Righting mental harms

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