Earlier this month the Supreme Court of New South Wales ruled that an individual who experienced post-traumatic stress disorder (PTSD) as the result of an airplane crash could recover damages under the Montreal Convention. The case was important because many courts have previously ruled that PTSD, absent any other “bodily injury,” was not covered by the bodily injury provisions of the international agreement.
The case is illustrative of the way in which courts across the world continue to find a meaningful distinction between “physical” (or “bodily”) injury/pain and “mental” (or “emotional”) injury/pain. If you want an example closer to home, pull out your auto insurance policy and scan for the phrase “bodily injury.” Auto insurance cases sometimes include disagreement about whether mental injuries are considered bodily.
I’m on the record as saying this traditional physical/emotional distinction no longer holds up because substance dualism is no longer a viable theory. If neurons and glia cells are physical (and last I checked they were), then emotions and emotional pain must be physical too. But that doesn’t mean that the law has to treat all pain the same. Even if everything is physical, law may – for a variety of good reasons – choose to differentiate amongst them. For instance, do we want to understand assault (which is the infliction of “bodily injury”) to include the infliction of emotional pain? Maybe, but it’s not so cut and dry.
And what of causation? The causes of emotional pain, chronic pain, and frankly pain of all sorts are often complex. This complexity makes it difficult to sort out legal responsibility.
It’s precisely because the issues are so complex that we need an on-going discussion of pain, neuroscience, and the law. The law shouldn’t be operating with erroneous assumptions about emotion and pain. But the only way this will change is if we find a better solution. Who’s got one?
Earlier posts in this series:
- Pain on the Brain: A Week of Guest Posts on Pain Neuroimaging & the Law, by Amanda C. Pustilnik
- Pain-o-meters: How – and Why – Should We Develop Them?, by Karen Davis
- Some Optimism on Brains, Pain & Law – Let’s See What We Can Achieve, by Martha Farah
- Emotion and Pain – Beyond “All in Your Head”, by David Seminowicz
This post is part of the series on pain, brain imaging, and the law sponsored by the Center for Law, Brain & Behavior at Massachusetts General Hospital, the Petrie-Flom Center, and Harvard University’s Mind/Brain/Behavior Initiative. Contributors participated in the conference Visible Solutions: Now Neuroimaging Helps Law Reenvision Pain. For inquiries, please contact the organizer Amanda C. Pustilnik (@apustilnik on Twitter).