영미법상 精神的 衝擊으로 인한 損害의 賠償과 算定- 쇼크 손해 및 외상 후 스트레스 장애(PTSD)를 중심으로 -

Abstract

This article is on the assessment of claims for psychiatric victim damages - a comparative study on the mental distress and post-traumatic stress disorder claims between common law jurisdictions and Korea. The Supreme Court of Korea has rendered a judgment on a post-traumatic stress disorder case in 2008(2008. 9. 11. 2007da78777). In this case the plaintiff claimed for a damage because she has been suffering post-traumatic stress disorder after she had witnessed her sister's traffic accident. The Dae-Gu High Court dismissed the claim on the reason that a reasonable causation was not recognised but the Supreme Court of Korea quashed the judgment and remanded the case to the original court. This is one of the most important judgment on the witness victim case and regarded as a meaningful advance on the psychiatric victim damage law in Korea. This article covers the various possible cases on the mental distress and post-traumatic stress disorder claims in the contemporary society and the brief history of psychiatric developments including the assessment and diagnosis of post-traumatic stress disorder in recent DSM-IV and ICD-10. Surveying extensive common law cases from the Victorian Railways(1883) and the Bell(1890) to the relatively recent cases such as the Alcock(1992) the Schofield(1999) the author comments on the proximity, causation, foreseeability, limitation and other related legal issues in common law jurisdictions. This article also covers other Korean cases and issues as well as the recent development in psychiatric and psychological injuries in Korea. The author explains how the common law issues above can be reviewed and adopted coherently in Korean civil law and suggests further cooperation among lawyers and psychiatric medical experts, psychologists and forensic assessors.