NERVOUS SHOCK

    Nervous shock is a psychiatric damage imposed upon somebody due to negligent or deliberate actions or lapses of another person. It is mostly concerned to sickness activated by seeing an accident, for example an injury caused to a person’s family or children, etc. This branch of law is comparatively of recent origin and provide relief to an individual who is injured physically, not by any force (such as with knife, stick, etc.) but due to what he saw or heard, which becomes the cause of nervous shock.

    For a successful claim for nervous shock, the mental state or injury must be known as a genuine psychiatric disorder – fear and terror are not sufficient. For example:

    1. Post-traumatic stress disorder
    2. Depressive disorders
    3. Adjustment disorders
    4. Anxiety disorders, etc.

    Nervous shock is a sort of accusation where the claimant can ask for compensation even though he has not suffered any evident physical injury. As our Indian law is mostly based on common law principles (except where it is incompatible to limited conditions) and law of torts being an uncodified law, at hand there is no case bluntly on the point. Therefore, this concept can be studied only by discussing English case laws which helps us to know the about the ideologies central to the obligation of nervous shock.

    CASE LAWS

    • Before 1896, the law of torts accepted only that bodily injury which was caused because of an actual impact. This imples that if there was any injury to the body due to nervous shock, without including an impact, it would not add up to any damages. This can be discussed with the help of case laws.

    CASE I: Victorian Railway Commissioners v. Coultas[1]

    Facts: In the case, the gatekeeper at a railway crossing negligently invited over the plaintiff and his pregnant wife who were driving in a buggy. When the buggy entered to crossing, the train was coming but there was no real crash with the train. Although there was no actual crash, but the getaway was so narrow and the hazard so shocking, that the lady fell comatose and underwent  a severe nervous shock that caused miscarriage.

    Held: The Privy Council held that –

    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.[2]

    • But starting from 1896 with the Pugh decision, a significant improvement took place.

    CASE II: Pugh v London Brighton & Sought Coastory Ltd[3]

    Facts: A signalman saw that there was something incorrect with one of the carriages of a fast train. In order to warn the driver, he waved a flag of red color. All this led to a nervous shock suffered by the signalman which incapacitated him.

    Held: Law should take perception of not only the physical injury imposed due to an actual impact but also take in the ground of nervous shock along with definite illness. It was said that this is as much as a bodily injury as a cracked bone or torn flesh wound.

    • The first major case of nervous shock, where the plaintiff found favor with court is:

    CASE III: Dulieu v White[4]

    Facts: The claimant (a expectant lady) was in her spouse’s public house and standing at the back of the bar. The servant of the defendant negligently drove a horse van into the said house. Although the lady was not injured tangibly, but she suffered a nervous shock which resulted in untimely delivery.

    Held: The defendants were opined to be responsible. Kennedy, J., holding the defendant liable stated – “… really mental pain and accompanied by any injury to the person cannot sustain an action of this kind…. and….damage is an essential element in a right of action for negligence. If the fear is proved to have naturally and directly produced physical effects, so that the results of the negligence which caused the fear or 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.[5]

    Although he recognized an action for nervous shock but he imposed a very big restriction when he opined that for such an action, the shock must be such as “arises from reasonable fear of immediate personal injury to oneself.”[6]

    Thus, claim admissible for a shock, where it runs through the mind, must be a shock which ascends from a rational fear of instant personal injury to oneself. It is also called “Impact Theory.”

    • The impact theory propounded by Kennedy, L.J. in Dulieu v White was abandoned.

    CASE IV: Hambrook v. Stokes Bros[7]

    Facts: The servant of the defendant left a motor lorry at the highest point of a steep and slim street unattended, with the engine running, and without having taken appropriate safety measures to protect it. The lorry started off by itself and ran hastily down the incline. Mrs. Hambrook (the claimant’s wife), who had been walking up the street had just separated from her children at a point where street made a bend. When she saw the lorry running down aggressively, she was terrified for the security of her children. Soon after that, a bystander told her that a child similar to the depiction of one of hers had been hurt. She suffered a serious nervous shock which ultimately caused her death.

    Held: The defendants were said to be liable even though the woman undergoing the nervous shock was not herself within the area of bodily injury. Bankes and Atkin L. JJ., denied the limitation imposed by Justice Kennedy in the following words:

    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 enjoy her health.[8]

    Thus, court of appeal denied the limitation proposed by Justice Kennedy and gave a different one which have extended the area of tortious liability for nervous shock. However, Justice Bankes still put a restriction by stating that “the defendant would be liable only is the shock resulted from what Mrs. Hambrook either saw or realized by her own unaided senses and not from something which someone told her.[9]But this cannot be justified on the base that shock subsequent to the report of an accident is always unforeseeable.

    • The relevant and only case decided by House of Lords is:

    CASE V: Hay or Bourhill v. Young[10]

    Facts: In this case, the appellant (Mr. Bourhill) got off from a tramcar. The driver of the tramcar was aiding her to put fish basket on her back. At that time John Young, who was riding a motor cycle negligently crashed with a motor car and he died. The appellant didn’t see accident or John Young due to hindrance by train but she could only hear the collision. Afterwards, she went to the scene of the incident and saw blood on the road. She suffered a shock due to this and gave birth to a premature baby.

    Held: Her claim was denied and defendants were not held liable. Lord Thankerton stated that the duty of a motor-cyclist is to drive his motor cycle “with such reasonable care as will avoid the risk of injury to such persons as he can reasonably foresee might be injured by failure to exercise of such reasonable care. It is now settled that such injury includes injury by shock, although no direct physical impact occurs. If then, the test of proximity or remoteness is to be applied, I am of opinion that such a test involves that the injury must be within that which the cyclist ought to have reasonably contemplated as the area of potential danger which would arise as the result of his negligence…[11]

    Lord Macmillian considered the duty of the motor cyclist and stated that the duty is owed to persons so placed that they may reasonably be anticipated to be injured by omission of such duty. He said that in the present case “the appellant did not see the accident and she expressly admit that her terror did not involve any element of reasonable fear of immediate bodily injury to herself. She was not so placed that there was any reasonable likelihood of her being affected by the cyclist’s careless driving. In the circumstances I am of opinion that the late John young was under no duty to the appellant to foresee that his negligence in driving at excessive speed and consequently colliding with a motor car might result in injury to her, for such a result could not reasonably and probably be anticipated. He was, therefore, not guilty of negligence in a question with the appellant…[12]

    Thus, Close degree of proximity is necessary to establish a claim and foreseeability of injury an essential ingredient of duty of care.

    • The question of damages for those who are normal healthy persons and get nervous shock, although not within the area of potential danger, remains in the dark. The case worth mentioning is:

    CASE VI: King v Phillips[13]

    Facts: On Aug 2, 1951, a small boy was riding a tricycle in Bristall Road, London. The defendant’s servant was negligently backing a taxi cab into his tricycle. This slightly injured the child. The boy’s mother, who was in an upstairs window, at a distance of about 70 to 80 yards could only see the tricycle under the cab and she heard the boy’s scream but she couldn’t see the boy. The mother suffered a nervous shock.

    Held: The mother was held to be outside the reasonable apprehension and the defendants were not held liable. According to Singleton, L.J., “The driver owned a duty to the boy, but he knew nothing of the mother; she was not on the highway, he could not have known that she was at the window, nor was there any reason why he should anticipate that she would she his cab at all.[14]

    Denning, L.J., distinguished this decision with that of Hambrook’s case and stated:

    …I think that the shock in this case is to remote to be a head of damage. It seems to me that during slow backing of the taxi cab, the driver cannot be reasonably be expected to have foreseen that his backing would terrify the mother 70 yards away, whereas the lorry driver ought to have foreseen that a runaway lorry might seriously shocked the mother of children in the danger area.[15]

    Thus, foreseeability of the likely injury by the defendant is necessary.

    • The emphasis on recognizable psychiatric illness was made in this case.

    CASE VII: Hinz v. Berry[16]

    Facts: Mr. and Mrs. Hinz had four children and Mrs. Hinz was pregnant with the fifth child. They were having a picnic when Mrs. Hinz went across the road with one of her children to pick bluebells. Mr. Hinz was making tea when a jaguar driven by Mr. Berry came hurtling at a speed. A tyre burst and the driver lost control of the car and her husband died and children were injured. Mrs. Hinz witnessed the horrible scene and became depressed.

    Held: She was entitled to recover as she had demonstrated a recognized psychiatric condition as opposed to feelings of grief and sorrow.

    Lord Denning M.R. stated that “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 recognizable psychiatric illness caused by the breach of duty by the defendant.

    Thus, damages are recoverable for Nervous shock for recognizable psychiatric illness caused by breach of duty of defendant. No damages are to be given for worry of victims, grief, sorrow, financial strain or stress, or the difficulties of adjusting to a new life.

    • The House of Lords made an exception in this case to the area of reasonable foresight, namely, that in certain circumstances it is not necessary that the plaintiff must be present in the area of vicinity at the time of the accident.

    CASE VIII: Mcloughlin v. O’Brian[17]

    Facts: The plaintiff’s husband and three children had a serious road accident when their car was struck by a lorry due to defendant’s negligence. They were taking to the hospital and the plaintiff’s daughter died. She was informed about the accident one hour later. At that time, she was at home which was two miles away. When plaintiff saw her injured husband and children and heard about the death of her daughter, she suffered a serious nervous shock.

    Held: The plaintiff was entitled to damages and the defendants were held liable as it was reasonably foreseeable consequence of defendant’s negligence. Lord Wilberforce stated that “Experience has shown that to insist on direct and immediate sight or hearing would be impractical and unjust and that under what may be called the ” aftermath “doctrine, one who, from close proximity comes very soon upon the scene, should not be excluded…. and by way of reinforcement of ” aftermath ” cases, I would 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 no 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 strictest of proximity by sight or hearing should be applied by the courts.

    Thus, Proximity factor further expanded and clarified and ‘Aftermath Doctrine’ was established which implies reasonable foreseeability includes aftermath scenario.

    • Why the defendant was held liable in Mclaughen case was explained by House of Lords in another case:

    CASE IX: Alcock v Chief Constable, South Yorkshire Police[18]

    Facts:   The plaintiffs suffered a nervous shock when disaster at a football match was televised live but without depicting the suffering or dying of recognizable individuals.

    Held: The defendants were not held liable. The plaintiff must have close degree of relationship of love and affection with the primary victim.

    • Similarly, in:

    CASE X: Page v. Smith[19]

    Facts: The plaintiff was directly involved in an accident was physically unhurt but suffered ‘Myalgic Encephalomyelitis’ a psychiatric illness which he had earlier but was in the stage of remission.

    Held: The injury was not foreseeable in a ‘person of normal health’ but as personal injury of physical harm was foreseeable, the defendants were held liable. The House of Lords laid down the following propositions which may be taken as guiding factors in deciding such kind of cases:

    (1) In cases involving nervous shock, it is essential to distinguish between the primary victims and secondary victims. (2) In claims by secondary victims the law insists on certain control mechanisms, in order as a matter of policy to limit the number of potential claimants. Thus, the defendant will not be liable unless psychiatric injury (injury by nervous shock) is foreseeable in a person of normal health. These control mechanisms have no place where the plaintiff is the primary victim. (3) In claims by secondary victims, it may be legitimate to use hindsight in order to be able to apply the test of reasonable foreseeability at all. Hindsight, however, has no part to play where the plaintiff is the primary victim. (4) Subject to the above qualifications, the approach in all cases should be the same, namely, whether the defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury, whether physical or injury by nervous shock. If the answer is yes, then the duty of care is established, even though physical injury does not, in fact, occur. there is no justification for regarding physical and psychiatric injuries to different kinds of damage. (5) 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 recognized psychiatric illness. Nor is it relevant that the illness takes a rare form or is of unusual severity. The defendant must take his victim as he finds him.[20]

    Thus, there is no need to establish psychiatric damage was foreseeable. Defendants illegal act need not be the sole source of the damage.

    CONCLUSION

    Thus, in conclusion, it is because of the ambiguity and uncertainty of the concept that the House of Lords encountered a lot of trouble and therefore laid down some testimonials:

    • where the secondary victim has close relationship of love and affection with the primary victim and also that his proximity to the accident was sufficiently close in period and place,[21]
    • In case of secondary victims, it may be legitimate to use hindsight in order to be able to apply the test of rational foreseeability at all[22], and
    • Tortfeasor must take the sufferer as he finds him[23]

    However, conditional to aforementioned prerequisites, the approach in cases of nervous shock should be the same, namely, whether the offender can reasonable foresee that his conduct will expose the claimant to the risk of getting injured physically, whether physical or injury by nervous shock.


    [1] Victorian Railway Commissioners v. Coultas, 13 AC 222, (1888)

    [2] S.P. Singh, Law of Tort, p. 166, 5th edn, (2010)

    [3] Pugh v London Brighton & Sought Coastory Ltd, 2 QB 248, (1896)

    [4] Dulieu v White, 2 KB 669, (1901)

    [5] S.P. Singh, Law of Tort, p. 166, 5th edn, (2010)

    [6] R.K. Bangia, Law of Torts, p. 289, 21st edn, (2008)

    [7] Hambrook v. Stokes Bros, 1 KB 150, (1925)

    [8] S.P. Singh, Law of Tort, p. 166, 5th edn, (2010)

    [9] S.P. Singh, Law of Tort, p. 166, 5th edn, (2010)

    [10] Hay or Bourhill v. Young, 2 All ER 396, (1942)

    [11] S.P. Singh, Law of Tort, p. 166, 5th edn, (2010)

    [12] Ibid

    [13] King v Phillips, 1 QB 429, (1953)

    [14] R.K. Bangia, Law of Torts, p. 289, 21st edn, (2008)

    [15] S.P. Singh, Law of Tort, p. 166, 5th edn, (2010)

    [16] Hinz v. Berry, 2 QB 40, (1970)

    [17] Mcloughlin v. O’Brian, 2 QB 40, (1982)

    [18] Alcock v Chief Constable, South Yorkshire Police, 4 All ER 907, (1991)

    [19] Page v. Smith, 1 AC 155, (1996)

    [20] S.P. Singh, Law of Tort, p. 166, 5th edn, (2010)

    [21] Mcloughlin v. O’Brian, 2 QB 40, (1982)

    [22] Page v. Smith, 1 AC 155, (1996)

    [23] Ibid