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”.

Under the test for reasonable foreseeability, two distinct elements need be established:

  1. The relationship of the person to the individual involved in the accident
  2. The claimant was required to be close to the accident

Relationship: the closer the emotional tie the greater the changes of success.

Proximity to the Accident: the claimant must be proximate to the accident in both time and space. This could include individuals who did not witness the accident itself but who came upon the aftermath. Shock which resulted from being told by a third party would not be sufficient for a claim of nervous shock.

What can I do if I suffer nervous shock as a secondary victim?

The courts have held that a motorist has a right to expect that bystanders are people of reasonable fortitude and will be able to cope with the ordinary day-to-day horrors witnessed on the road. The only way in which a mere bystander to the accident who suffered a psychiatric injury as a result of witnessing the accident would be able to claim is if they had a close tie of love and affection with an individual hurt in an accident caused by the negligence of another.

A secondary victim will therefore only be able to make a claim if he or she can prove a close tie of love and affection.

Members of the emergency services are in a unique position: often, members of the emergency services suffer a recognisable psychiatric illness after witnessing the scene which they are called to. They may be able to make a claim as a primary victim or secondary victim, depending on the circumstances of the case. However, it appears they cannot make a claim against their employer even if they have not been sufficiently prepared or protected from nervous shock. In a high-profile case following the Hillsborough football stadium tragedy, the House of Lords held that an employer has a duty to protect his employers from physical – but not psychiatric harm.

Can I claim for damages if I suffer a psychiatric illness after identifying the body of a loved one?

There have been cases where a claimant has suffered post-traumatic stress disorder having had to identify the body of a loved one at the scene of the accident. In such cases, the court has held that where it was reasonably foreseeable a psychiatric injury would arise from an accident, the person who caused it had a duty of care. This means if someone identifies a body at the scene of the accident and suffer nervous shock, they can make a claim if they had a close tie of love and affection to the deceased.

What if the body is not identified at the scene of the accident?

The court has also had to consider a case of post-traumatic stress disorder suffered after a mother was asked to identify the body of her son 10 hours after the incident occurred. In this case, there was no successful claim for nervous shock as 10 hours after the incident could not be seen as the immediate aftermath.

The law relating to nervous shock is far from clear, and the existing case law demonstrates flexibility as to how the courts approach the issues in relation to primary and secondary victims. We recommend you take expert legal advice from personal injury solicitors if you believe you may have a claim for nervous shock.