within the classifications rapidly enough for courtroom purposes) and that the
expert, and not the judge, should be the 'starting point' for determining whether an actionable
mental injury has occurred.
However, an equally important question is whether the threshold of a 'recognized psychiatric
illness' should be legally required at all—or whether some injury of lesser magnitude should
suffice for negligence-based actions, thereby rendering judicial reliance upon the classifications
far less significant. Again, a measured balance of both legal and psychiatric perspectives can
usefully be brought to bear on that question, as examined in the next section.

4. Should Something Less than a 'Recognized Psychiatric Illness' Suffice in English Law?
The position put in the article is that adherence to the pre-requisite of a 'recognized psychiatric
illness' creates inconsistencies, distortions and unfairness in the law's treatment of negligence-
related mental injury cases and should be abandoned in favour of a revised assessment of what
constitutes actionable damage in such cases. In this Section, various legal and medical
difficulties created by the law's insistence upon a recognized psychiatric injury are explored.
A. Judicial Support for a Lesser Degree of Mental Harm (Falling Short of a Recognized
Psychiatric Injury)
Most relevantly for English law's purposes, in Hussain v Chief Constable of West Mercia
Constabulary,141 there were contrasting viewpoints put forth by the Court of Appeal on the
subject of what the classical test in McLoughlin v O'Brian (reproduced previously142) actually
meant. As already noted,143 Stanley Burnton LJ remarked, as the traditional understanding of
Lord Bridge's statement, that '[a] recognised psychiatric illness is one which has been recognised
by the psychiatric profession' and cited ICD-10 in support thereof.144 Maurice Kay LJ, however,
was far more cautious. Not only did his Lordship use the terminology of a 'grievous non-physical
reaction' to describe the threshold which could give rise to a claim for pure mental injury arising
from misfeasance, but also pointed out that, in Lord Bingham's description of what amounts to
'material damage' in Watkins145 (another alleged misfeasance case), an inclusive definition was
used: 'material damage includes recognized psychiatric illness, not that it is limited to it as the
only allowable type of non-physical injury'.146 More crucially for present purposes, though, the
following dictum by Maurice Kay LJ was squarely directed towards negligence:
[i]t seems to me that what Lord Bridge was concerned to discount in McLoughlin v O'Brien was
'normal human emotions', not significantly abnormal manifestations of non-physical sequelae. If
my approach does not live easily with the established approach in cases of negligence resulting
in personal injury, I would strive to treat misfeasance in public office exceptionally.147
This is by no means an isolated incident of judicial questioning as to whether the law has set too
high a threshold for actionable damage in pure psychiatric injury negligence claims. Notably, in
American common law, the tort of negligent infliction of emotional distress requires 'mental
anguish', which can comprise a spectrum of emotional disturbances, from a recognizable
psychiatric injury, to lesser emotions of, say, grief, embarrassment or anger.148 The less onerous
threshold of damage required for the American cause of action has been recognized by law
commission studies,149 by commentators150 and by judges.151 However, Commonwealth law is of
more interest to English law in this area, given the 'inconsistent and confusing' treatment of the
American tort across different states;152 and given the fact that, 'in the United States, the use of
the term, “emotional distress” may or may not indicate that recovery is being permitted for
something less than a recognizable psychiatric illness'.153 Furthermore, the explicit approval of
the English Traditional Rule in many Commonwealth jurisdictions154 renders any departures
from that position there of real significance.
In a number of such jurisdictions, the position has occasionally been put, by senior appellate
judges, that something less than a recognized psychiatric injury should suffice, in cases of
negligently inflicted mental harm. For example, in the New Zealand medical negligence claim
of J&P Van Soest v Residual Health Management Unit, Thomas J preferred the view that even
mental sorrow and distress suffered by grieving relatives ought to be compensable, provided that
the 'mental suffering is of the order, or approaching the order, of a psychiatric illness and
therefore plainly outside the range of ordinary human experience'.155 (The majority in Van
Soest did not agree, however, on the bases that to assess what degree of suffering would fall
outside 'ordinary human experience' would make the test unworkable and that there could be
floodgates
problems 'to throw the courts open to everyone caused distress'156.) In Scotland too, Lord Prosser
doubted whether the bright dividing line drawn by Lord Bridge in McLoughlin v O'Brian was
desirable: 'between normal emotions and positive psychiatric illness, there will be many types of
suffering, and indeed consequences which are more or less disabling, which Lord Bridge does
not mention'.157 And in Australia, in Tame v New South Wales, one member of the High Court
(Hayne J) remarked that: '[l]ittle explicit attention has been given to identifying the basis upon
which the distinction between psychiatric injury and mental distress is to be made, beyond noting
that it is only the former which is to be compensable', but that the distinction (and the
justifications said to favour it) 'should not be ignored' in the judicial discussion of negligently
inflicted mental injury.158
It is in Canadian jurisprudence, however, that a more liberal view about permitting anxiety-based
damages has been most commonly and cogently suggested. In Mustapha v Culligan of Canada
Ltd,159 the Supreme Court of Canada considered a case in which the claimant suffered a major
and debilitating depressive disorder—a recognized psychiatric injury—upon witnessing dead
flies in an unopened bottle of drinking water supplied by Culligan. Mr Mustapha became
obsessed with the 'revolting implications' which the incident could have had for his family's
health. The claim ultimately failed because this 'highly unusual' injury would not have been
objectively foreseeable in one of ordinary fortitude.160 Of interest, however, was that McLachlin
CJ (writing for the Court) seemingly indicated, in dictum, that something other than the
Traditional Rule would suffice:
[p]ersonal injury at law connotes serious trauma or illness. The law does not recognize upset,
disgust, anxiety, agitation, or other mental states that fall short of injury. I would not purport to
define compensable injury exhaustively, except to say that it must be serious and prolonged and
rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if
sometimes reluctantly, accept. The need to accept such upsets rather than seek redress in tort is
what I take the Court of Appeal to be expressing in its quote from Vanek v Great Atlantic &
Pacific Co. of Canada: 'Life goes on'. Quite simply, minor and transient upsets do not constitute
personal injury, and hence do not amount to damage.161
Apart from stating that Mr Mustapha indeed suffered from a psychiatric illness which therefore
'qualifies as a personal injury at law',162 her Honour did not explicitly state that such an injury
was required by law, where negligently inflicted pure psychiatric injury is claimed.
McLachlin CJ's observations are significant, because a body of lower-level Canadian
jurisprudence has favoured a departure from the Traditional Rule from time to time.163 In the
Ontario decision of Vanek v Great Atlantic & Pacific Co of Canada,164 the claimant parents
developed a 'chronic anxiety' about the prospect of their daughter developing long-term
consequences from ingesting contaminated grape juice, which fell short of a psychiatric illness.
That was held to be compensable at trial, on the basis that a less serious level of injury simply
warranted a lesser quantum of damages. That particular proposition had been put forward in the
earlier Ontario case of Mason v Westside Cemeteries Ltd,165 in which Molloy J remarked that, if
damages could be awarded for 'physical scratches and bruises of a minor nature', then so too,
damages for 'deep emotional distress' which fell short of a psychiatric condition should be
permitted: '[t]rivial physical injury attracts trivial damages. It would seem logical to deal with
trivial emotional injury on the same basis, rather than by denying the claim
altogether.'166 The Vanek trial court considered that view as having 'unassailable logic and good
sense'.167 (However, on appeal, the Vanek claimants lost, for reasons remarkably similar to Mr
Mustapha—it was not reasonably foreseeable that they would suffer any psychiatric damage
from the ingestion and the Vanek appeal court specifically refused to reconsider whether anxiety-
based damages should be sufficient, merely noting that the Traditional Rule had given rise to
judicial and academic criticism.168) Furthermore, in Mason, Molloy J considered that mere
emotional distress and pain is even more foreseeable from a negligent act than is psychiatric
illness, and hence, is worthy of compensation in the eyes of the law, even if that distress 'does
not degenerate emotionally to the point of actual psychiatric illness'.169
Against those more liberal sentiments, however, are several lower court
decisions170 since Mustapha, which have concluded (or have applied the principle) that,
notwithstanding the actual words used by McLachlin CJ, the Supreme Court did not change (nor
intend to change) the threshold of actionable mental harm from that of a recognizable psychiatric
injury. This view was most recently restated, in January 2011, by the Ontario Court of Appeal
in Healey v Lakeridge Health Corp.171 Academic commentators have remarked upon both the
confusing terminology and the uncertainty thereby created in Mustapha itself,172 and the wider
ambit of actionable damage which Canadian law has sometimes heralded.173
Taken together, these sporadic statements from Commonwealth jurisprudence evidence a distinct
lack of enthusiasm, on the part of some judges, for the Traditional Rule and for the clear
demarcation which it espouses.
In summary, the suggestion by Maurice Kay LJ—that Lord Bridge's test in McLoughlin has
judicially shifted from that which his Lordship originally intended—is (it is submitted) correct.
Furthermore, a realignment of modern English law on pure mental injury claims, to allow the
types of claims identified by Maurice Kay LJ as 'grievous non-physical injury', would help to
reconcile the conundrums identified in the following sections.
B. The Common Law's Differentiation does not Mean that there is One, Medically Speaking
Recently, in Dickie v Flexcon Glenrothes Ltd, arising from a claim (ultimately unsuccessful) for
mental harm under the Scottish Protection from Harassment Act 1997, the claimant argued that:
'simply because anxiety and psychiatric injury were treated differently by the common law, it did
not mean to say that they were, in fact, different types of injury'.174 Having listened to the
psychiatric evidence, the court agreed:
anxiety and psychiatric harm are both, in my view, conditions with a similar aetiology, both
sharing similar symptoms but with one being more serious than the other. … it seems quite
artificial to attempt to draw a borderline between anxiety and psychiatric illness caused by
harassment. If the victim's emotional reaction to the harassment is of such a degree as to amount
to psychiatric illness there is no logic to treating it
differently from anxiety. … the victim of harassment is not entitled to damages for a label, but
for what he has actually suffered.175
In Dickie, reference was also made to the fact that, for the purposes of certain statutory claims,
some English judges had not been prepared to draw a distinction between injury to feelings and
depression either—for the reason that these were not different kinds of damage.176 Earlier law
commission studies and courts177 have concluded too, after receiving psychiatric evidence, that
'drawing the line between a recognised psychiatric injury and mere stress or anxiety may not be
easy'.178 Indeed, to pretend otherwise confers an artificiality on the law which medical science
does not support.
Notably, it is not only the difficult line-drawing exercise as to the degree of mental harm which
gives the impression of legal inconsistency—the length of time for which the claimant may suffer
the mental harm can also lead to quite disparate legal outcomes. In Ward v Leeds Teaching
Hospitals NHS Trust, for example, the accepted psychiatric evidence was that the claimant
mother had suffered 'a severe and prolonged bereavement reaction' following the death of her
daughter (arising out of a wisdom tooth extraction). That claimant failed, in circumstances where
the court cast doubt on whether she had suffered a recognized psychiatric illness worthy of
compensation.179 On the other hand, in Tredget and Tredget v Bexley HA (regarding a birth
which was conducted amid chaos and pandemonium in the delivery theatre and where the baby
boy died of his injuries when two days old), both parents were permitted to recover for what the
psychiatric evidence described as 'pathological unresolved mourning'.180 This prolonged reaction
was, in the eyes of the law, seemingly more deserving of compensation than the 'prolonged
bereavement reaction' of Mrs Ward. Indeed, some English case law, subsequent to McLoughlin v
O'Brian, has referred to the non-recoverability of damages for 'transient' or 'transitory' mental
harm181—yet not all compensable recognized psychiatric illnesses for which English claimants
have recovered damages are permanent medical conditions. In this regard, this author
respectfully disagrees with Hayne J in Tame v New South Wales who remarked that '[t]o point to
cases on either side
of the line [mental distress versus psychiatric injury] and remark on how close they are to the
boundary, and thus to each other, is seldom a valid criticism of the boundary that is
drawn'.182(His Honour preferred to concentrate upon how large that middle-of-the-spectrum band
of cases may be, when considering whether to revise the Traditional Rule, a decision which was
certainly not taken, for the purposes of Australian law, in Tame.) To the contrary of Hayne J's
sentiments, it is submitted that whenever the law turns its face against an aggrieved Mrs Ward
and in favour of a compensated Mr Tredget, in the mid-spectrum of 'damaged claimants', the law
is not sufficiently coherent and defensible and deserves closer scrutiny.
Of course, it is not the contention of this article that all those who suffer transient or trivial
mental distress should recover at law. However, there are undoubtedly claimants who have
suffered from (in Maurice Kay LJ's words183) some 'grievous non-physical reaction', who ought
to be considered as having suffered from some actionable damage at law. This author thoroughly
endorses the views of other commentators184 that to insist upon a recognized psychiatric injury
'may exclude some deserving claimants'. Furthermore, medical science is sufficiently developed
to assist the court to decide whether the necessary threshold of 'mental injury' has been met. As
Thomas J said in Van Soest, '[d]octors can speak with a great deal of precision without needing
to address the question whether the mental suffering is a recognisable psychiatric illness or
not'.185
C. Forcing a Search for Actionable Physical Injury (on Which to Graft a Lesser Mental
Harm)
One tactic to avoid the requirement for a recognized psychiatric injury is to prove some
actionable physical injury (or, to use the phraseology of Watkins,186 some 'material damage' of a
physical type), which then enables the claimant to recover damages for a psychological injury
because it is, or is ancillary to, that physical injury. Not only does this tactic obviate the need to
bring a claim for pure psychiatric injury, but it would also render engagement with the arbitrary
rules governing primary–versus–secondary–victim recovery both unnecessary and incorrect.
There are three possible ways in which proof of some physical injury may permit a route to the
recovery of a lesser type of mental harm, such as distress, worry, etc.
First, the psychological disturbance may, medically-speaking, arise directly from a physical
impairment that is, itself, non-observable (say, a disturbance in

the claimant's central nervous system, treatable by medication), but which physical impairment
constitutes 'material damage'. Lord Hope provided this particular example in a different
context187and said that 'a psychiatric illness of that kind is a physical injury'—albeit that the field
of psychiatry was 'still in the process of development … [and] not yet fully understood', and that
'the distinction between … a mental injury and a physical injury is unclear, and the extent to
which it can be maintained is debatable'.188 If some psychological disorder of the mind may,
indeed, be proven to be a physical impairment or affliction, then the law has always been more
sympathetic towards physical damage claims.
On that score, it is of real legal interest to note that there is considerable doubt as to whether Mr
Page's affliction with myalgic encephalomyelitis (ME), in the seminal case of Page v Smith, was
actually physical rather than psychiatric.189 The evidence of one expert psychiatrist at trial was
that ME was a physical disturbance: 'the symptoms arise from cerebral disturbance and recent
research shows a particular pattern of neuroendocrine disturbance that is associated with a subtle
cerebral dysfunction … CFS [or ME] exists as a symptomatic disease associated with cerebral
dysfunction and accompanied by frequent signs of psychological stress'.190 The trial judge, Otton
J, accepted this particular evidence 'in broad terms'191 and regarded ME as a 'condition, disease or
illness'192 which could result from a viral infection, emotional stress or trauma of an accident and
which manifested with serious and debilitating physical symptoms (viz, fatigue, headache and
exhaustion). Thereafter, however, the Court of Appeal193 and the House of Lords194 consistently
dealt with the case on the basis that Mr Page had suffered a psychiatric injury— and various
House of Lords judgments since have confidently referred to Mr Page's injury as being
psychiatric in nature.195 However, Lord Walker's quizzical comment, in Corr v IBC Vehicles
Ltd,196 that ME, 'although viral in origin, seems to have been treated [in Page v Smith] as on a
par with what used
to be called “nervous shock” ' together with some academic commentary197 which queries
whether the injury at issue in Page v Smith was right to be considered as a physical or psychiatric
condition, calls into question the way in which Page v Smith legally proceeded. Arguably,
categorizing Mr Page's injury as psychiatric was prelude to an incorrect and unnecessary
application of the primary/secondary victim dichotomy.
Secondly, the claimant may have suffered from some 'material damage' in the sense that the
psychological damage or reaction translated into some actionable patent physical injury or
damage. As Lord Wilberforce stated, obiter, in McLoughlin v O'Brian, 'it is now accepted by
medical science that recognisable and severe physical damage to the human body and system
may be caused by the impact, through the senses, of external events on the mind'.198 In Mustapha
v Culligan of Canada Ltd too, the Supreme Court of Canada was careful to distinguish
'psychological disturbance that rises to the level of personal injury' from other mere
'psychological upset'.199 If some physical injury can be proven, then the claimant can recover for
that injury, at the very least.
Take the hypothetical example given in Page v Smith of 'a heart attack or a miscarriage produced
by shock. … the end product is a physical condition although it has been brought about by a
process which is not demonstrably a physical one but lies in the mental or nervous system'.200 As
real-life examples, in Morris v KLM Royal Dutch Airlines,201 the claimant's peptic ulcer disorder
was brought about by a psychological disturbance and in Simmons v British Steel plc,202 extreme
anger on the employee's part arising from a work accident led to an exacerbation of a pre-
existing skin condition (and, ultimately, a change in personality which led to a severe depressive
illness).203 On the other hand, in Hussain, where the claimant argued that he had some physical
symptoms of anxiety (viz, discomfort and numbness in his left arm and leg when 'under stress')
which could amount to sufficient injury to constitute
actionable damage,204 the Court of Appeal unanimously held that these physical manifestations
were simply not significant enough.205 They did not surmount the de minimis threshold to be
recoverable at law.
Thirdly, if a defendant's act or omission causes some physical injury to a claimant, then the cause
of action is complete upon proof of the immediate physical damage, and damages are
recoverable for any consequential anxiety, worry, etc, associated with that physical damage—
that component simply forms one of the heads of non-pecuniary loss (ie, pain, suffering and loss
of amenity206).As the House of Lords has reiterated, something less than a recognized psychiatric
illness will suffice, if it is merely a concomitant of physical injury.207 Of course, in this way,
proof of some physical damage acts as a boundary rope around the possible number of anxiety-
based claims.208As a result, those claimants 'fortunate' enough to have suffered some physical
injury can recover for 'parasitic' anxiety-based damages (falling well short of a recognizable
psychiatric illness), whereas those claimants who suffer no physical injury cannot recover
anything for debilitating mental distress, unless they can prove a genuine psychiatric illness and
thereby bring a free-standing claim for pure psychiatric illness—however arbitrary or unfair that
dividing line might appear.209
This point was one of the central features of the Pleural Plaques litigation,210 in which 9 of the
10 test claimants had not suffered any recognized psychiatric illness as a result of their
developing pleural plaques from wrongful exposure to asbestos. However, they had each
suffered a physiological change, brought about by the presence of symptomless pleural plaques
in their lungs, and anxiety. The important question for those nine claimants was whether that
physiological change amounted to physical damage, to which anxiety damages could 'tag' (and
they had a line of authority which appeared to support that proposition211). Ultimately, however,
the pleural plaques were held
(unanimously by the House of Lords212 and by a majority of the Court of Appeal below213) not to
constitute physical damage and the parasitic anxiety-based damages claims of those claimants
fell away. Although a controversial decision, the leading English commentary on damages
concluded that it was 'rightly held, departing from two decades of first instance decisions'.214
Interestingly, under the so-called 'physical impact rule' which applies in some US state
jurisdictions,215 where proof of some physical damage is a precursor to recovery of mental harm
for negligently inflicted emotional distress, enterprising claimants have sought to allege
somewhat unusual physical injuries. For example, in Brafford v Susquehanna Corp,216 evidence
of chromosomal damage ('present, permanent, and irreparable genetic and chromosomal damage
as a result of their exposure to the radiation emitted from the mill tailings') was held to raise a
question of fact as to whether it could be a 'a definite, present physical injury'. In another case,
the District Court of Minnesota remarked that 'the human body is a complex organism',217 and,
by implication, it was a similarly complex question as to what constituted an 'injury' to it. Other
US courts, however, have strongly resisted the notion that physiological change can amount to
damage,218 while academic commentary219 has questioned whether, say, sub-cellular
damage should constitute damage, in an era when low doses of chemicals found in common
products (eg, cosmetics, food), which are presently considered safe, may, in fact, pose significant
dangers to future human health. In Canada too, definitions of an actionable physical injury have
sometimes been unusual, eg, in Fakhri v Alfalfa's Canada Inc, the court suggested, without
deciding, that an immunization serum injection may constitute a 'physical disturbance' which
could attract damages for anxiety, without needing to prove a psychiatric disorder;220 and in Ring
v Canada (AG), where mere mental distress was claimed, the
court held that there was a compensable physical harm at issue—'the absorption of toxic
chemicals, which may cause lymphomas in the future'.221
To date, English authority does not support either symptomless physiological change to the
human body or the inhalation, ingestion or absorption of chemical compounds, as constituting
'physical injury' upon which a claim for anxiety-based damages could be grafted. Nevertheless,
the legal mantra of requiring a claimant to prove either physical injury or a recognized
psychiatric illness does rather force the issue of what constitutes 'physical damage' to the fore,
when a mentally distressed claimant falls short of proving the threshold psychiatric injury.
Assuming that adequately funded claimants can be found to test the point, litigation of the type
that has been tested in North America may become a feature of the future English negligence
landscape.
In summary, when judicial support for a lesser degree of mental harm (canvassed in sub-section
A) is coupled with the further suggestions that any bright-line division between mere
psychological harm and compensable psychiatric injury will give rise
to medical and legal distortions and artificiality (discussed in sub-sections B and C,
respectively), a more plausible solution is to allow the lower threshold of psychological mental
harm for all cases in which the claimant is attempting to prove that s/he suffered a mental injury
arising from breach of a duty of care—but to have close regard to the preclusive measures
described in the following Section.
5. How Claims for Lesser Mental Harm might be Ring-Fenced
If English law were to permit recovery for negligently inflicted 'grievous mental injury' which
falls short of a recognized psychiatric injury (to paraphrase Maurice Kay LJ), then a 'powerful
control mechanism' would be removed, according to McLoughlin v O'Brian. How, then, might
such claims be feasibly ring-fenced? In this author's view, the prospects of floodgates of
litigation, should the Traditional Rule be revised, is overstated and highly unlikely, for the
following three reasons.
First, by no means does it follow that the legal possibility of recovering for a lower threshold of
mental injury connotes any automatic duty of care on the defendant's part to prevent that
injury.222 For one thing, except in the case of Page v Smith-type claims (where any pre-existing
vulnerability of the claimant to mental harm is irrelevant, the defendant must take that type of
victim as he finds him223), the normal common law rule of reasonable foreseeability applies,
ie, whether it was reasonably foreseeable (ie a 'real risk',224 more than a mere possibility) that a
person of ordinary or normal fortitude would have suffered psychiatric injury as the claimant did
in the same circumstances. This objective test places some restriction upon recovery for, as Lord
Porter stated in Bourhill v Young, a negligent defendant is entitled to assume that 'the ordinary
frequenter of the streets' (or, indeed, in any other environment) has sufficient fortitude to endure
upsetting incidents and is not liable 'towards one who does not possess the customary
phlegm'.225The normal fortitude rule has most utility, in English law, in ring-fencing secondary
victim negligence claims226 (and arguably should, in this author's view, apply to primary
victim Page v Smith-type claims too227). Where the normal fortitude rule governs, then if the
claimant's mental harm was so idiosyncratic and unusual that it was highly unlikely to occur (as
in Mustapha, Vanekand other notable cases228), the claimant will fail—albeit that if the
harm was objectively foreseeable in a person of normal fortitude, then it matters not whether the
claimant had an 'eggshell skull personality', for s/he will be able to recover damages for the full
extent of his/her psychiatric injury.229 As the Mustapha Supreme Court explained, were the law
of negligence to be based upon perfect foresight, then a defendant should be liable for a
claimant's unusual or extreme mental reactions to negligent events—but the law is based
upon reasonable foresight only, and hence, the defendant can safely disregard a claimant of
abnormal sensibilities, if a person of normal fortitude would not have suffered a mental injury in
those same circumstances.230
Quite apart from the requisite foreseeability of harm, the parties may not be proximate enough to
warrant legal relations being imposed, an especial difficulty for secondary victims—and however
frequently and vehemently the 'Alcock control mechanisms'231 applicable to secondary victims
may be
criticized,232 English law shows no signs of abandoning them. Moreover, policy reasons may
preclude a duty of care being owed by a negligent defendant to psychiatrically-injured claimants,
as the claimant police officers who attended the Hillsborough disaster discovered.233 Hence,
proof of a duty of care is by no means assured (and this is quite apart from the considerable
difficulties which may arise for claimants in proving the remainder of the cause of action in
negligence234).
Secondly, as Canadian jurisprudence has noted,235 lesser damage equates to lesser damages—
albeit that the claimant must surmount the de minimis threshold of damage. The Pleural
Plaqueslitigation reiterated this principle in the context of physical damage (ie, scarring is not
sufficient, on its own, to constitute an 'injury' of a physical type). As Lord Hoffmann noted,
'whether an injury is sufficiently serious to found a claim for compensation, or too trivial to
justify a remedy, is a question of degree. Because people do not often go to the trouble of
bringing actions to recover damages for trivial injuries, the question of how trivial is trivial has
seldom arisen directly.'236Nevertheless, the principle that pure psychological injury was too
transient and/or insignificant to sound in damages has been applied in English law237—and
should continue to be rigorously enforced in the context of mental injury claims, should the
Traditional Rule be departed from in the future. Just because the threshold for actionable damage
is lowered does not mean that 'minor and transient upsets' amount to an injury, for as the
Supreme Court of Canada emphasized in Mustapha, they clearly should not.238 The law should
not be an insurer against all psychological (or, for that matter, physical) unpleasantness. A
reduced threshold of a 'grievous mental injury' could be feasibly assessed by reference to
objective factors, such as: how seriously the claimant's cognitive functions and participation in
daily activities was impaired, post-negligence; the length of time for which the impairment was
suffered; and/or the extent of medical care required by the claimant.239
Thirdly, the court's ability to strike out proceedings, pursuant to CPR 3.4, as constituting an
abuse of process,240 where there is no realistic prospect of an award of more than very modest
damages, has been judicially-adverted to in a variety of contexts,241 including where damages for
pure psychiatric injury have been claimed.242 These case management powers assist the court to
determine the parties' legal rights and obligations in a way which is just and expeditious, in
accordance with the CPR's 'overriding objective'.243 This is to be encouraged, should the reforms
proposed in this article take effect. The damages will often be small, and such cases do not
represent a good use of judicial and litigant resources. This mantra may well apply to preclude
the type of litigation in the aforementioned Canadian case of Mason v Westside Cemeteries
Ltd244(where the damages award for losing the parents' cremated ashes was only Can$1000),
were a like case to be instituted in England.
Hence, if the damages arising from a mere psychological injury are extremely modest, there are
two possible ripostes: the injury does not satisfy the de minimis threshold of damage; or, the case
is infeasible because of the impact of the overriding objective upon all post-Woolf negligence
litigation.
It should be emphasized that it is not contended herein that some requirement of 'sudden shock'
(in the sense of 'a sudden appreciation of a horrifying event, which violently agitates the
mind'245) should attach to the lower level of mental harm which this article advocates, by which
to 'ring-fence' the number of potential claims. Proving a shock-induced psychiatric injury has
long been the legal bane of secondary victim claims for negligently inflicted psychiatric injury—
giving rise to a distinct 'watering down' of what the requirement entails in English law.246 When
coupled (for example) with the English Law Commission's rejection of the requirement in its
Draft Bill,247 with legal commentary pointing out that the concept is 'a nonsense in
medical terms',248 and with the express abandonment of the requirement in other key
jurisdictions,249 the author reiterates a previously-expressed view250 that proving a 'shock-
induced' mental harm would be best removed from the ambit of negligently inflicted psychiatric
injury claims altogether. Certainly, whatever 'ring-fence' the shock requirement has purported to
provide to date has been so inconsistently applied and so extensively criticized as being arbitrary
and unreasonable, that no purpose is served to mandate it for the lower level of compensable
mental injury contended for in this article.
6. Conclusion
In light of the foregoing analysis, it has been argued in this article that reform of this nook of
negligence law would be both desirable and feasible. In a nutshell, two reform propositions are
put.
First, a strict adherence to ICD-10 and DSM-IV is legally and medically problematical, when
seeking to answer the question, 'has the claimant suffered a psychiatric injury which is actionable
at law?' These problems arise because the caveats and qualifications contained within the
classifications are frequently overlooked; courts sometimes permit claims by bypassing the
classifications altogether; the respective roles of the judge and the expert, when applying the
classifications, have not always been clearly defined; and the currency of the classifications can
be called into question, given advances in psychiatric knowledge (whether based on
epidemiological or other research) which are not reflected in the classifications. A greater
consistency in the courtroom use of the diagnostic classifications is essential, for litigants and
their advisers alike. It has been suggested herein that judges should be more cognizant of the
'checks and balances' within the classifications than is presently the case; that it should be
possible for psychiatric experts to depart from the classifications and to exercise personal clinical
judgment if the circumstances so require; and that the 'starting point' for an analysis of the
diagnostic criteria for psychiatric illness should always be the expert and not the court.
Secondly, English law's use of the Traditional Rule which compels a claimant who has suffered
no physical injury to prove that he/she suffered a recognized psychiatric injury instead is
problematical and should be re-thought. Clearly, when faced with the application of the
Traditional Rule to sometimes harrowing factual situations, some judges in this and other
jurisdictions have increasingly become concerned about precluding anxiety-based claims.
Moreover, it is questionable whether Lord Bridge intended for that strict

result in McLoughlin v O'Brian; and the Traditional Rule gives rise to a number of distortions
and inconsistencies in the law. A plausible and justifiable solution to the current unsatisfactory
state of English law is to do away with the Traditional Rule altogether, so as to allow the lower
threshold of 'grievous mental harm' for all cases in which the claimant is attempting to prove that
he or she suffered pure mental harm (provided that the claimant's injury does indeed constitute
psychological harm, in the view of expert psychiatric opinion)—and allow the remaining
elements of the cause of action (or a successful defence), the usual de minimis threshold of
damage, or the court's wide-ranging powers under the CPR, to bar the claim from progressing if
extremely modest damages so dictate. These reasons, in combination, mean that a revision of the
Traditional Rule will not 'open the floodgates' to litigation for pure mental harm.
In answer to a contention that the reforms proposed in this article would nevertheless give rise to
the possibility of a wider class of potential claimants recovering for negligently inflicted mental
harm (thereby increasing the potential liability of insurers), one additional point should be made.
The law would do better to tighten some arbitrary rules which apply in this area of negligently
inflicted mental harm (ie, by insisting upon the normal fortitude rule for all primary victims, by
restricting the definition of primary victim more tightly than was evident, for example, in W v
Essex CC251 and by applying the proximity control mechanisms for secondary victims far more
consistently than presently occurs), rather than rule out claims for 'grievous mental harm'—and
especially where the current threshold for actionable mental injury has borne judicial, academic
and medical criticism.
Clearly, the arguments are not all one-sided, and there is considerable room for differences of
opinion, when debating the cogency of the Traditional Rule. The Ontario Court of Appeal has
recently observed, of Canadian law, that it could not be said that 'any change in the formulation
of the test should be foreclosed once and for all. The precise manner in which the threshold is
defined or identified is a matter of legitimate debate'.252 The same applies for English law. Given
the Government's disinclination to legislate in this area of negligence law,253 it is to be hoped that
a suitable occasion may arise for the English Supreme Court to fully ventilate the issues
surrounding the Traditional Rule. If so, it is further to be hoped that such consideration will be
informed by reference to both legal and medical perspectives, for both are necessary to fully
appreciate the complexities and distortions which imbue the Traditional Rule.

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Rewriting the Requirement for a 'Recognized Psychiatric Injury' in Negligence Claims

Oxford J Legal Studies (2012) 32 (1): 77 at 78

Oxford J Legal Studies (2012) 32 (1): 77 at 80

Oxford J Legal Studies (2012) 32 (1): 77 at 82

Oxford J Legal Studies (2012) 32 (1): 77 at 85

A. Lack of Cognizance of the Classifications' In-built Caveats

Oxford J Legal Studies (2012) 32 (1): 77 at 93

Oxford J Legal Studies (2012) 32 (1): 77 at 95

Oxford J Legal Studies (2012) 32 (1): 77 at 96

Oxford J Legal Studies (2012) 32 (1): 77 at 103

Oxford J Legal Studies (2012) 32 (1): 77 at 112

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