What can you do if you have suffered a psychological injury as a result of a trauma? John Lynch discusses the issue in this blog and accompanying podcast and video.
People quite often suffer psychological injury after a trauma, such as Post Traumatic Stress Disorder.
Can you be compensated?
This gives rise to legal questions, such as, can you be compensated for mental distress only, what type of psychological or psychiatric after affects are covered, do you need a physical injury also, and under what circumstances can you make a claim?
Physical injury combined with psychiatric injury have posed no great problem for Courts in successful compensation claims.
Psychiatric injury has had a more chequered history but is now firmly established as compensatable in certain circumstances.
However, grief and anxiety, on their own, do not as a rule form the basis for a claim in compensation in personal injury claims.
One exception, however, is where someone dies following a fatal accident caused by another person’s negligence. In such cases, persons in certain categories of relationship with the deceased can make a claim for grief and distress.
Podcast: Psychiatric Injury Claims
Where Does the Law Start?
The starting point in any analysis of a claim in personal injuries is the neighbour principle.
This principle is the cornerstone of a successful case in negligence. It identifies the principles of law involved – whether there was the duty owed; whether there was a breach of this duty; whether the injury was reasonably foreseeable; and whether the injury was caused by the breach.
However, even where all the elements are present to justify an award in damages for negligence this does not mean that an award would be made in each case. There is often a conflict within our legal system between establishing predefined boundaries for decision-making on claims and opening the floodgates of litigation where such boundaries are too wide.
In cases where the Courts are being asked to recognise new categories of claim or expand an existing category of claim, the Court can apply an extra step. They can ask the question – would it be ‘just and reasonable’ to allow the claim to succeed in all the circumstances?
While in the most common accident cases there is no issue in including psychiatric injury as part of the injuries claim. The victims of accidents, called, ‘primary victims’, can recover for psychiatric responses to the shock of an accident.
What are Nervous Shock Cases?
The same cannot be said when dealing with psychiatric injury only that arises as a result of the shock in the aftermath of the accident. Some commentators have suggested that reluctance is because of Judges labelling psychiatric injury in terms of ‘nervous shock’ or ‘’ mental distress”. This they say is inconsistent with the modern approach which views a person as a psycho-physical unit with no significant distinction between physical and mental injury.
These ‘nervous shock or ‘mental distress’ actions have commonly arisen in the context of an accident scene and its aftermath.
The Court have devised a test for any such claims. In simple terms, the injury must be a recognisable psychiatric illness which is shock induced where the person making the claim has to have a close connection with the accident.
The most recent case involved a person who came on the scene of a horrific accident and suffered a recognised psychiatric reaction as a result. Many of the other cases that have featured in the last number of years have involved close family members but in this case the claimant did not know the parties involved in the accident.
Where are we going?
These types of claims involving psychiatric injury only are not exclusive to accidents. They have also included claims involving family disputes, fear of diseases at work and stress related working conditions.
The questions that will need to be addressed in each case include what category of person can take a claim, the extent of injury included and the circumstances that will give rise to a claim.
This extends the potential claims to a wider group of people and a more complex facts scenario.
We continue to explore the boundaries of this area of law – what types of psychiatric illness will be recognized ; what type of person can make a claim; and how much of a link does that person have to the accident scene?
It remains to be seen how far the net can be cast.
Featured Medical Negligence Articles from Lynch Solicitors
The scope for taking a Personal Injury case can be quite wide when you consider that it can include an accident at work, an accident in a public place, or a road traffic accident.
As well as that, the injuries can vary from a sprained ankle to serious head injuries and even can be fatal.
Have You Been Defamed Online? Can You ‘Dislike It’?
The Ana Kriegel case has once again highlighted the need for Defamation Law awareness after a boy was wrongly identified as one of the teenager’s killers, with his picture and personal details shared online and on various messaging apps.
While the internet and the use of social media has given us a world of content and freedom, with that comes the risk of defamation.
What can you do if you are defamed online?
The Statute of Limitations sets out the length of time a person has to make a claim as a result of an action or omission that gives rise to the claim.
Once the specified time has passed an action can no longer be brought.
The logic is grounded on common sense principles: after a certain length of time it is impossible to get accurate evidence – be it witnesses, people’s recollection etc. and the threat of legal action cannot hang over a person for an indefinite time.
Therefore, the law stepped in with the concept of the Statute of Limitations.
It is important to be aware that there are certain time limits in medical negligence within which a claim can be made. The Statute of Limitations is the length of time a person has to make a claim following an incident that gives rise to the claim.
The material contained in this blog is provided for general information purposes only. We advise you to seek specific advice from us about any legal decision or course of action.