In the unfortunate event that an individual suffers from a psychiatric injury following an accident that was caused by the fault of another party, there may be a claim to be made against the responsible party.
The starting point for a claim for psychiatric injury is to establish if the person suffering the injury can be identified as a “primary victim” or a “secondary victim”.
A primary victim is someone who is involved in the accident and may well also have suffered a physical injury too. A secondary victim is a person who was not physically injured in the accident, but has suffered psychologically from being present or come upon its immediate aftermath.
Primary victims can suffer a range of psychiatric injuries from minor anxiety disorders to post-traumatic stress disorder. As is the case with a physical injury, expert evidence is require to provide a diagnosis of the psychiatric injury. In the worst case scenarios, flashbacks, nightmares and reliving the accident are common events. The effect that this has on victims is not to be underestimated, and if there was no pre-disposition to these symptoms, it can cause major upheaval in an injured party’s life.
A psychiatrist or psychologist will require to be instructed to diagnose the injury, and to recommend what, if any, treatment would aid the recovery of the injured party.
The position with secondary victims is considerably more complex, and establishing whether a person is a secondary victim will be determined on the facts of the case and satisfaction of criteria developed by case law. For a secondary victim to recover compensation, they must satisfy certain specific requirements:
- there must be a close tie of love and affection between the secondary victim and the injured person;
- the secondary victim must have been present at the accident or at its immediate aftermath; and
- the secondary victim’s psychiatric injury must have been caused by direct perception i.e. by seeing or hearing the accident or its immediate aftermath.
In short, it is much simpler for a person who was involved in an accident, and suffered both physical and psychiatric injury to recover compensation than it is for a person who did not suffer a physical injury but witnessed the accident or its immediate aftermath. A secondary victim can claim damages for psychiatric injury if their injury was foreseeable in a person of “ordinary fortitude”.
The issue of meeting the criteria of a secondary victim was considered in the case of Martha Sarah Young v Arthur MacVean,  CSOH 133. This was a case arising from a road traffic accident in which the son of the pursuer tragically died in a road traffic accident caused by the negligence of the defender. The defender lost control of his vehicle, mounted the pavement and struck the pursuer’s son.
The evidence in the case was very much one of a strong and loving relationship between mother and son. She left her home, and made her way to the gym on the day of the accident. As she walked to the gym, she noticed police activity and streets cordoned off. She passed the scene of the accident and noticed a vehicle against a tree. Whilst at the gym, she overheard that a 20 year old boy had been knocked down. Police officers attended the gym, and established that the victim was the pursuer’s son.
The court was of the view that the pursuer had suffered a serious psychiatric injury as a result of her son’s death. A diagnosis of post-traumatic stress disorder was agreed, however the degree of the PTSD was disputed, by the experts. In determining if the pursuer was to be classed as a secondary victim, the court was asked to consider if the pursuer seeing the accident, but not knowing her son was involved was enough to class her as a secondary victim. The judge held that “the pursuer began to feel uncomfortable very shortly after viewing the wrecked vehicle; her suspicions about her son’s involvement began fairly soon thereafter; and she was distressed prior to her confrontation with the police who confirmed his identity.” The criteria was satisfied, and the pursuer entitled to compensation.
At Jackson Boyd we have a lot of experience in dealing with cases involving psychiatric injury. For more information please contact us online by clicking here or speak to a member of our specialist team on 0333 222 1855.