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Psychiatric injury

Psychiatric injury has always been somewhat a dilemma in the eyes of courts and tort law. Claims under tort law when include personal injury that is actual physical injury can be calculated and quantified by physical evidence.

Whereas psychiatric injury cannot be quantified the way physical injury can be. So the problem with this is very apparent that if something that cannot be quantified, how can it be compensated for?

Having said that, in fairness with expert witnessing psychiatric injury can be as much painful as a real physical wound. And thus phenomenon’s like PTSD (post traumatic stress disorder) and phobias arising out of a life threatening incident are considered to be valid psychiatric injuries.

As the added factor of psychiatric injury being that it’s all in the head and not ocular in all honesty the room for frivolous claims is immense, therefore this major problem with psychiatric injury cases needs to be dealt on a level to streamline these frivolous claims from the outset.

Thus the courts have developed a process to weed out these claims and are strict in applying them and following these procedures.

The established core principles are:

  • In every case, the claimant must have suffered a recognized psychiatric disorder as opposed to mere grief, anger or anxiety.

  • A claimant exposed by a negligent act or omission to the risk of physical injury can recover if the act or omission causes him psychiatric injury, even if psychiatric injury itself was not reasonably foreseeable (Page v. Smith)

  • A rescuer who objectively exposes himself to danger can recover, whether the psychiatric injury is caused by fear for his own safety or horror at what he sees (Frost v. Chief Constable of South Yorkshire Police).

  • A rescuer who reasonably believed that he was exposing himself to danger can recover, whether the psychiatric injury is caused by fear for his own safety or horror at what he sees (Frost v. Chief Constable of South Yorkshire Police).

  • Where the negligent act or omission of the defendant has put the claimant in the position of being, or thinking that he is about to be or has been, the involuntary cause of another’s death or injury and the psychiatric injury stems from the shock to the claimant of this supposed fact, then that claimant can recover (Lord Oliver in Alcock).

  • All other claimants who sustain psychiatric injury as a result of witnessing death or injury of another, or perceive the risk of death or injury to another, are subject to the following control mechanisms:

          1. It must be reasonably foreseeable that a person of “normal fortitude” or “ordinary phlegm” might suffer psychiatric injury by shock (per Lord Lloyd in Page v. Smith)

          2. There must be a close relationship of love and affection between the person killed or injured (“the primary victim”) and the claimant (“the secondary Victim”) (Lord Ackner in Alcock).

          3. The claimant must be in close proximity in space and time to the accident or its immediate aftermath (Lord Ackner in Alcock).

          4. The psychiatric injury must result from a sudden shock (Lord Ackner in Alcock).

          5. The psychiatric injury must be caused by seeing or hearing the accident or its aftermath, rather than being told about it (Lord Ackner in Alcock).