Floodgate Essay

A factor that greatly impacts the way tort law operated is policy consideration, this is used to describe a “certain type of consideration which the courts take into account when deciding the case ” for example, ‘outside’ factors could influences the court’s decision making as judges think about what is the best interest of society as a whole. This was further defined by Conaghan & Mansell who saw that “policy was a ‘catch all’ phrase that describes judicial consideration that is non-legal ” thus, policy can be seen as looking beyond legal precedent of the case for example, some policy factors that considered by judges are “loss allocation, where a party will be likely to be imposed if they are able to stand the loss and practical consideration

This entails the courts fear of receiving an increase of claims regarding psychiatric injury since the symptoms of psychiatric injuries are wide ranged and it is capable to affect a wide range of people. This issue of ‘floodgate’ is mainly apprehension that this rapid increase of the same claim could obstruct the court system by spending too much compensating all victims of psychiatric injury . An example of the ‘floodgate’ policy being the one of the reasons not to compensate the victims could be seen in the case of Alcock v Chief Constable of South Yorkshire [1992] . This case included victims who witnessed the Hillsborough disaster and claimed to suffer from ‘nervous shock’ due to witnessing the event, therefore, since there were a large amount of victims and most of the victims were not primary victims and that by accepting the claims would only increase the amount of potential claims since the disaster was broadcasted on national TV thus, a larger number of potential victims. Therefore this ensures that there are lower ricks of economical loss since claims of psychiatric injury are more difficult to diagnose than physical injuries. However it has been argued that the fear of floodgate is distorted as “the requirement of proof that the plaintiff is suffering from a recognised psychiatric illness is a considerable hurdle to surmount .” Thus, showing how there may not be a large impact made by policies since the cases that need to be compensated will show though classification