There are events in life so shocking to witness they can cause a person psychiatric illness.
A car accident caused by the negligence of another driver in which a family member witnessed the death of a loved one may cause that witness to develop a psychiatric illness manifesting as depression, anxiety or post-traumatic stress disorder, for example.
In other circumstances, a close family member of someone who was killed, injured or put in peril in a work accident caused by negligence may develop a genuine psychiatric injury even if they did not witness or were not at the scene of the incident.
In both these situations, a person may be able to make a nervous shock claim seeking compensation for their illness.
Expert advice from specialist legal professionals is essential when making a nervous shock claim. A skilled lawyer can navigate the demands of the Civil Liability Act 2002 (‘the Act’) as well as the evidence required to establish a ‘genuine psychiatric illness’.
What is required to make a nervous shock claim?
The provisions of the Act allow a person who suffers significant injury such as psychiatric illness to access compensation when their injury causes significant medical expenses and adversely impacts their ability to earn an income.
In order for a nervous shock claim to succeed, the claimant must obtain medical evidence – usually an expert report from a specialist – that diagnoses a recognisable psychiatric condition that is more than a normal reaction of grief to the accident.
As mentioned above, the 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 did not witness the incident, but is a close member of the family of the victim.
The claim must also show that the defendant ought to have foreseen if reasonable care was not taken, that the harm was capable of causing a person of normal fortitude to suffer a recognisable psychiatric illness.
Who is a close family member?
In claims where a close family member of a victim has suffered psychiatric illness, even though they did not witness the incident, the question arises as to who meets these criteria.
The Act defines close family members as:
- a parent of the victim or other person with parental responsibility for the victim, or;
- the spouse or partner of the victim, or;
- a child or stepchild of the victim or any other person for whom the victim has parental responsibility, or;
- a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim.
Spouse or partner means the person to whom the victim is legally married (including the husband or wife of the victim) or a de facto partner.
Possible damages available for this sort of claim
If a claimant is able to prove the defendant’s liability for their illness, they also need to show the harm caused by the injury. This might comprise past and future medical expenses, lost wages, and future economic losses.
The number of damages that may be claimable will depend on the severity of the injury and its duration. Is the psychiatric illness caused by the nervous shock permanent, affecting your ability to ever work again or maintain your personal welfare?
A case example is found in Lee v Carlton Crest Hotel, an NSW case from 2014 where the plaintiff, Ms Lee, witnessed her husband reverse their car out of a multi-storey car park and fall to his death. She 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 experiencing a near ‘complete psychological collapse’ after the accident.
Time limits… and the need for good legal advice
A statutory limitation of three years from the time of the date of the incident applies in which to commence court proceedings for personal injury, including for nervous shock claims.
In order to meet this deadline, as well as bring together the necessary medical evidence and establish the elements of negligence necessary to find the defendant liable, engaging legal specialists with a long track record in psychiatric illness claims makes sense.