Antonomasia: Psychiatric Harm and the Englishman's Home

The first example is taken from the law of torts. It concerns the recoverability of damages for psychiatric harm caused by negligently occasioned nervous shock. The anomalous case is that of Attia v British Gas plc. ²⁷ The plaintiff employed the defendants to install central heating in her house in Middlesex. "[R]eturning home at about 4 P.M. on 1 July 1981 she saw smoke coming from the loft of the house. She telephoned the fire brigade but, by the time the firemen arrived, the whole house was on fire. . . . Obviously the house and its contents were extensively damaged." The defendants admitted liability in negligence for the physical damage to the house, but the question remained whether the plaintiff could recover damages for "nervous shock," the psychiatric harm occasioned by seeing her "home and its contents ablaze" for a period of somewhat over four hours.^[28] The Court of Appeal held unanimously that psychiatric damage occasioned by seeing "her home and possessions damaged and/or destroyed"

[27] Attia v British Gas plc [1987] 2 AER 455.

[28] Ibid. at 456 g–j.

was recoverable. The decision is in some respects an obvious one, and it could be argued that it simply extends the general criterion of foreseeability to a new situation. The categories of negligence, as Lord Macmillan once remarked, are never closed. The stronger argument, however, and one to which, fortuitously, I adhere, is that the decision is anomalous both in terms of lacking doctrinal justification and in terms of failure to accord with existing precedent.

The extant law on recoverability of damages for psychiatric harm at the time that Attia v British Gas was decided was the House of Lords decision in McLoughlin v O'Brian.^[29] In terms of doctrinal development, the decision in McLoughlin explicitly established a multiple test of proximity as the basis for recoverability in actions for nervous shock. Lord Wilberforce, in a judgment that has more recently been annotated and affirmed by the House of Lords in Alcock v Chief Constable of South Yorkshire ,^[30] stated that three elements were inherent in any claim: "the class of persons whose claims should be recognized; the proximity of such persons to the accident; and the means by which the shock is caused."^[31] It is clearly the first head of foreseeability that is here significant:

As regards the class of persons, the possible range is between the closest family ties, of parent and child, or husband and wife, and the ordinary bystander. Existing law recognises the claims of the first; it denies that of the second, either on the basis that such persons must be assumed to be possessed of fortitude sufficient to enable them to endure the calamities of modern life or that defendants cannot be expected to compensate the world at large.^[32]

The basis for drawing the line was the familiar policy ground of Anglo-American torts, namely that the admissibility of such actions would raise the specter of indefinite liability owed to an indeterminate class of potential plaintiff.

Without discussing whether British Gas plc was a recognized calamity of the modern world, Lord Wilberforce may finally be cited as authority for a methodological argument, namely that in situations of the type under discussion, "the courts have proceeded in the traditional manner of the common law from case to case, on a basis of logical necessity."^[38] The figurative use of the term "logical necessity" deserves brief comment in terms precisely of figuration or condensation. To claim that reasoning by likeness,

[29] McLoughlin v O'Brian and others [1982] 2 AER 298.

[30] Alcock and others v Chief Constable of the South Yorkshire Police [1991] 4 AER 907.

[31] McLoughlin v O'Brian at 304 f–g.

[32] Ibid. at 304 f–h. Cited and approved in Alcock at 912–913.

[33] Ibid. 302 f–g.

by metaphor or simile, by translation from one image to another, from one affection or experience to the next, is a procedure of logical necessity can only be understood as irony, antiphrasis, or the dissimulation of dreamwork. it is no more possible to "deduce" a relation between one context and another than it is feasible to claim any strict identity between the legal reconstruction of different events occurring at different times and affecting different parties. The logical necessity of analogy is at most a subjective necessity imposed by custom and habit. Whereas Roman law long recognized the logical weakness of such arguments predicated upon similarity, the common law returns continuously to claim, somewhat mystically in the context of common law's avowed empiricism, that analogy is the "natural tendency of the human and legal mind."^[34] The analogy then suggested by Lord Wilberforce is that of the different situations in which parents can recover for psychiatric harm caused by injury to their child. Lord Scarman added laconically that "I foresee social and financial problems if damages for 'nervous shock' should be made available to persons other than parents and children."^[35] The Australian case of Jaensch v Coffey, which stipulated no specific kinship tie but a "close, constructive, and loving relation" between the parties probably hit upon a formulation that best describes the current law: the tie must be close and affectionate and while it need not necessarily fall within the conventional classifications of lineal or familial proximity it does require a human affection lodged between human partners.^[36]

With the well canvassed exception of rescue cases and the unique example of a claim based upon fear of injury to a workmate,^[37] legal doctrine has consistently maintained that proximity with regard to the class of persons that is to be allowed to recover means a tie of blood or of recognized relationship. Such a relationship has always been taken to mean a relationship between persons. Even taking account of judicial paternalism or the

[34] For discussion of this issue, see W. T. Murphy and R. W. Rawlings, "After the Ancien Regime: The Writing of Judgments in the House of Lords 1979/1980" (1981) 44 Modern Law Review 617; Goodrich, Reading the Law, ch. 6. More broadly, see W. T. Murphy, "The Oldest Social Science? The Epistemic Properties of the Common Law Tradition" (1991) 54 Modern Law Review 182; and Goodrich, "Poor Illiterate Reason." For a discussion specifically relating to nervous shock, see Joanne Conaghan and Wade Mansell, The Wrongs of Tort (London: Pluto Press, 1993) at 28. "What is clear is that the nervous shock cases represent not a considered and logical extension to tortious rules of liability but rather an arbitrary and essentially non-logical extension to what we have argued is an illogical process."

[35] Ibid. at 311 e.

[36] Jaensch v Coffey [1984] 54 ALR 417 at 457 (per Deane J).

[37] On rescue see Chadwick v British Transport Commission [1967] 2 AER 945, and also the American decision of Wagner v International Railway Co. (1921) 232 NY 176; on workmates see Dooley v Cammell Laird. & Co. Ltd. [1951] 1 Lloyd's Rep. 271, and for an Australian example see Mount Isa Mines Ltd. v Pusey [1970] 125 CLR 383.

doctrinal desire to keep the legal judgment separate from the sphere of domesticity, it is hard to see that it falls within the "natural tendency of the human and legal mind" to perceive a house either as or as being "like" a relative or "analogous to" a person. Nor does precedent provide any examples of "logical necessity" leading from person to property or from animate to inanimate. A person is not in ordinary speech nor in art nor in legal language like a house. The only precedent that could offer support of any kind for the Court of Appeal decision would be the somewhat obscure earlier decision of the Court of Appeal in the case of Owens v Liverpool Corporation .^[38] In that case the plaintiff's dead relative, an inanimate person, was in a coffin that was dislodged by a tram-car operated by the defendants. Severe "mental shock" was occasioned to close relatives of the deceased who witnessed the accident and who feared the coffin would be ejected into the road. On the grounds that it is the dignity or office of the dead to be in repose, the disturbance to the coffin and the threat that it might at any moment slide out of the damaged hearse and fall to the street was sufficient ground for recovery. The court recognized that the threat of injury to the dead was a marginal if not tenuous analogy to earlier situations, but it suggested that what was significant was the proximity or strength of affection between the parties. MacKinnon L.J. went further at one point and suggested consideration of the moot case of mental damage caused by the death of a much loved pet dog.^[39] The "beloved" dog, of course, is the Englishman's best, most trusted, and most loyal friend, and it is easy to imagine that the court might well have difficulties distinguishing the family dog from other members of the family. It remains the case, however, that the subjects of injury in precedent cases extended no further than a hypothetical living nonperson or a dead relative.

Returning to the decision in Attia it is evident rhetorically that more is at stake than a simple question of the foreseeable consequences of damage to property. There is indeed an immediate shift in the depiction of the facts of that case from the cognitive to the affective and from description to evaluation when the object of damage is renamed and becomes not a house but a home. The figure^[40] in question is that of antonomasia, or change of name. It is described by Smith as a sentential figure (figura sententiae ), which "is a figure . . . for the forcible moving of affections, which doth after a sort beautify the sense and very meaning of a sentence."^[41] Its

[38] Owens v Liverpool Corporation [1938] 4 AER 727.

[39] Ibid. at 730 f–g.

[40] It should be noted that for Peacham, Garden of Eloquence at fol. E iii b, antonomasia is listed under "tropes of words," while for Puttenham, Arte of Poesie at 168, it is listed under figures. While it is properly a trope, antonomasia can also be a figure of speech where it is used argumentatively rather than simply as an "improper" or "borrowed" sense of a word.

[41] Smith, Mysterie of Rhetorique at fol. B 4 a.

rhetorical effect is depicted by Peacham as that of metonymically transferring the value of some "dignity, office, profession, science, or trade" from its proper referent to a novel comparata .^[42] In its usual rhetorical manipulation, the substitution of name is metonymic in the sense of selecting a quality or essence that is representative of the whole: Cicero for eloquence, the philosopher for Aristotle, Blackstone for the law, and so on, where the substituted name elects to qualify the object or subject in either a positive or negative fashion. The attribution is the more powerful for being unmarked or tacit, its force and accuracy are simply assumed, and not only is the lauded or denigrated part taken for the whole but there is also a move from passive to active, from description to qualification and in sum, from object to telos or goal. Whether the term "house" or "home" is more properly descriptive of the structure that formed the subject matter of the decision, it is the shift or slippage from one term to the other, from species to species or from the descriptive to the evaluative, that should give occasion for rhetorical concern. The trope is an indicator of an affectivity or unconscious intent, it is a figure of a subtle argumentative shift, and it is precisely the hidden, oneiric, or repressed connotations of "home" that the rhetorical analyst should pursue. It will be claimed here that these connotations are institutional and largely unconscious. It is certainly the case that the legal status or meaning of a home is not addressed in the judgments, nor would it appear to have been raised by counsel in argument. The institutional connotations of the shift from one noun to another have in these circumstances to be reconstructed in terms of the particular judgment and also in the longer term context of the doctrinal text of which the decision in Attia is but a minor incidence.

In the course of a preliminary judgment in favor of the defendants, Sir Douglas Frank at first instance had noted that grief and sorrow were understandable responses to "the loss of all that is embodied in the word 'home' and of one's possessions."^[43] In a statement that reversed the order of substitution, such that home became house, Sir Douglas Frank took the "modern" view that loss of possessions and of "one's own house" was not a foreseeable cause of mental illness. The Court of Appeal differed. It recognized that the claim broke new ground, indeed "that no analogous claim has ever . . . been upheld or even advanced."^[44] Nonetheless the court managed to discover a duty of care and to deem it possible that as a matter of fact it was foreseeable that the plaintiff would suffer psychiatric harm. Bingham L.J. went so far as to list other objects of affection that might, if

[42] Peacham, Garden of Eloquence at fol. E iii b. See also Smith, Mysterie of Rhetorique at fol. F 1 b; and Lamy, Art of Speaking at 215.

[43] Attia at 461 c–d.

[44] Ibid. at 464 c–d.

destroyed, so unsettle the seemingly restrained emotional world of their owner that recovery should probably be allowed: namely, a scholar's life's work of research or composition and a householder's "cherished possessions" or heirlooms.^[45] In the present instance the damage was not simply to contents but to the structure and place of the home itself.

To "fall in love" with a house is ungrammatical in law and is also not recognized as a cause of action for mental distress in either contract or tort according to a recent decision of the Court of Appeal, with Bingham L.J. (unpromoted) again sitting.^[46] In Watts v Morrow, the plaintiffs, a stockbroker and a solicitor, jointly purchased a second home, a country house, relying upon a negligently prepared survey. The summary of facts records that Mr. Watts "fell in love with the house" and that Mrs. Watts said that "it was very beautiful, a house with a heart and difficult to resist."^[47] Nonetheless, the Court of Appeal had no difficulty in denying a claim for damages for distress or loss of peace of mind: "frustration, anxiety, displeasure, vexation, tension, or aggravation" occasioned by breach of contract were, for reasons of policy, irrecoverable.^[48] It would be, it might be argued, somewhat promiscuous to allow recovery of damages for melancholia occasioned by witnessing harm to a second home, however much loved. To digress momentarily, the decision in Attia might be taken to suggest a concept of fidelity to a single home: monogamy might be matched by what could be termed monoheimy . In short, in the absence of any manifest legal reason, in doctrine or in precedent, for the extension of liability in psychiatric harm to cover damage occasioned by injury to things, it is necessary to follow the curious moral extensions and the rhetoric, symptom and trope, of the judgment in Attia and to inquire further into the legal significance of the home. The conscious surface of the decision is here of less importance than its unconscious longings and loves—what is proffered as immediate justification is of less moment than the longer term, structural causes of judgment. The apparent logic must face the delirium that is the law.

There are two important legal connotations associated with the home and traceable to the very dawn of the modern common law. First, both in case law and in doctrinal writing, the Englishman's home is his castle. As early at 1605, in Semayne's Case,^[49] it was held that the home was a place of sanctity, of tranquility and peace. It was the safest of all refuges (domus sua cuique est tutissimum refugium ). It was a hiding place, an escape, a castle, a

[45] Ibid. at 464 e–f.

[46] Watts and another v Morrow [1991] 4 AER 937.

[47] Ibid. at 940.

[48] Ibid. at 956.

[49] Semayne's Case [1605] 5 Co Rep 91.

fortress, a site of repose and of defense. In Thomas Wood's Institute of the Laws of England, ⁵⁰ Semayne's Case is discussed and cited as authority for the rule that whereas an assembly or meeting of three of more is an offense, it is not punishable if it is "for the safeguard of his House, and for the Defence of the possession thereof." It is permissible for a citizen to gather friends to prevent any unlawful entry into his own house "but he cannot assemble his friends for the defence of his person against those that threaten to beat him, while he is out of his house." The carapace of skin is obviously of less material significance and is of course—and not only by virtue of this legal rule—shorter lived than the edifice of bricks and mortar, the family home. Elsewhere in An Institute, a variety of definitions are provided of house (domus ) and of mansion house (domus mansionalis ), and the protection of these spaces and structures is spelled out at length. It is again not without significance that "a chamber in an Inn of Court, where one usually lodges, is a mansion-house" and so inviolate, a rule that no doubt did much to aid the longevity of members of the legal profession.^[51]

In later case law the sanctity of the home and garden is reiterated and emphasized. The most famous statement of right comes in Entick v Carrington, where Lord Camden asserted the legal protection of the home to be an "extraordinary jurisdiction" coeval with the law itself and so without origin or evidence beyond its statement, save that "precedent supports it."^[52] The Saxon concept of "house-peace" and the liberties spelled out in Magna Carta are likely sources of such precedent, although none is needed for so ancient a rule.^[53] He subsequently remarks upon the ethical legitimation of the rule as being coincident with the end or telos of law and of society itself: "The great end, for which men entered society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole." With a measure of hyperbole suitable to the occasion and the threat to this admittedly defeasible right, Lord Camden concludes with the celebrated defense of the English home and garden, stating that "no man can set foot upon my ground without my licence, but he is liable to an action, though the damage be nothing . . . [even for no more than] bruising the grass . . . or treading upon the soil." In later cases a similar exaggeration of an impermanent right is stated in terms of the protection of every single room in the house by separate writs

[50] Wood, An Institute at 735–736.

[51] Ibid. at 652.

[52] Entick v Carrington and three others, 1765, in State Trials (London: Hansard, 1813), vol. 19 at 1066.

[53] See Coke, Magna Carta, particularly fol. H iv b, K i a.

of trespass.^[54] The house, of course, was many things in legal terms and was certainly not free of legal and ecclesiastical interference with regard, for example, to "good government"^[55] or with respect to the proper forms of worship or the duties of husband and wife.^[56] It was in an express sense a symbol, a condensation of numerous narratives of English identity, of political apathy and personal privacy, of freedom and domestic servitude.

Whether the common law protection of the house as home of the subject is viewed as successful or otherwise effective, the home is a legal term and an image invested with a remarkable significance. The home is autobiographically both domesticity and family, the site of an originary law, that of paternity, as also in its earliest stages it is the gynaeceum, or maternal domain. The home is connotative psychoanalytically of emotional security, of a second law of nurture, of the "nursing parent" and of the immemorial, of that which is—like common law—a record or testament aere perennius .^[57] The home represents tradition in the precise sense that the home is external to and survives its occupation, it is the place of the ancestors and forefathers, of the graven image or imago, of all that, in nuce, to which we belong. The instant that the court in Attia v British Gas plc turned from house to home, categorizing the injury as being occasioned not simply by damage to property but, far more specifically, by damage that was caused by the burning of the home, it returned unconsciously to a category of legal tradition with an extraordinary, although heavily veiled, affective force. The description—by the figure of prosographia —of the burning home as the material cause of the harm suffered carries an unconscious sense of an absolute violation: to destroy a sacred place is by ecclesiastical law a sacrilege,^[58] a transgression of the boundaries between species or profanation of the marks of an iconic space. In more secular terms, destruction of the home is disrespectful of tradition—contemptuous of lineage, of ancestral virtue, and of the "titles of antiquity" which honor and family pass on through the home. One can go further and suggest that destruction of the home connotes a challenge to the most basic law, not simply that of kinship but in legal terms that of the first societas, the family and its order of succession. To destroy the home is technically a "monstrous" act because

[54] See Bruce v Rawlins [1770] 95 Eng. Rep. 934; Ratcliffe v Burton [1802] 27 Eng. Rep. 123.

[55] See An Act to retain the Queen's subjects in obedience, 1593 (35 Eliz. cap. I).

[56] See Queen's Injunctions, 1559, extracted in G. Prothero (ed.), Select Statutes and other Constitutional Documents illustrative of the Reigns of Elizabeth and James I (Oxford: Clarendon Press, 1894) at 185–187.

[57] See Carl Jung, Memories, Dreams, Reflections (London: Collins and Routledge, 1963), especially 221 ff.

[58] See Spelman, History and Fate of Sacrilege at 22–25.

it takes away from the support of the family and threatens a situation in which reproduction is no longer reproduction of the same, in which the child is a monster because it is unlike the father or the mother.^[59]

It remains to be observed that the plaintiff was a woman. In Owens v Liverpool Corporation , the court remarked that "if real injury has genuinely been caused by shock from apprehension as to something less than human life (for example, the life of a beloved dog), can the sufferer recover no damages for the injury he, or perhaps oftener she, has sustained?"^[60] It is not clear what weight this shift in gender would have in determining the factual outcome of either case, but it should undoubtedly be observed that in affective terms the home is a gendered category. In constitutional doctrine, the household, according to Sir Thomas Smith, here following Aristotle, is the internal domain of women while the external world is the sphere of men.^[61] In terms of the ecclesiastical law of marriage contemporary with the earliest surviving statements of the privacy and sanctity of the home, it is clear that protection of the home is protection of the vulnerable, the women and children for whom the home is the world. In this respect the portrait of the facts in Attia again betrays an unconscious reservoir of institutional emotions or structures of value that persist over the longue durée of common law. The figure of antonomasia indicates a slip or unconscious motive, it allows for the reconstruction of "another scene" of legal judgment, that of affectivity and desire.^[62] In terms, finally, of the structure of the legal unconscious, the case of Attia is representative of one dimension of the conflict that constitutes the dogma, dream order, or delirium of the institution. It opens up a zone of affectivity, an object among objects of identification and of love, a political desire toward which legal policy will inevitably be directed. It forms an inside, an identity against which must be compared the corresponding zone of exclusion, of alienity, foreignness, or otherness with which a later example will be concerned. In the next example, however, the question of identification is again central to the rhetorical recovery of a repressed memory of the objects and meanings of a specific legal anomaly, the treatment of contractual communications sent by post.

[59] Selden, Titles of Honour at sig. b 4 a. For extensive discussion of this theme of genealogical legitimacy, see Legendre, L'Inestimable objet de la transmission ; and more technically, see Legendre et al., Le Dosier occidental de la parenté .

[60] Owens v Liverpool Corporation at 730.

[61] Smith, De Republica Anglorum at 58–59: "The first sort or beginning of an House or Familie called Oikonomia."

[62] On the use of this metaphor, see Pierre Legendre, "Analecta" in A. Papageorgiou Legendre, Filiation at 216–218 (on "Freud's concept of l'autre scene ").