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Unlike physical injury, where damage can be easily proved in most cases, mental injury is a far more difficult in many respects. For example, some policy concerns are:

  • Complexity and uncertainty in diagnosis. For example, how do we draw the line between grief and actual mental injury
  • Litigation can be an unconscious disincentive to rehabilitation. If there is the possibility of recovery or improvement, this might reduce one’s chances of financial gain in a mental injury case in a ‘claim culture’
  • Liability can be disproportionate; huge liability could result from a simple wrong

All of the above concerns were stated in the case of Frost v Chief Constable of South Yorkshire [1999], which will be discussed later. Courts now take a cautionary view of mental injury claims, assisted by extensive precedent. Such a view was taken in Mustapha v Culligan of Canada Ltd [2008, Canada], where no recovery was allowed for mental injury as a result of seeing a fly in an unopened bottle of water; mental injury was not foreseeable. Even where battery was found, in Wainwright v Home Office [2003], it was ruled that there was no intent to cause mental injury and therefore no liability resulted. This is an exception though.

Historical development

Firstly, in 1888 and the case of Victorian Railways Commissioner v Coultas [1888], it was said that shock not caused by any physical accident did not constitute an actionable mental injury...

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