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Psychological damage

LAW

The cases of claimants who witness a traumatic accident and then sue employers for the psychological injury it has caused are little-understood areas of litigation. James Bell looks at some cases that help to clarify when damages can be recovered by a claimant

CASES involving the effects of workplace stress are all too common today. But less well understood is the position of claimants who are 'secondary victims' - in other words, not themselves physically injured at work, but psychologically damaged by witnessing an accident or its aftermath.

A secondary victim is essentially an unwilling witness who is shocked by events that physically endanger or kill others. I am acting for a number of claimants who have seen their co-workers injured or even killed and the big challenge for me is always to establish what right the apparently uninjured co-worker has to sue his employer.

The first hurdle the claimant has to overcome is to prove that he is not simply upset or shaken by what he has seen, but that he is suffering from a diagnosed psychiatric illness.Without going into too much detail about what constitutes a psychiatric illness, I can say that in most cases it is expected that such an illness will mean that the effects of a shocking accident stay with the claimant for a considerable period of time and are severe enough to affect his everyday life in some way.

The second hurdle facing the claimant is to establish that it was reasonably foreseeable that he was likely to be injured by witnessing the event which has caused his illness.

Even if the claimant manages to clear these two hurdles, he cannot recover damages for a recognisable psychiatric illness unless he can satisfy three additional requirements.

Firstly, a secondary victim must establish a close tie of love and affection to the primary victim - for example a family relationship or the tie of a close friendship.

The closeness of the tie is presumed for family members but if you were simply alleging that a co-worker saw another fall to his death, you would have to prove that the claimant knew, and had a close friendship with, his co-worker.

Secondly the claimant has to show that he was close to the accident in time and space.This is straightforward if he was right there at the moment the accident happened, but there is no time limit on how long the immediate 'aftermath' can last after the event. In one case, in which a mother whose children had been injured in an accident saw her family at the hospital, it was decided that two hours was sufficiently soon after the event to justify the claim.

But if, by the time the claimant witnesses the scene, the situation is already under the control of others, say the police or ambulance staff, it is usually held that the 'aftermath' is over.

The third requirement is that the secondary victim has to have witnessed the incident directly, rather than having heard it from a third party.

Many readers will recall that claims on behalf of the families who saw their loved ones killed or injured at the Hillsborough football stadium were not able to recover damages.The judge in that case ruled that they were secondary victims but that, by watching events on television, they were removed from the category of personal injury claims. Naturally, this decision greatly upset the families because others who were present but who did not have ties of love and affection with the primary victims (in particular, officers from South Yorkshire Police) were able to claim, in some cases, substantial sums in damages.

On that point the law has a special rule in relation to rescuers. In order to recover damages on the basis that a person was a rescuer, they would have to prove that they were exposed to danger while engaged in a rescue attempt.

In the 1997 case of Duncan v British Coal Corporation, a mining supervisor who arrived four minutes after an accident and then gave mouth-to-mouth resuscitation was found not to be a rescuer.The court found that he was not in peril himself and was, therefore, unable to claim compensation.

In 1996, after repeated challenges by claimants, a House of Lords ruling finally gave some indication as to how these cases were to be dealt with.The landmark case of Page v Smith finally established that a person could sue for psychiatric illness alone. Prior to 1996, claimants could only pursue a claim if they had suffered physical injury and then consequent mental injury.

Page v Smith was unusual in that it involved a person suffering from chronic fatigue syndrome, or ME as it is better known.

The claimant, Mr Page, alleged that a road traffic accident had made his ME worse than it had been prior to the shunt and the court held that, despite suffering no physical injuries, Mr Page was able to recover damages for his worsening psychiatric illness.

Cases of this kind often involve unusual circumstances. In a case last year, a police officer was required to attach a tagging device to the underside of a criminal's motor vehicle. Attaching such devices is usually done at night but on this occasion, because of time pressures, the officer had to place the bug on the vehicle while it was parked with the criminal and his associates sitting inside.

If the police officer had been caught in the act of applying the bug, he could have been very seriously injured or even killed.And unfortunately for him, the device was faulty and he had to make nine separate trips from his hiding place to the car to try and fix it. It subsequently transpired that there was a history of malfunctions with the batteries in these tracking devices but that the police had done nothing to solve the problem.

The Scottish Court found that it was reasonable to foresee that the police force's failure to provide reliable batteries would expose the claimant to a risk of injury.And even though the claimant had escaped detection and had therefore suffered no physical injury, the court held that he was a primary victim.And because he was a primary victim, there was no need to prove (as there would have been had he suffered injury as a secondary victim) that the claimant had been involved in an 'event'.

Key points

Primary victims can sue if they were exposed to danger but were not physically injured. They can also sue if there was a 'near-miss'.

Secondary victims can sue if they see a close friend injured or killed.

All types of claims must involve psychiatric injury rather than just shock of a short duration.

If the event makes other conditions worse then this can included in the claim for damages.