What is a nervous shock claim?
Witnessing a motor vehicle accident or being a close family member of a victim involved in a motor vehicle accident can be distressing and, in some circumstances, can lead to significant psychological trauma that can seriously impact an individual's ability to lead a normal life.
A nervous shock claim can be made by individuals suffering psychological injury as a result of a motor vehicle accident. This type of claim also includes accidents involving collisions between motor vehicles and other road users such as pedestrians, motorcycle riders and cyclists.
Who can make a claim?
If you have suffered psychological injury as a result of a car accident, you may be entitled to compensation under Section 53(1) of the Civil Liability Act 1936 (SA) if:
- you were physically injured in the accident or were present at the scene of the accident when the accident occurred; or
- you are a parent, spouse, domestic partner or child of a person killed, injured or endangered in the accident (even if you were not present at the scene of the accident).
If you are family member of a person killed in an accident, you may also be entitled to make a separate claim for loss of dependency. See our article about claims for loss of dependency here.
Establishing a claim
To establish if a nervous shock claim can be made, you will need to demonstrate that the accident occurred as a result of the negligence of the other driver.
You will also need to show that you have suffered a recognised psychiatric illness as a result of witnessing the accident or being a close family member of the person killed, injured or endangered, as defined above.
To determine if you have suffered a recognised psychiatric condition, you will need to undergo an independent medical assessment with an accredited psychiatrist who can provide a diagnosis of your condition. The condition also generally needs to be of at least moderate severity and suffered for a sustained period of time. Conditions such as Major Depressive Disorder, Anxiety Disorders and Post-Traumatic Stress Disorder are recognised psychiatric illnesses and compensable.
How long do you have to make a claim?
There are strict time limits that apply to personal injury claims including claims for nervous shock. In South Australia, under Section 36 of the Limitation of Actions Act 1936 (SA), you only have three years to commence your claim after the accident occurs, or you will be 'statute-barred', meaning you may no longer have the legal right to pursue your claim. If your claim does not resolve before three years, you will need to commence Court proceedings to preserve your right to make a claim.
What kind of compensation can you claim?
The amount of compensation you may be entitled to receive will depend on the severity of your injury and its impact on your life. As the claim is against the at-fault vehicle's Compulsory Third Party (CTP) insurer, any compensation you may receive will be paid by an insurer and not the driver at-fault.
The head of damages that you may be entitled to claim include:
- Non-economic loss (also referred to as 'pain and suffering')
- Loss of wages
- Future loss of earning capacity
- Past medical expenses
- Future medical expenses
- Gratuitous care
- Future care services
- Interest
- Loss of consortium
To learn more about the head of damages and CTP claims, you can refer to our article A guide to CTP claims in South Australia.
How can we help?
Nervous shock claims can be complex and emotionally challenging, so it is important to find a lawyer who can assist and support you through the process of a claim.
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.
