Table of Abbreviations

& And

AC Appeal Cases

All ER All England Reports

App. Cas Appeal Cases

EWCA Civ England and Wales Court of Appeal (Civil

Division) Decisions

KB Law Reports, King's Bench Division

LJ Law Journal

PIQR Personal Injuries and Quantum Reports

QB Law Reports, Queen's Bench Division

SCC Supreme Court Cases

Vs/ V/ V. Versus

WLR Weekly Law Report

Table of Cases
• Blyth v. Birmingham Waterworks Co (1856) 11 Exch. 781
• Victorian railways commissioner v. Coultas (1888) 13 App. Cas. 222
• Lord Lloyd in Page v Smith [1996] AC 155, 188
• Hinz v. Berry [1970] 2 QB 40.

Page 1 of 22
• Allsop v. Allsop (1860) 29 LJ (Ex) 315
• McLoughlin v. O’Brian [1983] 1 A.C. 410 (H.L.)
• Taylor v. A Novo (UK) Ltd  [2013] EWCA Civ 194
• Kralj v. McGrath, [1986] 1 All E.R. 54 (Q.B.D.)
• Halligua v. Mohanasundaram 1951 SCC OnLine Mad 101
• Dulieu v White & Sons [1901] 2 KB 669
• Hambrook v Stokes Bros [1925] 1 KB 141
• Bourhill v Young. [1943] AC 92.
• Brice v Brown [1984] 1 All ER 997
• Page v Smith [1996] AC 155
• Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310
• Chadwick v British Railways Board [1967] 1 WLR 912
• McFarlane v EE Caledonia Ltd [1994] 2 All ER 1
• Taylorson v Shieldness Produce Ltd [1994] PIQR P329 (CA)

Table of Statute
• Mental Healthcare Act, 2017

Page 2 of 22
 TABLE OF CONTENTS
Declaration 2

Acknowledgements 3

Table of Abbreviations 4

Table of Cases 5

Table of Statute 5

Introduction 7

Definitions 9

Research Framework 11

Statement of Problem 11

Review of Literature 11

Hypothesis 12

Research Questions 12

Objectives of Study 12

Psychiatric Damage 13

Conditions for Liability 16

Lacunae in the Present Law 20

The Way Forward 22

Conclusion and Suggestions 24

Bibliography 25

Page 3 of 22
 Introduction
A tort is a breach of some duty primarily fixed by law, independent of a contract or a breach
of trust, giving rise to a civil suit where there is an action for unliquidated damages upon de-
termining the alleged tortfeasor’s liability. The un-codified nature of the law of torts in India
where it is mostly governed by precedents that belong to the English Tort Law make it highly
flexible and accommodating to the ever changing society. Traditionally, physical injuries re-
sulting from negligence or a breach of duty have been recognised as a specific tort in itself.
Negligence was defined in Blyth v. Birmingham Waterworks Co.1 as—

“the omission to do something which a reasonable man, guided upon those considera-
tions which ordinarily regulate the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not do.”

For this purpose a plaintiff or a claimant is generally expected to prove the existence of a
duty or reasonable care, a breach of the said duty, a legal injury and damages. The issue of
determining whether there is a duty and a breach of it is left to the judiciary. The test of rea-
sonability to verify the breach has over the years changed according to the varying standards.

Psychiatric suffering or nervous shock, the subject of this project for example, was not recog-
nised until much later, after the advancement of medical science to study and define psychi-
atric illnesses. Previously, the law took cognisance of physical injury resulting from actual
impact. The identification of nervous shock as negligence in tort is fairly recent. Though
recognition and awarding of relief in cases claiming damages for psychiatric sufferings took
several years of litigation, it is presently practiced, with subject to certain conditions. Previ-
ously, it was increasingly thought that establishing mere emotional or mental harm as a tort
would overload the court system and decrease productive activity and the lack of medical ad-
vancement in the subject would make it easy to fake mental injuries. This was even held in
the case of Victorian railways commissioner v. Coultas 2. The plaintiff and her husband were
riding together in a horse-drawn buggy. A conductor/guard negligently missed checking for
the incoming train as a result of which the horse missed being hit by the train by seconds. The

1(1856) 11 Exch. 781

2 (1888) 13 App. Cas. 222

Page 4 of 22
plaintiff suffered severe shock and fainted after which she sued the gatekeeper for vicarious
liability of his employee. The court however, refused to allow any recovery stating that this
would ‘open floodgates for claims’ and declined to establish such a precedent. But the surfac-
ing of very genuine plaintiffs suffering from obvious mental injuries as a result of negligent
conduct has helped change this notion. Furthermore, a major issue with regards to imposing
liability for psychiatric damage is whether or not a duty existed in the first place and whether
this should be restricted by referencing a particular range of relationships like mother and
child or wife and husband. For example- a mother suffering from nervous shock after wit-
nessing her son being hit by a vehicle driven by the defendant negligently, is entitled to claim
compensation. Here, the plaintiff would have to prove the close emotional ties with the per-
son who suffered physical injury to be awarded compensation. These principles have evolved
with years and so one cannot claim the law has been systematic and orderly as there are ex-
ceptions to the general rule that had persisted at the time. However, there are four major
stages of how negligence in relation to nervous shock was treated generally in common law
jurisdictions3.

- The first stage is where there was complete denial of compensation for mental damage un-
less it was directly caused by a physical injury for which there lies an action in tort law.
- This stage recognised only serious psychiatric suffering. Even though the mental damage
did not require to be caused by a direct physical injury, it must entail a negligent incident
involving physical injury of the plaintiff.
- This stage allowed claimants to seek compensation for emotional trauma caused by being
present in the vicinity of the negligent incident because of which there was considerable
fear of their own safety.
- This stage was similar as it allowed recovery for emotional trauma caused by witnessing
such an incident wherein there was grievous harm or reasonable fear for their spouse or
child as a result of the tortfeasor’s negligence.

For progression from one stage to another, the courts have had to increasingly liberalise the
rules and conditions required to hold a person liable for psychiatric suffering caused by him
as a result of negligent conduct. This ‘logical progression’ was a result of identification of a

3 Robertson, David W., ‘Liability in Negligence for Nervous Shock.’ [1994] The Modern Law Review, vol. 57,
no. 4

Page 5 of 22
‘logical necessity’ on a case to case basis. Given the nature of laws related to torts it is per-
haps difficult to determine a set of conditions, with conclusiveness as to what leads to liabil-
ity for psychiatric damage as a tort. However, it is possible to establish what circumstances
lead to liability for the same by analysing case laws and the principles that supplement the
given judgements albeit without finality.

Definitions
Medical Definition of psychiatric damage as given in the Encyclopaedia by Farlex, also
known as nervous shock under English Law—

1. “In medicine, circulatory failure marked by a sudden fall of blood pressure and resulting
in pallor, sweating, fast (but weak) pulse, and sometimes completes collapse. Its causes
include disease, injury, and psychological trauma. In shock, the blood pressure falls be-
low that necessary to supply the tissues of the body, especially the brain. Treatment de-
pends on the cause. Rest is needed, and, in the case of severe blood loss, restoration of
the normal circulating volume”4

2. “According to Lord Bridge- “[T]he first hurdle which a plaintiff claiming damages of the
kind in question must surmount is to establish that he is suffering, not merely grief, dis-
tress or any other normal emotion, but a positive psychiatric illness.” Any 'recognisable
psychiatric illness’ will suffice, and damages have been awarded in the past for morbid
depression, hysterical personality disorder, post-traumatic stress disorder, pathological
grief disorder and chronic fatigue syndrome (CFS). Expert medical evidence will gener-
ally be required to establish that the plaintiff has suffered a recognisable psychiatric ill-
ness. The ordinary emotions of anxiety, fear, grief or transient shock are not conditions
for which the law gives compensation.”5

4 - (The Liability of Psychiatric Damages in Indian and Foreign Jurisdictions) <http://www.legalservicesindia.-

com/article/522/The-Liability-of-Psychiatric-Damages--in-Indian-and-Foreign-Jurisdictions.html> accessed Oc-
tober 30, 2021
5 Law Commission Report, U.K., Liability for Psychiatric Illness (LC249, 1998) para 2.3.

Page 6 of 22
 Research Framework

Statement of Problem
Psychiatric damage as a tort is a new concept especially in India. Continuous development of
the law of torts and advancement in understanding of mental health has made it an ambiva-
lent aspect of the law. Thus, I believe analysing various judgements to seek clarity and estab-
lish a pattern will help in understanding the system better.

Review of Literature
1. Law Commission Report, U.K on Liability for Psychiatric Illness- This was used to
gain an understanding of various policy considerations with respect to laws around ner-
vous shock as a tort. The report contains an in-depth comprehension of the subject sup-
plemented by various case laws and theories.

Page 7 of 22
2. Liability in Negligence for Nervous Shock- Review by David W. Robertson- This re-
view work simplifies the work of Nicholas J. Mullany and Peter R. Handford to provide a
clear grip on fundamentals to keep in mind while exploring this subject.
3. The Liability of Psychiatric Damages in Indian and Foreign Jurisdictions, Legal
Services India- This article was particularly helpful in establishing differences and simi-
larities between U.K., Indian and the American system.
4. Tort Liability for Mental Disturbance and Nervous Shock- Author(s): Francis M.
Burdick- This article provided perspectives by considering various situations and apply-
ing the said law in question to study the possibilities such that the efficiency of these laws
are put to test. It provided valuable insights for this project.
5. Psychiatric Injury, Secondary Victims And The 'Sudden Shock' Requirement- Au-
thor(s): Margaret Fordham- This paper too provided a deeper understanding of the
principles and more importantly the rationale behind these principles in three different
common law jurisdictions i.e. Singapore, Australia and U.K.

Hypothesis

The following hypotheses will be evaluated in this research project:

1. The conditions and tests of liability to determine what leads to a tort by means of psychi-
atric damage or nervous shock are inefficient for present day.

6. Given the nature of tort law, there is considerable scope and need for further broadening
of the existing rules to liberalise what constitutes liability in such cases.

Research Questions
1. What is Psychiatric damage and how has its legal understanding changed over these
years?
7. What are the conditions of liability for psychiatric damage as a tort?
8. How satisfactory are the current rules that impose liability for psychiatric damage?
9. Are there possibilities of further liberalisation of these rules?

Objectives of Study

Page 8 of 22
1. To understand clearly, the conditions for liability in cases related to mental sufferings re-
sulted from negligent actions.
10. Seek to bring out any inefficiency in the existing rules to satisfactorily allow a claimant
to recover damages.
11. To analyse and explore the possible way forward.

Page 9 of 22
 Psychiatric Damage
As mentioned above, the understanding of mental health and considerations of possible men-
tal injuries caused by negligent action has changed over the years. It was previously seen with
skepticism due to lack of proper methods to clearly identify victims in such cases without dis-
proportionately burdening the defendants or the courts. To study the conditions of liability it
is therefore important to understand how the judicial bodies have interpreted mental health
over the years to decide if the said claimant deserves to be allowed recovery. Lord Lloyd in
Page v Smith6 accurately referred to how the advancing of medical science has changed and
thus, it is necessary for law to mould accordingly—

“In an age when medical knowledge is expanding fast, and psychiatric knowledge
with it, it would not be sensible to commit the law to a distinction between physical
and psychiatric injury, which may already seem somewhat artificial, and may soon be
altogether outmoded.”

Thus, a relative increase in the importance of mental health and how it is treated, naturally in-
creased the volume of compensable actions for psychiatric damage. In the case of Hinz v.
Berry7 the judgement by Lord Denning M.R distinguished between a long-term non clinical
grief and morbid depression, classifying only the latter as a recognised mental illness that is
compensable. In this it was identified that by witnessing her husband die in the accident
caused due to the defendant’s negligence she suffered mental illness characterised by
‘frequent suicidal ruminations’ hence, it is not the same as mourning or sorrow at the loss of
her husband. Thus, making it compensatable. It was further stated that any medically recog-
nised psychiatric illness caused by the tortfeasor’s negligence was actionable. It is also cru-
cial to note that often, such harm is subject to one’s emotional temperament and ability to
handle a situation. This was held in the case of Allsop v. Allsop 8 while denying recovery to
the plaintiff—

6 [1996] AC 155, 188

7 [1970] 2 QB 40.
8 (1860) 29 LJ (Ex) 315

Page 10 of 22
 “This particular damage depends upon the temperament of the party affected, and it
may be laid down that illness arising from the excitement, which the slanderous lan-
guage may produce, is not that sort of damage which forms a ground of action”

Furthermore, several persons have attributed to the term ‘nervous shock’ as inaccurate and
that it disproportionately limits the scope of claims under this law. The term 'nervous shock’
is said to be responsible for the assumption that only shock-induced injuries are actionable as
psychiatric damage. Early cases involving mental sufferings required the element of ‘sudden-
shock’ as is mentioned above in the stages of history that classify the different liabilities. In
the first stage, mental harm is a result of sudden shock due to physical injury. Even after a
relative relaxation of this rule to include secondary victims, the element of ‘sudden-shock’ as
a requirement stayed as in the case of McLoughlin v. O’Brian 9. In this case the plaintiff was
awarded compensation despite not being present during the accident. The plaintiff suffered
shock after witnessing the conditions of her husband and children due to the accident. This at
the time was an exception to the general rule that the victim must be present in the vicinity
and must have been directly impacted. Thus, ‘shock’ as an element was given more weight to
decide liability. However, in the recent case of Taylor v. A Novo (UK) Ltd 10 the courts re-
stricted this rule by denying compensation to a woman who suffered mental harm due to
shock after witnessing her mother’s death, stating the lack of proximity in time and space as
the reason. Nonetheless, an exception to this is the case of Kralj v. McGrath, 11 ironically, of
the mid 1980s.

“In Kralj, the claimant succeeded in her action for the psychiatric illness she suffered
on being told that one of her twin babies was very sick and subsequently being with
him every day for the next eight weeks until he died, notwithstanding the indirectness
of the initial perception and the prolonged period before the death.”12

9 [1983] 1 A.C. 410 (H.L.)

10  [2013] EWCA Civ 194
11 [1986] 1 All E.R. 54 (Q.B.D.)
12 Fordham Margaret, ‘Psychiatric Injury, Secondary Victims And The 'Sudden Shock' Requirement’ [2014]
Singapore Journal of Legal Studies, National University of Singapore (Faculty of Law)

Page 11 of 22
In India, the Madras High Court in the case of H.I. Halligua v. Mohanasundaram 13 made an
interesting observation which in many ways blurred the difference between physical and
mental injury. Judgement by  Mack, J.—

“I am quite unable to accept his argument that because bodily injury was not mani-
fested by external visible injury, injury caused to a person by a shock to his nervous
system which incapacitates him from his ordinary activities and avocations is not,
therefore, bodily injury. The body is controlled by its nervous system and if by reason
of an acute shock to the nervous system the activities of the body are impaired and in-
capacitated from functioning normally, there is in my view clear bodily injury.”

Furthermore, Indian courts have also accommodated emotional stress and agony due to ha-
rassment and oppressive behaviour to reward the said claimants 14. It also can be said that
principles defining recognised psychiatric illnesses are perhaps, relatively more liberalised in
India compared to U.K. where it is particularly restricted to ‘nervous shock’ resulting in seri-
ous mental challenges such as morbid depression, hysterical personality disorder, post-trau-
matic stress disorder, pathological grief disorder and chronic fatigue syndrome (CFS).

Additionally, the Law Commission Report, U.K on Liability for Psychiatric Illness specifi-
cally suggested the inclusion of four illnesses as recognised for actionable claims— PTSD,
depressive disorders, adjustment disorders and anxiety disorders 15. It has also outlined the
standard of diagnostics such that the plaintiff will have little trouble satisfying the court that
his or her illness was ‘shock-induced’ if they suffer from these illnesses.

13 1951 SCC OnLine Mad 101

14 AIR 1994 SC 787
15 Law Commission Report, U.K., Liability for Psychiatric Illness (LC249, 1998) para 3

Page 12 of 22
 Conditions for Liability
As established in the previous section, the victim must suffer from a recognised mental ill-
ness as a result of the defendant’s negligent conduct. This section will focus on other such
factors apart from the one already discussed above, that are required to impose liability for
the same. One of the main conditions governing this is the test of reasonable foreseeability.
Dulieu v White & Sons16 was one of the first cases to allow recovery in the third stage (illness
from fear of own safety) which was later rejected to include reasonable fear for the safety of
another in the case of Hambrook v Stokes Bros 17 which recorded the shift to the fourth stage
(reasonable fear for spouse or child). However, in these cases the plaintiff was required to be
in the vicinity such that the defendant could foresee the consequence, as was maintained in
the case of Bourhill v Young.18 It is also crucial to note that the defendant is expected to as-
sume that the plaintiff is of normal standard of receptiveness. However, at the same time in
the case of Brice v Brown 19 the court allowed for recovery even though the plaintiff was al-
ready suffering from mental illness and the negligence of the defendant had only further ag-
gravated her condition. It was held that because ‘nervous shock’ was a foreseeable conse-
quence of the defendant’s action there cannot be a refusal of recovery just because the ‘ex-
tent’ of the damage could not have been determined. Thus, a test of reasonability under nor-
mal circumstances for a prudent man is used to determine liability in such cases. In the case
of Page v Smith20 It was held that reasonable foreseeability of physical injury is a cause of
reasonable fear and thus, reasonable foreseeability of mental damage and even if the physical
injury does not occur the defendant will be held liable.

Furthermore, there are also restrictions who may recover damages—

(i) “his or her tie of love and affection with the immediate victim;
(ii) his or her closeness in time and space to the incident or its aftermath; and
(iii) the means by which he or she learns of the incident”21

16 [1901] 2 KB 669
17 [1925] 1 KB 141
18 [1943] AC 92.
19 [1984] 1 All ER 997
20 [1996] AC 155

Page 13 of 22
In case of ties of love and affection the burden lies on the plaintiff to prove its existence ex-
cept for parent/child or spouse in which case it is refutably accepted. Demonstrations of the
same can be seen in the case of Alcock v Chief Constable of South Yorkshire Police. 22 One of
the claimants here, was refused recovery upon not being able to prove close ties with his
brothers that died in the accident whereas a half brother was allowed after establishing with
proof, his close bond with the deceased.

Secondly, proximity of space and time. This principle can be seen applied in the case of
McLoughlin v. O’Brian23 wherein the plaintiff was allowed recovery for suffering in the af-
termath of the incident. It was also held that simultaneous hearing of the incident would suf-
fice for action. Third is the means by which one hears of the accident. In case of shock in-
duced by hearing the event or its actual sighting there lies a claim for recovery. There is how-
ever, ambiguity regarding whether action lies if there is communication or witnessing of the
event through television. This was considered in the case of Alcock v Chief Constable of
South Yorkshire Police wherein some claimants had seen the accident on television. It was
held that due to lack of proximity and any clear sighting due to which mental damage could
be caused, the action did not lie. Additionally, in case of communication of agonising news in
an insensitive manner or that turns out to be false, the courts have held that defendants owe a
duty of care making them liable for any mental harm caused by their actions. 24 In Chadwick v
British Railways Board,25the plaintiff was allowed recovery after suffering due to witnessing
and assisting in a railway accident that occurred near his home.

Furthermore, a deviance from the general rule of ‘sudden-shock’ requirement was when the
courts allowed recovery to a social worker claiming to have suffered mental harm due to a
stressful work environment. It was stated that the employer owed a duty of care and there ex-
isted reasonable foreseeability as there was an absence of safe work atmosphere. This there-
fore, resulted in negligence. It also set a precedent in terms of what constituted employers’

21 Law Commission Report, U.K., Liability for Psychiatric Illness (LC249, 1998) para 3
22 [1992] 1 AC 310
23 Supra note 9.
24 [1996] 7 Med LR 167 (CC)
25 [1967] 1 WLR 912

Page 14 of 22
duty towards employers to provide a safe working place. It included mental health within the
scope of employer’s duty.

One of the most used methods across common law jurisdictions to decide liability in such
cases is the classification of victims to primary and secondary. This method was particularly
regarded to help to rationalise the decision making process especially in the absence of a
statute and lack of clarity when applying principles to various situations. However, there are
discrepancies in the basis of the classification used by judges. Lord Llyod for example, classi-
fied by relying on the fact that physical and mental damage as understood then, may not be so
different and so a secondary victim’s claim is likely to be artificial due to their lack of prox-
imity to the event. In Frost v Chief Constable of South Yorkshire Police, the police officers
classified as primary victims following Lord Oliver’s broad categorisation in Alcock, while
noting that this was difficult to reconcile with Lord Lloyd’s narrower classification in the
case of Page v Smith.26 However, both rely on the question of proximity 27 albeit with its con-
fusing inconsistency and lack of clarity on non-accident cases.

Another restriction that makes the bar to impose liability higher is the rule that when a person
suffers mental damage as a result of the death or injury of another due to proximity in time or
space there lies no action if the defendant is the other who suffered death or injury. The ratio-
nale behind this being that there should be ‘some end to the legal consequences of a careless
act and that imposes an undesirable control on the lives of people to make their own deci-
sions.28

The above discussions can be summarised as follows—

1. Only negligent conduct that has resulted in a recognisable psychiatric illness for the
plaintiff is actionable.
12. Generally, there is a requirement of ‘sudden-shock’ to impose liability.
13. Reasonable foreseeability of the consequences of one’s actions is an important factor to
determine the existence of duty of care.

26 Supra note 20.

27 Law Commission Report, U.K., Liability for Psychiatric Illness (LC249, 1998) para 2.57.
28 Supra note 27.

Page 15 of 22
14. The extent of damage caused is immaterial if the conduct was shock inducing to a pru-
dent man and passes the reasonability tests.
15. A secondary victim is expected to prove the following to be allowed recovery—
• “his or her tie of love and affection with the immediate victim;
• his or her closeness in time and space to the incident or its aftermath; and
• the means by which he or she learns of the incident”29
16. Employers are liable for mental harm caused due to failure in providing safe work envi-
ronment to their employees even in the absence of the ‘sudden-shock’ element.
17. Recovery is also available in cases where the plaintiff has suffered due to assisting in the
event to help the immediate victims.
18. When there is mental harm caused after witnessing the death or injury of a tortfeasor as a
result of his own negligence there lies no action.

29 Law Commission Report, U.K., Liability for Psychiatric Illness (LC249, 1998) para 3

Page 16 of 22
 Lacunae in the Present Law
One of the most put-forth arguments, also the reason for slow development of the law in this
aspect, against increasing the scope of actionable psychiatric damage is the possibility of
fraud. The advancement in medical sciences in the present day, however, can help in tackling
this problem by setting appropriate diagnostic standards to make sure symptoms are not imi-
tated to forge the illness. Meanwhile, to limit the natural progression of the law in this area by
viewing such cases with skepticism, without making full use of the technology and the avail-
able medical expertise, causes inefficiency in justice delivery.

There are also insufficiencies in cases related to mental harm caused to bystanders of the ac-
cident when there is no emotional ties with the immediate victim of the event. Even if one is
a mere bystander the possibility of mental damage after witnessing a horrifying event is
highly likely. The law has been stretched to provide in cases where the plaintiff is a rescuer.
It is consistent with providing justice to extend this to bystanders as well. The Court of Ap-
peal in McFarlane v EE Caledonia Ltd30 maintained that the court should not extend the duty
of care to those who are mere bystanders or witnesses of horrific events due to practical prob-
lems such as which event is horrific enough to allow recovery. At the same time the courts
have been generous to allow recovery for mental harm by prison officers and medical practi-
tioners by negligently handling treatment of patients.

Other instances of the law’s limitations can be seen in the case of Taylorson v Shieldness
Produce Ltd31 wherein the plaintiff suffered mental damage after his son’s accident and sub-
sequent death after three days. The court denied recovery due to lack of ‘sudden-shock.’ It is
thus, crucial to note that to restrict damages only for sudden-shock induced illnesses creates
an extremely narrow group of actionable cases, leaving out other such cases where there is
genuine harm. The courts have previously recognised the ‘unsoundness’ of such a rule and
stated that liability should be purely based on ‘reasonable foreseeability’. The issue of draw-
ing arbitrary lines was answered by Robertson, David W in his paper as below—
“All of their Lordships expressed a preference for case-by-case adjudication of the
right to recover for nervous shock. All shied away from describing arbitrary lines.

30 [1994] 2 All ER 1
31 [1994] PIQR P329 (CA)

Page 17 of 22
 Lord Oliver said he could see 'no logic and no policy reason for laying down rules
such as the one that would exclude remote relatives or bystanders. Most of the judges
seemed to believe that relatively few plaintiffs will actually be able ultimately to
make out the requisites for recovery under the flexible regime described in Alcock”32

Furthermore, various persons have regarded the requirement of sudden-shock as arbitrary and
inflexible, standing on the shakiest medical and legal grounds.33 This is despite the Law Com-
mission, U.K.’s own report admitting that the distinction between shock induced and non-
shock induced illnesses is without any scientific or medical merit. 34 Here, it is important to
note that the Indian courts have been relatively progressive and considerate by allowing re-
covery for mental distress and agony invalidating the strict requirement of sudden-shock.
The Mental Healthcare Act, 2017 gave significant hope to further fill these gaps. However,
the Indian system has habited issues of its own. The lack of awareness of rights and an ex-
tremely slow judicial process makes the process of claiming extremely tedious.

Francis M. Burdick in his paper briefly summarises the condition to allow recovery as—

“For the law to furnish redress for mental suffering or its physical consequences, "
there must be an act which, under the circumstances, is wrongful; and it must take ef-
fect upon the person, the property or some other legal interest of the party complain-
ing. Neither one without the other is sufficient. This is but another way of saying that
no action for damages will lie for an act which, though wrongful, infringed no legal
right of the plaintiff although it may have caused him suffering.”

32 Robertson, David W., ‘Liability in Negligence for Nervous Shock.’ [1994] The Modern Law Review, vol.
57, no. 4
33 Fordham Margaret, ‘Psychiatric Injury, Secondary Victims And The 'Sudden Shock' Requirement’ [2014]
Singapore Journal of Legal Studies, National University of Singapore (Faculty of Law)
34 Supra note 29.

Page 18 of 22
 The Way Forward
Despite extensive discussions on legislating the laws there is no concrete evidence that sug-
gests parliamentary legislation in the regard could rationalise the judicial process in such
cases. The concern related to ‘opening floodgates’ of claims and disproportionately burden-
ing the defendants and insurance companies, if there is further liberalisation of the present
rules was adequately debunked by the Law commission report, U.K. 35 Additionally, as is dis-
cussed above, the present law has created a severe lacking and there is a need for its scope to
be broadened. Mullany and Handford36 in their book Tort Liability for Psychiatric Damage
extensively discuss this lack by considering various situations of sufferers of mental damage
who would ultimately fail to establish liability and end up with no relief under the present
law. Despite several recommendations and admission in the report mentioned above, these
suggestions have not been given adequate thought for their execution or practice. This is not
to say that the parliaments may in the near future at least, set to legislate laws surrounding
psychiatric damage as a tort. However, increasing awareness of mental health across the
world has put a stress on recognising mental damage as equivalent to physical injury which
may as a result cause changes in the laws of the subject.

In India, as is mentioned above, the laws are relatively more generous especially because they
do not strictly adhere to the shock requirement. The Mental Healthcare Act, 2017 impres-
sively covers a large portion of the cases health by the law of torts for mental harm. The act
particularly draws a distinction between primary and secondary victims. The secondary vic-
tims include employer-employee relationship. It also provides for the establishment of a
Committee of Experts for periodic review and successful enforcement of the Act. Given this
development, it is perhaps proper to assume that there are fair chances of such legislations in
other jurisdictions as well.

Furthermore, one of the most controversial conditions of liability is the requirement of sud-
den-shock. Despite judgements that deviate from this rule— the exceptions, there are consid-
erable number of cases, even in recent times that adhere to this. As discussed above, what

35 Law Commission Report, U.K., Liability for Psychiatric Illness (LC249, 1998) para 1.13.
36Peter R. Handford and Philip Bowden Mitchell, ‘Tort Liability for Psychiatric Damage’

Page 19 of 22
looks like a regression, rather than progression is the case of Taylor v. A Novo (UK) Ltd 37 in
which recovery was denied due to lack of proximity in time of accident and the resulting
shock. Furthermore, the fact that the diagnostic standard set for recognisable illness contains
sudden-shock requirement is contradictory to its own admission that this is based on lack of
any medical, scientific grounds intensifies the need for a legislation invalidating such arbi-
trary rules. Even without a legislation, the courts ought to recognise this folly and redefine
recognisable psychiatric illnesses to include all such deserving cases. The general idea that
such arbitrariness which is ‘inevitable’ is better that the unmanageable chaos resulting from
lowering the bar of liability not only misguided but also denies the public, an honest efficient
legal system.

Another area that lacks adequate precedents and causes a need for its scope tube broadened is
the issue of non-relative secondary victims. The negligible amount of exceptions to the re-
quirement of establishing spouse or parent/child relationship with the immediate victims
causes an extremely unfair inability to recover damages. Given the fact that the law commis-
sion itself admits to the inefficacy of the distinction between primary and secondary victims,
calling it ‘more hindrance than help,38It is crucial to re-examine and redefine so that there is
more clarity and consistency on basis of such classifications.

Moreover, the fact that actionable suits lie only when the physical injury or the immediate
victim is other than the defendant is another arbitrary bar on liability. This was validated by
stating that action should not lie if damage is caused by a loved one’s own negligence or sui-
cide. However, this is an irrational restriction. Reason being, obliging a person to not cause
mental damage by his own negligence, while putting at risk their own and other’s safety is a
valid imposition. This was even recommended in the law commission report. U.K. The fact
that English Courts refer to this report favourably is an appreciable start to developing the
law of tort for psychiatric damage.

Conclusion and Suggestions

37 Supra note 10.

38 Law Commission Report, U.K., Liability for Psychiatric Illness (LC249, 1998) para 5.51.

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This research project explored the concept of ‘recognisable psychiatric illnesses’, conditions
for liability under tort law for inflicting mental harm by negligent actions and then identify
lacunae in the present law to then analyse them. It was established that although the present
law severely lacks in recognising many groups of victims, parliamentary legislation is not
something viable at this point wherein the law is still developing. At the same time, the fact
that there is a lack of legislation must not limit judicial efforts by restricting their thought to
just previously set precedents which only results in impaired delivery of justice. This is espe-
cially true for ‘sudden-shock’ requirement. Additionally, to lie squarely in the fear of a
plethora of claims, which has trumped any logical progression to avoid chaos has created a
larger mess by delivery of regressive judgements.

Furthermore, it was also identified that there is a need for an effort to redefine and re-exam-
ine various previously set principles. Given that several reports and recommendations point at
reforms that are contrary to the present law, indicates the redundancy of the laws in practice.
The Law Commission report for example, was published in 1998. However, the recommen-
dations of the report have still not been executed. A major reason for this is perhaps the lack
of importance that is generally given to mental health. But given that this ignorance regarding
mental health is radically changing, there is hope for the law to develop quicker. Another ob-
stacle however, is the lack of awareness among the people regarding such rights and an ex-
pensive process of litigation. This issue exists in all areas of tort and law in general. In India,
this is one of the major reasons for slow development of the law. Hence, it is advisable for the
government to come up with steps to speed up the legal process and educate the masses of
their rights.

Page 21 of 22
 Bibliography
1. Law Commission Report, U.K., Liability for Psychiatric Illness (LC249, 1998).

2. Robertson, D. W., ‘Liability in Negligence for Nervous Shock [Review of Tort Lia-
bility for Psychiatric Damage: The Law of “Nervous Shock,” by N. J. Mullany & P.
R. Handford]’. The Modern Law Review, 57(4), 649–663.

3. --(The Liability of Psychiatric Damages in Indian and Foreign Jurisdictions), Legal

ServicesIndia, <http://
www.legalservicesindia.com/article/522/The-Liability-of-Psychiatric-Damages--in-
Indian-and-Foreign-Jurisdictions.html>

4. Burdick, F. M., ‘Tort Liability for Mental Disturbance and Nervous Shock’. Colum-
bia Law Review, 5(3), 179–192.

5. Fordham, M., ‘PSYCHIATRIC INJURY, SECONDARY VICTIMS AND THE

“SUDDEN SHOCK” REQUIREMENT’, Singapore Journal of Legal Studies, 41–58.

6. Assoc Professor Tan Keng Feng, ‘Discussion Paper On Liability For Negligently In-
flicted Psychiatric Illness’, the Law Reform Committee Singapore Academy of Law.

7. ‘Tort Liability for Psychiatric Damage: The Law of 'Nervous Shock’’ by Nicholas J.
Mullany and Peter R. Handford.

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