Ms 4-1727 (2): Obras para clavicordio o piano forte

As was discussed above, our law requires that the plaintiff must have suffered a recognised psychiatric illness.130 The Courts in Allie131 and Sauls132 stated it as being a ‘detectable psychiatric illness’, but relied on Bester133 and Barnard134 in that regard. Although ‘detectable’ and ‘recognised’ are not synonymous, it is submitted that in the context of psychiatric injury litigation they refer to the same requirement. If this illness must be recognised or detectable, the logical question to follow is, by whom?

Courts should be cautious to use the DSM-IV-TR or any other classification system to determine whether psychiatric harm should be compensable. The DSM-IV-TR states:

‘It is to be understood that inclusion here, for clinical and research purposes, of a diagnostic category … does not imply that the condition meets legal or other non-medical criteria for what constitutes mental disease, mental disorder, or mental disability.’135

128

See Mullany op cit 186, TM Dworkin ‘Fear of Disease and Delayed Manifestation Injuries: A Solution or a Pandora’s Box?’ (1984) 53 Fordham Law Review 527, FJ Gale and JL Goyer ‘Recovery for Cancerphobia and Increased Risk of Cancer (1985) 15 Cumberland Law Review 723, JG Fleming ‘Probabilistic Causation in Tort Law’ (1989) Canadian Bar Review 661 (hereinafter referred to as ‘Fleming Probabilistic Causation’) at 677-678.

129

Maddalena v CSR Ltd and Another (2004) available at http://www.worldlii.org/cgi- worldlii/disp.pl/au/cases/wa/WASCA/2004/231.html (accessed 14 April 2005). See, also, Anonymous ‘Asbestos caused psychiatric injury’ (2004) available at

http://www.theage.com.au/articles/2004/10/14/1097607332647.html (accessed 14 April 2005).

130

The same requirement is adopted in Australia, Canada, Ireland and New Zealand. See Scottish Law Commission Discussion Paper.

131 [2003] 1 All SA 144 (C). 132 2002 (2) SA 55 (SCA). 133 1973 (1) SA 769 (A). 134 1999 (1) SA 202 (A). 135 DSM-IV-TR xxxvii.

The DSM-IV-TR also contains cautionary remarks on the use of the system in forensic settings. It recognises that the ultimate questions that need to be answered in psychiatric and legal settings differ.136 Psychology assumes that there is no pre-existing truth and then examines the nature of the universe ‘by exploring, and experimenting, accepting its results with a grain of salt’.137 The law wants to reach decisions to finality; guilty or innocent, judgment for the plaintiff or the defendant.138

Furthermore, the categories in the classification system are not indicative of the severity of the illness, nor do they necessarily indicate the causes of a disorder.139 Classification systems are silent on the person’s degree of control over the behaviours associated with the illness.140 Also, just because something is a recognised disorder, it does not mean that there is any functional impairment that negatively affects the claimant’s quality of life.141

The DSM-IV-TR consists of classifications based on knowledge at the time of its initial publication.142 Research and clinical experience will lead to increased understanding of the disorders already identified, and may cause new disorders to be identified and currently recognised disorders to be removed from future classifications.143 Summerfield is very scathing in his criticism of this aspect: he wants to know where the new diseases come from and where the discarded ones are going.144 The answer, it is submitted, lies in the purpose of classification. As already mentioned,145 the primary function of classification is to

136

DSM-IV-TR xxxiii.

137

Gordon 521. In Daubert v Merrell Dow Pharmaceuticals, Inc 113 S Ct 2786 (1993) at 2798-9 Justice Blackmun noted the inherent difference between judicial fact-finding and scientific fact- finding: While the latter is concerned with ‘exhaustive cosmic understanding’, the former is focused on the ‘particularized resolution of legal disputes’.

138 Ibid. 139 DSM-IV-TR xxxiii. 140 Ibid. 141

Scottish Law Commission Discussion Paper loc cit.

142 DSM-IV-TR xxxiii. 143 Ibid. 144 Summerfield 96. 145 See 3.2.3.1 above.

provide guidelines for treatment and by its very nature cannot be cast in stone; it will evolve as more knowledge is acquired.146 It ‘does not encompass all the conditions for which people may be treated or that may be appropriate topics for research efforts’.147

The Scottish Law Commission proposed that instead of using ‘recognisable psychiatric illness’ as the threshold requirement, the concept of ‘significantly disabling psychiatric injury’ should be employed.148 This would have the advantage that ‘the injury and the extent to which it was disabling would be a question of fact in each case’.149 It is submitted that there is much to be said for this proposal. It moves the focus from classifying the plaintiff’s disorder to whether he or she is actually suffering, and if so, in what way.150

Often experts disagree on the diagnosis in a particular case, but agree on the degree of suffering that the plaintiff is experiencing.151 A classic example is provided by Grobler v Naspers Bpk en ‘n Ander.152 Expert witnesses for the opposing parties spent much time arguing about whether PTSD can be caused by sexual harassment over a protracted period as opposed to one single traumatic incident.153 This debate prompted Nel J to state:

‘The question is whether Samuels [the employee of the defendant] is responsible for Sonja’s [the plaintiff’s] condition and not how her condition would be classified by the American Psychiatric Association.’154

146

Selzer 951 writes: ‘Prior to the twentieth century, most illnesses were attributed to evil thoughts or spirits. The current century brought with it a burgeoning scientific spirit followed by a host of real and meaningful disclosures, In the first burst of discovery, every finding appeared conclusive, each a total answer that stood alone. Only later did many of these revelations lead to additional and more sophisticated inquiry. … Illnesses are invariably more mystifying under closer scrutiny, particularly if one is seeking simple one-to-one etiological explanations.’

147

DSM-IV-TR xxxvii.

148

Scottish Law Commission Discussion Paper loc cit.

149

Ibid.

150

See the argument by Mullany and Handford 39 fn 26.

151

Scottish Law Commission Discussion Paper loc cit.

152 2004 (4) SA 220 (C). 153 At 271H-272B. 154 At 272F.

The Scottish Law Commission prefers the term ‘injury’ as opposed to ‘illness’ in order to distinguish symptoms that form part of a pre-existing psychiatric disorder from those that were caused by the incident(s) at issue in a particular case.155 It is submitted that this is of no real significance because the plaintiff in any event has to prove that the defendant caused the harm complained of and that such harm was foreseeable.

3.3.1 Should claims for mere mental distress be allowed?

Should claims be available for mere mental distress that does not amount to a psychiatric injury as described in Bester?156 This question seems crisp enough, but the following dictum by Sachs J, albeit applied in a different context, lucidly describes how elusive answers to seemingly simple questions can be:157

‘The formal legal issue … is embedded in an elusive, evolving and resilient matrix made up of varied historical, social, moral and cultural ingredients. At times these emerge and enter explicitly into the legal discourse. More often they exercise a subterranean influence, all the more powerful for being submerged in deep and largely unarticulated philosophical positions.’

The ingredients of the matrix in which psychiatric injury claims are embedded are complex, hence judicial reflection on their ‘elements of greater subtlety’158 and a description of the subject as ‘most vexed and tantalising’.159

Psychiatric injury claims raise issues that are fundamental to the way South African society perceives itself. They challenge us to find ways and means of preserving each person’s dignity and freedom within, and as an indelible part of,

155

Scottish Law Commission Discussion Paper loc cit.

156

1973 (1) SA 769 (A).

157

Volks NO v Robinson 2005 (5) BCLR 446 (CC) para [149]. The case dealt with the

constitutionality of a provision in the Maintenance of Surviving Spouses Act 27 of 1990 that allowed surviving spouses the right to claim maintenance from their deceased spouses’ estates if they are unable to support themselves, but did not confer the same benefit on permanent life partners.

158

Lord Macmillan in Bourhill v Young [1943] AC 92 at 103.

159

the great variety of equally important societal structures that exist at a particular time.160 The non-pecuniary aspect of psychiatric harm also brings to the fore an apparent paradox in that ‘a belief that there is more to life than money and property has led to the pecuniary vindication of non-pecuniary interests’.161 When workplace stress is brought into the equation, South African history and social practices become particularly relevant, especially at a time when worker rights are being redefined to reflect the values of a constitutional democracy based on equality, freedom and dignity.162

The substantive, policy-based decisions obviously have to be decided by taking into account the procedural realities. In terms of psychiatric injury claims, it is important that we do not create a situation where judges try to assess and evaluate scientific evidence that scientists themselves have not yet fully explored.163 In the words of Windeyer J in Mount Isa Mines Ltd v Pusey,164 the law must be ‘marching with medicine but in the rear and limping a little’. It is submitted that while regard must be had to this aspect, one must also bear in mind that the legal system must keep pace with an ever-evolving society that constantly increases its knowledge.165

Factors that impact upon the issue of the nature of the harm required to found a psychiatric injury claim include the following: constitutional and other policy considerations, whether there are other more effective methods of vindicating workers’ rights and developments in the law relating to non-pecuniary interests. All these factors must be assessed in the context of the general reticence by our

160

JD Van der Vyver ‘The State, the Individual and Society’ (1977) 94 SALJ 291.

161

MG Bridge ‘Contractual Damages for Intangible Loss: A Comparative Analysis (1984) 62

Canadian Bar Review 323 at 370.

162

Sections 1(a) and 7(1) of the Constitution.

163

PS Milich ‘Controversial Science in the Courtroom: Daubert and the Law’s Hubris’ (1994) 43

Emory Law Journal 913 at 914.

164

(1970) 125 CLR 383 at 395.

165

The oft-cited dictum by Innes CJ in Blower v Van Noorden 1909 TS 890 at 905 springs to mind: 'There come times in the growth of every living system of law when old practice and ancient formulae must be modified in order to keep in touch with the expansion of legal ideas, and to keep pace with the requirements of changing conditions.'

courts to extend remedies in terms of the Aquilian action unless it is considered justified.166