Nervous shock occurs when we witness a traumatic event or accident which has a lasting negative impact on our lives.
The test to determine if one is eligible for compensation as a result of nervous shock is not simple.
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.
If a recognised psychiatric injury is suffered by a close member of the family of the victim who was killed, injured or put in peril, they need not have witnessed, at the scene, the relevant event.
Tame v NSW (2002) 211 CLR 317
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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