Uncertainties and problems
It is an unfortunate truism that the topic of negligently-inflicted pure psychiatric illness is afflicted with many vagaries and complexities.
That has been openly admitted, judicially. In Tredget and Tredget v Bexley HA, the court described the law, in something of an understatement, as ‘by no means straightforward’, and that ‘the arguments must have seemed to the parents as they listened, to have an air of unreality, but unsatisfactory as the legal frame-work has … been shown to be, the court can only act within its constraints’ – while, in Taylorson v Shieldness Produce Ltd, Ralph Gibson LJ remarked that the relevant principles are ‘as unconvincing as they are surprising’. Soberingly, even the House of Lords has admitted, in White v CC of South Yorkshire Police, that, in this area of law, ‘the search for principle has been called off’ (per Lord Hoffmann), while in the same case, Lord Steyn despaired that the law ‘is [neither] coherent [n]or morally defensible’. Earlier, in Alcock v CC of South Yorkshire Police, Lord Oliver stated that the law ‘is not wholly logical’.
All of this is, indeed, an unpromising start. The special rules governing whether D owes C a duty of care in this area are among the most judicially-criticised of any area of Tort law.
Law reform consideration
As a hallmark of its controversy, the issue has been the subject of frequent law reform consideration, e.g., by the English Law Commission in 1998, the Australian Ipp Committee in 2003, the British Columbia Commission in 1992, and the Scottish Law Commission in 2004.
Close to home, both the English and Scottish Commissions recommended statutory reform, such is the disarray in which the case law finds itself, but both remain unenacted. The Department for Constitutional Affairs stated, in 2007, that it rejected the English Law Commission's recommendation to legislate: ‘the Government considers it preferable to allow the courts to continue to develop the law in this area’. More recently, the Scottish Government has also rejected the Scottish Law Commission's recommendations for legislative reform. Hence, both the English and Scottish attempts to clarify the law have, so far, fallen upon deaf legislative ears, and that position is unlikely to change.