MRG Paper 42
HARMS INCLUDED/NOT INCLUDED IN THE CURRENT SYSTEM OF COMPENSATION
This paper is intended simply as a general overview of what harms are/are not compensatable under
the existing system. The current system compensates for “loss, injury and damage”.
Injury
Physical injury - The general starting off point is that there must be loss, injury or damage. “Injury” in
general requires to be physical injury.
Mere distress is not sufficient to justify a claim for
compensation if there is no physical injury. An incident or condition causing physical pain will, in
general, be regarded as injury.
Psychiatric injury – psychiatric injury is also compensatable. In general, this will mean a medically
verifiable condition as confirmed by a Consultant Psychiatrist or Consultant Psychologist, eg a
diagnosis of depression, anxiety or PTSD.
Distress - As indicated above, mere “unhappiness” or distress is, in general, not enough – there has
to be injury.
Pain – An event causing pain will in general be regarded as an “injury” for the purposes of damages.
Inadequate anaesthetisation - For example, a person who has been inadequately anaesthetised and
suffers the agony of undergoing surgery while fully aware, but paralysed, can claim damages for the
ordeal suffered.
Wrongful birth - A mother who gives birth following a failed sterilisation to an otherwise healthy baby
will be awarded damages for the pain and suffering of the childbirth even although medically, this
might not be regarded as “injury”.
Harm falling short of “injury”
Consent – In general, injury has to be shown. However, in cases involving flawed or inadequate
consent, the Courts have tried to extend the boundaries. Usually, it would have to be shown that but
for the wrongful act, the loss or injury would not have happened. Put simplistically, in consent cases,
the Courts have adopted a more imaginative approach in being prepared to hold that if “a bad thing”
happens after flawed consent is obtained, that “bad thing” will frequently be linked to the flawed
MRG Paper 42
consent and damages may be payable (but not always!). Although the law is still evolving in this
regard, the Courts are more minded to recognise that carrying out a procedure without proper
consent is a “loss of personal autonomy” and that is a loss in its own right, giving rise to an award of
damages.
Affront/outrage – In some cases, there can be a claim for damages for the affront/outrage per se.
For example, in cases involving the unlawful retention of the organs of a deceased child, the outrage,
hurt and affront suffered by the parents of the child is such that it is not necessary to prove that the
parents have suffered “injury” ie a psychiatrically diagnosed condition. The affront/outrage per se
can be sufficient to trigger entitlement to damages, in the same way as a claim for wrongful arrest
and detention by the police of someone who is completely innocent can found a claim for damages
without the unjustly imprisoned person having to show that he/she has suffered injury.
Breach of confidentiality – There may be damages for injury to feelings although this has not been
conclusively determined in the Scottish Courts. Damages have been awarded in England in cases
involving intrusion on private life.
Unnecessary Treatment – Damages can be awarded for the pain and suffering involved in an
unnecessary surgical procedure.
Loss of a chance – As indicated in my previous paper on causation, in general, the loss of a chance
(eg a chance of successful treatment in a cancer case is lost through a negligent delay in referral)
will not be compensatable. What will be compensatable is if it can be shown that there was a loss of
the probability of a cure/successful treatment.
If the chance that a person loses of successful
treatment was less than 50% in the first place, then as the Law stands, there is currently no claim. If
a person loses a 51% chance of successful treatment, or even if the 51% chance then dips below
50% as a result of the negligence, then damages will be paid.
Fatal claims
In a fatal case, the following people can claim
(a)
The patient / patient’s estate, for the pre-death pain and suffering of the patient. Eg in a
cancer case, if a patient has suffered a fatal cancer which could have been prevented if the
negligence had not happened, then typically £50,000 - £60,000 may be awarded or claimed for the
pre death pain and suffering. If claims are handled sufficiently swiftly, these damages can be paid by
way of an interim payment prior to the person’s death.
MRG Paper 42
(b)
Surviving widow/partner/civil partner/co-habitant of deceased.
This lump sum award for
bereavement (“loss of society”) is generally in the region of £30,000. Until a few years ago it was
approximately £15,000 but, as a result of the influence of Jury awards (Juries in generally will award
more generous amounts of damages than a Judge will), awards have increased to about £30,000 for
loss of society.
In addition, the award can be increased where the relative has suffered extra
distress in contemplation of the suffering of the deceased prior to the death of the deceased.
(c)
Children/step-children of the deceased. Young children will typically receive in the region of
£15,000 to £25,000, adult children of the deceased typically receiving much smaller awards,
generally £5,000 to £10,000.
(d)
Parents/step-parents of the deceased. Again, the amount of the award depends on the age
of the parents. The parents of a young child (and there is strong argument that there is no greater
loss that could be suffered by anyone) may receive up to a level similar to the amount awarded to a
widow or surviving partner of the deceased, although traditionally awards used to be much lower for
the loss of a child. Damages will be less where a parent loses an adult child.
(e)
Siblings/step siblings of the deceased can also claim for loss of society.
(f)
Grand-parents/grand-children of the deceased can also claim damages. These amounts will
generally tend to be fairly modest. The surviving family can also claim in respect of the funeral and
related expenses. The surviving family can also claim in respect of the loss of financial support
provided by the deceased. Claims can also be made in respect of the personal services which were
provided to the deceased patient prior to the patient’s death, and also a claim for the loss of the
services which would have been provided to the family by the deceased patient had the deceased
patient not died.
Secondary victims
The secondary victim will be a person other than the patient. There is a very limited class of persons
who can claim. In general, the requirements are that the secondary victim will have to be a close
family member; that they must have been caught up in the events or the immediate aftermath of the
events; they must have suffered psychiatric injury (mere suffering or distress is not enough) and it
must be reasonably foreseeable that the secondary victim would suffer injury as a result of the injury
caused to the patient.
So, for example, a mother witnessing a traumatic unsuccessful attempt to resuscitate her dying child
where the death of the child is as a result of medical negligence, may have a claim even although
the mother is not the primary patient.
MRG Paper 42
Similarly, for example, the parents of a profoundly disabled child can claim damages if (a) their
child’s condition is because of the negligence; and (b) they have been diagnosed with a
psychological / psychiatric condition due to that condition.
Psychiatric Injury – bereavement
A claim can be made in certain circumstances where a secondary victim suffers psychiatric injury as
a result of being caught up in the immediate events themselves. An award can also be made for a
bereavement. However, if a person suffers a psychiatric injury because of the very bereavement
itself (as opposed to being directly caught up in the events causing the injury), then extra damages
will not be paid, on the basis that this should be reflected in the bereavement lump sum awarded for
loss of society itself.
Wrongful birth
As indicated above, there can be a claim for the pain and suffering endured by the mother for the
labour / delivery. However, no damages will be awarded for the care costs of bringing up a healthy
child.
If a disabled child is born who otherwise (ie if it had not been for the negligence) would not have
been born, although no damages will generally be awarded for the cost of bringing up a healthy
child, damages will be paid to reflect the extra costs associated with bringing up a disabled child.
ANDREW S POLLOCK
03 June 2010