A Brief on the concept of nervous shock under law of torts
Nervous shock can be said to be a species of bodily harm done by a person by willfully or negligently conducting himself in such a manner as to cause shock to the other person. This shock becomes responsible for the damages suffered henceforth. It is more often than not a psychiatric disorder that gets triggered after witnessing an incident(accident). The psychiatric damages that re suffered by the claimant should extend much beyond emotional distress or grief that s recognized as a mental illness – like reactive depression or anxiety neurosis. The damages suffered as a result of the loss of a close one can be availed under the Fatal Accidents Act 1976. In the case of Gatzow V Buening, it was reasoned that in case of psychiatric injuries, the monetary value required for recovery would be purely based on conjecture or speculation.
The case of Byrne V Southern and Western railways[1] is what paved the way for the recovery for nervous shock in Ireland and England. A train that had just arrived had broke through a wall of the telegraph office. Compensation for nervous shock was given.
Intentionally inflicted nervous shock
It is well established under English law that a person that has intentionally caused another person emotional distress without any good reason shall be liable for any psychiatric injury that follows. In the case of Wilkinson V downtown[2], the defendant played a practical joke on the plaintiff by falsely yelling the wife that her husband had met with an accident and had broken both of his legs. On hearing the news of her husband, the wife got nervous shock and fell ill. Her hair turned completely white. The husband had to incur huge medical expenses for treating his wife; he sued the man. The court held this to be nervous shock as this was a species of bodily harm.
Negligently inflicted nervous shock
In order for a claimant to get compensation for the damages suffered because of nervous shock due to the negligent conduct of the person, first all the elements of tort of negligence should be proved
- The existence of a duty of care should be shown (the duty of the person to not in any way inflict nervous shock upon the other.
- There should be a breach of such duty
The courts have laid down certain requirements for recognizing duty of care to mot cause nervous shock.
- The claimant should witness the nervous shock from his own senses unaided. This would require a close proximity to the event, like a bystander or a witness and would not include things seen on tv or heard from an indirect source.
- The shock should be instantaneous and not gradual assault on the claimant’s nervous system.
- In case of suffering a nervous shock due to death of a person, then it is pertinent that a close, proximate relationship should be proven between the two. Such relationships can be said to exist between children and parents, siblings, spouses etc. In the case of Hinz V Berry[3], a woman suffered a morbid, prolonged depression due to the death of her close relatives in a crash.
- The nervous shock suffered should be something that can be reasonably foreseeable by a reasonable man
- There should be a link between the breach of duty and the psychiatric illness suffered. Nervous shock should be the direct consequence of the breach.
- The nervous shock suffered should not be too remote of a consequence of the breach.
Primary victim of nervous shock
A primary victim is someone who suffered physical injury or could have been reasonably foreseen to have gotten physically injured as a result of the defendants conduct. In the case of Page V Smith[4], the claimant was involved in an accident in which he suffered no physical injuries. But as a result of the accident, the chronic fatigue syndrome that he was suffering from sporadically, no became more permanent and chronic, making him unable to work in his fulltime job. The court held that it was reasonably forseeable that he would suffer some physical injury as a result of the defendant’s negligence. In the case of Dulieu V White[5],it was held that compensation can be claimed only for the person themselves and not a third party. In the case of Hambrook V Stokes[6], the question that came up was whether could be recovery of damages suffered in fear or apprehension of a third party; it was held that this was possible.
Earlier the rescuers like the policemen and the firefighters who suffered nervous shock were considered primary victims. In the case of White and others V Chief Constable of south Yorkshire[7], the claimants were policemen were stationed in duty at a football stadium and witnessed firsthand a tramped in which around 95 people were killed. They brought forward a claim for the nervous shock suffered due to witnessing this. The court held that there was no duty for protecting the claimants from psychiatric harm as they were clearly out of physical danger. The rescuers would be classified as secondary victims and not primary and would also have to fulfill the conditions for the same that was specified in this case.
Secondary victims
This is someone that suffers nervous shock without himself being directly involved with the accident. More likely, this would be a person that has witnessed something disastrous – like an accident. The courts too have been a little reluctant to award compensation in such cases. In the case of Taylor V A Novo[8], a mother suffered injury because of the negligence of a coworker when a stack of boards fell on her. Although she made a good recovery, she unexpectedly died. Her daughter did not witness her mother’s accident, but suffered post-traumatic stress disorder at the time of her mother’s death. Judge Dyson held the sustaining of injuries and the woman’s subsequent were distinct events in themselves
[1] 1884
[2] (1897) 2 QB 57
[3] CA 1970
[4] (1996) AC 155
[5] 2 KB 669 High Courts bench
[6] 1925 1 kb 141
[7] (1999) 2 AC 455
[8] (2013) EWCA Civ 194
Author: Palguna M,
School of Law Christ University 2 year
