(P.213) 4.1.2. Status Quo

The Conseil d'Etat will now award damages for moral harm in a wide range of circumstances. Actions can be brought for emotional distress deriving from a claimant's injury²¹² or an injury suffered by a near-of-kin.²¹³ Damages may also be awarded, unlike in English law, for mental disturbances which are unaccompanied by physical harm,²¹⁴ such as distress caused by an irregular disciplinary sanction,²¹⁵ although the quantum of damages is generally modest.²¹⁶

The range of those persons eligible to obtain reparation for moral damage is broader in contemporary case law. But there has been a good deal of debate whether the administrative courts have been fair in determining the amount of damages awarded.²¹⁷ Awards for injury to a person's reputation are invariably very modest. Claimants rarely obtain more that 10,000 Francs,²¹⁸ and frequently only a symbolic Franc.²¹⁹

Commentators remarked upon the initially low level of damages for pretium affectionis awarded by the administrative courts.²²⁰ However, amounts awarded over the last twenty years have increased markedly.²²¹ The current amount of damages for pretium affectionis awarded on the death of a person's spouse is around 80,000 Francs (12,000 Euros).²²² Other damages awards for douleur morale are equally restrained.²²³

(P.214) 4.2. Non-pecuniary Loss in English Law

English courts will willingly grant damages for non-pecuniary loss consequent upon personal injury,²²⁴ such as pain and suffering and loss of amenity. This will be examined in more depth below.²²⁵ On the other hand, the English courts have been reluctant to countenance recovery for grief and distress unconnected with the claimant's own physical injury, unless this amounts to psychiatric harm.²²⁶ Claimants cannot recover damages for distress suffered through fear of injury to themselves²²⁷ nor for pretium affectionis on injury of another person.²²⁸ The legislature has intervened to create a limited exception to allow for bereavement damages on death of another person,²²⁹ but the common law has generally been hostile to such actions on grounds of policy.²³⁰

The major exception to the non-recovery of ‘free-standing’ mental injury is psychiatric harm.²³¹ Damages may be awarded when a person has sustained a recognizable and acknowledged psychiatric illness.²³² Preconditions of actionability have been imposed in the tort of negligence. These depend upon whether claimants are primary or secondary victims. For those in the former category who are directly involved in an accident, recovery can be made for psychiatric harm if some personal injury (physical or psychiatric) was a reasonably foreseeable consequence of the defendant's conduct, whether or not the foreseeable physical injury does in fact occur.²³³ Those who are less directly involved in the accident, and suffer psychiatric injury on witnessing an accident or its consequences, are considered to be secondary victims. Stricter control mechanisms are required for this category of claimant, underpinned by a number of well-known policy considerations.²³⁴ In addition to showing that the psychiatric harm was a reasonably foreseeable consequence of the defendant's (p.215) acts, a series of proximity requirements must be met. First, the psychiatric illness would seem to have to be shock-induced,²³⁵ rather than due to a cumulative effect over a period of time. Secondly, the claimant must establish a close tie of love and affection with the immediate victim.²³⁶ In certain cases, the degree of closeness may be presumed, for instance for the spouse, parent, or child of the primary victim.²³⁷ Otherwise, evidence of closeness of the relationship must be shown, for instance for siblings.²³⁸ A bystander is unlikely to be able to sue,²³⁹ and it would now seem that rescuers—as secondary victims—are in the same position.²⁴⁰

Thirdly, an element of physical and temporal proximity is required. This means that the claimant must have been present at the accident or its immediate aftermath.²⁴¹ The means of perception are also important. The shock must come through sight or hearing of the event or its immediate aftermath. Communication by a third party will not suffice, although perception by simultaneous television broadcast has not been ruled out.²⁴²

The law is less settled where the defendant has neither imperilled nor caused physical injury to any person. As yet, it has not been conclusively decided whether recovery can be made for the mental effects of the negligent communication of news that turns out to be false.²⁴³ It is also unclear whether pure psychiatric harm can be recovered when it is consequent upon property damage.²⁴⁴ However, as the damaged property will invariably be owned or possessed by the claimant, the psychiatric harm will be consequential loss, and this issue thus goes to remoteness rather than duty.²⁴⁵ On the other hand, in the education sphere the courts are moving slowly towards a widening of the recognized heads of psychological injury. In the recent case of Phelps v Hillingdon LBC, concerning public authority liability for failure to diagnose and treat educational (p.216) difficulties,²⁴⁶ Lord Slynn recognized that ‘psychological damage and a failure to diagnose a congenital condition and to take appropriate action as a result of which a child's level of achievement is reduced…may constitute damage’ in a negligence claim.²⁴⁷

Beyond the tort of negligence, it would initially seem that the position is less restrictive. For actions in breach of statutory duty, it has been held that the control mechanisms imposed upon actions for the recovery of psychiatric harm by secondary victims are not applicable.²⁴⁸ Mental distress would seem to be claimable in the tort of misfeasance in public office.²⁴⁹ But the restrictive approach taken to these torts in public liability actions²⁵⁰ means that the liberal attitude to loss is of reduced utility.²⁵¹

A more promising liberalizing influence, however, may stem from the Human Rights Act 1998.²⁵² As we have already seen,²⁵³ in shaping the damages remedy under the HRA the courts are statutorily obliged to take account of ‘principles applied’ by the ECtHR under Article 41 of the ECHR.²⁵⁴ The ECtHR has made monetary awards for a wide variety of non-pecuniary loss²⁵⁵ covering diverse intangible injuries,²⁵⁶ including anguish,²⁵⁷ anxiety,²⁵⁸ ‘feelings of frustration and helplessness’,²⁵⁹ harassment, humiliation, and stress,²⁶⁰ as well as cases of serious mental distress.²⁶¹ Some of these types of loss may clearly be accommodated by ordinary tort law principles. So, the awards for non-pecuniary loss for unlawful detention are replicated by damages for the tort of false imprisonment.²⁶² In other ways, the ECtHR's approach is very different from (p.217) that found at present in English law. Indeed, the Strasbourg Court does seem on the whole, in parallel with French courts, to take a more generous view of compensable moral damage than the English courts. In contrast to English courts, the ECtHR has been willing to provide compensation for free-standing ‘moral damage’,²⁶³ and has also allowed claims in respect of loss of relationship’.²⁶⁴ It would seem that if account is taken of the Strasbourg jurisprudence then the English courts may have to revise their erstwhile cautious approach to the circumstances in which recovery can be made for moral damage, at least in making awards under the Human Rights Act.²⁶⁵