The law in relation to secondary psychiatric injury is almost universally accepted to be a mess, says Keith Patten
The courts seem to have long been uncomfortable with claims for psychiatric injury. Even the initial distinction between “pure” psychiatric injury and psychiatric injury consequent on physical harm is far from clear cut or logically defensible. If a relatively small degree of physical injury (or the risk thereof, as in Page v Smith [1996] 1 AC 155; [1995] 4 All ER 522, HL) produces disproportionate psychiatric harm, then that harm is (potentially) recoverable as little more than a matter of causation. Yet serious and entirely foreseeable psychiatric harm will often be irrecoverable if it occurs in the absence of any physical injury.
The development of the law in relation to pure psychiatric injury has been piecemeal and responsive to the individual cases that have come before the courts. The common law does not plan well. Floodgates concerns have been ever present, sometimes expressed, sometimes lurking just beneath the surface. Whether these concerns are real or imagined is almost never considered. The 19th century rule of
