A claim for psychiatric injury can be brought by a person in conjunction with a claim for personal injury, as consequential to the physical harm that they may have suffered. However, it is not necessary to have suffered a physical injury in order to bring a claim for psychiatric injury. This is known as “pure mental harm.

There are two main situations in medical negligence cases where this may occur:

  1. You suffered a recognised psychiatric illness as a result of negligent treatment that you received; or
  2. You suffered a recognised psychiatric illness as a result of witnessing somebody else “being killed, injured or put in peril” because of negligence.

In order for a person to be liable for causing mental harm, that person must be able to foresee, that a person of normal fortitude, in those particular circumstances, would suffer a recognised psychiatric illness if reasonable care were not taken.

Therefore you need to prove, on the balance of probabilities, that you are a person of normal fortitude, that you suffered a recognised psychiatric illness and that the treating doctor could have reasonably foreseen, in the circumstances, that you would suffer a recognised psychiatric illness, if they did not take reasonable care. You also need to prove that the treating doctor owed you a duty of care, that they breached their duty of care and that the breach caused your recognised psychiatric illness.

Pursuant to the legislation, the circumstances to be considered are:

  • whether the mental harm was caused by sudden shock;
  • whether you witnessed someone being “killed, injured or put in peril“;
  • the circumstances of the relationship and the person who was “killed injured or put in peril”; and
  • whether there is a prior relationship between you (the plaintiff) and the person who caused the death or injury (the defendant).

Recognisable psychiatric illness

The Courts have distinguished between emotional distress and normal grief reactions and what is known to be a recognisable psychiatric illness. In order to prove that you have suffered a recognised psychiatric illness, you would need to undergo an assessment by an expert psychiatrist. Examples of conditions that may be considered to be a recognised psychiatric illness include things like depression, anxiety and adjustment disorders.

Get in touch with us

At Turner Freeman we have lawyers who specialise in medical negligence claims. Our Sydney Partner, Sally Gleeson, along with her team of lawyers, have a dedicated practice in medical law.

If you or someone you know has suffered as a result of medical negligence, including a situation in which you have suffered injury as a result of inadequate treatment, or a lack of treatment at a public hospital, we encourage you to call us on 13 43 63 to speak with one of our medical law experts.