The rise (and rise) of nervous shock claims in NSW
Fiona Read, Torts (Service/Regulatory), A/Assistant Crown Solicitor
Summary of a seminar/paper dated 16 September 2015
In New South Wales the law surrounding nervous shock, which is a legal term not a medical term, is informed by both the common law and legislation; Pt 3 'Mental Harm' of the Civil Liability Act (2002) ('CLA') (ss. 27-33).
There are two types of 'mental harm' claims in wrongful injury claims:
- consequential mental harm – mental harm consequential on personal injury
- pure mental harm – mental harm other than consequential mental harm.
In claims for consequential mental harm, the plaintiff claims mental harm secondary, for example, to a claim for personal injury. In such claims the plaintiff might claim that they have suffered anxiety and depression as a result of a personal injury. Such claims are different to claims where the plaintiff alleges that their only injury is psychiatric injury or nervous shock.
Pure mental harm claims can be brought by the actual victim of the negligence. They can also be brought by secondary victims who either witnessed at the scene the victim being killed, injured or put in peril or they are a close member of the family of the victim – s. 30 CLA.
They must also establish that it was foreseeable — 'that a person of normal fortitude might in the circumstances of the case suffer a recognised psychiatric illness if reasonable care were not taken' (at [s. 32(1)]).
Liability only for a recognised psychiatric illness
Section 31 of the CLA says:
There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness.
In Mt Isa Mines v Pusey, (1970) 125 CLR 383 the High Court held:
'Sorrow does not sound in damages. A plaintiff in an action of negligence cannot recover damages for a 'shock' no matter how grievous which was no more than an immediate emotional response to a distressing experience sudden, severe and saddening.' (Windeyer J at )
You cannot recover damages for pure mental harm when it is just distress or anger or grief: Flight Centre v Louw  78 NSWLR 656. In that case the plaintiffs sued a travel agent because they claimed their holiday to Bora Bora in Tahiti was marred by extensive construction work to their hotel. The judge found that the plaintiffs had suffered mental harm in terms of impairment of their mental condition. However, he also found that this impairment was insufficient to be classified as a recognised psychiatric illness and therefore there was no liability.
In 2013 in Rassmusen and South Western Sydney Local Health District  NSWSC 656, the Supreme Court of NSW assessed Rassmusen at 40 per cent of a most extreme case for her significant and ongoing psychiatric injury associated with the death of her four day old baby and awarded her $214,000.
Talem qualem, known colloquially as 'eggshell skull' is a legal concept which means when assessing injury and disability the defendant must take the plaintiff in the condition and circumstances in which the plaintiff is at the time of the wrongful injury, which includes with any pre-existing infirmity or susceptibility.
The scope of eggshell skull can be difficult to determine when assessing mental harm in terms of whether a plaintiff has suffered an aggravation of a pre-existing psychiatric illness or whether the plaintiff's psychiatric injury is traceable to another cause.
Prima facie where a plaintiff has made out their incapacity resulted from the defendant's negligence, the defendant bears the onus to establish through its evidence that the plaintiff's injuries are causally linked to something other than the wrongful injury, or the plaintiff would have been similarly incapacitated in any event regardless of the defendant's negligence.
This issue was considered by the Court of Appeal in Glen v Sullivan  NSWCA 191 where the plaintiff was injured in a motor accident. She suffered physical injuries and claimed that the accident had aggravated a pre-existing psychiatric condition; so it was a consequential mental harm claim. At trial she claimed damages of over $1.7 million and the defendant submitted that she was worth about $100,000. The defendant's psychiatrist said that the plaintiff no longer suffered from a psychiatric condition secondary to the 2009 motor accident. The Trial Judge accepted that the plaintiff had sustained physical and psychiatric injuries from the accident but he also found that these injuries had resolved well before the trial. The Trial Judge awarded her $85,000. The plaintiff appealed and the Court of Appeal held that the plaintiff had discharged its onus to adduce evidence probative of the fact that any causal relationship between the accident and the psychiatric injuries had ceased well before the trial. The appeal was dismissed.
In Chaina v Presbyterian Church (NSW) Property Trust (No. 25)  NSWSC 518 the parents sued Scots College for $100 million after their teenage son died at a school based activity. The parents claimed they were completely incapacitated by nervous shock, they had major depression and the father said he had a paranoid personality disorder. The defendant submitted that the parents were engaged in many activities wholly inconsistent with their alleged severe and debilitating incapacity. Justice Davies held that the parents had suffered anxiety and depression as a result of their son's death but that this lasted about two years, so it had well and truly resolved by the time of the trial. He said the majority of their problems arose because of their pre-existing conditions exasperated by the litigation. He assessed each of them at 28 per cent of a most extreme case which amounted to about $77,000 each and other modest costs for out of pocket costs.
Person of normal fortitude
Section 32 of the CLA says that as a pre-condition to establishing that a defendant owes the plaintiff a duty of care, it must be foreseeable that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness – see Tame v NSW (2002) 211 CLR 317. Mrs Tame was in a car accident with a drunk driver. The police officer mistakenly recorded on a form that both drivers were drunk. The error was changed but Mrs Tame became obsessed with the error and developed depression and Post Traumatic Stress Disorder and subsequently brought a claim for nervous shock. At first instance she was successful. The Trial Judge found that a person of good character who had taken care not to drink drive might suffer psychiatric injury after a form erroneously said that she had been drinking. She was awarded over $115,000. The State appealed and the Court of Appeal overturned the Trial Judge's decision. Mrs Tame appealed to the High Court. The High Court held that her reaction was extreme and idiosyncratic and a person of normal fortitude would not react as she did and therefore her claim failed.
In determining normal fortitude, s. 32(2) of CLA says that in cases of pure mental harm when considering whether the defendant ought to have foreseen that a person of normal fortitude might in the circumstances of the case, suffer a recognisable psychiatric illness, the circumstances of the case include:
- whether or not the mental harm was suffered as the result of a sudden shock
- whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril
- the nature of the relationship between the plaintiff and any person killed, injured or put in peril
- whether or not there was a pre-existing relationship between the plaintiff and the defendant.
Tomisevic v Menzies Wagga Southern P/L  NSWCA 178
A cleaner in a police station sued because whilst cleaning up a cell that contained faeces and vomit, the cleaner accidentally ingested some contaminated water. She went on to develop a recognised psychiatric illness. The NSW Court of Appeal held it wasn't reasonably foreseeable that a person of normal fortitude would develop a recognised psychiatric illness in response to ingesting someone else's faeces and vomit.
AX by tutor ZX v Ashfield Municipal Council  NSWDC 32
An 11 year old boy sued a local council because he cut his toe on a broken tile at a local swimming pool. The cut required only three stitches so he wasn't entitled to damages for the physical injury but he claimed he developed a psychiatric injury triggered by the impact of the toe injury on his schoolboy football career. The District Court held that the boy's psychological response was out of all proportions to what might reasonably be expected and the claim failed.
Claims by secondary victims
Like a primary victim who brings a claim for pure mental harm or nervous shock, secondary victims need to also establish that:
- they have a recognised psychiatric illness
- it is foreseeable that a person of normal fortitude might in the circumstances of the case suffer a recognised psychiatric illness.
Additionally, as per s. 30 of the CLA, the secondary victim plaintiff is not entitled to recover damages for pure mental harm unless:
(a) the plaintiff witnessed, at the scene, the victim being killed injured or put in peril or
(b) the plaintiff is a close member of the family of the victim. (s. 30(2))
In terms of the witness/bystander claim, s. 30 requires the bystander to have been 'at the scene' and not for example seen the danger on television. The High Court considered what 'witnessed at the scene' meant in Wicks v State Rails Authority of NSW (2010) 241 CLR 60. Two police officers sued State Rail because of the psychiatric injuries they developed following what they saw when they attended the Waterfall train crash in their official capacity as police officers. State Rail submitted that the police officers hadn't actually witnessed the crash which saw the victims killed, injured or put in peril.
The High Court held that:
'…it would be wrong to confine the shock that each rescuer suffered to what he perceived when he first arrived on the scene… contrary to what the SRA submitted, the event capable of causing a shock to observers did not finish when the train came to rest as a twisted collection of carriages… There are cases where death or injury, or being put in peril takes place over an extended period. This was such a case'. (at )
The other category of secondary victim claim is where the plaintiff is a close member of the family of the victim.
Section 30(5) of the CLA defines close member of the family of a victim as:
(a) a parent of the victim or other person with parental responsibility for the victim
(b) the spouse or partner of the victim
(c) a child or stepchild of the victim or any other person for whom the victim has parental responsibility
(d) a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim.
This section must also be seen in conjunction with the normal fortitude requirements of s. 32(2) of the CLA.
spouse or partner means:
(a) a husband or wife or
(b) a de facto partner
but where more than one person would so qualify as a spouse or partner, means only the last person to so qualify.
Under the Act, 'close member of the family' is a broad group although it does not include grandparents/grandchildren unless they have parental responsibility for the victim.
Additionally s. 30 (3) and (4) of the CLA place two other limitations on plaintiff secondary victim claims for pure mental harm namely:
(3) Any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim.
4) No damages are to be awarded to the plaintiff for pure mental harm if the recovery of the damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this Act or any other written or unwritten law.
The webinar can be accessed here.