What is a nervous shock/secondary victim claim?
It is possible to make a claim for compensation if you are diagnosed with a recognised psychiatric injury after witnessing or dealing with the impacts of a serious injury or death of a loved one, when that injury or death is the result of the negligence of another or others.
These types of claims are often called "nervous shock" or "secondary victim" claims.
What must be established?
In Victoria, nervous shock claims are governed by Part XI of the Wrongs Act 1958 (Vic). It sets out the following elements which need to be established in order to make a successful nervous shock claim:
- The person making the claim must suffer a recognised psychiatric injury or disorder (such as Post-Traumatic Stress Disorder, Depression, Generalised Anxiety Disorder, or other conditions clinically recognised under the Diagnostic and Statistical Manual of Mental Disorders and other similar diagnostic tools). This diagnosis must be supported by medical evidence, such as evidence from a psychologist or psychiatrist. Grief, sadness, or other common emotional reactions to distressing situations do not alone meet the required threshold for a recognised injury.
- The person making the claim must have either witnessed the victim being killed or injured or have a 'sufficiently close' relationship with the victim. Examples of this may include the parents or partner of a victim.
- A 'person of normal fortitude' might have reasonably suffered psychiatric injury as a result of the Defendant's failure to take reasonable care - designed to address situations where an individual has a pre-existing vulnerability to psychiatric injury or experiences an aggravated/severe reaction to what may otherwise be considered a minor injury.
- The Defendant either foresaw, or should have foreseen, that a person of reasonable fortitude might suffer psychiatric injury had the Defendant failed to take reasonable care to prevent against the risk of mental harm.
Similar legislation governing nervous shock claims exists in all States and Territories across Australia.
Duty of care owed by the defendant
To make a successful a nervous shock claim, it must be established that:
- The Defendant (responsible for the primary victim's injury or death) owed the 'secondary victim'/person making the claim a duty of care not to cause them pure mental harm;
- The Defendant breached this duty of care (by failing to take reasonable care to prevent against the risk of mental harm to the secondary victim resulting from the primary incident); and
- A recognised psychiatric injury, loss and damage to the claimant/secondary victim has occurred as a result.
The types of damages awarded in successful nervous shock claims can include general damages (also known as "pain and suffering damages", designed to compensate for the claimant's loss of enjoyment of life and loss of amenities), loss of earnings such as economic loss, and medical treatment expenses arising from the psychiatric injury.
The elements to be met in a successful nervous shock claim, particularly around establishment of duty of care from the Defendant to the secondary victim and the foreseeability of risk of psychiatric injury, can be difficult to establish.
The inherent complexity and nuance of psychiatric injury presents an added layer of complexity. Each claim must be assessed on its own circumstances, with close consideration given as to the foreseeability of the risk of injury, the nature/extent of the Defendant's alleged breach of duty of care towards the secondary victim, the nature of the secondary victim's injury, and the proximity of the relationship between the primary and secondary victims.
Secondary victims in childhood sexual abuse claims
Secondary victim claims have most recently been in the spotlight in the area of historical institutional abuse claims.
In RWQ v the Catholic Archdiocese of Melbourne [2022] VSC 483, a claim for damages for nervous shock was brought against the Catholic Archdiocese of Melbourne pursuant to Part XI of the Wrongs Act 1958 (Vic) by the father of a choirboy who alleged sexual abuse by George Pell in 1996 (and had since passed away).
A key issue for the Supreme Court of Victoria's consideration was whether the section 4(2) of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (the Act), which allows plaintiffs to bring claims 'founded on or arising from child abuse' against a non-government organisations/unincorporated association as defined by the Act, applied to secondary victims.
The Archdiocese contended that section 4(2) of the Act did not apply to RWQ's claim, as the claim was not 'founded on or arising from child abuse' within the meaning of the Act.
At first instance, Justice McDonald of the Supreme Court held that section 4(2) of the Act applied to RWQ's claim, noting that the language of the relevant section - particularly the phrase 'arising from child abuse' - strongly indicated that the Act was not confined to claims brought only by primary victims of childhood sexual abuse (which in His Honour's view, would render this wording irrelevant).
Further, Justice McDonald held that section 7 of the Act, which allows plaintiffs to nominate a proper defendant to incur liability on behalf of a non-government organisation in institutional abuse claims, was enlivened in claims founded on or arising from child abuse, including secondary victim claims - meaning that the Archdiocese would incur any liability arising from RWQ's claim against it.
The Archdiocese appealed the Supreme Court's decision to the Victorian Court of Appeal, who upheld the primary decision and agreed with Justice McDonald's interpretation of sections 4(2) and 7 of the Act.
The Archdiocese subsequently filed for special leave to appeal the Court of Appeal's decision to the High Court of Australia, who ultimately refused to grant leave on the basis of the Archdiocese having 'insufficient prospects of success to warrant a grant of special leave to appeal'.
The implication of the High Court's refusal to grant the Archdiocese special leave to appeal is that secondary victim claims in the institutional abuse space can be brought in Victoria pursuant to the Act - expanding liability for institutions and insurers and making it essential for all parties and their legal representatives to carefully consider the issue of indemnities for potential secondary victim claims in the context of settlement discussions. RWQ did not mean the secondary victim would be ultimately successful in his or her claim for damages against the Archdiocese - this would be considered/determined separately.
How we can help
If you or someone you know has sustained serious psychiatric injury/psychological harm following an injury to a loved one, please contact Carroll & O'Dea Lawyers and we can provide you with no win no fee advice on what your options might be.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
