If you have suffered a psychological injury after the death of a close family member in an accident you could be entitled to compensation for the loss and damage you have suffered. RMB Compensation Lawyer MELISSA PACHECO explains how nervous shock claims work.

For the purposes of what are commonly known as nervous shock claims, a "close family member" is defined by law to be a parent or other person with parental responsibility; spouse or partner; child, stepchild, or person for whom the victim has parental responsibility; and siblings. 

Where that relationship exists, the next question to consider is whether the person bringing the claim has suffered a recognisable psychiatric illness, such as post traumatic shock disorder (PTSD), depression, anxiety, adjustment disorder and other personality disorders.

Distress, grief and shock as a normal response to a particular event do not typically constitute a psychiatric illness. Your lawyer will need to seek an opinion from a medical expert that a recognised psychiatric illness exists. Without that opinion, the entire claim will fail.

Negligence on the part of the wrong-doer must also be established. In a motor vehicle accident, for example, there must be fault on the part of another party or driver. The claim is then lodged against the Compulsory Third Party (CTP) insurer of that person/driver at fault.

Where there is no CTP insurer, the claim is made against the Nominal Defendant. If a person gets killed in an accident at work (and they are under the care of a third party), at a public site, by a faulty product or because of failed medical treatment, that same type of claim may be available where there exists a duty of care and negligence that causes or materially contributes to a person’s psychological injury.  

Such claims are governed by the Civil Liability Act 2002. Should they satisfy the relevant criteria, the person bringing the claim would be entitled to compensation for pain and suffering and past and future wage loss, medical and treatment expenses, care and domestic assistance. 

The Motor Accidents Injuries Act 2017 applies to legally defined motor vehicle accidents and is more restrictive in terms of what a person can claim. Statutory benefits, including income benefits and treatment expenses, are available immediately. A claim for lump sum damages may also be available, (generally two years post-accident). It also includes compensation for pain and suffering (if the impairment threshold is met) and past and future wage loss.