Under Part 3 of the Civil Liability Act 2002 (NSW) (“the Act”) a claim of damages for pure mental harm may arise where the claimant suffers a recognised and diagnosable psychiatric injury as the result of mental or nervous shock in connection with another person (ie the other victim) being negligently killed, injured or put in peril.
The categories of persons who can claim under Part 3 of the Act are as follows:
1. Someone who witnessed, at the scene, the victim being killed, injured or put in peril; or
2. A close family member of the victim (eg parent, partner, child, sibling).
An example of the first category is a person suffering a psychiatric injury after witnessing a stranger being injured in a motor vehicle accident resulting from another person’s negligence. An example of the second category is the deceased’s victim’s child (including either step or half child) later being told about their parent’s death and, as a result, experiencing a psychiatric injury such as posttraumatic stress disorder or an adjustment disorder.
There is an important distinction between “pure mental harm” and “consequential mental harm” under the Act. In relation to the situation outlined above, both the stranger and the child have suffered pure mental harm. Now imagine a different situation where the parent did not die in the motor vehicle accident, but instead broke their leg. If the parent then becomes depressed as a result of their morbidities, they are said to have suffered consequential mental harm.
A duty of care exists only where the person who has caused another to suffer mental harm ought to have foreseen that a person of normal fortitude might, in the circumstances, suffer if reasonable care was not taken. The psychological vulnerability of people varies.
Legally, a person cannot be expected to take greater precautions than would ordinarily be necessary. Although, the court may still consider what the person knew or ought to have known about the vulnerability/fortitude of the injured person.
It must be established (generally by way of expert evidence) that the injured person has suffered harm in the nature of a recognised psychiatric illness, although the Act does not specify which psychiatric illnesses meet this classification. As a matter of practice, the Diagnostic and Statistical Manual of Mental Disorders is frequently applied to determine whether a person has suffered a recognised psychiatric illness.
Where it is evident that a person of normal fortitude would have suffered pure mental harm as a result of another’s act or omission, any harm suffered is compensable. This is referred to as the egg-shell skull rule. Simply put, the person who has suffered pure mental harm can claim over and above what would ordinarily be expected, provided a person of normal fortitude would have suffered a recognisable psychiatric illness.
Damages for non-economic loss (or general damages) is payable for things such as pain and suffering, loss of use, loss of enjoyment of life, etc. There are restrictions as to the amount which can be awarded. Any award depends largely on where a person sits on the relevant scale under the Act as a percentage comparison with the class of cases the Court might consider to be ‘most extreme’. The amount of damages payable for non-economic in the most extreme case currently sits at $658,000 (as at 1 October 2019) and is indexed in April and October each year. To receive damages a person must be at least 15% of the most extreme case.
Out of Pocket Expenses
This includes compensation for past and future medical, psychological and psychiatric treatment, as well as pharmaceutical, travel and miscellaneous expenses. Future expenses are discounted by what is known as a ‘multiplier’ – which recognises the value of receiving money now for a future expense. Future expenses are also discounted for vicissitudes (ordinarily by 15%), to account for the uncertainties of life (eg the chance of promotion/demotion, winning the lottery, premature death, intervening illness, disaster, remarriage, etc).
A person can recover damages for both past income loss and future loss of earning capacity, where applicable. When calculating damages for economic loss, the court must disregard any amount which exceeds three (3) times the average weekly earnings. A person is also entitled to claim for any loss of superannuation.
Special damages may be payable to cover costs associated with gratuitous and/or commercial care. A person must meet the threshold in order to claim for gratuitous care – being six (6) hours of care per week for a period of at least six (6) consecutive months.
Pursuant to section 30(5) of the Act, where more than one person would qualify as spouse or partner of the victim, only the last person to so qualify is entitled to claim damages for pure mental harm. “Spouse” or “partner” is defined under the Act to include husbands, wives and de facto partners. Under the Interpretation Act 1987 (NSW), a person can simultaneously be married and in a de facto relationship. This means if a person marries but later enters into a de facto relationship, the husband/wife would not qualify for a claim arising by way of pure mental harm. Instead, the de facto partner is so entitled. This is quite a peculiar result.