Self-help guide
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, for example, the death of a loved one. There has to be an actual mental disorder, such as clinical depression or a recognised psychiatric illness such as post-traumatic stress disorder, before a claim is considered.
It can be difficult to succeed in a claim for mental harm, as 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.
Primary victim claim
The law approaches people who have suffered mental harm in two ways:
- Primary victims: These are people who were involved in the incident. For example, someone who had negligent plastic surgery who then developed a recognised psychiatric disorder because of their resulting unsatisfactory cosmetic appearance.
- Secondary victims: The second type of mental harm is caused by something someone witnessed happen to someone else. These claims are much harder to prove.
Secondary victim claim
Secondary victim claims are unique because the mental harm arises as a result of something someone has seen being done to someone else, such as a loved one. These claims are difficult to bring and tough 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 include the following:
- Is there a close tie of love and affection between the person witnessing the event (usually a close relative) and the person experiencing it?
- Was the person witnessing the event personally present, or in the immediate vicinity, or did they witness the aftermath very soon after?
- Did the person witnessing the event directly witness the event?
- Was the event shocking and sudden?
- Has the person who witnessed the event suffered a medically identifiable psychiatric injury as a result. 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 and another 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’. This 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 mental harm as the medical profession does not owe them a duty to prevent such harm occurring in these circumstances.
In most cases of medical negligence, such as failure to diagnose a condition that leads to death, there is no external event, so loved ones are usually unable to make a claim for psychiatric injury. The question of whether there would be a potential claim for something like seeing a loved one fall out of bed in hospital or have an adverse reaction to the wrong drugs was left open, with the judgment stating: “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.
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 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 17th edition of the Judicial College Guidelines, which suggests the following levels of damages for psychiatric injuries:
- £66,920 to £141,240 for severe psychiatric injuries,
- £23,270 to £66,920 for moderately severe conditions,
- £7,150 to £23,270 for moderate injuries, and
- £1,880 to £7,150 for less severe injuries.
There is a separate tariff for post-traumatic stress disorder, which is in the range of £4,820 for less severe injury to £122,000 for the most severe injury.