In New South Wales, the impact of traumatic incidents often extends beyond the directly injured party. Bystanders — individuals who witness accidents or traumatic events — may suffer severe psychological harm, even if they were not physically injured themselves. The question that arises is: can bystanders who develop psychological injuries as a result of witnessing an incident make a compensation claim?
What Is a Bystander Psychological Injury?
A bystander psychological injury refers to a mental or emotional condition, such as post-traumatic stress disorder (PTSD), anxiety, or depression, suffered by a person who witnesses a distressing or violent event. Common examples include:
- Witnessing a serious car accident
- Observing a family member being injured or killed
- Seeing a workplace incident resulting in death or trauma
- Watching a medical emergency unfold due to negligence
Psychological injuries may manifest as flashbacks, nightmares, emotional distress, and functional impairments that disrupt a person’s daily life.
Legal Basis for Bystander Claims in NSW
Bystander psychological injury claims fall under common law negligence and are governed by the Civil Liability Act 2002 (NSW). To succeed in such a claim, the bystander must establish that:
- A duty of care was owed to them by the defendant;
- The defendant breached that duty of care through negligent action or omission;
- The breach caused the psychological injury;
- The injury is recognised under law as a compensable psychiatric condition, diagnosed by a qualified medical professional.
The rulings in Tame v New South Wales; and Annetts v Australian Stations Pty Ltd, clarified the circumstances where bystanders may be entitled to compensation if the psychiatric harm suffered was foreseeable and the defendant owed a duty of care.
However, courts apply strict scrutiny to such claims, especially in determining whether the psychiatric injury was foreseeable and whether the relationship between the parties justifies the imposition of a duty of care.
Who Can Claim?
The likelihood of a successful claim is generally higher when the bystander is:
- A close family member of the injured or deceased person
- Physically present at the scene or immediately after the event
- Exposed to the trauma in a sudden, direct and shocking manner
- Notified in a distressingly graphic way (such as through unexpected confrontation with injury or death)
For example, a mother who witnesses her child being hit by a car may be eligible to claim psychological injury compensation. On the other hand, someone who hears about an incident second-hand or sees it in the media is unlikely to qualify.
What Compensation Is Available?
If a claim is successful, compensation may include:
- Medical and psychological treatment costs
- Loss of income (including future earning capacity)
- Pain and suffering
- Home care and support services
- Out-of-pocket expenses
Each claim is evaluated on its individual circumstances, with medical evidence playing a crucial role in demonstrating the extent and impact of the psychiatric injury.
What to Do If You Think You’ve Suffered a Psychological Injury as a Bystander
If you believe you’ve experienced a psychological injury after witnessing a traumatic event, it’s important to take action early.
- Start by seeking help from your general practitioner or a qualified psychologist or psychiatrist, who can assess your condition and provide a formal diagnosis if necessary. Ensure that your symptoms and the circumstances of the incident are properly documented.
- Keep records of all medical appointments, treatments, and any time off work. If the incident involved negligence — such as a car crash or workplace accident — report the event to the appropriate authorities where possible.
- Early legal advice is strongly recommended, as delay in recognising or reporting symptoms could affect a claim's viability.
At Law Advice Compensation Lawyers, we are experienced in complex personal injury matters achieving great results for our clients. We can advise you on your rights, medical evidence requirements, and the prospects of a successful claim.