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Judicial reasoning and precedent: negligently inflicted psychological injuries

Published online by Cambridge University Press:  02 January 2018

K. A. Warner
K. A. Warner*
Affiliation:
La Trobe University
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Extract

English common law is often understood to provide for the resolution of social disputes predominantly by resort to legal rules. Whilst there may be initially reasons for a rule which do not constitute legal reasons, once the rule becomes promulgated in a statute or is embodied in a judgment of a higher court then the application of the rule in future cases is justified by that very promulgation or embodiment. No further appeal to the social reasons originally behind the rule, what might be referred to as the ‘primary reason’ for a rule, is necessary. According to the theory any subsequent dispute to which the rule is addressed will be resolved one way or the other because there exists a distinctly legal reason for reaching that decision which is independent of the content of law and independent of, for example, social or moral considerations.

Type
Research Article
Information
Legal Studies , Volume 10 , Issue 1 , March 1990 , pp. 63 - 79
Copyright
Copyright © Society of Legal Scholars 1990

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References

1 The principal reference for this view is H. L. A. Hart, The Concept of Law (1961).

2 For elaboration of this position see H. L. A. Hart, Essays on Bentham, (1982) chapters V, VI, X. I attempt a critical evaluation in Warner, ‘Analytical Positivism Mark 111: Where Does “Content Independence” Leave Us?’ 1987 32 Juridical Review 136.

3 Important differences exist, for example, between Hart 's view in The Concept of Law and R. M. Dworkin in Taking Rights Seriously (1977) which continue to be reflected in their subsequent writings. See also the more generalised discussion of this matter in W. Twining and D. Miers, How To Do Things With Rules, 2nd edn, (1982) ch 3, esp pp 125–130.

4 See, for example, AG for NSW u Perpetual Trustees Co (1952) 85 CLR 189 on the position of the High Court of Australia and the Practice Statement (Judicial Precedent) (1966) 1 WLR 1234 on the position of the House of Lords.

5 See, for example, Jones v Secretary of State for Social Services (1972) 1 AC 725 and the comments of Lord Reid in Reg v Knuller (Publishing, Printing and Promotions) Ltd (1973) AC 435, 455.

6 See A. L. Goodhart, ‘Determining the Ratio Decidendi of a Case’ (1930) 40 Yale Law Journal 161, and ‘The Ratio Decidendi of a Case’, (1959) 22 Modern Law Review 117; J. L. Montrose, ‘Ratio Decidendi and the House of lords’ 1957 20 Modern Law Review 587, A. W. B. Simpson, ‘The Ratio Decidendi ofa Case’ (1958) 21 Modern Law Review, 155 and (1957) 20 Modern Law Review 413, and generally R. Cross, Precedent in English Law (1977).

7 See E. H. Levi, An Introduction to Legal Reasoning (1949) esp. pp 1–27.

8 See, for example, J. Frank, Law and the Modern Mind (1930) pp 100–104.

9 See, for example, A. W. B. Simpson, ‘The Ratio Decidendi of a Case and the Doctrine of Binding Precedent’, in A. G. Guest, ed, Oxford Essays in Jurisprudence (1961) 148.

10 [1943) AC 92.

11 Reference to ‘nervous shock’ has become ingrained but it would be better now to abandon the term. There is no compensation for ‘shock’, only for medically diagnosed psychological illness. The psychological illness will invariably have physical symptoms. It is perhaps not clear whether the compensation goes to the psychological condition or the symptoms. If the latter then the only distinctive feature of the claim is that the injuries appear to arise less obviously directly and more slowly than in the standard claim for physical injuries. As early as Dulieu v White & Sons Kennedy J spoke of ‘the undoubted rule that merely mental pain unaccompanied by any injury to the person cannot sustain an action of this kind’ ((1901) 2 KB 669, 673).

12 [1888) 13 App Cas 222.

13 [1982) 2 WLR 982.

14 [1939) 62 CLR 1.

15 [1984) 54 ALR 417.

16 [1896) 2 QB 248.

17 [1897) 2 QB 57.

18 Bell v Great Northern Ry Co of Ireland (1890) 26 LR Ir 428.

19 Mitchell v Rochester Ry Co 151 NY 107.

20 [1897) 2 QB 57, 59.

21 [1901) 2 KB 669.

22 The statement of claim included ‘5. In consequence of the shock sustained by the plaintiff the said child was born an idiot.’ which claim counsel subsequently abandoned.

23 [1901) 2 KB 669, 675.

24 [1925) 1 KB 141.

25 Ibid, p 152.

26 Favouring Kennedy J 's limitation in Dulieu v White & Sons.

27 [1935) 258 NW 497; 216 Wis 603.

28 [1939) 62 CLR 1.

29 [1939) 1 KB 394.

30 [1943) AC 92.

31 Ibid, p 99.

32 [1953) 1 QB 429.

33 Ibid, pp 438–9, 441–2.

34 [1960) 2 WLR 169.

35 On this aspect see Boardman v Sanderson, Chadwick v British Transport Commission, Mount Isa Mines Ltd v Pusey, Benson v Lee and McLoughlin v O 'Brain, supra; for the earlier rejection see Chester v Waverley Municipal Council, infra.

36 [1964) 1 WLR 1317.

37 Ibid, p 1322.

38 [1967) 2 All ER 945.

39 [1970) 1 All ER 1074.

40 [1971) ALR 253.

41 [1972) VR 879.

42 [1981) 1 All ER 809, 812–813.

43 Ibid, p 820.

44 Ibid, p 824. Griffith LJ added ‘the common thread running through all the judgments is the concept of physical proximity to the accident, as a necesary ingredient to create the duty of care owed by the driver’ (p 824). However both Griffith and Stephenson LJJ disagreed with the trial judge 's finding that the plaintiffs shock was ‘unforeseeable’ in the circumstances of the case; Ibid, pp 823, 820.

45 [1982) 2 WLR 982.

46 Ibid, p 991.

47 Ibid, p 1007; other factors to be considered included whether shock resulted from sensory and contemporaneous observance of accident; whether plaintiff and victim were closely related. On the latter a ‘workmate’ relationship qualified in both Doolcy v Camell Laird d Co Ltd (1951) 1 LI Rep 271 and Mount Is a Mines Ltd v Pusey (1971) ALR 253. There was disagreement as to the status of’ policy considerations ' (see particularly the speeches of Lords Edmund-Davies and Bridge) but overall the decision, as Lord Wilberforce observed, raised no new legal principle.

48 [1984) 54 ALR 417.

49 In both Schneider v Eisovitch and Jaensch v Coffey, supra, it was argued that the plaintiffs personality was such as to predispose her unusually to psychological injury. In neither case did this affect the result. Nor did the rare form of schizophrenia in Mount Isa Mines Ltd v Pusery.

50 In America the change of direction from ‘impact-duty’ most clearly articulated in Waube v Warrington (supra) appeared more dramatically in the Supreme Court of California decision in Dillion v Legg (1968) 29 ALR 3d 1316 — successful claim by mother for psychological injury suffered through witnessing young daughter run down and killed by car.

51 See M. A. Millner, Negligence in Modern Law (1967).

52 See, for example, the judgment of Lord Buckmaster in Donoghue v Stevenson (1932) AC 560, 566.

53 [1943) AC 92, 105.

54 See J. Stone, Legal System and Lawyers ' Reasonings (1968) ch 7, and his Precedent in English Law: Dynamics of Common-Law Growth, (1984).

55 Cf D. N. MacCormick, Legal Reasoning and Legal Theory (1978).

56 There is a brief account of his own in Lord Denning, The Discipline of Law (1979) pp 287–314.

57 Ie because of the rescuer policy.

58 In some jurisdictions there exists legislation which clearly places close family members in a favourable position although it is unclear whether its effect is to bar recovery for shock injury by persons unrelated to the victim. See, for example, Law Reform (Miscellaneous Provisions) Act 1944 (NSW) as amended by Law Reform (Miscellaneous Provisions) (De Facto Relationships) Amendment Act 1984.

59 I accept that, given analysis of the kind I have attempted in this paper depends upon interpretation, there are different ways of viewing the issue. It has been suggested to me, for example, that if Bourhill v Young is interpreted more broadly than I have, regarding that case as signalling that foresight of damage is the crucial criteria for a succesful claim, then the cases since Dulieu v White & Sons have further detailed the circumstances in which psychological injury counts as foreseeable. This view seems to accord with the inductive style of reasoning I discuss in part II of this paper.