Nervous shock is a historic term derived under English law which refers to psychiatric/mental illness or injury inflicted upon a person by intentional or negligent actions or omissions of another.
Who can bring a nervous shock claim?
In NSW, nervous shock claims can be brought by persons who have witnessed, a victim being killed, injured or put in peril if it is accepted by the Court that they have a genuine psychiatric illness arising from a circumstance that the defendant ought to have foreseen to be capable of causing a person of ‘normal fortitude’ to suffer a recognisable psychiatric illness if reasonable care were not taken.
A close member of the family of a victim includes:
- a parent of the victim;
- persons with parental responsibility for the victim;
- the spousal partner of the victim;
- a child or step-child of the victim; and
- or any other person for whom the victim who has parental responsibility.
The definition extends to siblings, half-brothers or half-sisters, step-brothers and step-sisters. A “spouse or partner” is defined as a husband or wife or a de-facto partner.
What is the legal test of a nervous shock claim?
The common law provides three elements to prove a nervous shock claim:
- That a duty of care is owed by the defendant to the plaintiff; and
- That it was reasonably foreseeable that the plaintiff could suffer psychiatric injury due to the defendant’s act or omission; and
- That it was the defendant’s negligent act or omission which caused the plaintiff to suffer this injury.
What compensation can be claimed with a nervous shock claim?
The following may be able to be claimed:
- Past expenses
- Future expenses
- Lost wages
- Future economic loss
- Non-economic loss
The damages that may be claimable will depend on the severity of the injury and its duration.
What time limits apply to a nervous shock claim?
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.
Leading case in nervous shock claim
The leading case in Australia in respect to nervous shock is Tame v NSW (2002) 211 CLR 317. In January 1991, Ms Tame was the driver of a car that was involved in an accident, which was the fault of the driver of the other car.
Ms Tame sued and obtained damages for physical injury. The other driver had a blood alcohol level of 0.14. while Tame had no alcohol in her blood. However, the police initially recorded in their accident report that Ms Tame’s blood alcohol level was 0.14. The error was corrected shortly afterwards. Ms Tame however heard about the error and the police apologised to Ms Tame and assured her that the error would be fixed.
However, Ms Tame became obsessed with the error and developed a psychiatric injury as a result. Ms Tame brough a claim against the State of NSW for the negligence of the police and was awarded about $115,000 in damages in the District Court of NSW.
The State successfully appealed the decision to the NSW Court of Appeal, and Ms Tame obtained special leave to appeal to the High Court.
The High Court dismissed the appeal finding that the police officer who prepared the erroneous report did not owe a duty to take reasonable care to avoid psychiatric injury to her, as it was not reasonably foreseeable that a person in her position would sustain a psychiatric injury as a result of the error.
The Court considered that when considering whether a defendant owes a plaintiff a duty to take reasonable care to avoid recognisable psychiatric injury, the crucial question is whether the risk of the plaintiff sustaining such an injury was reasonably foreseeable.
The court also considered three ‘control mechanisms’ for the imposition of such a duty of care:
- The requirement that liability for psychiatric harm be assessed by reference to a hypothetical person of ‘normal fortitude’;
- The requirement that the psychiatric injury be caused by a ‘sudden shock’; and
- The requirement that a plaintiff ‘directly perceive’ a distressing phenomenon or its ‘immediate aftermath’.
These three ‘control mechanisms’ are not pre-conditions but are relevant considerations.
Shortly after Tame, Part 3 of the Civil Liability Act 2002 (NSW) was enacted. Section 32 which deals with psychiatric injury is mostly consistent with Tame.
Contrary to Tame however, section 32 provides that a duty of care is not to be found unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness. This was affirmed in Wicks v State Rail Authority of NSW (2010) 241 CLR 60 at 26.
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