Hello. Welcome to part one off this webinar on psychological injuries. One of the areas, Really, where there's been a lot of recent change in terms off recovery for injuries that are purely psychological. Andi, I thought was time to have a look at some of the restrictions on that recovery ability on Don't keep up really with what's been going on in terms of decisions, we're going to take a look number. Things. First thing really is to try and look at psychological injuries and recovery. So we'll look at the extent to which those injuries what kind of injuries are they? And what are the prospects for recovery? Well, look at psychological and physical injuries together. What's the story, if you like where somebody suffered both psychological injuries? Onda Physical injury, which can happen, are many times actually all sort sorts of accidents. What are the threshold requirements Will will pick up this term threshold. It's important when we're looking at particular types of victim on the control. Mechanisms are also part off that consideration when we've initially decided, what kind of victim are we talking about? And that's the other thing. We'll be talking about the two types of victim that the law, if you like, describes as potentially suffering from psychological injuries those who could be considered primary victims on those who could be considered secondary victims. The difference between them on the difference in terms of recovery ability. Now one of the issues, of course, is unfortunately is there have been no shortage off human disasters, if you like. In the late 21st century, we've had in 1985 things like the Bradford Football Stadium fire. We had other capsize of the herald of free enterprise. The Kings cross underground fire the Piper Alpha oil rig blaze. We've had the Hillsborough Football ground on the sinking of the Martian s on various other serious crack train crashes and, of course, most recently the Grenfell Tower fire. So that any number, unfortunately off events where the potential the possibility off psychological injuries raises itself. But where and in what circumstances can we recover now? Clearly, there are a number of different factual situations where a claim for psychiatric injury or illness can succeed. So, for example, if we've got a claim and who suffers both a physical injury andan accompanying psychiatric injury, we could have situations where the claimant doesn't suffer any physical injury to all, but only suffers psychiatric home in circumstances where it's a result of being a participant in a primary event. In other words, a dangerous event. Unknown was a primary victim, so provided that physical injuries foreseeable that primary victim, if you like, then suffers only physical psychiatric injury and not physical. In those circumstances, the issue is, of course, recoverable ity is possible now. There are certain exceptions, then to that general rule that no damages are recoverable in the absence off a recognized psychiatric illness. Or we're gonna talk about lots more examples of that in just a short while when it comes to psychiatric injury. One possible scenario is that the climate is in fact, a secondary victim. In other words, they suffer a psychiatric injury owing to what has negligently happened to somebody else. You tend to think of someone who is viewed or been present when something has happened to somebody else, subject to foreseeability on a number of policy considerations. The secondary victim can recover in those circumstances, and we will look at the detailed up issues that going to be necessary to be in place before that individual could recover. So the exceptions if you like our compensation for a non physical symptoms without a recognised psychiatric illness on there are certain exceptions. If you like to that general rule that no damages are recoverable in the absence off a recognized psychiatric in illness. That's one of the myths. If you like surrounding these kind of injuries, where claims made for damages for pure psychiatric harm and that's the only harm that has arisen, the law requires, doesn't it that the injury complained off must in fact be a recognized psychiatric condition? That's, Ah, a requirement if you like. We know that from these injuries can arise together with physical injuries or purely alone if it's purely alone. The law requires that that injury must be a recognized psychiatric condition if there's a physical injury. In addition, the non physical injury need not meet the criteria off a recognized psychiatric condition that we know that psychiatric injuries can arise in a number of ways. They can rise on their own. They can arise in contruction with physical injuries. They can arise out but tortious act, which is how most of the that's p I laws would come across them. Ah, criminal act, of course, possibly breach of contract. But of course, most commonly they arise in talks on the most common areas. Really are going to be things like negligent driving, occupational stress, sexual abuse. Of course, there are any number off scenarios where these injuries are possible. Generally speaking, we know in the ordinary principles of negligence are gonna apply in those scenarios with a particular focus. Of course, on foreseeability, we should be cognisant of the fact that damages for psychiatric harm are also recoverable. Following a successful claim pursuant to the protection from Harassment Act, the 1997 act and in section several, one of that act damages can be awarded for. Among other things are anxiety or distress caused by Harrison. Notably, damages under the act do not only flow from a recognized psychiatric disorder, so anxiety or distress could be enough and will further. Since the statute doesn't refer to foreseeability, there is no need under the act anyway to establish foreseeability on its perhaps for this reason that victims of stress at work stress at work claims, if you like, often get brought under the protection from harassment Act, of course, in order to succeed in a claim for harassment, the climate needs to establish a course off conduct is what the act talks about, which is oppressive on unacceptable, not merely unattractive and unreasonable. So the stand. It's pretty high where a claim is made for damages for pure psychiatric arms, we said the law does require that injury must be a recognized psychiatric condition if it's a physical injury. In addition, the non physical injury doesn't need to meet that criteria if you like off recognized psychiatric condition on usually the difference between a recognized psychiatric illness on symptoms falling short of that can be identified by considering the GSM guidelines or the I C D 10 guidelines, and we'll talk more about those guys in just a short while. A claim for nervous shock is a particular branch of pure sight captured calm, to which special control mechanisms apply. And again we will look at those special control mechanisms in just a short while. Okay, So in order to qualify for compensation unless accompanied by a physical injury, psychiatric conditions falling short, her recognized psychiatric condition cannot be compensated on. We know this because this principle, if you like, goes back to a case. In the mid nineties case called Page and Smith, which went to the House of Lords when we still had one on In Page and Smith, the cool took the view that there was an important turning point in the law. The law Lords held that once it was established, the defendant was under a duty of care to avoid injuring the claimant. He didn't matter whether the actual injury sustained was a physical injury or a psychiatric injury. It therefore, at that point became unnecessary to prove that the injury by shock or psychiatric injury was foreseeable as long as some kind of injury was foreseeable. If you drive your car negligently into a tree with a passenger in the front seat, you clearly want to be helpful. See some injury as a result off your negligent driving. It doesn't really matter if the injury that actually develops is a physical one or a psychiatric one. There's no need for that to be a physical injury in addition to the psychiatric injury that's in place, and we know that there are certain exceptions to the rule that damages are recoverable in the absence of a recognised psychiatric injury. And clearly you know where the claimants suffered a physical injury on Let's let's give this example or suffered extreme anxiety or distress. The courts likely to see that. And certainly the judicial college guidelines will probably see it as some kind of aggravating factor in calculating the award for pain, suffering and loss of immunity. There won't be a separate ward, but it would be considered an aggravation if you like. Secondly, where the claimants life expectancy, for example, has been reduced by a physical injury on when assessing damages for pain, suffering and loss of amenity, the court will take into account the suffering caused by or likely to be caused by the awareness that life expectancy has been reduced on as long ago as the 12th edition of the Judicial College Guidelines, in particular cases concerning lung disease awards. There is cognisant, if you like, of the fact that lung disease awards might be enhanced where classifiable psychiatric illness is in fact present. So, you know, we know there are a number of exceptions we could add, couldn't way. We've already mentioned the harassment we could Add the Equality Act 2010 where, of course compensation could be awarded for injury to feelings in respect of discrimination related to all of the protected characteristics in that act age, disability, gender reassignment, married to civil partnership, pregnancy, maternity, race, religion, belief, sex and sexual orientation. So injury to feelings within that act, which isn't defined on in practice for, actually covers a wide range of suffering from feelings of shock and upset to complete nervous breakdowns. We've already identified that psychiatric injury in conjunction with a physical injury, um, is well established that where you've got physical injuries, pain and suffering awards can be enhanced to reflect emotional reactions to the cause of the injury. Maybe fear, anxiety on distress. So we know that that's already the case in cases where, for example, there's disfigurement, perhaps facial scarring on a ward or the award, Let's say, but pain suffering and loss of immunity will necessarily take account off the claimants reaction to that disfigurement on. If you know, however, the emotional reaction tips into a recognized psychiatric condition, the core is likely to award damages for the recognized psychiatric condition. Distinctly are not take into account the former. Because, of course, if both are done, the argument would run. Will double recovery is actually happened. If we take a look at the definition off psychiatric home as applied by the legal system today, we can look back at case that you might remember from your law studies. It's It's one of those cases it sticks in your mind, I think, to the case off McLachlan and O'Brien from 1983 on. If you recall in that case, the claimants seeking damages for psychiatric injury, the court said, must establish that he or she is suffering not really grief, distress or any other normal emotion but a positive psychiatric illness. And today, most psychiatric experts are going to make their diagnosis from pretty much too diagnostic manuals. We mentioned both but now to say, look, but more about them. The Diagnostic and Statistical Manual of Mental Disorders, Dear sent, that recently replaced with the D. S. N five from May of 2013 or the I C. D. 10 the classifications of Mental and behavioral disorders, diagnostic guidelines published by the World Health Organization. On though it's usual for your expert to rely on them One thing we ought to make clear is that neither the inclusion of a category or the exclusion of a category will necessarily exclusively confirmed either. That the courts will absolutely award are some for that qualifying illness or if the condition is missing from that list that they want. So there's no it's a usual story to ring around them. But if the condition the climate has is not contained with any any of those manuals, it wouldn't necessarily preclude recovery on, as in, so many things were in the hands of our experts on this psychiatric injury. One of the definitions, if you like that we need to think about toe work with is its preferred to us a number of things and no doubt ready in this webinar. We refer to it in several different ways, so psychiatric injury convey referred to a psychiatric damage, psychiatric harm, psychiatric illness, psychiatric disorder, mental disorder and mental illness. Most P I practitioners will prefer the term and use the term psychiatric injury, while in fact most international clinical documents would tend to refer to mental disorder. Generally speaking, either phrase is going to do know a psychological pattern which occurs in an individual which is not unexpected part off normal development or culture. And usually that's going to be associated with distress or disability, which commit classified in accordance with recognized classifications. Symptoms on most psychiatrists will classify a claimant. Symptoms are reference to one of those two manuals that we were talking about earlier in order to qualify for compensation. Remember, unless it's accompanied by a physical injury, psychiatric conditions falling short off a recognized psychiatric condition injury if you like referred to above will not qualify for compensation. For example, as we've seen normal grief, anxiety and fear, I've been found not to qualify cases like hints and Barry, 1970 where the claimant didn't recover from the grease, grief and sorrow that she'd experienced at losing her husband, Riley and Merseyside. The claimant didn't recover for the fear experienced when trapped in a lift. Nichols on rushed in from 1992. The climate didn't recover for feelings of shock on being shaken up after a road traffic accident, so more is clearly needed. One of the issues that we have to be alive to, I think, is some off the warning signs that might be present on buses. P I lawyers need to be alive to this possibility. Um, common signs, really that claim it may be suffering from some form off Psychiatric injury need to be looked out for on We'll talk about some of those in just a moment references in medical records or reports or indeed, in the claimants own account of their condition. It may be that those records will be a useful first course. Cool The notes themselves might indicate relevant psychiatric psychological symptoms. But even if they don't, the GP may be in a position to help with whether the claimants suffering from some kind of recognized psychiatric condition, assuming the claimants had pretty close contact with their doctor off course, close members of the Claimants family will also be a useful source off information to try and impart useful information to assist in whether or not there are issues with the claimant. Now more and more now in P I work were less likely to be meeting out clients. We may speak on the phone, but we're less likely to meet. Um certainly in smaller cases becomes more and more important to look out for these early warning sites. If you like off potential problems, I've tried to compile it. A list. Clearly, it's not an exhaustive list on Do you know, of course, some of the symptoms that we're going to look out on that list could be experienced in the absence or a diagnosable psychiatric disorder. But they aren't useful warning signs. So things like depression, things like diminished self esteem Lo thought thoughts of death, Irritability are impaired. Memory or concentration is always a good indicator. Sometimes we get information from a member of the claimants. Family might be a clue to the fact that there may be impaired memory or concentration. Someone who can't remember things. They're going to the shops. Four. Need to take a shopping list now. Never needed to before flash back. Panic attacks are reduction in such general coping skills. Nightmares were current nightmares, avoidance of people, places or subject matter connected with the incident. Again, this could be information that comes out are quite casually, almost from the claimant reduced libido, another indicator. But there may be our problems with psychiatric disorders, pain or disability that can't be explained by reference to the claimants. Physical condition on any indicators off a change in personality. All of these are going to be important indicators that something may not be right on that. Further investigation will need to be undertaken. Let's take a look at some off the descriptions if you like that, we might use for the kinds off conditions that we're talking about on one category, of course, in terms of psychiatric injury is an anxiety disorder usually characterized by either a phobic reaction, maybe to a particular trigger. So office example. Because after a road traffic accident or more general and persistent anxiety, which is not restricted to any in particular environmental circumstance, so it could be panic disorders. Obsessive compulsive disorders. Post traumatic stress disorder, of course, are acute stress disorder. Generalized anxiety disorder. Panic attacks on acrophobia might well occur in the context of several of those kinds of particular disorder. In addition, adjustment disorders are normally you'd expect them to be quite short term. So maybe up to a period of maybe six months of symptomology, both under the dear 74 and the I C D. 10. Those are manuals of unite the diagnosis, ill defined in those terms on their deferment, defined by the development, often emotional behavioral response and reaction to an identifiable stressor. For example, injury on accident or an injury can be things like divorce or loss of a job. Depressive disorders are often characterized by low moved hey in combination with lost of interest or enjoyment in usually pleasurable activities. And they will include things like decreased energy change in appetite, sleep disturbance difficulties in concentrating on feelings of worthlessness on DL. Thoughts off death in terms off types of psychiatric illnesses that the kinds of conditions that we commonly see the courts making awards in respectable would include things like post traumatic stress disorder, things like chronic fatigue syndrome, things like chronic pain syndrome on a path of pathological grief reactions on you know, in those manuals, if you like that we talked about we know that the claimant who may have suffered injury on who features in one of those public publications on the idea that their symptoms feature there, that it's a recognized psychiatric illness on that damages will be recoverable. But there are some conditions, as we mentioned earlier, that are absent from one or both of the publications but have nonetheless had compensation in damages in decided cases. For example, the last one we mentioned pathological grief reaction. So illnesses we know in which the court may often will make awards we've looked at. But there were also other conditions that the courts may make awards in respect that don't necessarily appear in those publications. If you like eso things like adjustment disorders of all kinds, anxiety disorders of different kinds on, you know, the other conditions that we talked about on that slide. So exclusion from one of those manuals doesn't necessarily mean that an award won't be made. We mentioned post traumatic stress disorder on it's a very commonly known psychiatric disorder for the development, really off a number off specific symptoms on that will be after exposure to some kind of traumatic stressors event in which that person either experienced the event, witnessed the event or was confronted with an event which involved actual or threatened death or serious injury on the person's response, if you like, would involve intense fear, helplessness, all horror Now the diagnostic criteria within the day sm four The day seven fives Predecessor. That manual includes the development off a number of specific symptoms after exposure to a a stressor. Traumatic stress, if you like. Um, certainly similar diagnostic criteria can be found in the other manual i. D. C. 10 Andi. You would expect it's common that the court make an award in respect off that condition. Energy. The Judicial College guidelines includes that condition in the list of potential injuries that you can recover for. One of the next issues that raises its head is what do you do to get evidence? Should you obtain psychiatric evidence on you know, once obtaining psychiatric evidence, it's becomes very, very expensive on if you're acting for the claim that the last thing you want to do is commissioner report, unless you've got a pretty good reason to suppose that some sigh capture injuries actually been sustained. If you choose not to obtain that evidence, however potentially, any potential psychiatric injury claims are going to be, we're going to fight. The obvious difficulty is that you've got to form your own view as to the likelihood that the claimant has suffered a recognized psychiatric injury that has to be the precursor to deciding on what evidence you need. If you've undertaken appropriate investigations and you're still unsure whether the claim it might have a psychiatric injury or not. Clearly, one thing we've got to consider is Irving on the side of caution on discussing the possibility with the claimant, rather than risk a serious undervaluation off the claim. If there's rials suspicion the claimant suffering from some form of psychiatric injury then discuss that possibility with them on get them to attend an appointment with an expert psychiatrist I saw or psychologist when you know when deciding which is appropriate, important that we remind ourselves what the differences are between psychiatrists on psychologists. Psychiatrists, of course, are trained medical doctors. They can prescribe medications. They spend much of their time with patients on medication management as a course of treatment on they treat patients based on the psychiatric association's diagnostic GSM manual. Psychologists, on the other hand, will tend to focus on behavior. They will possibly ask patients to track things like sleep eating habits, environmental stresses and identify areas of concern on. They will concentrate on the claimants, mind on emotions with a primary focus on thoughts, feelings on life experiences. So you know it may be having made this assessment as to which way you're going to go and how you're going to instruct. An expert on the climate, perhaps might be unwilling to go and see that expert that that that happens then it's important that our advice to the climate is carefully documented. If you like, clearly set out to the Kleiman off course at the extreme end. If you have any concerns about the claimants mental capacity, then take note of the mental capacity at 2005 in the code of practice that goes along with that. If you if you're concerned that it may be that climate lacks mental capacity pursuant to the test in the act, that's something that needs to be cleared up. If you like with an expert medical opinion before going any for you know, if we're going to say, Is there a list of psychiatric conditions that entitled the climate to recover damages then then there isn't really there isn't a single exhaustive list as a rule of thumb. If you've got an appropriately qualified psychiatric expert who tells you says, in their view, the climate suffered a named injury, then that claimants almost certainly going to be entitled to recover damages on. We talked about the manuals that are produced that will tend to have a list of the conditions that can be considered recognized psychiatric conditions. Clearly, there is a difficulty in that. How do you decide what the threshold for a recognized psychiatric injury is on that has led in the past? Does still lead to some mis application on inconsistency Now, Clearly, we talked about the fact that there are some exceptions to the rule that where the claimant has suffered a psychiatric injury, if it's if it's not a recognized condition, then recovery is going to be extremely difficult except in certain limited circumstances. We also talked about the fact that there are a number of conditions that the courts will award. Damage is full. We have to start considering which category off victim, if you like. The claimant falls within to try and decide when and in what circumstances came. It's come recover. So if the first port of call really is to decide whether or not the climate could be considered, what the glory calls a primary victim Now, the simplest definition of you, like off a primary victim, is claimants who are involved either immediately in the incident or immediately as a participant in the incident on you know, we can certainly look to cases like all cock Senate Chief Constable, South Yorkshire, the the 19 nineties, following the horror off the Hills Burfoot football stadium, disaster climates that either seen the tragedy from other areas of the stadium or on television or had heard from others on in those categories. In those cases, the House of Lords rejected all their claim all their claims and in doing so, put in place control mechanisms, if you like. On a differential between primary victims and secondary victims. Lord Oliver's categorization off claimants in that Walcott case into two categories primary and secondary is still good. Law on that case is still refer to extensively in sin psychological injury cases. The historical precedent position is maintained. Primary victims will recover, provided that at least physical injury was foreseeable, even if psychiatric injury was not full circle. Secondary victims, however, will say more about those in a moment. Those who effectively one in the immediate danger, if you like, will have to overcome a Siri's off control mechanisms, which we'll talk about in a moment Now. A primary victim is someone who's directly involved as a participant in the accident in one off the following ways, for example, those within the actual area of physical danger when the accident occurred on who were directly at risk of physical injury or reasonable, reasonably believed that they were rescuers who go to the aid of others involved in the accident, who've been exposed to danger or who reasonably believed they were in danger cases where the climate's waas unwilling participant and that they were put in a position of being or thinking that they were about to be or have been the involuntary cause off death or injury off another. So those are the categories in which primary victims can recover for secondary victims. Those are the claimants who were no more than passive or unwilling participants off injuries caused others on for it. If your secondary victim you need to show all of the following on, let's take a look at the list that you had close ties of love and affection with the victim on the case went on. The Walcott case went on to say You only assume that close tie in cases of spouses or parents that they you were present at the accident or its immediate aftermath that psychiatric illness was caused by the direct perception of the accident or its aftermath rather than buyer 1/3 party. So, for example, if you'd watched proceedings on the television even though the television was live, that would not to take that box, that the mechanism off the injury was indeed nervous. Shock on this is where this definition becomes important. It arose out of the sudden appreciation by cycle sound off a horrifying event on day that the inch illness suffered is a recognized psychic psychiatric injury or illness. So you know the criteria if you like. That was set out that the control mechanisms set out in all cock were to remove the possibility that a mere witness to ah, horrific event must first prove all those things before. Indeed, they're able to recover on. You know, this Test waas taken up by the House of Lords Noel Cock as a control mechanism. If you like to limit the number of claimants where the number of claimants, of course as you can imagine from 10 vision could have been tens of thousands of people from one incident on Lord Oliver in his speech went on to identify the two types or victim that needs to be identified clearly on the distinction are set out by the House of Lords. WAAS. Something that was taken on, If you like from the Moroccan know Brian Case that we looked at early wrong, let's look up some examples of this in action in D. Lackey on the chief constable of Manchester. Claimants who suffer pure psychiatric harm, said the court, in circumstances where he or she was observed objectively in immediate danger, will be entitled to recover. So policemen who had to make eight trips to attacking device on a criminal's car because the tracking device kept failing became increasingly frightened. He'd be discovered and attacked. He did develop PTSD. He clearly it was foreseeable. That failure off the tagging device toe work put him at an increased risk off physical danger. Clearly, in that case, De Lackey was considered to be a primary victim in Simmons and British Steel from 2004 multiple causes. If there are for psychiatric injury, the defendant will be liable where it's negligent Act Waas, a material contributor to the injury and the injury is indivisible. I'm so it's important to note, if you like that one of the claimants reactions after a horrific accident work waas that that Mr Simmons suffered from a great deal of anger. Clearly, anger's not compensated all but depression on personality change. WAAS On the basis that the accident was a material contribution to the development, the climate's anger on the psychiatric injury flowed from the anger. Causation was established. Now the Judicial College Guidelines in the 11th edition first covered recovery for this kind of injury and in Chapter four, psychiatric and psychological damage contains two categories. Psychiatric damage generally on post traumatic disorder. Specifically So, clearly, the judicial college guidelines accept the existence. If you like off those conditions, cycle damage on specifically PTSD. I'm one last example if you like. All this inaction is the case of Monk on Harrington. In that particular case, the claimant claimed damages The psychiatric injury suffered as a result off helping victims of a construction action accident for which the defendant instruction construction company sorry had admitted liabilities. He helped those who were injured. The court's decision in that case was that the man had suffered psychiatric injury as a result of assistance provided to victims of the accident, was not entitled to damages. As a primary victim, he'd assisted at the scene, but he couldn't establish he had a legitimate fear for his own safety at that time or that he reasonably believed he caused the accident accordingly. He wasn't a rescuer, nor was he unwilling participant in the accident, almost unable to recover in the case off Taylor on Novo, the daughter of a woman who died unexpectedly weeks after an accident of work, couldn't establish proximity in her damages claim against the employer because she'd not witnessed the accident or its immediate aftermath. She'd been present when her mother died. But it was the accident and not the death that was the relevant event for the purposes of establishing proximity in her damages claim arising from the psychiatric harm she suffered after witnessing her mother's death. The court had, for policy reasons, confined the rights of secondary victims which the daughter clearly waas by means of strict control mechanisms, said the call on those same reasons militated against any further substantial extension unless parliament decided that was appropriate on when the judge at first instance found the daughter was able to recover the court. If you that that was just the wrong decision in relation to proximity, Clearly then primary victims will recover, provided at least physical injury was foreseeable. Even if psychiatric injury was not secondary victims, those not in immediate danger will have to overcome those control mechanisms. Clearly, public policy plays a big part in this. Claimants who are primary rather than secondary victims are always going to be in a much stronger position. So arguing that climate is a primary victim is first port of call, sometimes on apparent secondary victim can actually be the primary victim, with all the advantages that that brings will see more about that in the 2nd 1 In this Siri's, when we look at clinical negligence on In referring to media and immediate involvement as a participant, Lord Oliver potentially include some of those who might be recorded as secondary victims on. We need to explore that and great to date. Oh, so who can see rescues involuntary partitions, prisoners, detainees, if you like? Other categories. Those who receive distressing news, those who are the victims of extreme or outrageous practical jokes. Those who were the victims of workplace stress. And those who may be the victims of harassment under the Protection from Harassment Act will pick up MAWR off these themes and take the matter up, but further in part two off the webinar in relation to psychiatric injury. Meanwhile, that's the end of this one. Thank you very much listening.
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