Civil Law of Damages: Issues in Personal Injury - Analysis of Written Consultation Responses

3. Psychiatric Injury

Current law

3.1 If a person suffers a psychiatric injury as a result of the fault of another, there may be a case for an award of damages. The existing common law rules have been developed by the courts over the past century. The rules are complex and widely considered to be in need of reform.

3.2 The Scottish Ministers invited the SLC to review the law in this area and make recommendations for reform. The SLC published its report, Damages for Psychiatric Injury in 2004. The report identified six main defects in the present common law rules in the sphere of pure psychiatric injury as follows:

• Victims are divided into two categories, primary victims and secondary victims. The two categories have different rules for compensation, yet the boundary between them is unclear.
• While, in general, liability arises only if the injury to the victim is reasonably foreseeable by the wrongdoer, a primary victim may recover for an unforeseeable psychiatric injury if some physical injury was foreseeable but did not occur.
• For secondary victims at least, compensation is awarded only if they have suffered a shock - the sudden appreciation by sight or sound of a horrifying event.
• Secondary victims can recover only if they meet the so-called Alcock^[12] criteria:
  (There must be a close tie of love and affection between the secondary victim and the injured person; the secondary victim must have been present at the accident or at its immediate aftermath; and the secondary victim's psychiatric injury must have been caused by direct perception (i.e. through his or her own unaided senses) of the accident or its immediate aftermath.)
• Secondary victims can recover only if their psychiatric injuries were foreseeable in a person of ― "ordinary fortitude" - a legal construct that is difficult to evaluate.
• Rescuers are treated as primary rather than secondary victims in that they do not have to meet the Alcock criteria. However, they may well have to have feared for their own safety.

3.3 Overall, around 70% of respondents to the consultation addressed the issue of psychiatric injury. In understanding the balance of views it is important to be aware that the views of insurance bodies were prominent across most issues, with all 13 insurance body respondents tending to provide the same or similar perspectives in response to the questions posed.

3.4 The consultation asked:

Question 2a) Do you agree that the 2004 report's summary of defects in the existing common law is a reasonably full and accurate one in today's circumstances?

3.5 Thirty respondents (67% of all respondents) addressed question 2a) as follows:

Table 2: Summary of views on whether the summary of defects is full and accurate

Respondent category	Yes	No	Total
Insurance bodies	12	1	13
Legal body reps	4	2	6
Solicitor firms	3	1	4
Academics	2		2
MD Unions	1	1	2
Reps of Historic Child Abuse	1		1
Other	1		1
Individual public		1	1
Total	24	6	30

3.6 The vast majority (80%) of those who provided a view agreed that the 2004 report's summary of defects is a reasonably full and accurate one. Those agreeing included all but one of the insurance bodies and solicitor firms respectively.

3.7 A common view (mentioned by nine respondents, including seven insurance bodies) was that rather than labelling the points raised as "defects", they should instead be considered as a summary of issues emerging from a complex area of law. Another view was:

"The report has identified a number of aspects of the common law that we would not categorise as defects because we consider they are necessary safeguards for defenders" (Medical Defence Union).

3.8 There was also agreement (6 mentions) that much of what was perceived as the complexity and conflict in the current law had arisen from the case-by-case approach adopted over the years to considering delictual liability. However, despite such perceived complexity, a recurring recommendation amongst insurance bodies was to avoid over prescription in this area of law, to enable courts to retain some flexibility in decisions.

For example:

"Although predictability in the law is generally good, it should not become formulaic or a straight [sic] jacket and therefore the courts must retain flexibility to reach appropriate decisions on the facts of a case so as to continue to develop the law in this area as appropriate" (AXA Insurance).

3.9 Some respondents outlined specific challenges they associated with the current law:

• Does not achieve an appropriate balance between the rights of the injured person and the rights of a defender (Sol, MDU).
• Currently depends on too much interpretation (MDU).
• Some of the distinctions ("cut off" points) which require to be made are artificial and therefore difficult to understand (Sol).

3.10 Whilst three respondents (Ins, Sol, Leg Rep) highlighted difficulties in distinguishing between primary and secondary victims in current law as a challenging issue, several others (8 respondents), commented that the law on this distinction is reasonably clear.

Perceived gaps in defects identified

3.11 One respondent (Sol) emphasised their view that the most significant defect in the common law is what they considered to be "the artificial and inappropriate distinction between physical and mental harm" (Thompsons Solicitors and Solicitor Advocates).

3.12 Another respondent (Acad) considered that the topics of intentional infliction of psychiatric harm, and psychiatric injury arising out of ongoing stress in the workplace, both require more detailed examination.

3.13 The consultation asked:

Q2b) Do you agree in principle that existing common law rules which apply only to reparation for mental harm should be replaced by a statutory obligation to make reparation for wrongfully caused mental harm?

3.14 Thirty five respondents (78% of all respondents) addressed question 2b) as follows:

Table 3: Summary of views on whether common law rules applying to reparation for mental harm should be replaced by a statutory obligation to make reparation for wrongfully caused mental harm

Respondent category	Yes	No	Commentary only	Total
Insurance bodies		13		13
Legal body reps	2	3	1	6
Solicitor firms	2	1	1	4
Academics	2			2
MD Unions	1	1		2
Reps of Historic Child Abuse	2			2
Other	1			1
Individual public	5			5
Total	15	18	2	35

3.15 Around half (51%) of those who provided a view did not agree that existing common law rules which apply only to reparation for mental harm should be replaced by a statutory obligation to make reparation for wrongfully caused mental harm. Respondents holding this view included all of the insurance bodies. Both academics and both organisations representative of historic child abuse were amongst the 43% of respondents who agreed with the principle.

Views against the implementation of a statutory obligation to make reparation for wrongfully caused mental harm

3.16 The most common reason to oppose the implementation of a statutory obligation was that this would risk courts losing their flexibility to deal with cases according to their individual circumstances. All 13 insurance bodies cited this reason in their opposition, one summing up their argument thus:

"The creation of a statutory obligation could give rise to spurious claims and bar valid claims due to the rigidity introduced by statute" (Association of British Insurers).

Another respondent agreed:

"While we understand the desire to codify in statute liability for all mental harm, we believe that to do so would risk losing the flexibility which can be essential" (Association of Personal Injury Lawyers).

3.17 Other reasons stated in opposition to implementation of a statutory obligation were:

• There is limited evidence of injustice in the relevant current law (MDU, Leg Rep).
• The proposed change could extend defenders' potential liability considerably (MDU).
• No attempt was originally made by SLC to assess how many additional claims may result from the law change, nor what the cost implications may be (MDU).

Views supporting the implementation of a statutory obligation to make reparation for wrongfully caused mental harm

3.18 Four substantive arguments were provided in favour of changing the law:

• The current law is deficient in this regard and needs to be changed (Leg Rep, Oth, Sol).
• Implementing a statutory obligation will create more certainty and clarity (both Academics, Sol, MDU).
• The change in law will help to protect victims better in the future (several members of the public were of this opinion).
• Implementing a statutory obligation will help to address the current perception of unfairness in the law, amongst sections of the public (Leg Rep).

Outstanding concerns

3.19 One solicitor firm commented that although they supported the statutory obligation, they acknowledged that it will be challenging to create statute which adequately balances the rights of injured persons and defenders.

3.20 A legal body representative expressed concern about the effect of the proposed reform in circumstances where elements of physical and mental harm are closely interrelated, making it difficult to categorise a case as involving purely "mental harm".

Individual resilience

3.21 An existing restriction in Scots law is that, as regards a secondary victim, a defender is not liable to pay damages in relation to a psychiatric injury which would not have been expected to occur in someone of "ordinary fortitude". After considering whether this level of resilience should be in future be extended to apply to primary as well as secondary victims, the SLC eventually concluded that, for reasons of practice and principle, it should not. This reflects the SLC view that the concept provides an artificial and unsatisfactory mechanism for protecting defenders against claims from exceptionally vulnerable individuals, and therefore should be applied to neither category of victim.

3.22 Against this background, the consultation asked:

Q2c) Do you agree that the concept of "ordinary fortitude" is unsatisfactory and, therefore, should no longer be a consideration in assessing whether a victim should be able to seek damages for his/her psychiatric injury?

3.23 Thirty five respondents (78% of all respondents) addressed question 2c) as follows:

Table 4: Summary of views on whether the concept of "ordinary fortitude" is unsatisfactory

Respondent category	Yes	No	Total
Insurance bodies		13	13
Legal body reps	3	3	6
Solicitor firms	3	1	4
Academics	2		2
MD Unions		2	2
Reps of Historic Child Abuse	2		2
Other	1		1
Individual public	4	1	5
Total	15	20	35

3.24 Fifty seven per cent of those who provided a view did not regard the concept of "ordinary fortitude" unsatisfactory in this context. These respondents included all of the insurance bodies. Of the 15 respondents (43% of those who commented) who agreed that the concept of "ordinary fortitude" was unsatisfactory, four were individual members of the public, along with both of the representative bodies of historic child abuse.

Summary of views in disagreement

3.25 The most common argument, made largely by insurance bodies, was that the principle of "ordinary fortitude" is generally understood, having been tested in case law over time, and having become a standard or benchmark (11 mentions). One respondent reflected the views of many:

"Ordinary fortitude has been the test in a number of cases, therefore the legal standard is established in this regard. The boundaries of liability need to be set so that liability is not unfairly wide and those with valid claims are compensated" (Forum of Scottish Claims Managers).

3.26 Other arguments opposing the notion that "ordinary fortitude" is an unsatisfactory concept were:

• There is no clear need to change it as it appears to cause few difficulties (MDU, Ins, Leg Rep).
• The concept has been effective in providing a fair balance between pursuer and defender (Ins, Ins).
• The concept is likely to remain easier to understand than the alternative concept suggested (Leg Rep, MDU).
• The distinction between primary and secondary victims should remain (Leg Rep).

Summary of views in agreement

3.27 Six respondents, including three solicitor firms and two academics, argued that the concept of "ordinary fortitude" was imprecise and unhelpful.

3.28 Three of the individual members of the public focused on their argument that "ordinary fortitude" is a difficult concept to apply to people who may be affected many years later by an earlier experience which has left them vulnerable to psychiatric harm in what may seem to be ordinary contexts.

3.29 One view (Acad) was that the concept discriminated against psychiatric injury, as the criterion was not present in liability for physical harm. Another view (Rep CA) was that the concept discriminated against those most resilient.

Stresses or vicissitudes of life

3.30 As an alternative to providing that a defender is not liable if a person of "ordinary fortitude" could have coped with the event in question, the approach preferred by the SLC is to specify that:

a) There should be a general restriction on the statutory obligation to make reparation for wrongfully caused mental harm if the mental harm is of such a nature that a person in the position of the victim could reasonably be expected to endure it without seeking reparation.

b) A person should reasonably be expected to endure mental harm without seeking reparation if, for example, it results from:

i) the normal stresses or vicissitudes of life or of the type of life which that person leads; or

ii) bereavements or losses of a type which persons can reasonably expect to suffer in the course of their lives.

3.31 Against this background the consultation asked:

Q2d) Do you agree that an appropriate balance between the right of an injured person to secure damages and the right of a defender to expect a certain level of mental resilience in individuals would be achieved by the recommended focus on the stresses or vicissitudes of life or of the type of life that person leads?

3.32 Thirty six respondents (80% of all respondents) addressed question 2d) as follows:

Table 5: Summary of views on whether a balance is achieved by focusing on the vicissitudes of life or the type of life led

Respondent category	Yes	No	Total
Insurance bodies		13	13
Legal body reps	1	5	6
Solicitor firms	2	2	4
Academics		2	2
MD Unions		2	2
Reps of Historic Child Abuse		2	2
Union		1	1
Other	1		1
Individual public		5	5
Total	4	32	36

3.33 The vast majority (89%) of those who provided a view did not agree that an appropriate balance between the right of an injured person to secure damages and the right of a defender to expect a certain level of mental resilience in individuals would be achieved by focusing on the stresses or vicissitudes of life or on the type of life that person leads. The question split the views of solicitor firms, two of which agreed with the proposal and two disagreed.

Summary of views in disagreement

3.34 Eleven substantive arguments were submitted in opposition to the proposal. The most common argument (10 mentions from insurance bodies and individual members of the public) was that each case should be assessed according to its own specific circumstances, rather than by applying general rules. One member of the public remarked that based on previous experiences in life:

"....what is traumatically stressful for one person may be trivial for another" (Ind-Pub).

3.35 Related to the argument in the previous paragraph was the plea from 8 insurance bodies that courts should retain flexibility to ensure parity of justice for pursuer and defender. They felt that such flexibility could be compromised by the proposal.

3.36 Five respondents including 2 solicitor firms considered that taking into account the type of life a person leads is too judgemental, with routine life not necessarily linked to mental resilience. One respondent commented:

"...a test which involves the 'type of life' analysis would result in a real risk of an invidious and subjective assessment of individual life styles; this could involve lifestyle choices such as sexual orientation or practices, gender, marital status, race and religion and family dependency" (Faculty of Advocates).

3.37 A few respondents (4 including 2 academics) considered that the term "vicissitudes of life" lacked precision and meaning which could lead to inconsistent application by different judges, and possibly an increase in litigation at least in the short to medium term.

3.38 Four respondents from four different respondent categories perceived the proposal to be unfair by applying different standards to different people, thereby offering some less protection than others. One remarked:

"Whilst I can accept that police officers and indeed other members of the emergency services are used to dealing with traumatic events and are perhaps greater able to cope, it seems very unfair to me to restrict their ability to pursue compensation to such a high degree" (Scottish Police Federation).

3.39 Whilst three respondents (Ins, Ins, Sol) considered it difficult to identify a clear distinction between "ordinary fortitude" and "vicissitudes of life"; a further three (MDU, MDU, Leg Rep) suggested that the current law does not need to be changed.

3.40 The remaining arguments against the proposal were:

• It might result in extending too widely the scope of liability in the case of secondary victims (Ins, Ins).
• It may deter people from a career in the emergency services (Sol).
• It discriminates against psychiatric injuries in favour of physical injuries (Acad).
• Costs may increase due to the need to investigate claimants' expected levels of mental resilience (Ins).

Summary of views in agreement

3.41 Very few detailed arguments were documented in support of the proposal. Overall it was felt that the proposal represented an attempt to achieve a reasonable balance between the rights of injured persons and the rights of defenders. One solicitor firm commented:

"It is appropriate to take into account the stresses or vicissitudes of the type of life that a particular person leads. As a result, a person whose routine existence involves proximity with danger can be expected to have a greater degree of resilience" (Simpson and Marwick Solicitors).

Reasonable forseeability

3.42 In the case of Page v Smith the House of Lords ruled that unforeseeable psychiatric injury, where there had been a risk of physical injury even though that physical injury had not actually occurred, could qualify for an award of damages. The SLC considers this approach unduly wide and in order to limit liability further where mental harm is caused unintentionally, recommended that the common law rules on delict which apply to reparation for physical harm should apply to the statutory obligation to make reparation for mental harm.

3.43 Against this background, the consultation asked:

Q2e) Do you agree that, where physical harm is reasonably foreseeable but mental harm is not, and a victim sustains only mental harm, the negligent party should not be held liable?

3.44 Thirty five respondents (78% of all respondents) addressed question 2e) as follows:

Table 6: Summary of views on whether there should not be liability where a victim sustains only mental harm which was not reasonably foreseeable

Respondent category	Yes	No	Total
Insurance bodies	13		13
Legal body reps	3	3	6
Solicitor firms	3	1	4
Academics	2		2
MD Unions	2		2
Reps of Historic Child Abuse		2	2
Other	1		1
Individual public	1	4	5
Total	25	10	35

3.45 Seventy one per cent of those who provided a view agreed that where physical harm is reasonably foreseeable, but mental harm is not, and a victim sustains only mental harm, the negligent party should not be held liable. All insurance bodies agreed with the proposal; members of the public tended to disagree. Representatives of legal bodies were split in their views on the proposal.

Summary of views in agreement

3.46 There was general agreement from supporters with the rationale set out in the consultation document, in particular the view that the current approach is unduly wide, with a need to limit liability further where mental harm is caused unintentionally.

3.47 Five respondents (Ins, Ins, Sol, Leg Rep, MDU) emphasised that reasonable forseeability is a basis of common law on damages. One remarked:

"To us it is illogical that there should be liability for mental harm which was not reasonably foreseeable to the wrongdoer" (Aviva Insurance Limited).

3.48 Ten insurance bodies expressed the view that the situation, as built up by case law to date, clarifies the situations where victims can recover damages. They felt it important to retain the distinction between primary and secondary victims in this context.

3.49 An academic remarked that the proposal will remove the common law anomaly which had been created by the English case of Page v Smith.

3.50 The view of one legal body representative was that the proposal has merit in terms of legal principle, commenting:

"We are opposed to the idea that, because a clear, intelligible rule based on principle, 'may in practice lead to injustice in some situations', it should not be adopted for that reason alone" (Judges of the Court of Session).

Summary of views in disagreement

3.51 The arguments put forward were:

• The proposal is based on what these respondents purported to be an artificial division between physical and psychiatric harm (Sol, Leg Rep).
• Those responsible for child abuse many years ago should be held accountable for the mental harm experienced by their victims today (Rep CA, Ind-Pub).
• The proposal could lead to frequent injustices for victims (Sol).
• There is no need to change the status quo (Leg Rep).

No direct involvement in the incident

3.52 The SLC considers that where mental harm is caused by witnessing or learning of a distressing event or harm caused to others by a wrongful act, it is sound policy that in general the victim should not be able to claim damages against the wrongdoer. However, the SLC suggests two limited but important exceptions to that restriction:

Exception 1: where the victim was acting as a rescuer in relation to the incident.

Exception 2: where the victim had a close relationship with a person injured or killed, or at risk of being killed or injured, in the incident.

For the purposes of Exception 2, the term "close relationship" is defined as comprising "strong ties of affection, loyalty or personal responsibility" and including:

• any of a defined list of relatives, unless evidence proves that they did not have such a relationship with the person in the incident;
• any other person (e.g. a friend, neighbour, colleague), if evidence proves that they had such a relationship with the person in the incident.

3.53 Against this background the consultation asked:

Q2f) Do you agree that there should be a general prohibition on obtaining damages for a mental disorder where the victim has sustained that injury as a result of witnessing or learning of an incident, without being involved directly in it?

3.54 Thirty three respondents (73% of all respondents) addressed question 2f) as follows:

Table 7: Summary of views on whether there should be a general prohibition on obtaining damages for a mental disorder where the victim was not directly involved in an incident

Respondent category	Yes	No	Total
Insurance bodies	13		13
Legal body reps	4	1	5
Solicitor firms	2	1	3
Academics	1	1	2
MD Unions	2		2
Reps of Historic Child Abuse	1		1
Union	1		1
Other	2		2
Individual public	3	1	4
Total	29	4	33

3.55 The vast majority (88%) of those providing a view agreed that there should be a general prohibition on obtaining damages for a mental disorder where the victim has sustained that injury as a result of witnessing or learning of an incident, without being involved directly in it. Indeed, this was the unanimous or the majority view across all respondent sectors.

Summary of views in agreement

3.56 The few substantive arguments documented in any detail comprised:

• A general prohibition will contribute to limiting the scope of liability (3 insurance bodies; MDU).
• An extension of compensation to pursuers other than those directly involved in an incident goes against the fundamental principles of forseeability (Sol, Ins, Leg Rep).
• This will limit spurious or unmeritorious claims (Ins).
• Will provide limits whilst permitting some flexibility (Sol).

3.57 One supporter (Acad) suggested that further clarification is required over the concepts of "an incident" and "not directly involved". For example, they commented that rather than one incident, a person may have been affected by an event or a sequence of events.

Summary of views in disagreement

3.58 Only one substantive comment was put forward: that in general issues should be determined by asking whether the victim was owed a duty of care in the circumstances (Leg Rep).

3.59 The consultation asked:

Q2g) Do you agree that it is appropriate to except rescuers from the general prohibition?

3.60 Twenty eight respondents (62% of all respondents) addressed question 2g) as follows:

Table 8: Summary of views on whether it is appropriate to except rescuers from the general prohibition

Respondent category	Yes	No	Total
Insurance bodies	11	1	12
Legal body reps	4	1	5
Solicitor firms	2	1	3
Academics	1	1	2
MD Unions	1		1
Reps of Historic Child Abuse	1		1
Union	1		1
Other	2		2
Individual public		1	1
Total	23	5	28

3.61 The vast majority (82%) of those providing a view agreed that it is appropriate to except rescuers from the general prohibition outlined at 3.52 above.

Summary of views

3.62 Relatively few views were provided to support indications of agreement or disagreement with the proposal. Four insurance bodies commented that as rescuers are difficult to categorise as either primary or secondary victims, a separate, distinct category for them would be more appropriate. One solicitor firm supported the exemption as important in terms of public policy in not discouraging rescuers. An academic called for great clarity on what is meant by "rescuer" and emphasised their view that in determining the scope of duty of care in relation to professional rescuers, certain circumstances should be taken into consideration, such as the precise nature of the pursuer's employment and the nature of any relevant training they had received.

3.63 Amongst those opposing the proposed exemption was one insurance body with concerns that it is inappropriate to compensate rescuers who had chosen to undertake their job; and one solicitor firm which considered there to be no justifiable basis to compensate professionals whose job entails dealing with accident victims.

3.64 The consultation asked:

Q2h) Do you agree that it is appropriate to except those in close relationship with anyone killed, injured or imperilled by the accident from the general prohibition?

3.65 Thirty one respondents (69% of all respondents) addressed question 2h) as follows:

Table 9: Summary of views on whether it is appropriate to except those in close relationship from the general prohibition

Respondent category	Yes	No	Total
Insurance bodies	13		13
Legal body reps	4	1	5
Solicitor firms	3		3
Academics	2	1	3
MD Unions		2	2
Reps of Historic Child Abuse	1		1
Union		1	1
Other	2		2
Individual public		1	1
Total	25	6	31

3.66 The majority (81%) of those providing a view agreed that is appropriate to except those in a close relationship with anyone killed, injured or imperilled by the accident from the general prohibition outlined at 3.52 above.

Summary of views

3.67 One concern emerging from several supporters of the proposal was whether disputes would arise over determining what constituted "close relationship" in individual cases. A recurring theme amongst insurance bodies was that a statutory list could be restrictive, or inadvertently include people who no longer have ties with the deceased, and that is should be for the claimant to evidence the close tie.

3.68 One view (Acad) was that the process of determining the relationship with the deceased might be invasive and insensitive at a time when relatives are grieving:

"It opens up the distasteful possibility of counsel for well resourced defenders subjecting bereaved or otherwise distressed relatives to an intrusive level of cross-examination as to the depth and genuineness of their attachment to the injured person. A more sensitive way of dealing with this issues would be to allow the court time in fixing the amount of compensation, as in the general law of damages, to take into account the nature of the relationship between pursuer and injured person" (Acad).

3.69 One suggestion was that the statutory list should be the same as that identified in s.14(1) of the Damages (Scotland) Act 2011, "to ensure fairness and consistency" (Association of Personal Injury Lawyers). A related comment, from an opponent of the proposal, was that although it may be appropriate that those witnessing an accident and going on to suffer mental harm fall outside the general prohibition, those subsequently learning of it should not (MDU).

3.70 The main substantive argument against the proposal was that the extension beyond close family ties made the exemption too wide. One opponent expressed their view:

"We cannot support this recommendation as it would subject our members to claims from those alleging psychiatric harm because of a 'close relationship' with a person alleging negligence, when that person was, for example, merely a neighbour, friend or colleague, rather than someone with a close family tie which is the current requirement" (Medical Defence Union).

3.71 The consultation asked:

Q2i) Do you agree that these two exceptions strike the appropriate balance between the right of an injured person to secure damages and the right of a defender?

3.72 Twenty nine respondents (64% of all respondents) addressed question 2i) as follows:

Table 10: Summary of views on whether the two exceptions strike the appropriate balance between rights of pursuer and defender

Respondent category	Yes	No	Total
Insurance bodies	12	1	13
Legal body reps	4	1	5
Solicitor firms		2	2
Academics	1	1	2
MD Unions		2	2
Reps of Historic Child Abuse	1		1
Union		1	1
Other	2		2
Individual public		1	1
Total	20	9	29

3.73 Around two-thirds (69%) of those providing a view agreed that the two exceptions strike the appropriate balance between the right of an injured person to secure damages and the right of a defender. Most respondents supported their view by referring to comments they had already provided in relation to Q2f), g) and h) above.

3.74 One issue which re-emerged most commonly in the responses of those both in agreement and disagreement, was the need for further consideration of the proposal for rescuers to be excepted from the general prohibition. Distinctions were drawn between paid and unpaid rescuers; and exposure to horrific events in the normal course of employment, as distinguished from cases where additional negligence is identified amongst those who caused or permitted the rescuer to take part, that is, employers of police or fire and rescue officers.

3.75 The prevailing view amongst those who agreed that an appropriate balance had been struck was that the proposals were not overly prescriptive, but provided sufficient limits to prevent the "opening of floodgates". One respondent summed up their view:

"The case law in this area has been developed over a number of years and provides suitable guidance as to victims who can and cannot recover damages. A balance will always have to be struck to compensate deserving victims without opening the floodgates. Situations will always arise on the boundary of the existing guidance and the common law is the most flexible way to develop the law as further cases are considered" (The Motor Insurers' Bureau).

Proposed framework

3.76 The consultation sought views on the wider framework proposed by the SLC:

Q2j) Do you agree that other recommendations in the Commission's report are appropriate?

3.77 Twenty six respondents (58% of all respondents) addressed question 2j) as follows:

Table 11: Summary of views on whether the other recommendations in the Commission's report are appropriate

Respondent category	Yes	No	Not entirely	Commentary only	Total
Insurance bodies		13			13
Legal body reps	1	3		1	5
Solicitor firms	2				2
Academics		1	1		2
MD Unions	1	1			2
Other		1			1
Individual public		1			1
Total	4	20	1	1	26

3.78 Only 4 (15%) of the 26 respondents who provided a view agreed that the other recommendations in the Commission's report are appropriate. Amongst those who disagreed were all 13 insurance bodies whose main concern was the SLC's suggestion of the removal of the need for mental harm to be induced by shock. According to these respondents, this would increase uncertainty and possibly open the floodgates for more claims. It was also asserted that medical and legal costs could increase as a result, due to complexities in distinguishing psychiatric injury from other forms of mental illness.

3.79 Other objections to the other recommendations, other than those already expressed in relation to the previous questions, were:

• Child abuse cases should be handled under different legislation (Ind-Pub).
• There should not be an attempt to supplant the common law with a new statutory footing (Leg Rep).
• Do not agree that the Commission's conclusions should be enacted (Leg Rep).

3.80 Two respondents who agreed that the other recommendations in the Commission's report are appropriate highlighted their support for the proposal to limit liability for mental harm to a medically recognised mental disorder, which they felt provided an objective basis upon which mental harm could be assessed (Sol, MDU).

3.81 One respondent (Leg Rep) considered that the question was too wide to enable a considered response within the context of the consultation.

3.82 The consultation asked:

Q2k) Do you agree that the proposed framework strikes the appropriate balance between flexibility of approach and certainty of outcome?

3.83 Twenty eight respondents (62% of all respondents) addressed question 2k) as follows:

Table 12: Summary of views on whether the proposed framework strikes the appropriate balance

Respondent category	Yes	No	Not entirely	Commentary only	Total
Insurance bodies		13			13
Legal body reps		3		1	4
Solicitor firms	2	2			4
Academics		2			2
MD Unions		2			2
Reps of Historic Child Abuse				1	1
Other	1	1			2
Total	3	23	1	1	28

3.84 Of those who provided a view, 82% did not consider that the proposed framework strikes the appropriate balance between flexibility of approach and

certainty of outcome. In supporting their view, most respondents referred to their previous comments relating to earlier questions. One respondent added:

"These recommendations as they stand are elegant in their simplicity, but leave too much to judicial discretion in operating core concepts. For practical purposes successful reform requires greater precision in this difficult area" (Acad).

3.85 One respondent did not wish to answer the question as posed without further details of the proposed framework. They remarked:

"If the framework is intended to relate to cases involving secondary victims of nervous shock, then, generally, we consider it to be acceptable. However, it if is intended to be applied much more generally, then careful consideration of the precise terms would be required" (Faculty of Advocates).

Psychiatric injury caused by a wrongful death

3.86 The wrongful death of relative - e.g. from a negligently-caused industrial disease, or as the result of someone else's dangerous driving - can be the source of significant emotional and economic loss. Through the Damages (Scotland) Act 2011 the law provides that bereaved relatives may seek damages from the wrongdoer to compensate for such losses.

3.87 In some cases, the reaction of bereaved relatives to a wrongful death may go beyond 'normal' distress and heartache and involve the development of a psychiatric condition which represents an injury in itself. In such cases, a question arises as to what extent, if any, a relative's claim under the 2011 Act may take account of such a psychiatric injury (i.e. without having to demonstrate, as would be required in other circumstances, that the wrongdoer owed a duty of care to the injured relative as well as to the deceased). There are inconsistent court decisions, which precede the 2011 legislation, on this point which are relevant to the interpretation of section 4(3)(b) of the 2011 Act.

3.88 The consultation asked:

Q2l) Do you agree that it should not be possible for a bereaved relative to secure damages for psychiatric injury under section 4(3)(b) of the 2011 Act?

3.89 Twenty nine respondents (64% of all respondents) addressed question 2l) as follows:

Table 13: Summary of views on whether it should not be possible for a bereaved relative to secure damages for psychiatric injury under section 4(3)(b) of the 2011 Act

Respondent category	Yes	No	Total
Insurance bodies	13		13
Legal body reps	4	2	6
Solicitor firms	2	2	4
Academics	1		1
MD Unions	2		2
Reps of Historic Child Abuse		1	1
Other	1		1
Individual public		1	1
Total	23	6	29

3.90 The majority (79%) of those providing a view agreed that it should not be possible for a bereaved relative to secure damages for psychiatric injury under section 4(3)(b) of the 2011 Act. Whilst all insurance bodies were of this view, the views of representatives of legal bodies and solicitor firms were split.

Summary of views in agreement

3.91 There was much support for the decision taken in the Ross v Pryde case (2004) in which temporary Judge R F MacDonald QC expressed his opinion that the borderline between a natural human emotion and a pathological condition in the form of a psychiatric illness is not an artificial one and there is nothing illogical in differentiating between the two. Insurance bodies agreed that normal grief and psychiatric illness should be distinguishable and were of the view that for the bereaved to secure reparation they would have to establish that the defender owed a separate duty to them and they would also need to have fulfilled the Alcock test.

3.92 Two respondents (Sol, Leg Rep) argued the proposal would avoid the prospect of detailed evidence being led in relation to the degree of distress caused at a time when they are particularly vulnerable.

3.93 Two legal body representatives remarked that the alternative to this proposal would lead to different treatment for different categories of grief which would effectively create a league table for compensating grief.

3.94 The view of an academic was that if bereaved relatives were permitted to secure damages under section 4(3)(b) of the 2011 Act, this would conflict with the current principles governing liability for psychiatric injury and create an exception which could lead to ambiguous and incoherent law.

Summary of views in disagreement

3.95 One respondent (Leg Rep) remarked that the definition of "normal bereavement" is difficult to ascertain, and expressed the view that bereavement reaction should be dealt with under section 1(4) even if it falls into the category of prolonged or abnormal.

3.96 Two solicitor firms considered the distinction between normal grief and psychiatric injury to be artificial, unjustifiable and unworkable.

Impact

3.97 The consultation asked for information to assist the Scottish Government in its preparation of a Business and Regulatory Impact Assessment and also the Financial Memorandum which will accompany any future Bill. The following questions were posed:

Q2m) What do you think the impact of implementing these proposals in full would be particularly in relation to the issues below?

Is it likely that more or fewer actions will be raised?

Is it likely that more or fewer cases come to court?

Is it likely that more or fewer cases will be settled out of court?

Is it likely that cases will require more or less preparation time?

Is it likely that cases will require more or less court time?

Is it likely that there will be more of fewer awards of damages?

Is it likely that awards of damages will be higher or lower?

Can you quantify the benefits for pursuers?

Can you quantify the benefits for defenders?

Can you quantify the drawbacks for pursuers?

Can you quantify the drawbacks for defenders?

3.98 Twenty nine (64%) of respondents addressed one or more of these questions. Of these, 13 (45%) were insurance bodies, with their views prevailing amongst those submitted and summarised in Table 14 below.

Table 14: Summary of views on impact of implementing the proposals in full

Impact on:
No. of actions	More: 20 respondents Fewer: 2 respondents (Rep CA, Sol) No difference: 2 respondents (Sol, Leg Rep) Comments: one respondent (Oth) considered an initial spike in actions may reduce following the establishment of case law which will bring more certainty.
No. of cases coming to court	More: 17 respondents Fewer: 2 respondents (Rep CA, Leg Rep) Comments: increased numbers possibly arising from differing views over interpretation.
No. of cases being settled out of court	More: 1 respondent (Sol) Fewer: 14 respondents Comments: potentially fewer settlements out of court due to the fresh uncertainty of the boundaries of liability with impacts on satellite litigation using a number of test cases.
Preparation time	More: 12 respondents No reduction: 1 respondent (Sol) Less: 1 respondent (Sol) Comments: potentially more preparation time due to fresh uncertainty over liability.
Court time	More: 12 respondents Less: 1 respondent (Sol)
Awards of damages	More: 11 respondents Less: 1 respondent (Sol) Comments: possibly more due to wider classification of claimants.
Size of damages	Higher: 12 respondents Lower: 1 respondent (Sol) Neutral: 1 respondent (Leg Rep)
Benefits for pursuers	Will know from the outset whether they are likely to qualify for damages and the types of loss which can be compensated (Sol); reforms extend the availability of claims for mental harm (MDU). No benefits: 10 respondents
Benefits for defenders	More certainty regarding liability (Sol, MDU). Generally beneficial: 1 respondent (Rep CA) No benefits: 9 respondents
Drawbacks for pursuers	Increase in time taken to access justice due to increase in preparation and court time (11 respondents). Some categories of pursuer will be outwith scope for qualifying for compensation (Sol). Risk of invidious, subjective assessment of individual life style (Leg Rep). Those working in stressful occupations may not qualify for compensation (Leg Rep). No drawbacks: 1 respondent (MDU)
Drawbacks for defenders	Increase in cost burden due to more court time taken up (12 respondents). Possible extension in the range of pursuers (MDU). No drawbacks: 1 respondent (Sol)
Cannot provide view at this stage until greater clarity on reforms	2 respondents (Rep CA, Leg Rep).

3.99 Other, general comments were:

• The potential increase in cost burden to defenders will need to be passed on to consumers (11 mentions).
• There will be increased costs for the Legal Aid Board (8 mentions).
• There could be issues in terms of the European Court of Human Rights if assessments of lifestyle are undertaken (Leg Rep).
• There will be benefits to the entire justice system of having simpler and more clearly defined rules governing liability for psychiatric injury (Acad).

3.100 The consultation asked:

Q2n) Do you consider that the proposals for the reform of damages for psychiatric injury will affect people, either positively or negatively with the following protected characteristics: age, disability, sex, pregnancy and maternity, gender reassignment, sexual orientation, race and religion or belief?

3.101 Overall, the impact of the proposals in this context were viewed as neutral. Very few comments were submitted by respondents. Two respondents (Rep CA, Leg Rep) considered that the reforms would impact positively on people whose disability involved mental health issues. One academic remarked that concepts such as normal stresses and vicissitudes of life will require to be interpreted with these equality dimensions in mind.

Summary of views

3.102 Most (80%) of those who provided a view agreed that the summary of defects contained in Damages for Psychiatric Injury (2004) is full and accurate.

3.103 There were mixed views on whether common law rules applying to reparation for mental harm should be replaced by a statutory obligation to make reparation for wrongfully caused mental harm. Concerns focused largely on the perception that this would risk courts losing their flexibility to deal with cases according to their individual circumstance.

3.104 The majority view (57%) was that the concept of "ordinary fortitude" is not unsatisfactory, being regarded as generally understood, tested in case law over time, and accepted as a standard.

3.105 The vast majority (89%) of those who provided a view did not agree that an appropriate balance between the right of an injured person to secure damages and the right of a defender to expect a certain level of mental resilience in individuals would be achieved by focusing on the stresses or vicissitudes of life or the type of life the person leads. The most common argument was that each case should be assessed according to its own specific circumstances, rather than applying general rules.

3.106 Seventy one per cent of those who provided a view agreed that where physical harm is reasonably foreseeable, but mental harm is not, and a victim sustains only mental harm, the negligent party should not be held liable.

3.107 The vast majority (88%) of those who provided a view agreed that there should be a general prohibition on obtaining damages for a mental disorder where the victim has sustained that injury as a result of witnessing or learning of an incident, without being directly involved in it. Most of those who addressed the issue (82%) agreed that it is appropriate to except rescuers from the general prohibition; most (81%) agreed that it is appropriate to except those in a close relationship with anyone killed, injured or imperilled by the accident from the general prohibition.

3.108 Around two-thirds (69%) of those commenting agreed that the two exceptions outlined above strike the appropriate balance between the right of the injured person to secure damages and the right of a defender.

3.109 The majority (82%) view amongst those who commented was that the proposed framework set out in the Commission's report does not strike the appropriate balance between flexibility of approach and certainty of outcome. Some respondents considered the framework to lack precision and leave too much to judicial discretion.

3.110 The majority (79%) of those providing a view agreed that it should not be possible for a bereaved relative to secure damages for psychiatric injury under s.4(3)(b) of the 2011 Act.

3.111 It was commonly thought that the overall impact of the proposals under discussion would be an increase in the number of actions, cases coming to court, preparation time, court time, awards of damages and size of damages. Overall, the differing impact of the proposals on people with protected characteristics: age, disability, sex, pregnancy and maternity, gender reassignment, sexual orientation, race and religion or belief, was considered to be minimal.

3.112 In summary, whilst there was overall agreement that the current system had defects, there was no general consensus that what was proposed by the SLC would be an improvement on the current situation. There was, however, a body of support for some limited aspects of the framework.