Mental Health Personal Injury Claims: 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. Many of the personal injury claims we deal with involve psychiatric harm as well as physical injury. However there are also instances where there is no physical injury and psychiatric harm can alone arise as a result of negligence.
Psychiatric injury can be just 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.
Recognised psychiatric illnesses
In order to make a personal injury claim for a negligently inflicted psychiatric injury, it must be proven that the psychiatric harm was as a result of an accident or a sudden shocking and traumatic event. It must also be a recognised psychiatric illness such as a specific psychiatric condition. This does not include temporary upset, grief or distress.
List of some recognised psychiatric illnesses:
- Post-Traumatic Stress Disorder (PTSD)
- 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, psychologists, neuropsychiatrists, and neuropsychologists.
Post-Traumatic Stress Disorder (PTSD)
One recognised psychiatric illness that often forms part of a personal injury claim is PTSD. It is a mental health problem usually brought on by a life threatening or traumatic event. When you go through something traumatic, it is understandable to experience some symptoms of PTSD afterwards. Many people find that these symptoms disappear within a few weeks, but if your symptoms last for longer than a month, you might be given a diagnosis of PTSD by your GP and a potential referral to a specialist depending on the severity of your symptoms.
Examples of symptoms that can be present in cases of PTSD include:
- Reliving the incident,
- Panic attacks
- Sleep disturbance
- Lack of concentration
Mental health personal injury claims
Following the Hillsborough football stadium disaster in 1989, the Courts have been mindful about opening the floodgates to potential claimants who have suffered psychiatric harm, with no physical injury, as a result of witnessing a shocking event. Consideration will need to be given as to whether you are a primary or secondary victim.
There are 2 types of victim:
- A primary victim – is when you are directly involved in an accident. You are at risk of physical harm but you were not actually physically injured and you have suffered a psychiatric injury as result of the accident. An example of this is a worker who falls from a height due to defective equipment. Primary victims only need to establish that physical harm was foreseeable (Page v Smith (1996) 1 AC 155).
- A secondary victim – is when you suffer a psychological injury as a result of witnessing an accident and you were not at risk of physical harm yourself. These claims are less straightforward than those involving primary victims. They are limited to those who witness an accident of a close loved one (child or spouse) and developed a psychiatric illness as a result of this. An example of this is a wife who witnesses her husband suffer catastrophic injury in a road traffic accident.
In order to establish liability a secondary victim must show:
- Foreseeability of psychiatric harm;
- A close tie of love and affection with the person endangered;
- Proximity to the incident or immediate aftermath; and
- The psychiatric injury must be caused by a shocking event.
- Must see or hear the incident, or immediate aftermath.
There is a huge amount of case law surrounding secondary victims and the criteria is set out in Alcock v Chief Constable of South Yorkshire Police  1 AC 310.
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 your proximity to the event and witnessing the incident directly for yourselves, which is an extremely important factor.
How will my mental health personal injury claim be valued?
Your solicitor will arrange for you to meet with an appropriate medical consultant who will prepare a medical report detailing the circumstances of your accident, diagnosis, effects the accident has on your life, prognosis, and any treatment they recommend. This medical report will assist your solicitor and the Court to decide on the appropriate level of compensation you should receive.
Compensation for the psychiatric illness will depend on the severity of your symptoms and your prognosis. Your solicitor will look at the guidelines set by the judiciary and previous case law when deciding on the value of your claim. In addition to this, you can claim financial expenses such as loss of earnings, care, medical treatment, travel expenses, etc.
Care for psychological injury
Current treatments for mental health 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.