Psychological injury because of death to family member

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The law recognises that if a person’s negligence caused the death of another person, then certain people who develop a mental illness because of the death may be able to claim for compensation for medical treatment, loss of wages and their pain and suffering.  These claims are called mental harm claims.

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What is a mental harm claim?

A mental harm claim is a claim for a mental illness which has been caused by another person.  The injury must be a diagnosed mental illness, such as an Adjustment Disorder, Major Depression or Anxiety.

Grief and sorrow, unless they are part of a diagnosed mental illness, are not classified as mental or psychological injuries.  Quite often, it is not until quite some time after the death that a person might be diagnosed with a mental illness.  So you do not have to immediately be injured.

Mental harm claims do not only arise because of deaths.  A person can claim for a mental injury even if they have not witnessed a death, or had a family member die because of another person’s negligence.  However, quite often mental claims arise because of deaths.

What must I show in a mental harm claim?

Each State or Territory has their own laws on when a person can make a mental harm claim.  There are some common aspects however to these laws.

To make a claim you must show:

1. A person owed you a duty of care to take reasonable steps not to cause you mental harm.
2. That you are a person of normal fortitude.
3. The person who owed you a duty of care breached their duty to you.
4. Because of the breached duty of care, you received a psychological injury.

In the ACT, if you satisfy these criteria, there are other aspects which a Court must look at to see whether you are eligible for compensation for your injury.  These are:

1. Did you receive a sudden shock which caused the injury?
2. Did you witness a person being killed, injured or put in peril? If you did, what was your relationship with the person?  Were they your parent, partner or child?
3. What sort of relationship you might have had with the person who caused the death of your family member.

You do not have to prove each of these points. However, they are relevant in the ACT in determining whether or not a person owed you a duty of care.  The law in NSW is very similar.

What does duty of care mean?

Duty of care refers to the duty a person owes another to avoid foreseeable risks of harm.  It is a complicated concept.  If a person breaches their duty of care they have been negligent.

What is normal fortitude?

The concept of normal fortitude is offensive and stigmatising in today’s world.  It perpetuates stigmatising ideas of ‘normal’ and ‘not-normal’ with mental illness.  Nonetheless, the law requires this concept be considered.

Normal fortitude looks at whether the person who breached their duty of care should be responsible for the way the person who is injured has responded.  For example, a Court case from NSW saw a person attempt to sue a pool operator for a psychological injury.  As a child, the injured person had cut their toe in a pool which apparently impacted on his football career.  A big issue in the case was whether he was a person of normal fortitude.  It was argued that he was not, and that he had particular mental vulnerabilities which affected the way he perceived what happened.  It was argued that a person of normal fortitude would not have responded in the way he did.  The Court agreed, saying the person’s response was out of all proportion to what might reasonably have been anticipated.  Therefore, the pool owed no duty of care to him.

Unfortunately, the law discriminates for psychological injuries.  For physical injuries, the law states that ‘you must take the person as you find them’.  This is called the egg-shell skull rule.  What this means is that if you negligently injure a person with brittle bones, for example, you are still liable for the injury.  Even if what you did would not injure a person with ‘normal’ bones, you are still liable for their injury.  Unfortunately, the law removes this rule for mental injuries.

What are examples of mental harm claims?

One example is when a person dies because of medical negligence.  A doctor owes a duty of care to the spouse of a patient.  It is a foreseeable for a doctor that if they negligently treat the patient and cause them death, then the spouse will likely experience emotional distress which may lead to a mental illness.

Another example is seen in employment relationships.  On 9 October 2018 the ABC reported that Dreamworld staff in Queensland were suing Dreamworld for psychological injuries caused by the river raft failure in 2016 which killed 4 people.  As an employer, Dreamworld owed its employees a duty of care to operate and maintain rides so that the risk of serious injury to a person was avoided or reduced.  It is a foreseeable risk that staff who witness traumatic injury and death may receive a psychological injury as a result.  Therefore, Dreamworld owes the staff a duty of care to avoid or reduce that risk of happening.

We have run many mental harm claims for people in the ACT and NSW.  Additionally, the significant majority of our medical negligence, motor vehicle accident and workplace injury claims have a psychological injury aspect.  These claims do not necessarily come under the category of a mental harm claim though.

What compensation for my injuries can I receive?

The types of compensation that may be awarded are:

1. Previous lost wages for your time off work;
2. If your injuries will affect your ability to work in the future, then your future lost wages;
3. The cost of treatment, medications, disability aids and pain relief in the past and future;
4. Care and assistance provided to you by family and friends;
5. Pain and suffering; and
6. Loss of enjoyment of life.

Mental harm claims are special claims

Mental harm claims need to be run be specialist lawyers, such as Elringtons.  This is because the law is complex, but also because of the complex nature of the facts.  Claims involving deaths are traumatic and need to be handled with care and compassion.

Sometimes claims involve a person who already had a mental illness.  Having a mental illness does not stop a person from making a claim as it does not mean that person was not of normal fortitude.  However, insurance companies will take any chance they can to avoid being liable for compensation.  Therefore, we must get an accurate history of a person’s symptoms and obtain the right evidence to show the injury.  Elringtons are experts in doing this.

About Elringtons

Elringtons is a South-Eastern NSW law firm based in Canberra and Queanbeyan.  We cater for all areas of Southern NSW.  We have particular expertise in health and medical law and personal injury law, as well as a range of other services.

For more information see our pages:

1. Health and Medical Law
2. Personal Injury

For more information or to make an appointment in either our Canberra or Queanbeyan office please do not hesitate to contact Matthew Bridger or Thomas Maling: