The devastating effects of a serious accident are rarely confined to those who are physically injured. When a loved one suffers a fatal or serious injury, family members can be left struggling with overwhelming grief, emotional trauma and lasting psychological consequences.
That psychological toll can stem from being told of the death or serious injury to their loved one or simply coming to terms with their once unimaginable reality over time.
In these circumstances, courts have long recognised an actionable claim for psychiatric harm provided the accident was negligently caused by someone other than their loved one. This type of claim is referred to as “nervous shock”.
One of the primary barriers to “nervous shock” claims being pursued is proving that the psychological harm has extended beyond mere grief and has given rise to a recognised psychiatric disorder.
This is because grief is considered to be a normal pathological response to loss, being a universal human experience. But grief alone is not a psychiatric disorder and, consequently, is not sufficient to establish a cause of action when it comes to a claims process.
Nervous shock claimants commonly receive diagnoses of depressive disorders or PTSD. However, it is not uncommon for grieving family members to fall below the diagnostic features of either, or any, disorder.
Instead, if their psychological suffering is simply labelled as grief or bereavement, they have no legal recourse for compensation. That may now be changing with the recognition of Prolonged Grief Disorder.
The reference book for the diagnosis of psychiatric disorders is the Diagnostic and Statistic Manual of Mental Illnesses. The most recent edition, being DSM-5-TR, has changed the landscape for nervous shock claims by introducing a new diagnosis of Prolonged Grief Disorder.
Prolonged Grief Disorder is characterised by a prolonged grief reaction, extending beyond 12 months. It is defined by an intense yearning or longing for the deceased, or preoccupation with thoughts and memories of the deceased. In addition, since the death, at least three of the following symptoms must have been present most days:
• Identity and disruption;
• Marked sense of disbelief about the death;
• Avoidance of reminders that the person is dead;
• Intense emotional pain related to the death;
• Difficulty reintegrating into one’s relationships and activities after the death;
• Emotional numbness as a result of the death;
• Feeling that life is meaningless as a result of the death;
• Intense loneliness as a result of the death.
For people suffering from Prolonged Grief Disorder and seeking to make a claim, it must also be demonstrated that the grief disturbance causes impairment in social, occupational or other areas of functioning, that the bereavement reaction exceeds expected norms and that the symptoms are not better explained by some other psychiatric diagnosis.
Prolonged Grief Disorder has been described as a disorder of attachment. Viewed in that context, it is perhaps unsurprising that studies have shown emotional dependence on the deceased to be a high-risk factor for development of this disorder.
When emotional dependence is combined with an unexpected loss resulting from a non-normative life event such as an injury or accident, the likelihood of a prolonged emotional reaction naturally increases.
Everyone experiences grief differently. While most people gradually adapt to their new life, others continue to suffer profound emotional and psychological effects long after the loss.
The recognition of Prolonged Grief Disorder acknowledges that some forms of grief can become serious mental health conditions. For families affected by a traumatic accident, it may also provide a clearer pathway to obtaining support and compensation where that suffering has been caused by another person’s negligence.
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