Partner Michelle Adam explains how Personal Injury claims are not just available for physical harm but psychiatric harm too.
The old nursery rhyme “sticks and stones may break my bones but names will never hurt me” was a fable designed to teach children that mental injury isn’t really an injury at all. It may therefore come as a surprise that the law takes a different approach, believing that a broken mind can cause just as much harm as a broken bone. To this end, it is important to realise a claim for personal injury is available for not only physical harm, but psychiatric harm as well. Cases where damages for psychiatric harm have been awarded are broadly split into two categories. These are “primary” and “secondary” victims. Primary victims are people who have been involved in an accident and who may, or may not, have suffered a physical injury but have suffered a psychiatric injury. Secondary victims are broadly witnesses to an accident- they haven’t been in any danger themselves but have seen something which has affected them.
Primary victims
As a general rule, the court will award damages to primary victims where it was reasonable in the particular circumstances for the person to suffer psychiatric injury. Injury amounts to a clinical psychiatric disorder and not merely shock and distress. Where the mental harm does not amount to a diagnosed clinical disorder but there is a corresponding physical trauma, a nervous reaction falling short of a recognised psychiatric condition can be recovered in certain circumstances.
At work, an employee may recover damages for psychiatric disorder when his employer is in breach of his general duty to take reasonable care for the safety of his employees. In one recent example, our client was performing maintenance checks down a manhole when a water valve was negligently turned on, releasing water into the manhole at very high pressure. As a result, our client knew that he had to get out of the manhole as soon as possible otherwise he would die. While he did not suffer a physical injury as he was able to scramble out of the manhole, there was naturally a large amount of shock in the aftermath. To this end, it was necessary to consider whether the psychological harm endured by him was enough to amount to a positive psychiatric illness and not merely grief, distress or any other normal emotion. A report obtained from a consultant psychiatrist confirmed that he had suffered a psychiatric harm and he was diagnosed with post traumatic stress disorder and some associated conditions. When considering the harm, some useful questions to consider were:
Has the employee been able to continue with work since the accident? If not, why not?
Has the employee experienced significant mood swings since and depressive episodes since the accident?
Has the employee been prevented from participating in activities he previously could engage in?
In our case, the employee was no longer able to participate in swimming as a result of being terrified of water and he found it difficult to be in confined spaces. This ultimately led him to change his line of work. These factors were taken into account by the expert psychiatrist following the accident and the victim was entitled to compensation.
Secondary victims
Significantly, it is not just the primary victim that is able to make a personal injury claim for mental harm. Following the tragic events of Hillsborough Football Stadium, secondary victims who sustain mental harm as a result of witnessing an accident to a third party may also make a claim if they satisfy the criteria set out in Alcock v Chief Constable of South Yorkshire Police [1992]. This requires:
(a) A close tie of love and affection, for example a relative, spouse or child
(b) Presence at the accident or at its immediate aftermath and;
(c) The psychiatric disorder must have been caused by direct perception of the accident (it is not enough to merely have been informed of the incident afterwards).
Therefore in our example case, it may not have been possible for a colleague who witnessed the victim almost drown to make a personal injury claim for psychological harm, as they would not have had a close tie of love and affection but, if it had been a family member who witnessed this event, they might well have a claim.
Conclusion
Ultimately, while sticks and stones may break your bones, mental injury resulting from a negligent action can hurt you and you may well be entitled to compensation.
If you have any queries regarding Personal Injury claims, please contact Michelle Adam on 0131 240 8876 or madam@thorntons-law.co.uk. Alternatively contact any member of our Personal Injury team on 0131 240 8876.
