Coupled with policy considerations, and the prevention of fraudulent claims, the law in this area is hazardous. Previously, policy considerations played a large role in restricting employee claims, in the interests of economic and manufacture growth, as well as the principle of contributory negligence and violenti non fit injuria. More recently, the law in this area has developed into a complex system based on the obvious potential problems created by broadening or narrowing too far the limits of the law. The courts have recognised that a single, simple test to determine psychiatric harm is not sufficient, “for reasons that concern both its potentially uncontrollable nature, and political and moral parameters imposed by the structure of western open-market societies on the legal system.”2 In order to fully understand exactly what principles and tests the courts adopt, one must examine the relevant case law. The law in this area is vaguely split into: a) the psychological or physical harm actually occurring to the employee, and; b) the physical harm occurring to a third party, witnessed by the employee.
In cases, where the harm directly occurred to the employee, the primary test is one of foreseeability; if it can be proven that physical or psychiatric injury was reasonably foreseeable, compensation for psychiatric harm is possible.3 Where an employee suffered a nervous breakdown at work, the courts indeed asked whether the breakdown was reasonably foreseeable, actual or probable physical harm was not relevant or necessary.4 Rose J confirms this, stating: “the employer whose system of work negligently induces psychiatric injury without any physical injury…is just as liable as one who causes physical injury.”5 Yet does the concept not appear a little simplistic? The issues surrounding the decision in Walker have the potential to open several difficulties – different jobs involve different levels of stress and risk, whilst