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11 September 2009 / Harvey Teff
Issue: 7384 / Categories: Features , Personal injury
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Righting mental harms

Harvey Teff proposes reshaping the boundaries of legal liability

In principle, a negligently inflicted minor cut entitles you to damages. But unless physically injured, you can only recover in negligence for mental harm if it amounts to a “recognisable psychiatric illness”. Even then, if you were not physically endangered your chances of redress are often slim. Yet mental harm can be more disabling and harder to endure than tangible bodily injury. In its recent report, The Law on Damages (2009), the Ministry of Justice ruled out statutory reform.

The government’s stance is unfortunate, not least because the House of Lords has already deemed this area of the law beyond judicial repair (White v Chief Constable of South Yorkshire [1999] 1 All ER 1). The courts are hampered by convoluted rules that defy logic, medical understanding and legal principle, and by a problematic distinction between “primary” and “secondary” victims. Primary victims are those directly involved in an accident who were, or reasonably believed that they were, within the range of foreseeable physical injury (Page v Smith [1995] 2 All ER 736; White, above). Yet, in some

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NEWS
Talk of a reserved ‘Welsh seat’ on the Supreme Court is misplaced. In NLJ this week, Professor Graham Zellick KC explains that the Constitutional Reform Act treats ‘England and Wales’ as one jurisdiction, with no statutory Welsh slot
The government’s plan to curb jury trials has sparked ‘jury furore’. Writing in NLJ this week, David Locke, partner at Hill Dickinson, says the rationale is ‘grossly inadequate’
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After Woodcock confirmed no general duty to warn, debate turns to the criminal law. Writing in NLJ this week, Charles Davey of The Barrister Group urges revival of misprision or a modern equivalent
Family courts are tightening control of expert evidence. Writing in NLJ this week, Dr Chris Pamplin says there is ‘no automatic right’ to call experts; attendance must be ‘necessary in the interests of justice’ under FPR Pt 25
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