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What is nervous shock? Understanding your personal injury claim

Ray Abbas

Written by:

Ray Abbas

If you’ve experienced psychological trauma due to an accident or incident, you may have heard of the term ‘nervous shock’ in connection with your personal injury claim. Unlike physical injuries, which are usually straightforward to identify and measure, nervous shock introduces an added layer of complexity to personal injury cases.

This article aims to shed light on nervous shock, exploring its definition, legal implications, and relevance in personal injury cases.

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What is nervous shock?

In legal terms, nervous shock refers to a psychiatric injury or psychological harm that you might suffer after experiencing or witnessing a traumatic event. It goes beyond mere grief, anxiety, or other normal emotional reactions to distressing situations.

Instead, nervous shock typically involves a recognised psychiatric illness, such as:

  • Post-Traumatic Stress Disorder (PTSD)
  • Depression
  • Generalised Anxiety Disorder (GAD)
  • Panic disorder
  • Obsessive-Compulsive Disorder (OCD).

It’s important to note that the term ‘nervous shock’ is primarily a legal construct rather than a medical diagnosis. In medical contexts, healthcare professionals are more likely to use specific psychiatric terms to describe the conditions that fall under the legal umbrella of nervous shock.

When can you claim nervous shock?

You might be able to claim compensation for nervous shock if:

1. You’ve been diagnosed with a recognised psychiatric condition

This needs to be more than just feeling distressed or upset. You must provide medical evidence demonstrating that you have suffered a medically recognised psychiatric condition.

2. You were involved in or witnessed a traumatic event

This could mean you were directly involved and feared for your safety or you witnessed something happen. In some states and territories, there may be exceptions for cases involving close family members.

3. The incident was someone else’s fault

You need to show that another person or entity (defendant) was negligent and that their negligence caused the traumatic event.

4. The psychiatric injury was a foreseeable result of the incident

This means that a reasonable person should have been able to predict that their actions could cause psychological harm.

If you believe you may have a claim for nervous shock, our team can help assess your case and advise you on your options.

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Types of nervous shock claims

Depending on your relationship to the traumatic event, you might fall into one of these categories:

1. Primary victim

If you were directly involved in the incident and feared for your safety. For example, if you develop PTSD after being in a severe car accident.

2. Secondary victim

If you witnessed a traumatic event involving a loved one and suffered psychiatric injury as a result. For instance, if you develop severe anxiety after seeing your child seriously injured in an accident.

3. Rescuer

In some cases, if you responded to an emergency and suffered psychiatric injuries as a result of what you experienced.

Challenges you might face in nervous shock claims

While the law recognises nervous shock as a valid basis for personal injury claims, these cases can be challenging.

You must:

1. Prove psychiatric injury

Unlike physical injuries, psychiatric harm can be harder to measure objectively. You’ll likely need expert medical testimony to support your claim.

2. Show causation

You’ll need to prove that your psychiatric injury was directly caused by the traumatic event, which can be tricky if you have a history of mental health issues.

3. Meet proximity requirements

If you’re a secondary victim, there are often strict rules about how close you were to the event and your relationship with the primary victim.

4. Overcome scepticism

Some people might be sceptical about the severity and impact of psychiatric injuries compared to physical ones.

Variations by state in nervous shock claims

The laws surrounding nervous shock claims vary between states. These variations can present additional challenges depending on where you’re making your claim.

New South Wales

  • The Civil Liability Act 2022 sets out specific criteria for nervous shock claims.
  • You must be a close family member of the victim, have witnessed the accident or its immediate aftermath, or have been present when the victim was injured.
  • You need to prove that you’ve suffered a recognised psychiatric illness, not just grief or distress.

 

Victoria

  • Victoria uses the term, “pure mental harm” instead of “nervous shock” in the Wrongs Act 1958.
  • You may be able to claim if you witnessed the incident or its immediate aftermath, even if you’re not related to the victim.

 

Queensland

  • Claims for “pure psychiatric injury” are allowed under the Civil Liability Act 2003.
  • You’ll need to show that you either directly experienced a traumatic event or witnessed it happening to a loved one.

 

Western Australia

  • The Civil Liability Act 2002 requires that you either witnessed the incident or were in a close relationship with the victim.
  • You need to prove that a person of “normal fortitude” would have suffered a recognised psychiatric illness in similar circumstances.

 

South Australia

  • The Civil Liability Act 1936 allows claims for “pure mental harm” if you witness the accident or its immediate aftermath, or have a close relationship with the victim.
  • You need to prove that your psychiatric injury was a foreseeable consequence of the defendant’s negligence.

 

Tasmania

  • The Civil Liability Act 2002 allows claims for “pure mental harm” under similar conditions to other states.
  • You need to have witnessed the incident or its immediate aftermath or have a close relationship with the victim.

 

Australian Capital Territory

  • The Civil Law (Wrongs) Acts 2002 allows claims for “pure mental harm” if you witnessed the event or its immediate aftermath, or if you’re a close family member of the victim.
  • There’s no need to prove that a person of “normal fortitude” would have suffered the same injury.

 

Northern Territory

  • Claims for psychiatric injury are allowed under common law principles.
  • You generally need to have witnessed the incident or its immediate aftermath or have a close relationship with the victim.

How nervous shock might affect your life

If you’re experiencing nervous shock, this could impact many aspects of your life:

  • Mental health: You might be dealing with symptoms of PTSD, depression, anxiety or phobias.
  • Physical health: Your psychological trauma might manifest in physical symptoms like sleep disturbances, changes in appetite, or even chronic pain.
  • Relationships: You might find your relationships strained as you struggle with emotional regulation, trust issues, or social withdrawal.
  • Work: You might find it challenging to maintain your previous level of work performance, which could lead to financial strain.
  • Quality of life: Overall, you might find it difficult to enjoy activities you once found pleasurable.

What compensation could you receive for nervous shock?

If your nervous shock claim is successful, you might be awarded compensation to cover:

  • General damages
  • Future losses
  • Treatment costs
  • Travel expenses
  • Care and assistance.

 

The exact amount will depend on the severity of your psychiatric injury, its impact on your life, and the specific circumstances of your case.

Learn more: How much can I sue for emotional distress

Our successful nervous shock cases

Case 1: Medical negligence and nervous shock
In January 2018, a young woman went to the hospital after a fall while dancing and was diagnosed with a broken foot. Although she received initial treatment, complications developed because she didn’t receive the needed blood thinners. This included pneumonia and a blood clot. This situation caused her significant psychological trauma, including flashbacks and trouble with breathing.

We successfully negotiated a settlement of $250,000 for the client, addressing both the physical and psychological damages suffered due to medical negligence.

Case 2: Failure to diagnose leading to death and nervous shock
In early 2012, a Western Sydney woman’s daughter who has a history of cerebral palsy and a shunt for hydrocephalus, died due to undiagnosed appendicitis. The failure to diagnose and treat the condition led to a fatal infection and obstruction of the shunt. As a result, the plaintiff suffered immense emotional distress, confirmed by an expert psychologist.

After expert evaluations confirmed negligence and emotional impact, a settlement of $150,000 was secured from the hospital.

Case 3: Nervous shock from a family incident
In late 2009, a fitter machinist experienced nervous shock after a vehicle crashed into his family home. Although a psychological assessment revealed his injuries did not exceed the 10% Whole Person Impairment threshold for pain and suffering, he was still eligible for damages under other categories.

Following negotiations and a CARS assessment, the claim was settled for $50,000, covering past medical expenses, lost wages, and a buffer for diminished earning capacity.

Find out how much you can claim today.

Call 1800 004 878

Why you need a personal injury lawyer for your nervous shock claim

Given the complexities of nervous shock claims, it’s important to seek expert legal representation if you’re considering pursuing a case.

Our team of personal injury lawyers at GMP Law can help you build your case. They can:

1. Evaluate your case

They can assess the strength of your claim, considering factors like the nature of the incident, your psychiatric diagnosis, and the strengths or weaknesses of the claim.

2. Gather evidence

They can help collect and organise the necessary evidence to support your claim, including medical records, expert testimonies and witness statements.

3. Navigate legal complexities

With their understanding of relevant case law and legal precedents, they can guide you through the intricate landscape of nervous shock claims.

4. Negotiate with insurers

They can effectively negotiate with insurance companies to ensure you receive fair compensation for your psychiatric injuries.

5. Represent you in court

If a settlement can’t be reached, your attorney can represent your interests in court.

6. Provide support

The process of pursuing a nervous shock claim can be emotionally taxing, A compassionate lawyer can provide support and guidance throughout the legal process.

FAQs

Yes, you may be able to claim for nervous shock even if you weren’t physically injured, as long as you’ve been diagnosed with a recognised psychiatric condition resulting from the incident.

Yes, there are time limits (called limitation periods) for making personal injury claims, including nervous shock. These vary by state in Australia, typically ranging from three to six years from the date of the incident or when the injury was first noticed.

You’ll typically need medical evidence of your psychiatric condition, witness statements, and possibly expert testimony. Your lawyer can help you gather the necessary evidence.

Ray Abbas

Author

Ray Abbas

Partner

With both District and Supreme Court victories, Ray Abbas is an accredited specialist in Medical Negligence and Motor Vehicle Accident (MVA) claims. He has 24+ years' experience in personal injury law and can expertly unravel complex cases to secure maximum compensation for his clients.

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© 2024 
Gerard Malouf & Partners
 — Personal Injury Compensation Lawyers
Class Actions
Class Actions
At GMP Law, we have extensive experience in class action lawsuits, amplifying the voices of individuals who have experienced similar harms or losses.
Services
Services
Gerard Malouf & Partners manage cases for clients across all areas of Personal Injury Law, Inheritance Disputes and Superannuation Disputes.
About Us
Gerard Malouf & Partners have provided friendly, experienced legal advice to communities across Australia for over 35 years. Our Personal Injury Lawyers have taken on ten’s of thousands of cases and we are proud to have won billions of dollars for our clients.
Lawyers
Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.
Resources
Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.

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