Psychiatric injuries in the emergency services
Emergency services workers are likely to witness tragic and traumatic scenes during their careers. Ben McBride looks at the difficult issue of claiming compensation for the psychiatric injuries suffered as a result
Claiming compensation for trauma suffered after being involved in a shocking event has been described as the law “most overdue reform” in personal injury and criticised as a “patchwork quilt of law”.
Judgments after public disasters such as Hillsborough have demonstrated the will of the courts to limit the numbers of those who can recover compensation for the effects of witnessing tragedy caused by negligence.
Issues remain about the legal “status” of emergency service workers as victims of negligence in these situations and the law is constantly changing. First what is an injury for which damages can be awarded?
What is psychiatric injury?
If someone is pre-occupied about a terrible event to the extent that they are having flashbacks or sleepless nights or general feelings of stress, anxiety or depression, it has clearly affected them.
However, there are strict guidelines for psychiatrists in coming to a medical conclusion as to whether these feelings amount to a psychiatric injury.
Unless a claimant “passes” the guidelines and receives a clear diagnosis of psychiatric injury, then a court will not award compensation.
Who qualifies for compensation?
It is because the courts divide victims into two main categories that it is not straightforward for emergency services workers who suffer trauma to claim damages.
The “primary” victim
If someone negligently threatens another’s physical safety then the law is clear that the victim can recover compensation for any injury that follows, even if that injury is only a psychiatric injury that the negligent party might not have foreseen.
In the case of Page -v- Smith [1996 AC155], a road accident victim in a minor road crash suffered no physical injury but found his chronic fatigue syndrome was significantly worsened by the event.
He was able to recover damages because it was foreseeable that he would suffer some injury when someone negligently drove into his car and it did not matter that this was a relatively obscure psychiatric injury rather than the more predictable physical injury.
The “secondary” victim
This is where the courts draw the line on who can receive compensation.
In most traumatic incidents there will be onlookers who are not directly involved in that there is no physical threat to them. They may however, understandably, suffer trauma and, possibly, a psychiatric injury as a result of what they have seen.
Horrific events such as at the Piper-Alpha oil rig and the Hillsborough football stadium, in which hundreds of people died as a result of the negligence of others, were witnessed by thousands of people – both at the locations from a relatively safe distance and on TV.
The courts said that, if someone were an onlooker with no risk of physical injury, then they could only recover compensation if:
- they had a close relationship with a primary victim (a person who suffered serious injury or death) and
- they witnessed the event through their unaided senses rather than through the media.
Given that the “close relationship” requirement once excluded a man from compensation when he witnessed his brother die, it makes it particularly difficult for an emergency services worker to claim even if they have witnessed a close colleague suffer serious injury at first hand, unless they too had reason to fear for their safety.
In the aftermath of the Hillsborough disaster, the court ruled in Frost -v- Chief Constable of South Yorkshire Police (1999) that emergency services workers who were not at risk of physical injury, that is primary victims, must be secondary victims to receive compensation.
Given the likely public reaction to the many police officers who witnessed the unfolding horror of Hillsborough being awarded compensation when members of the public were not, especially as the police were themselves being sued for negligence, this ruling was not surprising.
But it did make it very difficult for other emergency services members to claim for psychiatric injury caused by witnessing traumatic events.
But it is still possible to argue for compensation.
Rescuers and emergency services
In a case pursued by Thompsons on behalf of three firefighters who witnessed the death of colleagues in the course of fighting a fire (Cullin -v- London Fire and Civil Defence Authority, 7 July 1999), the Court of Appeal said that the test for compensation for rescuers in the emergency services was whether they could reasonably be said to have been in possible physical danger, or reasonably thought they were even if it turned out not to be the case.
If they passed that test of a reasonable belief of danger to themselves in the course of fighting the fire, it did not matter legally that what actually caused their later psychiatric injury was witnessing events that did not directly threaten their health or that were not directly caused by the negligence.
So the fact that the awful realisation of the deaths of their colleagues, caused in part by the negligent way in which the fire was fought, came when they were relatively safe did not exclude them from compensation as they could reasonably be said to have been in danger during the same event.
It is also possible to receive compensation via the Criminal Injuries Compensation Authority (CICA) which administers the government scheme that pays out to those injured by crimes of violence, including arson.
Many traumatic events witnessed by emergency service workers will have been caused by a criminal act. There are similar restrictions on qualification for a CICA payment as there are for civil damages. Thompsons has a specialist department able to advise on such claims, which can be made at the same time as a claim against a negligent party involved in the same incident.
There is a time limit of two years from such an event to make claim.