This article has been written by Yash Dodani, a Second-year law student at NALSAR University of Law. He has tried to explain the position of the nervous shock in tort law.  

Overview

The tort law was always considered as unwritten principles for physical injuries. The courts have earlier said that nervous shock or we say it psychiatric injury will not be entitled to any compensation. They said that in no manner nervous shock can be considered as same as physical damage. However, they were very clear that if the nervous shock is so direct to the physical damage that it can cause harm to mind, then they have allowed damages for a nervous shock as well. However, through various cases and the precedents, the courts have recognized the mental trauma as a pigeon-hole for compensation under the tort law. This article will get the reader to understand how the courts have and will consider various determinants for understanding to what extent the shock is caused and how much damages or compensation should be given to the affected party. All the guidelines are also meant to close the floodgate to the claims. Introduction

 “In the case of mental shock… there are elements of greater subtlety than in the case of an ordinary physical injury and these elements may give rise to debate as to the precise scope of legal liability”.[1] Tort law has not been made by any written codified law. Instead, it is made up of precedents in the case laws which come to the courts. Tort means a civil wrong. Tort law is made up of various forms of faults done by any individual or a group of people, may be artificial. Fault is the whole point In a tort law. Tort law tries to bring the party who suffered to the original position, as they were, prior to the happening of that very wrong. It can be something like insurance, which also has a similar motive. Tort law aims at making good the loss suffered by the plaintiff, i.e. it seeks to make the plaintiff whole.[2] The tort law does not give any punishment to the person who has done wrong until that wrong was done with wrong intentions. It majorly gives compensation to the innocent party for what losses they have suffered for the negligent behaviour of the wrong doing party. The English legal system has however often said that including nervous shock in the purview of tort law will be a big controversy. Various judges and scholars have said the results of including nervous shock in the purview of tort law will have unwanted results. This is often called as nervous shock or mental trauma. In recent years the courts have begun to move away from this terminology and have begun to talk about ‘psychiatric illnesses rather than nervous shock.[3] This article will, through case laws will bring the development of nervous shock as an area of development, the tests which are used to determine the extent of shock and also to determine the compensation and inside, close the floodgates of claims.

For many years in the English legal system, the talk to include nervous shock in the tort was rejected by the courts because of the controversial nature of it. It was argued that if any injury can’t be seen, it can’t be shown to the courts and hence the damages can’t be claimed. Various scholars tagged it as less worthy to ask for compensation.  However, with the development of the time, the courts have given recognition to the nervous shock. Lord Macmillan has given the elements that a plaintiff must prove in order to get damages for nervous shock.

  1. Duty of care;
  2. Breach of that duty;
  3. That breach caused the shock;
  4. The shock is not too remote.

Out of fear for false claims and unrestricted liability of defendants, the courts have created a number of “control mechanisms” which can limit liability.[4] It was first seen in the case of McLoughlin v O’Brian.[5] It gave a three-part test in order to restrict the compensation. The distinction between the physical harm and the nervous shock is also important and it is discussed in the case of White v Chief Constable of South Yorkshire. It also discussed the problems of giving nervous shock a recognition due to the following reasons:

  1. It said that there is a lot of evidential problems;
  2. Opening of the floodgates;
  3. The problem of posing liability on the defendant to give a lot of compensation, and will be unfair.

However, the Law Commission report in 1998 claimed that these reasons equally apply to physical harm as well. It also suggested that it is however not really possible to prove the kind of harm that the plaintiff is in- in a nervous shock.

Primary and Secondary Victims

Before we go and analyse the report of the Law Commission, it is important to understand the development of this field and how judges have placed the limitations in order to restrict the scope of the word ‘mental injury’. A very early case on this front is the case of Dulieu v White and sons, where Kennedy J gave a test to determine the liability of the defendant in a nervous shock case. The test is a two-fold test.

  1. The degree to which the shock is presented in the courts should be foreseeable and
  2. The shock must arrive from a reasonable fear that might cause physical harm.

This test made a distinction between a primary victim and a secondary victim in the sense that the party who is directly involved in an accident and has a reasonable fear of having a physical injury is a primary party and rest all are secondary victims.

But this test was reduced in the case of Page v Smith where the judges held that where the reasonable foreseeability can be proved, there “physical and psychiatric harms are not of different types, so that if the former is foreseeable, the claimant can recover in respect of both physical and psychiatric harms, even where the latter is not in itself foreseeable”. This means that the requirement for the plaintiff is to prove that they were in the purview of the physical injury and then they are directly eligible to get compensation for the nervous shock/ mental illness. But this may open the floodgates, if the nervous shock was not foreseeable.

But some well 2 decades after, the case of Hambrook v Stokes Bros[6] came where the judges said that the nervous shock can also come to the close relatives and friends of the victim and they can also claim the damages for the same. These people were said to be the secondary victims of the case. Now the judges have also included the proximity part while limiting the scope of the nervous shock liability.

The number of cases of this front were increasing at a rapid pace. Then came the case of Bourhil v Young where the counsels for the plaintiff had tried to expand the scope of the tests and were trying to establish that the person who is not at all related to the primary victim, nor is in proximity to the accident, or not even a prime witness to it, can also claim for the damages. But they were failed to do that.

So the final test for primary victims claiming the compensation under the nervous shock must prove that they were in the zone of physical danger and the secondary victims need to prove proximity and the relation between them and the primary victim.  

Control mechanism

The courts have taken different approaches to evolve the concept of nervous shock as a tort. Like the case of McLoughlin v O’Brian where the House of lords was clear that the compensation can be given in this case but the split came out while deciding the test of liability. Some judges said that the liability should not only be based on foreseeability and the following factors should also be taken into account:

  1. The class of plaintiff in the sense that the relation between the plaintiff and the primary victim.
  2. Proximity in rime and space.
  3.   the means by which the psychiatric illness was caused – it must come through the plaintiff’s own sight or hearing of the event or its immediate aftermath; communication by a third party was not sufficient.

This test was given by Lord Wiberforce and afterwards, it was known to be ‘Alcock test’ and this test was used to control the number of claims. This test was also applied a decade later in many cases one of which was the case of Alcock v Chief Constable of South Yorkshire.[7] However, by applying this test the court said that the claim could not be allowed because the above conditions were not fulfilled.  However, to my opinion, the House of Lords have taken a very narrow approach then what actually this test was. However it is also important to do so to stop the public from making such claims, but it can be allowed for those who saw a live telecast and seeing their loved once to die in front of them. The test is an ‘and’ criteria and not an ‘or’. It means that all the conditions need to be proven. One plaintiff in the Alcock case who saw two brothers of his dying, failed to prove his claim because he suffered from stress much after the incident took place.

However, the situation today is the same as it was made by the courts. These controls need to be taken into account while making claims of nervous shock. These mechanisms need to be taken into account to control the floodgates of claims.

Law Commission Reports

The law commission report suggested that the claims with regards to the secondary victims need to be restricted otherwise it would open the floodgates to the number of cases. At the same time, it should also work according to the judicial precedents and use of judicial powers to give justice to the innocent.  The law commission also said that the proximity in terms of time and space should not be used.  They said it after giving this example  “How many hours after the accident the mother of an injured child manages to reach the hospital should not be the decisive factor in deciding whether the defendant may be liable for the mother’s consequential psychiatric illness”[8] However it can be argued in both ways. However, to the floodgates argument, the commission said that the love and affection fold should be strictly used and to give more clarity, they gave a fixed list of relationships.

They accepted that the floodgate will be open by their reforms but then it said that the courts should look at the policy considerations to allow/reject those claims.  

[1] Bourhill v Young [1943] AC 92

[2] Mullany, NJ and Handford, PR (1993), Tort Liability for Psychiatric Damage

[3] Napier, M and Wheat, K (1995) Recovering Damages for Psychiatric Injury

[4] Teff, H (1983) ‘Liability for Negligently Inflicted Nervous Shock’ 99 Law Quarterly Review 100

[5] [1982] 2 All ER 298

[6]  [1925] 1 KB 141

[7] [1992] 1 AC 310

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