Can I claim for psychological injury, if I am not physically injured?
Yes, you can. Whilst it is rare for a psychological injury to occur without some kind of physical injury, we completely understand that this can happen and MG Legal have successfully concluded cases for people with psychological injuries alone. Psychological injury is, after all, still a personal injury.
The Judicial Studies Board Guidelines has a section dedicated to psychological injuries and as with any claim for personal injury, we would ensure that you have the correct expert medical evidence to support your claim.
What are the requirements for claiming Psychological Injury alone?
In these modern times, there is a great deal being done to raise mental health to the same level as physical health on a number of levels including treatment, reducing stigma, telling your friends and family and at work. Unfortunately, the Law and particularly that of Tort Law where Personal Injury claims reside is often the last to follow; mainly as much of what is accepted today is based on past case-law, also known as a precedent.
The current criteria, whilst vague at points, generally require that there is a “shocking event” giving rise to the psychological injury. Very often, these “shocking events” are accompanied by a physical injury, such as a car accident, fall from height or medical misdiagnosis where there is some additional physical harm which automatically gives an entitlement to an award. The criteria are difficult to distinguish and for this reason, we strongly advise that you seek legal advice, such as that provided by MG Legal’s team of expert Personal Injury Solicitors.
Often “shocking incidents” which cause psychological but not physical injury will be highly situational and so it is difficult to give descriptors, but generally speaking, it is a situation where there is likely to be a very real fear of imminent death or serious injury. Often this is the causal factor in Post Traumatic Stress Disorder (PTSD) which is generally only truly caused by immediately life threatening incidents. Two commonly known examples for incidents causing PTSD are soldiers in active war zones whose lives are continually threatened and those involved in incidents with uncontrolled crowds.
One of best known examples of the latter, the ‘Hillsborough Disaster’ gave rise to a 1992 case which still stands as a precedent in many of these cases to date. Alcock v Chief Constable of South Yorkshire Allock v SChief Constable of South set the standard, particularly for those immediately affected by the incident itself. The Court used the words “Shocking” and “horrifying” event to set the criteria as well as using the terms “primary victim” and “secondary victim”.
What is the difference between a “primary” and “secondary” victim?
The “primary” victim who is directly involved in the incident, as discussed above, must have “belief that they would suffer physical harm” which “violently agitates their mind”. As above, the incident must be one that gives immediate fear of death or serious injury rather than one that simply “surprises “ or “alarms” you.
The “secondary victim” is one who witnesses such an event and can said to be “shocked” not in the dictionary definition but in the legal definition. The word “Shocking” is used widely but in the case of Alcock the Court decided on some criteria:
The psychiatric injury arose from witnessing the injury/death of the primary victim
The injury arose from sudden and unexpected “shock”
There were close ties of love and affection between the primary and secondary victims
The claimant was present at the scene of the event or witnessed the aftermath a short time later
Injury of that type to that claimant was reasonably foreseeable
The claims were dismissed on the grounds that none of these criteria applied.
In short, if the secondary victim was not immediately present, a close relative or to a lesser extent a friend and the “shock” was not foreseeable, the claim will likely fail. So, witnessing the incident via television news, being told of it later by others and even, in the event of one Claimant, being in a different part of the Hillsborough Stadium were insufficient. It is, quite simply, a very difficult claim to prove and whilst there have been many calls for a revision of the law, it is yet to happen in any meaningful way.
Are there any exceptions to the above rule?
There is a key exception to the above, which is when the claim arises from one of an employee against their employer. As there is a strict duty on an employer to ensure not just physical but psychological wellbeing in the workplace. The case of Sutherland v Hatton 2002 set this firmly in law but the duty is strict in any event.
So, in the workplace, if you are bullied and as a result of your employer permitting it or not taking reasonable step to stop the perpetrators and it affects your mental health, you have a right to claim for your psychological injuries, even if there was no physical injury. The duty extends beyond bullying and so, should you be placed in a position where:
Your workload is unreasonable
Your working hours are unreasonable
The duties being assigned are overly demanding
There is insufficient care in roles where you are exposed to stressful situations/sensitive issues
You are not given regular mental health checks or the opportunity to raise issues of this kind
You are set unreasonable targets
You are disciplined unfairly (as was the case with Sutherland above).
Whilst the above list might also give rise to a right to make a claim in the employment Tribunal, the Tribunal will not make any award for Personal Injury and so, if you wish to seek compensation for losses sustained due to Psychological injury in the workplace, get in touch with MG Legal’s specialist Injury and Work Solicitors for a brief, informal discussion about how we can help you.
What should I do if I think I have a Psychological Injury Claim?
Get in touch with MG Legal’s dedicated Personal Injury Solicitors to discuss your potential claim. We appreciate that this type of situation can be difficult to discuss and so you may rest assured that as well as being highly experienced in the Legal field, every person you talk to is also a human being who understands that life isn’t just about the ‘black and white’ text of case law and books. You can be confident that whoever you speak to will be personable and professional and with that, your claim will be dealt with by someone who you feel entirely confident and comfortable with.