This article is written by Zikra Mansoor, from Aligarh Muslim University.

Introduction 

The law relating to nervous shock has a long history of recognition. The question of recovery for nervous shock (or psychiatric injury) negligently caused by another has been one which has perplexed various courts in various common law jurisdictions throughout the world since it was first established in the case of 

Byrne v Southern and Western Railway Co. In no area of tort, is the task of providing liability more difficult or more contentious than in the case of nervous shock where the victim claims is based on psychiatric damage. Where the damage is the result of the effects that are suffered by another due to carelessness of the tortfeasor. 

Defining Nervous Shock 

Medically speaking nervous shock would mean the following: circulatory failure marked by a sudden fall of blood pressure and resulting in pallor, sweating, fast (but weak) pulse, and sometimes complete collapse. Its causes include disease, injury, and psychological trauma. In shock, the blood pressure falls below that necessary to supply the tissues of the body, especially the brain. Under the English law of tort, the same is defined as follows: nervous shock or injury inflicted upon a person by intentional or negligent actions or omissions of another. It is most often applied to psychiatric disorders triggered by witnessing an accident, for example an injury caused to one’s parents or spouse. Although the term “nervous shock” has been described as “inaccurate” and “misleading” (Lord Keith and Lord Oliver, respectively, both in Alcock v chief constable of south Yorkshire)it continues to be applied as a useful abbreviation for a complex concept. 

Is Nervous Shock Worth protecting through the Tort System? 

We definitely need to address this question when we are dealing with a topic which took a bit long to get recognised. Do we compensate plaintiffs who suffer this type of loss, and if so why? The answer seems almost self-evident i.e., yes. Tort law protects the interests of the individual and adjudicates private wrongs. It is a judicial proceeding developed through case law in which the rules of evidence apply. Fault or negligence is an important issue in tort law and tort law is fault oriented. Tort law deals with civil wrongs for which the law provides compensation. It protects equity between individuals by providing compensation for damages, so that the status quo that existed prior to the harm can be reestablished between the parties. The rationale behind the law of nervous shock is that the body is controlled by its nervous system (an essential part of the body) and if by reason of an acute shock to the nervous system the activities of the body are impaired and as a consequence is prevented from functioning normally, there is a clear “bodily injury”. It is important to note that the cause of nervous shock itself is not enough to make it an actionable tort, some injury or illness must take place as a result of emotional disturbance, fear, or sorrow. In order for a claimant to receive damages from nervous shock due to the negligence of the defendant, they must prove all the elements of the tort of negligence: 1) a duty of care exists; 2) there is a breach in that duty; 3) the causal link between the breach and shock; 4) shock was not too remote a consequence.

Historical Evolution of Law of Nervous Shock 

The law of torts is not fully codified, in absence of any statutory law we have landmark cases to be followed as Precedents. And with reference to the law relating to nervous shock all we have in hand is to study the law by tracing the cases. The law of nervous shock has been evolved over the decades by the courts, wherein they moved from entertaining claims only limited to sudden shock to taking a wider and more flexible approach in dealing with the claims of an individual taking into account several eventualities. Initially the courts were reluctant as well as slow in recognising the claims for psychiatric illness, for it was felt that it would attract dubious and false claims under the garb of psychiatric illness as it would prove very difficult to outline and define the precise parameters of liability under this field. For instance difficulty of proving the link between defendant’s conduct and shock to the plaintiff resulting from the conduct of the defendant. The law of nervous shock has developed through case laws which date from as far back as 1861. There are numerous English law cases which provide the best picture of the development of the law in this area. Lynch v knight, one of the earliest cases that comments on liability for mental damage.The comment, however, was in the nature of obiter dicta and the case actually involved an action for defamation. The comment made was as follows: “Mental pain or anxiety the law cannot value and does not pretend to redress, when the unlawful act complained of causes that alone, though where a material damage occurs, where a material damage occurs, and is connected with it, it is impossible a jury, in estimating it, should altogether overlook the feelings of the party interested.” In this, the courts made very clear that the damage that the law takes notice has to be material, something tangible like a bodily injury. The case which forms the actual starting point for all the case laws on nervous shock is the case of Victorian Railways Commissioners v. Coultas, the privy council observed that:

“Damages arising from mere sudden terror unaccompanied by any actual physical injury, but occasioning a nervous or mental shock, cannot under such circumstances their Lordships think, be considered a consequence which, in the ordinary course of things, would flow from the negligence of the gate-keeper” In 1901, however, the courts adopted a more liberal approach in deciding Dulieu v. White & Sons, in this case, it was noted that shock must be such as “arises from reasonable fear of immediate personal injury to oneself”. This case brought into picture what is called impact theory. According to which the plaintiff would be allowed to recover for psychiatric illness provided that this was caused by reasonable fear of being physically injured by the defendants negligence. Impact theory was followed for about 20 years until the decision of Hambrook v. Stokes Bros. In order to extend the law, Bankes LJ was careful to point out that the ratio of the decision was to be confined to situations where the plaintiff suffered psychiatric illness because of fear for the safety of her children. The decision was not intended to overturn previous authority to the effect that a plaintiff could not recover in respect of psychiatric illness caused by witnessing physical injury to a person with whom the plaintiff had no relationship of love and affection. Nearly twenty years later, in Bourhill v. Young, the question of psychiatric illness liability came before the House of Lords for the first time. It will be recalled that it concerned a pregnant woman who, while descending from the tram, heard a road accident occur some distance away. She later attended the scene of accident, saw blood on the road, and subsequently suffered a miscarriage produced by shock. The House of Lords held, in effect, that the woman was not a ―foreseeable claimant. In other words, she could not base her action on a wrong done to someone else. Thereafter in 1982 the landmark case of McLoughlin v. O’Brian came. In this, the plaintiff was not present in close proximity of the accident but sustained nervous shock when she was told about the accident. In holding the defendants liable the House of Lords extended the law to cover a situation where the plaintiff had not seen or heard the accident itself but had come upon its immediate aftermath. Lord Wilberforce identified three factors that would need to be identified in every case: 

• the class of persons whose claims should be recognized; 
• the proximity of such persons to accident; and
• the means by which psychiatric illness was caused. These three control mechanisms suggested by Lord Wilberforce were subsequently reformulated and applied by a unanimous house of Lords. 

In another case that followed, the decision of the house of Lords was somewhat confusing. Although, it brought about a distinction between Primary victims and Secondary victims. Primary And Secondary Victims- A primary victim is a victim who is directly involved in an accident and suffers injuries as a result of the fault of a tortfeasor. A secondary victim is one who suffers nervous shock without himself/herself being directly exposed to any physical danger in the accident to the primary victim. The position of primary victim is governed by the decision in Page v Smith wherein a claimant may recover for psychiatric harm even though the threatened physical harm does not materialize. Lord Lloyd reasoned that if a plaintiff could recover for psychiatric illness in a case where he/she had actually suffered physical harm, it should follow that where the plaintiff had,by good luck, escaped reasonably foreseeable physical harm, he should not be deprived of compensation by the existence of this purely fortuitous fact. In essence,what this case laid down was,where there is a danger of physical injury,the law should consider both the physical as well as the psychological injury as one and the same. This case is silent where the victim is the secondary victim. The position with regard to secondary victims is governed by the decision in Alcock v Chief Constable of South Yorkshire. The House of Lords laid down three control mechanisms that need to be considered in the case of secondary victims, before the defendant can be held liable for damages. Secondary victims of psychiatric illness had to show not only that their injuries were reasonably foreseeable; but also had to satisfy the following three tests:

1. Proximity of relationship with the immediate victim.
2. Proximity in time and space to the events causing the psychiatric illness.
3. The means by which the psychiatric illness is caused.

Second and third control mechanisms are sometimes also called proximity of perception. The limits of the decision in Alcock were explored in the case of white v chief constable of south Yorkshire Police. It is a 1998 case in English tort law in which police officers who were present in the aftermath of the Hillsborough disaster sued for post traumatic stress disorder. The officers present at the stadium were entitled to succeed without needing to meet Alcock criteria as special rules applied where a psychiatric illness claimant was a “rescuer” or an employee and the officers in question were both. Until relatively recently, the tort of negligence relating to claims for psychiatric injury was very uncertain. However, in recent times, this area of law has become slightly more certain with the laying down of various guidelines and criteria governing whether an individual can recover damages as a result of witnessing an event which causes them some form of psychiatric injury. 

References 

Cases 

1. Byrne v Southern And Western Railway Company (1884) 26 LR (IR) 
2. Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5, [1992] 1 AC 310 3. Lynch v Knight (1861) 11 ER 854; 9 HLC 577 4. Victorian Railway Commissioners v Coultas (1887) 13 App Cas 222 5. Dulieu v White and Sons [1901]2 KB 66 9 6. Hambrook v Stokes Brothers ([1925] 1 KB 141 ), 7. Bourhill v Young [1943] AC 92 8. McLoughlin v O’Brian [1983] 1 AC 410 9. Page v Smith [1995] UKHL 7 10. White v Chief Constable of South Yorkshire [ 1998] 3 WLR 1509 

Websites 

1. http://www.legalserviceindia.com/legal/article-1721-nervous-shock-and-liability-of-psychiatric-damages-in-india-and-in-common-law-countries.html
2. https://www.lawgazette.co.uk/law/nervous-shock-and-secondary-victims/70319.article
3. www.wikipedia.org
4. https://www.lawteacher.net/free-law-essays/tort-law/tort-negligence-shock.php 

Books

1. R.K. Bangia, Law of Torts (Allahabad Law Agency, Faridabad, 17th edition, 2003. 

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