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Compensation for PTSD

 

As a victim of a road accident,  accident at work or an assault for instance, you may not only suffer from an injury but also psychological trauma, commonly called 'shock. ' The accident may also cause long lasting depression or post traumatic stress disorder (PTSD).  The psychological effect can be longer than the physical personal injury suffered.

Compensation for 'mental health' is gaining greater prominence in the press and now the courts are recognising more than ever the emotional impact of psychological distress resulting in increased awards for compensation following an accident.

Below is a guide on compensation for PTSD cases which may also be used as a guide for victims of personal injury who sustain psychological injury.

 

Compensation Guide for PTSD

 

Severe PTSD£41,675 - £88,000
Moderately Severe PTSD£14,500 - £41,675
Moderate PTSD£4,450 – £14,500
Less Severe PTSD£1,170 - £4,450

 

Compensation for Psychological Trauma

 

The concept of compensation for trauma is gaining traction.  We have supplied a summary of the law, an over-arching view but of course you can contact us direct if there are any concerns or issues about your claim for compensation following any type of accident causing injury and or psychological trauma affecting your mental health: contact us to make a claim by on THIS LINK.

Historically, the judiciary has been reluctant to recognise the legitimacy of claims where emotional trauma has resulted in psychiatric illness; as Lord Bridge commented in McLoughlin v O’Brian [1983] 1 AC 410,  “It is in comparatively recent times that these insights have come to be generally accepted by the judiciary.”

Claims for psychiatric injury find their roots in the case of Dulieu v White [1901] KB 699. In this landmark case, a pregnant barmaid suffered nervous shock and subsequently gave birth to a child prematurely after a horse and cart crashed into the pub in which she was working. Although she had not suffered physical injury, she was entitled to recover compensation on the grounds that the nervous shock she suffered arose from a reasonable fear for her own immediate safety.

The later case of Hambrook v Stokes Bros [1925] 1 KB 141 CA further expanded upon the precedent set down in Dulieu; there compensation was due in respect of a woman who had suffered nervous shock after she witnessed an unmanned lorry rolling down a hill towards her children who were out of sight around a bend. Thus a claimant may be entitled compensation not only for shock due to fear for his or her own safety but also shock arising from the reasonable fear of the immediate injury to his or her child.

In 1943, the House of Lords considered the issue of psychiatric injury for the first time in the case of Bourhill v Young [1943] AC 92. Although in that case judgement was made in favour of the defendant, namely that Mr. Young was not to blame for any psychiatric harm Mrs. Bourhill might have suffered, the House of Lords clearly acknowledged the legitimacy of claims for negligently inflicted psychiatric injury.

Defining “Psychiatric Injury”

Some of the reluctance to widen the scope of negligence law to cover psychiatric injury finds its roots in the uncertainty involved in defining and proving psychiatric injury, and in the fear of fraudulent claims. In this respect, the increasing acceptance of claims for psychiatric injury mirrors the developing awareness of psychiatric illness within the medical profession.

Case law emphasises the fact that in order for a claim to succeed, there must be a genuine illness; per Lord Bridge in McLoughlin v O’Brian, a claimant must establish that he or she is suffering “not merely grief, distress or any other normal emotion, but a positive psychiatric illness.” (para 431). Thus in Hinz v Berry [1970] 2 QB 40, the claimant failed to receive compensation for the grief and sorrow experienced at losing her husband. Nor was the claimant entitled to compensation for the fear experienced when trapped in a lift in the case of Reilly & Anor v Merseyside Regional Health Authority [1994] EWCA Civ 30; in that case the judges reiterated that “the sound policy of the law is that the excitement of a normal human emotion, together with its normal physical consequence, is not compensatable.”

In cases involving pure psychiatric harm, therefore, there will be no compensation without a recognisable psychiatric condition.

Primary vs Secondary Victims

The leading case of Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5 draws a distinction between primary victims and secondary victims and the different criteria which must be met before a claim for compensation will succeed.

A primary victim is one who was present at the event and was directly affected as a participant. In contrast, secondary victims are those who suffer psychiatric injury indirectly – for example, if their loved one was involved in an accident – and must satisfy certain criteria before they will be entitled to compensation.

Claims for primary victims are dealt with below. For compensation claims involving secondary victims see below.

Establishing Blame

Many psychiatric injury claims arise from negligent accidents which have had a traumatic effect on the victim; where this is the case, the common law of negligence applies and blame must be established before any compensation is due.

Is there a duty of care?

First, a claimant must prove that a duty of care exists, that is to say the defendant is under a duty not to inflict harm upon the claimant. It is widely accepted that certain classes of people owe a duty of care to certain others; for example doctors owe a duty of care to their patients, employers owe a duty of care to their employees, teachers owe a duty of care to their students, and so on. Taking a school into consideration, broadly speaking the duty of care owed requires that they take reasonable care for the health and safety of the pupils in its charge, including a duty to take positive steps to protect their wellbeing (Gower v London Borough of Bromley [1999] ELR 356).

In Barber v Somerset CC [2002] EWCA Civ 76 involving an employee who  had suffered work-related stress due to his heavy workload, it was held that the ordinary principles of employer’s liability applied and that the threshold criteria was whether the harm suffered was reasonably foreseeable. In other words, it must be established that the defendant should reasonably have predicted that a breach of his or her duty of care would result in harm to the claimant.

Under Page v Smith [1995] UKHL 7, it does not need to be proven that psychiatric injury was foreseeable so long as some kind of personal injury was foreseeable. Moreover, the fact that the extent of the damage was unpredictable due to the claimant’s particular vulnerabilities is irrelevant. Thus, in Page v Smith, the claimant was entitled to compensation when he suffered a recurrence of chronic fatigue syndrome as a result of a car accident caused by the defendant. The fact that the defendant did not know that the claimant had suffered from chronic fatigue syndrome and was therefore susceptible to a recurrence of that illness in the event of a road traffic accident was irrelevant: it was reasonably foreseeable that a car accident would result in some personal injury to the claimant.

 

Has that duty of care been breached?

In order to establish a breach of duty, the defendant’s actions (or omissions) must have fallen below what would be expected from a reasonable person in the circumstances.

In Green v DB Group Services (UK) Limited [2006] EWHC 1898 (QB), the claimant sought compensation for her psychiatric injury sustained as a result of bullying and harassment from a number of her colleagues. In allowing the claim, the court held that the defendant, her employer, had been in breach of its duty of care in failing to take any adequate steps to protect her from such behaviour.  In particular, the claimant’s line managers had known or ought to have known what had been going on due to previous allegations of bullying; moreover, the claimant was a person who her employer had known was more vulnerable than the population at large.

Did the breach of duty cause the injury?

There must be a causal connection between the breach or duty and the injury sustained. The usual method of establishing factual causation is the but-for test which asks: “But for the defendant’s act, would the harm have occurred?”

As the Court in Sutherland v Hatton [2002] EWCA Civ 76 observed, “Many stress-related illnesses are likely to have a complex aetiology with several different causes. In principle a wrongdoer should pay only for that proportion of the harm suffered for which he by his wrongdoing is responsible.”

Thus in the case of KR & Ors v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85, involving fourteen claimants who sought compensation for personal injuries arising from physical and sexual abuse suffered whilst resident in children homes run by the defendant, compensation was calculated not only with reference to the psychiatric illnesses but to the degree that the abuse at the children homes had contributed to those conditions.

Compensation for PTSD

Judicial College Guidelines provides a range of awards.

Provided the claimant can prove that:

  • A duty of care was owed by the defendant
  • The defendant failed to meet these legal obligations and therefore breached his or her duty
  • That breach caused trauma to the claimant in the form of a recognisable psychiatric condition

The claimant will be entitled to compensation, calculated with reference to the Judicial College Guidelines.

The Judicial College Guidelines provide guidance on the value of personal injury claims based on the injuries sustained. It is important to note that the amount of compensation due depends not upon the severity of the accident itself but upon the severity of the injuries caused. Nor must the guidelines be followed; actual compensation may differ slightly from the values set out.

Broadly speaking the amount of compensation owed in cases of psychiatric injury is divided into brackets according to the severity of the psychiatric illness suffered.

Severe£41,675 - £88,000
Moderately Severe£14,500 - £41,675
Moderate£4,450 – £14,500
Less Severe£1,170 - £4,450

 

Other factors to be taken into account include:

  • The claimant’s ability to cope with life and work
  • The effect on the claimant’s relationships with family, friends and those with whom he or she comes into contact
  • The extent to which treatment would be successful
  • Future vulnerability
  • Prognosis
  • Whether medical help has been sought

Protection from Harassment Act 1997

Under the Protection from Harassment Act 1997, compensation may be due where the claimant has suffered harassment. Majrowski and Guy’s & St Thomas’ NHS Trust [2005] QB 848 stipulates that in order to be considered harassment, “[t]he conduct has also to be calculated, in an objective sense, to cause distress and has to be oppressive and unreasonable.”

Where harassment has been proven, the claimant may be awarded compensation for any anxiety caused by the harassment. Notably, compensation under the 1997 Act does not depend upon a recognised psychiatric disorder, nor is there any need to establish foreseeability.

 

Secondary Victims and Trauma PTSD Compensation

It is not the case that only those directly involved in an accident may be entitled to compensation for any psychological trauma sustained; those who are indirectly affected may also successfully bring a claim for compensation.

In only the second case involving nervous shock to reach the House of Lords, McLoughlin v O’Brian [1982] UKHL 3, the claimant had learned of a motor accident involving her husband and children two hours after the incident. On her arrival at the hospital she was told that one of the children had been killed and saw her husband and other two children in a distressed condition. The House of Lords held that she was entitled to compensation for the psychiatric illness she suffered as a result of her experience.

Since the ruling in McLoughlin, the law has developed so that those who are indirectly affected by a traumatic event – so called “Secondary Victims” – must satisfy different criteria before their claim will succeed.

The Alcock Criteria

The case of Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5 centred upon whether the Police were to blame for the nervous shock suffered as a result of the Hillsborough disaster of 1989. 10 relatives of the deceased brought claims for psychiatric harm, however most had not been present in the stadium at the time of the disaster and none had been in physical risk.

In drawing a distinction between primary and secondary victims, the House of Lords held that a secondary victim would only succeed in a claim for compensation if they were able to establish:

  • A close tie of love and affection to a primary victim
  • Appreciation of the event with their own unaided senses
  • Proximity to the event or its immediate aftermath
  • A recognised psychiatric injury that was caused by sudden and unexpected shock

These criteria will now be dealt with in turn.

 

A close tie of love and affection

 

A secondary victim must establish that they had a close tie of love and affection with a primary victim of the traumatic event. This so-called “dearness test” was first referred to in the case of McLoughlin, in which it was stated that the law recognises the claims of those with close ties but denies claims brought by ordinary bystanders “either on the basis that such persons must be assumed to be possessed of fortitude sufficient to enable them to endure the calamities of modern life, or that defendants cannot be expected to compensate the world at large.”

Certain relationships will be presumed sufficiently close and therefore will not require evidence to establish a close tie of love and affection. For example, a husband who suffers psychological harm as a result of witnessing a traumatic event involving his wife will not need to prove the closeness of the tie between him and his wife. Nor will proof be required from a mother who is traumatised by an accident which killed her child.

“Close tie of love and affection” is not restrictively defined and therefore other classes of people may be able to claim compensation for psychiatric injury, however, the responsibility is on them to prove that they shared the requisite close tie with a primary victim. In acknowledging that close ties “may be present in family relationships or those of close friendships, and may be stronger in the case of engaged couples than in that of persons who have been married to each other for many years”, Lord Keith in Alcock proposed that reasonable foreseeability should be the guide; in other words whether it could be predicted that a traumatic event involving the primary victim would result in psychological harm to the claimant.

Thus the test for close tie of love and affection is flexible and each relationship will be judged on a case-by-case basis. In the case of Alcock, for example, in considering the closeness of the relationships between the ten claimants and the relevant primary victims, Lord Keith observed that “the mere fact of the particular relationship was insufficient” when he considered that several of the claimants, and in particular a grandfather, did not satisfy this requirement. In contrast, a grandmother succeeded in her compensation claim in Re (a minor) v Calderdale and Huddersfield NHS Foundation Trust [2017] EWHC 824 (QB) where she suffered psychological harm after witnessing the traumatic birth of her grandchild.

 

Appreciation of the event with their own unaided senses

Under this heading, the claimant must have perceived the event with his or her own senses, for example as an eye-witness to the event or its immediate aftermath, or by hearing the event in person. This test has been referred to as the “direct perception criterion”.

It was largely under this criterion that the claimants in Alcock failed to succeed in their compensation claim; although they acknowledged that several of the claimants may have satisfied the criterion for close tie of love and affection, the court held that they nevertheless failed on the grounds that they had not seen or heard the events at Hillsborough directly, but had witnessed it on television. Crucially, the scenes on television had not depicted pictures of suffering by recognisable individuals.

Proximity to the event or its immediate aftermath

Claimants must further show that they had proximity “in time and space” to the event, in other words that they were present at the event or were a witness to its immediate aftermath.

In McLoughlin, the claimant received compensation on the grounds that she had seen her family in the immediate aftermath of the accident; she had rushed to hospital within hours and the victims were still covered in mud, oil and blood from the accident.  The claimant in Galli-Atkinson v Seghal [2003] EWCA Civ 697 also succeeded in her compensation claim when she suffered psychological harm after identifying her daughter’s body in the mortuary approximately 2 hours after she was killed. In that case, the court considered there was an unbroken chain of events and that an event could be made up of a number of components as could the aftermath “provided that the events alleged to constitute the aftermath retain sufficient proximity to the event”.

As with close tie of love and affection, the proximity criterion has been interpreted loosely. In North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792, the court judged the 36 hours preceding the baby’s death as a single horrifying event, finding that the facts of the case created a “seamless tale” with “an obvious beginning and an equally obvious end … played out over a period of 36 hours.”

In contrast, where the primary victim sustains an injury in an accident and unexpectedly dies 3 weeks later, as was the case in Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194, the claimant will not be entitled to compensation where she witnessed the unexpected collapse and death and subsequently suffered psychiatric illness. Although she would have succeeded in her compensation claim had she witnessed the original accident and suffered psychological trauma, the accident and collapse were two distinct events and by witnessing only the collapse, the claimant could not demonstrate sufficient proximity to the accident itself.

Psychiatric injury caused by shock

In order to succeed in their compensation claim, a secondary victim must show that the traumatic incident in question resulted in psychiatric injury in the form of a recognised psychiatric condition. The definition of “psychiatric injury” is expanded upon here.

Crucially, the psychiatric injury must be caused by the shock of the event itself rather than by any subsequent grief, for example where the primary victim has died. “Shock” in this context involves the sudden appreciation of a horrifying event, which “violently agitates the mind”.

Gradually cumulative events will not satisfy the suddenness criterion; thus, the claimants in the case of Taylorson v Shieldness Produce Ltd [1994] PIQR 329 failed in their compensation claim where they experienced “a dawning consciousness” that they were going to lose their 14 year old son following a road traffic accident.

Moreover, the event must be sufficiently horrifying. In Owers v Medway NHS Trust [2015] EWHC 2363 (QB), the court acknowledged that what the claimant had witnessed was distressing but not “horrifying” as judged by objective standards. Similarly in Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588 the claimant failed on the grounds that the events he had witnessed were not horrifying. There, the claimant’s wife had undergone emergency treatment at the defendant’s hospital and he claimed as a secondary victim for the distress he suffered, however the court judged that the appearance of his wife was as would expected of a person in hospital and the experience was not, therefore, wholly exceptional.

Rescuers

Two trains collide in dense fog. A man who lives nearby immediately goes to assist in rescuing the victims, crawling under debris and into the wreckage to help and comfort those who are trapped. Following the incident, he develops an anxiety disorder requiring hospital treatment. Is he entitled to compensation?

These were the facts of Chadwick v British Railways Board [1967] 2 All ER 945, and in that case the court found in favour of the claimant so that compensation was due. In contrast, the claimants in White v Chief Constable of the South Yorkshire Police [1998] UKHL 45 who had suffered PTSD after providing help at the Hillsborough disaster were not entitled to compensation as rescuers.

The distinction drawn between these two cases was between risk of danger. The claimants in White alleged that as rescuers they would be considered primary victims of the event, however, unlike Chadwick where the rescuer had placed himself in danger by assisting the victims of the train crash, they had not been at risk of physical injury and so their claims could not succeed.

Thus, whether a rescuer is entitled to compensation will depend on whether they are considered a primary or secondary victim, according to the various criteria associated with each. Importantly, in order to be considered a primary victim, the claimant must be within the zone of physical danger; Cullin v London Fire and Civil Defence Authority [1999] PIQR P314 involved a firefighter who had suffered psychiatric injury following an attempt at rescuing colleagues trapped in a burning building – although the defendant argued that the facts mirrored those of White, the court held that the claimant reasonably believed that he was at risk of injury and therefore could be considered a primary victim.

Conclusion

The law on compensation for psychiatric injury is complex and has been described as a “patchwork quilt of distinctions”. Decisions will turn on the individual facts of a particular case, however the above criteria act as a useful guide as to whether a claim for compensation will ultimately be successful.

The law from a policy decision by the Government and the Courts are to stem the 'floodgate's argument where a victim has witnesses a distressing event (not the direct victim).  The law is not ideal and contra claimants but this is where you will need specialist advice to made a claim for PTSD following an accident.

Obviously if you were a victim of the accident itself experiencing PTSD then there is no such hurdle put in place by the Courts to make a compensation claim.

Contact the expert injury solicitors today for advice, support and assistance to make a claim;  PTSD claims.

 

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