Has Irish Law on Psychiatric Injury Become Too Restrictive?

A Critical Analysis on Recovery for Nervous Schock in Irish Tort Law Nowadays psychological health is just as important as physical health. However, the law has not always treated psychological injuries the same as physical injuries.

The requirement for psychiatric injuries in negligence, is that it must be shock induced, which is also often referred to as a nervous shock, and it must satisfy several strict requirements before the claim can succeed. These requirements were made by courts to prevent fraudulent claims. While it is important for these concerns to remain, they have also raised questions that the law has become too restrictive for individuals who have just suffered genuine psychological harm.

Introduction

Claims for psychological injuries have been regarded with scepticism through history. Even today’s courts demonstrate considerable caution. [1]

Psychological injuries are recognised as a form of personal injuries under Irish tort law. However, unlike physical injuries, psychiatric injuries on the other hand are subject to a stricter legal requirement before the compensation can be rewarded.

Irish courts must distinguish between emotions, such as sadness, grief, or even distress, and a recognised psychiatric illness. This distinction ensures that genuine and medically recognised conditions are compensated.

The psychological injuries are the following-PTSD (post-traumatic stress disorders), anxiety, and at last panic attacks. [2]

Psychological injury might follow physical injury.

Existing Legal Framework

The leading Irish case on psychiatric injury is Kelly v Hennessy (1995). [3]

In this case the Irish Supreme Court has established five principles that need to be fulfilled by the claimant to be eligible for the damages.

These include proving the existence of a psychological illness, demonstrating that the injury was caused by the defendant’s negligence, the psychiatric illness must be shock induced, the injury should be reasonably foreseeable, and at last, the defendant must have owed the claimant a duty of care.

These principles continue to form the foundation of psychiatric injury claims in Ireland. These principles establish a higher threshold for recovery then what may exist in claims involving physical injury. Whether these requirements remain appropriate in modern society is the central question examined in this article.

This cautious approach developed because psychiatric injuries are less visible than physical injuries, and it is more difficult to diagnose them. For this reason, courts have been concerned that allowing unrestricted claims could result in the “floodgates” problem. The floodgates problem happens if the courts allow a new lawsuit to take place,  that will open the possibility (or the gates) to other similar cases, and it would flood the judicial system, and would have unlimited cases arising.

Another reason for the restrictive approach is that psychiatric harm may affect a wider group of people, including the witnesses, the families, or even bystanders who were not directly involved in the incident-these groups are often referred to as the secondary victims.

The decision held in Kelly v Hennessy upheld these concerns, by providing strict conditions for the recovery. The Supreme Court of Ireland tried to balance the interest of the genuine victims directly affected by the incident.

This decision has been criticised for excluding some of the claimants who have suffered genuine psychiatric injury but were unable to satisfy every five legal requirements needed to bring a claim in negligence law.

One of the most criticised requirements is that the psychiatric injury must result from a sudden shock. Many of the recognised illnesses (like anxiety, and panic attacks for example) do not come immediately after the traumatic event, rather much later.

If the claimant who suffers a genuine psychological illness but may fail to satisfy the legal requirements, despite having medical evidence of the harm will not succeed in their claim.  

Modern medicine recognises that mental illnesses can have a long-lasting effect on a person’s health, and the quality of their life. The strict division between psychological and physical injury appears to be more difficult to justify this way.

The Irish courts have been successful in preventing fraudulent claims, but also the current legal framework may prevent some deserving claimants from obtaining justice.

A more flexible approach on Kelly v Hennessy could continue to protect the defendant, but while also ensuring that genuine psychiatric injuries receive the appropriate legal recognition.

Conclusion

In my opinion, the law could adopt a more flexible approach considering the psychiatric injuries in Ireland. A more flexible approach could recognise other illnesses following the incident.

Another possible reform would be to place greater emphasis on medical evidence, rather than the old rigid requirement considering a nervous shock.

Qualified psychologists, or psychiatrists could confirm that the claimant has suffered a negative impact on their behaviour, as the result of the defendant’s actions. This would allow the courts to make decisions not only on the legal principles, but rather then based on the modern medical knowledges.

Another area to reform, would be the requirement that the psychiatric injury must result from the sudden shock. Many of the mental health conditions develop over time following the exposure to traumatic events. Restricting the recovery to injuries caused by a single shocking event may fail to reflect how psychiatric illnesses are. A more flexible approach could allow courts to recognise genuine psychiatric injuries, regardless of if they have developed immediately or rather gradually.

Irish courts have adopted a cautious approach to psychiatric injury. The current legal framework places too much emphasis on limiting the liability, rather than ensuring justice for the genuine victims.

Other common law jurisdictions have moved towards a more flexible approach, such as England, or Wales. These courts in the neighbouring countries continue to impose restrictions on recovery, especially for secondary victims.

The purpose of the law of tort is to compensate the individuals who have suffered harm because of another person’s wrongful acts. If the claimant can establish the recognised psychiatric illness, prove the causation, and satisfy the ordinary principles of negligence, then recovery should not be refused simply because of the rigid legal requirements.

A more balanced approach on psychiatric injuries could allow the courts to continue protecting the defendant and still ensuring that the claimants are not denied access to justice.

Reference(S):

Secondary Source: Psychiatric Injury, Secondary Victims and the Sudden Shock Requirement-Margaret Fordham

Irish Legal Guide IE, online website

Case: Kelly v Hennessy 1995

[1] Psychiatric Injury, Secondary Victims and the Sudden Shock Requirement-Margaret Fordham

[2] Irish Legal Guide.IE

[3] Kelly v Hennessy (1995) IESC 8