In England and Wales, anxiety does not become compensable simply because it follows a negligent event. The court must distinguish ordinary worry, fear or distress from a recognised injury. Even where a psychiatric condition is diagnosed, the claimant must still establish that the defendant owed the relevant duty and that the breach caused or materially contributed to the condition.
Anxiety is first a symptom.
Anxiety can appear within several different clinical presentations.
It may be a temporary reaction to an accident, an aspect of an adjustment disorder, part of a specific phobia, or a feature of panic disorder, depression or post-traumatic stress disorder. The word itself does not identify the diagnosis, severity or cause.
Many people feel anxious after a frightening event without developing a psychiatric illness. They may drive more cautiously, sleep poorly for a short period or experience discomfort when recalling what happened. Those reactions can be unpleasant without crossing the legal threshold for a standalone psychiatric injury.
The Supreme Court has confirmed that English law distinguishes a recognised psychiatric illness from mental distress, which includes upset, grief and anxiety. The requirement for a medically recognisable psychiatric illness has long been treated as the threshold for a claim based solely upon psychiatric harm.
That distinction can sound artificial to a claimant whose symptoms are causing genuine difficulty. It is nevertheless important. Compensation is not awarded for every adverse emotion caused by another person’s negligence.
Diagnosis is not the whole answer.
A diagnostic label may help establish that the claimant has crossed the threshold from ordinary distress into psychiatric injury. It does not establish legal liability by itself.
The expert must explain why the diagnosis is justified. That usually requires consideration of symptom type, duration, severity, distress and functional impairment. NICE guidance on anxiety disorders similarly directs attention to the course of symptoms, their effect upon functioning and the claimant’s previous history, rather than relying upon the presence of worry alone.
A claimant who reports occasional unease while travelling may not have a disorder. A claimant who experiences panic attacks, avoids all vehicle travel and loses employment because they cannot reach work may present a different clinical picture. Function matters, but disability should not be used as a substitute for diagnosis. A person may restrict their activities for reasons that include pain, lack of confidence, inconvenience or advice from relatives. The expert must identify the mechanism producing the restriction.
Questionnaire scores may support an assessment. They should not be allowed to make it. High scores can reflect current distress without identifying its cause, and low scores do not always exclude clinically meaningful symptoms.
The presence of physical injury changes the position.
Anxiety does not always need to amount to a separate psychiatric disorder before it has some relevance to damages. Where the claimant has sustained a compensable physical injury, associated fear, sleep disturbance and loss of confidence may form part of the overall pain, suffering and loss of amenity. The court is considering the effect of the injury rather than requiring every consequence to carry its own diagnosis.
This does not justify adding a separate psychological injury whenever a claimant reports nervousness. The expert should describe the symptoms and say whether they are secondary to the physical condition, part of a recognised disorder or an ordinary short-term response.
The distinction affects both evidence and valuation. Calling every emotional consequence a psychiatric injury makes reports look inflated. Ignoring those consequences can understate the actual effect of the accident.
Whiplash claims have their own framework.
The whiplash tariff expressly allows for whiplash accompanied by a minor psychological injury.
Government guidance describes this as a psychological injury suffered on the same occasion as the whiplash, secondary in significance to it and falling short of a diagnosed specific phobia or psychological disorder. Examples include low-level travel anxiety or occasional sleep disturbance.
This is an unusual but important position. Within the tariff framework, a claimant may receive the applicable whiplash-and-minor-psychological-injury award even though the psychological symptoms do not amount to a separately diagnosable disorder. The guidance also states that a claim solely for shock or travel anxiety, without physical injury or a recognised psychological injury, will not attract compensation.
The expert must therefore avoid mixing two different questions. Mild anxiety secondary to whiplash may fall within the tariff. More substantial symptoms satisfying the criteria for a specific phobia or another psychiatric disorder require separate clinical analysis and may justify specialist evidence.
The phrase “minor psychological injury” should not be used merely because the claim is financially modest. It has a particular role within the statutory scheme.
Causation remains the difficult part.
The fact that anxiety began after an accident does not necessarily mean that the accident caused a compensable psychiatric condition.
The expert should examine the chronology. When did symptoms begin? Were they recorded contemporaneously? Did they improve, remain stable or deteriorate? Was there a later event that better explains the change?
Previous anxiety does not automatically defeat the claim. An accident may aggravate an existing disorder, trigger a recurrence or cause a new and distinct presentation. The task is to identify what difference the accident made. Other factors may include ongoing pain, employment problems, financial pressure, bereavement, relationship difficulties or another traumatic event. These do not necessarily remove the accident from the causal chain. They may mean that it is only one of several contributors.
A defensible report should state the facts supporting causation and those that weaken it. Practice Direction 35 requires experts to consider all material facts, including those that detract from their opinions, and to qualify conclusions where a definite opinion cannot be reached.
An expert should not say that anxiety is accident-related simply because no earlier diagnosis appears in the records. Absence of a diagnosis is not the same as absence of symptoms.
Witnessing harm to another is a different type of claim.
The legal position becomes more restrictive where the claimant was not personally injured or endangered but developed psychiatric illness after witnessing harm to somebody else.
The Supreme Court confirmed in Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1 that a person whose own life or safety is put at risk by negligent conduct may claim for psychiatric injury. Claims arising from witnessing injury to a close relative are subject to narrower rules and are associated with witnessing an accident or its immediate aftermath. The Court rejected claims based upon witnessing a relative’s death or medical crisis arising from an untreated disease following earlier clinical negligence.
A recognised anxiety disorder is therefore not enough on its own. The legal relationship between the claimant, the event and the defendant still matters. This is an area in which the expert should resist giving legal conclusions. The expert can diagnose the condition, explain its cause and describe its effect. Whether the claimant satisfies the legal requirements for recovery is for the court.
What the medical evidence should establish.
A useful report should answer more than whether the claimant feels anxious.
It should identify the symptoms, their onset and duration, the level of functional impairment, any diagnosis and the evidence supporting it. It should consider previous mental health difficulties, competing stressors, treatment, prognosis and whether specialist evidence is required.
The expert should also distinguish between the claimant’s account, the medical records and their own clinical findings. A report that repeatedly calls symptoms “severe” without explaining their practical effect gives the court little assistance.
Anxiety becomes compensable when it forms part of an otherwise compensable physical injury or crosses the threshold into a recognised psychiatric condition for which the legal requirements of liability and causation are satisfied. Within whiplash claims, minor psychological injury occupies a defined intermediate position. The expert’s role is not to turn understandable distress into a diagnosis. Nor is it to dismiss genuine disability because fear is difficult to measure.
The proper question is not simply, “Is this claimant anxious?”
It is, “What condition, if any, has developed; what caused it; and what difference has it made?”
