Compensation for psychological injury - HR-2018-2080-A

The starting point in Norwegian law is that compensation for psychological injury has the same protection under tort law as other personal injury. The limits for this type of injury have now been expanded as the Supreme Court has made «a certain adjustment» to the legal position, and may, for example, be important in the event of a serious road accident.

In a judgment handed down by the Supreme Court on 30 October 2018, the case concerned a 15-year-old boy who died in hospital following a failure in health care. The Supreme Court ruled that the boy's mother, who herself found the boy dead in the hospital, was entitled to compensation for psychological injury as a result of this.

It is particularly parents who suffer psychological damage after losing their own child who can now receive compensation. The Supreme Court discusses several previous «shock judgements» and suggests that we are in an area where there has been a gradual development of both the understanding of damage and the legal framework over the past 50 years. Reference is made to the development in the Hauketo judgement (Rt. 1985, p. 1011), and the criticism from theorists at the university against the court's narrow limits for awarding compensation in such cases.

What is new after the 2018 judgement is stated in particular in paragraph (48):

«The situation that, in my view, stands out most strongly from the point of view that some adjustment is now possible is precisely the one we are dealing with in this case - cases where someone loses their child as a result of an act or event requiring compensation, or where the child is seriously injured in this way.».

It is important to note that both death and serious personal injury are mentioned as consequences of the injury in the judgement, and that these are treated equally. Furthermore, there must be a separate basis for liability related to the child's injury or death. The degree of culpability on the part of those responsible is not as central as in previous judgements.

In order for liability to be relevant, there must still be a particular additional burden for the parent beyond the fact that they have lost their child. How close you get to the event itself has previously been an important assessment criterion for liability. The 2018 judgement will probably lower the requirements regarding the drama and the parent's (spouse's/cohabitant's?) role in this. The specific assessment of liability will still be based on the proximity/distance to the emergency event, and some form of participation will probably be required. Once this is in place, the survivor's particular vulnerability to developing psychological injury is unlikely to deprive them of the right to compensation.

The Hauketo judgement (Rt. 1985 p. 1011) concerned personal injuries inflicted on a spouse and not on the spouse's own children, but beyond this type of close relative, there is hardly a basis for general liability for psychological «third-party injuries». Other close relatives will probably encounter resistance of a principled nature. An established cohabitation may be equated with marriage, but in the event of death they will often be able to receive compensation under the rules on loss of breadwinner. One can probably never rule out special and peculiar cases of compensation, and/or further legal developments, but the Supreme Court is clear about the group of people it has now had in mind. In the case of an occupational injury, a work colleague may be close to an occupational accident without being a close relative. Such cases should nevertheless be assessed on a case-by-case basis, as it is possible to receive compensation for psychological injury if you are very close to serious fatal accidents such as the «Nokasranet» in Stavanger.