Compensation for nervous shock and psychological injury

Compensation for nervous shock and psychological injury

January, 2023

When someone is injured following a road traffic accident, accident at work or due to the negligence of another person (such as in a clinical negligence claim), they may suffer both a physical injury and a psychological one. The victim is entitled to separate compensation for each type of injury. Psychological injuries include post traumatic stress disorder, depression, anxiety and panic attacks.

In order to make a successful claim for psychological injury, a victim must show:

1. They suffered from a recognisable psychiatric illness. Mental distress, emotional upset or shock falling short of a recognisable psychiatric illness is not compensatable. You do not have to suffer a physical injury that in turn leads to the psychological injury. You may make a claim for compensation for psychological injury alone as long as it is a recognised psychiatric illness.

In December, 2022 a woman in County Longford was awarded damages after she developed post traumatic stress disorder following a mistake by a pharmacist. She had just had a child and was given what should have been anti clotting medicine. Some of the medication vials she had been given appeared to have been already used and she was not aware of this. She subsequently developed a fever and was very worried about the risk of contracting Hepatitis B from the injections. Thankfully she did not contract the disease but she could not breastfeed or bond with her baby initially as a result of the incident. She claimed a failure to deliver the standard of care she was legitimately and reasonably entitled to expect and that she had suffered emotionally and psychologically. She was awarded over €39000 by the Court.

2. Such recognisable psychiatric illness was shock induced. You must show that your psychiatric injury was due to the accident or incident that led to it. The fact that one person may in similar circumstances not have developed a psychiatric illness is irrelevant. Law takes a victim as it finds him or her – as long as the illness arises from the negligent event, it is potentially compensatable.

In 2021 an award of €372000 was made at the High Court in respect of a woman who sustained injuries following a road traffic accident in Dublin in 2011. Her physical injuries were relatively modest but she suffered a severe psychological reaction to the accident, developing post traumatic stress disorder together with fibromyalgia and irritable bowel syndrome. She was unable to work for some years after the accident. She was awarded €170000 for her pain and suffering with the remainder of the award to cover her loss of earnings and other financial loss.

3. That such shock was caused by another person’s negligence. You must show (as in all accidents which attract compensation) that the person who caused the injury owed a duty of care to you and that they breached that duty of care and as a result you sustained your injury be it physical, mental or both. For instance if you were in a road traffic accident that was not your fault, the road user that caused the accident would be in breach of their duty of care to you and would be liable to you in damages for any injury, physical and/or mental you sustained. Similarly if you were hurt in an accident at work, your employer would owe a duty of care to you and if their negligence caused you an injury, physical and/or mental, then you would be entitled to make a claim against them.

In a case before the Circuit Court in 2000 a woman employee suffered a psychiatric illness when she switched on a machine without realising there was a workman inside the machine. Her illness was due to what had happened to her and she sued her employer for damages. The Judge held that the employer was in breach of their duty of care to her in failing to take care of the safety of employees and that the harm suffered by the employee was reasonably foreseeable. She was awarded £12000 for pain and suffering, £5000 for future pain and suffering and £1700 for her financial loss.

4. That such shock must have been by reason of actual or apprehended physical injury.

In a case in 1984, a woman recovered damages for nervous shock sustained when immediately after an accident she saw the appalling injuries sustained by her husband in it. She was not involved in the accident and saw the injuries at the hospital treating her husband. The Court held that the person who caused the accident owed a duty of care to those, although not present at the scene of the accident, are at risk of suffering psychiatric injury by personally perceiving the direct and immediate aftermath of the accident in which a person with whom they are in a close or intimate relationship with, is negligently injured or killed.

5. That the person who caused your injury owed you a duty of care not to cause you a reasonably foreseeable injury in the form of nervous shock. In most cases this is straightforward. A car driver owes other road users a duty of care to drive safely, an employer has a duty of care to workers to ensure that their workplace is safe to work in and a doctor has a duty of care to his patients to carry out his medical treatment with all the due care and skill that would be expected of a competent doctor. If, in any of these cases, you sustain an injury due to breach of this duty then compensation is payable. Sometimes however unusual cases arise.

In the case of Lisa Sheehan v Bus Éireann/Irish Bus and Vincent Dower Ms Sheehan came across the scene of a fatal accident involving a car and bus. Her car was struck by debris from the accident and she got out of the car as she could not see what had happened. She discovered the body of the dead driver and contacted the emergency services and tried to see if there were other victims of the crash. She suffered psychological injuries as a result of what she saw and she took action for compensation against the persons responsible for the crash. She was awarded compensation of €87238 in 2020. The defendant insurance company attempted to argue that she was not entitled to compensation as the psychological injuries she sustained were not foreseeable and too remote. She had not been involved in the actual accident itself. The court rejected their argument at first instance and on appeal her award of compensation was upheld.

Unlike a physical injury, psychological injuries might not be readily apparent immediately after an accident. It may take time before you are aware there is a problem. If you feel that you have developed a psychological problem it is important that you seek medical assistance as soon as possible. The earlier you are diagnosed, the earlier you can be treated and as in all medical matters, early treatment can only help in a speedier, more successful recovery.

The normal limitation period for taking legal action is 2 years less one day. However there are exceptions to this rule (a) if a child sustains injury, a claim can be made any time before the child reaches the age of 18. Once a child reaches the age of 18, they have a further two years to make a claim themselves until they reach the age of 20 or (b) if the person who sustains the injury does not have mental capacity then there are no time limits. Once instructed your solicitor will normally obtain medical evidence to show that nature of your injury and the likely treatment and recovery period from same. It is on the basis of this medical evidence that the value of your case can be assessed.

We at Kearney Law are ready to assist you and have the knowledge and expertise you need to make a successful claim for compensation. For further assistance please ring us at 01 4853560 or email us on [email protected] or fill in our contact form at https://kearneylaw.ie/contact-us/

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