Personal Injury – Psychiatric damage due to an injury?
Much of the time, the harm that results from the Defendant’s negligence is physical, e.g. bodily injury. Sometimes, however, the resulting harm takes the form of a psychiatric condition, such as depression or Post Traumatic Stress Disorder (PTSD).
Should the law allow Claimants to recover compensation for psychiatric harm under the same terms as those applicable to physical harm?
The obvious answer is: why not? After all, psychiatric harm can be as serious and as debilitating as physical harm. The law does indeed adopt this obvious answer in situations where psychiatric harm is “consequential upon” the physical harm, e.g. when the negligence causes facial injuries and disfigurement to the Claimant who then suffers depression because of the effect of the injuries on their appearance.
Courts have no difficulty in deciding that the Claimant may recover compensation for both the physical and the psychiatric harm.
Primary and Secondary victims
Lord Oliver set out the distinction between the primary and secondary victims. A primary victim is someone who is involved immediately as a participant and a secondary victim one who is no more than a passive and unwilling witness of injury to others. For secondary victims to succeed in a claim they must:
- Have a close tie of love and affection to a primary victim;
- Witness the event with their own unaided senses;
- Proximity to the event or its immediate aftermath;
- The psychiatric injury must be caused by a shocking event.
Therefore, a primary victim can recover damages using the ordinary tests for duty of care applicable to physical injury. However a secondary victim must establish the reasonable foreseeability of psychiatric harm arising from a close relationship of love and affection between the victim and the Claimant; proximity based on a physical connection and the timing between the accident and the psychiatric harm; the perception of the event by the Claimant with his own senses; and finally, that it is fair, just and reasonable to impose liability for psychiatric harm.
If you have experienced any psychiatric injury due to a shocking event you have suffered or you have witnessed, Swain & Co are here to offer you free advice and will help you ultimately claim compensation for the damages you have sustained. If we consider that your claim has reasonable prospects of success, we can offer to fund your claim using a “No Win No Fee” arrangement where it is guaranteed that if you do not win an award of compensation, there will be no fee, giving you peace of mind right from the beginning of your claim.
Swain & Co Solicitors feel strongly that it is important to protect their client’s legal rights and give them the quickest and most efficient service throughout their case.
If you or someone you know has suffered an injury physically or mentally, the Personal Injury Team at Swain & Co will ensure that you receive the compensation you deserve.
Call us today on 02392 483322 to ensure that you are fairly represented.