Negligently Inflicted Psychological Harm and the 'Sudden Shock' Requirement: A Comparative Analysis

Pat McInerney


Most legal jurisdictions throughout the world now recognise a general right to seek redress in respect of the concept of negligently inflicted ‘pure’ psychological harm or damage, albeit to varying degrees and applying quite different rules and value judgments in affording such recognition. Common law jurisdictions in particular have been quite slow to recognise such a duty and even now, following such recognition, there would appear to be a judicial bias in favour of physical injury cases and of restricting the categories of claimants in respect of psychological harm. One of the traditional criteria required in order to successfully establish a claim for psychological harm is the requirement that the psychological injury be shock-induced and arise by virtue of a sudden fright or jolt, as opposed to a gradual onset of such injury over time.

This paper assesses the current law with regard to the necessity or otherwise of such a sudden shock component in three common law jurisdictions, namely Australia, England and Ireland. It endeavours to establish the reasoning behind the imposition of such a requirement and will evaluate the desirability of its continued existence. In this regard, the paper begins with an analysis of the seminal Australian case dealing with the sudden shock requirement, due to the fact that this decision formed the basis for the incorporation of the sudden shock principle into the laws of the United Kingdom and Ireland. It will critically analyse this decision and consider some conceptual difficulties associated with it. The paper then proceeds to a consideration of the position in the U.K. and Ireland and will assess the reasoning behind the incorporation of such an approach in both jurisdictions and the criticism that may be levelled at such incorporation. Finally, the recent apparent volte face of the Australian High Court in this regard will be discussed and a strong recommendation made that this sudden shock requirement be dealt a similar blow in the U.K. and Ireland.



Cite as: Pat McInerney, Negligently Inflicted Psychological Harm and the 'Sudden Shock' Requirement: A Comparative Analysis, vol 13.3 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (September 2009), <http://www.ejcl.org/133/art133-6.pdf>.

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