Nervous shock & psychiatric claims after the loss of a child
16th Feb 2017
As a recent first-time parent, the thought of losing my child is totally incomprehensible. It brings a tear to my eye to even think of it.
As such, I cannot begin to imagine the despair suffered by the parents of the infant, John, who tragically died in 2016 as a result of being erroneously treated with nitrous oxide instead of oxygen. This incident occurred in the neonatal resuscitation unit at Bankstown-Lidcombe Hospital (NSW) due to an alleged incorrect installation of gas pipes.
I am sure that every parent, if confronted with such a horrific situation, would feel no monetary sum could ever make up for their loss. However, I imagine that many would rightly believe that they should be entitled to claim compensation from the negligent parties whose actions or inactions have caused the death of their child.
However, the law in Australia as it currently stands in relation to the entitlement of such grief-stricken parents to claim compensation has the capacity to compound a parent’s grief in such circumstances and generate more than justified contempt towards the legal system. Particularly given the widely accepted view across the community would be that entitlement to compensation in such horrific circumstances would be considered both reasonable and appropriate.
Currently, the law stipulates that parties, such as the parents of a child who dies as a result of another party’s negligence, can recover damages only if they can establish that they suffered a recognisable psychiatric illness as a result of the death. This is in circumstances where there is no entitlement to a loss of dependency claim.
These claims, commonly referred to as nervous shock claims, can be a particularly challenging process for traumatised parents. A parent must be able to demonstrate that they suffer from a psychiatric illness such as depression, an adjustment disorder or post-traumatic stress disorder in order to succeed with such a claim.
If a parent is not diagnosed as suffering a psychiatric illness, they will not be entitled to recover damages in a nervous shock claim for their bereavement alone.
This represents a glaring hole in the law in Australia and contradicts a fundamental ethos of the law, by potentially failing to ensure that a victim of negligence is entitled to compensation.
It is my view that the law is in need of urgent reform to allow the payment of bereavement damages, in addition to the existing legal rights to compensation through a nervous shock and/or dependency claim in cases where a loved one has died prematurely due to the clear negligence of a third party.
Such awards could be made without there being any need to go through the process of establishing that a psychiatric illness had been sustained.
Bereavement awards of this nature are currently paid in the United Kingdom and in certain US states and are aimed at providing a regulated sum of compensation to serve as recognition of the grief and trauma suffered, as well as a means of public and legal recognition that the death was wrongful.
Kaine Shanahan is an Associate at Gouldson Legal, a Queensland personal injury plaintiff litigation firm.
Kaine has practised since 2007 in NSW, London and Queensland, predominantly in the area of personal injury law.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).