Nervous Shock

A Project Report On NERVOUS SHOCK 

RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW INDIAN INSTITUE OF TECHNOLOGY KHARAGPUR  WEST BENGAL OCTOBER, 2007

Submitted by: Nidhi Anand 09IP6014

NERVOUS SHOCK 

INTRODUCTION:

 Nervous shock is a phrase used to describe a type of claim, most usually in negligence, where injury to the claimant is not clearly physical. One may not claim for nervous shock due to a physical injury caused by, say, being run down by a vehicle or kicked by a horse. Similarly, merely because one has suffered a fright and subsequently an emotional reaction, this is not in itself cause for nervous shock 1. The physical injury must be a visible disability or provable illness or injury in order to give rise to a claim. An actual or apprehended physical injury to a plaintiff or to a person other than the  plaintiff is a necessary requirement of law in an action for nervous shock. The condition of actual or  apprehended physical injury must be satisfied in order for recovery of damages to succeed.

HISTORY:

The historical developments of nervous shock are slow to take form and this is shown in the case, heard in the Privy Council, of  Victorian Railway Commissioners v Coultas .2 In this case a railway crossing gate keeper had negligently left the gate open, allowing Mr and Mrs Coultas to cross when the train was approaching. They narrowly avoided the train, but Mrs Coultas suffered psychiatric injury as a result of the near miss. Whilst initially successful, on appeal, the Privy Council held that damages arising from mere sudden horror, unaccompanied by any physical injury, but occasioning  psychiatric illness, could not be considered a consequence, which would follow from a negligent gatekeeper. In  Dulieu v White & Sons,3 Justice Kennedy held that a person could claim for psychiatric injury only if they were themselves within the range of potential physical harm. Kennedy J stated that recovery for nervous shock will only be allowed if the injury arose “from a reasonable fear of  immediate personal injury to oneself.” This limitation was later relaxed by the Court of Appeal in Hambrook v Stokes, 4 where a mother was allowed recovery after suffering psychiatric illness from anticipated injury to her children, even though she did not observe her children being harmed. Mrs Hambrook eventually discovered that her  daughter Mabel was seriously injured. In allowing recovery however the court excluded recovery where the nervous shock was suffered following third party communication of the incident. Lord Oliver in the 1992 decision of  Alcock v Chief Constable of South Yorkshire Police ,5 espoused the proposition that claimants suffering psychiatric illness may recover if they viewed the incident with their “own visual perception” rather than through third party communication. This requirement of “own visual perception” is the primary threat to recovery for ‘nervous shock’ by claimants who view distressing events on television broadcasts because viewing through this medium is unlikely to  be equivalent to ‘own visual perception’. One such case was  Bourhill v. Young 6 , in which the pursuer, an Edinburgh fishwife, suffered a miscarriage as a result of hearing the noise of an accident, and later seeing a pool of blood in the 1

Ratanlal and Dhirajlal, ‘The Law of Torts’ , 24th edition 2004 (1888) 1 3 App. Cas. 222. 3 (1901) 2 K.B. 669 4 (1925) 1 K.B. 141 5 [1992] 1 AC 310, 412. 6 16 [1943] A.C. 92. 2

road. She was about sixty feet away from a collision which had taken place between a motor bicycle and a car. A tram, from which she had just alighted, was between her and the accident. The House of Lords treated the case entirely as one of the existence of a duty of care, depending in the circumstances on the possibility of foresight of damage from emotional shock. Their lordships did not consider the  possibility of damage from physical impact could reasonably have been foreseen; nevertheless, as Denning L.J. has pointed out in a recent case, the fishwife would have been entitled to recover if by some freak chance she had been struck 7 It would, of course, have been a very different kind of  accident for this to have happened, and the question raises very difficult metaphysical problems as to the situation of the hypothetical reasonable observer in time and space. The accident between the two vehicles was agreed to have been the fault of the cyclist, but it was pointed out in the House of  Lords that although he was driving his cycle at an excessive speed, it was nevertheless under control and there could be no possibility of a person in the pursuer's position being in danger from physical impact. PRIMARY AND SECONDARY VICTIMS :

Mental suffering amounting to a recognisable psychiatric illness, when not consequent to personal injury, is redressable in a limited class of cases for which purpose the sufferers are divided into two categories : 1) 2)

Primary victims Secondary victims

Primary victims are those who are participants in the event or in other words, are in the actual area of  danger of receiving foreseeable personal injury but suffer only a recognisable psychiatric illness and escape personal injury by chance or good fortune. They are entitled to receiveing compensation for mental suffering which amounts to a recognisable  psychiatric illness even if psychiatric illness was not foreseeable. Secondary victims are those which are not participants in the event or in other words are not in the area of danger of receiving foreseeable personal injury but yet suffer recognisable psychiatric illness. A plaintiff falling under this category can be allowed damages if the following conditions known as ‘control mechanism’ are satisfied: a) The plaintiff must have close ties of love and affection with the main victim. Such ties must be established by evidence, if not spouse, parent or children. b) The plaintiff must have been present at the accident or its immediate aftermath. c) The psychiatric injury must have been caused by direct perception of the accident or  its immediate aftermath and not upon hearing about it from someone else. A plaintiff who was an employee of the tort-feasor and suffered psychiatric injury in the course of his employment but who was not within the range of foreseeable physical injury has to prove the conditions mentioned above. The mere fact of employer and employee relationship with the tort- feasor cannot enable him to claim as a primary victim. Similar is the position of a plaintiff who was a rescuer and suffered  psychiatric injury by witnessing or participating in the aftermath but who was not within the range of  foreseeable physical injury. 8

7

 King v. Phillips [1953] 1 Q.B. 429 Ratanlal and Dhirajlal, ‘The Law of Torts’, 24th edition 2004 p. 200

8

Such a plaintiff also cannot be given any special treatment simply because he was a rescuer and has to prove the above mentioned conditions, like any other secondary victim. The effect of the decision in White’s case is to finally replace the test of foreseability of psychiatric injury to a person of  normal fortitude which started from Bounhill v. Young9, by the test of foreseability of personal injury incase of primary victims and by the control mechanisms mentioned above incase of  secondary victims. These tests which are reaffirmed in White’s case10 have their origin in Alcock v Chief Constable of South Yorkshire Police11 and Page v. Smith12. Policy considerations have played an important role in treating pure psychiatric injury different from personal injury and in limiting the area within which compensation can be claimed for the former. RECOVERY OF DAMAGES:

In order to recover damages for nervous shock a plaintiff must establish: (a) That he or she actually suffered a recognisable psychiatric illness. (b) That such illness was shock induced. (c) That the nervous shock was caused by the defendant's act or omission. (d) That the nervous shock sustained was by reason of actual or apprehended physical injury to the  plaintiff or a person other than the plaintiff. (e) That the defendant owed him or her a duty of care not to cause him or her a reasonably foreseeable injury in the form of nervous shock as opposed to personal injury in general.13

MEDICAL AND LEGAL ASPECTS:

There is no direct coherence between medical and legal concepts or between medical and legal ways of thinking.14As a result, there are often substantial difficulties in translating the findings of one (medicine) into the decisions of the other (law). In order to minimise interdisciplinary confusion, it is necessary for each to have an understanding of the approach of the other. To establish negligence a plaintiff must show that: (1) The defendant owed the plaintiff a duty of care (because the defendant should have had the plaintiff's  possible injury in mind) (2) There was a breach of the duty of care (according to the relevant legal standard) (3) The damage suffered was caused by the breach (that is, the breach caused the psychiatric injury). Except in cases of alleged psychiatric negligence, psychiatric expertise is relevant only to the description of any (psychiatric) damage , it  and its prognosis, with or without treatment. The court will put a direct monetary value on any financial loss which flows from the psychiatric injury (for  example, specific loss of employment), and will attempt to do so with regard to any nonfinancial loss (for example, loss of libido or suffering from psychiatric symptoms generally). Psychiatric evidence 9

(1942) 2 All ER 396 (HL) (1999) 1 All ER 1 pp.40,41 (HL) 11 (1991) 4 All ER 907 (HL) 12 (1995) 2 All ER 736 (HL) 13 John Murphy ‘ Street on Torts’ , 11th edition 14 David W. Robertson,  Liability in Negligence for Nervous Shock , The Modern Law Review, Vol. 57,  No. 4 (Jul., 1994), 10

is therefore relevant in relation to causation of the first type of loss and in offering a description of  the second type. The latter will directly affect the 'quantum' of damages, as will any estimate of  appropriate treatment (and likely outcome), further damages being implied by virtue of treatment cost.15 The reasoning which sets up nervous shock as a separate tort is fairly characteristic of the prevailing confusion as to the causation of damage from emotional shock. This has been enhanced by difficulties in terminology16,which has led to breakdown in communication between Medicine and the Law on the subject. Furthermore the position has not been assisted by inaccurate observations on causation which have appeared in legal periodicals, and, in some cases, have seeped into the courts.17 The necessary co-operation between medicine and the law is probably delayed by the fact that the two professions appear to be out of sympathy with each other  over the question of personal damages. The first step in assessing liability for personal damage of any kind is to establish the medical connection between the alleged damage and the act or omission in question. This preliminary inquiry is not concerned with any qualification such as the proportion of the damage caused by the act, the contribution of pre- existing damage, or the effect of susceptibility to the type of damage suffered; it is concerned solely with the question whether the alleged personal damage, or any part of it, can be connected in the medical sense with the act which is alleged to have been negligent. If there is no evidence of such connection the action will fail.18 The next step is to determine what damage is actionable in negligence. For reasons of policy the courts have restricted recovery for nervous shock to that resulting in physical illness; in other words mental distress unaccompanied by such illness will not be actionable.19 This restriction requires analysis in terms of medical causation. Damage from emotional shock may  be, in medical language, "somatic " or " psychic," and not infrequently it is a combination of both. These terms mean respectively "organic" (i.e., physical) and "mental" (i.e., non-physical). Organic sequelae of an emotional shock would include miscarriage, coronary thrombosis and cerebral haemorrhage (" stroke ").20 Psychic sequelae would include hysteria and various neuroses. It is important to note that psychic damage may give rise to physical symptoms; hence conversion hysteria (purely psychic damage) may give rise to paralysis of one or more limbs, a condition which would clearly rank as physical illness for legal purposes. One way of expressing the distinction is to create separate " body safety " and " mind safety " interests, with the result that the defendant will not be liable for directly consequential damage from emotional shock if damage from physical impact alone should have been foreseen21; the converse 15 16

 Advances in Psychiatric Treatment (1995), Nigel Eastman, vol. I, pp.154-160

e.g., in medical terminology the term "shock" is used in at least two completely different senses. A notable culprit is the note appearing in (1933) 11 Can.Bar Rev. 516, which not only confuses surgical shock (which has nothing to do with emotion) with nervous shock, but also states that irreversible organic changes, i.e., physical damage, may occur in the nervous system tissue as a result of emotional shock. This proposition, which can be supported by no medical authority whatsoever, clearly influenced Evatt J., who quoted it in Chester v. Waverley Corporation (1939) 62 C.L.R.I. 1, in a  judgment which Lord Wright thought ' will demand the consideration of any judge who is called upon to consider these questions": Bourhill v. Young [1943] A.C. 92 at 110. 18 The Modern Law Review, Vol. 19, No. 5 (Sep., 1956), pp. 478-497 19 Austin v. Mascarin [1942] 2 D.L.R. 316, in which " interference with the physical well-being" of a mother who had seen her child injured in an accident was held actionable in negligence. It appears that an action in negligence must be sustained by something more than a temporary dis- turbance, whether   physical or emotional. The position with intentionally inflicted harm is not clear. Note however that " interference with health and comfort " amounts to " actual bodily harm " . 20 Steve Hedley, Nervous Shock: Wider Still and Wider? The Cambridge Law Journal, Vol. 56, No. 2 (Jul., 1997), pp. 254-257 21 A proposition which is strongly disapproved of by Singleton and Denning L.JJ. in King v. Phillips [1953] 1 Q.B. 437, 440. See also Donovan J. in Dooley v. Cammell Laird d Co. [1951] 1 Lloyd's Rep. 271. The distinction is not recognised by the American Restatement of Torts, Vol. 1, s. 17, and was 17

would also apply. This proposition would confront the medical evidence with an impossible task of  apportionment where the plaintiff's damage is of both types, and it is submitted that the result would  be discreditable to any system of jurisprudence. Whereas there was during the latter part of the last century some support for the medical concept of specificity of damage, modern medical experience has shown that in most illnesses it is not possible to isolate the emotional and physical factors to the extent which would be required by the courts if the distinction were to be accepted. It seems unreasonable to erect a special tort in the case of emotional shock. It is true that it is not, apparently,  possible to bring an action in trespass for intentionally caused emotional shock, but it appears that even this distinction will have to be reviewed in the light of recent work on the historical development of trespass.22 PRESENT SCENARIO IN INDIA:

The courts in India have been more generous in awarding damages for mental suffering. Damages for mental agony in a case of harassment of the plaintiff by the officers of a public authority were allowed by the Supreme Court 23. Damages for mental agony were also allowed to parents when their  child because of negligence of hospital , where he was taken for treatment suffered severe damage due to negligence of the hospital stall and was left in a vegetative state.24 The child was separately allowed damages for the injury suffered in the same case. In the case of   Ravneet Singh Bagga Vs.M/s KLM Royal Dutch Airlines 25 the appellant booked his  passage through the respondent KLM Airlines to attend his business commitments at New York on 18th October, 1991 and as he could not reach in time allegedly on account of negligence and deficiency in service of the said respondent, he filed a complaint before the National Consumer  Disputes Redressal Commission (hereinafter referred to as the "National Commission") praying therein for payment of US $76,000 or the equivalent thereof in INK with interest @ 24% per annum from 18 October, 1991 to the date of the filing of the petition as also pendente lite and future interest at the same rate till realisation. He also claimed Rs. 5 lacs with interest, both pendente lite and future @ 24% per annum towards damages for an emotional distress, nervous shock, pain and suffering and US $450 or equivalent thereof in INR together with interest both pendente lite and future @ 24% per  annum till realisation towards medical and transportation expenses. The complaint was dismissed by the National Commission vide the order impugned in this appeal. The order of the National Commission is alleged to be against law, facts and the provisions of the Customer Protection Act, 1986 and the prevalent practice of carrying the passengers in the Airlines. It was found that the complainant had been taking contradictory stands. On perusal of the whole record it was of the opinion that the respondents could not be held guilty of deficiency in service entitling the complainant for compensation as claimed by him. Though, for unforeseen reasons and suspicious circumstances not attributable to the complainant, he had been subjected to great harassment and mental torture but it is equally true that for those circumstances none of the respondents was guilty. Also,the Madras High Court has held that the theory that damages at law could not be proved in respect of personal injuries unless there was some injury which was variously called ‘bodily’ or  ‘physical’ , but which necessarily excluded an injury which was only ‘mental’ is wrong at the

resisted by Winfield, Textbook of the Law of Tort, 5th ed., 38. 22 The new theory regards trespass vi et armis not as the ancestor of trespass, but as a distinguished member of the same generation; they were all just actions in tort, and there was no special magic about those redressing forcible injuries "; Milsom [1955] C.L.J. 107. 23  Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787. Distinguished in Gaziabad   Development Authority v. Union of India , JT 2000 (7) SC 256 (compensation for mental agony cannot  be allowed in cases of breach of contract ). 24 Spring Meadows Hospital v. Harjot Ahluwalia, JT 1998 (2) SC 620 25 (2000)1SCC66

 present day . It is only shock of this description which can be measured by direct consequences on  bodily activity which can form the basis for an action in damages.26

CONCLUSION:

If some psychiatric illness induced by shock was reasonably foreseeable by the tortfeasor as a natural and probable consequence of the breach of his duty of care (the plaintiff for the purpose of this exercise being assumed to be a person of normal disposition and phlegm) then the court will hold that the plaintiff is entitled to recover damages for any recognized psychiatric illness which the  plaintiff actually suffers and for such of its direct consequences as are not dissimilar in type or kind, whether or not those consequences were initially reasonably to be foreseen. The fact that those consequences were more likely to occur or were more severe in the plaintiff's case than in the case of  a person of a different disposition does not absolve the defendant of liability in negligence with respect to those consequences.

BIBLIOGRAPHY:

Ratanlal and Dhirajlal, ‘The Law of Torts’, 24th edition 2004

1) 26

 Halligua v. Mohan Sundaram, (1951) 2 MLJ 471

2) John Murphy ‘ Street on Torts’, 11th edition 3)  Advances in Psychiatric Treatment (1995), Nigel Eastman, vol. I, pp.154-160. 4) David W. Robertson, Liability in Negligence for Nervous Shock  :The Modern Law Review, Vol. 19, No. 5 (Sep., 1956) 5) Steve Hedley, Nervous Shock: Wider Still and Wider? The Cambridge Law Journal, Vol. 56, No. 2 (Jul., 1997) 6) King v. Phillips [1953] 1 Q.B. 429 7) The Modern Law Review, Vol. 57, No. 4 (Jul., 1994) 8) Bourhill v. Young [1943] A.C. 92 at 110. 9) Winfield, Textbook of the Law of Tort, 5th ed., 38. 10) Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787. 11) Gaziabad Development Authority v. Union of India , JT 2000 (7) SC 256 12) Spring Meadows Hospital v. Harjot Ahluwalia, JT 1998 (2) SC 620 13) Halligua v. Mohan Sundaram, (1951) 2 MLJ 471