According to the Australian Road Deaths database, 1,203 people died on Australian roads as a result of motor vehicle accidents in 2018. These figures are increasing every year.
For a Common Law claim to succeed you (the person who suffered the nervous shock) must establish that:
This is referred to as negligence.
In order to prove liability (fault) in nervous shock claims, the person experiencing nervous shock (“the plaintiff”) must, in addition to proving negligence, prove several other elements.
The elements were determined by the High Court in the cases of Tame v NSW; Annetts v Australian Stations Pty Ltd, which were heard by the High Court together. This decision continues to be a leading authority in nervous shock claims in Australia.
In the South Australian case of King v Philcox the High Court considered whether a negligent driver who was responsible for an accident that caused the death of a man owed the man’s brother a duty of care.
A common law claim for damages would, if successful, compensate you (the person who suffered the nervous shock) for pain, suffering and loss of enjoyment of life, past and future income loss and superannuation loss, as well as past and future medical and rehabilitation expenses.
The damages that you may seek to recover in a nervous shock claim, only extends as far as is practicable, to put you back in the position you would have been but for the negligent acts of the defendant.
Each claim must be determined based on its own unique set of circumstances and merit.
The amount of damages recoverable in these claims requires investigation and quantification by a suitably qualified lawyer.
In Queensland, the legislation that governs nervous shock claims is the Civil Liability Act 2003 (Qld). The law in Queensland does not restrict a person from claiming damages for pure mental harm. Specifically, there is no requirement for the plaintiff to be at the accident scene at the time of the accident. This only applies to claims governed by the Civil Liability Act 2003 (Qld)
Motor vehicle accidents frequently occur on Australian roads. Many of these accidents can result in a family member or loved one experiencing a psychiatric injury (nervous shock) as a result of a sudden and unexpected death of a loved one caused by a motor vehicle accident.
If the elements of negligence and nervous shock claims are met, as outlined above, a person may have a right to pursue a common law claim for damages for nervous shock.
There are strict time limits that apply to personal injury claims including claims for nervous shock. If a claim is not commenced prior to the expiry of these strict time limits the claim may be deemed to be statute barred, meaning a person may no longer have the legal right to pursue the claim.
Evolve Legal assists individuals with tailored legal advice to fit their individual needs. Call Evolve Legal today on 1300 025 101.