07 February 2012
Tristan Hallam: nervous shock
The body reacts differently in different circumstances. In most cases where an accident occurs and assuming the accident has been minor, there is generally no psychiatric injury.The test in establishing psychiatric injury is to what extent a person who has suffered a recognisable psychiatric injury. (Note please - there is no requirement to establish this element of recognisable psychiatric injury in a claim under the Harassment Act where all one need establish is ‘distress’). Comment must therefore be made by a consultant psychiatrist and by way of reference to the International Classification Diseases (ICD 10) or the Diagnostic Systems Manual (DSM IV) and should be referred to in the medical report from a consultant, with comment on the psychiatric injury sustained. If a consultant is not able to refer to a recognisable psychiatric injury in accordance with these two manuals, we cannot establish that a recognisable psychiatric injury has been sustained and we therefore cannot establish causation and the claim will fail. So what therefore is the position where one is not personally injured in an accident, namely there is no physical injury but instead someone attends shortly after an accident occurs and involving the death or serious injury of a loved one and suffers from a psychiatric injury as a result. This is far from unusual. Assuming for the purposes of this blog that we can establish a recognisable psychiatric injury occurred as a result of what the Claimant viewed, namely having arrived at the scene of an accident or at hospital and having seen a loved one in a very serious state or having been killed.The tests were laid down by the Court in the Hillsborough cases. They are now commonly known and arose as a result of Claimants having sought to recover from a psychiatric injury following the tragedy that befell Liverpool fans at the Sheffield Wednesday ground in 1989. In general terms the Court said that in order to succeed in a claim the Claimant must first of all establish a close tie of love and affection with the person who was seriously injured or killed. The relationship is established in the case of spouses and close family members and partners of long term are likely to succeed so long as they can establish by way of evidence that there was an appropriate tie of love and affection. Secondly, you have to establish that the Claimant actually witnessed the aftermath of the accident rather than hearing about it on the radio or TV and thirdly, that they were attended too soon after the incident.Attending a hospital therefore a day later or even say 8 to 10 hours later is likely to be too distant from the actual event. In my opinion attending a hospital and witnessing a traumatic event such that gives rise to a psychiatric injury some 4 to 6 hours might just be borderline, but then depending upon the circumstances in the event actually seen, one might be able to show it is not too distant from the event. The Court therefore sets out relatively clear guidelines which if followed, should establish the Claimant has suffered a recognisable psychiatric injury which occurred as a result of the trauma they suffered having seen a loved one involved in an accident.So long as these tests can be established, I see no reason why a claim should not be brought, bearing in mind the person who witnessed the aftermath of an accident has suffered equally as a result of the negligence of the Defendant, whatever that might be, and through no fault of their own.Tristan Hallam is a partner in Personal Injury in the London office of Russell Jones & Walker.If you or a member of your family has suffered an accident or injury call our expert personal injury solicitors on 0800 916 9046, fill in our short online claim form or email firstname.lastname@example.org and one of our specialist personal injury team will review your compensation claim for free.