DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW
2015-16
B.A.,L.L.B.(Hons.)-IInd Semester

LAW OF TORTS

FINAL DRAFT ON
Nervous Shock

SUBMITTED TO: SUBMITTED BY:

Mr. R.K. Yadav Stuti Sinha
Asstt. Professor (Law) Section-B
Roll No.149
 ACKNOWLEDGEMENT

I would like to thank all the people, who helped me throughout this
endeavour of mine to make a project on Nervous Shock. Firstly, I
would like to thank my teacher Mr. R.K. Yadav, for providing me
with the opportunity to bring out my skills and present my efforts. I
would also like to thank my friends who helped me in making the
project.
Stuti Sinha
Semester-II
Roll No.- 149
 TABLE OF CONTENTS

1. INTRODUCTION
2. HISTORY
3. INTENTIONALLY INFLICTED NERVOUS SHOCK
4. NEGLIGENTLY INFLICTED NERVOUS SHOCK
5. PRIMARY AND SECONDARY VICTIMS
6. DAMAGES FOR NERVOUS SHOCK
7. NERVOUS SHOCK IN INDIA
8. MEDICAL AND LEGAL ASPECTS
9. A CASE STUDY ON NERVOUS SHOCK
10. CONCLUSION
11. BIBLIOGRAPHY
 Nervous Shock
Introduction
Nervous Shock is a term used in English Law to denote psychiatric illness or injury inflicted
by a person by intentional or negligent actions or omission of another. It is a phrase used to
describe a type of claim, most usually in negligence, where injury to the claimant is not
clearly physical. Nervous shock is often a by product of undergoing an extreme psychological
jolt. It often results in serious consequences such as miscarriage, loss of sight and temporary
or permanent mental imbalance. Similarly, merely because one has suffered a fright and
subsequently an emotional reaction, this is not in itself cause for nervous shock1. However,
as seen in Hinz v Berry, a person who suffers from extreme grief and sorrow, but which falls
short of a recognised psychiatric illness is not able to recover damages, as one is expected to
be able to deal with grief and sorrow.

It is most often applied to psychiatric disorders triggered by witnessing an accident, for

example an injury caused to one's parents or spouse. Although the term nervous shock has
been described as inaccurate and misleading, it continues to be applied as a useful
abbreviation for a complex concept. The possibility of recovering damages for nervous
shock, particularly caused by negligence, is strongly limited in English law.

To amount in law to nervous shock, the psychiatric damage suffered by the claimant must
extend beyond grief or emotional distress to a recognised mental illness, such as anxiety
neurosis or reactive depression. Damages for bereavement suffered as a result of the wrongful
death of a close one are available under the Fatal Accidents Act 1976, while courts can also
award damages for pain and suffering as a result of physical injury.

A typical claim for nervous shock falls under the head of the psychiatric condition better
known as Post Traumatic Shock Syndrome. This area of Tort has presented many difficulties
for tortuous claims since a claim does not necessarily have to involve proof of direct
involvement in an incident giving rise to the injury. Cases of nervous shock involving
secondary victims are common. Less common are cases involving primary victims suffering
psychiatric illness associated with physical injury. The first reported case involving a primary
victim suffering pure psychiatric illness not associated with conventional physical injury
came recently before the House of Lords. Cases of pure psychiatric illness caused by stress-
inducing work have also begun to surface. In these primary victim cases, the tests of
reasonable foresee ability appears to have been applied differently. This article traces the
historical development of the different approaches of the psychiatric injury, examines,
evaluates and focuses on primary and secondary victims.

1
Ratanlal and Dhirajlal, ‘The Law of Torts’, 26th edition 2010
 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.
Coulters 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.

Lord Oliver in the 1992 decision of Alcock v Chief Constable of South Yorkshire Police3
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. Young4 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 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 5
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.

2
(1888) 1 3 APP. CAS. 222
3
[1992] 1 AC 310, 412
4
16 [1943] AC 92
5
King v. Phillips [1953] 1 Q.B.52
Intentionally Inflicted Nervous Shock

It is well established in English law that a person who has intentionally and without good
reason caused another emotional distress will be liable for any psychiatric injury that follows.
An example of this is a bad practical joke played on someone which triggered serious
depression in that person. The joker intended to cause the other person emotional distress and
will be liable for the medical consequences.

Negligently Inflicted Nervous Shock

Before a claimant can recover damages for the nervous shock which he suffered as a result of
the defendant’s negligence, he must proof of all the elements of the tort of negligence:

1. The existence of a duty of care, i.e. the duty on the part of the defendant not to inflict
nervous shock upon the claimant;
2. A breach of duty of care, i.e. the defendant's actions or omissions in the circumstances
fell below what would be expected from a reasonable person in the circumstances.
3. A casual link between the breach and the psychiatric illness, i.e. the nervous shock
was the direct consequence of the defendant's breach of duty;
4. The nervous shock was not too remote a consequence of the breach.

For fear of spurious actions and unlimited liability of the defendant to all those who
may suffer nervous shock in one form or other, the English courts have developed a
number of "control mechanisms" or limitations of liability for nervous shock. These
control mechanisms usually aim at limiting the scope of the defendant's duty of care
not to cause nervous shock, as well as at causation and remoteness.
Primary and Secondary Victims
Mental suffering amounting to a recognizable psychiatric illness, when not consequent to
personal injury, is redeemable in a limited class of cases for which purpose the sufferers are
divided into two categories:

1. Primary Victims
2. Secondary Victims

Primary Victim

A "primary victim" is a person who was physically injured or could foreseeably have been
physically injured as a result of another person's negligence. They are the participants in the
event or in other words are in the actual area of danger of receiving personal injury but suffer
only a recognizable psychiatric illness and escape personal injury. An example of this is a
claimant who is involved in a car accident caused by the defendant's careless driving and gets
mildly injured (or even remains unharmed) as a consequence, but the fright from the crash
triggers a serious mental condition. Such a claimant can recover damages for his car, his
minor injuries and the nervous shock he had suffered. "Primary victims" also include rescuers
(such as firemen, policemen or volunteers) who put themselves in the way of danger and
suffer psychiatric shock as a result.

The simplest case is that where the claimant suffers shock from a reasonable fear for his own
safety caused by the defendant’s negligence (the “near miss”): then he may recover damages.
In Dulieu v White6 the claimant succeeded in a claim for shock, resulting in a miscarriage,
when a horse-drawn van was negligently driven into a bar of the public house where she was
serving. It is not necessary that the claimant should actually be in danger, provided he
reasonably believes he is.7 in the view of the majority in Page v Smith8 psychiatric injury was
but a variety of the broader genus of “personal injury”9 and the claimant was entitled to
recover on the basis of the “thin skull” principle. This says that once defendant owes a duty to
the claimant and is in breach of it, his liability is not limited to the injuries which were
reasonably foreseeable at the time of the accident but extends to more serious injuries brought
about by the claimant’s pre-existing weakness10.

The category of primary victims is not confined to those who suffer mental injury from fear
for their own safety. And it is enough, it seems, that the claimant is within the zone of
physical danger even if what triggers the mental injury is the sight of what happens to others.
In some cases it becomes extremely difficult to determine whether or how far the claimant

6
[1901] 2 K.B. 669
7
Mac Farlane v. E.E. Caledonia Ltd. [1944] 2 ALL E.R. 1 AT 10
8
[1996] A.C. 155; Gilbert v. Murray, The Times, May 25., 199
9
As Lord Loyd pointed out at 190, a standard English statutory formula in the Limitations Act and elsewhere is
“personal injury” includes any disease and any impairment of a person’s physical or mental condition.
10
The Egg-Shell skull principle. The previous authorities regarded injury by shock as of a different kind of
physical harm.
suffered shock from fear for himself or from the sight of what happened to others, and there
may be cases in which there is a damaging impact on his psych without his consciously
suffering anything that could be called fear. Nevertheless it is a mechanical approach and one
can conceive of cases where it might operate in the claimant’s favor even though he was at
the time entirely unaware of any danger to himself.

Secondary Victims

A "secondary victim" is a person who suffers nervous shock without himself being exposed
to danger. The starting point is a clear assumption that there is a real need for the law to place
some limitation going beyond reasonable foreseeability and medical proof of causation on the
range of admissible claims. The limitations to be found by reference to three elements:

1) The class of persons whose names should be recognized: The question is

whether there is a sufficiently close relationship of love and affection in fact
between the claimant and the person injured or threatened, subject to the
practical qualifications that a sufficiently close relationship will be presumed
in the case of the relationship of parent and child or husband and wife and
perhaps engaged couples but the claims of remoter relatives will be scrutinized
with care. The effect is that those falling outside the narrow category have to
show a relationship which is more intense than that usually found.
2) The proximity of those persons to the accident: There must be sufficient
proximity of time and place to the event leading to the mental injury. However
there is a considerable extension of this to cover the “immediate aftermath” of
the event. In McLoughlin v O’ Brian11 a road accident caused by the
defendant’s negligence killed the claimant’s young daughter and caused
injuries of varying severity to other of her children and her husband. At the
time the claimant was at home. An hour later the accident was reported to her
by a friend, who drove her to the hospital, where she was told of the death and
saw the injured members of her family in circumstances which, it was found,
were “distressing in the extreme and were capable of producing an effect
going well beyond that of grief and sorrow”.12
3) The means by which the trauma to the claimant is caused: this element
requires that it should be by sight or hearing of the event or its immediate
aftermath. Notification by third parties (including newspapers, broadcast) will
not do. In practical terms, a claimant who fails on the second element will not
be able to satisfy this requirement, though it is possible that there could be a
case in which the claimant was in the vicinity but failed to satisfy the third
requirement.

11
[1983] 1 A.C. 410
12
Ibid, at 417
Damages for Nervous Shock

In order to recover damages for nervous shock a plaintiff must establish:

(a) That he or she actually suffered a recognizable 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 duty of care not to cause him or her reasonably
foreseeable injury in the form of nervous shock as opposed to personal injury in general

The common law regarding recovery of compensation for pure psychiatric illness also
described by the expression nervous shock was recently reviewed by the House of Lords in
White v. Chief Constable of South yorkshire13 where all relevant earlier authorities were
considered. The court noticed that this law “is a patchwork quilt of distinctions which are
difficult to justify.”
Mental suffering which follows from foreseeable physical injury is routinely compensated
under the ‘pain and suffering’ while awarding compensation for personal injury.14 Mental
suffering not following physical injury which does not amount .Primary victims are entitled
to receive compensation for mental suffering which amounts to a recognisable psychiatric
illness even if psychiatric illness even if psychiatric illness was not foreseeable.15
Secondary victims can be allowed damages in the following conditions known as ‘control
mechanism’:

 The plaintiff must have close ties of love and affection with the victim
 The plaintiff must have been present at the accident or its immediate aftermath.
 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.

There are two landmark cases noticed herein which settled the present law relating to
damages for nervous shock:

1. In Alcock v. The Chief Constable of the Yorkshire Police16 a disaster occurred by the
negligence of the police in allowing the overcrowding of two spectators’ pen resulting
in the death of 96 spectators and injured more than 400 people. Sixteen people who
did not suffered physical injury but suffered psychiatric injury claimed damages. The
plaintiffs were relatives or friends of the persons killed or injured in the disaster. They
alleged to have suffered nervous shock caused by seeing or hearing news of the
disaster.
13
[1999] 1 ALL E.R. 1(HL)
14
Ibid, pp. 30,31,40.
15
Ibid, pp. 35,36,43.
16
[1991] 4 ALL E.R. 907:[1992] 1 AC 310:3 WLR 1057 HL
One of the plaintiffs, Mr H, who was present in the stadium and whose two brothers died
failed to satisfy condition no(1) of the control mechanism because the court refused to
presume existence of close ties of love and affection between brothers and no evidence led to
prove that they existed in this case. Two other plaintiffs Mr & Mrs C, whose son died failed
to satisfy condition no. 2 because they were not present in the stadium and saw the scenes on
television. Another plaintiff, Mr A who identified his brother-in-law in mortuary failed to
satisfy condition no. 3 because he was not in time for the immediate aftermath of the tragedy.
2. White v. Chief Constable of the South Yorkshire17 is a case that arose of out of the
same football disaster. In this case the claimants were a no. of police officers who
were on duty at that time and suffered post-traumatic stress disorder, while engaged in
the rescue work. The plaintiffs were not within the range of foreseeable physical
injury but claimed that they should be treated as primary victims merely because they
were the employees of the tort- feasor and the nervous shock was suffered during the
course of employment. The plaintiff’s claims were rejected on the ground that they
did not satisfy the test of being a primary victim as they were not in the range of
foreseeable personal injury.

The cases of Wilkinson18 and Janvier19 were discussed by the House of Lords in
Wainwright20. As these cases related to nervous shock that is psychiatric illness and not
merely of distress, the court observed that they were not any authority for the view that
damages for distress falling short of psychiatric injury can be recovered if there was intention
to cause it.21

17
[1991] 1 ALL E.R. 1 HL
18
Wilkinson v. Downton [1897] Q.B. 57
19
Janvier v. Sweeney (1919) 2 KB 316:121 LT 179
20
[2003] 4 ALL ER 969, pp. 980,981
21
Ibid, pp. 981
Nervous Shock 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. 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 state22. 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 Airlines23 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 realization 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 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.

22
Spring Meadows Hospital v. Harjot Ahluwalia JT (1998) 2 SC 620
23
(2000) 1 SCC 66
Mental and Legal Aspect
There is no direct coherence between medical and legal concepts or between medical and
legal ways of thinking.24 As a result, there are often substantial difficulties in translating the
findings of one (medicine) into the decisions of the other (law). In order to minimize
interdisciplinary confusion, it is necessary for each to have an understanding of the approach
of the other. 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 terminology25 which has led to breakdown in
communication between Medicine and the Law on the subject.
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.26

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. 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 squeal of an emotional shock would include miscarriage, coronary
thrombosis and cerebral hemorrhage (" stroke "). Psychic squeal 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
foreseen; the converse 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.

24
David W. Robertson, Liability in Negligence for Nervous Shock, The Modern Law Review, Vol. 57,No. 4, July
1994
25
E.g. in medical terminology the term shock is used in at least two different sense.
26
The Modern Law Review, Vol.19, No.5
 Case Study on Nervous Shock
Hinz v. Berry

Court of Appeal, Civil Division

Lord Denning Mr, Lord Pearson, Sir Gordon Wilmmer

16th January 1970

The plaintiff happily married for ten years with four children of her own and four foster
children, and two months pregnant with her fifth child, saw from the other side of the road,
where she was picking flowers with one of the children, an accident in which a car ran into
the stationary van where her husband and all other children were preparing a picnic; she
saw her husband lying dying in the road and the children, most of whom were injured,
strewn about the road with blood streaming from their heads. The plaintiff had a robust
character, was level-headed and very capable and the trial judge found that if she had not
seen the accident she would have stood up to the situation although sorrowful, but that the
morbid depression, a recognizable psychiatric illness, which she has suffered since the
accident was caused by the shock of witnessing the accident, and he awarded her damages
of pound 4,000 for that accidental mental suffering. On appeal by the defendant contesting
the quantum of damages but not the principles applied by the judge,

Held- in the exceptional circumstances of the accident which were of a horrifying and
tragic character, pound 4000, although a high figure, was not wholly erroneous award for
damages for the nervous shock suffered by the plaintiff in witnessing the accident, and the
court would not interface with the award and would dismiss the appeal.

Per Lord Denning MR. the court has to draw a line between sorrow and grief for which
damages are not recoverable; and nervous shock and psychiatric illness for which damages
are recoverable. The way to do this is to estimate how much the plaintiff would have
suffered if, for instance, her husband had been killed in an accident when she was 50 miles
away; and compare with what she is now, having suffered all the shock due to being
present at the accident.
JUDGMENT-1:
LORD DENNING M.R: It happened on April 19, 1964. It was bluebell time in Kent. Mr
& Mrs Hinz had been married some 10 years, and they had four children, all aged nine and
under. The youngest was one. Mrs Hinz was a remarkable woman. In addition to her own
four, she was foster-mother to four other children. To add to it, she was two months
pregnant with her fifth child.

On this day they drove out in a Bedford Dormobile van from Tonbridge to Canvey Island.
They took all eight children with them. As they were coming back they turned into a lay-
by at Thurnham to have a picnic tea. The husband, Mr Hinz, was at the back of the
Dormobile making the tea. Mrs Hinz had taken Stephanie, her third child, aged three,
across the road to pick bluebells on the opposite side. There came along a Jaguar car
driven by Mr Berry, out of control. A tyre had burst. The Jaguar rushed into this lay-by
and crashed into Mr Hinz and the children. Mr Hinz was frightfully injured and died a
little later. Nearly all the children were hurt. Blood was streaming from their heads. Mrs
Hinz, hearing the crash, turned round and saw this disaster. She ran across the road and did
all she could. Her husband was beyond recall. But the children recovered.

An action has been brought on her behalf and on behalf of the children for damages
against Mr Berry, the defendant. The injuries to the children have been settled by various
sums being paid. The pecuniary loss to Mrs Hinz by reason of the loss of her husband has
been found by the judge to be some oe15,000; but there remains the question of the
damages payable to her for her nervous shock - the shock which she suffered by seeing her
husband lying in the road dying, and the children strewn about.

The law at one time said that there could not be damages for nervous shock: but for these
last 25 years, it has been settled that damages can be given for nervous shock caused by
the sight of an accident, at any rate to a close relative. Very few of these cases have come
before the courts to assess the amount of damages. O'Connor J. fixed the damages at the
sum of 4,000 for nervous shock. The defendant appeals, saying that the sum is too high.

I would like to pay at once a tribute to the insurance company for the considerate and fair
way in which they have dealt with the case. 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 recognisable psychiatric illness caused by the breach of duty by the
defendant.

There are only two cases in which the quantum of damages for nervous shock has been
considered. One is Schneider v. Eisovitch [1960] 2 Q.B. 430. The other, Tregoning v. Hill,
The Times, March 2, 1965. But they do not help us here. Somehow or other the court has
to draw a line between sorrow and grief for which damages are not recoverable, and
nervous shock and psychiatric illness for which damages are recoverable. The way to do
this is to estimate how much Mrs Hinz would have suffered if, for instance, her husband
had been killed in an accident when she was 50 miles away: and compare it with what she
is now, having suffered all the shock due to being present at the accident. The evidence
shows that she suffered much more by being present. I will consider first the grief and
sorrow if she had not been present at the accident. The consultant psychiatrist from the
hospital in Maidstone wrote:

"It is common knowledge that there is a 'mourning period' for all of us, and that normally
time dispels this. In the average person it might be a year, but in a predisposed person it
can be greatly prolonged. ..."
The plaintiff was not predisposed at all. She was a woman of great capacity, level-headed,
hard working, happily married. She would have got over the loss of her husband in, say, a
year. Consider next her condition, as it is, due to being present at the accident. Two years
after the accident, the consultant psychiatrist said: "There is no medical doubt at all that
she is suffering from a morbid depression; she is now officially ill." He went on to give
some of the symptoms. She said to him: "It does not seem worth going on. I feel I cannot
cope at all. I get so dreadfully irritable with the children too. It is wrong but I feel like
killing him," that is, the posthumous child. The consultant went on: "She feels exhausted,
has frequent suicidal ruminations and at the same time is covered with guilt at being like
this." The posthumous baby "now saddens her even more because it cries 'Dad, Dad,'" and
one of the elder children persists in saying "You have not got a Dad"; and then the other
fatherless children join in the chorus." The consultant concluded: "In other circumstances I
would probably have brought her into hospital, at least for a rest, but possibly for electrical
treatment and it may come to that yet."

At the trial, five years after the accident, she frequently broke down when giving her
evidence. She brought the children to court. They were very well turned out. The judge
summed up the matter in this way: "I am satisfied that she was of so robust a character that
she would have stood up to that situation, that she would have been hurt, sorrowful, in
mourning, Yes; but in a state of morbid depression, No."

He awarded her 4,000 on this head. There is no suggestion that he misdirected himself.
We can only interfere if it is a wholly erroneous estimate. I do not think it is erroneous. I
would dismiss the appeal.

Judgement 2:
Lord Pearson.
This is case of considerable importance, because I think it is the first case in which the
problem of assessing damages of this kind has come to court of appeal. I would like to
point out at the outset that this is an exceptional case. The circumstances if the accident as
witnessed by the plaintiff were of an exceptionally horrifying and tragic character, and it is
easy to believe that she suffered an extremely severe shock from witnessing it. She has
been since the accident for a period of not far short of six years in a sad and depressed
state.

Counsel of the defendant has given us a list of five causes of the depressed state, and he
says I think rightly, that these five causes have all been operating from the date of the
accident until now. The first factor was her own inevitable grief and sorrow at losing her
husband, a good husband who was also a good father to her family. That would have
caused much sorrow and mourning in any event. Secondly, there was her anxiety about the
welfare of her children who were injured in the accident. Thirdly, there was the financial
stress resulting from the removal of this very hard-working breadwinner who took extra
work in addition to his normal work. She may well have been in considerable financial
stress difficulty. The fourth factor was the need for adjusting herself to a new life, which
may well have been quite unusually severe in this case. Now, all those four factors are not
compensable, that is to say they are not proper subjects to be taken into account in
assessing damages according to English law. And then we come to the fifth of the
substantial factors, and that is the shock of witnessing the accident. That is the only factor
which is compensable in the sense that I have explained. It is not disputed that this factor
is a proper subject for compensation.

The only problem is one of assessment. Is the figure which has been awarded in respect of
it a figure which is within the reasonable range? If this factor had been merely one out of
five and they had all been more or less equal in their effect and there had been no special
consequences attributable to this one, I would have thought that the figure awarded was
much too high. But the position here is rather different. It has been held-and there is
evidence in support-that this factor of the extreme shock of witnessing the exceptionally
tragic accident has produced a special and for the time being very disastrous
consequences, namely that the plaintiff is not only in a sad and depressed state owing to
the loss of her husband and perhaps a harassed state owing to the difficulty of looking
after her family in this situation, but something more that; she has been and still is in a
positive morbid state. There is a recognizable psychiatric illness. The finding of the
learned judge, as I understand his judgement-and I will read the relevant passage in a
moment-is that this is a special consequence which has been added by the shock to what
otherwise her condition would have been. The other matter I mentioned before reading the
relevant passages in the learned judge’s judgement, because I think he has stated the
principle correctly, and the only problem is whether the estimate which he has made on
the basis of the principle can be regarded as within the proper range or not.

Well, I am not sure that the last sentence is quite rightly expressed. It should not be for the
whole of the mental anguish and suffering which she has endured during the last five or
six years. It should be only for that additional element which has been contributed by the
shock of witnessing the accident, and which would not have occurred if she had not
suffered the shock. It is a difficult distinction to draw, but I think that the learned judge has
laid a proper foundation and has found a right ground of decision, namely that where there
is an extra element which has been added by the shock of witnessing the accident, that is a
proper subject of compensation. On his finding in this case that that element in itself was
the sole cause of the added morbidity, the recognizable psychiatric element in her present
condition, that is a proper ground for a substantial sum of money to be awarded.

As to the sum itself, it has seemed to me since the beginning of the case and I still feel
that it is a high figure. I myself would have been inclined to award some lower figure; nut
it is well recognized that in cases of this kind different minds can take different views as to
the proper figure, and if the figure awarded is within the reasonable range, then it is not
right for the Court of Appeal to interfere. Indeed it has been said that the Court of Appeal
ought not to interfere on the ground only that the figure is too high unless it appears to be
wholly erroneous estimate of what the damages should be; and although I feel it is high, I
am not able to say it is a wholly erroneous estimate, and for that reason I would dismiss
the appeal.

Judgement 3:
Sir Gordon Willmer.

I have reached the same conclusion. I would like to emphasize once again that this is very
exceptional case, and I hope that that circumstances will be borne in mind should there be
occasion in future to refer to what has been decide in the present case. I also regard it as an
extremely difficult case. However, the medical evidence is exceptionally strong to show
that the state of depression and anguish to which the plaintiff has been reduced over the
past five years ago far beyond what one would ordinarily expect in the case of a lady
deprived of her husband as the result of an accident. To my mind the evidence is
conclusive to show that the reason for the additional suffering of the plaintiff is to be
found in the fact that she was herself a personal witness of the tragedy. It is important to
bear in mind that what has resulted is described by the psychiatrist who gave evidence as a
‘recognizable psychiatric illness.’ I think it is clear on the evidence that that illness is
attributable, to the nervous shock resulting from the actual witness of the accident. The
learned judge found-and the medical evidence was amply sufficient to support him-that
but for this plaintiff- ‘…was of so robust character that she would have stood up to that
situation; that she would have been hurt, sorrowful in mourning, yes, but in a state of
morbid depression, no…’

It is for that state of morbid depression, an illness brought about by the nervous shock, that
she is entitled to be compensated. It seems to me that it is quite impossible to find any
fault whatsoever with the manner in which the learned judge directed himself as to the
principles to be applied. There has, however, during the argument been some suggestion
that, having correctly directed himself on the law, the learned judge very quickly forgot
what he had himself said, and, no doubt quite unconsciously, allowed his natural sympathy
for the plaintiff to run away with him, with the result that he awarded an inflated figure. I
do not accept this criticism.

I agree with Lord Pearson that the sum at which the learned judge arrived was a huge
figure; but in this case we are in an area where the damages seem to me to be even more
than usually at large. It is practically impossible to find any signposts on the road; there is
no tariff or pattern of awards in this class of case; and this makes it very difficult for any
one judge to criticize another judge’s estimate of what the damages ought to be. I find
myself quite unable to say that in this rather fluid state of affairs the sum at which the
learned judge in the present case arrived was such as could fairly be described as a ‘wholly
erroneous estimate’. High as his award was, I think that no sufficient reason has been
shown for interfering with it, and accordingly I agree that the appeal should be dismissed.
 Conclusion
In this project the meaning and various aspects of nervous shock as a part of a psychiatric
injury caused due to negligence has been discussed. Thus one learns about the circumstances
in which an nervous shock call for damages and in which cases it does not.It has also been
studied that If some psychiatric illness induced by shock was reasonably foreseeable by the
tort feasor as a natural and probable consequence of the breach of his duty of care 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. also many examples from several landmark cases of nervous shock have been to
understand the concept better. All attempts have been made to make the project showcase a
new facet of nervous shock with better understanding.
 Bibliography

Books:

 Ratanlal and Djirajlal, ‘the law of torts’ 26th edition reprint 2010, Lexis Nexis
Butterworths Wadhwa, Nagpur
 Winfield & Jolowicz, ‘Tort’, seventeenth edition, Sweet &Maxwell South Asian
Edition

Cases:

 Victorian Railway Commissioners v Coultas, [1888] 1 3 App. Cas. 222

 Dulieu v White & Sons, [1901] 2 K.B. 669

 Hambrook v Strokes, [1925] 1 K.B. 141

 Alcock v Chief Constable of South Yorkshire Police, [1992] 1 AC 310, 412.
 Bourhill v. Young, 16 [1943] A.C. 92.
 King v. Phillips [1953] 1 Q.B. 42
 Page v Smith, [1996] A.C. 155
 McFarlane v E.E. Caledonia Ltd [1994] 2 ALL E.R. 1 AT 10
 Giblett v Murray, The Times, May 25, 199
 King v Phillips [1953] 1 Q.B. 429 at 441; the wagon mound (No. 1) [1961] A.C. 388
at 426;
 Alcock v CC South Yorkshire [1999] 2 A.C. 310 and 400
 McLoughlin v O’ Brian, [1983] 1 A.C. 41
 White v. Chief Constable of South Yorkshire, [1999] 1 ALL E.R. 1 (HL).
 Wilkinson v Downstorn [1897] 2 QB 57: 66 LJQB 493

 Janvier v Sweeney, (1919) 2 KB 316: 121 LT 179

 Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787

 Spring Meadows Hospital v. Harjot Ahluwalia, JT 1998 (2) SC 620

 Ravneet Singh Bagga Vs. M/s KLM Royal Dutch Airlines (2000) 1 SCC 66

 Austin v. Mascarin [1942] 2 D.L.R. 316

Articles:

 David W. Robertson, ‘Liability in Negligence for Nervous Shock,’ The Modern Law
Review, Vol. 57, No. 4 (Jul., 1994)
 The Modern Law Review, Vol. 19, No. 5 (Sep., 1956), pp. 478-497