MV Study Notes: Tort : Topic – 4 - Nervous Shock – (Tort Case Laws: Ready Reckoner)

A. Nervous Shock Date: 15 Nov 2013

Sl Case Name Case Facts Legal Point Settled / Ratio Decidendi

No Citation Decision
1 Victorian Railway Facts: Shock unaccompanied by physical injury
Commissioners v. A gatekeeper at a railway crossing invited a buggy in which a pregnant woman was cannot be claimed.
Coultas sitting with her husband. As soon the buggy entered to crossing the train was
(1888) 13 AC. 222 approaching, there was no physical or actual collision but the escape was so narrow Bodily impact is necessary to prove
and the danger was so alarming that the lady fainted and suffered a nervous shock proximity.
resulting in illness and miscarriage.
Issue:
Whether damages were recoverable for a nervous shock or mental injury caused by
fright of an impending collision
Privy Council Held
Damage arising from a mere sudden terror unaccompanied by any physical impact
but resulting in a nervous shock cannot under such circumstances be considered a
consequence which in ordinary course of things would flow from negligence of the
gatekeeper.
Damage was too remote to be recovered as there was no actual bodily impact
2 Pugh v London Facts: Nervous shock was treated as an
Brighton & Sought A signalman who saw that there was something wrong one of the carriages of a train accident under the Insurance Law.
Coastory Co Ltd approaching at full speed so that the train was in danger leant from the window of his
(1896) 2 QB 248 signal-box and waved a red flag so that the driver might stop the train. The train was
stopped and there was no accident to it or to any of its passengers. But the excitement
and fright produced a nervous shock in the signalman which incapacitated him from
his employment with the railway company. He was held to have been incapacitated by
accident within the meaning of the company's insurance policy.
Lord Esher M.R. said at p. 251 that the fright which he underwent was the accident.
3 Wilkinson v Facts: An intentional act leading to nervous
Downston As a practical joke, Downton (D) told Wilkinson (P) that her husband had been shock, though it may be termed a
(1897) 2 QB 57 seriously injured in an accident and was lying in a ditch with broken bones. practical joke is claimable for damages.
Downton told Wilkinson that she was to bring two pillows to help carry him

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 home. The effect of Downton’s statement was a violent shock to her nervous
system resulting in weeks of suffering and incapacity. Wilkinson brought suit
for damages resulting from her injuries and the jury returned a verdict in her
favor. The defendant appealed on the grounds that the damage caused was
merely nervous shock and therefore Wilkinson had no cause of action.
Issue:
Can outrageous conduct that causes physical harm or mental distress give rise to a
cause of action?
Held:
Yes. A party may seek recovery for outrageous conduct that causes physical harm or
mental distress. In this case Downton willfully performed the act which caused harm
to the plaintiff. The court held that there was little doubt that Downton’s actions
would harm Wilkinson and it therefore must be assumed that he intended to produce
these effects.
4 Dulieu v White Facts: Claim allowable for a shock, where it
[1901] 2 KB 669 The Claimant A. alleged that while she was sitting behind the bar of her husband's operates through the mind, must be a
public-house (she then being pregnant) B.'s servant negligently drove a pair-horse van shock which arises from a reasonable fear
belonging to B. into the public-house. A. in consequence sustained a severe shock of immediate personal injury to oneself.”
which made her seriously ill and led to her premature delivery (She gave premature Also called ‘Impact Theory’
birth to a child. In consequence of the shock sustained by the plaintiff the said child
suffered developmental problems.)
Held, An action could lie in negligence for nervous shock arising from a reasonable fear
for one’s own immediate safety against B.
Per Kennedy, J.: Mere fright not followed by consequent physical damage will not
support an action, but if it is followed by consequent physical damage, then, if the
fright was the natural result of the defendants' negligence, an action lies, and the
physical damage is not too remote to support it.
Per Phillimore, J.: Where there is a legal duty on the defendant not to frighten the
plaintiff by his negligence, then fright with consequent physical damage will support
an action. .
Victorian Railway Commissioners v. Coultas (58 L. T. Rep. 390; 13 App. Cas. 222)
considered and questioned

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5 Hambrook v Stokes Facts:
Bros The defendants' servant left a motor lorry at the top of a steep and narrow street Claim for nervous shock recoverable, if
[1925] 1 KB 141, CA unattended, with the engine running, and without having taken proper precautions to
(1924) All ER 110 secure it. The lorry started off by itself and ran violently down the incline. The 1. Shock resulted from what one saw or
plaintiff's wife, who had been walking up the street with her children, had just parted realized by one’s own unaided senses,
with them a little a point where the street makes a bend, when she saw the lorry and not from something which someone
rushing round the bend towards her. She became very frightened for the safety of her told her/him.
children, who by that time were out of sight round the bend, and who she knew must
have met the lorry in its course. She was almost immediately afterwards informed by 2. shock was due to reasonable fear of
bystanders that a child the description of one of hers had been injured. In immediate personal injury either to
consequence of her fright and anxiety she suffered a nervous shock which eventually oneself or her/his children
caused her death, whereby her husband lost the benefit of her services. In an action
by the husband under the Fatal Accidents Act:- Impact Theory abandoned
Held (by Bankes and Atkin L.JJ.; Sargant L.J. dissenting), that, on the assumption that
the shock was caused by what the woman saw with her own eyes as distinguished
from what she was told by bystanders, the plaintiff was entitled to recover,
notwithstanding that the shock was brought about by fear for her children's safety and
not by fear for her own.

Dictum of Kennedy J. in Dulieu v. White & Sons [1901]1 2 K. B. 669 disapproved.

6 Bourhill v Young Facts: Close degree of proximity is a
(1942) 2 All ER 396 In this case a motorcyclist was killed in a road accident for which he was responsible. A requirement in cases involving nervous
pregnant woman, who had got off a tram at scene of the accident (having heard the shock.
noise of an accident) claimed that when she reached the scene of the accident she saw
blood on the road and as a result suffered shock which put her into premature labour -
resulting in the loss of the baby. She subsequently brought a claim in relation to
nervous shock and the resulting loss/damage.
HELD:
House of Lords held that there was insufficient proximity between the motorcyclist
and the claimant. There was not a duty of care, she was not present at the scene of
the accident (she had arrived after the accident had occurred).
Court denied her claim because it was not reasonably foreseeable that someone not
closely connected to the victim would suffer shock.

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7 King v Phillips Facts: Principle of Bournhill v Young reinforced.
(1953) 1 QB 429 The driver of a taxicab negligently backed the vehicle into a child (King) who was on a Foreseeability of the likely injury by
tricycle immediately behind him, slightly injuring the child. At the time of the accident defendant is a necessary factor.
the child’s mother was in her house 70 or 80 yards away. While looking out of her
window she heard a scream, which was identified as that of the child. She saw the
tricycle under the cab, but could not see the child. She ran into the road, met the child
and took him to the house. She suffered shock.
McNair, J., awarded the child damages for injuries he sustained. But denied the claim
of the mother for damages under nervous shock.
Held
that the driver of taxicab could not reasonably have foreseen that to back the cab in
the way in which he did would cause injury complained to the child’s mother, and
that therefore the driver owed no duty of care to her.
8 Chadwick v British Facts: Primary victim need not be a relative.
Transport Corpn. This case arose from a horrific train crash in Lewisham in which 90 people were killed Even a rescuer(stranger) that suffered
(1967) 1 All ER 912 and many more were seriously injured. Mr Chadwick lived 200 yards from the scene of nervous shock can claim.
the crash and attended the scene to provide some assistance. He worked many hours
through the night crawling beneath the wreckage bringing aid and comfort to the
trapped victims. As a result of what he had witnesses he suffered acute anxiety
neurosis and received treatment as an inpatient for 6 months.
Held:
His estate was entitled to recover. The defendant owed Mr Chadwick a duty of care
since it was reasonably foreseeable that somebody might try to rescue the passengers
and suffer injury in the process.
Waller J quoted Cardozo J in Wagner v International Railway Company 232 NY Rep
176, 180 (1921):
“Danger invites rescue. The cry of distress is the summons to relief. The law does not
ignore these reactions of the mind in tracing conduct to its consequences. It
recognises them as normal. It places their effect within the range of the natural and
probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong
also to his rescuer.”
9 Hinz v Berry Facts: Damages are recoverable for Nervous
(1970) 2 QB 40 Mr and Mrs Hinz went for a day out with their family in a Bedford Dormobile. They shock for recognisable psychiatric illness
had four children of their own and fostered four other children. Mrs Hinz was also caused by breach of duty of defendant.
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 pregnant with her fifth child. They stopped in a lay-by to have a picnic. Mrs Hinz went No damages are to be given for worry of
across the road with one of the children to pick bluebells. Mr Hinz was in the victims, grief, sorrow, financial strain or
dormobile making tea with the other children. A jaguar car driven by Mr Berry then stress, or the difficulties of adjusting to a
came hurtling at speed. A tyre burst and the driver lost control and smashed into the new life.
dormobile. Mrs Hinz witnessed the horrible scene. Her husband died and the children
were badly injured. As a consequence of this she became morbidly depressed.
Held: She was entitled to recover as she had demonstrated a recognised psychiatric
condition as opposed to feelings of grief and sorrow.
Lord Denning MR
"In English law no damages are awarded for grief or sorrow caused by a person's
death. No damages are to be given for the worry about the children, or for the
financial strain or stress, or the difficulties of adjusting to a new life. Damages are,
however, recoverable for nervous shock, or, to put it in medical terms, for any
recognisable psychiatric illness caused by the breach of duty by the defendant."
10 McLoughlin v Facts:
O’Brian The claimant’s husband and three of her children were involved in a serious road 1.Proximity factor further expanded and
(1982) 2 All ER 907 traffic accident in which their car was struck by a lorry due to the negligence of the clarified:
[1983] 1 AC House defendant lorry driver. Unfortunately one of the children was killed on impact. An Means of shock must come through
of Lords ambulance took the injured parties to hospital. Another of the claimant’s sons was a Direct perceptions of sight, or hearing of
passenger in a car behind the family. The driver took him home and told his mother of the event on or of its immediate
the incident and immediately drove her to the hospital. She saw her family suffering aftermath.
before they had been treated and cleaned up. As a result she suffered severe shock, 2. Aftermath Doctrine
organic depression and a personality change. She brought an action against the Reasonable foreseeability includes
defendant for the psychiatric injury she suffered. The Court of Appeal held that no aftermath
duty of care was owed. She appealed to the House of Lords.
Held:.
The appeal was allowed and the claimant was entitled to recover for the psychiatric
3) Three control mechanism suggested
injury received. The House of Lords extended the class of persons who would be
by Lord Wilburforce:
considered proximate to the event to those who come within the immediate
aftermath of the event.
a)Classes of persons whose claim should
Lord Wilberforce: be recognised
“Experience has shown that to insist on direct and immediate sight or hearing b) Proximity of such persons to the

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 would be impractical and unjust and that under what may be called the " aftermath accident
" doctrine, one who, from close proximity comes very soon upon the scene, should c)Means by which psychiatric illness was
not be excluded…. and by way of reinforcement of " aftermath " cases, I would caused
accept, by analogy with " rescue " situations, that a person of whom it could be said
that one could expect nothing else than that he or she would come immediately to
the scene—normally a parent or a spouse, could be regarded as being within the
scope of foresight and duty. Where there is not immediate presence, account must
be taken of the possibility of alterations in the circumstances, for which the
defendant should not be responsible. Subject only to these qualifications, I think
that a strict test of proximity by sight or hearing should be applied by the courts."
11 Alcock v CC South Facts: Primary victims differentiated from
Yorkshire Police This case arose from the disaster that occurred at Hillsborough football stadium in secondary victims.
(1991) 4 All ER 907 Sheffield in the FA cup semi-final match between Liverpool and Nottingham Forest in
1989. South Yorkshire Police had been responsible for crowd control at the football Criteria for Primary victims set:
match and had been negligent in directing an excessively large number of spectators claimant must suffer from a psychiatric
to one end of the stadium which resulted in the fatal crush in which 95 people were condition resulting from being present at
killed and over 400 were physically injured. The scenes were broadcast live on the scene and in genuine fear of their
television and were also repeated on news broadcasts. Sixteen claims were brought own safety.
against the defendant for nervous shock resulting in psychiatric injury. At trial ten of (Even rescuers come under this
the claims were successful. The defendant appealed against the findings in nine and category)
the unsuccessful claimants appealed. The Court of Appeal found for the defendants in
all of the claims. Ten appeals were made to the House of Lords. These included claims Criteria for Secondary victims set:
made by brothers, sisters, parents, a grand-parent and a fiancé. Two of the claimants claimant must have proximity in time
had been at the ground but in a different area. Some had seen the events unfold on and space to the injured party
the television, some had heard about the events in other ways. Some had identified (witnessing the immediate aftermath of
bodies at the makeshift mortuary. the incident), close tie of love and
Held: affection to the injured party and suffer
The appeals were dismissed. nervous shock as a result of this
Lord Oliver set out the distinction between primary and secondary victims. A primary
victim one involved mediately or immediately as a participant and a secondary victim
one who is no more than a passive and unwilling witness of injury to others. The
claimants were all classed as secondary victims since they were not in the physical
zone of danger.
For secondary victims to succeed in a claim for psychiatric harm they must meet the
following criteria:
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 1. Proximity of Relationship: A close tie of love and affection to a primary victim
2. Proximity of Perception: Witness the event with their own unaided senses
3. Proximity of Time & Space : Proximity to the event or its immediate aftermath
4. Sudden Shock(Means): The psychiatric injury must be caused by a shocking
event
12 Page v Smith Facts: IF some kind of injury is foreseeable,
[1996] 1 AC 155 The claimant had suffered from ME ( Myalgic Encepahlomyelitis ) over a period of time then it does not matter whether the
House of Lords and was in recovery when he was involved in a minor car accident due to the injury was physical or psychiatric.
defendant's negligence. The claimant was not physically injured in the collision but the No need to establish psychiatric injury
incident triggered his ME and had become chronic and permanent so that he was was foreseeable.
unable to return to his job as a teacher. He was successful at his trial and awarded Defendant’s wrongful act need not be
£162,000 in damages. the ‘sole’ cause of the damage.
Held:
Provided some kind of personal injury was foreseeable it did not matter whether the
injury was physical or psychiatric. There was thus no need to establish that psychiatric
injury was foreseeable. Also the fact that an ordinary person would not have suffered
the injury incurred by the claimant was irrelevant as the defendant must take his
victim as he finds him under the thin skull rule.
13 White v CC South FACTS: To qualify as Primary Victims , the
Yorkshire Police Like the case of Alcock v Chief Constable of South Yorkshire, this case arose from the claimant(even if he is a rescuer) has to
(1998) 3 WLR 1509 disaster that occurred at Hillsborough football stadium in Sheffield in the FA cup semi- be in the zone of physical danger.
House of Lords final match between Liverpool and Nottingham Forest in 1989. South Yorkshire Police
had been responsible for crowd control at the football match and had been negligent Both rescuers and employees are not to
OR in directing an excessively large number of spectators to one end of the stadium which be given any favourable treatment thus
resulted in the fatal crush in which 95 people were killed and over 400 were physically overruling the decision in Chadwick v
Frost v CC South injured. Whilst Alcock, involved claims by relatives, this case involved claims for British Railways Board [1967] 1 WLR 912
Yorkshire Police psychiatric injury from police officers who were on duty that day . Their claims differ
from those in Alcock, in that they based their claims on the grounds that as
employees, the defendant owed them a duty of care not to cause them psychiatric
injury as a result of negligence, alternatively they claim as rescuers, which they argued
promoted them to primary victims as oppose to secondary victims. At trial Waller J
dismissed the claims on both grounds. The Court of Appeal reversed this decision.
The Defendant appealed to the House of Lords.
Held:

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 The appeal was allowed, the claimants were not entitled to recover for the
psychiatric injury. (Lord Goff dissenting on both grounds, Lord Griffiths dissenting on
the employment ground)
Whilst an employer owes a duty of care to employees not to cause them physical
harm and there is some authority supporting claims for psychiatric injury caused by
excessive stress imposed by the employer, there is no authority to support a finding of
liability for psychiatric injury caused by witnessing horrific injuries to others. With
regards to rescuers, their status as rescuers does not automatically place them as
primary victims. To amount to a primary victim, even a rescuer must demonstrate that
they are in the zone of physical danger. Since, the claimants were not themselves at
risk of physical injury, their claims could not succeed.
This case is often explained on the grounds of policy, in that it would be repugnant to
allow the police officers to recover where relatives had been denied compensation.
This is supported by the following comments:
Lord Steyn:
“it is common ground that police officers who are traumatized by something they
encounter in their work have the benefit of statutory schemes which permit them to
retire on pension. In this sense they are already better off than bereaved relatives
who were not allowed to recover in Alcock. The claim of the police officers on our
sympathy, and the justice of the case, is great but not as great as that of others to
whom the law denies redress.”
Lord Hoffman:
“But I think that such an extension would be unacceptable to the ordinary person
because (though he might not put it this way) it would offend against his notions of
distributive justice. He would think it unfair between one class of claimants and
another, at best not treating like cases alike and, at worst, favouring the less deserving
against the more deserving. He would think it wrong that policemen, even as part of a
general class of persons who rendered assistance, should have the right to
compensation for psychiatric injury out of public funds while the bereaved relatives
are sent away with nothing.”
14 W v Essex County Facts: Further category of primary victims
Council The claimants were foster parents for adolescent children and also had four recognised.
(2000) 2 WLR children of their own aged 8-12. They had expressly told the council and social Concept of immediate aftermath of the
601 House of Lords worker that they did not want a child who was known to be or suspected of incident depends on the particular
aspects of the case..
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 being a sexual abuser. However, a 15 year old boy was placed with them. He
had been cautioned by the police for a sexual offence and was under
investigation for raping his sister. This information was known by the council
and social worker but was not communicated to the claimants. The claimants
allege that the boy committed serious sexual offences against their children as
a consequence they and their children suffered psychiatric injury. They brought
an action against the council claiming their negligence in placing the child with
them against their wishes and without informing them of the boy’s background
caused the psychiatric injuries suffered by them and their children. The
defendants applied to have the claims struck out as giving rise to no duty of
care. The trial judge struck out the parents claim but refused to strike out the
claim in respect of the children. The Court of Appeal held no duty was owed
since the parents were secondary victims and did not satisfy the criteria set out
in Alcock v Chief Constable. The claimants appealed to the House of Lords.
Held:
The appeal was allowed. The House of Lords refused to strike out the claims.
Lord Slynn stated the law regarding psychiatric injury was still developing and
the categories of primary victims are not closed. It was arguable that the
claimants may be primary victims based on a feeling of responsibility in
unwittingly bringing the abuser in to the house. Furthermore the concept of
the ’immediate aftermath of the incident’ has to be assessed on the particular
factual situation. Therefore the issues should go to trial.
15 Greatorex v Facts: No liability for Primary victim, towards
Greatorex Defendant was seriously injured when he negligently got into an accident. injury suffered by secondary victims,
(2000) 1 WLR 1970 Claimant, a fire officer and Defendant’s father was called to the scene( in the where, he is the negligent defendant.
course of his employment)and subsequently suffered PSTD as a result of seeing
his son’s injuries.
HELD:
A victim of self – inflicted injuries owes no Duty of Care to a secondary victim
who suffered a psychiatric injury from witnessing the incident or its immediate
aftermath

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16 Simmons v British Facts:
Steel
A workman C suffered a severe blow to the head, causing headaches and blurred
(2004) ICR 585, HL
vision lasting several weeks. He had previously warned his employers about the
dangers of the system of work, and he became very angry that his accident had
happened because those earlier warnings had been ignored. This anger aggravated a
pre-existing skin condition (psoriasis) and DD's doctor refused to allow C to return to
work until this had cleared up. His inability to return to work aggravated his condition
still further, and this led to severe depressive illness.
HELD:
Applying Page v Smith and upholding an award of almost £½m in damages, Lord
Rodger said the basic principles can be summarised as follows:
[1] A defendant is not liable for consequences of a kind that were not reasonably
foreseeable.
[2] A defendant may not be liable for damage (even foreseeable damage) caused by the
claimant's novus actus interveniens.
[3] Subject to [2], if the claimant's injury is of a foreseeable kind, the defendant is liable
for that injury even if it is more serious than could have been foreseen, or caused in an
unforeseeable way.
[4] The defendant must take his victim as he finds him.(Egg shell skull Rule)
[5] Subject again to [2], where personal injury to the claimant is reasonably foreseeable,
the defendant is liable for all the personal injury (whether physical or psychiatric)
resulting from his wrongdoing.
18 Attia v British Gas Facts: Nervous Shock arising out of witnessing
Corporation The claimant engaged the defendant to install central heating in her home. She damage to property is claimable, if
[1988] QB 304 CA returned home from work and saw smoke coming from the loft. She called the fire foreseeability can be established.
brigade, but by time they had arrived the fire had taken hold and the whole house was
burnt. The defendant’s accepted the fire was caused by their negligence and settled
her claim in relation to the damage to the house and contents. However, the claimant
also claimed that witnessing her house burning caused her psychiatric injury. The
defendant disputed this part of the claim on the basis that it was not reasonably
foreseeable that the claimant might suffer psychiatric injury as a result of their
negligently starting the fire and even if it was foreseeable, as a matter of law, public
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 policy would not allow recovery. They requested these matters to be decided as a
preliminary issue, to determine whether a trial was needed. The High court decided
the matter in favour of the defendant and the claimant appealed.
Held:
The appeal allowed. The case should go to trial to fully investigate the issues of
foreseeability. There was no reason as a matter of law why the trial should not
proceed.

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