Psychological Injuries: Exploring the Inconsistencies in Legal Compensation

by | Feb 16, 2024 | Blog

Unraveling the Patchwork: Exploring the Inconsistencies in Legal Compensation for Psychological Injuries

Claims for psychological injuries or illness have risen markedly in recent years, and are usually awarded in a claim arising from a traumatic accident.

As physical injuries give way to claims for psychological injuries, the stakes are high and the cases complex. From the traumatic events witnessed by spectators and police officers at the Hillsborough disaster to the emotional turmoil experienced by victims of occupational stress, the courts have been pivotal in shaping the recognition of psychological injuries such as PTSD and chronic fatigue syndrome.

In this post, we address the most recent changes concerning the “Alcock” control mechanisms surrounding nervous shock claims to secondary victims. These “victims” are those that witness a traumatic event first hand and are then themselves psychologically injured by the trauma they witnessed.These long established criteria offered a view of what it takes to establish an actionable claim and the medical evidence required to support it. Since a recent ruling from cases such as Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1; Polmear v Royal Cornwall Hospitals NHS Trust and Purchase v Ahmed [2022] EWCA Civ 12 however, this position has now altered.

Join us as we explore the evolution of psychological injuries claims and the important legal precedents that guide them.

Psychological Injuries

Psychological Injuries

What is Nervous Shock? Exploring Psychological Injuries

In order to pursue a claim for psychological injuries, supporting medical evidence is required showing that the claimant has suffered a recognisable psychiatric illness which is more than temporary grief, fright or emotional distress.

Primary and secondary Victims

To bring a legal claim for psychiatric harm that was negligently inflicted, a claimant must be categorised as either a primary or secondary victim according to criteria set by the leading case of Alcock v chief Constable of South Yorkshire Police [1992] 1 AC 310 .

Primary victims are those directly involved in an incident (or reasonable grounds to fear for their physical safety) as participants whereas Secondary victims are typically bystanders who, while not physically injured, have suffered psychologically from what they witnessed or heard. The key distinction is that primary victims can prove their direct involvement, which courts may view more favourably.

Lord Oliver in the above-mentioned Supreme Court case identified factors which were applied to secondary victim cases to allow recovery by the claimant. These are known as the ‘control mechanisms.’ In summary, the following needs to be established:

1. A close tie of love and affection to the immediate victim

2. The injury arose from a sudden and unexpected shock

3. Closeness in time and space to the incident or its aftermath

4. That their injury arose from witnessing the death, extreme danger to, or injury of the primary victim.

5. There must be “a close temporal connection between the event and the [secondary victim’s] perception of it”.

On January 11, 2024, the Supreme Court delivered a ruling in the combined cases of Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1, Polmear v Royal Cornwall Hospitals NHS Trust, and Purchase v Ahmed. In this landmark decision, the Court ruled against the Claimant; s, effectively settling a long-standing legal debate.

The crux of this debate involved whether individuals who experience trauma from witnessing the death or severe injury of a close relative due to medical negligence have the right to file a claim as secondary victims. The Supreme Court’s verdict asserts that such individuals, referred to as secondary victims, are not entitled to make these claims unless specific criteria are established. This ruling also overturns the previous decision in North Glamorgan NHS Trust v Walters (2002) EWCA Civ 1792, [2003] PIQR P16, known as “Walters”, deeming it old law and incorrect.

Psychological Injuries

Psychological Injuries

Case Summary

In the most recent legal cases under consideration, the Claimants were family members of patients who passed away months following incorrect diagnoses by medical professionals. Specifically, in the case of Paul v Royal Wolverhampton NHS Trust [2024], the claimants were daughters of Mr Paul who experienced a fatal heart attack while shopping with them. The Claimant’s argued that the defendant hospital had been negligent by not conducting a coronary angiography in November 2012.

This procedure, they claimed, would have detected Mr Paul’s coronary artery disease, which could have been effectively treated through coronary revascularisation. The daughters contended that they suffered psychological harm from witnessing their father’s death. Consequently, they pursued a negligence claim against the defendant hospitals.

Subsequently, the defendant sought to have the secondary victim claims dismissed, asserting that the claimant’s did not meet the required proximity in time and space criteria, as established in the above-mentioned criteria in Alcock. The initial claim was dismissed, prompting the Claimants to appeal.

The High Court of Justice, with Chamberlain J presiding, reversed the strike-out decision asserting that the principle established in Taylor v A Novo did not prevent recovery in this case if it was demonstrated that Mr Paul’s heart attack on 26 January 2014 was the first manifestation of the damage from the hospital’s negligent failure to diagnose and treat his heart condition. He concluded that the heart attack and subsequent death could constitute the relevant event. This decision was then challenged by the defendants at the Court of Appeal.

The Court of Appeal upheld the defendants’ appeal, bound by the precedent set in Taylor v A Novo (UK) Ltd [2013], which held that a secondary victim’s claim is not viable if the traumatic event is temporally distinct from the negligent act. The Court of Appeal highlighted the need for the Supreme Court to review this matter due to its significant implications, particularly in barring a certain category of claimants from pursuing secondary victim claims and receiving rightful compensation when there is a temporal gap between the negligence and the traumatic event.

Psychological Injuries

Psychological Injuries

Implications for Secondary Victim Claims in UK Law

The Supreme Court has clarified that for a claim to be recognised under secondary victim status, as defined in Alcock and reiterated in Frost v Chief Constable of South Yorkshire [1999] 2 AC 455, several key conditions must be met. A claimant needs to be physically present at the accident scene (or its immediate aftermath), directly witness the incident, and have a significant emotional bond with the primary victim.

The term “accident” is interpreted by the Court in its conventional sense, denoting an unforeseen, unintentional event causing injury (or the risk of it) through sudden external forces. Consequently, individuals who witness the effects of an illness on a loved one, which could have been averted with appropriate medical intervention, do not meet these criteria.

Lord Justice Ward had indeed once asserted in Walter v North Glamorgan NHS Trust that “it is a matter of judgement from case to case depending on the facts and circumstances of each case”. A period from first onset of injury to death was 36 hours which the court agreed satisfied the proximity element (being closeness in time and space to the incident or immediate aftermath. In Gali-Atkinson v Seghal [2003] EWCA Civ 697, sufficient proximity was established after the subsequent viewing of the body

took place of the Claimant’s child in the mortuary thereby being present as part of the aftermath of the incident to which the claim of a secondary victim was allowed.

Yet, the new case ruling highlights that most secondary victim claims stemming from medical negligence are likely to be unsuccessful, especially as a temporal gap between the negligent act and the resultant event is common in such scenarios.

Lord Steyn’s assertion that the compensation recovery for psychiatric harm is “a patchwork quilt for distinctions which are difficult to justify” did lean towards arguments that the recovery for tort for pure psychological injury should be wiped. It was thought that the legal framework for determining compensation for psychological injuries, particularly in relation to secondary victims, is inconsistent and fragmented as there is a lack of uniformity or coherence in how cases are handled or decisions are made.

Both Lord Justice Ward and Lord Justice Clark did make it apparent from the previous case of Walters that its “too late to go back on control mechanisms stated in Alcock, I do not think that those mechanisms should be applied too rigidly or mechanistically” as the control mechanisms were not plainly intended to apply to all cases of psychological injuries as each facts from case to case are significant. In conclusion, it remains uncertain whether a small subset of cases, where immediate harm results from negligent medical treatment, might still meet the Alcock criteria following these rulings.

Have you been affected by this recent landmark ruling on nervous shock claims?

The Supreme Court’s decision has significant implications for individuals seeking compensation for psychological injuries witnessed from afar. If you are unsure of your legal standing or have questions about pursuing a claim, speak to our expert legal team at Mancini Legal today.

An initial consultation can offer tailored advice based on your specific circumstances. We understand the complexities of these cases and can guide you through the legal process.

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Don’t let this recent ruling stand in your way of seeking justice and compensation. Get in touch with us today and let us help you navigate your legal options.

Disclaimer

The information provided in this blog post “Exploring the Inconsistencies in Legal Compensation for Psychological Injuries” is intended for general informational purposes only and does not constitute legal advice. The specific details of your case and its applicability to the legal precedents discussed here may vary significantly. Therefore, you should not rely on this information as a substitute for legal advice from a qualified solicitor.

Please consult with a solicitor experienced in personal injury and psychological injury claims to discuss your specific situation and obtain tailored legal advice. They can assess your individual circumstances, advise you on the potential merits of your case, and guide you through the legal process.

This disclaimer should be considered along with the blog post “Exploring the Inconsistencies in Legal Compensation for Psychological Injuries” and its content to ensure appropriate legal guidance is sought. Remember, consulting a qualified solicitor is crucial for navigating your all legal matters. Thank you for reading this blog post “Exploring the Inconsistencies in Legal Compensation for Psychological Injuries”.

We encourage you to contact us at Mancini Legal for a free initial consultation to discuss your specific concerns and explore your legal options.

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