A Project Report On NERVOUS SHOCK

RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW INDIAN INSTITUE OF TECHNOLOGY KHARAGPUR WEST BENGAL OCTOBER, 2007

Submitted by: Nidhi Anand 09IP6014

NERVOUS SHOCK

Young6 . allowing Mr and Mrs Coultas to cross when the train was approaching. heard in the Privy Council. An actual or apprehended physical injury to a plaintiff or to a person other than the plaintiff is a necessary requirement of law in an action for nervous shock. 24th edition 2004 (1888) 1 3 App. 669 4 (1925) 1 K. even though she did not observe her children being harmed. The physical injury must be a visible disability or provable illness or injury in order to give rise to a claim. In allowing recovery however the court excluded recovery where the nervous shock was suffered following third party communication of the incident. could not be considered a consequence. . merely because one has suffered a fright and subsequently an emotional reaction. in which the pursuer. but Mrs Coultas suffered psychiatric injury as a result of the near miss. HISTORY: The historical developments of nervous shock are slow to take form and this is shown in the case. 92.” This limitation was later relaxed by the Court of Appeal in Hambrook v Stokes. the Privy Council held that damages arising from mere sudden horror. Whilst initially successful. This requirement of “own visual perception” is the primary threat to recovery for ‘nervous shock’ by claimants who view distressing events on television broadcasts because viewing through this medium is unlikely to be equivalent to ‘own visual perception’. where injury to the claimant is not clearly physical. Cas. Kennedy J stated that recovery for nervous shock will only be allowed if the injury arose “from a reasonable fear of immediate personal injury to oneself. Mrs Hambrook eventually discovered that her daughter Mabel was seriously injured.B. which would follow from a negligent gatekeeper. Similarly. One such case was Bourhill v. and later seeing a pool of blood in the 1 2 Ratanlal and Dhirajlal.C. The condition of actual or apprehended physical injury must be satisfied in order for recovery of damages to succeed.2 In this case a railway crossing gate keeper had negligently left the gate open. most usually in negligence. ‘The Law of Torts’. unaccompanied by any physical injury. this is not in itself cause for nervous shock1.4 where a mother was allowed recovery after suffering psychiatric illness from anticipated injury to her children. 222. an Edinburgh fishwife. but occasioning psychiatric illness. In Dulieu v White & Sons. on appeal. 6 16 [1943] A. of Victorian Railway Commissioners v Coultas. being run down by a vehicle or kicked by a horse. suffered a miscarriage as a result of hearing the noise of an accident. One may not claim for nervous shock due to a physical injury caused by. 141 5 [1992] 1 AC 310. 412.INTRODUCTION: Nervous shock is a phrase used to describe a type of claim.B.3 Justice Kennedy held that a person could claim for psychiatric injury only if they were themselves within the range of potential physical harm. Lord Oliver in the 1992 decision of Alcock v Chief Constable of South Yorkshire Police. say. They narrowly avoided the train.5 espoused the proposition that claimants suffering psychiatric illness may recover if they viewed the incident with their “own visual perception” rather than through third party communication. 3 (1901) 2 K.

PRIMARY AND SECONDARY VICTIMS : Mental suffering amounting to a recognisable psychiatric illness. c) The psychiatric injury must have been caused by direct perception of the accident or its immediate aftermath and not upon hearing about it from someone else. The mere fact of employer and employee relationship with the tort. if not spouse. 8 7 8 King v. b) The plaintiff must have been present at the accident or its immediate aftermath. She was about sixty feet away from a collision which had taken place between a motor bicycle and a car. has pointed out in a recent case. 200 . A plaintiff who was an employee of the tort-feasor and suffered psychiatric injury in the course of his employment but who was not within the range of foreseeable physical injury has to prove the conditions mentioned above. The House of Lords treated the case entirely as one of the existence of a duty of care.B. it was nevertheless under control and there could be no possibility of a person in the pursuer's position being in danger from physical impact. is redressable in a limited class of cases for which purpose the sufferers are divided into two categories : 1) 2) Primary victims Secondary victims Primary victims are those who are participants in the event or in other words. 429 Ratanlal and Dhirajlal. but it was pointed out in the House of Lords that although he was driving his cycle at an excessive speed. parent or children. nevertheless. A plaintiff falling under this category can be allowed damages if the following conditions known as ‘control mechanism’ are satisfied: a) The plaintiff must have close ties of love and affection with the main victim. depending in the circumstances on the possibility of foresight of damage from emotional shock. 24th edition 2004 p. when not consequent to personal injury.feasor cannot enable him to claim as a primary victim. Phillips [1953] 1 Q. are in the actual area of danger of receiving foreseeable personal injury but suffer only a recognisable psychiatric illness and escape personal injury by chance or good fortune. Similar is the position of a plaintiff who was a rescuer and suffered psychiatric injury by witnessing or participating in the aftermath but who was not within the range of foreseeable physical injury. the fishwife would have been entitled to recover if by some freak chance she had been struck7 It would. and the question raises very difficult metaphysical problems as to the situation of the hypothetical reasonable observer in time and space. Secondary victims are those which are not participants in the event or in other words are not in the area of danger of receiving foreseeable personal injury but yet suffer recognisable psychiatric illness.J. The accident between the two vehicles was agreed to have been the fault of the cyclist. ‘The Law of Torts’. of course. A tram. have been a very different kind of accident for this to have happened. Their lordships did not consider the possibility of damage from physical impact could reasonably have been foreseen. was between her and the accident. Such ties must be established by evidence.road. They are entitled to receiveing compensation for mental suffering which amounts to a recognisable psychiatric illness even if psychiatric illness was not foreseeable. from which she had just alighted. as Denning L.

RECOVERY OF DAMAGES: In order to recover damages for nervous shock a plaintiff must establish: (a) That he or she actually suffered a recognisable psychiatric illness. (d) That the nervous shock sustained was by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff.14As a result. Young9. In order to minimise interdisciplinary confusion. the breach caused the psychiatric injury). Liability in Negligence for Nervous Shock. specific loss of employment). Policy considerations have played an important role in treating pure psychiatric injury different from personal injury and in limiting the area within which compensation can be claimed for the former.13 MEDICAL AND LEGAL ASPECTS: There is no direct coherence between medical and legal concepts or between medical and legal ways of thinking. The court will put a direct monetary value on any financial loss which flows from the psychiatric injury (for example.40. with or without treatment. Robertson. The Modern Law Review. Except in cases of alleged psychiatric negligence. Vol. 10 .. by the test of foreseability of personal injury incase of primary victims and by the control mechanisms mentioned above incase of secondary victims. 57. 1994). loss of libido or suffering from psychiatric symptoms generally). and will attempt to do so with regard to any nonfinancial loss (for example. it and its prognosis. No. like any other secondary victim. 4 (Jul. psychiatric expertise is relevant only to the description of any (psychiatric) damage. there are often substantial difficulties in translating the findings of one (medicine) into the decisions of the other (law). These tests which are reaffirmed in White’s case10 have their origin in Alcock v Chief Constable of South Yorkshire Police11 and Page v.41 (HL) 11 (1991) 4 All ER 907 (HL) 12 (1995) 2 All ER 736 (HL) 13 John Murphy ‘ Street on Torts’.Such a plaintiff also cannot be given any special treatment simply because he was a rescuer and has to prove the above mentioned conditions. it is necessary for each to have an understanding of the approach of the other. To establish negligence a plaintiff must show that: (1) The defendant owed the plaintiff a duty of care (because the defendant should have had the plaintiff's possible injury in mind) (2) There was a breach of the duty of care (according to the relevant legal standard) (3) The damage suffered was caused by the breach (that is. (e) That the defendant owed him or her a duty of care not to cause him or her a reasonably foreseeable injury in the form of nervous shock as opposed to personal injury in general. (b) That such illness was shock induced. 11th edition 14 David W. Smith12. Psychiatric evidence 9 (1942) 2 All ER 396 (HL) (1999) 1 All ER 1 pp. The effect of the decision in White’s case is to finally replace the test of foreseability of psychiatric injury to a person of normal fortitude which started from Bounhill v. (c) That the nervous shock was caused by the defendant's act or omission.

18 The Modern Law Review. Phillips [1953] 1 Q. Mascarin [1942] 2 D. have seeped into the courts. Damage from emotional shock may be. vol." and not infrequently it is a combination of both. s.154-160 e. in other words mental distress unaccompanied by such illness will not be actionable. 5 (Sep. The position with intentionally inflicted harm is not clear. Vol. in medical terminology the term "shock" is used in at least two completely different senses. These terms mean respectively "organic" (i. 437. 440. Vol. One way of expressing the distinction is to create separate " body safety " and " mind safety " interests. 17.R. The distinction is not recognised by the American Restatement of Torts. which not only confuses surgical shock (which has nothing to do with emotion) with nervous shock. coronary thrombosis and cerebral haemorrhage (" stroke "). It is important to note that psychic damage may give rise to physical symptoms. 1997). and.B. Nigel Eastman. the converse 15 16 17 Advances in Psychiatric Treatment (1995). non-physical). as will any estimate of appropriate treatment (and likely outcome). Nervous Shock: Wider Still and Wider? The Cambridge Law Journal. 516.turbance..g. If there is no evidence of such connection the action will fail. pp.L.. No. It appears that an action in negligence must be sustained by something more than a temporary dis.C. which can be supported by no medical authority whatsoever. 1.. or any part of it. in which " interference with the physical well-being" of a mother who had seen her child injured in an accident was held actionable in negligence. with the result that the defendant will not be liable for directly consequential damage from emotional shock if damage from physical impact alone should have been foreseen21. physical damage. 1. who quoted it in Chester v. it is concerned solely with the question whether the alleged personal damage. i. Vol. but also states that irreversible organic changes. 316. I. pp. The latter will directly affect the 'quantum' of damages. Cammell Laird d Co. For reasons of policy the courts have restricted recovery for nervous shock to that resulting in physical illness. 271. A notable culprit is the note appearing in (1933) 11 Can. 56.R. the contribution of pre. Furthermore the position has not been assisted by inaccurate observations on causation which have appeared in legal periodicals. clearly influenced Evatt J.. 92 at 110. and was .L.I. physical) and "mental" (i. [1951] 1 Lloyd's Rep.e. in King v. No. in Dooley v.15 The reasoning which sets up nervous shock as a separate tort is fairly characteristic of the prevailing confusion as to the causation of damage from emotional shock. or the effect of susceptibility to the type of damage suffered. 254-257 21 A proposition which is strongly disapproved of by Singleton and Denning L. 478-497 19 Austin v. This has been enhanced by difficulties in terminology 16. "somatic " or " psychic. hence conversion hysteria (purely psychic damage) may give rise to paralysis of one or more limbs.18 The next step is to determine what damage is actionable in negligence. Note however that " interference with health and comfort " amounts to " actual bodily harm " . See also Donovan J. 20 Steve Hedley. 1956)..e. Waverley Corporation (1939) 62 C.existing damage. whether physical or emotional.JJ. 2 (Jul.19 This restriction requires analysis in terms of medical causation.17 The necessary co-operation between medicine and the law is probably delayed by the fact that the two professions appear to be out of sympathy with each other over the question of personal damages. The first step in assessing liability for personal damage of any kind is to establish the medical connection between the alleged damage and the act or omission in question. This proposition.. in some cases. This preliminary inquiry is not concerned with any qualification such as the proportion of the damage caused by the act.is therefore relevant in relation to causation of the first type of loss and in offering a description of the second type. can be connected in the medical sense with the act which is alleged to have been negligent.Bar Rev. further damages being implied by virtue of treatment cost. a condition which would clearly rank as physical illness for legal purposes. in a judgment which Lord Wright thought ' will demand the consideration of any judge who is called upon to consider these questions": Bourhill v. may occur in the nervous system tissue as a result of emotional shock.20 Psychic sequelae would include hysteria and various neuroses. 19.. pp.e. Young [1943] A.which has led to breakdown in communication between Medicine and the Law on the subject. in medical language. Organic sequelae of an emotional shock would include miscarriage.

JT 1998 (2) SC 620 25 (2000)1SCC66 . 107. It is true that it is not. Harjot Ahluwalia. apparently. 23 Lucknow Development Authority v. but as a distinguished member of the same generation. Damages for mental agony in a case of harassment of the plaintiff by the officers of a public authority were allowed by the Supreme Court 23. Also. but which necessarily excluded an injury which was only ‘mental’ is wrong at the resisted by Winfield. Gupta. and it is submitted that the result would be discreditable to any system of jurisprudence. Whereas there was during the latter part of the last century some support for the medical concept of specificity of damage. The complaint was dismissed by the National Commission vide the order impugned in this appeal. he filed a complaint before the National Consumer Disputes Redressal Commission (hereinafter referred to as the "National Commission") praying therein for payment of US $76. Distinguished in Gaziabad Development Authority v. This proposition would confront the medical evidence with an impossible task of apportionment where the plaintiff's damage is of both types. 5th ed. 1991 to the date of the filing of the petition as also pendente lite and future interest at the same rate till realisation. and there was no special magic about those redressing forcible injuries ". The order of the National Commission is alleged to be against law. Though. M. Milsom [1955] C. It seems unreasonable to erect a special tort in the case of emotional shock.J. both pendente lite and future @ 24% per annum towards damages for an emotional distress. In the case of Ravneet Singh Bagga Vs.24 The child was separately allowed damages for the injury suffered in the same case. AIR 1994 SC 787. they were all just actions in tort.would also apply. possible to bring an action in trespass for intentionally caused emotional shock. Textbook of the Law of Tort. JT 2000 (7) SC 256 (compensation for mental agony cannot be allowed in cases of breach of contract ).. facts and the provisions of the Customer Protection Act. modern medical experience has shown that in most illnesses it is not possible to isolate the emotional and physical factors to the extent which would be required by the courts if the distinction were to be accepted. 38. On perusal of the whole record it was of the opinion that the respondents could not be held guilty of deficiency in service entitling the complainant for compensation as claimed by him.M/s KLM Royal Dutch Airlines25 the appellant booked his passage through the respondent KLM Airlines to attend his business commitments at New York on 18th October.000 or the equivalent thereof in INK with interest @ 24% per annum from 18 October. 22 The new theory regards trespass vi et armis not as the ancestor of trespass. 5 lacs with interest.22 PRESENT SCENARIO IN INDIA: The courts in India have been more generous in awarding damages for mental suffering. Union of India .K. 1986 and the prevalent practice of carrying the passengers in the Airlines. he had been subjected to great harassment and mental torture but it is equally true that for those circumstances none of the respondents was guilty.the Madras High Court has held that the theory that damages at law could not be proved in respect of personal injuries unless there was some injury which was variously called ‘bodily’ or ‘physical’ . It was found that the complainant had been taking contradictory stands. for unforeseen reasons and suspicious circumstances not attributable to the complainant. pain and suffering and US $450 or equivalent thereof in INR together with interest both pendente lite and future @ 24% per annum till realisation towards medical and transportation expenses. He also claimed Rs. Damages for mental agony were also allowed to parents when their child because of negligence of hospital .L. nervous shock. 1991 and as he could not reach in time allegedly on account of negligence and deficiency in service of the said respondent. where he was taken for treatment suffered severe damage due to negligence of the hospital stall and was left in a vegetative state. 24 Spring Meadows Hospital v. but it appears that even this distinction will have to be reviewed in the light of recent work on the historical development of trespass.

‘The Law of Torts’.26 CONCLUSION: If some psychiatric illness induced by shock was reasonably foreseeable by the tortfeasor as a natural and probable consequence of the breach of his duty of care (the plaintiff for the purpose of this exercise being assumed to be a person of normal disposition and phlegm) then the court will hold that the plaintiff is entitled to recover damages for any recognized psychiatric illness which the plaintiff actually suffers and for such of its direct consequences as are not dissimilar in type or kind. Mohan Sundaram. 24th edition 2004 Halligua v.present day . (1951) 2 MLJ 471 . It is only shock of this description which can be measured by direct consequences on bodily activity which can form the basis for an action in damages. whether or not those consequences were initially reasonably to be foreseen. BIBLIOGRAPHY: 1) 26 Ratanlal and Dhirajlal. The fact that those consequences were more likely to occur or were more severe in the plaintiff's case than in the case of a person of a different disposition does not absolve the defendant of liability in negligence with respect to those consequences.

No.. JT 2000 (7) SC 256 12) Spring Meadows Hospital v. I. 38. Vol. 429 7) The Modern Law Review. 5 (Sep. 56.154-160. 1997) 6) King v. 4 (Jul.C. 57.B. No. Harjot Ahluwalia. 92 at 110. Mohan Sundaram. Vol. 2 (Jul. 11th edition 3) Advances in Psychiatric Treatment (1995). 11) Gaziabad Development Authority v. M.2) John Murphy ‘ Street on Torts’. AIR 1994 SC 787. Liability in Negligence for Nervous Shock :The Modern Law Review. Robertson. pp. Nigel Eastman. Vol. 5th ed. Gupta.K. 19. JT 1998 (2) SC 620 13) Halligua v.. 1956) 5) Steve Hedley. 1994) 8) Bourhill v. Union of India . 10) Lucknow Development Authority v. No. Nervous Shock: Wider Still and Wider? The Cambridge Law Journal. (1951) 2 MLJ 471 . 4) David W. Phillips [1953] 1 Q. Young [1943] A. vol. 9) Winfield. Textbook of the Law of Tort...

Sign up to vote on this title
UsefulNot useful