Drop-of-a-hat compe
I was recently called by a
journalist at a local BBC
radio station and asked
to comment on a case in
the High Court involving
a nurse who was seeking
to recover damages for
trauma associated with her
experience of the death of
her pregnant sister. This
was following negligent
treatment at the East Surrey
Hospital. The case had
attracted press headlines
such as: ‘Top nurse sues for
broken heart’.
The journalist suggested to me that this
was a new departure in English law
and a sign of a compensation culture
out of control. I was subsequently
interviewed about the case on the BBC
Sussex breakfast show and then again
on the BBC Surrey equivalent. The
interviewers’ questions and the media
coverage of the case generally illustrate
some key misconceptions about claims
for damages for psychiatric injury and,
indeed, about claims against the NHS.
It was put to me that if this grieving
sister was allowed to claim damages,
it would open the floodgates to every
bereaved relative staking a claim. I
have a number of issues with this
proposition. First, the defendant
in this case had admitted that the
sister’s death was a result of negligent
treatment. The vast majority of people
dying in hospital will not die as a
result of negligence. Second, it is
not possible to recover damages for
straightforward grief or distress. `Suing
for a broken heart` might make a
good headline but it is not a realistic
proposition legally.
To be successful when making a claim,
people going down this route will have
to establish, through independent
psychiatric assessment, that an
identifiable psychiatric disorder has
been suffered that goes far beyond a
normal grief reaction. It was agreed
by both parties in the case under
discussion that the claimant had
suffered a significant psychiatric injury,
which was adversely affecting her life in
a significant way.
In a case like this, where the sister
has suffered psychiatric injury as a
result of the treatment provided, it is
necessary for her, as the claimant, to
satisfy a number of other criteria before
the court will consider a damages
award. The criteria emanate from
the landmark Hillsborough disaster
cases. The House of Lords decreed
that a successful claimant would
have to demonstrate close ties of love
and affection with the victim – police
officers traumatised as a result of their
experiences of rescuing the injured
and retrieving the dead were not
entitled to damages. Proximity in time
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and place to the events in question is
also required - controversially, in the
Hillsborough cases, relatives who had
witnessed the death of loved ones on
the television and whose trauma was
no less severe as a result, were denied
compensation. Crucially, a successful
claimant must also establish that a
psychiatric injury has resulted from a
sudden shock to the mind, as opposed to
a gradual accumulation of injury resulting
from the witnessing of the demise of a
relative over a number of days.
Although, in both instances, the
resulting injury for the claimant
tends to be the same, the court quite
deliberately created this arbitrary
distinction to limit the number of
successful claimants and to `keep the
floodgates closed`. Although it does
not necessarily come across from the
media coverage, I understand the only
issue dividing the parties in the instant
case is whether those making claims
suffered a sudden shock or the more
gradual onset of injury over a number
of days. Claimant lawyers have long
campaigned for the unfair distinction
between `sudden shock` and `gradual
accumulation` cases to be dropped and
it will be interesting to see whether the
court’s decision in this case has any
bearing on this.
I cannot help thinking that what
underpins the media coverage of
this case is a general failure to take
psychiatric injury seriously. In the
interview, I suggested that the public
would have much less concern about
someone recovering damages for a
physical injury. However, the impact
of the psychiatric injury can be as
devastating as a physical injury, if not
more so. Although public understanding
of psychiatric injury has improved in
recent years, there remains a tendency,
when confronted with a story of this
kind, for people to suggest that the
sufferer should `get over it` or `brush
it off`. For someone in the midst of a
profound depression, as I understand
is the case for the woman in the case
under discussion, this is a wholly
unrealistic and insulting proposition.
My interview with BBC Surrey
concluded with the familiar suggestion