HIMACHAL PRADESH NATIONAL LAW UNIVERSITY, SHIMLA

SUBJECT: LAW OF TORTS

TOPIC: NERVOUS SHOCK AS A CAUSE FOR ACTION

SUBMITTED TO SUBMITTED BY
Dr. Ambika Vihaan Acharya

1st Semester, B.A. LLB.

No- 1020212269
 . . . . . . . . . . . . . . . . . . . TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . .

Content Page No.

Cover Page 1
Table of Contents 2
Acknowledgement 3
Declaration 4
Abstract 5
Nature and Definition of Torts 6-8
Comparing Civil and Criminal Law 9
Nervous Shock 10
Secondary Victim 11
Cases of Nervous Shock 12-15
Work Cited 16
 ACKNOWLEDGEMENT

This project has been successful with great efforts and dedication and immense help from
numerous people. Every work and every worker needs assistance and help in completing a task. I
sincerely express my gratitude and appreciation towards everyone who helped me in this
assignment.
I, Vihaan Acharya, a student of Himachal Pradesh National Law University, Shimla would like
to express my special note of thanks to my assignment guide and mentor, Dr. Ambika for her
guidance and mentorship during the project.
 DECLARATION

I, Vihaan Acharya, a student of Himachal Pradesh National Law University, Shimla hereby
declare that I have completed this assignment on my own with the help of my teachers and
friends.
I declare that I have taken utmost care while completing the assignment and have not copied or
plagiarized the content and this assignment has not been submitted in any other university.
 . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT . . . . . . . . . . . . . . . . . . . . . . . . . .

Tort law, though uncodified, plays a significant role in the legal and judicial system of India. It is
considered as a significant aspect protecting the legal rights of citizens. Torts are considered as
one of the most complex law as it has technically no written concepts yet it is so helpful in
practical life. We come across different kinds of torts ranging from nuisance from our neighbor
to negligence by our employees on a daily basis yet we choose to ignore them as they are
sometimes without any actual damage (only legal injury is present) and even if there is actual
damage, it is too remote. Moreover, there is a lack of awareness among the masses about the
Tort law; most of the people are unaware of it even after encountering many of them on a daily
basis. There are several kinds of torts present in the Indian scenario like Trespass, Absolute and
strict liability, defamation, nuisance, malicious prosecution, Conversion, Negligence, etc. Every
tort holds a different significance in the current scenario. Torts are diverse in forms, they have
different damage measures, some are physical, some are psychiatric and some are both. One of
the torts which cover Psychiatric damage is the Nervous Shock. This assignment is a detailed
explanation of “Nervous Shock as a cause of Action”, its meaning, history and case laws.
. . . . . . . . . . . . . NATURE AND DEFINITION OF TORTS . . . . . . . . . . . .

MEANING: In Latin, term „Tortum‟ means “to twist”. It has same meaning as the English term
„wrong‟. Tort is committed in the form of tortuous act. Tortious act refers to that conduct, which
violates the legal rights of a person.
Tort is a civil wrong: i.e. a wrong against an individual which is redressed by legal action for
compensation against the wrong doer. At the same time, remember that not every civil wrong is
tort such as breach of contract, breach of trust, etc. Tort is violation of other‟s legal rights
A Tort occurs when someone deliberately or through carelessness causes harm or loss to another
person or to his or her property.
The main purpose of tort law is for the wrongdoer to compensate (pay back) the person who
suffered a loss or injury and not necessarily to punish the person who is responsible. Much of the
method of tort law involves determining who is guilty and therefore the extent of the damage.
The wrongdoer must repay the injured person. This usually means a sum of money in form of
compensation.
Tortious acts are informal occurrences that deal with wrongs or injuries inflicted upon one party
by another, outside of context of a formal relationship or contract. Therefore, the liability doesn‟t
come from a prescribed set of rights and responsibilities like those defined during a contract, but
rather from the law itself. In torts, the parties involved are strangers consistent with the law. The
only reason they‟re brought together is that the misfortune, which resulted within the tort action.
TORTFEASOR: It is referred to the person who commits a tort, i.e. he violates legal rights of
other person. If tortfeasor is found to be at fault, he/she would have to pay for any loss or injury.
ILLUSTRATION OF TORTS -:
1. Violation of a duty not to injure the reputation of someone else results in tort of
defamation.
2. Violation of a duty not to interfere with the possession of land of another person results
in the tort of trespass to land.
3. Violation of a general duty to take care would give rise to tort of negligence.

DOES ‘INTENTION’ MATTER IN TORTS? – The answer is “No”. In law of torts, there is
no general rule that one must have a guilty mind or intention while committing wrongful act, to
be held liable. But mental condition is relevant in certain exceptional torts like assault, battery,
malicious prosecution, etc. whereas in torts like trespass, nuisance, negligence, conversion, etc.
mental condition is totally irrelevant.
ILLUSTRATION: If income tax department raids your house and department can show that
here was good reason to raid it, then the raid was prompted by solely by the ill will of an officer
in the raid won‟t make any difference.

WHAT ARE DAMAGES: Damages are „compensation payable to the sufferer by the
wrongdoer for the injuries he caused to the plaintiff by violating his legal rights.‟ If, for example,
the reputation of a person has been injured, the original position cannot be restored back. The
only thing, which can be done in such a case, is to see what amount of money is reasonably
equivalent to the harm caused to the plaintiff‟s reputation.

ESSENTIALS REQUIRED TO CONSTITUTE A TORT:-

ESSENTIALS OF A TORT

ACT OR OMISSION: In order LEGAL DAMAGE: Plaintiff

to make a person liable, he must
have done some act which he
was not expected to do or he
must have failed to perform a
legal duty
has to prove that there has been a
legal damage caused to him
because of defendant's act or
omission.
The below flow chart shows different types of torts against person, property or both:-

ASSAULT

BATTERY
BODY
NERVOUS SHOCK

FALSE
PERSONAL IMPRISONMENT
WRONGS
LIBEL

REPUTATION SLANDER

MALICIOUS
TORTS

PROSECUTION

IMMOVABLE TRESPASS TO LAND

PROPERTY
WRONGS TRESPASS TO
GOODS
MOVABLE
CONVERSION
NUISANCE
BOTH
NEGLIGENCE
 COMPARING CIVIL AND CRIMINAL LAW

Civil wrong is a wrong against individual and criminal is one which is against the whole society.
One way of looking at criminal law is that it deals with something, which is of public interest.
For example, the public has an interest in seeing that people are protected from being robbed or
assaulted. These are legal problems that fall into the criminal law.
Criminal law involves punishing and rehabilitating offenders, and protecting society. Unlike
criminal law; civil law is primarily involved with compensating victims. While a defendant in a
criminal case may be found „guilty‟ or „not guilty‟, a defendant in a civil caseis said to be „liable‟
or „not liable for damages.
Sometimes, Criminal law regulates relationships within our society. Similarly, civil law regulates
private relationships between individuals in our society.
ILLUSTRATION: 1. If you hire someone to paint your house and they do a poor job, it is a
dispute between you and the painter. The police don‟t get involved. If you want to sue the painter
for breach of contract, it is your responsibility to do so.
2. If you break the glass window of your neighbour by a ball, you have to compensate him for
your negligence of not taking proper care while playing.

CIVIL LAW CRIMINAL LAW

DEALS WITH DISPUTES Between Individuals Affecting public at large
EXAMPLE Negligence, Breach of Murder, theft, Domestic
Contract, Property law, etc. Violence, Sedition, etc.
AN ACT FOR WHICH Wrong Crime/Offence
CASE IS FILED IS CALLED
GUILTY PERSON IS Wrongdoer, in torts he is also Offender
CALLED referred to as tortfeasor.
INTENTION AND MALICE Are of little or no importance Is extremely important (guilty
beyond reasonable doubt)
FINAL JUDGEMENT Victim is awarded Offender is given Punishment
Compensation
 . . . . . . . . . . . . . . . . . . . . . . NERVOUS SHOCK . . . . . . . . . . . . . . . . . . . . . .
Nervous shock is a special kind of tort as it is one of the few which does not deal with any
physical damage but a psychiatric one which impact your mental health.

Nervous shock is a term used in English law to denote psychiatric illness or injury caused to a
person by perception of events caused by the negligence of another; e.g., witnessing an injury
which is caused to one‟s parents or spouse. To amount to “nervous shock”, the psychiatric
damage suffered by the claimant must extend beyond grief or emotional distress to a recognized
mental illness, such as anxiety neurosis or reactive depression.

In nervous shock, it is necessary that the conduct causing actual mental harm must be outrageous
or extreme. Also, there must be actual or constructive intent to cause psychological harm.

Constructive intention implies that the defendant was reasonably aware that by giving such false
news, he might cause nervous shock. Although, the defendant may only intend it as a joke but if
the practical joke is such that any reasonable man can apprehend nervous shock to be result of it,
the defendant is said to intend such nervous shock under constructive intention.

ELEMRNTS OF NERVOUS SHOCK-:

1. Duty owed;
2. Breach of that duty;
3. Causal link between breach of duty and shock;
4. Causal link not too remote.

The courts have identified several requirements which are used to establish liability for Nervous
Shock include:-

1. The claimant must perceive a “shocking event” with their own unaided sense, as an eye-
witness to the event, or hearing the event in person, or viewing the immediate aftermath.
This requires close physical proximity to the event, and would usually exclude general
events witnessed by television or telephone.
2. The claimant must have a “sufficiently proximate” relationship to the victim, usually
described as a “close tie of love and affection” (parents and children, spouses, siblings).
This usually rules out claims by bystanders.
3. It must be reasonably foreseeable that psychiatric harm could be caused to such person.
The closer the tie (parents and children, spouses), the more likely that harm would be
caused.
 . . . . . . . . . . . . . . . . . . . . SECONDARY VICTIM . . . . . . . . . . . . . . . . . . . .

In case of an accident, there are two types of victims- first is the primary victim who has suffered
directly from an accident and has suffered physical injuries like bone fracture, bruises, etc. and
generally, a criminal case is filed against the wrongdoer. But there are certain victims which
suffer from the accident psychologically. These victims are called ‘Secondary victims’.

A Secondary victim is a victim who suffers „nervous shock‟ or „psychiatric harm‟ due to an
accident without directly exposing himself or herself to the physical injury involved, just by
witnessing the accident or getting the news of the accident of their known person.

There are certain factors determined for being a secondary victim in nervous shock:-

1. Relationship between Plaintiff and the Primary victim:

2. Proximity of the plaintiff to the accident:
3. Means of receiving news:
4. Manner in which shock was caused:
 . . . . . . . . . . . . . . . . CASES OF NERVOUS SHOCK . . . . . . . . . . . . . . . .

Below mentioned are some cases involving „Nervous shock as a cause of action‟:-

1. Victorian railways Commissioners v Coultas PC 21 Jan 1888: This case is considered

as the first case of „Nervous Shock as a cause of action‟. Although, there have been cases
regarding mental damage earlier too like lynch v night but this case is considered as the
starting point for all the cases for „Nervous Shock as a cause of action‟. In this case, the
Victorian Railway Authorities‟ gatekeeper (defendant) kept the gates of a railway
crossing open while a train was crossing through the track. The Plaintiff (Coultas) didn‟t
get injured as there was no collision but still she demanded compensation for the mental
and physical injury caused from the psychiatric shock which she received.

JUDGEMENT: The defendant‟s plea succeeded over the liability. It was decided that it
was very difficult for the court to recover damages, for the plaintiff, for the injuries which
were suffered by shock caused because of fear or fright of colliding. It said that mere
sudden terror without any physical injury cannot be considered as a direct result of
negligence of the gatekeeper. So, damages were not paid to the plaintiff because the court
said it‟s too difficult, but it also said it‟s not impossible, leaving the scope for further
improvement and formation of guidelines regarding nervous shock.

2. Dulieu v White & Sons (1901) 2KB 669: In this case, the plaintiff, a pregnant woman,
was standing behind a building in which his husband worked. Suddenly, the defendant‟s
servant negligently drove a horse carriage into the building behind which the plaintiff
was standing. The carriage was about to hit the plaintiff but it didn‟t as the servant was
able to control the horses. As a result of this incident, the plaintiff received a mental
shock which led to delivery of a pre-mature baby after 9 days of that incident. The baby
too, according to plaintiff, was mentally unfit because of the incident and she filed a suit
for damages against White & Sons.
The plaintiff sought damages for the psychiatric harm suffered by her because of the
mental shock or fear of getting hit by the carriage. While, the defendant argued that to
prove tort of negligence, physical injury was a necessity which was absent in this case.
So, they are not liable to pay any damages to the plaintiff.

JUDGMENT: The bench of Justice Kennedy and Justice Phillimore decided that even
though the plaintiff didn‟t suffer any physical injury, the frightening incident, of the
White and Sons‟ driver losing control over the carriage and driving it into the building,
was the reason behind the premature birth of the baby. In this case, mental shock was
accompanied by physical injury (miscarriage).
In other words, the „terror wrongfully induced and inducing physical mischief gives
an explanation for action.‟ The plaintiff could recover in respect of the physical
consequences of „nervous shock‟ caused because of „reasonable fear of immediate
personal injury to oneself‟.
 In the words of J. Kennedy, “If impact be not necessary, and if, as must be assumed
here, the fear is proved to possess naturally and directly produced physical effects, in
order that the ill results of the negligence which caused the fear are as measurable in
damages just the same results would be if they arose from an actual impact,
why shouldn‟t an action for those damages lie even as well because it lies where
there has been an actual impact? It‟s not; however, to be taken that in my view every
nervous shock occasioned by negligence and producing physical injury to the
sufferer gives a reason for action. There is, I‟m inclined to think, a minimum of one
limitation. The shock, where it operates through the mind, must be a shock which
arises from an inexpensive fear of immediate personal injury to oneself.”

So, it was decided that Nervous shock can be claimed as a cause of action in
Negligence, when the shock has arisen from a reasonable fear of one‟s own safety.
Such an injury should be compensated.
This criterion of compensation in psychiatric harm was coined as “Impact theory” or
“Kennedy Test” by some scholars.
The impact theory was then followed for more than 20 years until the judgement of
Hambrook v Stokes Bros.

3. Hambrook v Stokes Bros. (1925) 132 LT 707: In this case, an employee (driver) of the
defendant (Stokes Bros.) left a mechanical driven lorry unattended with the engine on at
the top of a narrow street. Consequently, it slipped and ran down the street thrashing the
stuff below violently. A woman was standing on the street and a bit far from her, her
children were standing but they weren‟t visible to her. When the lorry went down
towards her children, she became worried about her children‟s safety. On the way to find
them, a person told her that a child has been injured by the lorry whose characteristics
matched with her son, this frightened the lady and she suffered from a nervous shock and
finally died from it. The question in front of the court was – Do people outside zone of
immediate physical danger owe a duty of care?

JUDGEMENT: The bench of J. Atkin, J. Sargan JJ and J. Bankes (J. Sargan JJ

dissenting) decided that the nervous shock caused to the deceased was due to her own
presence and witnessing of scene, the court said that the deceased‟s husband has the right
to recover damages for the shock she received by seeing the lorry going down herself and
not of what she heard from the bystanders. The husband was entitled to recover damages
as she was worried about her children‟s safety and not of her own.

J. Atkin said, „In my opinion it‟s not necessary to treat this reason for action as based
upon a obligation to take due care to avoid administering a shock to wayfarers.
The reason behind action, as I actually have said, appears to be created by breach
of the standard duty to take due care to avoid inflicting personal injuries, followed by
damage, albeit the kind of injury could also be unexpected – namely, shock. The
question appears to be on the extent of the duty, and not on remoteness of injury. If it
were necessary, however, I should accept the view that the duty extended to the
duty to exercise care to avoid threatening personal injury to a toddler in such
 circumstances as to cause damage by shock to a parent or guardian then
present, which the duty was owed to the parent or guardian; but I confess that upon
this view of the case I should find it difficult to clarify why the duty was confined to
the case of parent or guardian and child, and didn‟t extend to other relations of life
also involving intimate associations; and why it didn‟t eventually reach bystanders.‟

On the other hand, J. Sargant LJ, dissenting have sought to keep the road resting
on the premise of shock caused by fear of injury to oneself, and to not have extended
it thereto caused by fear of injury to another:

„In my judgment, it might be a substantial and unwarranted extension of the duty of

vehicle owners towards others in or near the highway, if it were held to
incorporate an obligation to not do anything to render them susceptible to harm
through nervous shock caused by the sight or apprehension of injury to 3rd persons.‟

So, in the final judgement, the husband was entitled to recover for the shock inflicted
on the deceased because of the reasonable fear of the immediate injury to her
children from the uncontrolled lorry. An express distinction was to be made between
shock caused by what the mother saw herself and what she might have been told by
bystanders, liability being excluded in the latter case. Persons outside the zone of
physical danger nevertheless owed an obligation of care, because injury by shock
was the sole kind of injury that was foreseeable in such circumstances.

4. Bourhill v Young [1943] AC 92 – In this case, On 11 October 1938, Mr Young had

been negligently riding a motorbike along a road, and was involved in a
heavy collision with a car, fatally injuring him. At the time of the crash, Mrs
Bourhill was about to leave a tram which she had been riding, around 50 ft. away
from the scene of the accident. Mrs Bourhill heard the crash, but didn‟t approach
immediately. Following the removal of Mr Young‟s body from the road, she
approached the scene of the accident, and saw the blood remaining from the crash.
Mrs Bourhill, who was eight months pregnant at that time, later gave birth to a
stillborn child, and claimed she suffered from nervous shock, stress and sustained
loss because of Mr Young as he was the one riding his vehicle negligently and hence
leading to the accident. The question before the court was that how extensive an
individual‟s duty is to ensure others are not harmed by their activities.

JUDGEMENT: The bench of Lord Thankerton, Lord Wright and Lord Porter, Lord
Russel of Killowen, Lord Macmillan decided that it is true that Mrs Bourhill suffered
because of the accident and received a mental sock but Mr Young can‟t be held liable for
the same as she didn‟t have a direct relation with the deceased and he didn‟t owe a duty
of care towards her. A driver‟s duty is to ensure reasonable speed and driving on the road
and adjoining premises. A duty of care is owed to those people, injury to whom cn be
reasonably anticipated.
Lord Thankerton held that the shock caused to the plaintiff wasn‟t within the
proximity of potential danger which the motorcycle driver would have reasonably
 anticipated or contemplated. It was finally held by the Lords that the
plaintiff wasn‟t sufficiently proximate to the reason behind the negligent act.
Therefore, the defendant had no duty of care towards the plaintiff. The
plaintiff couldn‟t claim any damages from the plaintiff‟s executor. Mrs Bourhill‟s
plea shall not be maintainable.

5. Wilkinson v Downton [1897] 2 QB 57- In this case, Thomas Wilkinson was the landlord
of the Albion public house in Limehouse. A regular customer of the public house named
Downton decided to play a practical joke on Wilkinson‟s wife. When Mr Wilkinson went
to see the races in Harlow, leaving his wife to manage the house. Downton approached
her and said that her husband had been seriously injured in an accident and asked that she
bring him some pillows to help carry him home. Mrs Wilkinson went to the directed
place but did not find her husband and found out that she was being fooled. However, the
shock of the news was so traumatic to her that her hair turned white and she fell severely
ill. Mr Wilkinson then sued Downton for negligence and nervous shock.
It was decided that Wilkinson had a valid claim for the international infliction of
mental shock.
 . . . . . . . . . . . . . . . . . . . . . . WORKS CITED . . . . . . . . . . . . . . . . . . . . . .

1. Law of Torts by RK Bangia Singh, S. P. Journal of the Indian Law Institute, vol. 26,
no. 4, Indian Law Institute, 1984, pp. 602–05, http://www.jstor.org/stable/43950954.
2. IPleaders Blog by Ayush Verma- https://blog.ipleaders.in/nervous-shock-law-torts/
3. Wikipedia- https://en.wikipedia.org/
4. SCC Online- https://www.scconline.com/