Psychiatric injury

Q. A member witnessed an accident at work where his colleague incurred serious injuries. He unsurprisingly suffered psychologically: for example, he is experiencing difficulty sleeping and is withdrawn/anxious following his experience. He is receiving medical treatment in the form of counselling, but does he have a legal claim against the employer?

A. In addition to possible breaches of health and safety legislation, your member may have a personal injury claim. Below are some of the factors that may be relevant to how likely any claim is to succeed.

The fact that he directly witnessed the accident is important, although not an absolute requirement. Individuals who do not witness accidents first-hand can still claim for psychiatric injury — for example, those who witness the immediate aftermath of an accident may well be covered. It is debatable whether those who hear about a terrible accident second-hand — such as someone learning that an immediate relative has been killed — can claim.

It will help if you can show that your member had a close bond with his injured colleague: in other words a court may be less likely to find that the employer is liable for damages if the two workers did not have much to do with each other ordinarily.

Also important is the issue of whether the psychiatric injury should have been foreseen and prevented. Consider whether there is a history of the employer not promoting safety issues, or of providing inadequate safety training and so on.