PTSD and Trauma in Tort Law

Post-Traumatic Stress Disorder (PTSD) claims represent an evolving and increasingly significant area of tort law. As our understanding of mental health continues to develop, legal systems worldwide have had to adapt to recognize the legitimacy of psychological injuries that occur without physical harm.

This article explores the complex intersection of trauma and tort law across multiple jurisdictions, providing practical insights for legal practitioners and those affected by PTSD resulting from another’s negligent or intentional acts.

Major Causes of PTSD and Trauma in Tort Cases

Violent Incidents and Threats

One significant cause of PTSD in tort cases stems from violent incidents or threats. The landmark case of Currie v. United States illustrates the severe consequences that can arise when warnings about potential violence are not adequately addressed. In this case, Avery, an IBM employee with PTSD under the care of VA mental health professionals, threatened to blow up IBM. Despite doctors warning various authorities, including IBM, local police, and the FBI, Avery was not involuntarily committed as his emotional problems were not classified as mental illness under North Carolina law. Tragically, Avery later shot and killed an IBM worker, leading to litigation under the Federal Tort Claims Act.

Workplace Trauma

Workplace environments can be significant settings for PTSD-inducing trauma. Cases involving “whistle-blowing” employees who face retaliation after reporting safety violations demonstrate this category. In Jones v. Tennessee Valley Authority, a plaintiff claimed intentional infliction of emotional distress after experiencing harassment, verbal abuse, and obstruction of work activities in retaliation for reporting safety violations. Despite being diagnosed with PTSD, the 6th Circuit rejected his claim, finding the defendant’s actions not “sufficiently outrageous” to support his claim.

Disasters and Mass Trauma Events

Man-made disasters represent another significant cause of PTSD in tort litigation. The Buffalo Creek disaster, where faulty dam construction resulted in over a hundred deaths, became an important forerunner of PTSD tort litigation. Though occurring before the official introduction of the PTSD diagnosis, the court awarded survivors $6,000,000 for what was then termed “traumatic neurosis.” The DSM-III-R later noted that PTSD “is apparently more severe and longer lasting when the stressor is of human design,” making such cases particularly significant in tort law.

Secondary Trauma from Witnessing Harm to Loved Ones

Witnessing the suffering or death of loved ones can cause severe PTSD, particularly in cases of medical negligence. Recently, the UK Supreme Court ruled on three conjoined appeals regarding persons who witnessed the death of close family members in circumstances allegedly caused by medical negligence. The court determined that these witnesses could not claim compensation for psychiatric injury, highlighting the ongoing evolution and limitations of secondary victim claims.

Sexual Harassment and Assault

Sexual harassment cases increasingly involve PTSD claims. As noted in legal literature, PTSD has proven “relevant to claims of intentional infliction of emotional distress” in sexual harassment cases. The medical diagnosis provides scientific validation for the psychological harm experienced by victims, potentially increasing both the credibility of claims and the damages awarded.

Current Legal Position Across Jurisdictions

United States

In the US, PTSD claims typically fall under two tort categories: intentional infliction of emotional distress and negligent infliction of emotional distress.

For intentional infliction, plaintiffs must generally prove four elements:

1. The defendant’s conduct was intentional or in reckless disregard of plaintiff’s repose
2. The conduct was outrageous
3. A causal connection existed between defendant’s conduct and plaintiff’s distress
4. The plaintiff’s distress was severe2

For negligent infliction of emotional distress without accompanying physical injury, US courts generally allow damages for plaintiffs within the “zone of physical danger” of the negligent act. The Tarasoff duty to warn has also been recognized in some jurisdictions, as demonstrated in Currie v. United States, where psychotherapists may be liable for failing to warn potential victims of threats made by patients.

The PTSD diagnosis has had a significant impact on legal reforms intended to control tort litigation costs. By defining PTSD to include physical manifestations, the DSM-III-R provided a means for exempting PTSD-diagnosed plaintiffs from traditional limitations placed on purely mental claims, potentially increasing damage awards.

United Kingdom

The UK maintains a more restrictive approach to PTSD claims, particularly for secondary victims. The recent Supreme Court ruling in three conjoined appeals affirmed that persons who witness the death of a close family member due to medical negligence cannot claim compensation for psychiatric injury.

The UK distinguishes between primary victims (those directly involved in the traumatic incident) and secondary victims (those who witness harm to others). Secondary victims face additional hurdles, including proving:

• Close ties of love and affection with the primary victim
• Direct perception of the event or its immediate aftermath
• Proximity in time and space to the event
• The psychiatric injury was caused by a sudden shocking event

These requirements create significant barriers for many PTSD claimants, particularly in medical negligence cases.

Singapore

Singapore recognizes PTSD as an actionable psychiatric illness in tort claims. There has been an “upward trend in the number of cases in Singapore where parties claim for damages for PTSD as a result of another party’s negligent act, whether as primary or secondary victims”.

Procedurally, Singapore requires that the report of any examining doctor in PTSD cases should be categorized as the report of an expert witness and subject to Order 40A of the Rules of Court. This ensures that claims are genuine and based on grounded evidence.

Notable PTSD awards in Singapore include the case of Ismail Sukardi & Siti Sharmilah bte Ismail v Kamal Bin Ikhwan & Transtar Express Liner Sdn Bhd, where the Assistant Registrar initially awarded S$50,000 for PTSD—the highest at that time—though this was later reduced to S$10,000 on appeal.

Malaysia

In Malaysia, PTSD claims follow the general principles of negligence in tort law. To establish grounds for a PTSD claim, plaintiffs must demonstrate:

1. Duty of Care: The defendant owed a legal obligation to act reasonably and avoid causing harm
2. Breach of Duty: The defendant’s actions or omissions fell below the expected standard of care
3. Causation: A direct link exists between the defendant’s breach and the plaintiff’s PTSD
4. Damages: Evidence of PTSD and resulting harm or damages

Malaysian courts are increasingly recognizing psychiatric injuries, though specific requirements vary depending on the facts of each case. Consultation with legal specialists in personal injury or tort law is advisable for comprehensive understanding of the grounds in specific situations.

Hypothetical Case Study for Malaysian Context

Case Scenario

Ahmad, a 35-year-old accountant, was involved in a severe highway collision when a commercial truck operated by XYZ Logistics veered into his lane without warning. Though Ahmad sustained only minor physical injuries, he witnessed the truck crush the vehicle ahead of him, resulting in the graphically violent death of its occupants. In the months following the accident, Ahmad developed severe symptoms of PTSD, including flashbacks, nightmares, inability to drive, and occupational dysfunction requiring him to take extended leave from work.

Evidential Requirements

To successfully pursue a PTSD claim in Malaysia, Ahmad’s legal team would need to establish:

1. Medical Evidence: Comprehensive psychiatric evaluation from qualified specialists confirming a PTSD diagnosis according to recognized diagnostic criteria. Multiple assessments over time would strengthen the claim by demonstrating persistence of symptoms.
2. Causation Documentation: Evidence linking the PTSD directly to the accident, including witness statements, police reports, and accident reconstruction to establish Ahmad’s position and line of sight during the traumatic event.
3. Impact Assessment: Documentation of how PTSD has affected Ahmad’s daily functioning, including employment records showing work absences, income loss calculations, and testimony from family members regarding lifestyle changes.
4. Expert Testimony: Reports from mental health professionals explaining the nature of PTSD, its typical progression, and Ahmad’s prognosis—ideally from experts with experience testifying in court.
5. Treatment Records: Complete medical records documenting all treatments received, medications prescribed, and therapeutic interventions attempted, along with associated costs.

Winning Strategies for the Plaintiff

1. Establish Foreseeability: Demonstrate that psychological harm was a foreseeable consequence of the defendant’s negligent driving, given the circumstances of the accident.
2. Counter Malingering Allegations: Proactively address potential allegations of malingering by providing consistent medical documentation and potentially undergoing psychological testing specifically designed to detect symptom fabrication.
3. Document Objective Manifestations: While PTSD is primarily subjective, focus on documenting objective manifestations such as physiological responses during triggered episodes, sleep disturbances observed by others, and quantifiable occupational impact.
4. Highlight Temporal Connection: Establish a clear timeline showing Ahmad’s psychological well-being before the accident compared to his deterioration afterward, with no intervening causes.
5. Quantify Economic Damages Precisely: Calculate lost income, medical expenses, and projected future treatment costs with precision, supported by expert economic analysis.
6. Prepare for Cross-Examination: Ahmad should be thoroughly prepared for questioning about his symptoms, their impact, and his treatment compliance, maintaining consistency across all statements.

Winning Strategies for the Defendant

1. Challenge Causation: Investigate whether other life stressors or pre-existing psychological conditions might have contributed to or caused Ahmad’s symptoms.
2. Question Diagnosis Validity: Retain independent medical experts to review the diagnosis and potentially conduct a re-examination, questioning whether symptoms truly meet threshold diagnostic criteria.
3. Scrutinize Treatment Appropriateness: Examine whether treatment has been reasonable and necessary, potentially arguing that extended therapy has not been beneficial if improvement is limited.
4. Invoke Procedural Protections: Ensure proper procedural steps are followed, including potentially requesting that any examining doctor’s report be subject to expert witness requirements under Malaysian law.
5. Mitigate Damages: Even if liability is established, argue for reduced damages by demonstrating that Ahmad failed to mitigate his damages by not seeking prompt treatment or not following medical advice.

Conclusion

PTSD claims in tort law represent a complex yet evolving area of jurisprudence across major global jurisdictions. While US courts have embraced a somewhat broader recognition of PTSD claims, the UK maintains more restrictive approaches, particularly for secondary victims. Singapore has developed specific procedural safeguards while still recognizing PTSD as an actionable injury, and Malaysia follows traditional negligence principles with increasing recognition of psychiatric harms.

For Malaysian practitioners, successful PTSD litigation requires meticulous documentation, expert testimony, and strategic framing of cases to overcome the inherent challenges in proving psychological injuries. As scientific understanding of trauma continues to develop, we can expect further refinement of legal approaches to PTSD claims, potentially expanding recognition while maintaining appropriate evidential safeguards.

Disclaimer

This article was prepared for educational / informational purposes. Please do not rely on its contents without consulting with a lawyer beforehand. Please do not treat this article as a substitute for bespoke legal advice dispensed by a lawyer.