Fairfield Institute of Management and Technology

TOPIC OF RESEARCH PROJECT

Nervous shock

Subject Name: Tort

Subject Code:104

Submitted to: Submitted by:

Name of the Faculty Name- Sneha swami
__Mrs. Shivangi _____ Enrolment no: 04390103821
Course: BA.LLB
Semester/Section: 2(A)
 INDEX

Content Page no.

Introduction
1

2
What is nervous shock
Case under nervous shock
3

Primary Victims and

Secondary Victims of Nervous 4
Shock
Control Mechanism in
6
Nervous Shock

8
Conclusion

bibliography 9
 INTRODUCTION

Under the English law of tort, the same is defined as follows: nervous shock
or injury inflicted upon a person by intentional or negligent actions or
omissions of another. 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” (Lord Keith and Lord Oliver, respectively,
both in Alcock v chief constable of south Yorkshire) it continues to be
applied as a useful abbreviation for a complex concept. To amount in law to
"nervous shock", the psychiatric damage suffered by the claimant must
extend beyond grief or emotional distress to a recognized 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.
 What is Nervous Shock?

>Meaning of Nervous Shock: – Medically speaking nervous shock would

mean a sudden drop in blood pressure and resulting circulatory failure
marked by pallor, sweating, rapid (but weak) pulse, and sometimes complete
collapse. Causes include disease, injury, and psychological trauma. In shock,
the blood pressure drops below what is needed to supply the body’s tissues,
especially the brain.
In English law, a nervous shock is a psychiatric/mental illness or injury
inflicted upon a person by intentional or negligent actions or omissions of
another. It is a shock which arises from a reasonable fear to immediate
personal injury to oneself. Often it is a psychiatric disorder 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.
For a case under nervous shock, the plaintiff has to prove the following
things: –

• Necessary chain of causation between nervous shock and the death or

injury of one or more parties caused by the defendant’s wrongful act;
• Plaintiff is required to prove shock caused to him by seeing or
hearing something. Physical injury is not necessary;
• His proximity to the accident was sufficiently close in time and
space.

Tort law was always considered an unwritten principle for bodily injuries.
The courts have earlier said that nervous shock or psychiatric injury will not
be entitled for any compensation. He said that in no way a nervous shock
can be equated with physical damage. However, it was very clear that if
nervous shock is so direct as to physical damage that it can cause damage to
the brain, so in such a case, compensation for nerve shock is also allowed.
Nervous shock claims can be brought by persons who have witnessed, at
the scene, a victim being killed, injured or put in peril if it is accepted by the
Court that they have a genuine psychiatric illness arising from a
circumstance that the defendant ought to have foreseen to be capable of
causing a person of normal fortitude to suffer a recognisable psychiatric
illness if reasonable care were not taken. Claims for damages for pure
mental harm or nervous shock should only be brought by individuals who
have suffered very significant psychological injury as a result of a particular
event. Appropriate compensation can be awarded to persons with
significant injuries that negatively impact upon their ability to earn an
income and which give rise to significant medical expenses.
 Primary Victims and Secondary Victims of Nervous Shock

Meaning of Primary Victims and Secondary Victims of Nervous Shock:

– 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. 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. A very
early case on this front is the case of Dulieu vs. White and sons, where
Kennedy J gave a test to determine the liability of the defendant in a nervous
shock case.
A test can determine the defendant’s liability in a nervous shock. The test is
a two-fold test: –
• The extent to which shock is presented in the courts can be

predictable and
• The shock must come from a justified fear that it may cause bodily

harm.
This test differentiated between the primary victim and the secondary victim
in the sense that the party who is directly involved in the accident and has a
reasonable fear of causing bodily injury is the primary victim. A secondary
victim is one who suffers nervous shock without the primary victim being
directly exposed to any physical danger in the accident.
But this test was reduced in the case of Page vs. Smith where the judges held
that where the reasonable foreseeability can be proved, there “physical and
psychiatric harms are not of different types, so that if the former is
foreseeable, the claimant can recover in respect of both physical and
psychiatric harms, even where the latter is not in itself foreseeable”. This
means that the requirement for the plaintiff is to prove that they were in the
purview of the physical injury and then they are directly eligible to get
compensation for the nervous shock/ mental illness. But this may open the
floodgates, if the nervous shock was not foreseeable.
 Control Mechanism in Nervous Shock

>Courts have taken different approaches to developing the concept of

nervous shock as a form of tort. Out of fear for false claims and unrestricted
liability of defendants, the courts have created a number of “control
mechanisms” which can limit liability. As in the case of McLaughlin vs.
O’Brien, where the House of Lords was clear that compensation could be
awarded in this case, divisions arose when deciding the examination of
liability. In this, the plaintiff was not present in close proximity of the
accident but sustained nervous shock when she was told about the accident.
In holding the defendants liable the House of Lords extended the law to
cover a situation where the plaintiff had not seen or heard the accident itself
but had come upon its immediate aftermath. It gave a three-part test in order
to restrict the compensation. Lord Wilberforce identified three factors that
would need to be identified in every case.
Lord Wilberforce held that liability should not only be based on foresight
and the following factors should also be taken into account: –
• The class of persons whose claims should be recognized;

• The proximity of such persons to accident; and

• The medium through which the mental illness was caused – it must

have come through the plaintiff’s own vision or hearing of the

incident or immediately thereafter; Communication by third parties
was not enough.
These three control mechanisms suggested by Lord Wilberforce were
subsequently reformulated and applied by a unanimous house of Lords. This
test was given by Lord Wiberforce and later, it came to be known
as ‘Alcock test’ and this test was used to control the number of claims. This
test was applied a decade later in several cases, including one in Alcock vs.
Chief Constable of South Yorkshire. However, by applying this test, the
court held that the claim could not be allowed as the above conditions were
not fulfilled.
Second and third control mechanisms are sometimes also called proximity
of perception. The limits of the decision in Alcock were explored in the
case of white v chief constable of south Yorkshire Police. It is a 1998 case in
English tort law in which police officers who were present in the aftermath
of the Hillsborough disaster sued for post-traumatic stress disorder. The

officers present at the stadium were entitled to succeed without needing to

meet Alcock criteria as special rules applied where a psychiatric illness
claimant was a “rescuer” or an employee and the officers in question were
both. Until relatively recently, the tort of negligence relating to claims for
psychiatric injury was very uncertain. However, in recent times, this area of
law has become slightly more certain with the laying down of various
guidelines and criteria governing whether an individual can recover damages
as a result of witnessing an event which causes them some form of
psychiatric injury.
 CONCLUSION

>In order for a claimant to receive damages from nervous shock due
to the negligence of the defendant, they must prove all the elements
of the tort of negligence: 1) a duty of care exists; 2) there is a breach
in that duty; 3) the causal link between the breach and shock; 4)
shock was not too remote a consequence.
 BIBLIOGRAPHY

➢ http://www.legalserviceindia.com/legal/article-1721-nervous-shock-and-liability-
of-psychiatric-damages-in-india-and-in-common-law-countries.html

➢ Wikipedia.com