Dealing With Post Traumatic Stress Clients Law

Essay
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In giving full advice to Mr Patel for post traumatic stress disorder which he suffered as a result of an
incident involving his work colleague. Analysis was made as to how he suffered PTSD using open and
closed questions to gather the relevant facts. This advice will further explain Mr Patels claim against
his employers for compensation for the medical recognised injury he has sustained. The duty of care
will be explained along with case law and Statues to support the claim against the third party insurance
and Employers.
The first issue explained to the client was the duty of confidentiality under rule 4 of the Solicitors
Regulation Authority guidelines. A firm or employee or fee earner must keep the affairs of the client i.e.
Mr Patel in this case and former clients confidential except where disclosure is required or permitted by
law or by Mr Patel. The duty of confidentiality always supersedes the duty to disclose and where
reasonable belief that serious physical or mental injury will be caused to any person if the information is
disclosed to a client.
The facts: Mr Patel has suffered from PTSD during working for a company called Hamilton Ecology Ltd
who manufacture and install wind turbines. Mr Patel was Installing wind turbines in Cumbria where he
had to stay over in porter cabins to carry out his duties. On the 16th January he was ordered by the
Site manager go inside his cabin due to poor weather conditions. Mr. Patel suddenly witnessed through
his cabin window a wind turbine coming towards him and unexpectedly hit one of his work colleagues,
Joe Hart. The turbine fell on him killing him instantly. By seeing this incident and the death of his friend
he has suffered from PTSD. Mr Patel has been off work since and the company has been paying him
statutory sick pay to date. He has been diagnosed by a consultant with PTSD.
PTSD is described as a reaction to direct exposure to a trauma, but it can also be the consequence of
witnessing or even learning about a terrifying event such as in Mr Patels case. The trauma is usually
capable of producing bodily harm and it typically involves disaster or violence etc. This type of stress
disorder brings about immediate and intense fear, distress and helplessness. These events are sudden
and no notice is apparent when they are about to happen.
The law on psychiatric injury was first recognised in the case of Victorian Railways Commissioners v
Coultas. Case law has progressed in allowing compensation where claimants are reasonably put in
fear of their safety. In Dulieu v White a pregnant barmaid, suffered psychiatric shock followed by illness
and the premature birth of her child when a cart and runaway horses came towards her and crashed
into the pub where she was working. She perceived this through a window there was no impact
causing physical injury; but she feared for her own safety. She was successful in claiming
compensation by way of damages. This is similar to what happened to Mr Patel.
In Hambrook v Stoke a mother who feared for the safety of her children was successful in her claim
against the negligent defendant. It can be suggested that recovery of damages for nervous shock
should be limited to such cases.
It can be argued that Mr Patel could be a secondary or primary victim. In Page v Smith the House of
Lords decided that in cases of psychiatric injury it is essential to differentiate between primary and
secondary victims. This terminology was introduced by Lord Oliver in Alcock v Chief Constable of
South Yorkshire Police. The claimant in Page was involved in a minor road incident but he did not
suffer any physical injury. He claimed damages for his pre-accident condition of chronic fatigue
syndrome which had been aggravated by the nervous shock. Court of Appeal decided that nervous

shock was not foreseeable and therefore, according to Bourhill v Young, there should be no recovery
of damages by the claimant. However, the House of Lords, by a 3:2 majority, allowed the claimants
appeal, they decided that, in the case of a primary victims foreseeability of physical injury is sufficient to
establish liability for nervous shock and where a claimant has suffered psychiatric shock because he
had an eggshell personality it is irrelevant that physical injury did not occur provided it was
foreseeable. The rule that claimants must have customary phlegm or reasonable fortitude does not
apply to primary victims.
Lord Wilberforce in McLoughlin v O'Brian adopted three elements which should be present in any
claim. First the class of persons who could claim, second the proximity of such person to the incident in
time and space, and third the means by which the shock was caused. This was to place limitations on
claims as nervous shock is capable of affecting a wide range of individuals. This approach was
adopted in the case of Alcock v Chief Constable of South Yorkshire Police. It illustrates that a claimant
could only recover for psychiatric shock if his relationship to the primary victim was sufficiently close
that it was reasonably foreseeable that he might suffer nervous shock. The proximity to the incident or
its immediate aftermath was sufficiently close in both space and time. Mr Patel suffered shock through
hearing and seeing the accident on its immediate aftermath. It is clearly arguable that Mr Patel fits the
criteria laid down in Alcock.
For Mr Patel to be able to peruse a claim for the injury sustained he will need to prove that a duty of
care is owed, there was a breach of that duty and causation. The duty of care issue is already
recognised by law as employer/ employee. It was held in Caparo v Dickman that there needs to be a
reasonable foreseeability of harm, the proximity of the relationship between the claimant and the
defendant. It also has to be fair, just and reasonable to impose the duty on the employer. It can be
suggested that Hamilton Ecology Ltd owe a duty of care to Mr Patel as lack of testing the safety of the
turbines would cause damage or injury to the employees. The proximity requirement would be satisfied
and foresight of a reasonable person would suffice. Would a reasonable person behave in a way
which Patel did, according to the case of Blaue you take your victim as you find him.
There has been a breach of duty as illustrated in the case of Ward v Tesco Stores. The test is that the
accident must be the kind which does not normally happen in the absence of negligence. The next
issue is causation, but for the employers breach would the injury have happened, this is also satisfied if
the relevant safety measures were made then Patel would not have been injured. It can be suggested
that Patel was working in a course of his employment for Hamilton Ecology therefore vicarious liability
can be established. The cause of the accident was under the defendants control there was no
explanation of the cause of the accident.
Hamilton Ecology has fallen below the standard duty of care owed to Mr. Patel. In Hiles v South
Gloucestershire NHS Primary Care Trust the court held that harm suffered could have been prevented
by the exercise of reasonable care. Employers are responsible for the safety and health of their
workforce while they are in employment. Their obligations for employees safety is satisfied by due care
and skill. But it is not fulfilled by delegation to employees, even though selected with due care and
skill.
There should have been sufficient risk assessment by the company and there should have been
safeguards in place to manage the risk of harm. A risk assessment is simply a careful examination of
work premises, as to any cause of harm or damage to individuals. The employer owes a duty to
employees to select competent workers and to give appropriate supervision and
instructions. However, this duty is discharged if the employer takes reasonable measures to see the
premises are safe.
The Employers Liability (Compulsory Insurance) Act 1969 ensures that employers must have the
minimum level of insurance cover against any such claims. The Employers Liability (Defective
Equipment) Act 1969 makes an employer liable when an employee is injured in the course of his
employment by defective machinery.

In advising Mr Patel holding his employers Hamilton Ecology vicariously liable for the injury he has
sustained. Mr Patel can be assured that we will be working on a no win no fee basis this means that if
we win we will retrieve our costs from the third party insurance and if we lose then Mr. Patel will not be
liable for any legal cost incurred by our firm as we will insure against any losses occurred. Every effort
will be made to recoup any damages and out of pocket expenses occurred by Mr Patel through the
psychiatric injury sustained at Hamilton Ecology LTD.

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