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HG Insurance and Risk Alert: Liability for multi-factorial psychiatric injury (Part 1) - 14 April 2014

A diagnosis of psychiatric injury is frequently made with reference to multiple contributing factors, some compensable and some not.

In the first Alert in this two-part series, Senior Associate Anna Hendry and Solicitor Abbey Wilkinson, consider the recent judgment in Harris v State of Queensland and the evidential onus placed upon a defendant seeking to avoid liability for part of a multi-factorial psychiatric injury.

Key points

  • If a plaintiff establishes liability for the incident which materially contributed to the development of the psychiatric injury, the plaintiff will establish causation, regardless of whether the psychiatric injury is multi-factorial in origin.
  • Once causation is established, the evidential burden lies with the defendant to distinguish between the effect of the compensable factor and the effect of the non-compensable factor/s.
  • Where there was no pre-existing condition, simply apportioning the extent to which each factor caused the development of the psychiatric injury is unlikely to establish with sufficient precision any separate effects of non-compensable factors.
  • Failure on the part of the defendant to distinguish between the effect of the compensable factor and the effect of the non-compensable factor/s will result in the defendant bearing the entire loss and damage flowing from the psychiatric injury.

A working example: Harris v State of Queensland

The plaintiff, Rosemaree Harris, was employed at the Maryborough Correctional Centre as an administration clerk. In the course of her employment on 30 October 2009, she was accidentally struck from behind by another employee who was pushing a trolley. Ms Harris suffered an injury of ruptured ligaments in her left ankle and alleged a secondary psychiatric injury. Liability for the incident and the physical injury was admitted by the defendant.

The defendant denied the claim for psychiatric injury on the basis that it was wholly or partly caused by non-compensable factors including:

  • general marital difficulties which were present prior to the work related incident;
  • a significant incident involving domestic violence;
  • marital breakdown; and
  • financial difficulties (separate from those caused by the physical injury).

There was no evidence of a pre-existing psychological condition.

Evidence regarding the factors

Psychiatrists Dr Varghese and Dr Mungomery considered the plaintiff’s psychiatric injury was caused by various compensable and non-compensable factors. They also agreed that the incident of domestic violence would have been sufficient in itself to cause psychiatric injury. Only Dr Mungomery sought to indicate his view as to the contribution of the various factors, attributing one-third each to the incident, relationship issues and financial difficulties. Neither specialist attributed any particular effect, such as commencement on medication, to any particular factor.

Decision

In considering the psychiatric injury, District Court Judge Long SC found:

  • The plaintiff had prima facie established that her condition was caused, or materially contributed to, by the compensable incident.
  • The evidential burden then fell to  the defendant to separate the effects of any separate factors that contributed to the development of the condition.
  • Where appropriate, adjustment to damages must accord with the assessment of the degree of probability of non-compensable factors affecting the losses.
  • The various compensable and non-compensable factors identified contributed to the plaintiff’s condition in an intertwined and accumulating sense, and the defendant failed to establish with sufficient precision any separate effects of the non-compensable factors.
  • The plaintiff was entitled to recover for the full extent of her current state of incapacity.

For more information, please contact HopgoodGanim’s Insurance and Risk team.

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