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Name: Anjni Pandya
Faculty of Law 2 11/12/09

UNIVERSITY OF HERTFORDSHIRE

SCHOOL OF LAW

COURSEWORK FOR TORT

AUTHOR - Anjni Pandya

DATE - 15/12/2009

SEMINAR GROUP - 18

SEMINAR TUTOR - Neil Geach

SCHEME - LLB

PAGE LIMIT FOR THIS COURSEWORK - 10

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“It may be said that the common law should not pay attention to these feelings about the
relative merits of different classes of claimants. It should stick to principle and not concern
itself with distributive justice. An extension of liability to rescuers and helpers would be a
modest incremental development in the common law tradition and, as between these plaintiffs
and these defendants, produce a just result. My Lords, I disagree. It seems to be that in this
area of the law, the search for principle was called off in Alcock v Chief Constable of South
Yorkshire [1992] 1 A.C. 310. No one can pretend that the existing law which your Lordships
have to accept, is founded upon principle.” Per Lord Hoffman in White v Chief Constable of
South Yorkshire [1999] 2 A.C. 455 at 511
Evaluate this statement and assess whether the claims of the policemen should have
been successful as an incremental development of the law on negligently caused
psychiatric injury. Your answer should also discuss whether this area of the law has
achieved the correct balance between principle and ideas of distributive justice.
Name: Anjni Pandya
Faculty of Law 3 11/12/09

In order to bring a claim for negligence, one element that must be satisfied is the duty of

care. The duty element is vital and if unsatisfied no liability will ensue, even if there is

evidence proving against the defendant. This control mechanism limits liability and there are

many policy reasons for this.

Psychiatric injury is a region of law that has been subject to criticism because of these policy

factors. For a claim of psychiatric injury to be successful negligence must be established first

and the damage suffered relate to the psychiatric injury caused. Psychiatric injury is therefore

a specialised part of the law on duty of care.

The breakthrough case was Dulieu v White and Sons1, whereby the claimant became

mentally ill because of the shock to his nervous system, caused by an incident that

threatened his safety. This authority began the allowance of claims for psychiatric injury. Prior

to that case the courts had been reluctant to award damages to injury that is non-physical

even if it went beyond normal distress, with possible physical symptoms as well. This cautious

approach had behind it many policy factors.

These policy factors will be considered and whether the law on psychiatric injury has been

limited from developing because of them. It is debatable that this argument reached its peak

in the case of White v Chief Constable of South Yorkshire2.

Lord Hoffman suggested “It may be said that the common law....should stick to principle and

not concern itself with distributive justice......No one can pretend the existing law which your

lordships have to accept, is founded upon principle”. He believed that in Alcock v Chief

Constable of South Yorkshire3 the judges didn’t apply principle of law to ensure “a modest

incremental development in the law”.

The question to be taken in to account is whether the law has achieved the correct balance

between principle and the ideas of distributive justice. In order to answer this question first the

principles of tort law must be understood. There are many aims in tort law. Compensation

1 Delieu v White and Sons (1901) 2.K.B 669

2 (1999) 2.A.C.455 at 511
3 (1992) 1.A.C.310
Name: Anjni Pandya
Faculty of Law 4 11/12/09

allows the loss to be adjusted from the claimant to the defendant putting him in a position he

would have been but for the conduct of the defendant.4 It is a central principle of tort and

supports the theory of corrective justice.

Fault is a way to readily justify compensation and the defendant is held responsible. Although

not all torts rely on fault and legal fault doesn’t equate moral blame.

There is also retributive justice and this situation allows an appeasement which satisfies the

claimant’s need for revenge, preventing retaliatory behaviour. Although this is inconsistent

with the modern system of justice.

Another principle of tort law is deterrence; the thought of having to pay out compensation

would be enough to deter a defendant from committing a negligent act. This is supported by

the addition of punitive damages where the defendant deliberately does a wrongful act

seeking to profit. There is also economic efficiency whereby companies pay compensation for

harm caused by their products. Finally there is the theory of loss distribution and the idea is

that one defendant doesn’t have to bear all the expenses but instead it is spread amongst a

larger section of society, one example would be motor insurance.

It is important to understand the principles of law as they explain the reasoning behind a

judges’ decision in a case. This can also be ascertained by looking at the principles of justice

which entitle the claimant to sue for compensation. There are two main types, corrective and

distributive justice. Corrective justice requires the defendant and the claimant to be treated as

equals and the law corrects injustice by restoring the balance, therefore by correcting the

harm. However for corrective justice to substantiate compensation there must be a sufficient

causal link between the defendant’s conduct and the claimant’s loss. The causal link is

necessary but it is not sufficient, as the fault requirement on the part of the defendant may

limit the use of corrective justice.

Distributive justice treats all classes of claimants as equal and considers the wider picture

than the current claimants. The idea is that there is a just distribution of the losses amongst

society. Distributive justice supports corrective justice in that it shows how correction should

be justified. One example would be whereby an employer is held to be vicariously liable for

4 Livingstone v Raywards Coal Co (1980) 5 App. Cas. 25

Name: Anjni Pandya
Faculty of Law 5 11/12/09

the conduct of his employees. Although distributive may also limit corrective justice. In

McFarlane v Tayside Health Board5 the judges made a decision on the grounds of Distributive

justice. The claimants were negligently advised that a vasectomy ensured that the husband

was infertile. Following this advice they stopped taking contraceptive precautions and as a

result a child was born. The claims for costs of bringing up the unwanted child were rejected.

Lord Steyn suggested that on the grounds of corrective justice the claim would succeed,

however when approaching the case on the grounds of distributive justice it would not. When

considering others members of society “there are many couples who cannot have children

and others who have the sorrow and burden of looking after a disabled child”6 who do not

receive any financial help, therefore it would not be morally right to award compensation to

the claimants.

He went on to conclude “the truth is that tort law is a mosaic in which principles of corrective

and distributive justice are interwoven. And in situations of uncertainty and difficulty a choice

sometimes has to me made between the two approaches”.7

This approach has been criticised as it seems that Lord Steyn’s approach is based on

intuition rather than a set of consistent principles, which has led some to believe that

corrective justice should be considered first as a prevailing approach. This rationale was

argued to be a major factor in the case of White and deemed to be an unfair decision by

dissenting judges. Critics argue that the law on psychiatric injury is heavily influenced by

policy factors and sometimes hard to justify.

So, what then are these policy factors that restrict claims for psychiatric injury? Lord Steyn

illustrated some of these in White v Chief Constable of South Yorkshire8.

Firstly he stated that the “line between acute grief, and actual psychiatric injury is difficult to

draw.” This may increase the length and costs of the trial as establishing psychiatric injury

needs to be medically proven by an expert, thus having a ‘negative economic impact on the

5 (2000) 2.AC.59
6 (2000) 2.AC.59 at 82
7 (2000) 2 AC.59 at 83
8 (1999) 2 A.C.455 AT 493
Name: Anjni Pandya
Faculty of Law 6 11/12/09

administration of justice’. This is an important point he puts forward as the courts have to

establish psychiatric injury for there to be liability.

“The court has to draw a line between sorrow and grief for which damages are not

recoverable and nervous shock and psychiatric injury for which damages are recoverable”.9

From this point it is obvious that the harm suffered must go beyond that of grief and be a

medically recognised illness. Therefore just because harm has been suffered it does not

mean that compensation will always be awarded. This is one control mechanism for limiting

liability.

Another factor that Lord Steyn considered was

9 Per Lord Denning MR in Hinz v Berry (1970) 2Q.B.40

Name: Anjni Pandya
Faculty of Law 7 11/12/09
Name: Anjni Pandya
Faculty of Law 8 11/12/09

BIBLIOGRAPHY

Books

(Include details of Author/Title/Publisher/Date of Publication for each book)

Articles

(Include details of Author/Title/Publisher/Date of Publication for each article)

Legislation

Cases

(Give full citation of cases and place in alphabetical order)

Other Written Sources

(e.g. Newspaper publications, government publications)

Other Sources

(e.g. details of websites used)