by Professor Hugh Koch, Clinical Psychologist and Visiting Professorby Professor Hugh Koch, Clinical Psychologist and Visiting Professorto Birmingham City University
The aim of this paper is to understand and learnThe aim of this paper is to understand and learnfrom the cases reporting in BAILII or WestLaw andassociated sources how psychological thinking isrelevant.
Over the past three years (2016-19) we havepublished interesting cases in Tort Law (Koch, 2019)in Personal Injury Brief Update Law Journal(PIBULJ). This model of expert commentary isdiscussed in this paper.
Case Law Analysis
Many, if not all, civil cases have human/psychological/social aspects which provide a commentary of thelegal activity in any one case. A comprehensive andin-depth perusal of UK Case Law reveals that manyaspects of social and cognitive psychology pertain tothe cases seen at any level of the court system (Fig. I)
Towards the Medico-Legal Commentary
A group of clinical psychological psychologists experiencedin conducting medico-legal psychological assessmentsin the UK typically in the area of personalinjury and medical negligence litigation have developeda process by which psychological theory andpractice can be considered and applied to the understandingof the psychological implications of legalcase precedents, authorities and general descriptionsof cases. (Koch,2016 a,b,).
This pilot study followed earlier publications of psycho-legal issues in 1999 and 2000 (R.V. Turner, 1999)when the author published two litigated cases, onecriminal (covering somnambulism, the features ofsleep walking and one civil case (Bishop v Doves PLC(2000)).
The current study of 21 recent Tort Law cases hasbeen based on a process which follows closely with thepublication of a legal case, identified key psychologicalissues which are then discussed with reference tothe appropriate research or publications.
2016 -2019 Legal Mind Care and Commentaries
The complete 21 Legal Mind Case and Commentaries which have been researched and written during 2016 – 2019 and were published in PersonalInjury Brief Update Law Journal (PIBULJ). They address key legal and medico-legal issues including:
• Effects of sudden shock ‘But for’ test
• Reasonableness and logicality of evidence
• Plausibility in causation
• Assessing dishonesty
• Work stress identification
• Regulating Expert Evidence
• Opinion changing
• Honesty or Dishonesty
• Truth arbiter – Judge or Expert
• Material Contribution to causation
• Validity of Expert Evidence
• Uncertainty in Judicial decision making
• Joint Statements
• Expert Impartiality
• Post-cyber data breaches
• Operationalising of truthfulness variables
One specific case is summarised below:
Assessing distress post-cyber breaches[Koch HCH, Laraway A, Pelser C & Lamswood S2018]
This is the twentieth in a series of Case reports and Commentaries from Dr Koch and colleagues.
Legal Mind Case and Commentary - No. 20
Case: A recent case involving data breaches is sum marisedbelow and debated.
TLT and others vs. Secretary of State for the Home Department and the Home Office (2016) EWHC2217 (QB)
This case involved the publishing of family return statistics which, by error, included details of applicationsfor asylum or leave to remain. Before the error was discovered, one unknown individual had downloaded and saved the spreadsheet.
One individual (TLT) was notified of this data breachinvolving his personal and status details.
Areas of legal contention in this case involved whether TLT was subject to (proof of) distress and whether this crossed a threshold below which damages were not recoverable. The judge correctly took into account the assessment of damages in personal injury psychological cases, to ensure appropriate comparison.Although he did not necessarily define operationally what the threshold was, he opined that this approach of differentiation was appropriate in this case. He also took into account the claimant’s loss of control over his private and confidential information.The background to this case involved TLT, a citizen of Iran, who came to the UK on a visitor’s visa. The judge made a global award taking into account the circumstances and the ‘distress’ which he had experienced.The award was in line with equivalent awards in PI cases for moderate psychological and psychiatric damages. The award was not differentiated into parts.
This summary is in line with the outcome of threeother cases:
1) Burell v Clifford (016) EWHC (Ch)
2) Vidal-Hall, Hann and Bradshaw v Google Inc.(2016) EWCH 2217 (QB)
3) Gulati v GMC (2001) UKPC 22 (5.4.01)
In each of these cases, there was debate about howto partial out contributing factors to the ‘distress’experienced and concluded that one overall awardfor distress was appropriate.
It is likely that during the next four years, the frequency of cyber crimes and breach cases will increase.At present, provided that the assessment of the psychological impact on individuals of the index crimeor data breach is comprehensively made by the appropriate expert with experience of these types of cases, then whether the type or types of distress are partialled out and differentiated from each other is of a less concern, at this moment of time. However,currently, what is of most concern is to ensure the knock on effects of data breach in terms of serious andsignificant adverse life events such as unemployment,relationship breakdown and relocation pressure areadequately assessed as well as the more obvious clinicalinjuries of depression and generalised anxiety (1,2, 3).
The number of high-profile data breaches in the last few years has increased. The highest profile case this year being the Facebook and Cambridge Analytica data breach which affected up to 87 million people.How are psychological damages cases taken into account when there could be millions of people that could come forward in some cases due to the nature of the source the breach came from.
How can causation be proven beyond reasonabledoubt that it has had psychological damages to theperson outside of the current context they were in?e.g. the stress of awaiting an asylum application andright to stay? These questions remain for furtherexploration and analysis.
In this example above, it can be clearly seen how the initial description and summary of the case with judgment from the Judge leads on to a psychological commentary concerning relevant psychological thinking.
Reading, analysing and understanding legal reports is a crucial skill for legal professionals.
In our opinion, there are three current areas of contemporary importance in legal case report analysis and interpretation: Expert evidence, evidential reliability and psychological injury (Koch and Reynolds,2019).
Expert Evidence Expert Evidence illustrated in cases in BAILII which have implications for Part 35-related issues for experts include:
• Duty to restrict expert evidence
• General requirement for expert evidence to begiven in a written report
• Written questions to experts
• Instruction to a single joint expert
• Contents of repor
Case Report analysis could also provide informationand court experience of issues such as:
• Causation and material contribution
• Partial dishonesty
• Total dishonesty
• Specific or cumulative threshold
• Conscious or unconscious reliability
• Estimating level of ‘abuse of process’
• Clarity of allegations of fraud
• Levels of inference of dishonesty
• Inconsistency of dishonesty
Case law should address issues pertaining to PsychologicalInjury and Law:
• Eggshell skull rule
• Duty of care• Proximity Test (time, space, relationship)
• Presence/absence of physical injury
• Pre-existing• Novus actus or continuous
• Remoteness of damage
• Mitigation of loss
Robust opinions need robust reasoning
In the field of Case Report analysis, expert opinion can be operationalised in terms of a number of key postulates called Koch’s medico-legal postulates.These relate to the medico-legal contexts of injury analysis, expert evidence and evidential reliability.Below, in figure VI, is the first seven of thesepostulates (Koch, 2015).
Koch’s medico-legal postulates
I. A robust opinion should address diagnosis,causation and attribution, duration and prognosis.
II. A robust opinion will include more than one type of evidence. An opinion based on claimant self-report only may still be valid but is a ‘weak’ opinion in medico legal terms.
III. The classification/diagnostic categories given in Diagnostic and Statistical Manual of Mental Health Disorders (DSM) and the International Classification of Diseases are a part of a formulation of expert’sopinion – this systematic check of relevant criteria must be balanced by wider clinic judgement and contemporaneous records, if available.
IV. The expert’s mental state examination should be consistent with the claimant’s description of currently active symptoms – a clear discrepancy reduces the robustness/strength of an opinion.
V. Wherever possible, the claimant’s computerised GP attendance records should be made available to the expert. The subsequent analysis (i.e. evidence of orlack of corroborative data) will increase the strength or reliability of the opinion given.
VI. A therapist who has already treated a claimant cannot provide an impartial or independent expert opinion on issues of diagnosis, causation, or prognosisfor that claimant.
VII. A robust opinion should include a history offactors which could, on the balance of probabilities,affect a specific index event reaction.
It is our intention to develop this approach to case law analysis and understanding over the next few years via a closer inspection of recent case law and contribute to an expanded application of psychological theory and practice to it. By doing this, we aim todevelop further a wider understanding of the interfaceand overlay between law and psychology.
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Bishop v. Doves PLC 2000
Burell v. Clifford (016) EWHC (Ch)
Gulati v GMC (2001) UKPC 22 (5.4.01)
R.V. Turner (Koch, 1999)
Vidal-Hall, Hann and Bradshaw v Google Inc. (2016)EWCH 2217 (QB)