Developments in Nervous Shock Claims

Summary

The seminar reviews developments in Australian claims for nervous shock, now generally described in legislation as mental harm. It focuses on claims by people indirectly affected by injury or abuse, and on the implications of a recent High Court decision concerning institutions’ non-delegable duties.

1. What a mental-harm claim generally requires

The speakers distinguish pure mental harm—psychiatric injury without physical injury to the claimant—from mental harm that follows physical injury to the claimant.

For a pure mental-harm claim, the claimant generally needs to establish:

• A recognized psychiatric illness, rather than simply grief, sadness, or distress. Expert evidence is important.
• A duty of care, breach of that duty, and a causal connection between the breach and the psychiatric illness.
• That psychiatric injury was reasonably foreseeable under the applicable legal test. The relevant question is not simply whether the particular claimant was unusually vulnerable; it is whether a person of ordinary fortitude might suffer psychiatric illness in the circumstances.
• Any additional statutory or common-law requirements applicable to the claim. The presentation refers to close family relationships, witnessing an event or its aftermath, and the normal-fortitude test, while noting that the details depend on the circumstances and jurisdiction.

The speakers also emphasize that Australian statutory rules differ from the UK’s common-law approach, so UK cases cannot automatically be applied in New South Wales.

2. Secondary victims have separate claims

A person claiming psychiatric injury as a secondary victim brings a separate cause of action from the primary victim—the person directly injured or abused.

Practical consequences include:

• A parent may potentially act as a child’s litigation guardian while also bringing a separate claim for their own psychiatric injury.
• Defences that apply to the primary victim—such as the primary victim’s voluntary acceptance of risk—do not necessarily defeat the secondary victim’s independent claim.
• The primary victim does not always need to have a viable claim of their own. For example, their claim may be unavailable because of a limitation period, but that does not necessarily mean the defendant’s conduct was not wrongful for the secondary victim’s claim.

The speakers use Biggs v O’Connor as an example of the separation between the two claims.

3. Foreseeability and claims by people who were not present

The discussion traces the development of nervous-shock law from early cases involving people who learned of an accident or its aftermath rather than witnessing the event itself.

The speakers highlight these principles:

• A claimant need not always be physically present when the primary injury occurs.
• Foreseeability of physical injury alone may not be enough; the relevant issue is whether psychiatric injury was foreseeable.
• A secondary victim’s psychiatric injury may result from learning about an event later, rather than directly witnessing it. The presentation discusses a claim by the father of a person allegedly abused by George Pell, in which the father learned of the abuse years later.

4. High Court decision on institutional non-delegable duties

A central topic is the High Court’s decision, identified in the subtitles as AA v Diocese of Maitland-Newcastle. The case concerned historical sexual abuse of a child by a priest and whether the Diocese owed a non-delegable duty of care—a duty to ensure that reasonable care was taken, even where the relevant work was carried out by someone else.

The speakers explain that the High Court majority:

• Held that the Diocese could owe a non-delegable duty to the child.
• Held that such a duty could be breached by the delegate’s intentional criminal conduct.
• Overturned the earlier rule in Lepore that an intentional criminal act could not breach this kind of duty.
• Treated the Diocese’s liability as direct liability for breach of its own duty, rather than merely liability for another person’s actions.

The presentation identifies six relevant indicators for a non-delegable duty:

1. Care, supervision, or control: The defendant has assumed, or is placed in a position to assume, responsibility for the claimant’s safety.
2. Vulnerability: The claimant is particularly vulnerable, as children commonly are.
3. Assumption of responsibility and a special relationship: The relationship places the claimant in the defendant’s care or makes the defendant responsible for them.
4. Practical control: The defendant has practical control over the circumstances, such as appointments or systems.
5. Foreseeability: The relevant foreseeable harm may be bodily injury to a child; the institution need not necessarily have foreseen the precise form of abuse.
6. Analogy with established categories: The Court saw no principled reason to distinguish the Diocese from other institutions, such as schools, that may owe comparable duties.

The duty described in the discussion is limited: the child must be under the priest’s care, supervision, or control, and the priest must be acting in connection with priestly functions. The institution is not automatically an insurer; foreseeability and causation must still be established.

The speakers also discuss why damages were reduced. They describe an interaction between provisions of the Civil Liability Act: the offender’s intentional conduct was treated differently from the Diocese’s direct breach of a non-delegable duty, affecting whether statutory limits applied.

5. Potential implications for hospitals and other institutions

The speakers suggest that the decision may have implications beyond religious institutions, including private hospitals. It may affect arguments over how responsibility is divided between a hospital and independent or visiting medical practitioners.

They do not suggest that every hospital will automatically owe a non-delegable duty in every case. The relevant issues will depend on the facts, including the institution’s role, control, systems, and relationship with the patient.

6. Medical negligence and conflicting duties

The seminar contrasts Australian developments with a UK Supreme Court decision concerning psychiatric injury to relatives who witness a patient’s death or serious medical deterioration. The UK approach discussed is that doctors generally owe their duty to the patient, not to protect family members from the distress of witnessing the patient’s condition or death.

The speakers then consider Australian cases involving conflicting duties:

• In Sullivan v Moody, the High Court rejected claims where recognizing a duty to the alleged abusers would conflict with professionals’ duties to investigate or report suspected child abuse.
• In the New South Wales case referred to as McKenna, the majority found a possible duty in circumstances where a hospital had a direct relationship with the secondary victim and control over a discharge decision. The discussion notes that the majority did not treat the door to such claims as entirely closed.
• A dissenting view emphasized that a proposed duty may be untenable if it conflicts with statutory obligations or has no clear limits.

The practical point for defendants is to identify and plead any genuine conflicting duties. The speakers suggest that courts may need to clarify how a duty to a relative can coexist with a doctor’s duties to the patient.

7. Employer liability and proof of what the claimant experienced

The speakers discuss a recent Court of Appeal matter involving a worker who claimed psychiatric injury after an incident at a loading dock. The claimant’s account of what he saw was contradicted by surveillance footage, and expert evidence had relied on an inaccurate account of the event.

The key lessons are:

• The claimant must prove what they actually experienced and connect that experience to the psychiatric injury.
• Expert opinions based on an incorrect factual account may not establish causation.
• Contemporaneous evidence, including video, can be important.
• The normal-fortitude test should not be confused with the claimant’s personal mental-health history. The question is whether a person of ordinary fortitude might have suffered psychiatric illness in the same circumstances.

8. Possible growth of claims connected with childcare

The presenters identify childcare settings as a potential area of future nervous-shock litigation. Very young children may not remember or even know about abuse, while parents may learn about it years later through police investigations or discovered footage.

They recommend examining the full chain of institutional conduct:

• What safeguarding systems and reporting procedures were in place?
• Were there earlier allegations or warning signs at another centre or institution?
• Could reporting failures have allowed an offender to move between settings?
• Which organisations had responsibility or control at each stage?
• What does each relevant insurance policy cover, for what period, and subject to what limits?

They note that insurance limits may be inadequate where there are multiple claimants, and that coverage may be affected by policy wording, timing, or an organisation’s disappearance or insolvency.

Speakers and sources featured

Speakers

• Tim Hackett — barrister and presenter.
• Justina Smith — barrister and presenter; the subtitles also render her name as “Justine.” The video metadata gives “Jacinta,” so the name is inconsistent in the supplied material.
• Opening speaker/moderator — introduces the presenters and is addressed as “Don” in the subtitles; the identity is unclear.
• Audience members — ask questions during the closing discussion; they are not identified.

Cases and other sources mentioned

The subtitles contain some garbled case names. The following are listed as heard or identifiable from the discussion:

• Victorian Railway Commissioners v Coultas
• A Waverley Council case concerning a child who drowned in an unfenced trench; the case name is unclear in the subtitles.
• Tame v New South Wales
• Annetts v Australian Stations
• Gifford v Strang Patrick Stevedoring
• Biggs v O’Connor
• Jaensch v Coffey (the 1984 High Court case discussed)
• RWQ v Pell (as rendered in the subtitles; the precise case name is unclear)
• AA v Diocese of Maitland-Newcastle
• Lepore
• Burton v De Vere
• Woodland v Swimming Teachers Association
• Paul v Royal Wolverhampton NHS Trust (the UK cases concerning relatives’ psychiatric injury are discussed, though the case name is not clear in the subtitles)
• Sullivan v Moody
• McKenna (as rendered in the subtitles; the full case name is unclear)
• A 2024 Court of Appeal employer-liability case involving a loading-dock death; the case name is not supplied.
• A book about H. V. Evatt’s life and the development of nervous-shock law in Australia, attributed in the subtitles to “Gideon Gage”; the author’s name may be mistranscribed.