Accidents happen in life. With luck, you hope you’re never involved in a bad accident, whether it be at work, while driving, or during recreational activities.
But witnessing a bad accident can also be highly distressing. For some people, seeing an accident happen – particularly if it’s fatal and particularly if it involves a close family member – can cause long-term damage to their emotional and mental wellbeing. The result can be an inability to sleep, social withdrawal, an inability to work and many other debilitating consequences.
In these situations, it’s possible to make what’s called a ‘nervous shock’ claim for compensation. This is much like any other personal injury claim in that the victim seeks compensation from the person or persons who caused the accident for the harm they have suffered. Nervous shock can be caused by actually witnessing the incident or, potentially, from the trauma experienced by arriving at the scene of the accident or even hearing about it afterwards.
The key difference is that nervous shock claims are much more difficult to prove than cases involving physical injury. This is because nervous shock is a legal term and refers to someone developing a psychiatric illness that results from witnessing something distressing or traumatic. Proof of psychiatric illness is naturally harder to demonstrate than physical injury, and so an experienced compensation lawyer should be consulted before considering such a claim.
What is required to prove a nervous shock claim?
In Queensland, claims for nervous shock are still primarily governed by common law principles, although the Civil Liability Act 2003 does include negligence claims for ‘psychological injury’. In most other states, such claims are now codified in legislation which limits who may make such a claim.
NSW’s Civil Liability Act 2002, for example, requires that for a nervous shock claim to succeed, the claimant must obtain medical evidence that diagnoses a recognisable psychiatric condition which is more than a normal reaction of grief to the accident. Section 30 of that Act limits compensation for “pure mental harm arising from shock” to situations where: the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or the plaintiff is a close member of the family of the victim.
In Queensland, the famous 2002 High Court decision in Annetts v Australian Stations Pty Ltd, is still guidance for how nervous shock claims are decided. In that case, Mrs Annetts, the mother of a 16-year-old boy who was employed on an outback cattle station and died when working in a remote location without supervision, suffered a psychiatric injury not through sudden shock but by a slow process exacerbated by the four-month search for her son’s body.
In this case, it was the proof of the psychiatric disorder Mrs Annetts had suffered as a result of her son’s disappearance and death that was relevant to the decision, rather than the manner by which it had come about.
In essence, under common law, in a claim for nervous shock (or alternative terms such as ‘pure’ psychiatric or mental harm) a person can only be liable in negligence for causing another person to suffer a recognised psychiatric illness.
In more recent case law developments, it’s become clear that the psychiatric harm suffered need not be the result of a sudden shock, nor in Queensland is there a limit on a person recovering damages for such harm because they did not directly perceive the traumatic event or its immediate aftermath. But direct perception may make it easier to prove that the psychiatric harm was reasonably foreseeable, a key factor in working out whether the defendant owed the victim a duty of care. The relationship of the claimant to the primary victim (the person killed or injured by the negligent person’s actions), also remains highly relevant.
While this generally refers to family members, rescuers (such as police, ambulance or fire officers) and employers have also been found to be included in recognisable relationships where foreseeable harm is possible.
What damages are possible from such a claim?
If you’re able to prove the basics of negligence in your nervous shock claim – that a duty of care was owed, that the duty was breached, and that the breach caused your injury – you will also need to show that you have suffered damage as a result of the injury. This might include past and future expenses, lost wages, and even future economic losses. Your medical treatment helps establish both the existence of your injury and the cost of the injury.
The amount of damages you may be entitled to will depend on the severity of your injury and its duration. Has the psychiatric illness resulting from the shock caused permanent incapacitation where you can no longer work or properly look after yourself?
In a 2014 NSW case, Lee v Carlton Crest Hotel, the plaintiff Ms Lee, who witnessed her husband reverse their car out of a multi-storey car park and fall to his death, was awarded more than $250,000 for non-economic loss plus substantial amounts for past and future expenses (medical and psychiatric treatment, and medicine), and domestic assistance, after a near “complete psychological collapse” following the accident.
In conclusion
Nervous shock claims can be tricky to prove, particularly in Queensland where common law principles still apply to determining whether the negligence of a third party caused a recognisable psychiatric injury and resulted in damage. In claims arising from road accidents, this can be complicated by the existence of the statutory CTP scheme in the Motor Accident Insurance Act 1994, which will generally see the insurer challenge such claims.
The best course of action if you believe you have a nervous shock claim is to consult as soon as possible with expert compensation legal professionals. Contact our Gold Coast personal injury lawyers through our website, by email at info@lifestyleinjurylaw.com.au, or by phone at (07) 5627 0321 today for an initial consultation.
