CHAPTER 14

NERVOUS SHOCK

1. Introduction

Nervous shock is that branch of law which is nascent and still developing. If a person has
got injury through his senses i.e., by his visual or acoustic senses it comes under the
category of nervous shock.

2. Meaning and Principles

The shock where it operates must be a shock which arises from a reasonable fear to
immediate personal injury to oneself". Do you agree with limitation of liability as
propounded by Justice Kennedy in the case of `Dulieu v. White'?

The defendant owed a duty of care to the boy and not to the mother. What were the
observation of the Judges (Singleton L.J.; MC Nair, J.; and Denning L.J.) in the case
Kings v. Philips?

We know that the brain regulates the function of the body. From brain's hind-part i.e.,
medulla oblongata, spinal chord arises from which nerves originate and goes to various
parts of the body. We have got five senses (eye, ear, nose, tongue and skin) through
which we came to know about the things which surround us. In simple terms, if a man has
seen something which is unbelievable or horrible or supposed to cause imminent danger
to him/others, then he may suffer with nervous shock.

Victorian Railway Commissioners v. Coultas, (1888) 13 App Cas 222.-

In this case, the appellant's gate-keeper negligently invited the plaintiff and his
wife, who were driving in a buggy, to enter the gate at a railway crossing when the
train was approaching. The distance between buggy and train was very narrow and
actual collision did not take place, but seeing the danger from so close, the lady got
fainted and suffered a severe nervous shock resulting in illness and miscarriage.
The Privy Council held that "damage arising from mere sudden terror
unaccompanied by any physical injury but occasioning a nervous or mental shock
cannot under such circumstances be considered a consequence which in the
ordinary course of things would flow from negligence of the gate-keeper". And in
this case it was held that the damage was too remote to be recovered since there
was no actual bodily impact.

But this view was changed later on when it was held in the case Dulieu v. White, (1901) 2
KB 669, that to take cognizance of only physical injury resulting from actual impact is to

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 be discarded on the ground that the nervous shock accompanied by definite illness is as
much a physical injury as a broken bone or torn flesh wound.

Dulieu v. White, (1901) 2 KB 669.-

The plaintiff, a pregnant woman, was standing behind the bar of her husband's
public house, and the defendants by their servants, negligently drove a pair of
horse van into that house. The plaintiff was physically not hurt but suffered
nervous shock. She fell ill and delivered a prematured baby.

Defendant's plea was that there is no action since plaintiff did not suffer any physical
injury. But, Kennedy J., held the defendant liable and said-

"........merely mental pain unaccompanied by any injury to the person cannot

sustain an action for negligence. If the fear is proved to have naturally and directly
produced physical effects, so that the ill results of the negligence which caused the
fear are as measurable in damages as the same results would be if they arose from
an actual impact, why should not an action for those damages lie just as well as it
lies where there has been an actual impact".

Justice Kennedy also introduced a limitation of liability by stating that the shock where it
operates must be a shock which arises from a reasonable fear of immediate personal
injury to oneself.

In Dulieu's, the principle laid down in Victorian Railway Commissioners' case as the
damage due to nervous shock is too remote a consequence for recovery was put to rest.
Justice Kennedy held that the defendant's negligence would make him liable if the natural
and direct consequence is nervous shock followed by illness, subject to the condition that
the shock must have been due to reasonable fear of one's own safety.

Hambrook v. Stokes Bros, (1925) 1 KB 141.-In this case, the defendant's servant left a
motor lorry unattended at the top of street with its engine running. Somehow, lorry
started running on the street violently. Mrs. Hambrook, was walking on the street, and her
children had just parted with her and were gone in the direction where now lorry was
approaching. She got frightened for safety of her children. One of the passer by informed
her that one child similar to description given by her has got injured. After hearing this
news she suffered a serious nervous shock and she died. The plaintiff's plea was that the
defendant was negligent in leaving the lorry unattended and running. Mrs. Hambrook
suffered nervous shock either due to reasonable fear of immediate personal injury to her
or her children and she died. Defence plea was that although the servant of defendant was
negligent, but the shock was due to fear of her children and it did not give rise to a cause
of action.

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 Trial court taking the view of Dulieu case, applied the limitation put forth by J., Kennedy
and found that Mrs. Hambrook died due to fright for the safety of her children and
defendant was not liable.

On appeal, Bankes and Atkin L.JJ., rejecting, the limitation proposed by

J., Kennedy in Dulieu case held that the defendant was liable for her death-

"Accepting the line of reasoning illustrated by authorities, it follows that what a

man ought to have anticipated is material when considering the extent of his duty.
Upon the authorities as they stand the defendant ought to have anticipated that if
his lorry ran away down this narrow street, it might terrify some woman to such an
extent, through fear of some immediate bodily injury to herself, that she would
receive such a mental shock as would injure her health."

Justice Bankes imposed a limitation by stating that "the defendant would be liable
only if the shock resulted from what Mrs. Hambrook either saw or realized by her
own unaided senses, and not from something which some one told her".

It was also noted in this case that there was an acceptance of negligence in the pleadings,
and this meant that the breach of a duty owed to Mrs. Hambrook was admitted by the
defendant. That is why it was not necessary for the court to consider the circumstances in
which a duty of care exists in cases of nervous shock.

King v. Philips, (1953) KB 433.-

A small boy, Michael Charles King was on his tricycle on Bristall Road, London. A
taxicab driver while backing his cab hit the tricycle. The mother of the child, who
was inside her house some 70 to 80 yards away, heard boy's scream, she came out
and saw tricycle of his son under the taxicab, but the child was not there who came
to home with slight injury. The lady suffered nervous shock followed by illness, for
which she claimed damages.

The lower court awarded damage only to boy (� 10) and rejected the claim of his
mother. The Court of Appeal also upheld the decision of the lower court and held that the
defendant owed a duty of care to the boy and not to the mother.

Observation of Judges in this case:

Singleton L.J.-

"............the decision of the House of Lords in Bourhill v. Young, shows that the
test in such cases is whether the driver could reasonably, have foreseen any

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 damage to the plaintiff. Unless he could, it was said, no duty was owed to her, and
consequently there was no negligence vis-a-vis the plaintiff."

McNair, J.-

"If I am asked where the line is to be drawn, I should humbly, reply....... it should
be drawn where in the particular case the good sense of the jury or judge decides."

Denning Lord J.,-

"The true principle is this: Every driver can and should foresee that if he drives
negligently, he may injure somebody in the vicinity in some way or other; and he
must be responsible for all the injuries which he does in fact cause by his
negligence to anyone in the vicinity, whether they are wounds or shocks, unless
they are too remote in law to be recovered. If he does by his negligence and in fact
causes injury by shock, then he should be liable for it unless he is exempted on the
ground of remoteness."

Denning Lord J., also distinguished this case with that of Hambrook's case, as-

"......I think that the shock in this case is too remote to be a head of damage. It
seems to me that during slow backing of the taxicab the driver cannot reasonably
be expected to have foreseen that his backing would terrify a mother 70 yards
away, whereas the lorry driver ought to have foreseen that a runaway lorry might
seriously shock the mother of children in the danger area."

From the above observations, it may be inferred that although the Judges agreed in the
result but they disagreed in the theoretical basis of that result.

Mcloughlin v. O'Brian, (1982) 2 All ER 298.-The plaintiff's husband and three children met
with an accident. One child died while plaintiff's husband and other children received
severe injuries. The plaintiff was two miles away from the site of accident, when the
accident took place. After hearing this news, the plaintiff suffered severe and persisting
psychiatric illness. The House of Lords in an unanimous voice (L. Bridge, L. Scarman, L.
Wiberforce, L. Edmund Davies and L. Russell) held the defendant liable for the nervous
shock and allowed the appeal for damages.

Page v. Smith, (1995) 2 All ER 736.-

The plaintiff in the motor accident remained unhurt but suffered 'Myalgic
Encephalomyelitis', a psychiatric illness with which he had earlier suffered but was
in remission that time. The injury although was not foreseeable in a normal man
but as a personal injury of physical harm was foreseeable, the defendant was held

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 liable for damages. The House of Lords also laid down following propositions, which
may be taken as guiding factors in deciding such kind of cases-

(i) In cases involving nervous shock, it is essential to distinguish between

the primary and secondary victims.

(ii) In claims by secondary victims, the law insists on certain control

mechanisms, as a matter of policy in order to limit the number of potential
claimants. Thus, the defendant will not be liable unless psychiatric injury is
foreseeable in a person of normal health. If, plaintiff is the primary victim,
then this mechanism has no place.

(iii) If claim is sought by secondary victims, it may be legitimate to use

hindsight in order to be able to apply the test of reasonable foreseeability at
all.

(iv) Subject to the above qualifications, the approach in all cases should be
the same.

(v) A defendant who is under a duty of care to the plaintiff, whether as

primary or secondary victim, is not liable for damages for nervous shock
unless the shock results in some recognised psychiatric illness.

3. Conclusion

Due to vagueness/ambiguity of the rule of foreseeability, the House of Lords faced a lot of
difficulty and therefore laid down some qualifications to the rider of reasonable foresight in
certain cases e.g.-

(i) where secondary victim has close relationship of love and affection with the
primary victim and also that his proximity to the accident is sufficiently close in
time and space (Mcloughlin v. O'Brian);

(ii) in case of secondary victims, it may be legitimate to use hindsight in order to

be able to apply the test of reasonable foreseeability at all (Page v. Smith); and

(iii) tortfeasor must take his victim as he finds him (Page v. Smith).

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