Tort law compensates for four kinds of damage or injury viz [i] personal injury, [ii] property damage, [iii] psychiatric injury and [iv] economic loss. The first two are straightforward while the last two are obfuscated in confusion and generate a lot of controversy among the practitioners, academic lawyers and the judiciary. This article will focus on psychiatric or mental or emotional injury or harm or damage and the extent to which a victim of such injury or damage may be able to recover compensation or damages from a defendant as far as the law of tort is concerned.
Traditionally this aspect of the law of tort has been known as liability for nervous shock. Originally, this nomenclature simply reflected contemporary medical and judicial understanding of how mental injury was incurred. In turn, "shock" has been suffered for centuries but has not been fully analyzed as far as its effects on victims are concerned. We will seek to discuss the tort of psychiatric damage or mental damage or nervous injury as it is variously called.
The concept of tortious liability is based on three or four identified principles viz; the concept of duty of care, the breach of duty of care, the concept of foreseeability and remoteness of damage resulting from the breach and sometimes the question of causation is given a separate treatment although it can be subsumed into remoteness of damage and foreseeability.
Suffice it to say to say that among all the above-mentioned concepts that foreseeability is the key concept in determining tortious liability. See Viscount Simmonds in the case of Overseas Oil Tankship Ltd v Morts Dock Engineering Ltd [1961] popularly known as the Wagon Mound’s case.
Foreseeability of harm is therefore the touchstone for the imposition of a duty of care in determining tortious liability in any given case: and in the context of tortious liability for physical injury, it is usually sufficient on the part of a plaintiff or claimant to establish the existence of a duty of care on the part of the defendant owed to the plaintiff/claimant in a given situation. See the famous case of Donoghue v Stevenson [1932] per Lord Atkin of the House of Lords [as he then was]. In other words, where a plaintiff is at risk of physical harm as a plaintiff and the defendant can foresee this, liability will kick in the given situation. This is sometimes characterised as the doctrine of remoteness of damage or injury. Accordingly, a plaintiff cannot recover damages or compensation for injuries which are too remote in the sense that they were not reasonably foreseeable as arising from the defender's conduct. See the case of Overseas Oil and Tankship Ltd v Morts Dock Engineering Ltd [The Wagon Mound case [1969]. See also the earlier court of appeal decision in Re Polemis [1948]. Note that Re Polemis case is no longer a good authority as it has been overtaken by the new rule in Wagon Mound case for the earlier judicial approach to the vexed issue of foreseeability.
For our purposes, the important point to notice is that liability is denied not by the court's refusal to impose a duty of care but by its finding that the duty was not breached in the particular circumstances of the case. Confusion can arise because the concept of reasonable foreseeability plays a vital role in both situations ie; the initial imposition of a duty of care and whether it has been breached in the circumstances. While the result of both processes might appear the same in that there is a denial of liability, the former operates at a more fundamental level than the latter. The refusal to impose a duty of care means that the plaintiff's case fails in limine; indeed, it can be considered a question of law which can be determined as an issue of relevancy. Besides, the courts use the twin concepts of reasonable foreseeability and duty of care to circumscribe the parameters of tortuous liability in any given case.
See, for example, Donoghue v Stevenson 1932 A C (HL); Marc Rich & Co AG v Bishop Rock Marine Co Ltd, The Nicholas H [1996] AC211, Lord Steyn at 235. Where physical harm to the plaintiff is reasonably foreseeable, there will usually be a sufficient degree of proximity or propinquity between the plaintiff and defendant so that it is fair, just and reasonable to impose a duty of care upon the defendant: See Caparo Industries plc v Dickman [1990] 2 AC 605. This is the current position of the law in this area.
The nature and extent of injury or damage on the other hand is primarily a question of fact and degree and should not be dismissed without a proof.
An example may be helpful. In the leading case of Muir v Glasgow Corporation there was no doubt that Mrs. Alexander as occupier of the teashop owned by her employer, Glasgow Corporation, owed the plaintiffs, children on a Sunday school picnic, a duty of care as her invitees to prevent them suffering physical harm while on the premises. Nevertheless, her conduct in allowing two Free Church of Scotland elders to carry a tea urn through a corridor into the tearoom did not amount to a breach of that duty because she could not foresee that the children would be scalded as a probable consequence of giving such permission. In the circumstances, the children's injuries were held to be too remote. This is quite different from the possible contention that Mrs. Alexander did not owe a duty to take reasonable care to prevent the children suffering physical harm because it was not reasonably foreseeable that they might be scalded while on the premises. The recognition of a general duty to take reasonable care towards persons within the area of foreseeable potential physical injury has not opened the floodgates to unmeritorious cases because there is no breach of duty and consequently no liability if the plaintiff's injury is too remote, i.e. if the harm sustained by the plaintiff was not of a kind that could reasonably have been foreseen as a probable consequence of the defender's conduct.
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