Home | © 2018 GA Publishing Mosman Sydney for legal practitioners


Cited by Roche DP in Dept Corrective Services v Bowditch [2007] NSWWCCPD 244.:

NSW v Seedsman [2000] NSWCA 119. Spigelmann CJ:

112 DSM-IV does make provision for a case in which a person learns about an event without directly observing it. However, this basis for a diagnosis is limited by DSM-IV to the case of "a family member or other close associate". The victims to which the Respondent was exposed do not answer that description.

113  It is an essential requirement of liability for pure psychiatric damage that a plaintiff suffer a recognised psychiatric illness. (See e.g. Mount Isa Mines Limited v Pusey [1970] HCA 60; (1970) 125 CLR 383 at 394; Mullany and Handford Tort Liability for Psychiatric Damage (1993) Chapter 2). The Appellant's submission that the Respondent did not suffer Post Traumatic Stress Disorder could, if accepted, mean that this condition was not satisfied, unless some other illness was established.

114  DSM-IV is not a statutory formulation which a court must construe and decide whether the requirements are satisfied. It is, as its title suggests, a "diagnostic manual" for clinical use. It contains within itself a number of explicit warnings against the kind of use to which the Appellant sought to put it and which emphasise that the criteria are only guidelines for professional judgment.

115  Under the heading "Cautionary Statement", the authors say:

"The specific diagnostic criteria for each mental disorder are offered as guidelines for making diagnoses, because it has been demonstrated that the use of such criteria enhances agreement among clinicians and investigators. The proper use of these criteria requires specialised clinical training that provides both a body of knowledge and clinical skills".

116  Under the heading "Use of Clinical Judgment" the authors say:

"It is important that DSM-IV not be applied mechanically by untrained individuals. The specific diagnostic criteria included in DSM-IV are meant to serve as guidelines to be informed by clinical judgment and are not meant to be used in a cookbook fashion. For example, the exercise of clinical judgment may justify giving certain diagnoses to an individual even though the clinical presentation falls just short of meeting the full criteria for the diagnosis as long as the symptoms that are present are persistent and severe."

117  Finally, under the heading "Limitations of the Categorical Approach", the authors say:

"DSM-IV is a categorical classification that divides mental disorders into types based on criteria sets with defining features. ... A categorical approach to classification works best when all members of a diagnostic class are homogenous, when there are clear boundaries between classes; and when the different classes are mutually exclusive. Nonetheless, the limitations of the categorical classification system must be recognised.

In DSM-IV, there is no assumption that each category of mental disorder is a complete discrete entity with absolute boundaries dividing it from other mental disorders or from no mental disorder. There is also no assumption that all individuals described as having the same mental disorder are alike in all important ways. The clinician using DSM-IV should therefore consider that individuals sharing a diagnosis are likely to be heterogenesis even in regard to the defining features of the diagnosis and that boundary cases will be difficult to diagnose in any but a probabilistic fashion."

118  As one commentator has noted:

"The DSM represents guidelines that should be subjected to clinical judgment, adherence to the diagnostic criteria is not mandatory but advisory". (Neal "The Pitfalls of Making a Categorical Diagnosis of Post Traumatic Stress Disorder in Personal Injury Litigation" (1994) 34 Med, Science and the Law 117 at 121).

119  DSM-IV also contains reservations about its use in litigation which it is unnecessary to set out. The limitations of such use was also referred to in Vernon v Bosley (No 1) [1996] EWCA Civ 1310; [1997] 1 All ER 577 esp at 610-611 per Thorpe LJ. At 611 his Lordship rejected the proposition that the existence of a recognised psychiatric illness can be reduced to PTSD as defined in the DSM-IV or nothing.

120  Aspects of the application of Post Traumatic Stress Disorder in litigation remain controversial. (See e.g. Mendelsohn "Post Traumatic Stress Disorder and Litigation" (1999) 15 Aust Forensic Psychiatry Bull 3; Freckelton "Post Traumatic Stress Disorder: A Challenge for Public and Private Health Law" (1985) 5 J of Law & Med 252).

121 The issue is not one of labelling, but of establishing a psychiatric injury of some character. As Brennan J put it in Jaensch v Coffey [1984] HCA 52; (1983-1984) 155 CLR 549 at 560:

"Compensation is awarded for the disability from which the plaintiff suffers, not for its conformity with a label of dubious medical acceptability."

122  In each case, the Court must deal with the particular submissions made to it.

123  In the present case, the Appellant did not rely on any particular restriction on the scope of recovery for pure psychiatric injury. Indeed, it accepted that the Respondent was entitled to recover for pure psychiatric injury if that is what she suffered. The issues posed by the Appellant were whether the Respondent had suffered any such injury at all and, if so, whether injury of that kind was foreseeable. In its submissions to the trial judge, repeated in this Court, the Appellant accepted the applicability of Walker v Northumberland County Council [1995] 1 All ER 737. That case suggests that pure psychiatric injury is within the general duty of an employer to take reasonable care to avoid exposing employees to unnecessary risks of injury. (See Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 at 307-8).


* The Sydney Morning Herald 22.02.12:  But in reality, the vast majority of specialists in mental health, be they psychiatrists, psychologists or counsellors, do not take the DSM too seriously - nor should they. The manual's framers in 1980 explicitly cautioned against taking the guidelines too literally, but encouraged the use of it as a standardised communication tool. More >>

* The Australian, 14.06.11: Allen Frances, who chaired the committee that produced the current diagnostic bible for psychiatry, the DSM-IV, has warned that Professor McGorry's Early Psychosis Intervention Centres do not have a reliable early diagnosis tool. More >>



Previous page: DRE     Next page: Dupuytren's contracture

© 2018 GA Publishing Mosman Sydney | piets/wcms | Account

Common Law Monthly Summaries

12 editions $385 incl GST

Subscribe Sample