Losing a loved one in a terrible accident, or being involved in an incident such as a traffic crash where people are seriously injured or killed, can cause survivors unspeakable and often permanent mental harm.
While once upon a time only physical injury caused by someone else’s negligence could be the basis of a claim for personal injury compensation, in the last century the concept of mental harm, including recognised conditions such as post-traumatic stress disorder, have been acknowledged by the courts in personal injury claims. In particular, the difficulty of proving the effects of a mental or nervous shock such as witnessing the death of someone in an accident has featured in a number of cases.
The common law’s treatment of mental harm cases is now governed in New South Wales. An important section of the Act is Section 30 which provides a limitation on those who can claim damages for mental harm arising from shock.
How does section 30 of the CLA work?
A person seeking damages for mental harm must still satisfy the basic elements of a negligence claim – establishing a duty of care relationship between the plaintiff and the defendant, proving that the duty of care was breached by the defendant and that the breach caused the damage or harm suffered by the plaintiff.
In section 27 of the CLA, definitions for mental harm are provided. ‘Consequential mental harm’ is defined as mental harm that is a consequence of a personal injury of any other kind, while ‘mental harm’ means impairment of a person’s mental condition. ‘Pure mental harm’ is defined as mental harm other than consequential mental harm, and refers to a recognised psychiatric illness neither caused or contributed to by, or related to, a physical injury suffered by the person. Section 30 is crucial in determining the liability and compensation for individuals who suffer emotional distress without any accompanying physical injury.
At the heart of the section’s intent is that for a person to be able to claim damages for pure mental harm, they need to fall into one of two categories – be a close relative of the victim, or to have witnessed at the scene the event that endangered, injured or killed the victim. The defendant must also have reasonably foreseen that a person of normal fortitude, in the claimant’s position, could suffer mental harm from witnessing the event.
The use of the word ‘witnessing’ in the section initially caused uncertainty. This was apparent in a case where police officers who were among those first on the scene at the 2003 Waterfall rail disaster south of Sydney and later claimed damages for PTSD were said by the court not to have actually witnessed the victim/s being killed, injured or put in peril, because by the time they had arrived the crash had ended. Therefore they were not entitled to damages by the literal interpretation of the provision.
The High Court overturned the decision and applied a more liberal interpretation of the law, finding that tragic events resulting in death, injury or peril are events not necessarily confined to the instant they occur and that the psychiatric injury need not be related to a particular victim. In Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales  HCA 22, the Court found the officers were not prevented from pursuing damages for mental harm by the limitations set out in s30(2) of the CLA because the consequences of the accident played out over time and some passengers remained ‘in peril’ for significant periods. Each police officer was subjected to a series of mental or nervous shocks, the Court found, rather than a single initial shock on first arriving at the scene.
The second requirement that a plaintiff be a ‘close family member’ (section (30(2)(b) of the Act) is, as its wording suggests, more restrictive. A definitive statement on the justification for this provision was made in Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, where Justice McHugh said: ‘The collective experience of the common law judiciary is that those who have a close and loving relationship with a person who is killed or injured often suffer a psychiatric injury on learning of that injury or death, or on observing the suffering of that person…
‘They are among the persons who are likely to be so closely and are directly affected by the wrongdoer’s conduct that the person ought reasonably to have taken them in mind when considering if it is exposing the victim to a risk of harm.’
The importance of expert evidence
In assessing a claim the court will consider factors such as the nature and circumstances of the event, the claimant’s pre-existing vulnerabilities, the duration and intensity of the mental harm, and any psychiatric or medical evidence presented. The court will assess whether the mental harm suffered is a recognised psychiatric illness or a severe and disabling condition.
Professional opinion evidence, such as psychiatric or medical reports, plays a crucial role in establishing the extent and causation of the claimant’s mental harm which must be more than a normal grief reaction. Courts rely on expert opinions to determine whether the claimant’s mental harm is genuine, substantial, and directly attributable to the shock suffered causing a recognised psychological injury. However, the court retains the ultimate decision-making authority in evaluating the credibility and weight of such evidence.
Seek professional advice from compensation specialists
Our award-winning personal injury lawyers at BPC Lawyers bring years of experience and expertise to the sometimes complex topic of mental harm claims arising from situations where a person or persons are killed, injured or placed in peril. We can provide guidance on how to make these claims if you fall within the categories outlined in section 30 of the CLA, in particular by assisting with obtaining expert medical evidence. Contact us today to discuss your case.