Moral Injury: An Emerging Aspect of the Employer’s Duty of Care to Employees?

Abstract

Moral injury is a discrete form of harm affecting individuals as a potentially avoidable consequence of exposure to a morally injurious event. That injury (independent of psychological injury or illness) has been identified as a cause of physical symptoms, suicide and suicidality. Originally identified within military and veteran cohorts, it is observable in emergency responders, healthcare providers, human rights advocates and others. Its aetiology suggests that other groups where the potential for tensions between personal morals, professional ethics and occupational activities arises (such as whistleblowers, law enforcement personnel and lawyers) may be at risk. Despite increasingly diverse evidence identifying moral injury as a substantive harm with significant consequences, the legal options for redress are unclear. This article explores whether requirements for establishing a duty of care as a precursor to a negligence claim are likely to pose an insurmountable obstacle for plaintiffs, including in the context of employer–employee duty relationships. It concludes that despite popular perceptions that negligence law is unlikely to be able to accommodate moral injury claims, a closer reading of key judgments indicates that there are opportunities for it to potentially be recognised as a harm on a principled basis—consistent with existing jurisprudence and legislation—for the purposes of establishing a duty of care. In the event that normative claims for its recognition are resisted, the justification for that resistance must be found outside historical development of legal principles from case law.

1. Introduction

Although ‘the categories of negligence are never closed!’ (Donoghue v Stevenson 1932, p. 619), the categories of harm since the 1930s have remained resolutely stuck. Notwithstanding judicial recognition of pure economic loss arising from negligent misstatement (Hedley Byrne & Co Ltd. v Heller & Partners Ltd. 1964), recognition on an exceptional basis of other forms of pure economic loss (Mallonland v Advanta 2024) and recognition of ‘pure’ mental harm,1 expansion of the types of harm recognised for purposes of negligence remains remarkably limited.2

The evolution of ‘nervous shock’ into ‘pure mental harm’, requiring a ‘recognised psychiatric condition’ has not been free of criticism (Vines et al. 2010; P. R. Handford 2006; Freckelton 2001; Mendelson 1992; Stapleton 1994; Witting 1998). The legal principles that have emerged show significant potential for plaintiffs who have experienced identical circumstances to be treated differently by the law, based on the diagnostic label that has been attached to them. Implicit in the law’s valorisation of psychiatric diagnosis is an assumption that such diagnoses are objective, consensus-based and verifiable (Review of the Law of Negligence 2002, para. 9.6, 9.36, 9.40-410). The reality is otherwise, and the law’s trust in their precision and accuracy is, therefore, misplaced (Tame v New South Wales; Annetts v Australian Stations Pty Ltd. 2002, pp. 522–3). Nor is it clear from the case law what is actually being compensated (Butler 1997). Is it the injury or diagnosis per se, as is indicated by the significance attached to diagnosis in pure mental harm claims, or is it the effect of the negligent act on the plaintiff’s functional capability and their ability to live their life as they would have had it not been for the defendant’s negligence, consistent with the principled of restitutio in integrum?

The problems underpinning conceptualisation of pure mental harm claims become apparent when their ability to accommodate emerging forms of harm, such as moral injury, are examined. Reflecting the theme of this special issue—when the system does not seem to work—a key objective of this article is to demonstrate, using the emerging harm of moral injury as an example, how this system, if not broken, has at least experienced ossification—potentially to the exclusion of emerging harms and deserving plaintiffs that may have previously been recognised under the traditional ‘unscientific’ rubric of nervous shock.

The emergence of moral injury as a discrete form of harm, often but not always accompanied by physical symptoms or a diagnosed psychological illness, potentially challenges the legal principles regarding recognition of harm in negligence that have evolved since 1934. Although moral injury shares some features with psychiatric injuries, there is a consensus amongst experts that moral injury is not simply a cause of psychiatric injury, or a subcategory of psychiatric injury.

This article considers whether there are any circumstances where a duty to avoid negligent infliction of pure moral injury might be recognised by the courts under common law or general statutory principles, including by analogy with pure mental harm cases where a comparable duty has been considered. It concludes that recognition of such a duty is consistent with common law principles, particularly in the context of employer–employee relationships (where the circumstances required for establishing breach of such a duty are most likely to arise). Recognition of a duty to avoid negligent infliction of moral injury outside the scope of employer/employee and analogous duty relationships may be less likely, reflecting the more restricted recognition of duties to avoid negligent infliction of mental harm outside the context of employment. The article makes these arguments in several parts.

Part One describes the phenomenon of moral injury and explains why it is an emerging social issue with relevance to negligence proceedings.

Part Two considers the historical metamorphosis of nervous shock into the more restrictive modern replacement, pure mental harm dependent on a diagnosed (or recognised) psychiatric condition—a metamorphosis which reflects reemergence in popularity of the Cartesian distinction between mind and body that dominated medicine at the time. It argues that rather than a direct substitution of nervous shock for pure mental harm, a closer analysis of relevant judicial reasoning arguably suggests, instead, that pure mental harm represents a non-exhaustive subcategory of harms formerly recognised as nervous shock harms, leaving open the potential existence of an alternative subcategory encompassing other traditional remaining nervous shock harms. Such a subcategory could include what are now identifiable as moral injury harms.

Part Three considers analogous cases focussing on claims for pure mental harm since Mt Isa Mines Ltd. v Pusey (1970), identifying critical differences in the duty of employers to avoid negligent infliction of mental harm, as distinct from other duty circumstances.

Based on the judicial reasoning underpinning those claims, it argues there is no reason to think that similar rules and principles would not be applied to claims contending a duty to avoid negligent infliction of moral injury in the employee-employer relationship. It notes that moral injury claims are less likely to occur and to be recognised outside the context of employment, or closely analogous, duty relationships. In part that is because of circumstances giving rise to moral injury, policy arguments against recognition of such claims in the context of contributory wrongdoing by plaintiffs and lack of foreseeability.

Part Four considers the normative justifications for recognising such a duty, grounded in broader social and economic considerations underpinning other aspects of occupational health and safety law. It notes that, rather than being a beacon of independently verifiable and replicable objective criteria, psychiatric diagnosis criteria often expressly incorporate subjective assessment by both clinician and patient. It also highlights the problems inherent in co-opting the tools of psychiatric diagnosis—specifically the diagnostic criteria manuals—for purposes for which they were not designed, to achieve objectives which are not consistent with that purpose. Saliently, it argues that failure to recognise an employer’s duty of care to avoid negligently inflicting moral injury on employees in circumstances where such injury is foreseeable would create arbitrary distinctions between those employees who manifest physical and psychological symptomology as a consequence of their moral injury and those who do not, either as a result of their own underlying fortitude and resilience, or because they have proactively engaged with harm minimisation interventions, potentially funded from their own pockets. Non-recognition essentially permits employers to escape responsibility for failing to take reasonable measures to protect the integrity of their employees against risks that may not only be foreseeable, but indeed may be obvious, potentially in breach of their own policies. This situation is of course similar to plaintiffs who suffer mental harms that elude diagnosis as well. It suggests, however, that rather than simply accepting demonstrably problematic principles, law should seek to improve and reform them, and certainly not expand their application without careful consideration of the broader social implication and injustices that may result from their perpetuation.

Part Four also notes the potential for legislative intervention within certain sectors of the employment market. Saliently it seems likely that moral injury will be recognised through statutory schemes applying to military personnel and veterans, and potentially first responders, for example. Importantly, it notes that these are not the only cohorts at risk of moral injury, leading to the potential for arbitrary recognition of pure moral injury harms dependent not of the negligence or otherwise of the employer but rather the lottery of the sector in which the employee is engaged, offering an additional justification for a considered rationalisation of not only the appropriate response to moral injury but also of the underlying common law principles that may argue against its recognition.

The conclusion is that recognition of a duty of care by employers to take reasonable steps to avoid negligently inflicting moral injury on employees is consistent with legal principle; and that, more broadly, the principles underpinning pure mental harm should be reconsidered and evaluated in light of both recent advances in medical knowledge but also the broader social and historical contexts in which they are applied. Normative justifications for and against recognition may be more ambivalent: persuasive argument for non-recognition of moral injury claims is, therefore, more likely to be found in the realm of policy than legal principle.

2. Part One: What Is Moral Injury?

In 2024, the Royal Commission into Defence and Veteran Suicide (2024) delivered its final report. An entire chapter focussed specifically on moral injury in serving members and veterans (Royal Commission into Defence and Veteran Suicide 2024, ch. 21). Most sobering is the Commission’s finding that moral injury—with or without accompanying psychological illness or injury—is a significant cause of suicide and suicidality in veterans and serving ADF members (Jamieson et al. 2023; Khan et al. 2023). The report represents a landmark in gradual recognition of moral injury as a form of harm.

Although the term ‘moral injury’ was first used in 1994 by Shay (1995), the phenomenon is evident over two millennia (Koenig and Al Zaben 2021; Kelle 2021; Hurlock 2022; Čartolovni et al. 2021). Moral injury is commonly defined as the ‘lasting psychological, biological, spiritual, and social impact of perpetrating, failing to prevent, bearing witness to, or learning about acts that transgress deeply held moral beliefs and expectations’ (Litz et al. 2009). Jinkerson (2016) identified guilt, shame, spiritual/existential conflict and loss of trust as core symptoms of moral injury; with depression, anxiety, anger, re-experienced self-harm and social issues as secondary symptoms.

Moral injury occurs along a spectrum of responses to an event that ‘violate a person’s moral or ethical code’. Exposure to potentially morally injurious events (PMIEs) may lead to moral distress (less severe and generally temporary or transient) at one end of the spectrum and moral injury (more severe and longer lasting, potentially permanent) at the other. Moral injury is often conflated with or misdiagnosed as post-traumatic stress disorder (PTSD). Unlike PTSD, moral injury is associated with self-blame, grief, sorrow, betrayal and a sense of existential crisis (Griffin et al. 2019; Litz et al. 2009). Patients with moral injury may present with an array of biological and psychological symptoms, in addition to behavioural and other issues.

Although moral injury coexists with PTSD and other recognised psychiatric illnesses in some patients, not all moral injury sufferers develop recognised psychiatric conditions. An individual can have PTSD without moral injury; moral injury without PTSD; or both (Metcalf et al. 2022). Indeed, one of the strongest lines of evidence for moral injury is that traditional psychiatric risk factors for suicidality, such as PTSD, do not fully account for military and veteran suicide; nor are interventions directed against those traditional risk factors necessarily effective in responding to veteran suicidality (Jamieson et al. 2023; Royal Commission into Defence and Veteran Suicide 2024).

Currently moral injury is not captured by diagnostic manuals, such as the Diagnostic Statistical Manual of Mental Disorders (DSM-5), the manual that is widely regarded as the authoritative catalogue of mental health diagnoses and has become, by default, a filtering tool for psychiatric injury claims within the Australian legal system—notwithstanding the presence of disclaimers clearly outlining the limitations of its use for forensic purposes (American Psychiatric Association 2013). It is, however, widely acknowledged within clinical literature that moral injury is not a mental illness or disorder but instead is broader. Left untreated it can—but does not always—progress to, or coexist with, mental disorders including PTSD, depression and anxiety, and suicidality (Metcalf et al. 2022, p. 371).

A focus of the Royal Commission was the organisational and cultural factors within Defence that contribute to high rates of suicide and suicidality amongst serving members and veterans. From a finding that such organisational or cultural factors are a cause of moral injury, the next step may be to ask what, if any, liability should attach to those responsible for those factors and for failing to protect people from experiencing those harms? One answer might be to state that, as veterans and members have access to statutory compensatory schemes set up to provide support to people that are harmed in the course of military service, any legal response to moral injury claims should be addressed through amendment to those statutory schemes.

Such a response is problematic. The Royal Commission was concerned with military members and veterans, but other populations also experience harms arising from moral injury. The literature identifies primary responders and healthcare workers, journalists, and lawyers as being at risk, however employees in any profession governed by strong ethical frameworks may be exposed to PMIE (Koenig and Al Zaben 2021; Čartolovni et al. 2021; Day et al. 2022; Kamkar et al. 2020; Pfeffer et al. 2023). Whistleblowers may also conceivably be at significant risk of experiencing moral injury, particularly if institutional responses and policies are inadequate; to date, this population has received little attention in the literature. In reality, the circumstances giving rise to moral injury exist in many workplaces and professions, potentially arising any time there is an unresolved tension between the personal or professional morals and ethical standards of an individual and the actions of others—including the organisation itself—which are in conflict or tension with those ethics or values. For some patients who develop moral injury, their own actions will be a contributing factor. A salient example might be a military member or employee who commits a crime or other act that offends their own values or beliefs under orders from a superior officer or director, for example, corporate accountants complying with pressure to conceal a white collar crime, employees historically directed to ‘cover up’ allegations of child sexual abuse by organisations, ‘Big Tobacco’ employees suppressing evidence about cigarettes (Parker et al. 2017) or human resources officers denying the assaults evident in many #MeToo revelations (Prasad 2018). Despite knowing that their actions are ‘wrong’, they may nonetheless feel compelled to carry them out, either as a result of choosing the wrong pathway when confronted with a moral dilemma or due to coercive workplace hierarchies that leave them no other option.

For other people who experience moral injury, the circumstances giving rise to their moral injury may be entirely independent of their own actions. They may witness or otherwise discover acts committed by others that outrage their personal morals but then subsequently be left feeling betrayed by their employing organisation in the absence of meaningful consequences for the witnessed or discovered wrongdoing. From this perspective, groups including whistleblowers are clearly at risk.

Considering the ways in which moral injury manifests, therefore, there are several key normative reasons why it should be recognised as a harm from a plaintiff’s perspective. For a plaintiff who has moral injury but exercises personal autonomy and responsibility in taking steps such as counselling or other therapy to manage and treat the injury before it progresses too far, there are no avenues available to seek compensation for the financial outlays associated with that proactive approach. In contrast, the moral injury patient who also has a diagnosed psychiatric illness or physical manifestations of illness may be able to recover compensatory damages. Similarly, a patient whose moral injury leads to suicidality may be unable to meet existing accepted harm thresholds, unless the suicidality is attributed to a coexisting mental harm. In contrast, the estate of a person with moral injury whose moral injury causes them not only to become suicidal but actually to commit suicide may potentially have a claim for wrongful death.

Such outcomes are both arbitrary and counter-intuitive, resulting in a system that aggravates harms to a certain threshold level before offering relief, rather than prioritising harm minimisation through early intervention. This is, of course, not dissimilar to the inequities that potentially exist under the existing approach of negligence to mental harms. For example, two witnesses may be present at the same traumatic negligently caused event and seek to assist in a rescue. The witness who develops a recognised psychiatric harm (either because they failed to seek, or could not pay for prophylactic intervention, or could not otherwise avoid it) will meet the requirements for recognition of their harm. The witness who either seeks prophylactic intervention or otherwise avoids developing a psychological harm, possibly due to personal resilience or psychological constitution, is left without a remedy and potentially out of pocket, notwithstanding that the defendant is equally negligent in both cases.

3. Part Two: From ‘Nervous Shock’ to ‘Diagnosed Psychiatric Condition’

‘Nervous shock’ first came to the attention of an appellate court within the common law world in 1887, when the Victorian Railways Commissioners appealed to the Privy Council against a Victorian Supreme Court decision in favour of James and Mary Coultas (Victorian Railway Commissioners v Coultas 1888). In Coultas, a railway employee permitted James to drive his buggy carrying his pregnant wife Mary and her brother into a railway level crossing. While traversing the crossing, they became aware of an approaching train. They narrowly escaped injury: the train travelling ‘at rapid speed, passed close to the back of it and did not touch it’ (ibid, p. 224). Mary fainted, subsequently suffering an illness attributed to the fright, affecting her eyesight and her memory.3

Mary and James sought damages from the Railway Commissioners. Although initially successful in the Victorian Supreme Court, on Appeal to the Privy Council the outcome was reversed. Applying the rule that ‘damages must be the natural and reasonable result of the defendants’ act: such a consequence as in the ordinary course of things would flow from the act’, the Privy Council found that Mary Coultas’ harms, ‘arising from mere sudden terror unaccompanied by any actual physical injury, but occasioning a nervous or mental shock’ could not be seen as a ‘consequence which, in the ordinary course of things, would flow from the negligence’ (ibid, p. 225).

Their Lordships were strongly influenced by the ‘floodgates’ policy argument. Fearing that upholding the original verdict would extend liability in potentially every case where negligence resulted in a plaintiff suffering nervous shock, the court noted existing difficulties in establishing causation between negligent acts and physical injuries would be increased, and ‘a wide field opened for imaginary claims’ (ibid, p. 226).

Curiously, their lordships noted ‘It is remarkable that no precedent has been cited of an action similar to the present having been maintained or even instituted, and their Lordships decline to establish such a precedent’ (ibid, p. 226). Four years earlier the Irish Court of Appeal in Byrne v Great Southern and Western Railway Co. had upheld a verdict awarding damages for nervous shock awarded to a man working in a telegraph office when a train, entering a railway siding, crashed into that office’s wall (P. Handford 2021, p. 435).

From an alternative—medical—perspective, it is perhaps unsurprising that a case involving railways as defendants should be the vehicle to first bring a claim for nervous shock to the attention of the courts, regardless of whether you view Coultas or Byrne as the seminal case (Kostal 1994).

The term ‘nervous shock’ first emerged as part of a series of medical lectures in 1866 by John Erichsen. Focussing on the nervous sequelae of railway collisions (previously referred to as ‘railway spine’ or ‘spinal concussion’), Erichsen (1866) argued that the nervous symptoms following railway accidents were the result of inflammation of the spinal cord caused by vibration and jarring, thought at the time to be a specific risk associated with rail travel. Terming these symptoms ‘nervous shock’, Erichsen attributed them to a physical injury or disturbance, notwithstanding that demonstration of the physical disturbance was beyond medical capability at the time (Erichsen 1866). Critics argued that the symptoms of nervous shock were emotional, rather than physical or neurological, in nature, likening them to trauma-induced hysteria (Keller and Chappell 1996; Gasquoine 2020; Mendelson 1998). Some went further, believing that nervous shock was a harm adopted by malingerers suffering from ‘compensation’ or ‘litigation’ neurosis who fraudulently sought to recover damages. ‘Traumatic neurasthenia’, in contrast, was an alternative framing of nervous shock symptoms capturing psycho- and physiological responses to stress and trauma that gained acceptance around the turn of the 20th century. The term begins to appear in the medical literature and in judgments in nervous shock cases around the same time (Yrondi et al. 2019).

Cartesian dualism—the separation of mind and body proposed by French philosopher Rene Descartes in the 17th century (Descartes 1998)—has historically exercised significant influence on both law and medicine, notwithstanding many criticisms (Letuka and Morar 2023; Latoo et al. 2021) and empirical disproofs (Ventriglio and Bhugra 2015) of its comprehensiveness as an explanation of human existence and morphology (Almog 2001; Hart 1994; Lahav and Shanks 1992; Sussman 1981). It is evident not just in the Privy Council’s concerns about ‘imaginary claims’ but is also reflected in the scepticism of some within the medical profession regarding nervous shock as a vehicle for fraudulent damages claims, discussed above. Vestiges of scepticism regarding the legitimacy of nervous shock and other psychiatric injury claims still remain, both within the law, and within the community generally. That is often attributable to concerns arising from the inability to substantiate such harms using conventional medical evidence (Butler 1997; Vines et al. 2010) and may reflect a historical judicial scepticism of psychiatry generally. As Lord Bridge of Harwich, in the context of advances in psychiatry since the early days of claims for nervous shock, noted, ‘For too long earlier generations of judges have regarded psychiatry and psychiatrists with suspicion, if not hostility’ (McLoughlin v O’Brian 1982, p. 433).

It is unsurprising that early writings on nervous shock, including in case law, use the term interchangeably to refer to symptoms and phenomena that we would now recognise as being neurological, psychiatric and emotional in nature. Kennedy J. in Dulieu v White (1901), one of the earliest cases to recognise a plaintiff’s claim for nervous shock, stated:

I may just say in passing that I use the words ‘nervous’ and ‘mental’ as interchangeable epithets on the authority… (in Coultas); but I venture to think ‘nervous’ is probably the more correct epithet where terror operates through parts of the physical organism to produce bodily illness, as in the present case. The use of the epithet ‘mental’ requires caution…

(Dulieu v White 1901, p. 672).

Dulieu foreshadowed recognition of ‘pure’ nervous shock claims which manifested in no accompanying physical injury:

Why is the accompaniment of physical injury essential? … I should not like to assume it to be scientifically true that a nervous shock which causes serious bodily illness is not actually accompanied by physical injury, although it may be impossible, or at least difficult, to detect the injury at the time in the living subject. I should not be surprised if the surgeon or the physiologist told us that nervous shock is or may be in itself an injurious affection of the physical organism

(Dulieu v White 1901, p. 677).

Coultas continued to represent the position of the law in Australia until after World War One, notwithstanding the significant advances in medical understanding of the relationship between mind and body facilitated by the unfortunately common incidence of ‘battle fatigue’ and ‘shellshock’ occasioned by the war. As noted by Mendelson:

By 1925 psychiatry had formulated a scientifically acceptable theory of neuroses, including traumatic neuroses. In a nutshell, according to the psycho-analytical view, the trauma of any stressful accident, in an individual with a specific emotional vulnerability, may trigger off latent predisposing mechanisms and result in a neurotic illness

(Mendelson 1992, p. 22).

Concurrent research demonstrating the relationship between the autonomic nervous system and the endocrine system, which controls physiological functions including digestion and respiration, highlighted the mechanisms by which emotional responses to stress and trauma could translate into physiological responses (ibid).

Australia’s High Court reconsidered nervous shock towards the end of the interwar period in the cases of Bunyan v Jordan (1937) and Chester v The Municipality of Waverly (Chester v Waverley Municipal Council 1939). Notwithstanding developments in psychiatry and neurophysiology, the High Court in Bunyan found that a reasonable man in the defendants position could not have foreseen that his actions (intoxicated threats to shoot himself or someone else within earshot of the plaintiff, firing a gun in an adjacent building and declaring that he would not live until morning) would cause the plaintiff the harm she complained of, namely, agitation and nervousness, neurasthenia and an inability to work for an extended period. Importantly, the court placed little weight on the plaintiff’s position as an employee of the defendant, something that is significantly at odds with the reasoning in later cases, as will be discussed more in Part Four. Bunyan, while not ruling out the possibility that nervous shock could be a recognised form of harm in negligence, did not find that it arose on the facts of the case.

The outcome in Chester, heard by the High Court a mere two years later, was equally unsatisfactory, albeit for different reasons. In Chester, the defendants had excavated a deep trench at the end of the plaintiff’s street. Heavy rainfall caused the trench to fill with water. The plaintiff’s seven-year-old son failed to return home after going outside to play; after a search for the missing child, the plaintiff was present when her son’s body was located and retrieved from the flooded trench by searchers. The plaintiff subsequently developed a severe psychiatric illness and sued the defendants for nervous shock (Chester v Waverley Municipal Council 1939, p. 6; Haigh 2021).

The majority (Latham, C.J.; Rich and Starke, J.J.; and Evatt J. dissenting) found that the plaintiff was not owed a duty of care by the defendant. Of the plaintiff’s claim, Latham, C.J., stated:

It cannot be said that such damage resulting from a mother seeing the dead body of her child should be regarded as ‘within the reasonable anticipation of the defendant’… Death is not an infrequent event, and even violent and distressing deaths are not uncommon

(Chester v Waverley Municipal Council 1939, p. 10).

Further:

It is … not a common experience of mankind that the spectacle, even of the sudden and distressing death of a child, produces any consequences of more than a temporary nature in the case of bystanders or even of close relatives who see the body after death has taken place

(ibid).

According to Latham, C.J., in order to recover, the plaintiff needed to show that the defendant owed her ‘a duty not to injure her child so as to cause her a nervous shock when she saw, not the happening of the injury, but the result of the injury, namely, the dead body of the child’. His Honour then alluded to the difficulties in defining to who, beyond mothers, such a duty would be owed.

Evatt J, in dissent, dismissed Latham, C.J.,’s finding that the plaintiff’s response to her child’s death and the recovery of his body as in some way exceptional as ‘mere assertion… contradicted by all human experience’ (Chester v Waverley Municipal Council 1939, p. 25). Unlike his colleagues in the majority, he not only engaged with the precedent established in Coultas, but also with the developments in psychiatry and neurophysiology that had occurred since Coultas:

It must always be a question of fact whether shock to the nerves causes ‘actual physical injury’. Today it is known that it does. In 1888 it was widely assumed that it did not. It is on this basis that the Coultas case is to be understood, and if so understood it has no application to cases like the present where ‘shock to the nerves’ is another name for actual physical disturbance to the nervous system

(Chester v Waverley Municipal Council 1939, p. 47).

Further supporting his judgment, Evatt, J., quoted Winfield commenting on the Coultas decision:

(It)… proceeded upon erroneous ideas about pathology, and the other Courts of this country and the Irish Exchequer Division have persistently declined to follow it. The fallacy lay in supposing that ‘bodily’ or ‘physical’ injury must exclude ‘mental’ injury as being too remote. It would be difficult to contend that damages ought to be given for the mere sensation of fear, but when fear or any other sensation produces a definite illness why should that illness be any more remote than a broken bone or an open wound?

(Chester v Waverley Municipal Council 1939, p. 48)

Several Australian jurisdictions subsequently enacted legislation abolishing the need for parents, children, or spouses of people negligently killed, injured, or imperilled who were seeking to recover damages for nervous shock to prove that there was a foreseeable risk of harm of them developing such a response. In other jurisdictions, Chester remained the most current statement of the law regarding nervous shock in Australia for the next thirty years, until the High Court considered the case of Pusey.

It is notable that in the legislation, the terminology used is ‘nervous or mental shock’. In Chester, the judgments of the majority and Evatt, J., typically refer to nervous or mental shock. It is clear that the courts were not drawing a distinction between them but instead referring to a species of harm broad enough to encompass both. It is also apparent from Chester that the court is seeking to draw a distinction between fleeting, short-term or transient disturbances and those that are longer lasting in nature. Both are key points that lay the foundation for the next part of this article, which contends that justification for modern-day distinctions between ‘psychiatric’ and ‘moral’ injury must look beyond historical case law for legitimacy.

4. Part Three: Analogies from ‘Pure’ Mental Harm Cases

Although development of the common law in respect to nervous shock prior to 1970 was stagnant, the same cannot be said for the state of medicine. During the period between 1939 (Chester) and 1970 (Pusey), knowledge and understanding of the relationship between traumatic events and psychological and physiological sequelae continued to expand (Lieberman and Ogas 2016). Psychiatry became the dominant medical subdiscipline in the treatment of patients whose symptomology resulted from trauma. Importantly, not all responses to traumatic events could be treated successfully by psychotherapeutic interventions. In particular, some forms of ‘war neuroses’ remained stubbornly resistant to recognised treatment.

This is an important point to note. While psychiatry as a discipline expanded and developed during this period, including providing a formalised, more detailed nosology for some conditions previously identifiable as ‘nervous shock’, it did not account for all conditions that historically might have been termed as ‘nervous shock’, including some patients diagnosed under the newly formalised diagnostic criteria with PTSD, particularly for subsets of nervous shock sufferers who experienced conditions frequently described as battle fatigue or shell shock. The fact that some of these patients remained non-responsive to psychiatric therapies which, if their diagnoses was correct, they should have responded to, raises the prospect that psychiatry does not provide a full account of all historical cases of nervous shock. Indeed, the phenomenon of treatment-resistant PTSD remains common even today (Royal Commission into Defence and Veteran Suicide 2024).

Given that psychiatry does not provide a comprehensive account of all nervous shock type conditions even in the 1970s, it is problematic that by 1970, when the High Court of Australia considered Pusey, references to mental or psychiatric injury or harm seems to have been used as an exhaustive and comprehensive replacement for nervous shock by the courts, disregarding the historical distinction between emotional and mental subcategories of nervous shock.

4.1. Pusey: The Importance of Questions Not Asked

In Pusey, the High Court was asked to consider not whether emotional shock leading to a non-psychiatric illness should be recognised as harm but rather whether emotional shock leading to a psychiatric illness should be recognised. For the purposes of Pusey, therefore, the conflation of psychiatric or mental harms and injuries with nervous shock was not material. It did, however, mark the development of a judicial and legislative trend to reshape all claims for nervous shock as dependent on development of a diagnosed psychiatric condition.

Pusey was employed by Mt Isa Mines as an engineer. After a loud noise he raced to the scene of an industrial accident, aiding a catastrophically burnt colleague. Pusey did not see the second victim but learned the following day that he had died. The victim Pusey had assisted died nine days after the incident. Pusey continued to work as usual for four weeks after the incident but, subsequently, developed ‘a profound psychiatric disability broadly comprehended in the term “Schizophrenia”… a “severe type of mental disturbance including disturbance of though, disturbance of mood and disturbance of behaviour and personality”’ (Mt Isa Mines Ltd. v Pusey 1970, p. 387).

The trial judge found that his employer had breached its duty of care to employees. The critical legal issue, however, related to the foreseeability of the plaintiff’s psychiatric illness because of that breach. The defendants led expert evidence that the particular type of illness Pusey developed was rare (Mt Isa Mines Ltd. v Pusey 1970, pp. 9–10). The primary judge found that ‘a reasonable employer in the circumstances ought to have foreseen that a fellow employee seeing another employee suffering from such gruesome burning injuries might well suffer some psychological reaction of more than a transient kind’. The primary judge concluded that it was sufficient that the employer should have foreseen the ‘broad category of injury’ suffered by the plaintiff rather than the precise injury he developed (Mt Isa Mines Ltd. v Pusey 1970, p. 3).

The High Court was unanimous in dismissing the defendant employer’s appeal against the finding that they owed Pusey a duty of care with respect to his psychiatric injury. There was no dispute that the employer owed the employee a duty to take reasonable steps to protect the employee from a risk of injury of a kind that a reasonable employer would have foreseen. The argument instead focussed purely on the issue of whether the kind of injury was foreseeable and whether the precise injury had to be foreseeable or merely the class of injury to which it belonged (Mt Isa Mines Ltd. v Pusey 1970, p. 4).

4.2. Extending Pusey to (Non-Employee) Others

Importantly, there were a number of jurisprudential threads running through the facts in Pusey, which provide important context for the development of psychiatric injury claims. Although the plaintiff in Pusey was an employee and, consequently, relied on the strongly protective duty of care of an employer to an employee to frame his case, he was also by way of being a witness.

Alternative threads of the common law had developed in which close relatives (typically spouses, parents, and children) of people who were killed, injured or imperilled had, since the time of the earlier railway cases, been able to recover compensation in some circumstances for the long-term sequelae of witnessing that death, injury or imperilment. But as noted by Windeyer, J.:

There seems to be no sound ground of policy and there certainly is no sound reason in logic for putting some persons who suffer mental damage from seeing or hearing the happening of an accident in different category from others who suffer similar damage in the same way from the same occurrence…

Windeyer, J., continued:

… the supposed rule that only relatives can be heard to complain is apparently transposition of what was originally a humane and ameliorating exception to the general denial that damages could be had for nervous shock close relatives were put in an exceptional class this allowed compassion and human sympathy to override the old adoption draconic and arbitrary which recognised only bodily ills as compensable by damages and made a rigid difference between ills of the mind and hurts to the body

(Mt Isa Mines Ltd. v Pusey 1970, p. 15).

He went on to note that such relatives, along with rescuers, fell within the category of ‘neighbours’ who were owed a duty of care with respect to reasonably foreseeable harms, as per Lord Atkin’s principle in Donoghue v Stevenson (1932, p. 580). He further noted that in the case of Pusey:

The duty of care is not based simply on duty to a neighbour it includes that but arises also independently from the legal relationship between the plaintiff and the defendant it is the duty of care which are master has for the safety of his servant foreseeable harm caused by a master to the mind of his servant is just as much a breach of his duty of care for him as harmed his body would be. That I think is this case

(Mt Isa Mines Ltd. v Pusey 1970, p. 15).

The case is, therefore, often cited as authority for broadening the circumstances in which legal ‘pure’ psychiatric injury could be recognised in negligence beyond close family members to include rescuers and other ‘neighbours’, as well as employees. The judgment clearly distinguishes between the foreseeability requirement for psychiatric injury occurring in the context of employer employee relationships and the foreseeability requirements for psychiatric injury occurring outside that category of relationship, something that should have been addressed in Bunyan thirty years earlier, but seems to have been overlooked.

After establishing that it is sufficient if the type of harm, rather than the specific harm, is foreseeable to establish breach of an employer’s duty of care to their employee in Pusey, the High Court returned to consider mental harms arising in the context of employment in Koehler v Cerebos (2005) and Kozarov v State of Victoria (2022).

In Koehler, the plaintiff developed complex fibromyalgia syndrome and a depressive illness, constituting a recognised psychiatric illness for the purposes of her claim. The plaintiff had consistently complained about her workload, on the basis that it was unachievable, rather than because it was affecting her health. The issue before the High Court was whether the defendant employer, based on those complaints, should have foreseen the risk of the plaintiff developing a psychiatric illness because of her workload and employment conditions. The Court specified that the relevant duty of care is owed to particular employees, rather than employees in general; therefore, foreseeable risks to particular employees must be considered through a similarly particular and specific lens:

It may be right to say that it is now a matter of general knowledge that some recognisable psychiatric illnesses may be triggered by stress it is however a further and much larger step to take to say that all employers must now recognise that all employees are at risk of psychiatric injury from stress at work. …

The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. That is why, in Hatton, the relevant question was rightly found to be whether this kind of harm to this particular employee was reasonably foreseeable. And, as pointed out in that case, that invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned

(Koehler v Cerebos 2005, pp. 34–5).

In Koehler, the Court also noted that

the employer engaging an employee to perform stated duties, is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job

(Koehler v Cerebos 2005, p. 36).

In Kozarov, the High Court referred to ‘misunderstanding of the effect of this Court’s decision in Koehler’ (Kozarov v State of Victoria 2022, p. 2), with respect to the emphasis placed in argument in Kozarov of the perceived requirement for ‘evident warning signs’. In Kozarov, the plaintiff was employed as a lawyer within the Victorian Office of Public Prosecutions Specialist Sexual Offences Unit (SSOU). Much of the argument in Kozarov focussed on the question of when the defendant should have become aware of ‘evident signs’ warning of the potential for the plaintiff to develop psychiatric injury. Kiefel, C.J., and Keane, J., found that the risk of psychiatric injury to all employees engaged in the SSOU was both inherent and obvious, a finding presumably supported by the defendant’s own admission in its Vicarious Trauma Policy, which expressly stated vicarious trauma was ‘an unavoidable consequence of undertaking work with survivors of trauma … in particular the survivors of sexual assault’ and that its effects could be ‘detrimental, cumulative, and prolonged’.

It should be understood, however, that the circumstances of a particular type of employment may be such that the work to be performed by the employee is inherently and obviously dangerous to the psychiatric health of the employee (just as other kinds of work are inherently and obviously dangerous to the physical health of the employee). In any such case, the employer is duty bound to be proactive in the provision of measures to enable the work to be performed safely by the employee. The present was such a case (Kozarov v State of Victoria 2022, p. 6).

Gageler and Gleeson, J.J., found that the plaintiff demonstrated an abundance of ‘evident signs’ signifying ‘more than merely the inevitable and universal experience of vicarious trauma in the workplace of the SSOU’. Gordon and Steward, J.J., noted that

Victoria’s duty was ‘not merely to provide (a) safe system of work’ but to ‘establish, maintain, and enforce such a system’, taking account of Victoria’s power, as employer, ‘to prescribe, warn, command, and enforce obedience to (its) commands…. the duty required Victoria to do ‘almost everything’ it could ‘short of forcing rotation’ to protect Ms Kozarov from the risk of psychiatric injury

(Kozarov v State of Victoria 2022, p. 83).

Based on Kozarov, therefore, there is evidence that the duty of care of employers who are employing employees to work in employment contexts with inherent or obvious risks of particular types of harm are on notice to actively monitor and intervene to protect employees against that risk.

The law regarding psychiatric injury arising outside the construct of an employer–employee duty of care has evolved more restrictively.

As noted by Windeyer, J., in Pusey, above, recovery by close relatives of a victim who were at the scene of a negligent event causing death, injury or imperilment of a loved one were originally permitted as an exception to a rule against recovery for mental harm claims. In Jaensch v Coffey (1984), the wife of a motorcyclist who was seriously injured because of a collision caused by the negligence of the defendant was not present at the scene of the accident. Instead, she was advised of the accident by telephone and attended the hospital, where she saw her badly injured husband, and was given an erroneous prognosis by hospital staff. She subsequently developed an anxiety disorder, for which she sought compensatory damages from the plaintiff. In that case, the framing of proximity to the negligent event was expanded beyond requiring the presence of the plaintiff at the scene, and their direct perception of incident, based on proximity—the ‘hearness, nearness, or dearness’ of the plaintiff to the victim or the event. This development reflected the contemporaneous outcome in McLoughlin v O’Brian (1982), where the House of Lords similarly held that the presence of the plaintiff at the immediate aftermath of an accident in which her children were involved was sufficient for her to recover damages for pure mental harm.

Although not an issue on the facts of Pusey, subsequent cases contextualised by the employer/employee duty of care indicate that ‘shock’ as a form of sudden sensory perception is not a requirement of recognition of psychiatric injury claims in that context either. While it was a critical point of appeal in Wicks v State Rail Authority of NSW (2010) whether the plaintiffs witnessed someone being ‘killed, injured or put in peril’—the characterisation in Section 30(1) of the Civil Liability Act (2002) (NSW)—as rescuers attending the aftermath of a railway crash, that claim was brought under the CLAs rather than common law principles. In common with the circumstances in Wicks, CLA reforms in some jurisdictions have significantly curtailed the classes of relationship between the plaintiff and the victim where damages for pure mental harm might be available. (See for example Section 30(5) Civil Liability Act (2002) (NSW).) Similarly to Wicks, cases heard subsequently to the CLA reforms such as Kozarov have not focussed on identifying a singular ‘shock’ event as a requirement for establishing mental harm claims in the context of employment.

In Tame v New South Wales; Annetts v Australian Stations Pty Ltd. (2002), the High Court considered the appropriateness of several ‘mechanisms’ used to restrict recovery for pure psychological harm by plaintiffs. These were: ‘(i) the requirement that liability for psychiatric harm be assessed by reference to a hypothetical person of “normal fortitude”, (ii) the requirement that the psychiatric injury be caused by a “sudden shock”, and (iii) the requirement that a plaintiff “directly perceive” a distressing phenomenon or its “immediate aftermath”’ (Tame v New South Wales; Annetts v Australian Stations Pty Ltd. 2002, p. 187). Considering each of the mechanisms in turn, the court found that each of the mechanisms was ‘unsound’ (Tame v New South Wales; Annetts v Australian Stations Pty Ltd. 2002, p. 189); further, none of the three had been accepted by the High Court as ‘a pre-condition to liability for negligently inflicted psychiatric harm’ (Tame v New South Wales; Annetts v Australian Stations Pty Ltd. 2002, p. 190). Describing the application of the factors as ‘capricious’ and lacking a foundation in principle, the High Court, instead, concluded that foreseeability of the harm remained the appropriate test. In the case of Tame, which involved the plaintiff developing a psychiatric condition in the aftermath of an administrative error by police (subsequently corrected) identifying that she had a positive blood alcohol reading at the time of a motor vehicle accident she was involved with, the court concluded that the psychiatric harm she experienced was not foreseeable.

In contrast, the court in Annetts found that it was foreseeable that if the defendant Australian Stations reneged on its promise to the plaintiffs to ensure that their teenage son was adequately supervised while working on a remote station and subsequently sent him to an even more remote location with inadequate equipment, transport, communication and supervision. When he subsequently went missing and died, it was foreseeable that his parents (the plaintiffs) would suffer psychiatric harm. Importantly, the Court drew analogies between the relationship between the plaintiffs and the defendant, and the more expansive scope of the employer employee duty-of-care relationship recognised in earlier cases including Pusey.

As noted by McHugh, J.:

[U]nder the general law, the duty of the employer is to take reasonable care for the safety of the employee in all the circumstances of the case. It is a duty to take reasonable care to eliminate all risks of injury that can be reasonably foreseen and avoided—whether they are risks to the employee’s psyche, person or property. The general law, like the law of contract, does not impose two duties on the employer—one to avoid physical injury and one to avoid nervous shock to the employee. ‘The ruling principle’, said Lord Keith of Avonholm, ‘is that an employer is bound to take reasonable care for the safety of his workmen, and all other rules or formulas must be taken subject to this principle’

(Tame v New South Wales; Annetts v Australian Stations Pty Ltd. 2002, p. 140).

In addition to setting the framework for occupationally incurred mental harm claims, Pusey marked a critical point in development of Australian jurisprudence on nervous shock, including the transition from ‘nervous shock’ to psychiatric injury.

Windeyer, J., famously described the law as ‘marching with medicine but in the rear and limping a little’ (Mt Isa Mines Ltd. v Pusey 1970, p. 3). He noted

The Cartesian distinction between mind and matter for a long time had an obdurate influence on man’s thinking. The interrelation of mind and body was little understood and often unacknowledged. But this position has given way in medicine and should, I think, give way in law

(Mt Isa Mines Ltd. v Pusey 1970, p. 15).

Windeyer, J., outlined key principles in restating the law of negligence as it pertained to pure mental harms. He identified that ‘An illness of the mind set off by shock is not the less an injury because it is functional, not organic, and its progress is psychogenic’ (Mt Isa Mines Ltd. v Pusey 1970, p. 3). He also noted the potential for the term ‘nervous shock’ to be misleading, ‘unless its meaning for law be defined and confined’. As part of his effort to ‘define and confine’, he summarised the law thus:

Sorrow does not sound in damages. A plaintiff in an action of negligence cannot recover damages for a “shock”, however grievous, which was no more than an immediate emotional response to a distressing experience sudden, severe and saddening. It is, however, today a known medical fact that severe emotional distress can be the starting point of a lasting disorder of mind or body, some form of psychoneurosis or a psychosomatic illness. For that, if it be the result of a tortious act, damages may be had. It is in that consequential sense that the term ‘nervous shock’ has come into the law’

(Mt Isa Mines Ltd. v Pusey 1970, p. 3).

In this statement, Windeyer, J., clearly sought to distinguish between transient emotional responses, forming part of the human condition, which are not compensable in negligence; and longer lasting, more permanent and severe and less common disorders that go beyond those more typical transient emotional responses.

This separation is consistent with law: in Chester and Bunyan, the High Court expressed similar sentiments about emotional responses not meeting the threshold for compensability.

Windeyer, J., went on to quote with approval Lord Denning’s then-recent statement in Hinz v Berry; ‘Damages are… recoverable for nervous shock or, to put it in medical terms, for any recognizable psychiatric illness caused by the breach of duty by the defendant’ (Mt Isa Mines Ltd. v Pusey 1970, p. 3).

It is this quote, more than anything else, which is responsible for the exhaustive reframing of ‘nervous shock’ as ‘psychiatric illness’ which has occurred since 1970. Neither Windeyer, J., nor Denning, M.R., entertained the possibility that there may be forms of nervous shock that are not psychiatric illnesses—of which some of the treatment-resistant forms of PTSD, mentioned above, may well be an example. This is in a sense understandable: medical evidence at the time highly privileged psychiatric understandings of human response to trauma or shock. But the absence of evidence of alternative, non-psychiatric sequelae for trauma is not the same as evidence of absence. While understanding of human responses to trauma had undoubtedly progressed by 1970, both their Honours seem to have assumed that psychiatry had all the answers to some of the most complex questions in this space.

It is a key contention of this article that, in contrast, the recognition of moral injury (distinct from mental harm) in the 1990s and 2000s potentially highlights that psychiatry providing all the answers to questions of nervous shock, moral injury may provide an explanation for some cases otherwise not accounted for by modern psychiatry. Unfortunately, this is a potential reframing, whereby ‘“Nervous shock” operates as a common lawyer’s shorthand for the categories of psychiatric harm which are compensable under the tort of negligence’ (Tame v New South Wales; Annetts v Australian Stations Pty Ltd. 2002, p. 204). It was not seriously reconsidered for another 32 years, until Hayne, J., critically considered it in Tame:

Little explicit attention has been given to identifying the basis upon which the distinction between psychiatric injury and mental distress is to be made, beyond noting that it is only the former which is to be compensable. So far, the courts appear to have been content to defer to the way in which psychiatrists distinguish between the two

(Tame v New South Wales; Annetts v Australian Stations Pty Ltd. 2002, p. 284).

Hayne, J., critically considered the limitations of such an approach. He particularly noted difficulties arising when the plaintiff’s harm falls between clearly being a psychiatric injury (compensable) or clearly being a normal emotional response (uncompensable):

The important question is whether a satisfactory criterion can be identified which will distinguish cases that lie in the middle of that field

(Tame v New South Wales; Annetts v Australian Stations Pty Ltd. 2002, p. 286).

and

If mental distress and psychiatric illness are the opposite ends of a continuous spectrum of consequences of an untoward event that are consequences not having an identifiable physical manifestation, how big is the middle band of that spectrum? How is that middle band to be divided?

(Tame v New South Wales; Annetts v Australian Stations Pty Ltd. 2002, p. 288).

He also commented on the disciplinary differences in perspective between law and psychiatry, noting that while the psychiatrist’s focus is on the patient’s ‘capacity to participate in ordinary activities’, their interest in the patient’s history and the cause of their impaired capacity is limited to ‘the purpose of identifying present and future treatment’, and the law’s use of psychiatry is different. It relies on a diagnosis rather than degree to which that diagnosis impairs the functional capacity of the patient; and as ‘a legal system which assigns responsibility only if there is fault, the focus on cause is critical to that task of assigning responsibility’.

Referencing the known gaps between ‘objectively verifiable proof of psychiatric illness’ due to the inability to correlate ‘in every case with abnormality of physiological or biochemical brain function’ and the patient’s subjective experiences of its impact on their functional capability, Hayne, J., posed the following question:

What significance should be given to the effect of the relevant event on the plaintiff? Is the magnitude of that effect important? If, as seems to be the case, it is open to a psychiatrist to regard the patient’s capacity to function in daily activities as an important, even perhaps determinative, feature distinguishing distress from illness, then should the law overtly recognise that it is the plaintiff’s ability to continue to participate in (some?) (many?) (substantially all?) of that person’s pre-accident activities which will govern recovery? If it is thought that a test of this kind would be inappropriate, it would be wrong to adopt it in fact, but not in form, by deferring to a body of psychiatric opinion which used it

(Tame v New South Wales; Annetts v Australian Stations Pty Ltd. 2002, p. 290).

Hayne, J., then used PTSD as an example to illustrate some of the difficulties, particularly arising from the law co-opting psychiatric diagnoses for purposes for which they were neither designed nor intended, such as retrospective determination of causation and impact, rather than prospective therapeutic intervention (Tame v New South Wales; Annetts v Australian Stations Pty Ltd. 2002, p. 293):

The revised fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (commonly referred to as “DSM-IV-TR”) gives six diagnostic criteria for identifying post-traumatic stress disorder. Of those, the last is that “[t]he disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning”. The diagnostic criteria also include criteria whose application depends upon the patient’s report of subjective feelings of helplessness, fear, horror and the like. It is at these points, of capacity to participate in ordinary activities, and reports of subjective feelings, that the intersection between law and medicine may be thought to present difficulties. No doubt it is the difficulty of identifying that intersection which explains why the introduction to DSM-IV-TR says that: “[W]hen the DSM-IV categories, criteria, and textual descriptions are employed for forensic purposes, there are significant risks that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis.”

Law’s reliance on psychiatric diagnosis as an objective criterion for recognition of particular harms obfuscates that the diagnosis itself relies in part on the patient’s subjective experience of their condition. Hayne’s argument equally applies to other types of harm that challenge that binary between diagnosed condition (recoverable) and emotional response (unrecoverable). A generalised psychiatric impairment that defies precise diagnosis, for example, and achieves at best an equivocal differential diagnosis could potentially be unrecoverable, as could other conditions that have significant impacts on the plaintiff’s functional capability but are nonetheless behavioural or social in nature rather than psychiatric. Moral injury is precisely such a candidate.

In reality, the emphasis of the courts and legislatures on ‘diagnosed psychiatric illness’ is largely a de facto requirement for the plaintiff to have an identifiable condition of the type catalogued within a diagnostic manual such as the DSM. But the DSM is the subject of extensive criticism within the medical community, let alone when it is being misapplied in other contexts. The fifth edition was aspirationally intended to solidify the relationship between psychiatric diagnosis and neuroscience, as well as ambition that was unfulfilled due to insufficiency of the evidence base (Regier et al. 2009). Indeed, there are concerns about the proportion of ‘diseases’ identified in the fifth edition that are verifiable diseases (Lasalvia 2015). Considering those concerns, it is unsurprising that some of the criticisms levelled against the DSM5 within the profession relate to its perceived ‘medicalization’ of normal human emotional responses, such as bereavement and grief (Young 2016; Veldmeijer et al. 2024; Wakefield 2016).

5. Part Four: We Can Recognise It … but Should We? Normative Justifications for Recognising Moral Injury

As psychiatry has developed as a discipline (Lieberman and Ogas 2016), law has struggled to adapt to increasing recognition of the inseparability of mind from brain and the rest of the body. Nowhere is this struggle more evident than in respect to the evolution of claims for nervous shock in negligence law. Medicine is increasingly resisting demarcation between psychiatry and physiology, including neurology. Law, however, continues to entrench the distinction, initially—albeit inadvertently—through language used in key common law judgments and through entrenchment in legislation.

Substitution of a requirement that the plaintiff suffers from a ‘recognized psychiatric illness’ for the traditional ‘nervous shock’ relies on attributing psychiatric diagnosis with a level of objectivity that it simply may not have. Within the diagnostic criteria of many conditions commonly appearing before the courts is a ‘hidden’ element of subjectivity: rather than eliminating the risk ‘that psychiatric harm is less objectively observable than physical injury and is therefore more likely to be trivial or fabricated and is more captive to shifting medical theories and conflicting expert evidence’ (Tame v New South Wales; Annetts v Australian Stations Pty Ltd. 2002, p. 192)—cited in Tame as one of, if not the primary, reason for the imposition of the ‘control mechanisms’, mandating psychiatric diagnosis as a criterion for recovery has simply forced that subjectivity underground.

Despite the law’s adoption of Cartesian dualism as a framing device to justify differential treatment of corporeal and incorporeal harms—a position that scholars have pointed out is increasingly inconsistent with obligations under international law (Fanning 2022)—the position, in reality, is more reflective of policy concerns relating to floodgates arguments and scepticism regarding injuries that are difficult to demonstrate and validate objectively.

Medicine itself has now abandoned Cartesian dualism. Changes occurring throughout the history of medicine demonstrate that, once again, there is increasing recognition that the separation of mind and body is illusory. Much of the existing—arguably unsatisfactory—law on pure mental harm claims, therefore, rests on unstable philosophical foundations. However when considering whether claims for moral injury—in injury to the soul—should be recognised, not only can we argue from a principled basis that it should never have been excluded as a potential harm but also that, based on Cartesian logic, its claims for recognition are arguably even stronger than those for recognition of mental harm. Scholarship of Descartes’ works shows that while Descartes did distinguish between the mind and the body, he thought that the soul was indivisible from either. According to Ventriglio and Bhugra’s analysis of Descartes’ works:

‘the soul is united conjointly to the whole body. For the body is a unity, Descartes argues, which is in a sense indivisible because of the arrangement of its organs, these being so related to one another that the removal of any one of them renders the whole body defective … He sees soul as of being of such nature that it has no relation to extension, or to the dimensions or other properties of the matter of which the body is composed: it is related solely to the whole assemblage of the body’s organs. Thus there is a further clearer distinction between soul, mind and body”

(Ventriglio and Bhugra 2015; Descartes 1998).

6. Moral Injury from a Principled Perspective

Moral injury claims are not, as a matter of principle, unrecognisable as harms if they arise in the context of an employer–employee duty-of-care relationship. That duty requires the employer to take reasonable care to avoid causing any foreseeable type of harm that may arise to an employee. They will be in breach if they fail to take steps to address that risk after they become aware of ‘evident signs’ of that harm to a particular employee or, alternatively, if the risk to all employees is ‘obvious and inherent’, and they fail to implement and enforce an effective system of work designed to address that risk. Interpretation of ‘nervous shock’ claims as exhaustively synonymous with ‘psychiatric injury’ and exclusive of emerging (non)psychiatric harms including moral injury rests on an overly narrow interpretation of Windeyer, J., in Pusey, alluded to by Hayne, J., in Tame.

It is a characteristic of many of the populations in which moral injury is being identified that the risks of ethical and moral conflict are both ‘inherent and obvious’. Ethics are an entrenched component of the curriculum and profession for healthcare workers, military personnel, legal practitioners, first responders and an array of others. In circumstances where the risk of moral injury arises from a known situation of moral conflict or dilemma, in the absence of effective systems of work implemented to support employees through the process of resolving that ethical conflict or dilemma, there is no reason in legal principle why such claims should not succeed. In the context of employees in particular, the power imbalance inherent in the employment relationship may limit the employee’s ability to protect themselves from moral injury, with fear of job loss, stigmatisation or professional disadvantage stifling their ability to speak out.

There remains, of course, an argument against their recognition in policy. Traditional references to ‘floodgates’ could easily be used as a justification for not recognising such claims. However, just as floodgates have neither led to the courts being overrun with pure mental harm claims in cases where the gates have been opened (Mendelson et al. 2010), nor necessarily resulted in just or socially acceptable (Haigh 2021) outcomes when they are closed, the floodgates offer a poor justificatory lens for a principled development of the law in response to the ‘onward march of medicine’. Failure to engage with emerging harms such as moral injury poses a clear risk of the law once again being left behind.

7. Recognising Harms

But what are the broader justifications for recognising—or not—certain forms of harm? The preceding parts of this article have established that moral injury can be recognised within the scope of existing duty-of-care principles. Does that mean that it should?

At its heart, this issue ties back to the ideological uncertainties about the raison d’etre of the law of negligence. Does it exist to provide compensation? If so, compensation for what? The diagnosis of the plaintiff’s harm, as is suggested by the law’s reliance on a diagnosed condition? Or the impact of the defendant’s negligent act on the plaintiff’s ability to live their life in the manner they might otherwise have sought? Is its purpose deterrence, either specific or general? Specific deterrence has always been of questionable utility in the context of negligence, given that, at its heart, negligence typically arises when the specific defendant fails to consider the consequences of their acts or omissions. It is illogical in most cases to think that future defendants, who heedlessly act without considering the consequences, will be dissuaded from such (unconsidered or superficially considered) actions on the basis that they fear experiencing the same legal consequences as a stranger in similar circumstances faced earlier. More convincing may be general deterrence: it is difficult to conceive any circumstances, in the aftermath of Koziol, where organisations whose employees are at obvious risk of vicarious trauma would not, at a minimum, review their existing policies and consider how effectively they are being implemented and enforced. But if general deterrence, or compensation, are the objectives, non-recognition on the basis of failing to meet a flawed threshold such as diagnostic criteria seems little short of capricious or arbitrary. Negligence law in its current state fails to offer a coherent account for why this is so.

Moral injury is an example of an emerging harm which arguably fits within the historical rubric of nervous shock but based on non-rigorous interpretation, and application of precedent is argued to fall outside the scope of recognised harms at common law. Ultimately, this article acknowledges that there may be sound reasons for not recognising moral injury claims but contends that those reasons do not lie within the historical development of the common law. Justification for their non-recognition must instead be found elsewhere, potentially within the arena of policy. Consideration of this emerging harm provides us with an opportunity to reconsider the evolution of these principles and to correct the course of the common law, updating it to reflect advances in medicine and also developments including, for example, implementation of anti-disability discrimination principles. Windeyer, J., in Pusey, famously described the law as falling behind medicine (Mt Isa Mines Ltd. v Pusey 1970, p. 3). Reconsideration of these principles, through the lens of moral injury claims, provides us with an opportunity to identify ways in which the law might seek to keep up.