SEMESTER: 1

SUBJECT: LAW OF TORTS

A PROJECT ON:

NERVOUS SHOCK

SUBMITTED TO: DEEPIKA CHHANGANI

SUBMITTED BY: SARTHAK JAIN

Batch: BA LLB Division A

Roll Number: A038

Introduction

The Tort of Negligence

It is the failure to do what a reasonable and prudent person would ordinarily have done under the
circumstances of situation.
Negligence has two meanings in law of torts:
 Negligence as state of mind- Negligence is a mode of committing certain torts, e.g.,
negligently or carelessly committing trespass, nuisance or defamation. This is the
subjective meaning of negligence advocated by Austin, Salmond and Winfield.

 Negligence as a type of conduct- Negligence is a conduct, not a state of mind- conduct,

which involves the risk of causing damage. This is the objective meaning of negligence,
which treats negligence as a separate or specific tort.

Essential elements of the Tort of Negligence

 The defendant will be under a legal duty to take reasonable care towards the plaintiff to
avoid damage
 The defendant committed a breach of that duty
 The breach of that duty must result in loss to the plaintiff

Psychiatric injury/Nervous Shock1

For many years it has been customary to refer to this form of damage as “nervous shock”. That
has the advantage of serving as a reminder that this head of liability has in most cases required
something in the nature of a traumatic response to an event. That is not necessarily so in some
cases where the claimant is directly affected by the defendant’s conduct but it is still the law that
the spouse of a brain-damaged accident victim who foreseeably succumbs to psychiatric illness
from the strain of caring for the victim has no cause of action against the tortfeasor. However,
the expression seems to be falling into disuse and “psychiatric injury” or “mental injury” is
becoming a more frequent terminology.

1
EDWIN PEEL & JAMES GOUDKAMP, in WINFIELD AND JOLOWICZ ON TORT 129 (NINETEENTH ed.).
Reasons why psychiatric injury is treated differently from other types of
personal injury2

Psychiatric injury is a form of “personal injury” but it is more problematical for the law than
most physical injury, and is consequently treated differently, for two reasons. First, despite
advances in scientific knowledge of the working of the mind there is still a belief, right or wrong,
that it presents a greater risk of inaccurate diagnosis and the incidence or the basis or even the
very existence of some conditions is controversial. A further difficulty is that the line between
“mental” and “physical” is still not fully scientifically understood: nowadays, for example, there
is support for the view that certain forms of depression are the product of physical changes in the
brain and if these can be produced by a sudden shock the only basis for treating such a case
differently from physical lesion by impact must rest on legal policy. The current practice is to
regard some injuries which are undoubtedly physical (such as a stroke or a miscarriage) but
which are produced by shock as falling within the special rules in this section but in other
contexts they may be equated with more direct physical harm. Secondly, while the physical
effects of an accident are limited by the laws of inertia, physical injury to one person, or even the
threat of it, may produce mental trauma in others, witnesses, relatives, friends and so on. “The
contours of tort law are profoundly affected by distinctions between different types of damage”
and mental injury is as “special” as pure economic loss.

Primary and Secondary Victims

Primary Victims
A primary victim is a victim who is directly involved in an accident and suffers injuries as a
result of the fault of a tortfeasor. The position of primary victim is governed by the decision
in Page v Smith3.

Secondary Victims
A secondary victim is one who suffers nervous shock without himself/herself being directly
exposed to any physical danger in the accident to the primary victim. The position of secondary
victims is governed by the decision in Alcock v Chief Constable of South Yorkshire4.

2
EDWIN PEEL & JAMES GOUDKAMP, in WINFIELD AND JOLOWICZ ON TORT 129–130 (NINETEENTH ed.).
3
[1996] A.C. 155
4
[1991] 4 AII ER 907 [HL]
Historical Background 5
Initially, law was slow to recognize claims for psychiatric illness. The of the court in the 19th
century is exemplified by the decision of the PRIVY COUNCIL in Victorian railways
commissioners v Coultas6. Here the defendants’ gate-keeper had carelessly allowed a carriage to
enter a railway crossing when a train was about to pass. Although no physical injury occurred,
the plaintiff who was pregnant and a passenger on the carriage, suffered severe shock – and
subsequently miscarried her child. The PRIVY COUNCIL denied that there could be liability
for psychiatric illness in the absence of physical injury. As Lord Hoffmann pointed out in White
v Chief constable of south Yorkshire7, the main reason their lordships gave restricted approach
was the evidential difficulty on deciding on the cause of psychiatric illness at a time when so
little was known about the working of the mind. The PRIVY COUNCIL thought that opening
the doors of psychiatric illness liability might have led to a large number of “imaginary claims”.

The Impact theory in 19018

The courts adopted a more liberal approach in deciding Dulieu v White & Sons9. Here, the
plaintiff, a pregnant barmaid, was behind the bar in a pub when a negligently driven carriage
came off the road and crashed into the pub, entering the room where she was standing. She
suffered nervous shock and a subsequent miscarriage. Kennedy J upheld her claim. Dealing
with Victorian railway commissioners v Coultas, Kennedy J thought that the problem of
exaggerated or fraudulent claims were not a good enough reason for simply denying the
existence of a duty of care in respect of psychiatric harm, observing: “such a course involves the
denial of redress in momentous” cases, and it necessarily implies a certain degree of distrust,
which I do not share, in the capacity of legal tribunals to get in the truth in the class of claim.
In allowing liability for psychiatric illness in negligence, Kennedy J took the reference of
Wilkinson v Downton10, which had been decided four years earlier. Here the defendant, in the
exercise of what he regarded as a practical joke, had arrived at the plaintiff ‘s front door and
announced that her husband had been involved in a serious accident and had broken both his legs.
When the plaintiff suffered, accompanied by vomiting and other physical symptoms, the
defendant was held liable for the effect of his statement, on the basis that he had perpetrated an
intentional act of wrongdoing. Liability under the “rule in Wilkinson v Downton” as it is known.
It should not be confused with liability in negligence.
In Dulieu v White & sons, then, and in a number of similar cases, the courts sought to control the
scope of liability by using what became known as the “impact theory”, according to which the
plaintiff would be allowed to recover for psychiatric illness provided that this was caused by
reasonable fear of being physically injured by the defendant ‘s negligence.

5
Ahmad, Tabrez and Jamil, Haris and Dasgupta, Papiya, Nervous Shock, Development & Dilemma: A Comparative Study of UK, USA and
Canada (October 4, 2009). Available at SSRN: https://ssrn.com/abstract=1482619 or http://dx.doi.org/10.2139/ssrn.1482619
6
[1888] L.R. 13 A.C. 322
7
[1991] 1 AII ER 1 [HL]
8
Ahmad, Tabrez and Jamil, Haris and Dasgupta, Papiya, Nervous Shock, Development & Dilemma: A Comparative Study of UK, USA and
Canada (October 4, 2009). Available at SSRN: https://ssrn.com/abstract=1482619 or http://dx.doi.org/10.2139/ssrn.1482619
9
[1901] 2 K.B. 669
10
[1897] 2 Q.B. 57
CASE LAW: MCLOUGHLIN v O’ BRIAN

Facts11

In this case, the plaintiff's husband and three children were involved in a road accident which
was caused by the negligence of the defendants. One child was killed and the husband and two
other children were severely injured. The plaintiff at the time of the accident was two miles away.
After being told of the accident, the plaintiff was taken to the hospital where she saw the injured
husband and children and heard about the death of her daughter. She suffered severe nervous
shock. The House of Lords allowed the plaintiff's claim for damages for nervous shock even
though she was not at or near the scene of the accident at the time or shortly afterwards, the
nervous shock suffered by her was a reasonably foreseeable consequence of the defendant's
negligence.

Observation12

The court held that some limitation should be placed upon the extent of admissible claims under
the 'nervous shock', as a 'shock' is capable of affecting a wide range of people. In comparison to
the close members of the family claiming for the shock, the ordinary bystanders' claims are not
recognized because the defendant cannot be expected to compensate the world at large. As
regards proximity to the accident, this must be close in both time and space (to prove the fact and
consequence of the defendant's negligence). However, to insist on direct and immediate sight or
hearing would be impractical and unjust and the one who, from close proximity, comes very
soon upon the scene should not be excluded ("aftermath" doctrine; by analogy with “rescue”
situations). Normally, a parent or a spouse could be regarded as being within the scope of
foresight and duty.

The court, in this case, relied on the test of “reasonable foreseeability”. Regarding the question
whether the law should, as a matter of policy, define the criterion of liability in such cases, by
reference to some other test, it observed that a policy narrowing the scope of the negligent
tortfeasor's duty must be cogently and intelligibly justified and must be capable of defining the
appropriate limits of liability.

11
Ashok K. Jain, in LAW OF TORTS 124 (EIGHTH ed. 2020).
12
Ashok K. Jain, in LAW OF TORTS 124–125 (EIGHTH ed. 2020).
Analysis13
In McLoughlin v O’Brian14, Lord Wilberforce identified three factors that would need to be
identified in every case:
 the class of persons whose claims should be recognised i.e., the claimant must be in a
relationship of close ties of love and affection with person endangered
 the proximity of such persons to accident:
there must be sufficient proximity in time and space to the event that resulted in the
mental injury
 The means by which the psychiatric illness is caused:
the psychiatric injury must have been caused by sight or hearing of the event or its
immediate aftermath

These three “control mechanisms” suggested by Lord Wilberforce were subsequently

reformulated and applied by a unanimous house of lords.

In relation to the class of persons who might claim Lord Wilberforce recognized that ―the
possible range is between the closest of family ties of parent and child, ordinary bystander,
husband and wife. He noted that the law in Bourhill v Young15 had always denied recovery to
mere “bystanders” who suffered psychiatric illness as a result of witnessing accident. According
to lord Wilberforce the law’s justification for this approach was either that “such persons must be
assumed to be possessed fortitude sufficient to enable them to endure the calamities of modern
life” or that “defendants cannot be expected to compensate the world by large”. His lordship
thought that cases brought by plaintiff who did not have a very close family relationship with the
“immediate victim” of the accident would have to be “very carefully scrutinized”.

As regards proximity to the accident this had to be “close in both time and space” but it would be
impractical to say that plaintiff must be present at the scene of accident. As regards the means by
which the psychiatric illness was caused his lordship noted that there had thus far been no
negligence case in which the law had compensated psychiatric illness brought about by mere
communication to the plaintiff of distressing news. It followed that the psychiatric illness
through direct perception of the accident or its immediate aftermath by sight or hearing.

13
Ahmad, Tabrez and Jamil, Haris and Dasgupta, Papiya, Nervous Shock, Development & Dilemma: A Comparative Study of UK, USA and
Canada (October 4, 2009). Available at SSRN: https://ssrn.com/abstract=1482619 or http://dx.doi.org/10.2139/ssrn.1482619
14
[1983] 1 A.C. 410
15
[1943] A.C. 92
Personal Comment

In the above case, McLoughlin v O’Brian, the suggestions made by Lord Wilberforce, the three
“control mechanisms” are the basis or a kind of basic structure to deliver any judgement where
secondary victim comes into the picture. It would be appreciated if these suggestions were more
detailed as it would have laid a framework, which could have been followed by all and could
have led to legal certainty.
The term “reasonably foreseeable” is very ambiguous. It is very difficult to determine what can
be foreseeable because of its vacillating nature. The court should have at least laid a principle or
a guideline regarding the extent or ambit of “reasonable foreseeability”, so that the further
judicial trials would have a systematic way of delivering the judgements.

In my opinion, the suggestion ‘the class of persons whose claims should be recognised’ has led
to an increase in the liability of the tortfeasor. The relationship between the claimant and the
victim is not just limited to parents and children and husbands and wives, now the tortfeasor has
to compensate relative too, if they want, along with the immediate victims of his carelessness.
Every system of law must set some bounds to the consequences for which a wrongdoer must
make reparation. If the burden is too great it cannot and will not be met, the law will fall into
disrepute, and it will be a disservice to those victims who might reasonably have expected
compensation.
Situation in India
In India jurisdiction and liability in tort law is not very developed. In the case of Lucknow
Development Authority v. M.K Gupta16 for instance, the plaintiff was compensated for the
mental agony due to harassment by public officials. Such compensation was granted under the
Consumer Protection Act, 1986. Similarly, in the case of Spring Meadows Hospital v. Harjot
Ahluwalia17, the court compensated the parents of a child in a vegetative state for the mental
distress they suffered from. The condition of their child was a result of the negligence on part of
the staff of the hospital.

Laws Relating to Nervous Shock in Common Law Countries18

Liability related to psychiatric damages is different in different jurisdictions and hence in
common law countries liabilities are different as from India.
In England cases of nervous shock are dealt by the Protection of Harassment Act, 1997.
Section 1(2) of this Act it is written that: “For the purposes of this section, the person whose
course of conduct is in question ought to know that it amounts to harassment of another if a
reasonable person in possession of the same information would think the course of conduct
amounted to harassment of the other”.
In USA, there is no such law which deals with the cases of psychiatric damages as UK
legislation does. On the basis of judicial precedents cases of psychiatric damages are adjudicated.
On the basis of reasonable foreseeability of prudent man cases are decided. Judges in USA do
not distinguish between physical and psychiatric injury.

16 AIR 1994 SC 787

17 (1998) 2 JT 620
18 Kalyani Pandey, Nervous Shock and Liability of Psychiatric Damages in India and In Common Law Countries,
https://legalserviceindia.com/legal/article-1721-nervous-shock-and-liability-of-psychiatric-damages-in-india-and-in-common-law-countries.html
(last visited Jan 16, 2021).
CONCLUSION
Nervous shock and subsequent psychiatric injury are a grey area as far as the law of torts is
concerned. It is full of situations that have no written law to dictate what should be done. The
fact is that the effects that negligent acts can have on people vary from person to person, and it is
the burden of the court to gauge how badly one is affected by said action. This is a difficult thing
to do as if one looks at the law from a positivist point of view, only the legislative expression
must be viewed, and not the circumstances surrounding the case. However, looking at this law
from a natural law perspective, it makes more sense as one inspects the purpose of the law
instead of just blindly following the letter of the law. I personally think that this is the method
that should be followed because in cases of nervous shock, the surrounding facts of the case are
the ones which determine the extent up to which the defendant is liable.
I chose this tort because I felt that I could understand, on some level, how the courts take calls
on somewhat vague information given by the case. It also provides a useful insight into how
different schools of law can influence a judgement in each particular case.
Bibliography

 Ashok K. Jain, in LAW OF TORTS 124–125 (EIGHTH ed. 2020).

 EDWIN PEEL & JAMES GOUDKAMP, in WINFIELD AND JOLOWICZ ON TORT
129–130 (NINETEENTH ed.).

References

 Kalyani Pandey, NERVOUS SHOCK AND LIABILITY OF PSYCHIATRIC DAMAGES IN INDIA

AND IN COMMON LAW COUNTRIES, https://legalserviceindia.com/legal/article-1721-
nervous-shock-and-liability-of-psychiatric-damages-in-india-and-in-common-law-
countries.html (last visited Jan 16, 2021).
 Ahmad, Tabrez and Jamil, Haris and Dasgupta, Papiya, Nervous Shock, Development &
Dilemma: A Comparative Study of UK, USA and Canada (October 4, 2009). Available at
SSRN: https://ssrn.com/abstract=1482619 or http://dx.doi.org/10.2139/ssrn.1482619
 Ashok K. Jain, in LAW OF TORTS 124–125 (EIGHTH ed. 2020)
 EDWIN PEEL & JAMES GOUDKAMP, in WINFIELD AND JOLOWICZ ON TORT
129–130 (NINETEENTH ed.)