Page 1403 - Week 05 - Thursday, 13 May 1993
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The basis of a nervous shock action is a claim by a person that he or she suffers from a psychiatric illness caused by emotional shock resulting from a negligent act of another person. The term "nervous shock" was defined by His Honour Mr Justice Brennan of the High Court in the case of Jaensch v. Coffey as:
... the sudden sensory perception - that is, by seeing, hearing or touching - of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff's mind and causes a recognisable psychiatric illness.
Mr Humphries: That is very workable.
Mr De Domenico: Snakes and spiders.
MR CONNOLLY: Having to confront the Opposition on a regular basis. An example would be where a child is severely injured in a motor vehicle accident and a parent of the child acquires a psychiatric illness triggered by observing the accident or the resulting injuries to the child. The present common law of negligence was first formulated by the English law lords in 1932 in a famous case concerning a consumer's encounter with a bottle of ginger beer containing the remains of a decomposed snail. The essence of the law of negligence was expressed in these words:
You must take reasonable care to avoid acts and omissions which you can reasonably foresee would be likely to injure ... persons who are so closely and directly affected by your act that you ought reasonably to have them in contemplation when you are directing your mind to the acts or omissions which are called in question.
In the early years after the common law was developed to this point the courts were reluctant to award damages in nervous shock actions. For example, the Australian High Court in Chester's case in 1939 decided that a local council:
... was not liable in negligence for nervous shock suffered by a mother as a result of seeing the body of her seven-year-old son being recovered from a water-filled trench which the council had excavated in a public street and negligently failed to fence or otherwise render safe.
Following that decision several Australian jurisdictions enacted legislation to ensure that damages could be obtained by a person who suffered from psychiatric illness caused by nervous shock in such circumstances. In the Australian Capital Territory this was done in 1955 when the Commonwealth included such provisions in the Law Reform (Miscellaneous Provisions) Ordinance. At the time of self-government that ordinance became a Territory Act. The Act provides that such actions for damages caused by nervous shock can be brought only in the Supreme Court.
The Law Society of the Australian Capital Territory has recently written to me proposing that the Act be amended to enable actions for nervous shock to be brought in the Magistrates Court where the amount of damages claimed falls within the $50,000 monetary limit of that court. I appreciate the advice of the Law Society in this matter and I am pleased to take up its suggestion which, will result in improved access to justice and reduced costs. Whatever may have been
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