Mental Harm After An Accident. Can I Sue?

Compensation may be available to people who suffer psychiatric illness from the trauma of a serious accident, writes experienced TGB Lawyer Mal Byrne.

The great American detective novelist Raymond Chandler once said about psychiatrists: “I regard psychiatry as 50% bunk, 30% fraud, 10% parrot talk, and the remaining 10% just a fancy lingo for the commonsense we have had for hundreds and perhaps thousands of years”.  Given the advances made in psychiatry since the days of Freud and Jung, I would like to assume that Mr Chandler would be kinder if he was asked for his thoughts on psychiatry now. Psychiatrists are in demand.  As time passes, ordinary life seems to become more complex and overwhelming.  Claims for workplace harassment and stress are on the rise.  Children are being taken out of school because they have been harassed and bullied. Suicide rates are increasing.  There are traumas that we all have to face at some stage in our lives such as bereavement, relationship breakdown, illness and accidents but our capacity to cope is diminishing.

The law recognises that injured people suffer psychiatric illness as a result of the trauma of a serious accident, being a victim of a crime or other forms of mistreatment, and compensation is available provided certain criteria are met.

What is mental harm? 

You can only receive compensation for mental harm in South Australia if the mental harm consists of a recognised psychiatric illness.  Pure stress is not compensable.  Pure anxiety is not compensable.  Whatever symptoms you are experiencing in the aftermath of the trauma must be diagnosable (preferably by a psychiatrist) as a recognised psychiatric illness.  Psychiatric illness caused by accidents or other traumas generally fall into three categories:

1. Post Traumatic Stress Disorder;

2. Adjustment Disorder;

3. Depression.

I am not a psychiatrist so I am not going to attempt to differentiate between the three.  However, if you have the following symptoms you may be suffering from a psychiatric illness that falls into one of these three categories:

1. Nightmares of the incident;

2. Nightmares that don’t replay the incident, but that are disturbing you nevertheless;

3. Flashbacks of the incident;

4. Intrusive thoughts of the incident;

5. Insomnia;

6. Anxiety;

7. Panic attacks;

8. Hypervigilance – being unnecessarily careful in the aftermath of a trauma, such as constantly checking doors and windows at night for fear of intruders, or looking for attackers whilst walking in the public arena, or checking for other cars on the road or cars behind you when driving;

9. Fear of driving;

10. Agoraphobia (fear of leaving the house).

11. Depression.

12. Tearfulness.

13. Suicidal thoughts.

If you have some or all of these symptoms, you may be suffering from a psychiatric illness and you should consult a doctor.

Mental harm as a sequel to physical injuries

Probably the most common type of mental harm is that which arises as a consequence of physical injuries that the injured person sustained in an accident.  The symptoms do not manifest themself immediately following the trauma, but the injured party may become depressed over time.  Causes of that depression include chronic pain from injuries or the effect that the injuries have on the person’s ability to work, to do housework, relationships and life in general.  As long as the injured party can prove that the psychiatric illness is a consequence of the physical injuries, it will be compensable.

Pure Mental Harm 

Damages for pure mental harm in South Australia are restricted by statutory legislation.  In the case of pure mental harm suffered at work, the applicable section is Section 30A of the Workers Rehabilitation and Compensation Act 1986.  In the case of injuries outside of work, the applicable section is Section 53 of the Civil Liability Act 1936.

In the work setting, a typical claim for work related pure mental harm is where a worker alleges workplace bullying or workplace stress.  Where a worker suffers a physical injury, all the worker has to do is prove that the injury was caused by work.  However, where a worker asserts that a psychiatric injury is caused by work, the worker must also establish that it was not caused by reasonable actions taken by the employer in its dealings with the worker.  This defence available to the employer means that many claims of workplace bullying or stress are contested and are referred to the SA Workers Compensation Tribunal.  Nevertheless, if you consider that you have a claim for workplace bullying or stress, you should not be put off by that, although you should seek legal advice.

Outside of the workplace, Section 53 of the Civil Liability Act says that damages may only be awarded for mental harm if the injured person,

1. Was physically injured in the accident or was present at the scene of the accident when the accident occurred; or

2. Is a parent, spouse, domestic partner or child of a person killed, injured or endangered in the accident.

Hence, claims for mental harm are not limited to people physically injured in the accident.  If you are a parent, spouse, domestic partner or a child (the definition of child includes grandchild) of a person killed, injured or endangered in the accident and you suffer a recognised psychiatric illness arising out of the involvement of your loved one in the accident, you can make a claim.

If you are a relative or friend of a person killed, injured or endangered in the accident, and you do not fall into one of those 4 categories, you can only claim if you were present at the scene when the accident occurred.

However, even if you are a complete stranger to any of the parties involved in the accident, but you are present at the scene when the accident occurred and suffer a psychiatric illness as a result of the trauma of actually witnessing the events, you can make a claim.

If you suffer pure mental harm either as a result of a work injury or events outside of work, it is important that you seek treatment and report your symptoms to a General Practitioner as soon as possible.  Generally, the sooner a person who suffers pure mental harm seeks treatment, the better the outcome.  Unfortunately, there is still a stigma associated with mental illness and people are reluctant to admit they might be struggling to cope. Consulting a doctor about symptoms that might be indicative of a psychiatric illness does not mean that you will have to see a psychiatrist or take anti-depressant medication or other medication.  Sometimes, counselling either from the doctor or on referral to a psychologist can be extremely effective.

When an accident occurs the trauma is to the psyche and the body.  Trauma to the body is usually visible but damage to the psyche is not and sometimes the damage takes months to emerge.  That does not make it any less real or compensable.  So don’t be timid about pursuing compensation if you dodged the broken bones, but the nightmares just won’t stop.

If you require further information or believe you may have suffered mental harm after an accident contact your nearest TGB office for a free initial interview.