Comparing Liability for Psychiatric Damages in English Law and Restatement of Torts | Study Guides, Projects, Research Law

1177

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS:

A VIEW OF THE PROPOSED RESTATEMENT (THIRD)

PROVISIONS FROM ENGLAND

M. H. Matthews*

INTRODUCTION

“Why an English perspective?” is perhaps the first question

raised by the title of this Article. It can be answered quickly. The

Reporters’ Notes to the proposals in the 2007 draft Restatement

(Third) of Torts: Liability for Physical and Emotional Harm sections

46–47 that are under consideration here refers to the similarity in

structure between the law in Great Britain and the proposals in the

Restatement (Third). The current English state of affairs1 may tell

us something about the Restatement (Third)’s proposals,2 although

institutional differences—one obvious example is the difference in

the use of juries—may mean rules work better in one jurisdiction

than another.3 Indeed, it has been argued that the prevalence of the

* Fellow in Law, University College, Oxford; CUF Lecturer in Law,

Oxford University. In writing this Article I have, with the kind permission of

the Oxford University Press, drawn on the material that appears in chapter 3 of

MARTIN MATTHEWS, JONATHAN MORGAN & COLM O’CINNEIDE, HEPPLE &

MATTHEWS’ TORT: CASES AND MATERIALS (6th ed. 2008). I have also benefited

from the comments of David Partlett and Mike Green, and additionally from

views expressed at the Symposium. The usual exemption applies.

1. For books dealing with the subject of recovery for psychiatric illness,

see NICHOLAS J. MULLANY & PETER R. HANDFORD, TORT LIABILITY FOR

PSYCHIATRIC DAMAGE (2d ed. 2006); HARVEY TEFF, CAUSING PSYCHIATRIC AND

EMOTIONAL HARM: RESHAPING THE BOUNDARIES OF LEGAL LIABILITY (2009).

2. Michael A. Jones argues that “[d]espite their supposedly ‘pragmatic’

basis, [the rules of recovery] fail to provide a ‘bright line’ rule by which

practitioners can give clear legal advice to their clients.” Michael A. Jones,

Liability for Psychiatric Damage: Searching for a Path Between Pragmatism

and Principle, in EMERGING ISSUES IN TORT LAW 113, 113 (Jason W. Neyers,

Erika Chamberlain & Stephen G.A. Pitel eds., 2007). Given the concern for

bright lines expressed by the Reporters, this may not be encouraging. The

proposals are, however, as we shall see, not identical.

3. On comparative tort reasoning, see Jane Stapleton, Benefits of

Comparative Tort Reasoning: Lost in Translation, in T

OM BINGHAM AND THE

TRANSFORMATION OF THE LAW: A LIBER AMICORUM 773 (Mads Andenas & Duncan

Fairgrieve eds., 2009); cf. Basil Markesinis, Goethe, Bingham and the Gift of an

Open Mind, in TOM BINGHAM AND THE TRANSFORMATION OF THE LAW: A LIBER

AMICORUM, supra, at 729. Also note the comments of Lord Steyn in McFarlane

v. Tayside Health Board, [2000] 2 A.C. 59, 81 (H.L.) (appeal taken from Eng.).

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NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS:

A VIEW OF THE PROPOSED RESTATEMENT (THIRD)

PROVISIONS FROM ENGLAND

M. H. Matthews*

INTRODUCTION

“Why an English perspective?” is perhaps the first question

raised by the title of this Article. It can be answered quickly. The

Reporters’ Notes to the proposals in the 2007 draft Restatement

(Third) of Torts: Liability for Physical and Emotional Harm sections

46–47 that are under consideration here refers to the similarity in

structure between the law in Great Britain and the proposals in the

Restatement (Third). The current English state of affairs

may tell

us something about the Restatement (Third) ’s proposals,

although

institutional differences—one obvious example is the difference in

the use of juries—may mean rules work better in one jurisdiction

than another.

Indeed, it has been argued that the prevalence of the

1178 WAKE FOREST LAW REVIEW [Vol. 44

jury trial and the system of funding lawyers in the United States

creates a need for clearer rules there than in England.

I shall emphasize English law, but as Great Britain comprises

Scotland and England,

it is only fair to acknowledge the Scottish

Law Commission’s paper on this topic.

Some years before the

Scottish Law Commission reported, the subject of recovery for

psychiatric illness had also been considered by the Law Commission

in England,

but there was no legislative action in response. More

recently, the Department of Constitutional Affairs

produced a

Consultation Paper in 2007 on the law of damages,

and this Article

contained some discussion of recovery for psychiatric illness.

The

Government’s stated preference was for any reform to occur through

case law, although it should be noted that English judges have on

occasion expressed a contrary wish, that is, favoring legislative

reform.

Academic writings expressing dissatisfaction with the

state of English law have not gone unnoticed in the courts. In White

v. Chief Constable of South Yorkshire Police ,

reference was made in

the House of Lords to the differing views of Stapleton

(arguing for

abolition of liability for negligently inflicted psychiatric illness) and

those in Tort Liability for Psychiatric Damage

(arguing for

liability based on reasonable foreseeability), but the House took the

view that it could not alter the law so radically in either direction.

1180 WAKE FOREST LAW REVIEW [Vol. 44

bodily harm and the emotional disturbance results from the

danger; or (b) occurs in the course of specified categories of

activities, undertakings, or relationships in which negligent

conduct is especially likely to cause serious emotional

disturbance.

1. Points of Particular Interest

a. Serious Emotional Disturbance. The term “serious

emotional disturbance” is not defined in the Restatement (Third) ,

but it is important to realize that it is not within the definition of

“physical harm” in section 4 of the proposed Restatement (Third).

English law has traditionally required emotional disturbance to

constitute a “recognizable psychiatric illness” before it is actionable

in the absence of physical harm.

It would seem that not every

“recognizable psychiatric illness” would qualify as a serious

emotional disturbance,

but the opposite would also appear to be

true. On balance, it may well be that the Restatement (Third) ’s

proposal is wider: the comment to the proposed section 46 of the

Restatement (Third) acknowledges “a modest difference,” the

inference here being that the English position is more restrictive.

“Recognizable” means recognizable by the medical profession, and so

24. R ESTATEMENT (T HIRD ) OF T ORTS : L IAB. FOR P HYSICAL & E MOTIONAL