The Law Commission has put a cautious toe in the waters of reform with its consultation paper on tortious liability for psychiatric illnesses, particularly post traumatic stress disorder (PTSD).

In a 120-page review, the commission concentrates on liability to 'secondary victims' of negligence; those who are not involved directly in an accident but develop mental illness as a result of seeing it happen, coming across its immediate aftermath, or learning of it from news reports and the like.Only two significant changes are strongly favoured in the commission's interim report.

First, that the requirement of 'proximity' in time and space to a shocking event be abolished as a precondition of liability for mental injury: at least where the sufferer has a proven tie of love and affection to a 'primary victim' who is or is believed to be directly involved in the event.

Secondly, that statute lay to rest some of the uncertainties created by the House of Lords 1991 ruling in the Hillsborough cases.Turning back the clock to disallow all claims to damages for purely mental injury finds no favour with the commission.

The option of restricting compensation to claimants whose own physical safety is threatened by a traumatic event suffers the same fate: too many 'deserving' sufferers of mental injury would be denied damages, particularly volunteer rescuers.

Liability based solely on reasonable foreseeability of mental injury is out of favour because of the justified fear of the floodgates of litigation.

The commission concludes that a middle course should be steered: special limitations of some form or other should continue to restrict liability.No recommendation is made for abolishing or amending the current requirement that most secondary victims must prove a relationship of love and affection with those in the 'zone of danger'.

A requirement which if unsatisfied bars almost all claims other than those from rescuers and from sufferers whose mental illness arises out of justified fear for their own physical safety.Extending rights of action to mere bystanders who are outside the zone of danger and who are neither rescuers nor capable of proving a sufficient tie of love and affection to a primary victim is considered, but finds no particular favour with the commission.Special limitations on mental injury claims by fire, police, ambulance and other 'professional' rescuers are considered but not for the time being recommended.

The commission acknowledges that no such limitations currently apply at common law where a claim from a member of the emergency services involves physical as well as mental injury.Relaxing the requirement that only mental illness flowing from a single sudden attack on the claimant's senses (rather than accumulation of experiences over a period of weeks or months) can qualify for damages under current tort law is likewise not in the commission's front line for reform.

Difficulties of proving causation feature largely in the arguments against reforming the rules on this aspect, though the commission recognises that deserving claimants may be going uncompensated.

Restricting a right of action by requiring that mental illness reach a specific minimum level of severity before liability can be imposed is fairly strongly disfavoured: degrees of harm have their proper place in assessing quantum, not determining liability, concludes the commission.The consultation paper touches only briefly on some areas.

Liability for mental illness consequent on physical injury rates a brief reference but no commentary.

Liability for intentional infliction of mental distress is treated likewise.

Claims based on contract rather than tort merit a mention and implicit endorsement.

Problems of medical definition of psychiatric injury and illness are raised and shortly explained but, understandably at this stage of inquiries, no single definition is preferred.

Causation and quantum are introduced but not explored, discussion being left over to the commission's report on non-pecuniary damages, due for publication later this year.Interestingly, the November 1994 judgment against Northumberland County Council in favour of John Walker, a former employee who suffered a nervous breakdown as a result of stressful w orking conditions, is firmly endorsed as a correct statement of the scope of employers' duty of care to protect against mental injury to the workforce, even though an appeal is pending in the case and unlikely to be determined for some months.The commission takes a realistic and commendably practical stance in this interim report.

Fear of the floodgates opening to mental injury claims is expressed to be well-founded.

The impact on insurers - and ultimately on their premium-paying policyholders - of widening the net of liability for mental injuries is expressly recognised and several times listed among the commission's reasons for recommending no significant change to current rules.Those who clamour for reform point to large numbers of 'deserving' victims of mental illness whose suffering is directly linked to acts of negligence but whose claims the law excludes from compensation by drawing artificial lines of limitation based on public policy.

The Law Commission has peered into the abyss and finds the arguments at best finely balanced on present evidence.

There seems not to be the 'demonstrably clear injustice' which some would have us believe exists.

Replacing the current rules with a general liability in tort to all who suffer proven mental illness, whether through learning of tragedy second-hand, or as unwilling bystanders watching it unfold, is not a serious option.