INTRODUCTION
1. As the authors of Fleming’s The Law of Torts have observed, this area of the law is “short on principle and predictability”[1].
2. Many medical negligence proceedings include claims for what was referred to in the common law as ‘nervous shock’. As with other aspects of the common law in general and medical negligence in particular, such claims must now be considered within the context of the Civil Liability Act 2002 (NSW) (the Act). This paper outlines some fundamentals of the application Part 3 of the Act to claims for what is now known as ‘mental harm’ in the specific context of medical negligence claims.
3. Typically, claims for nervous shock in medical negligence matters arise in circumstances where there is an adverse medical outcome for a patient of a hospital or doctor leading to a claim being brought by against the hospital or doctor by relatives of the patient. Often, such claims are brought by parents of infant plaintiffs in obstetric matters.
4. While obstetric claims are usually significant claims, there appears to be a nascent effort, at least on the part of some plaintiff’s firms, to commence nervous shock proceedings on behalf of relatives of patients in relatively minor claims. Anecdotally, some firms appear to have become increasingly emboldened to commence such nervous shock claims where a breach of duty is admitted or relatively easy to establish even where the patient’s injury and disability is minor or fully resolved.
5. The Act commenced on 20 March 2002. On 2 September 2002 the High Court handed down its decision in Tame v NSW and Annetts v Australian Stations Pty Limited [2]. On 6 December 2012 Part 3 of the Act commenced.
6. In understanding and applying the present statutory framework, it is both helpful and useful to understand the law as it existed prior to the enactment of Part 3 of the Act. The development of the law in relation to claims for nervous shock involved consideration of facts occurring other than in the context of medical negligence. The principles, however, remain relevant.
1. Fleming’s The Law of Torts, 10th Edition, 2011, C Sappideen and P Vines at 182.
2. (2002) 211 CLR 317.
