Expert Witness Journal Dec 24 - Journal - Page 53
A Guide to Making a Personal
Injury Claim for a Mental
Health Injury
Personal injury is, in general, related to accidents and other events that result in physical injuries.
The courts now acknowledge the severe and long-lasting impact psychological harm has on an
individual’s mental health.
There are two kinds of victims, primary, when an
individual is directly involved in the accident and secondary, the individual observes the accident and is not
physically harmed. As with physical injury, a claimant
must be able to demonstrate the impact of the mental
health injuries. However, case law now is somewhat
restrictive to secondary victims’ claims and now,
amongst other things, they must prove the mental
health injury was caused by witnessing the event, that
they have a close tie to the endangered or injured person and that, in witnessing the event, psychiatric harm
was predictable and clarify their proximity to the
incident.
In the UK, the case of Alcock v Chief Constable of South
Yorkshire Police [1991] UKHL 5 related to the Hillsborough disaster where 96 spectators were killed and 450
were injured which was broadcast live on television.
The case centred on the question of whether the
South Yorkshire Police were responsible for psychiatric injury resulting from seeing the disaster unfold
on television. The case was brought by ten relatives of
the victims, most of whom were not present but saw
their relatives die or be injured on the broadcast. The
judgment is considered to have been influenced by
not wanting to “open the floodgates” to secondary victims’ claims and is seen by some to be excessively harsh
on the claimants and not acknowledging that psychiatric illness can be induced by nervous shock. However, it represents the state of the law in the area of
liability for psychiatric harm in personal injury claims
to this day.
In order to bring a claim, a victim must be able to
show that they are suffering from recognised mental
health conditions, for example post-traumatic stress
disorder, anxiety disorders, depression or adjustment
disorders, following the violent accident or incident.
Alessandra Paduano, an Associate, commented
“mental health injury can be harder to prove than a
physical injury, especially if this is the only injury that
resulted from an incident. If there is an accompanying physical injury the Courts are more prepared to
accept it. Claimants need to meet the criteria for a diagnosis of a recognised psychological condition and
cannot just be “upset” by the incident.” Alessandra
further commented “The harm must have been
foreseeable, i.e. a person of "ordinary fortitude"
would have suffered psychiatric injury in the same
circumstances.”
Professor Ben Creagh-Brown
Professor of Critical Care and Perioperative Medicine
BM FRCP PhD DICM FFICM FCCP
Professor Ben Creagh-Brown is a Consultant physician at the Royal Surrey County Hospital,
Guildford. He completed his training in intensive care, respiratory and general medicine in
2012, having worked at St. George’s, Kings’ College, Guys and St.Thomas’ hospitals and spent
3 years undertaking a PhD on the cardiothoracic ICU at the Royal Brompton Hospital.
Critical care, and respiratory medicine
Professor Ben Creagh-Brown has specialist expertise in cardiopulmonary arrest and
resuscitation, sepsis and the development of shock and multi-organ failure. As he is dual
qualified in respiratory and intensive care medicine he has specific expertise in mechanical
ventilation, both invasive and non-invasive ventilation. He co-authored national guidelines
(British Thoracic Society) on respiratory failure. Similarly, severe respiratory failure such as
acute respiratory distress syndrome (ARDS) and the investigation and management of respiratory failure (including acute exacerbations of COPD), respiratory infections (pneu-
If the victim is already suffering from a pre-existing
condition, this may offer a further complication. The
defendants may argue that the injury was caused by
the pre-existing condition rather than the incident itself. However, frequently if the pre-existing condition
is aggravated by the incident, the claimant may still
succeed. To establish liability, the claimant must prove
the elements of negligence:
monia), and pulmonary embolism. Experience of management of respiratory failure during
the COVID pandemic and the associated challenges.
Perioperative Medicine, complications of surgery
He is widely published and involved in research concerning the prevention of complications
of Surgery: pulmonary, cardiovascular (myocardial infarctions, episodes of hypotension),
gastrointestinal (ileus), neurological (delirium) and muscular. He has expertise in prediction
of risks of surgery (previously running a cardiopulmonary exercise testing service) and
interventions to reduce this (recently co-authored a systematic review published in the BMJ)
Patient safety and health IT (digital risks)
Longstanding involvement in the mitigation of risks surrounding medication errors and the
• Duty of Care: The defendant owed a duty to the
claimant to avoid causing harm.
• Breach of Duty: The defendant’s actions or inactions
breached this duty.
• Causation: The breach directly caused the mental
health injury.
• Damages: Quantifiable harm resulted from the
injury.
EXPERT WITNESS JOURNAL
maintenance of patient safety in the ICU. Speciality expertise in clinical risk management of
risks relating to Health IT implementations such as hospital-wide electronic health records.
Expert witness
Professor Ben Creagh-Brown has experience in expert witness cases since 2016. He has
undertaken specialist training with Bond Solon Excellence in Report Writing Course, in 2017.
Solicitors worked for include; Browne Jacobson LLP,Atter Mackenzie Solicitors,Your legal
friend, DAC Beachcroft LLP and Medical Reporting Solutions Limited via UK Independent
Medical.
Contact: Ben Creagh-Brown - Tel: 07974 917 811 - Email: bencb@nhs.net
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DECEMBER 2024
