I have had several people raise questions to me regarding what kinds of injury you can claim for in a Personal Injury or Clinical Negligence claim. Do mental health problems count as an injury? Is it just cuts, bruises, and broken bones? What about hurt feelings? Or emotional upset?
Most people know and understand that you can claim for a broken arm or leg, but the situation becomes much more confusing when you start considering non-physical injuries.
This article will discuss claims for emotional distress in personal injury and clinical negligence claims.
WHAT COUNTS AS EMOTIONAL DISTRESS?
It is not uncommon to suffer emotional distress when you suffer an injury, many of us would be upset to suffer an injury, especially one caused by negligence. Suffering physical harm at the hands of another is distressing, even more so when it is a person in authority that you should be able to trust with your wellbeing, such as a doctor.
However, when considering the legal stand point, the question is not did you suffer distress but rather was that distress severe or significant enough to be considered an injury in and of itself.
Severity can be difficult to measure, as I’m sure to the person suffering the upset it feels more than significant enough to count as an injury. However, for it to qualify as an injury in the legal sense it must be significant enough to be classified by a medical professional. It must be substantial enough that it would be considered a recognized psychiatric injury.
A psychiatric injury can include long-term conditions such as anxiety, depression, PTSD and adjustment disorders or shorter-lived conditions such as travel anxiety. The distress caused must be reasonably severe and for your claim to be successful you will have to prove that it has affected your quality of life. You must show that you have suffered a ‘loss of amenity’ because of it. Loss of amenity is categorized as the benefit and enjoyment of life which you will have lost because of your injury.
In some situations, you can bring a claim for emotional distress without having suffered a physical injury. If you have witnessed an intimate friend or family member suffer an injury, such as a car accident you might be able to bring a claim.
Emotional upset or emotional pain is a tricky area when it comes to personal injury and clinical negligence. To answer this question correctly, you must have a basic understanding of how compensation is calculated.
In a nutshell, your compensation will be broken down into General and Special Damages.
Definition: General Damages, the compensation recovered for pain, suffering, and loss of amenity.
Definition: Special Damages, the compensation recovered for financial losses e.g. loss of earnings, travel expenses, medication, etc. and time spent by others assisting you.
As you can see emotional distress will fall under the heading of General Damages. General damages will be calculated by using a report from an independent medical expert. A report into your emotional distress will usually be prepared by a psychologist or a psychiatrist.
In order to assess compensation your expert and legal team will look at the following
How your injury has affected your ability to cope with life, education and/or work. The effect your injury has had on your relationships with family, friends and how you cope with strangers. Your own efforts to get well and the extent to which treatment would be successful.
Compensation can range widely for this type of injury and are impossible to predict with any kind of accuracy without a medical report.
In conclusion, emotional distress can be considered an injury if it is severe enough to be classified by a medical professional. However, hurt feelings, worry or unhappiness will not be considered for compensation. Valuing emotional distress is difficult and will require the assistance of an independent medical expert in a similar manner as other physical injuries.