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Negligently inflicted psychiatric injury

As part of a personal injury claim, ‘general damages’ is compensation for pain, suffering and loss of amenities – this is the impact that an accident has had on someone’s life. The majority of cases I have dealt with involve psychiatric injury as well as physical injury. However there are also instances where there is no physical injury and psychiatric injury can alone arise as a result of negligence.

Psychiatric injury can be as devastating as a physical injury. It can cause panic attacks, flashbacks, low mood, anxiety, sleep disturbance and avoidance behaviour. Severe psychological trauma can cause difficulties coping with life, work, relationships and at its worst an individual having suicidal thoughts.

Care for psychological injury

Current treatments for symptoms include, but are not limited to, medications, counselling, Cognitive Behavioural Therapy (CBT) and Eye Movement Desensitisation and Reprocessing (EMDR). CBT treatment is the most commonly used therapy which focuses on thoughts and behaviour. It helps manage problems and will look at coping techniques.

EMDR is a form of psychotherapy which involves focus on the traumatic event whilst receiving bilateral sensory stimulation including side to side eye movements, hand tapping and auditory tones. This has been found to reduce negative emotions resulting from the traumatic event.

Recovering damages

In order to recover damages for psychological injuries, it must be proven that the psychiatric injury was as a result of an accident or a sudden shocking and traumatic event. It must also be a recognised psychiatric illness. This does not include temporary upset, grief or distress. A recognised psychiatric illness must be a specific psychiatric condition such as Post Traumatic Stress Disorder (PTSD), Depression, Chronic Fatigue Syndrome, Anxiety Disorder and many Adjustment Disorders. It can also be the case that a pre-existing psychiatric illness has been exacerbated as a result of an accident or traumatic event. Expert medical evidence will be needed in the form of a medical report from an expert such as a consultant psychiatrist.

Following the Hillsborough football stadium disaster in 1989, the courts have been mindful about opening the floodgates to potential claimants who have suffered psychiatric injuries, with no physical injury, as a result of witnessing a shocking event. Consideration will need to be given as to whether a claimant is a primary or secondary victim.

A primary victim is someone who is at risk of physical harm but not actually physically injured. Primary victims only need to establish that physical harm was foreseeable (Page v Smith (1996) 1 AC 155). A secondary victim is someone who is not at risk of physical harm but witnesses a shocking event.

In order to establish liability a secondary victim must show (Alcock v Chief Constable of South Yorkshire Police (1992) 1 AC 310):

  1. Foreseeability of psychiatric harm;
  2. A close tie of love and affection with the person endangered;
  3. Proximity to the incident or immediate aftermath; and
  4. The psychiatric injury must be caused by a shocking event.
  5. Must see or hear the incident, or immediate aftermath.

There is a huge amount of case law surrounding secondary victims and the criteria set out in Alcock. The Courts have adopted a very restrictive approach with regards to secondary victims which can only be dealt with on a case by case basis. It appears the more shocking and tragic the event the more sympathy the Court will have. However it is a claimant’s proximity to the event and witnessing the incident directly for themselves, which is an extremely important factor.