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Being involved in, witnessing, or hearing about a close friend or family member involved in a serious car accident can be very traumatic, particularly if they sustained serious injuries or if fatality was involved. Witnessing or hearing about a traumatic accident can result in a psychiatric injury which can include, post-traumatic stress disorder, depression, or anxiety.
In Queensland, road users owe a duty of care to other road users. If you are experiencing a psychiatric injury as a result of a road accident, the normal process is to make a claim against the insurer of the negligent (Defendant) party. In most cases, this is the CTP insurer of the road user who was at fault.
The Civil Liability Act 2003 (Qld) (‘the Act’) is the legislation that governs the acts of negligence in Queensland. However, the rules surrounding a person’s liability (fault) for another person suffering psychiatric harm is governed by common law (case law) rather than legislation.
Under common law, a person is only liable in negligence if they have caused another individual to suffer a recognised psychiatric illness. Therefore, there is no liability for causing a normal amount of emotional distress or grieving symptoms.
In addition to the above, it is now accepted that the Plaintiff’s psychiatric injury / harm does not need to be as a result of, or connected with, physical harm to the Plaintiff. This means, a psychiatric harm / injury on its own is sufficient.
For a pure psychiatric claim, the law also recognises that a Defendant may owe a duty in relation to a pure psychiatric harm suffered by someone who ‘foreseeably’ attends an accident scene created by the Defendant’s negligence.
In Queensland, for a common law claim to be successful the person (Plaintiff) who suffered the psychiatric harm must prove the Defendant (e.g. driver of vehicle) breached the duty of care they owed to the Plaintiff and consequently as a result of the breach, the Plaintiff suffered loss, injury and damage. The below points explain each element of establishing negligence:
In a motor vehicle accident, it must be established that there was a relationship that exists which gives rise to a duty to take reasonable care. The relationship between one road user and another road user is a recognised category of relationship which gives rise to a duty of care.
It is important to note that while road users owe other road users a duty of care, this duty of care is not owed to everyone.
If the Defendant owes the Plaintiff a duty of care, for example to operate a motor vehicle safely and abide by the relevant road rules, and this duty has been breached, the defendant is likely to be found as having breached the duty of care owed to the Plaintiff. A breach of duty of care can include examples such as speeding, driving under the influence of alcohol or illicit substances, and not obeying traffic lights (e.g. running a red light).
There must be a connection between the injury and damage suffered as a direct result of the defendant’s breach of duty. Meaning, the negligent act (e.g. speeding) of the Defendant caused the injury, loss and damage to the Plaintiff.
Once a claimant has successfully established liability (the negligent act) and the casual connection / link that the breach of duty caused the psychiatric harm, it must also be proven that a traumatic event occurred and the Plaintiff witnessed the event, the aftermath, or were told about it soon after. However, an individual telling the Plaintiff about the accident is not usually sufficient unless they intend to cause you harm or the incident is so severe that seeing or hearing about it would cause a ‘normal’ person to acquire a recognised psychiatric injury.
A duty of care is owed to the person who is harmed in the event and would extend to people who have a close relationship to the person harmed (e.g. family members, step-parents), a rescuer, or in some circumstances where they attended the scene in the course of employment.
In Queensland, you may be able to make a psychiatric claim for nervous shock even if you were not present at the scene of event / accident. This will depend on whether the Plaintiff (person suffering the psychiatric injury) had a relationship with the primary victim (who was injured as a result of the Defendant’s breach / actions), or with the Defendant directly.
In cases where the Plaintiff has successfully recovered damages for a psychiatric harm caused by injury to a third party, the relationship between the Plaintiff and the third party generally falls into three categories, namely, (a) family; (b) rescuer; (c) employment. However, the case law has not yet made it clear that the relationship is considered decisive and may be therefore relevant applying the test of ‘foreseeability.’ This test of foreseeability means whether the psychiatric harm sustained by the Plaintiff is deemed as reasonably foreseeable.
If the Plaintiff (the person suffering from the psychiatric injury) can successfully prove the abovementioned elements of a common law claim, they may be entitled to claim the following damages: –
As psychiatric (nervous shock) claims can differ depending on the circumstances, they are determined based on their own unique circumstances and merit. This means the amount of compensation a Plaintiff is entitled to receive will depend on factors surrounding the extent of the injuries.
If the abovementioned elements to satisfy a nervous shock claim are met or likely to be met, an individual may have the right to pursue a common law claim for damages for nervous shock (psychiatric injury).
There are strict time limits that apply to personal injury claims, including nervous shock claims. If a claim is commenced after the expiry of these strict time limits, a person may no longer have the legal right to pursue the claim.
If you, or someone you know, believes they have a right to pursue a nervous shock claim, an experienced personal injury lawyer should be consulted to guide you through the complex process to assist with achieving the best possible outcome. We can assist you with your claim on a ‘No Win, No Fee’ basis.
Get in touch with us today by using our Free Claim Checker or contact Ellie White for a free initial consultation and no obligation chat where we can advise on your prospects of success.