In recent years however, there has been an increasing trend of discrimination claims being accompanied with a Personal Injury claim. 

Personal injury in the Tribunal context refers to psychiatric injury, including conditions such as depression, anxiety disorders, or the exacerbation of an existing psychiatric condition, incurred because of the impact of the discrimination. It is distinct from Injury to Feelings remedy. The Tribunal has recognised the difficulty in distinguishing where injury to feelings stops and psychiatric injury begins. The specific causes of psychiatric illness can often be unclear and complex. 

This is where medical evidence becomes critical. A well-prepared psychiatric report can be the difference between a lower Vento band injury to feelings award and a higher aggregated figure. The Green Book – Guidelines for the Assessment of General Damages in Personal Injury Cases in Northern Ireland – is relevant in a Tribunal assessing such damages.  

However, while expert evidence is desirable and advisable, it is not required as a matter of law. In Hampshire County Council v Wyatt UKEAT [2016], it was confirmed that tribunals may still determine assess psychiatric injury without a medical report; awards can be made provided the outcome is not perverse. Whilst this is an English Judgment, it is still relevant and persuasive in the Northern Ireland jurisdiction. 

When considering obtaining expert evidence, it is worth pointing out that same can slow down bringing the case to Final Hearing due to delay in obtaining expert appointments, unavailability of experts and requirement for Respondent’s to obtain their own medical expert report, upon receipt of the Claimant’s. 

Obtaining expert medical reports can be costly as well as time consuming, where the funding of same must be carefully considered, against its benefit. So, is it worth it?
We have carried out a review in relation to Personal Injury claims awarded in Tribunal cases in Northern Ireland in the past 10 years, with notable cases stated below:

As can be seen from the cases above, a clear trend is the Tribunal’s preference for aggregated awards (save for the Murray case), where injury to feelings and psychiatric injury are combined into a single figure. This reflects the practical reality that the two may be difficult to extrapolate and avoids the risk of double recovery (getting compensation twice for the same thing).

Conclusion 

Whilst the strategic value of obtaining such medical reports may be apparent from the above cases, putting the Respondent to further work and cost in the defence of Tribunal proceedings, it is difficult to assess the true benefit of a personal injury claim, when the Awards are aggregated. Further, there is a risk of obtaining an expert report and same not stating the desired outcome; all cases will turn on their own facts. 
All factors mentioned above, to include whether an injured claimant wishes to elongate the process and undertake further medical assessment/s, ought to be considered, before taking such an important step in Industrial Tribunal proceedings. 

Edwards Solicitors

Tel: 02890 321863
www.edwardssolicitors.com