Self-help guide
1. Can damages be recovered for mental harm?
The short answer is yes, some forms of mental harm are recognised in law and damages (compensation) may be awarded to cover you for your loss.
Damages will not be awarded where the mental harm is considered to be the ordinary emotions of anxiety, grief or fear which are considered normal and natural reactions to say the death of a loved one. There has to be an actual mental disorder, such as clinical depression and/or a recognised psychiatric illness such as post-traumatic stress disorder (PTSD) before a claim can be considered.
It can be difficult to succeed in a claim for mental harm, certain criteria need to be met before a claim can be considered. You will have to show that the psychiatric injuries have occurred because of negligence. The amount of compensation you could receive depends on factors such as the diagnosis, how severe your condition is, how long it is likely to last and how it affects you at work, socially and domestically.
2. Primary victim claim
The law approaches people who have suffered mental harm two ways. First, primary victims, these are people who were involved in the incident. An example of this might be someone who had negligent plastic surgery who then develops a recognised psychiatric disorder because of their resulting unsatisfactory cosmetic appearance. The second type of mental harm is caused by something someone witnessed happen to someone else – these claims are much harder to prove and are referred to as secondary victim claims.
3. Secondary victim claim
Secondary victim claims are unique because the mental harm arises because of something someone has seen being done to someone else, such as a loved one. These claims are difficult to bring and for lawyers to assess, each case will have to be looked at on its own facts but there are certain criteria which will have to be considered, broadly these are:
1. Is there a close tie of love and affection between the person witnessing the event (usually a close relative) and the person experiencing it? 2. The person witnessing the event generally has to be personally present at the event, or in the immediate vicinity or witnessed the aftermath very soon after it happened. 3. The event generally needs to have been witnessed directly by the person bringing the claim. 4. The event must be shocking and sudden. 5. The person witnessing the medical accident, will have to show they have suffered a medically identifiable psychiatric injury because of what they have witnessed. The injury must be more than a severe and prolonged bereavement reaction.
Paul v Royal Wolverhampton NHS Trust
The decision in 2024 by the Supreme Court in the case of Paul v Royal Wolverhampton NHS Trust has severely restricted the class of people who can claim for mental harm as a result of medical negligence.
The case makes clear that such harm can only be claimed where there has been an ‘accident’. An accident is defined as ‘an unexpected and unintended event which caused injury (or a risk of injury) by violent external means to one or more primary victims’.
The Supreme Court distinguished this from when a person suffers symptoms as a result of underlying medical conditions which, but for any negligence, would have been addressed such as failure to diagnose cancer in a timely manner. The courts determined in such circumstances relatives and loved ones cannot claim for the mental harm they have suffered as the medical profession does not owe them a duty to prevent such harm occurring in these circumstances. As there is no external accident in most cases of medical negligence such as failure to diagnose a condition leading to death, potential injury secondary victims such as close loved ones present cannot make claims for their psychiatric injury as a result of this decision.
Whether there would be a claim where there is an external injury such as a fall in hospital which a loved one witnesses or if say a wrong drug is administered which causes an adverse reaction which the loved one witnesses has been left over with the Supreme Court saying:
In our view, the issues raised by such examples are best left to be addressed in a case where they actually arise on the facts.
You would need to seek legal advice to see if you have such a claim.
4. Compensation
Independent psychiatric evidence in the form of a medical report will usually be required to identify the nature, extent, and duration of the psychiatric injury. The amount of compensation payable would depend on the severity and longevity of the psychiatric illness and how this affects activities of daily life.
An indication of the amount of compensation awarded for mental harm can be found in the most recent (17th) edition of the Judicial Studies Board (JSB) Guidelines.
The Guidelines suggest that damages awarded for psychiatric injuries tend to be:
Type of Injury Compensation Range
Severe psychiatric injuries £66,920 to £141,240 Moderately severe conditions £23,270 to £66,920 Moderately injury £7,150 to £23,270 Less severe injury £1,880-£7,150
There is a separate tariff for PTSD which is in the range of £4,820 for less severe injury to £122,000 for the most severe injury.