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

Socially Constructed Hierarchies of Impairments: The Case of Australian and Irish Workers’ Access to Compensation for Injuries

“…Thus, the courts view the parties as equal partners in an employment contract, where each is equally responsible for risks and risk avoidance. 48 This difference in treatment is discussed below in terms of the threshold requirements for injury and particular impairments, and the degree to which employees are held responsible for their own health and safety in the workplace.…”

“…Australian and Irish law provides that physical and mental injury is compensable. Where a worker suffers a mental impairment without physical injury, the worker is only able to claim compensation where mental impairment meets the standard of a medically recognised psychiatric injury [47][48]. This requirement requires more from plaintiffs claiming damages flowing from mental injuries, as compared with those claiming damages for physical and sensory injuries.…”

“…A plaintiff may recover for monetary damage that flows from a minor physical or sensory injury. However, plaintiffs who suffer damage that flows from mental disabilities only may seek compensation if those mental injuries rise to the status of a psychiatric illness [48][49]. This restrictive attitude to mental injury actions is an historic one.…”

“…64 Tame v New South Wales [2002] 211 CLR 317 [192]. review, the Ipp Report, went further in stating that with limited resources "it is more important to compensate people for physical harm than for pure mental harm" [48,50]. In this statement, evidence of the impairment hierarchy is apparent.…”

Speaking with different voices: the problems with English law and psychiatric injury

“…One possible explanation for the ongoing use of 'recognisable psychiatric injury' as the orthodox standard for a successful claim, in spite of the difficulty The problems with English law and psychiatric injury 555 inherent in applying the medical knowledge, is offered by Lord Justice Evans, who commented that 'in technical legal terms, damages for "normal" grief and suffering may be said to be too remote to be recoverable in law'. 69 Yet academic commentary 70 and alternative judicial opinion 71 would seem to refute this suggestion, instead noting that policy concerns rather than legal principles underlie the courts' attachment to such a high orthodox standard; indeed, as seems clear, retention of such a standard has been for 'reasons more to do with policy than logic'. 72 As Giliker 73 has observed, these policy concerns can seemingly be overcome in certain situations, as damages for the infliction of mental distress falling below the threshold of recognisable psychiatric injury have been awarded in the form of aggravated damages, provided that there is an accompanying physical injury.…”