Time to Cut Ties: Reforming the Secondary Victim ‘Control Mechanisms’ in Pure Psychiatric Injury

Twenty years ago, Jane Stapleton cut right to the heart of what is wrong with the law’s approach to pure psychiatric injury claims by secondary victims when she said, ‘the area of nervous shock is… the area where the silliest rules now exist and where criticism is almost universal’. Two decades later, her words ring just as true. Over that period, the ‘control mechanisms’ on such claims ossified into rigid rules that draw hard, but incoherent, lines between which claims will succeed and fail. Incrementalism has led the law away from the early approach to such claims, wherein the courts drew on the fundamental logic of reasonable foreseeability in determining who might claim for the harm caused by seeing the dreadful impact of another’s negligence. This chapter argues in favour of fundamental reform of the control mechanisms for secondary victim claims for negligently induced psychiatric injury to address these criticisms.