CONSIDER THE MERITS AND DE-MERITS IN DUTY OF CARE

AND BONI MORES IN THE NEGLIGENCE ACTION

PARTICULARLY SELECT THE AREA OF NERVOUS SHOCK.
01.Introduction
In this paper I would like to show the historical developments of remedial action for negligence in deeply a specific area called
Nervous Shock in both celebrated English and Roman-Dutch legal systems. Further analyze the merits and demerits of
above stated legal systems on the basis of Legal scope as well as Social scope too. I have used doctrinal method of research
paper is descriptive and nature.

02.(a) Applicability of English Law

Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach
is redressible by an action for unliquidated damages.---Winfield.
Negligence is the omission to do something, which a reasonable man, guided upon those considerations, which ordinarily
regulate the conduct of human affairs, would do, or do something, which a prudent and reasonable man would not do [1].The
recovery actions made on the basis for Nervous shock [2] called Duty of care and Boni Monis called respectively in
common law and civil law[3].

(b)Analyze through case laws

First i go through the common law concept how the concept grew then move to Nervous Shock concept development.
Common law always depend on principle wise movements and experiments. Firstly in 1932 Lord Atkin [4] introduced the duty
of care principle in Donahue v Stevenson through neighbour hood principle. Then 1978(Two-Tier Principle) [5] , 1985(Just and
Reasonable)[6], 1990(Three Part Test)[7] and finally 1991(Incremental Approach)[8]
A claimant wants to succeed in tort of negligence action he should prove three actions. Firstly the defendant owned them a
duty of care[9]. Secondly the defendant was in breach of that duty under this part court will take into account a number of
factors[10], it mostly interconnected with the concept of Standard of care. Finally the claimant suffered damage caused by
defendants breach[11].
Most legal jurisdictions throughout the world now recognise a general right to seek redress in respect of the concept of
negligently inflicted pure psychological harm or damage [12]. It includes Depressive disorders, Post Traumatic Stress
disorder, Adjustment disorders and anxiety disorders. However , who suffers from extreme Grief & Sorrow [13] cannot recover
damages.
Under English law in 1888[14] Privy Council refuse the claim of claimant, who miscarried her child by Nervous Shock. But
in 1901[15] Kennedy .J Introduced Impact Theory[16] in Dulieu V white & sonsand upheld the claimant claim on the basis
of psychological harm to the primary victim. But in 1925 [17]Hambrook V Stokes, Bros abanded the Impact theory and the
principle expanded the law, recover the damages Secondary victims [18] too. But they did not hesitate to put a limitation that
claimant should prove the scope of danger apply to his loved ones. The Co-Workers also can claim damages as a secondary
victims[19], Rescuers also claim damages[20] but now this principle no longer applicable[21].McFarlane V E.E Calendonia
Ltd, clear that no duty[22] such as arising master servant relationship in nervous shock. In 1943 Bourhill V Young[23] , it
mere describes the secondary victims foreseeable scope. In 1953 King V Phillips also reaffirmed the decision of Bourhill,

slightly distinguished form Hambrook. But 1960Boardman V Sanderson, the courts took more liberal approach and upheld
the decision of Hambrook.

Next we move to a Land mark case Mclaughlin V OBrain[24]. In this case Lord Wilberforce direct the test of reasonable
foreseeability which include immediate aftermath [25] of the accident, here lordship established three control mechanism to
get remedy. First Class of persons [26], Second Proximity of such persons [27], finally by which psychiatric illness was
caused[28]. Then English law has a wider interpretation of psychological harm because in Attia V British gas
plc[29] regarding the damage of property also can recover the damages from defendant who acted in negligence.
Further Bingham L.Jholding that a duty of care could exist in such a situation,cited other examples such as where a scholars
lifes work of research or composition was destroyed before his eyes as a result of defendants careless conduct.
Then we take three more modern case laws to clearly understand the current legal position of English law enumerated by the
time period respectively 1991[30], 1996[31], and 1999[32].
Lord Oliver in Alcock case, clearly classed a primary victim as a person directly involved in an accident as a participant and
who was actually exposed to the risk of physical injury, whilst a secondary victimwould simply witness the accident.And
this case made the way to arising fear about floodgates arguments on the basis of public policy to House of Lords.
Further in White case, Lord Steyn use policy consideration method when determining the psychiatric harm .First No material
difference between grief and real psychiatric illness [33], Second Consider the effect of people who had witnessed gruesome
events on increasing the availability of compensation, Third Fear of floodgates argument[34] and finally Crushing liability.
In English law psychiatric illness claim the vital element is Primary victim and Secondary victim. When deterring the class of
persons[35] courts apply different methods to identify the correct class of persons. Foreseeability in nervous shock of primary
victims now sphere headed with Page V Smith, Lord Llyord Where there is a danger of physical injury the law should regard
physical and psychiatric injury as the same kind of harm. Here lord ship thought the foreseeability of physical harm is good
enough bit not necessarily prove foreseeability of psychiatric injury because it purely fortitudinous fact and apply the eggshell
skull rule[36] Very recent case in 2007 Rothwell V Chemical and industries Co[37] , plaintiff relay on Page V Smith, but
the facts are dissimilar House of lords denied the claim. But declined to say the case ha been wrongly decided.
Secondary victims in foreseeability, who suffering psychiatric illness because of witnessing an event, through they are not
themselves danger, but here must established psychiatric illness was reasonably foreseeable with the Customary
Phlegm[38] . It may be the reason of plaintiff who could not succeed in Bourhill V Young. But now the indicator of
secondary victims consider as decision of Alcock.

03.(a) Applicability of South African Law

Accroding to White case, Lord Hoffman established two factors to satisfy the primary victim test , firstly there may be a
requirement of actual danger , secondly In any event the claimants fear for his/her own safety must be reasonable.Under south
African law, Acqulian Action and Actio Injuriarum ( B.C 287) are the foundation stones of Roman Dutch law of Delict.
Acqulian Action is a general remedy for property damages. Actio Injuriarum is a general remedy for dignity approaches.
lex acqulia , a claimant should prove three elements like English law but with dissimilarities. Firstly, to prove a wrongful act it
includes commission and omission, determined by Legal conviction of the community conduct. Second, Defendant had
Dolus[39] or culpa[40], Finally, Claimant suffers from patrimonial loss to the defendants

The concept of legal conviction of the community defined[41] as an inquiry that is done after the damage causing even has
taken place, and incorporating a policy based investigation of the reasonableness or unreasonableness of the defendants
conduct.
Under South African law also in Delict negligence is a remedial action but liability may impose for Nervous shock and the
early development follow similar lines as the English law. Burchell says In the early cases in South Africa, liability for
negligently inflicted nervous shock was restricted by two factors: The nervous shock had to result in physical injury and the
plaintiff must have feared for his or her own safety.
Under south African law , Acqulian Action and Actio Injuriarum ( B.C 287) are the foundation stones of Roman Dutch law of
Delict. Acqulian Action is a general remedy for property damages. Actio Injuriarum is a general remedy for dignity
approaches.

(b)Analize through case laws

Now I move to enumerate cases under South African law to make clear how the courts took the approach inboni mores. First
1916 Hauman V Malmesbury Divisional Council[42], here plaintiff narrowly escaped from a blast made negligently by
defendants servants .Courts upheld plaintiffs claim. It is a refelction of Dulieu in 1901.
Land mark case of South African Nervous shock in 1973 which has the authority until now is Bester VCommercial
Union[43]; here basis liability for Nervous shock is the foreseeability of injury by shock. It is an extension of the acqulian
action. But I think it is easily comparable with

Hambrook[44] in 1925. Under the case established the principle

Compensation will not, however, be awarded for insignificant temporary emotional shock. But it also established under
English law in Hinz V Berry.
In Maisba , Boberg commenting South African law as It is gratifying that this branch of our law governed by the board
principle of foreseeability. This flexible criterion will, it is believed, enable the courts to give effect to societys believes as to
what reactions are reasonable in the face of tragedy. Simply defined as Legal conviction of the community.

In a recent case The road accident fund V Magdelene Caroline Sauls [45] , the court quoted Bester who is wrong doer will
be foreseen by a reasonable person in the place wrong doer is enough to determine the liability, further psychological or
psychiatric injury is bodily injury for the purposes. Foresight of the reasonable possibility of harm required. And vitally the
arguments forwarded by the defendants relayed on Alcock in regard to the class of persons entitled to succeed. But courts held
the ground of public policy is not justified only quoted the primary and secondary victims.

04.Conclusion

While concluding this paper I want to say which legal approach is best? In English law I analyzed from 1888 [46] to
2007[47] it gradually develop the Nervous Shock. But they too depend on prior established legal principles in preceding cases.
But we cannot forget those principles also formulated on the basement of social factors ( Alcock ) but nowadays the claim
under English law is wider than prior. Its sphere within the limit of foreseeability, Proximity and Reasonableness but the degree
of the above stated elements did not determined mathematically judges behalf on the circumstances judged the elements.

South African law also followed similar lines as the English law. But in 1957 [48] a reasonable claim rejected by courts, may
be the case succeed it if it came behind the English law courts. Because in 1957 before 58 years ( Duile) English courts accept
the liability. I analyzed case laws form 1916 to 2001 [49]. They always support the concept Legal conviction of the
community. Freshly they enact National Veld and Forest Fire Act No 101 of 1998 [50]. Time to time quote English legal
principles and some of them either accepted or rejected So South African courts consider reasonableness on the basis of legal
conviction of the community.
When Extreme grief or sorrow arose from damage cannot claim under both legal systems .But English law give the right to
bereavement suffered claimants to claim under Fatal Accidents Act 1976. Burchell[51]criticize Alcock, it shows unjust fear
about floodgate consequence in House Of Lords. But practically South African law had narrower scope than English law in
Nervous Shock.
I found many similarities within both systems: First in intentionally inflicted Nervous Shock, that full within the area of
battery. Here the foreseeability[52] did not apply. And rescuers also always get only very narrower remedies in both
systems[53].
Finally both systems give remedial actions within their scope. Because South Africa is a industrial state so accidents will be
very huge when comparing England. Practically South African courts cannot take wider view, otherwise they cannot limit the
imaginary claims and it gives a way to unjust enrichment on imaginary claims. So the narrower approach is also desirable in
given circumstances.
So when comparing the two legal systems I cannot found any specific merit or de-merits. Because English authorities logically
hold principles, but practicably handle the case with social background. Other hand South African law holds reasonableness
behalf community logically, but practicably they limit the scope behalf on the socio-economic policy crisis [54]