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Psychiatric / Psychological Injury: When Emotive Response Becomes Recognised Harm

5th March 2014
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“Emotional damage” was the reason given by a French court, which awarded one “symbolic” euro each to five Michael Jackson fans - after they produced witness statements and medical certificates – as evidence for the suffering they claimed was caused by the death of the pop star in 2009.

In Britain, emotional issues are very common in personal injury cases, especially those involving clinical negligence, many of which will include some form of psychiatric / psychological injury element. As a consequence, the courts take these types of claims very seriously and claimants must be able to prove that they suffered a recognised psychiatric / psychological injury, which meets current, classification guidelines.

Recognised psychiatric/psychological injuries include post-traumatic stress disorder (PTSD) – a form of anxiety caused by very stressful, frightening or distressing events, but not ordinary grief or sadness.

Categories of psychiatric / psychological injury

The law recognises two distinct categories of persons when considering claims for psychiatric / psychological  injury:

  • primary victims and
  • secondary victims

The essential difference is that a “primary victim” is personally subjected to the danger of physical harm, whereas a “secondary victim” suffers psychiatric / psychological injury as a result of witnessing physical harm to others without actually being at risk themselves.

While a primary victim will be able to incorporate psychiatric /  psychological damage into their claim for physical injuries, a secondary victim wishing to bring a claim for psychiatric / psychological damages alone must be able to meet the following criteria:

  • It was reasonably foreseeable that a person of reasonable fortitude and resilience would suffer psychiatric / psychological injury in the prevailing circumstances
  • Close ties of love and affection between the claimant and the victim (parents, children, spouses)
  • The event was witnessed by the claimant or its immediate aftermath with their own ‘unaided’ senses, and did not hear about it from someone else
  • The claimant’s injury has been sustained as the result of a “shock”

 

Emotive response

 

There is never any doubt that those who are actually involved in a road traffic accident or are injured in the workplace will experience a level of emotive response, which for a number of individuals may persist and cause longer term psychiatric / psychological problems.

 

Formal diagnosis of harm caused to a victim must be obtained by expert medical assessment to determine whether a recognised psychiatric / psychological condition has been suffered, its severity and anticipated duration.

 

When we turn to cases of clinical negligence, there is always likely to be a high, emotive component involved, not only for the primary victim but also for the family members of the victim.  When someone is close to a victim of negligence, for example, a child who receives a birth injury such as cerebral palsy or erbs palsy, the parents may reasonably suffer from a psychiatric/psychological injury.

Assessment scale

A court’s assessment of general psychiatric/psychological damage of the injured person will be on a scale from (i) severe and (ii) moderately severe to (iii) moderate and (iv) less severe, and will take into account several factors:

  • their ability to cope with life and work
  • the effect on relationships with family, friends and others, with whom  they come into contact
  • the extent to which treatment would be successful
  • future vulnerability
  • prognosis
  • whether medical help has been sought

 

The same approach and sliding scale of severity is taken to assessing PTSD where recognised symptoms affect basic functions, such as breathing and pulse rate, difficulties with concentrating, a disrupted sleep pattern, and also involve persistent, re-experiencing of the relevant event.

Assessing the degree of recognisable psychiatric injury or psychological damage sustained must be understood as a  determining factor in a court’s considerations. Simply claiming that an emotional upset - a symptom of normal grief – but not a recognised psychiatric / psychological condition has been suffered, will not, in the Courts of England and Wales, attract any form of compensation.


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