Negligence and Nervous Shock

Suffering nervous shock as a witness to an accident

What happens if you have witnessed an accident and suffer nervous shock or psychiatric problems as a result? It is not uncommon for a witness to have a severe nervous reaction when they have witnessed an accident or incident. However, successfully making a legal claim for compensation for nervous shock from the party at fault is no simple matter.

What is ‘nervous shock’?

The term ‘nervous shock’ means a psychiatric condition or injury suffered by an individual as a result of events which have occurred due to the intentional or negligent acts or omissions of another person.

For a successful claim for nervous shock, the mental condition or injury must be recognised as a genuine psychiatric disorder – fright and terror are not sufficient. For example:

  • Post-traumatic stress disorder
  • Depressive disorders
  • Adjustment disorders
  • Anxiety disorders

What about extreme grief and sorrow?

If a person is suffering from extreme grief and sorrow but this falls short of a recognised psychiatric illness, they will not be able to bring a claim for nervous shock. Bereaved individuals are usually expected to be able to deal with grief and sorrow in time.

When might a claim for nervous shock arise?

A compensation claim for nervous shock may be likely when an individual suffers a severe mental or emotional reaction when witnessing an accident in which, for instance, a loved one is injured or killed. That reaction may be so severe to as to cause a recognisable psychiatric condition (see above).

Claim for nervous shock

Making a legal claim for compensation for nervous shock has never been easy. The bar is particularly high in establishing a claim because the courts are wary of the floodgates principle. If a claim for nervous shock is allowed, how many more such claims – perhaps spurious – will be made, whether after the same incident, or in a separate accident?

The key things that must be proved in any personal injury compensation claim is negligence on the part of the person at fault (the defendant), and that the injury was caused by that negligence. Critically, the defendant must have owed a duty of care toward you.

In the case of nervous shock, it is much harder to prove that a defendant’s negligence directly caused a mental injury or condition (‘psychiatric damage’ in courtroom parlance). To prove this,
you will have to produce medical evidence (usually a psychiatric report) demonstrating that you have suffered or developed a recognisable psychiatric condition. Even if you have the psychiatric evidence in support of your mental injury or condition, proving a causal link between that and what you witnessed can be difficult.

However, over the years, the courts have given useful guidance on how they will deal with cases involving claims for nervous shock. Notably, principles relating to primary and secondary victims, and a test of foreseeability have been established.

Primary and secondary victims

‘Primary victims’ are more likely to succeed in a claim for nervous shock than ‘secondary victims’. A primary victim is an individual directly involved in the accident/incident and was exposed to the risk of injury. The court has helpfully described a primary victim as someone “who was involved, either mediately or immediately as a participant”.

Secondary victims are others who merely saw or heard the accident as a witness. The court has described secondary witnesses as “no more than a passive and unwilling witness of injury caused to others”. In other words, a secondary victim is someone who suffers psychiatric injury solely as a result of witnessing the injury or endangerment of another. Being told about an accident is not enough.

Reasonable foreseeability

To succeed in a claim for nervous shock, you must show that there was a foreseeable risk that someone of ordinary fortitude would suffer psychiatric injury in the circumstances; and that the mechanism by which the injury was suffered can properly be described as “the sudden appreciation by sight or sound of a horrifying event”.

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For more information on:

  • What can I do if I suffer nervous shock as a secondary victim?
  • Can I claim for damages if I suffer a psychiatric illness after identifying the body of a loved one?
  • What if the body is not identified at the scene of the accident?