- A claimant is not considered to have suffered consequential mental harm in the absence of evidence of physical injury. If they suffered pure mental harm, the statutory limitations on recovery that arise under the Civil Liability Act 2002 (NSW) (the CLA) apply.
- In proving causation pursuant to s 5D of the CLA, the Court is required to determine whether the negligence is a necessary condition of the occurrence of the harm.
- A diagnosis of post-traumatic stress disorder (PTSD) arising from trauma or stress of an event of which a claimant has no recollection is fundamentally flawed.
The plaintiff, aged three-and-a-half months old at the time, was a restrained passenger in a motor vehicle accident which occurred on 6 May 2014. The plaintiff’s mother, the defendant, admitted a breach of duty of care.
As a result of the accident, the plaintiff claimed to have suffered psychological injury or mental harm. In accordance with the defendant’s account, the plaintiff was asleep at the time of the accident but awoke as a result of the collision.
Given the plaintiff’s age and in light of the fact that the plaintiff failed to call the defendant to give evidence, the hearing proceeded on documentary evidence only. The medical evidence, largely constituting representations made by the defendant, was not tested in cross-examination. The District Court of New South Wales (the Court) observed that as the representations had not been tested, in the absence of contemporaneous evidence to corroborate the defendant’s account, a cautious approach needed to be adopted.
Relevantly, the defendant suffered a psychiatric condition resulting from the accident and there was evidence that this may have impacted the relationship between her and the plaintiff.
The Court entered judgment for the plaintiff in the sum of $84.60 with the question of costs reserved. The finding gave rise only to an entitlement to past treatment expenses reflecting the cost of medical assurance that no physical injury had been sustained.
Whether the plaintiff suffered consequential mental harm
The Court found that the plaintiff did not suffer a physical injury and, as such, there had been no consequential harm. The question to be answered was whether there had been pure mental harm. If so, the statutory limitations arising under the CLA would apply.
Whether the plaintiff suffered pure mental harm caused by the negligent act
Preferring the opinion from the defendant’s expert psychiatrist, the Court found that the plaintiff did not suffer any recognised psychiatric illness, as required by s 31 of the CLA. Even if the Court was wrong on this issue, it was found that any irregularities in the plaintiff’s behaviour were the result of his relationship with the defendant, who had suffered her own psychiatric injury in the accident.
Even if the plaintiff had suffered a recognised psychiatric illness as a result of the accident, s 30(2) of the CLA precluded recovery of damages because he didn’t witness any injury, having had no recollection of what occurred.
Although the Court accepted the joint experts’ opinion that a recognised psychiatric illness had failed to materialise, the case reinforces the operation of the causation test under s 5D of the CLA. In proving causation pursuant to s 5D, the Court is required to determine whether the negligence is a necessary condition of the occurrence of the harm.
This case demonstrates the importance of delineating consequential mental harm from pure mental harm. If there was no physical injury, the statutory restrictions under the CLA relating to pure mental harm apply. The claimant must prove not only the occurrence of a recognised psychiatric injury, but also that the psychiatric injury was caused by the accident and not via other means, such as the disruption to an infant’s relationship with his injured mother. The claimant must have witnessed the occurrence. If the claimant had no recollection of the accident due to their young age, the requirement is not met.
The last mentioned finding may be open to question. Is it correct to state that because a claimant cannot recall an event, they didn’t witness it? Regardless, in this instance the Court accepted evidence that it is not possible for infants to form traumatic memories and this precludes any diagnosis of PTSD. As such, it may be difficult for infant claimants to prove the occurrence of a recognised psychiatric disorder.
 Wilson DCJ.