We live in a society which positively encourages people to view mental health on the same terms as physical health in a bid to remove the stigma surrounding mental health issues. In recent years we have seen a breakthrough in how these issues are reported, understood and treated. However, we are far from achieving a level playing field within the legal system relevant to injury and medical claims. There is usually no problem in recovering compensation for psychiatric injury when physical injuries have also been sustained. For example, the loss of a limb as a result of a car accident following which the victim develops depression. But what if the car accident causes psychiatric injury alone?
Those working within the injury claims field will be aware of the limits imposed upon the ability of claimants to recover compensation for purely psychiatric injury. One area where the requirements are less restrictive is work related stress. This is because an employer is under a duty not to cause psychiatric injury to an employee (see Sutherland v Hatton  2 All ER 1. A discussion of occupational stress claims is not within the remit of this blog, but see this blog and its links for an example of what is involved in winning a claim.
The prevailing law for psychiatric injury was established and has developed little since Alcock v Chief Constable of South Yorkshire  1 AC 310. In essence, primary and secondary victims of a “shocking” event are able to recover damages for psychiatric injury. A primary victim is usually a participant in the “horrifying” event and whose belief that they would suffer physical harm “violently agitates [their] mind” (Lord Ackner). Secondary victims are those who are not in physical danger themselves, but:
- 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
There are therefore a lot more obstacles for a secondary victim to overcome than if they were a primary victim. And remember, there has to be negligence for any of the victims to succeed in their claims.
At Anthony Gold we work closely between departments to provide a complete and seamless service for our clients. One area where there is often overlap is with housing. For example, damp and poor conditions can cause physical injuries. See this historical but still relevant blog. But what about when there is only psychiatric injury?
Disrepair is not a “shocking” event. However, in Asghar v Barnet LBC and Minoan Investments Limited Central London County Court 23 January 2013 the claimant was successful in recovering compensation for an exacerbation of his depression and panic attacks caused (at least in part) by his landlord’s failure to remedy disrepair. The claimant was in the presence of physical danger (potentially from the damp) but he did not actually suffer any physical injuries. If the above caselaw was strictly followed the claimant’s claim should have failed. However, caution should still be exercised in relying upon this decision as precedent for establishing liability for pure psychiatric injury in housing disrepair claims. This was a county court decision and likely to be challenged at a higher level.
For now, for pure psychiatric injury claims the floodgates remain more or less firmly closed with only a few breaches here and there. It does little to promote the parity of esteem between mental and physical illness. There is some talk of investigating what physical changes occur to the brain as a result of psychiatric injury as a way of bringing these claims within the remit of physical injury. This is a stretch and one that should not have to be made to create a fair system.