InsightsInsight - Industrial Disease Claims - POSTED: August 10 2011
Trauma in the Work Place
Often a worker will be involved in some traumatic event in the work place, even though they are physically unscathed. Sometimes the effects of involvement in trauma can be long lasting and deep. It is well established that compensation is payable to victims in many cases.
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However, there are some additional considerations which apply to psychiatric injury and traumatic stress claims, compared with claims for ordinary physical injuries.
What sort of trauma does the law require?
Damages are not recoverable for mere sorrow, distress or anxiety. A couple who suffered upset and claustrophobia having been stuck in a lift for 80 minutes, therefore, failed to recover damages. The law requires a recognised psychiatric condition. That does not mean that the injured party already needs to have a diagnosis before bringing a claim.
Typically, the diagnosis will be made once the claim has started and the injured party has been examined by an expert instructed by his solicitor. However, a personal injury lawyer will recognise the kind of symptoms which suggest a psychiatric injury, as opposed to mere sorrow, distress etc. An obvious example would be if the injured party had required psychiatric medication, or been referred for counselling or therapy. There might also be symptoms, which are indicative of post traumatic disorder (PTSD) or a similar condition, such as flashbacks, disturbed sleep and avoidance behaviours.
Primary and secondary victims
So does these mean that anyone who suffers from a recognised psychiatric condition following an accident at work will recover damages? Not quite. That will depend on whether the person concerned is a primary victim or a secondary victim.
The term primary victim means someone directly involved in the accident and well within the range of foreseeable psychiatric injury. There needs to be involvement as a participant.
To illustrate, the motorist involved in a frightening RTA who suffers a psychiatric injury (but is physically unscathed) will easily come within this definition. A worker who has had a “lucky escape” from a fire or dangerous occurrence probably would too.
However, the requirement of involvement or participation excludes bystanders, onlookers, people witnessing the aftermath (for example later in hospital) or those watching the horrific events unfolding on television (for example during the Hillsborough disaster or September 11). Those sorts of victims (who are called secondary victims) only recover damages in limited circumstances.
The law requires them to have:
- Close ties of love and affection with the person killed, injured or imperilled;
- The psychiatric illness must have been caused by directly hearing or seeing the traumatic event through a person’s own unaided senses (i.e. not via a television screen for example);
- The claimant must have been present at the accident himself or the immediate aftermath;
- It is expected that the claimant is a person of “reasonable fortitude”.
Cases on involvement in a traumatic incident at work
In Salter v UB Frozen Foods Limited 25.7.03 a forklift operator recovered damages when he suffered a psychiatric injury caused by witnessing his colleague falling from a cage mounted on the forks of his truck, suffering severe injuries from which he subsequently died. Clearly a colleague would not come within the definition of “close ties of love and affection”.
However, the Court got round that problem by extending the principle in an old case (dating from 1951) that damages for psychiatric injury should be awarded where the Claimant believes he has been the immediate instrument of death or injury to another. In Gregg -v- Ashbrae Limited the claimant was a digger driver on a demolition site.
His boss, Mr Busby, was standing below an old wall which was being prepared for demolition. Unknown to Mr Gregg or his boss, that wall was in a dangerous and unstable state. As Mr Gregg drove his digger in the vicinity of the wall, it unexpectedly collapsed on Mr Busby. Unknown to anyone at the time the collapse was probably triggered by the vibrations from Mr Gregg’s digger.
Mr Gregg was first on the scene and began pulling away at the rubble to identify what he thought was a rag, but which turned out to be Mr Busby’s body. There was no pulse and he had suffered serious head injuries. Mr Gregg believed he later saw a piece of fabric (placed over the deceased’s body) suddenly move, which made him feel physically sick.
He managed to work for a few weeks afterwards, but then did not work again and it was not disputed he had suffered PTSD as a result of his experiences.
The question was whether he could recover damages. The court first looked at whether he was a secondary victim as he was a close personal friend of his boss. The court held that was not good enough. It was essentially a business relationship, rather than one characterised by close ties of love and affection. Neither was Mr Gregg a rescuer, because to be a rescuer, the rescuer must himself be exposed to the same danger as the victim.
The court then considered whether Mr Gregg might be a primary victim. However, that involved being well within the range of foreseeable physical injury. Mr Gregg was some distance away safely inside his digger, so that could not apply.
The only remaining argument was that Mr Gregg was an involuntary participant. The question was whether his involvement went beyond merely watching and witnessing the event and its aftermath and was – like the fork lift driver in Salter – an immediate instrument of death or injury to the victim? In Gregg the court held that he was, even though it was long after the event that others pointed to the vibration of Mr Gregg’s digger as having caused the wall to collapse.
The judge held that even though Mr Gregg’s involvement in the accident had been unwitting at the time, he had nevertheless played a part and was entitled to recover damages.
In Young -v- Charles Church (1998 CA) the Court of Appeal said an electrical safety regulation was there not just to give protection to employees not just from the risk of getting an electric shock or burn, but also from the risk of suffering mental illness caused by seeing a workmate electrocuted at close quarters – perhaps in circumstances where the employee was fortunate to escape electrocution himself. Thus where an injured party can point to a breach of Regulations, he may be in a better position as arguably the restrictions which apply to ordinary claims in negligence do not apply.
Those who suffer mentally as a result of direct involvement in a traumatic event will usually qualify for compensation. Those who are less directly involved may qualify. There are hurdles to clear, but the cases show they can often be overcome.
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