Law of Tort

LAW OF TORT-I
Term End Project/Semester I

A PAPER ON:
An Analysis of the Tort of Nervous Shock and Psychiatric
Damages in UK and India

SUBMITTED TO:
Ms. Deepika Chhangani
Kirit P Mehta School of Law

SUBMITTED BY:
Drishti Bhatia
FY BA LLB-DIV A
ROLL NO: A012
SAP ID: 81012019069

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Table of Contents
Introduction .............................................................................................................................. 3
Research Problem ................................................................................................................... 4
Objectives ................................................................................................................................ 4
Research Questions……..…………………………………………………………………...5
Hypothesis………………………………………………………………………………… 5
Review of Literature……………………………………………………………………….. 5
Development of the Concept of Nervous Shock in the United Kingdom…………………8
Distinction between Primary and Secondary Victim ………………………………………8
Requirement of a Recognized Psychiatric Illness…………………………………………10
Requirement of a “Sudden Shock” to determine Liability………………………………...11

Understanding the Development of the Principle of Nervous Shock in India with the
help of relevant Case Laws ................................................................................................... 13
Findings and Suggestions……...……………………………………………………………18
Conclusion…………………………………………………………………………………...20
Bibliography………………………………………………………………………………...21

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Introduction
The concept of Nervous Shock has seen immense development in Tort Law from one of its
first cases of Wilkinson v Downtown1 and Dulieu v White and Sons2. This sphere of tort law
aims to provide compensation, not for a physical injury but for the mental injury/ impact caused
due to the intentional or negligent actions of a defendant. Nervous Shock simply means “shock
to the nerves and brain structures of a body.” If an action of a defendant has such an impact on
the plaintiff so as to induce a ‘shock’ or a traumatic emotional disturbance that leads to a
‘recognisable psychiatric illness’ regardless of a given physical injury, the same can be
compensated for in Law of Tort.

It is extremely essential to provide for redressal for mental illness caused due the defendants
conduct as the disastrous impact that psychiatric illness can have on one’s lives is indisputable3.
It is more harmful than any physical injury caused as the scope of a physical injury is somewhat
limited but in case of a nervous shock or a psychiatric illness, there can be considerable damage
to the brain and the nervous system that may in turn impair other functions of the body and
prevent it to function normally. Another reason why recognition of a psychiatric illness is
essential as any action may cause a physical/bodily injury to mainly one person ( at whom the
harm is inflicted upon) but it may produce mental trauma in others such as friends, family,
witnesses and so on4.They, thus suffer from severe agony from the defendants conduct and thus
must be compensated for the same.
Even though, a mental injury/illness has been regarded as more important than a physical
illness due to the reasons mentioned above, the courts of Law; especially in UK were initially
reluctant to provide compensation for it. In the case of Victorian Railways Commissioner v
Coultas5, the plaintiffs were negligently told by the gate-keeper of a railway company to drive
over a level crossing and they were almost run down by a train, Due to this, one of the plaintiffs
suffered from a severe nervous shock but the same was not recognised by the court as it was
claimed that the damage was too remote to be recovered. Though, the courts in several

1
Wilkinson v Downtown [1897] 2 QB 57

2
Dulieu v White and Sons [1901]2 KB 669

3
H. Teff, Liability For Negligently Inflicted Psychiatric Harm: Justifications And Boundaries, Vol. 57, No. 1 ,
THE CAMBRIDGE LAW JOURNAL, 91 (1998)
4
W. E PEEL & J. GOUDKAMP, WINFIELD AND JOLOWICZ ON TORT 5-081-5- 085, (Sweet & Maxwell
and Thomson Reuters 2014)

5
Victorian Railways Commissioner v Coultas [1888] UKPC 3

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countries such as UK, Singapore, Australia, USA and India have now recognised the principle
to allow compensation for victims who suffer from psychiatric illness; the principle developed
much slowly as compared to the stance of the courts for awarding damages for physical injury
and has still placed several restrictions of allowing compensation for psychiatric injuries. There
are several reasons for this. Firstly, the test of reasonable foreseeability may be sufficient to
provide compensation for physical injuries but for awarding compensation in cases of
psychiatric harm, reasonable foreseeability must be complied with certain control mechanisms.
Another argument for the restriction of compensation for psychiatric injuries was the
‘floodgates’ argument which meant that allowing compensation in one case would lead to large
number to be filed in the future if the scope of awarding damages to psychiatric injuries was
not limited. Other factors include evidentiary problems to establish direct causation of the
psychiatric damage of the plaintiff to the conduct of the defendant. Thus, it has somewhat
become difficult to prove a mental injury/ psychiatric damage and obtain compensation for it.

The paper would discuss the development of the principle in the United Kingdom with
reference to relevant case laws. It would also discuss the development of this principle in India.
Lastly, it would describe the applicability of the principle of nervous shock in obtaining
compensation for occupational stress and medical negligence in UK as well as India.

Research Problem

The tort of Nervous Shock and Psychiatric Damages is largely uncodified and thus major
reliance is sought on judgements that act as precedents which makes the laws surrounding it
very ambiguous. There is a greater need to understand the importance of this tort in both UK
and India and to not adopt a mechanical approach in dealing with such cases surrounding this.
A flexible, victim-centric approach and deciding each case according to its merits is extremely
pertinent to provide effective remedy to the victims of nervous shock.

Objectives

• To understand the meaning of Nervous Shock and Psychiatric Damages in Tort Law.
• To understand the history of the development of the Principle in UK with the help of
various case laws.
• To understand the development of the Nervous Shock and Psychaitric Damages principle
in India with the help of various case laws.

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Research Questions
• How has the principle of Nervous Shock developed in UK in the 19th and 20th century?
• Who are considered as primary and secondary victims while awarding compensation for
psychiatric damages and what is the basis to classify them as such?
• How has the concept of Nervous Shock in Tort Law developed in India and what are the
landmark cases highlighting significant development in this sphere?

Hypothesis

The concept of Nervous Shock and Psychiatric Damages remains largely uncodified as well
as underdeveloped in both UK and India, thereby making it difficult for the courts to assess
damaged and provide compensation in cases surrounding this subject of Tort Law.

Review of Literature

❖ Books
• Law of Torts (With Consumer Protection Act)
Author(s): Dr. Ashok K. Jain
The concept of Nervous Shock is very well articulated in the book. It describes the evolution
of the principle in the United Kingdom with the help of several landmark cases that were very
well articulated. It helps understand a broad overview of the tort in a very simplistic manner
and acts as an efficient guide specially to understand various important points in the landmark
cases surrounding Nervous Shock and Psychiatric Damages in the United Kingdom.
• Winfield and Jolowicz on Tort
Author(s): W.E. Peel & J. Goudkamp
An exceptionally well-written book, it provides immense information on the concept of
Nervous Shock and Psychiatric Illness, explaining in great detail various important concepts
such as distinction between primary and secondary victims, requirement of a ‘recognisable
psychiatric illness’ , Alcocks control mechanisms, nervous shock resulting from loss to
property, a claimant’s shock due to the defendant’s exposure of himself to the danger etc. It
provides great clarity on these topics along with appropriately criticising the decisions of the
House of Lords in some instances.

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❖ Research Papers
• Psychiatric Injury, Secondary Victims And The 'Sudden Shock' Requirement
Author(s): Margaret Fordham
This paper draws a comparative analysis between the United Kingdom, Australia and
Singapore while discussing the requirement of the sudden shock principle in determining
damages for secondary victims for psychiatric illness. While criticising the approach obtained
by the United Kingdom regarding the rigidity in the ‘sudden shock’ requirement, it analyses
various cases such as Taylorson v Shieldness Produce Limited ( [1994] PIQR P329) and Taylor
v A. Novo.( [2013] 3 WLR 989) It also gives a brief insight into the Law Commission Report
of 1998. The paper was extremely helpful in understanding the stance of United Kingdom
regarding the ‘sudden shock requirement’.

• Liability for Negligently Inflicted Psychiatric Harm: Justifications and Boundaries

Author(s): H. Teff
The paper discusses the need to compensate victims for a psychiatric illness due to the defective
impact that it has. It also makes multiple reference to cases such as the McLoughlin case and
the Alcock case to discuss UK’s restrictive approach in allowing compensation to secondary
victims for psychiatric damages. It also discusses the ‘artificial barriers’ created in these
judgements and reasons why the law should compensate for a pure psychiatric harm.

• Nervous Shock and Psychiatric Injury

Author: Nidhi Singh
The paper briefly discusses the history and evolution of the tort of Nervous Shock in the United
Kingdom with the help of several landmark cases. It then discusses the development of the tort
in India and the stance taken by the Supreme Court of India and various High Courts to award
damages for the same. It also discusses the landmark cases of mental agony and harassment
caused due to intentional harm in India. The paper provided with an excellent overview of
existence of this tort in India.

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❖ Articles

• A Shocking Requirement In The Law On Negligence Liability For Psychiatric

Illness: Liverpool Women's Hospital NHS Foundation Trust V Ronayne [2015] Ewca
Civ 588
Author(s): Andrew S. Burrows ,and John H. Burrows
The article describes the downside of a “sudden shock” requirement with the help of a recent
case involving medical negligence. It also describes the impact of such a decision on genuine
claims for psychiatric illness caused due to negligence and criticises the requirement of such a
principle.

• Primary and secondary victims: what is the difference?

Author: Amy Haughton
The article mainly describes the difference between primary and secondary victims and the
reasons of such a difference in law. It also discusses the criteria each category of the victims
have to fulfil in order to get compensation on psychiatric damages. It also discusses the reasons
for additional restrictions placed on secondary victims in order to award damages to them for
a nervous shock. It is a very well written articles that makes it extremely simple to understand
the concept of primary and secondary victims.

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Development of the concept of Nervous Shock in the United Kingdom

The concept of Nervous Shock and Psychiatric Damages have seen significant developments
in the United Kingdom. As Tort Law is majorly an uncodified law, the developments can be
highlighted over various significant judicial decisions in the 19th and the 20th Century. These
decisions set out various requirements and distinctions that were necessary to be followed to
obtain compensation for psychiatric illness. Some of these include the distinction between a
primary and a secondary victim, requirement of a recognised psychiatric illness and the
requirement of a sudden shock to be prove a psychiatric injury caused to a plaintiff as a result
of the defendant’s negligent conduct.

Distinction between a Primary and a Secondary Victim

Primary Victim

A Primary Victim is someone who participates or is ‘directly involved’ in an accident6. He is

the one who suffers from immediate physical harm or a mental distress directly as a result of
the defendants conduct. It is considerably easy for a primary victim to be awarded for damages
for a psychiatric illness as the requirements of reasonable foreseeability and the chain causation
are easily established. In the early cases of psychiatric illness in UK, Dulieu v White and Sons7,
it was held by Justice Kennedy that to give rise to an action for Nervous Shock “ The shock,
where it operates through the mind, must be a shock which arises from a reasonable fear of
immediate personal injury to oneself.”8 Thus, compensation for nervous shock was limited
mainly to the primary victims.

The scope of a primary victim was broadened in Page v Smith9. In this case, the plaintiff who
was already suffering from a chronic fatigue syndrome met with a car accident with the
defendant who was driving at the speed of 30 mph10. Though the plaintiff was not physically
injured, his myalgia encephalomyelitis became permanent due to which he was rendered

6
Amy Haughton, Primary and Secondary Victims: What is the Difference? THOMPSONS SOLICITORS (May
08, 2019), https://www.thompsons-scotland.co.uk/blog/35-personal-injury-claim/3061-primary-and-secondary-
victims-what-is-the-difference
7
Dulieu v White and Sons [1901]2 KB 669

8
Dr. Ashok K Jain, Law of Torts (With Consumer Protection Act) 119, (Ascent Publications 1997)

9
Page v Smith [1995] 2 All ER 736

10
Stephen Bailey & Donal Nolan, The Page v. Smith Saga: A Tale of Inauspicious Origins and Unintended
Consequences, 69 CAMBRIDGE L.J. 495 (2010)

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incapable for working as a teacher. The court in this case held that though the psychiatric harm
suffered by the plaintiff was not reasonably foreseeable, a primary victim could recover
damages even when only a physical harm to him was foreseeable.11 The House of Lords used
the ‘eggskull principle’ i.e. “ to take the victim as you find him” to impose liability upon the
defendant in this case, where his action may not have directly led to the plaintiff suffering from
the chronic fatigue system but it did exacerbate his already existing condition and thus should
be made liable.
Secondary Victim

A secondary victim is someone who was not involved in the incident himself but suffers from
a nervous shock or a psychiatric injury on seeing the injury suffered by the primary victim or
fearing the injury for the primary victim. There have been several case laws that have limited
the scope of awarding damages to a secondary victim.

In the case of Hambrook v Stokes Bros12, the court rejected the claim of providing
compensation only for the fear of immediate harm to oneself. In this case, a motor lorry has
left unattended by the defendants which slipped downhill a steep slope and moved towards the
plaintiff’s children. The plaintiff became extremely afraid for the safety of her children and
when she heard that a child matching the description of her daughter had been injured, she
suffered from a nervous shock that ultimately led to her death. In this case, though there was
no threat to personal harm or injury; the case was ruled in the favour of the plaintiffs and this
led to the evolution of providing damages to secondary victims.

Another leading case that discusses the compensation awarded to secondary victims is Alcock
v Chief Constable of South Yorkshire Police13. In this case, due to the negligence of the
defendants a disaster occurred in a football stadium as a result of which almost 95 people were
crushed to death and more than 400 were injured. Since, the football match was telecasted; the
plaintiffs had viewed the disaster on television and suffered from a nervous shock and brought
an action against the defendants. This action however failed in the Court of Law. It was held
that though the nervous shock was reasonably foreseeable, foreseeability could not
automatically create a duty of care of the defendants on the viewers and since the action had a

11
Supra note 8

12
Hambrook v Stokes Bros [1925] 1 KB 141

13
Alcock v Chief Constable of South Yorkshire Police [1991] 4 All ER 907 (HL)

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scope of affecting many people, it was essential to place a limitation on the number of claims.
The court also relied on the decision of McLoughlin v O’Brian that a physical proximity of the
secondary victims was required at the place of action or its immediate ‘aftermath’ and held that
since the spatial proximity was absent in the present case, compensation to the plaintiffs could
not be awarded. Lord Wilberforce also laid down a three-point test to place a limitation on the
number of claims arising for compensation doe secondary victims. It was held for a claim of
secondary victims was to be held maintainable, they had to meet the following criteria14:

1) The class of people whose claims can be recognised.

2) The proximity of those people to the place of the accident.
3) The means by which the trauma or psychiatric illness is caused.

It was required for the defendants to prove that they shared close ties of love and affection with
the plaintiff, there was spatial and temporal proximity of the defendants at the place of the
event and that the psychiatric injury caused to them was due to witnessing a horrific sight or a
sound that had the capacity to mentally agitate or traumatize them.

Even after the passage of 27 years of the Alcocks decision, the category of secondary victims
who have the capacity to claim for damages remains broadly the same.15 Thus, the distinction
made by the courts of UK between primary and secondary victims is an important sphere in
nervous shock and has been continuously followed from its inception till today.

Requirement of a Recognised Psychiatric Illness

Another important principle surrounding nervous shock that has been developed in the United
Kingdom is the requirement of a recognised psychiatric illness for a claim under nervous shock
to be maintainable. This has now become a general rule that there is no compensation for an
emotional or mental distress, such as temporary anger or grief without any recognisable
psychiatric illness.16 Some of the most commonly found illnesses include Post Traumatic Stress
Disorder (PTSD); clinical depression etc.

14
Supra note 4

15
Supra note 6
16
Recognised psychiatric illness, LEXIS NEXIS
https://www.lexisnexis.com/uk/lexispsl/personalinjury/document/393875/55MK-3WF1-F18H-M2YC-00000-
00/Recognised_psychiatric_illness

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Though the principle seems to be appropriate, extreme stringency in the adoption of such a
principle can sometimes be unjustified as genuine claims are dismissed due to the rigid
application of this principle.
In Reilly v Merseyside Regional Health Authority17, Mr. and Mrs. Reilly were trapped in an
overcrowded elevator for over an hour due to the defendant’s negligent conduct when they
visited the defendant’s maternity hospital. Both of them suffered from symptoms of
claustrophobia, they suffered from anxiety, breathlessness and dizziness due to which they had
trouble sleeping and suffered from nightmares. Mrs. Reilly had a pre-existing condition of
claustrophobia. They sued the defendants for negligence and though they were successful
initially, the Court of Appeal overturned the decision based on the defendants claims that since
the couple was not suffering from a ‘recognised psychiatric illness’ their claim for negligence
could not be accepted. Thus, due to the strict interpretation of this concept, it was unfair that
the hospital be held not liable for a negligent conduct that caused genuine distress to a couple.
It has been discussed that common law rules such as these are sometimes criticised as
withholding appropriate recognition genuine mental agony as an appropriate method of
compensation. A more favourable approach should have not so mechanical but should adopt a
more consequence-based approach.
Thus, the concept of a recognised psychiatric illness although questionable sometimes, has
been established as an important principle that has been taken into consideration while
determining liability for cases of nervous shock and psychiatric illness.

Requirement of a ‘sudden shock’ to determine liability

This is one of the conditions set in the Alcock’s case, where it was held that a claim for
psychiatric damage for a secondary victim would only be maintainable if he suffers from as
shock due to witnessing the accident or its immediate aftermath. The word “shock” included a
“sudden appreciation, by sight or sound of a horrifying event, which violently agitates the
mind.”18 The principle has been adopted till date in the United Kingdom and has also been

17
Reilly v Merseyside Regional Health Authority [1995] 6 Med. L.R. 246.

18
Andrew S. Burrows and John H. Burrows, A Shocking Requirement In The Law On Negligence Liability For
Psychiatric Illness: Liverpool Women's Hospital Nhs Foundation Trust V Ronayne [2015] Ewca Civ 588, 24(2)
MEDICAL LAW REVIEW (2016)

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adopted various other countries such as Singapore. It is seen that both, UK and Singapore hold
the perception that too liberal approach to such claims could lead to floodgates of litigation.19
But again, a rigidity to hold on to such a condition can lead to denial of compensation in case
of genuine claims to the victims of a psychiatric illness suffered by them over a period of time
which is as detrimental to their mental health as suffering from a psychiatric injury induced
due to a sudden shock.
A recent case of Liverpool Women's Hospital NHS Foundation Trust v Ronayne20 decided in
June 2015 highlights the same. In this case the claimant’s wife had been admitted to the
Liverpool Women’s Hospital and was administered by the defendant for a hysterectomy. But
after a few days of her treatment, she started running a high temperature and shallow breathing
post which she was admitted to Royal Liverpool University Hospital and over a period of 36
hours, the claimant (who would be regarded as a secondary victim in the case) saw his wife’s
condition deteriorate. He found her body connect to various machines, and post her surgery she
was on ventilator and four antibiotics intravenously administered to her. This was a horrific
sight to watch, enough to traumatise a person. He had to undergo this mental trauma due to the
negligence of the defendant, who misplaced a suture in her colon as a result of which she
suffered from septicaemia and peritonitis. Though she recovered completely, the plaintiff sued
the defendant as he suffered from an “adjustment disorder” a recognised psychiatric illness.
Though the claim succeeded initially, the defendant filed an appeal claiming the absence of the
“sudden shock” element. The defendants claim succeeded and thus, he was not compensated
for his psychiatric illness.
Thus, a rigid approach is detrimental cases such as these where despite a plaintiff who deserved
compensation, was not awarded the same.

19
Margaret Fordham, Psychiatric Injury, Secondary Victims And The 'Sudden Shock' Requirement Vol. 57, No.
1, NATIONAL UNIVERSITY OF SINGAPORE (FACULTY OF LAW) (2014)

20
Liverpool Women's Hospital NHS Foundation Trust v Ronayne [2015] EWCA CIV 588

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Understanding the Development of the Principle of Nervous Shock in India

with the help of relevant Case Laws

When compared to the existence of the concept of Nervous Shock in the UK, the concept of
Nervous Shock in India remains highly underdeveloped. Though the Madras High Court in
Mrs. H.I. Halligua vs Mohanasundaram And Anr21. had referred to various cases of Nervous
Shock as decided by the UK such as Dulieu v White and Sons22 and Victorian Railways
Commissioners v. Coultas23 while determining the scope of liability for cases regarding
Nervous Shock in India, the Supreme Court of India has made several attempts to grant relief
to petitioners who suffered from harassment or mental agony due to the acts of the defendant
under the Consumer Protection Act. The Supreme Court in Lucknow Development Authority v
M.K Gupta24 held that “When a citizen seeks to recover compensation from a public authority
in respect of injuries suffered by him for capricious exercise of power and the National
Commission finds it duly proved then it has a statutory obligation to award the same.” The
Court also upheld the decision of the National Consumer Disputes Redressal Commission that
had directed the appellant to pay Rs. 10,000 for the harassment, mental torture and agony it
caused to the respondent. Further the Supreme Court in Bangalore Development Authority v
Syndicate Bank25 held that for any compensation to be awarded; the quantum of compensation
would depend upon “ the facts of each case, nature of harassment, the period of harassment
and the nature of arbitrary or capricious or negligent action of the authority which led to such
harassment.”
Other than these, there are several important judgements given by the Supreme Court of India
as well as various High Courts of the country that recognise and award damages to the
petitioners who suffer from a nervous shock; some of which shall be discussed below.

21
Mrs. H.I. Halligua vs Mohanasundaram And Anr, AIR 1951 Mad 1056

22
Dulieu v White and Sons [1901]2 KB 669

23
Victorian Railways Commissioners v. Coultas [1888] UKPC 3

24
Lucknow Development Authority v M.K Gupta, (1994) SCC (1) 243

25
Bangalore Development Authority v Syndicate Bank, (2007) 6 SCC 711

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Mrs. H.I. Halligua vs Mohanasundaram And Anr.26

The case, decided in 1951 is the 1st case of Nervous Shock decided in India by the Madras High
Court. It is important to discuss the case as it shows the development of the concept of Nervous
Shock in the Indian Jurisprudence. It is commendable that the Indian Courts, immediately after
independence had progressed enough to recognise the development of the principle and award
compensation for nervous shock and mental trauma.

Facts: In this case, plaintiff had sued defendant no 1, a taxi driver for negligently driving his
taxi due to which it collided with a tram as a result, causing an injury to her. The plaintiff
claimed that after the collision she suffered immediate, immense pain in her arms and her
hands. A few days later, she was diagnosed with a disease Neuritis but suffered from no
external injury at all. It was also claimed by the plaintiff that “as the result of the shook due to
the collision, she began to menstruate with excessive flow of blood, prematurely. “ Even though
the doctors could not detect any external injury, she suffered from chronic pain in her arms and
hands. Even after months of treatment she could not even move her fingers. After consultation
with several doctors, she visited Dr. Vishwanta Menon who diagnosed that she was suffering
from psychoneurosis or hysteria, which was induced due to trauma in which “a patient may get
into a subconscious state of continuous pain without any conscious malingering, in which case
the pain may continue and can be cured only by a psycho-analyst.” Therefore, a plea had been
filed in the Madras High Court to compensate the plaintiff for the injury she suffered from, due
to the negligent conduct of the defendant.
Judgement:
The Madras High Court held that the defendant was clearly liable for negligence as he did not
notice the tram coming on the line before the plaintiff shrieked. The court rejected the
defendant’s argument that a high claim for compensation without any external injury but
mainly as a result of a sudden shock was unsustainable as there was no case in the Indian Case
Law providing damages for a nervous shock. The court also refused to accept the contention
of defendant no 2, an insurance company who sought to evade the claim on the basis that the
plaintiff had not suffered from a bodily injury and her suffering was due to the shock she
suffered which could not be included in the ambit for insurance. The Madras High Court stated
that an individual’s body is controlled by its nervous system and any acute shock to the nervous
system has the capacity to impair or incapacitate the normal functions of the body and thus

26
Mrs. H.I. Halligua vs Mohanasundaram And Anr, AIR 1951 Mad 1056

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should be regarded as a bodily injury. The High Court stated that though it is difficult to
measure damages caused due to a nervous shock, the direct consequence of the shock on the
bodily functions can be used as a measure to determine the impact of the shock. The court
directed both the defendants; the taxi driver as well as the insurance company to compensate
for the injury occurred to the plaintiff.

Analysis: In the opinion of the researcher, the case is one of the best references for the Indian
Courts to determine liability for claims of Nervous Shock. Despite being the 1st case decided
based on Nervous Shock in independent India, it was very well ahead of its time. It not only
sought to remove the distinction between a physical injury and a mental injury, it also provided
insurance claim to the victim for a shock induced psychiatric condition. The approach used by
the High Court was extremely accurate as well, as it relied on the expert medical opinion of
Dr. Vishwanta Menon while imposing liability on the defendant no 1 to compensate the victim
for the mental injury she suffered due to his rash and negligent driving. The Court also brought
about a very good point that a hard and fast rule could not be laid down to determine liability
in such cases and thus each case should be discussed based on its merits thus making it
extremely fait for a victim of nervous shock/psychiatric injury to obtain compensation without
having to meet mechanical criteria set by the courts. In all, it is a very good example of
compensation provided to the victims of Nervous Shock in India

Jose Philip Mampillil vs Premier Automobiles Ltd. And Anr27

This case is one of the most important cases for nervous shock in India as the Supreme Court
of in India had awarded the highest compensation of Rs. 40,000 to the appellant for mental
agony and torture due to the acts of the respondent.

Facts: The appellant of the case, Mr. Jose Mampillil had placed an order and paid the full
amount for a Premier Diesel car he purchased from the respondent. When he went to take the
delivery of the car, he found that there were several defects in the car. The 2nd respondent
promised to cure the defects and called the appellant after a few days. The appellant found that
the defects had yet not been cured and initially refused to take the delivery of the car but he
was persuaded to do so on the assurance that the defects would be remedied. At this stage the

27
Jose Philip Mampillil vs Premier Automobiles Ltd. And Anr, 2004 (1) SCR 1095

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appellant found heavy leakage of oil from the car and the piston rings were also defective. He
sent the car multiple times to cure the defects and the car was sent back to him each time
claiming that the defects had been repaired where in fact they were not. The appellant then
approached the District Consumer Disputes Redressal Forum pleading for the respondent to
take back the car and also compensate him for the mental agony and hardship that was caused
to him. After the rounds of appeal to the State Consumer Dispute Redressal Forum and the
National Consumer Disputes Redressal Forum, an appeal was finally made to the Supreme
Court of India.

Judgement: It was held by the Supreme Court that “it was shameful that a defective car was
sought to be sold as a brand-new car” by the respondents. The Court directed that the appellant
may send his car for repairs in any garage of Kottayam, the cost for which shall be borne by
the respondents. Most importantly, it was accepted by the Supreme Court that the appellant
had in fact suffered from mental agony in paying for a defective car and taking the car for
repairs time and again. To remedy this, Justice S.N Variava and H.K Sema held that “For this
mental agony and torture, we direct that the Appellant shall be entitled to a sum of Rs. 40,000.”

Analysis: This is a very progressive decision given by the Supreme Court to remedy the mental
agony caused to an appellant as a result of deliberate harm caused to him due to the actions of
the respondent. The court has adopted a very simplistic approach by only considering the
impact of the respondents conduct on the mind of the appellant and awarded compensation for
the same. It is a very important judgement because it very correctly encapsulates the fact that
a consumer/ buyer who has purchased a product, suffers not only from a monetary loss but also
from mental agony when the product is defective, a fact that is not commonly considered.

G. Sriram and Ors. V The Managing Director, Tamil Nadu State Transport Corporation28

A contemporary case decided by the High Court of Madras, is important in understanding

India’s stand for compensating victims for the nervous shock and mental suffering caused due
to the negligence of the respondents.

Facts: The appellants along with several other people were travelling from Alanthur to
Valavanur when a bus belonging to the State Transport Corporation, driven in a rash and

28
G. Sriram and Ors. V The Managing Director, Tamil Nadu State Transport Corporation, 2012 (2) TN MAC
817

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negligent manner, came from the same direction and hit the rear side of the vehicle. When the
case went before the Tribunal, it paid compensation to the 12 persons and 2 appellants who
were dissatisfied with the meagre amount of Rs.1000 and Rs. 2500 appealed before the High
Court. It was claimed by the appellants that the compensation provided to them was extremely
low and that they should also be compensated for the mental agony and suffering due to the
defendant’s negligent conduct.

Judgement: The Madras High Court accepted the claim of the petitioners. Justice P. Devadass
held that “the suffering of Road Accident victims need not be physical sufferings alone. It
includes mental sufferings also.” The High Court also emphasised upon the fact where during
accidents there may not be any external injury but a mental agony that can impact them for
quite sometime such as “mental trauma, nervous shock, loss of enjoyment etc”. The High Court
also determined that the appellant on witnessing the accident and its ‘aftermath’ i.e being
hospitalised, would have definitely suffered from a mental shock and undergone a trauma. It
held that since this was mainly due to the rash and negligent driving of the bus driver, the State
Transport Corporation should be made liable to compensate to her and also increased the
amount of compensation awarded by the Tribunal.

Analysis: The judgement is a very good indicator of the stance that Indian courts have taken
in awarding compensation to victims for nervous shock. The Madras High Court though not
explicitly, did apply the test of reasonable foreseeability. The test of reasonable foreseeability
can be seen very evidently when Justice P. Devadass said “In view of the accident and
witnessing it, she definitely would have undergone shock and mental trauma.” By using the
test of reasonable foreseeability for nervous shock for primary victims as laid down in Dulieu
v White and Sons29, the Madras High Court awarded damages to the appellants.

29
Dulieu v White and Sons [1901]2 KB 669

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Findings and Suggestions

Findings

• The tort of Nervous Shock has seen major development in the United Kingdom throughout
the 19th and the 20th Century. Various common law countries such as Singapore, Australia
and Canada adopted the principles set out by UK in awarding damages to victims suffering
from Nervous Shock/ Psychiatric Injury.

• One of the most important developments in this principle was the distinction made between
primary and Secondary victims. While reasonable foreseeability proved to be one of the
major determining factors for compensation to primary victims; Lord Wilberforce laid
down certain principles known as the Alcocks principles that needed to be satisfied in order
for the claims of secondary victims to succeed. This was done to avoid “floodgates of
litigation” i.e to limit the number of claims made by the secondary victims.

• While discussing the development of this tort in India, it should be noted that it remains
highly uneventful as compared to the development of the same tort in United Kingdom,
though Indian Courts have recognised this tort and, in several cases, have awarded
compensation for the same.

• While dealing with cases that cause intentional mental agony, harassment and suffering;
the Supreme Court of India has granted the power to the Consumer Dispute Redressal
commissions to bring the victims claims under the ambit of the Consumer Protection Act
and compensate them for the same. On the other hand, while dealing with cases of
negligently caused nervous shock and mental agony; various High Courts too have awarded
compensation to the victims for the same where tests of reasonable foreseeability and
causation have been used.

• Thus, the tort of nervous shock, though with some lacunae remains fairly established in UK
as well as India.

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Suggestions
• There is a need to re-look the requirement of the ‘sudden shock’ principle for accepting
claims for secondary victims especially in cases of medical negligence as in most cases the
trauma suffered by the victims is prolonged but equally distressing as the trauma suffered
by ‘sudden shock’ victims.

• There needs to be a divergence from the principle of a “ recognisable psychiatric illness”

as claims of mental suffering due to the negligent acts of a defendant are being unfairly
treated with due to this requirement. The idea of not compensating for short term emotions
such as anger/ grief is understandable, some exceptions should have been made in cases
such as Reilly v Merseyside as explained earlier.

• Lastly, while discussing cases under this topic, the courts should adopt a very flexible
approach rather than adopting a mechanical one as determining the effect of a defendants
action on the mind of a plaintiff is very difficult and immeasurable since it is not externally
visible unlike cases regarding compensation for physical injury. Thus, the courts should be
more open and receptive to do justice to the victims of nervous shock/ psychiatric illness.

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Conclusion

The concept of Nervous Shock and Psychiatric Damages in tort law is to a very large extent
uncodified, thus making case laws a very important source of understanding the nature of
claims and awarding damages for the same. In such a situation, there is a need to understand
that decisions do not blindly follow precedents, but change the nature and quantum of claims
awarded from time to time as there can occur various unprecedented circumstances thus,
making it imperative for the courts to act with great flexibility to recognise such situations and
compensate the victims for the same. In this respect, it is observed that the Indian Courts have
adopted a more liberal approach in awarding damages for nervous shock as compared to the
United Kingdom even though this concept has not seen major developments in India as
compared to the United Kingdom.
Overall, there is a need to understand the importance of awarding damages for victims of
nervous shock and psychiatric damages due to the nature of harm that they suffer. This concept
cannot be dealt with any laxity as any impairment of the nervous system has much wider
ramifications on the capacity of a person to lead a normal life and allow his body to carry on
day-to-day functions as there is an element of permanence involved in it. The courts need to
take this into account and adopt a more victim- centric approach; the one that most suits the
victim and does not entangle his claim into the mechanical requirements laid down by case
laws. Only when such an approach is followed, it will be fair and just for the victims.

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Bibliography
❖ Books

• Dr. Ashok K Jain, Law of Torts (With Consumer Protection Act) 119, (Ascent
Publications 1997)

• W. E Peel & J. Goudkamp, Winfield And Jolowicz On Tort 5-081-5- 085, (Sweet &
Maxwell And Thomson Reuters 2014)

❖ Articles and Research Papers

• H. Teff, Liability For Negligently Inflicted Psychiatric Harm: Justifications And

Boundaries, Vol. 57, No. 1 , THE CAMBRIDGE LAW JOURNAL, 91 (1998)

• SOLICITORS (May 08, 2019), https://www.thompsons-scotland.co.uk/blog/35-personal-

injury-claim/3061-primary-and-secondary-victims-what-is-the-difference

• Stephen Bailey & Donal Nolan, The Page v. Smith Saga: A Tale of Inauspicious Origins
and Unintended Consequences, 69 CAMBRIDGE L.J. 495 (2010)

• Recognised psychiatric illness, LEXIS NEXIS

https://www.lexisnexis.com/uk/lexispsl/personalinjury/document/393875/55MK-3WF1-
F18H-M2YC-00000-00/Recognised_psychiatric_illness

• Andrew S. Burrows and John H. Burrows, A Shocking Requirement In The Law On

Negligence Liability For Psychiatric Illness: Liverpool Women's Hospital Nhs Foundation
Trust V Ronayne [2015] Ewca Civ 588, 24(2) MEDICAL LAW REVIEW (2016)

• Margaret Fordham, Psychiatric Injury, Secondary Victims And The 'Sudden Shock'
Requirement Vol. 57, No. 1, NATIONAL UNIVERSITY OF SINGAPORE (FACULTY
OF LAW) (2014)

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