In some circumstances you may be entitled to claim compensation if you are diagnosed with a psychological injury after dealing with the trauma of a loved one suffering serious injury, where that injury is the result of the negligence of others. This is commonly known as a “nervous shock” claim.
In the recent Supreme Court decision of Ramsay Surveyors Pty Ltd v Toplace Pty Ltd & Others; Khouri v Toplace Pty Ltd & Others; Khouri v Toplace Pty Ltd & Others [2023] NSWDC 53 (13 March 2023) a worker and his mother were both awarded compensation after the worker suffered serious injury in the course of his employment.
On 25 January 2018, Mr Michael El Khouri suffered injury whilst working for Ramsay Surveyors when he had fell through a formwork penetration at a site in Granville and a steel concrete reinforcing bar became impaled in his leg. The principal contractor of the site was Toplace and Summit was a formwork contractor erecting concrete formwork on the site. Mr El Khouri made multiple claims under the Workers Compensation Act 1987 (NSW) as he was employed whilst he was injured and the Civil Liability Act 2002 (NSW) as other entities contributed to his injury.
For the purposes of understanding who is liable for this injury, the District Court of NSW heard evidence from multiple witnesses with regards to when toolbox talks occurred, what was discussed during these toolbox talks, what caused the accident and obtained evidence from expert witnesses in construction as to who was at fault and whether Mr El Khouri walking in that area was dangerous. His Honour Fitzsimmons accepted Mr Khouri’s evidence and found him to be a credible witness and his honour was not satisfied that Mr Khouri damages should be reduced for contributory negligence for walking in an area after being told to walk carefully in an area where there is concrete penetrations.
Mr Khouri was awarded damage in the amount of $520,000 after an apportionment of liability was made by the District Court of NSW between Toplace, Summit and Ramsay.
Mr Khouri’s mother Mrs Hana Khouri suffered a psychological injury after she was contacted by someone who had advised that her son was involved in an accident. She drove directly to Westmead Hospital and saw her son exit the ambulance; she was unable to speak to him other than initial greeting. Mrs Khouri had seen Mr Khouri in great discomfort, seemed very distressed and frightened with his leg in a large cast. After a month, Mr Khouri was discharged from hospital and returned home where she was depressed at what had happened to her son. Overtime she began seeing a psychologist and suffered an anxiety attack where she passed out and she was admitted to St George Hospital. Multiple Medico-Legal specialist assessed Mrs Khouri who found her way of life has deteriorated since the accident, including frequent flashbacks of the event and significant loss of sleep daily.
As a result of the negligence caused by Toplace and Summit, Mrs Khouri was successful in making a nervous shock claim under the Civil Liability Act 2002 (NSW). She could not make a claim under the Workers Compensation Act 1987 (NSW) due to the addition of Section 151AD baring family members of workers from making nervous shock claim. Mrs Khouri was awarded damages for non-economic loss, treatment and domestic assistance.
Mr Khouri was awarded $520,000 and Mrs Khouri was awarded $204,104.84 as a result of this accident.
If you or your family member has suffered a serious accident and your family member has suffered a psychological injury it is crucial that you obtain legal advice from a solicitor to be notified of your legal rights. Chamberlains has a team of experienced personal injury lawyers who are able to assist. Contact our injury and compensation team today.
Source: Chamberlains
