Claims for psychiatric injury

Generally speaking, the only person who can make a claim for injury caused by negligence is the person who suffered the injury.

Generally speaking, the only person who can make a claim for injury caused by negligence is the person who suffered the injury. An example might be where a doctor has failed to take proper care of someone and the patient has suffered as a result. The doctor owes their patient a 'duty of care' and a claim can be made if their care falls below the acceptable standard.

For centuries, the general rule has been that a person cannot claim compensation for the effect on them, however severe, of the death or injury of another person. An exception has developed which allows a person to claim compensation for personal injury (typically, psychiatric illness) caused by witnessing an accident (or the immediate aftermath of an accident) brought about by the defendant's negligence, in which a close family member (or other loved one) is killed or injured

The Supreme Court has recently considered a distressing case involving a claim for compensation in negligence for psychiatric illness caused by the experience of witnessing the death of a close family member in distressing circumstances. In each case, the death was allegedly caused by the negligence of the defendant doctor or health authority in failing to diagnose and treat a life-threatening medical condition.

Whilst undeniably sad cases, the Court was not prepared to extend the law in this area. The Court concluded that, while doctors owe a duty of care to protect the health of their patients, they do not owe a duty of care to members of the patient's close family to protect them against the risk of illness from the experience of witnessing the death or medical crisis of their relative from a condition which the doctor has negligently failed to diagnose or treat.

The Court concluded that no analogy can reasonably be drawn between cases involving accidents and cases where the claimant does not witness an accident but suffers illness as a result of witnessing a death or medical crisis brought about by an untreated disease.

Accidents are discrete events. It is usually clear and easy to determine whether someone was present at the scene of and directly perceived an accident. Witnessing an accident involving a close family member is likely to be a disturbing and upsetting event. By contrast, in the medical context there is often no event comparable to an accident, as the symptoms of disease or injury may develop over days, months or years. How traumatic it is to witness such events is also highly variable. For this reason, the claim failed.

To discuss this or any other personal injury matter, contact us.