How broad is the Definition of Psychiatric Injury-Discuss
Introduction:
Psychiatric injury can be defined as “A recognized psychiatric disorder caused by sudden shock”, when we look at it with regard to tortious claims, psychiatric injury may arise, as result of another’s negligence or may be an effect of a traumatic accident.
Different people respond to accidents in different ways. Within any compensation award for personal injury there is an element that takes into account the fact that some psychiatric injury will have been suffered,
However, where the psychiatric response is to an accident is more serious than the norm additional compensation can be obtained.
In general terms, we can claim for psychiatric injury where we were the victim of an accident, were present at the accident or attended the scene shortly after the accident.
Psychological injury refers to a variety of mental harm claims. The claim may result from actual organic damage to the brain or emotional upset with no medical evidence of brain damage. Psychological injury claims are common in both liability cases and workers’ compensation matters.
Two types of victim:
Primary victim:
A “primary victim” is a person who was physically injured or could foreseeable have been physically injured as a result of another person’s negligence. An example of this is a claimant who is involved in a car accident caused by the defendant’s careless driving and gets mildly injured (or even remains unharmed) as a consequence, but the fright from the crash triggers a serious mental condition. Such a claimant can recover damages for his car, his minor injuries and the nervous shock he had suffered. “Primary victims” also include rescuers (such as firemen, policemen or volunteers) who put themselves in the way of danger and suffer psychiatric shock as a result.
Secondary victim: Secondary victims are those not within the physical zone of danger but witnesses of horrific events. Secondary victims must demonstrate the four criteria are present in order to establish liability:
· A close tie of love and affection: This will be presumed in parent and child and between spouses but must be proved in other relationships including brother and sister.
· Witness the event with their own unaided senses: Seeing the events on television is not sufficient.
· Proximity to the event itself or its immediate aftermath: The relatives that had visited the make shift mortuary to identify loved ones was held not to come within the immediate aftermath of the event.
McFarlane v E. E. Caledonia [1994] 1 Lloyd’s Rep 16
Taylorson & Anor v Shieldness Produce Ltd [1994] PIQR 329
McLoughlin v O’Brian [1982] 2 WLR 982
· Psychiatric injury must be a result of a shocking event : Sion v Hampstead Health Authority [1994] EWCA Civ 26 – A father’s claim failed due to lack of ‘shocking event’ where he suffered severe depression on witnessing son’s death due to medical negligence.
The causes of psychiatric injury: The most common claims of psychiatric injury are related to automobile accidents. In addition to these , mass transportation accidents, slip and fall cases, toxic exposure, traumatic occurrences such as being trapped in a burning building and even work place harassment are commonly used as the basic for psychiatric injury claims.
Common causes of psychological injury at work include the following:
- Being involved in a distressing accident
- Enforced absence from work, either temporarily or permanently
- Pressure from employers
- Enforced career change
- Loss of earnings and financial stability
- Radical changes in family and personal life
- Physical scarring and body image issues
MENTAL – PHYSICAL CLAIMS
Psychiatric claims that are caused by a serious physical injury or physical condition(s) are known as Mental-Physical Claims. Often, a serious physical injury impacts other aspects of an injured workers’ life. Examples of such impacts are sleep disorders, depression and/or anxiety caused by the physical pain, diminished functional ability, and the loss of an injured workers’ profession.
MENTAL – MENTAL CLAIMS
Almost all Mental-Mental (Psychiatric or stress claims that do not also involve a physical injury i.e. Mental-Physical) are denied. Most of these cases are also lost at trial due to the good faith personnel action defense.
A Mental-Mental claim that is caused by being the victim of a crime at work, witnessing a sudden violent event, or being the victim of sexual harassment may be a viable mental—mental claims.
Claims by short term employees (Less than two years) that do not involve the above events above are usually weak claims.
Personal injury and employment tribunal cases are the main legal arenas in which psychiatric injury is important. Personal injury, for example from work or traffic accidents, is associated with more dramatic conditions, such as post-traumatic stress disorder. On the other hand, employment cases tend to involve claims of long-term adverse treatment rather than sudden individual events, and so tend to be associated with claims for depression and anxiety. However, both types of case need an expert report from a psychiatrist, or psychologist.
What is DSM IV?
The Diagnostic and Statistical Manual of Mental Disorders (DSM), or DSM IV Criteria is the standard classification of mental disorders used by mental health professionals in the United States. It is not only used for patient diagnosis and treatment, but is also important for collecting and communicating accurate public health statistics.[1]
Different Countries law about Psychiatric Injury:
Korean psychiatric injury law
In Korean psychiatric injury law the Korean workers published in English and Korean before 2009. Three kinds of occupational psychiatric disorders were studied: disorders related to job stress and mental illness, psychiatric symptoms emerging in victims of industrial injuries, and occupational psychiatric disorders compensated by Industrial Accident Compensation Insurance (IACI). Korea does not maintain official statistical records for occupational psychiatric disorders, but several studies have estimated the number of occupational psychiatric disorders using the Korea Workers’ Compensation and Welfare Service (COMWEL, formerly KLWC) database. The major compensated occupational psychiatric disorders in Korea were “personality and behavioral disorders due to brain disease, damage, and dysfunction”, “other mental disorders due to brain damage and dysfunction and to physical diseases”, “reactions to severe stress and adjustment disorders”, and “depressive episodes”. The most common work-related psychiatric disorders, excluding accidents, were “neurotic, stress-related, and somatoform disorders” followed by “mood disorders.
California psychiatric injury Law
Under California Law, for a psychiatric injury to be compensable, the following requirements must be satisfied:
- The employment must be six months or more.
- The employee must have a psychiatric condition that is listed in DSM IV
- The employee must prove that the actual events of employment are the predominant cause of the psychiatric condition (51% or more)
- A psychiatric condition that is substantially caused (35%–45%) by good faith, non-discriminatory personnel action(s) is not compensable as a work-related injury. Examples of good faith personnel actions are criticism of the employee’s work or attendance, change in work assignments, and decision about raises or promotion. The employer has the burden of proof on this issue.
- A psychiatric injury that is caused by the litigation process is not compensable. Examples of psychiatric injury caused by the litigation process are an employee’s reaction to the denial of their claim, dealing with an abusive claims adjuster, or having their benefits terminated.
- A stress claim or mental– psychiatric injury claim filed after termination or notice of termination is not compensable unless the employer know of the injury or medical records of treatment for the psychiatric dated prior to the termination exist.
Damages:
The main remedy against tortious loss is compensation in ‘damages’ or money. In a limited range of cases, tort law will tolerate self-help, such as reasonable force to expel a trespasser. This is a defense against the tort of battery. Further, in the case of a continuing tort, or even where harm is merely threatened, the courts will sometimes grant an injunction. This means a command, for something other than money by the court, such as restraining the continuance or threat of harm.
For people who have died as a result of another person’s tort, the damage that their estate or their families may gain is governed by the Fatal Accidents Act 1976 (replacing the Fatal Accidents Act 1846). Under s.1A the spouse or dependent of a victim may receive £11,800 in bereavement damages.
Compensation for Rescuers:
Sometimes, a tort fear may be negligent enough to create a tragic situation under the impression that people will be morally compelled to rescue potential victims. In such cases, it is well settled that that the tort fear will be liable for any injury inflicted on the rescuers in the form of physical harm. It is careful to note that the tort fear is not liable to compensate a rescuer against foreseeable psychiatric harm. If this were the case, the courts would flood with people claiming compensation even for negligible assistance rendered during accidents.
In McFarlane v. E.E. Caledonian Limited [1994], it was decided that a person is considered a rescuer after a critical assessment of the relevant facts in a particular incident. No compensation is dispensable for peripheral assistance.(McLean, 1998)[2]
Conclusion:
Finally after discussing above all the factors of psychiatric injury it can be expressed that psychiatric injury is kind of nervous shocked? It is quite evident that recovery of damages on account of pure psychiatric infliction is full of complexities that are difficult to rationalize. These intricacies arise as a result of the special nature of the issue. The numerous control mechanisms are devised to regulate the number of claims for compensation to avoid flooding the courts with petty affairs. However, certain bits of the law are too rigid and they ought to be reconsidered.
Bibliography
Websites:
1) Chadwick v British Railways Board(2009); available from http://en.wikipedia.org/wiki/Chadwick_v_British_Railways_Board
2) 2. DSM IV Criteria; available from: http://www.psyweb.com/DSM_IV/jsp/dsm_iv.jsp (accessed on 26 March 2012
3) 3. J Korean Med Sci. 2010 December; Occupational Psychiatric Disorders in Korea; available from: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3023353/
4) 4. Negligently inflicted psychiatric injury; available from: http://www.e-lawresources.co.uk/Negligently-inflicted-psychiatric-harm.php) (accessed on 19 March 2012).
5) 5. Psychiatric Injury – Conflicting views under the English Legal System (2011), available from: http://legaljunction.blogspot.com/2011/05/psychiatric-injury-conflicting-views.html
6) Psychiatric Injury; available from http://www.whitedalton.co.uk/Injuries/psychiatric-injury.html
7) the law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify; available from: http://www.essaycapital.co.uk/samples/the-law-on-the-recovery-of-compensation-for-pure-psychiatric-harm-is-a-patchwork-quilt-of-distinctions-which-are-difficult-to-justify/
Books:
1. Black’s Law Dictionary, Fifth Edition, page 1196 (West Publishing Company 1979)
2. Chandra Mohan v. U.P., AIR 1966 SC 1987, 1993
[1] DSM IV Criteria; available from: http://www.psyweb.com/DSM_IV/jsp/dsm_iv.jsp (accessed on 26 March 2012)
[2] the law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify; available from: http://www.essaycapital.co.uk/samples/the-law-on-the-recovery-of-compensation-for-pure-psychiatric-harm-is-a-patchwork-quilt-of-distinctions-which-are-difficult-to-justify/( accessed on 26 March 2012)