NERVOUS SHOCK IN TORT LIABILITY

-By Harshita Gond

V-III-C-42

-To Professor SHAIKH NUZHAT AFROZ

 1

ACKNOWLEDGEMENT

I would like to express my sincere gratitude and appreciation to Professor Shaikh Nuzhat Afroz
for her invaluable guidance and support in completing my assignment on the topic of "Nervous
Shock in Tort Liability." Her expertise, insightful feedback, and dedication to teaching have been
instrumental in shaping my understanding of this complex subject matter.
Professor Shaikh Nuzhat Afroz's unwavering commitment to her students and her willingness to
go above and beyond to provide assistance and clarification have been truly remarkable. Her
profound knowledge and passion for the subject have inspired me to delve deeper into the
intricacies of tort law and its implications on nervous shock cases.
I would also like to thank Professor Shaikh Nuzhat Afroz for fostering a conducive learning
environment that encourages critical thinking and academic growth. Her encouragement and
mentorship have been pivotal in enhancing my research and writing skills, and I am immensely
grateful for the opportunity to learn from such an exceptional educator.
In conclusion, I extend my heartfelt thanks to Professor Shaikh Nuzhat Afroz for her invaluable
guidance, support, and inspiration throughout the completion of this assignment. Her
contributions have been instrumental in my academic journey, and I am truly fortunate to have
had the privilege of being her student.
 2

Index

Page Title Page No.

no.

1. Introduction 3

2. What is nervous shock? 3

3. Ingredients Of Nervous Shock 4-8

● Shocking Event
● Proximate Relationship
● Reasonable Foresight
● Psychiatric Injury

4. Key Case 8-9

● Alcock v. Chief Constable of the South Yorkshire Police

5. Conclusion 10

6. Bibliography 11
 3

INTRODUCTION

When discussing tangible harm inflicted upon the human body, the legal system had long
adhered to two prevailing presumptions. Firstly, it was commonly believed that injuries sustained
by the body were exclusively of a physical nature. Secondly, in cases of torts, the wrongdoer was
primarily held accountable to the specific individual who suffered direct bodily harm as a result
of their actions. As far back as 1888, in the case of Victorian Railway Commissioner v. Coultas,
the Judicial Committee of the Privy Council1 did not acknowledge injuries caused by shock
transmitted through the sensory organs such as the eyes or ears without direct physical contact.
They held that a legal action could only be sustained if there was a physical impact or something
resembling it.
However, not long after the aforementioned decision, there was a shift in legal perspective, and
injuries resulting from nervous shock, even without a physical impact, began to be recognized.
The antiquated notion that the law should only recognize physical injuries stemming from direct
bodily contact was discarded. It became increasingly acknowledged that legal action could be
pursued for injuries caused by shock transmitted through the sensory organs, like the eyes or
ears, without direct physical contact.
With the advancement of medical science and the evolution of tort law, both of these concepts
have undergone significant expansion. Medical science has amassed substantial evidence
demonstrating that, in addition to physical injuries, harm to the mind can have equally
devastating effects on an individual's well-being. Nervous shock is a tort that has emerged
relatively recently and encompasses both of these principles, which are reflected in its essential
elements.

WHAT IS NERVOUS SHOCK?

Defining "nervous shock" precisely can be a challenging task, as the term encompasses a broad
range of injuries affecting both the psychological and physiological well-being of an individual.
Indeed, many legal scholars have found the term itself to be somewhat inaccurate. For our
purposes, we shall consider "nervous shock" as situations in which, due to the negligence or

1
(1888) L.R. 13 A.C. 322
 4

deliberate actions of the defendant, the plaintiff is exposed to a circumstance, information, or

event that leads to severe psychiatric harm, resulting in the person experiencing a profound and
distressing "shock."

INGREDIENTS OF NERVOUS SHOCK

There are three ingredients essential to satisfy the tort of Nervous Shock:

A. Shocking Event:
Indeed, while individuals may vary in their capacity to withstand distressing and traumatic
occurrences, it is essential to establish a benchmark for what constitutes a "shocking event"
based on the standards of a reasonable person. This standard dictates that the shock should be of
a nature that would deeply unsettle an average individual. It could encompass scenarios such as
receiving news of the death of a loved one, encountering a threat of severe harm or the
supernatural, or facing the prospect of a calamity that induces a level of fear surpassing mere
worry or mild anxiety. In simpler terms, there must be an undeniable "OMG! Factor" associated
with the event, one that would genuinely disturb the average person.
In order to understand better, let us go through the cases of Wilkinson v. Downton2 and
Mclovinghlin v. O'Brian case3:

2
[1897] 2 QB 57
3
[1983] 1 AC 410
 5

It is crucial to bear in mind that the shocking event must be connected to an act that qualifies as a
tort. For instance, in the case of Wilkinson v. Downton4, the tort lay in the communication of
false news regarding injury to a loved one, and the defendant knew that the information was
false. Similarly, in the Mclovinghlin v. O'Brian case5The news conveyed to the plaintiff was
accurate, but it resulted from the defendant's negligent driving. Mere communication of a

4
Supra
5
Supra
 6

distressing event, where no one is at fault, will not warrant damages unless there was another
duty of care involved.
Additionally, it's noteworthy that in the second case, there is no requirement for the plaintiff to
have directly witnessed the shocking event. Knowledge of the event through communication or
subsequent witnessing is sufficient. In the O'Brian case, it was established that even though the
plaintiff was not present when the distressing event occurred, and no actual harm befell her
children, the negligence of the defendant was adequate to create a reasonable and valid
impression of fear regarding her children's health. Consequently, the court allowed damages in
favor of the plaintiff.

B. Proximate Relationship:
In cases of tort injuries, there are typically two categories of victims: the primary victim and the
secondary victim. The primary victim is the individual directly affected by the entire incident and
is usually eligible for damages. For instance, in a car accident where X is physically injured and
also experiences severe mental distress, X is considered the primary victim, and compensation is
more readily granted.
However, difficulties arise when considering damages for secondary victims—individuals who
are not directly involved in the accident but witness it later on. To successfully claim damages as
a secondary victim, the court has established three key conditions:
● Close and Proximate Relationship: There must be a close and proximate relationship
between the primary and secondary victim. This relationship can be based on close
affection, and in some cases, it is presumed, such as in the case of children, spouses, and
parents. In other instances, it must be proven.
● Presence at the Scene or Immediate Aftermath: The plaintiff must either be present at
the moment of the immediate injury or in its immediate aftermath. In the Mclovinghlin v.
O'Brian case, for example, the plaintiff was not present at the accident site but was there
in its immediate aftermath.
● Psychiatric Injury Due to Immediate Impact: The psychiatric injury must result from
the immediate impact and perception of the accident itself, not solely from subsequent
communication by a person reporting the incident.
 7

For us, the most critical condition is the first one, which demands a close and proximate
relationship between the individuals involved. Therefore, bystanders to an accident are generally
not eligible for damages, while close relatives may be able to claim compensation, provided they
meet the specified conditions.

C. Reasonable Foresight:
In cases involving a shocking event, the person responsible must have either (1) specific intent or
(2) constructive intent. Constructive intent means having knowledge or a presumed awareness of
the potential consequences of their actions. It requires them to reasonably foresee that their
actions could lead to a shocking outcome, causing psychiatric injury to affected individuals.
Take the case of Wilkinson v. Downton6, where a friend, even if intending it as a practical joke,
could have reasonably foreseen that delivering tragic news about the plaintiff's husband would
likely cause her emotional distress, grief, and shock. This case underscores the significance of
reasonable foresight in determining liability for psychiatric injury arising from a shocking event.

D. Psychiatric Injury:
The crucial point to note is that the injury in cases of nervous shock should primarily be
psychiatric in nature, distinct from physical injury. This psychiatric injury can coexist with
physical harm or manifest on its own. Nonetheless, it must be present for the plaintiff to seek
damages under the concept of nervous shock.

KEY CASE
1. Alcock v. Chief Constable of the South Yorkshire Police7:
Facts of the Case:
● The case involved individuals who claimed to have suffered nervous shock from
witnessing the Hillsborough disaster, where 96 people died and many were injured.
● The claimants argued that the South Yorkshire Police were negligent and therefore liable
for their nervous shock.
Principle Held:

6
ibid
7
(1991) 4 All ER 907 (HL)
 8

● The central issue was whether the claimants were entitled to recover damages for nervous
shock.
● The House of Lords held that the test for recovery of damages for nervous shock rested
on foreseeability and the closeness of the relationship between the claimant and the
traumatic event.
● In this case, the court determined that the relationship between the claimants and the
disaster was sufficiently close because they were present at the stadium and either
witnessed the events or learned of them immediately.
● The police should have reasonably foreseen that some individuals at the stadium would
suffer nervous shock due to the disaster.
Ratio Decidendi:
● Recovery of damages for nervous shock requires a reasonably foreseeable traumatic
event and a sufficiently close relationship between the claimant and the event.
● Closeness of the relationship can be established when the claimant is present at the scene
or learns of the event immediately.
The case of Alcock v. Chief Constable of the South Yorkshire Police laid down the test for the
recovery of damages for nervous shock. The test comprises two key elements:
​ Foreseeability: Whether the traumatic event was reasonably foreseeable by the
defendant (in this case, the police) that it could cause nervous shock to individuals.
​ Closeness of Relationship: Whether there was a sufficiently close relationship between
the claimant and the traumatic event. This closeness of the relationship can be established
if the claimant was either present at the scene of the event or learned about it
immediately.
These two elements together form the test that determines whether a person is entitled to recover
damages for nervous shock resulting from witnessing a shocking event.
 9

CONCLUSION

In the realm of tort law, the concept of nervous shock has evolved significantly, reshaping legal
perspectives on psychological and emotional injuries. Traditionally, tort law held two prevailing
presumptions: that injuries were strictly physical, and tort liability was limited to those directly
suffering bodily harm due to another's actions.
However, this rigidity began to give way to a more nuanced view. In the 1888 case of Victorian
Railway Commissioner v. Coultas, the law did not recognize injuries caused by shock through
sensory organs without direct physical contact, establishing a requirement for a physical impact
to pursue legal action.
Legal doctrine continued to evolve, acknowledging that injuries from nervous shock, even
without direct physical contact, deserved recognition. The antiquated belief that the law should
solely address physical injuries was replaced by a broader perspective that accounted for injuries
from shock transmitted through sensory organs without direct physical contact.
Medical advancements and the maturation of tort law played pivotal roles in these shifts.
Medical evidence demonstrated the profound and lasting impact of psychological harm,
justifying the legal recognition of nervous shock as a distinct tort.
Nervous shock encompasses injuries affecting psychological and physiological well-being. It
arises when the defendant's negligence or deliberate actions expose the plaintiff to circumstances
or events resulting in severe psychiatric harm—a profound and distressing "shock."
To establish a claim under the tort of nervous shock, three essential elements must be met: a
sufficiently distressing event, a close relationship with the primary victim or event, and
reasonable foreseeability of the shocking outcome. Importantly, nervous shock primarily
concerns psychiatric injury, distinct from physical harm, and may coexist with physical injury or
manifest independently.
The landmark case of Alcock v. Chief Constable of the South Yorkshire Police solidified the test
for recovering damages, emphasizing foreseeability and the closeness of the relationship between
the claimant and the traumatic event. This legal evolution underscores the law's adaptability and
recognition of the complex interplay between psychological and physical well-being in tort
liability.
 10

BIBLIOGRAPHY
BOOKS:
1. THE LAW OF TORTS; 21st EDITION; ALLAHABAD LAW AGENCY LAW
PUBLISHERS

WEBSITES:
1. https://www.barelaw.in/case-brief-of-alcock-v-chief-constable-of-the-south-yorkshire-pol
ice-1991-4-all-er-907-hl/#:~:text=of%20the%20Case-,Alcock%20v.,by%20witnessing%2
0a%20shocking%20event.
2. https://www.lawteacher.net/cases/mcloughlin-v-obrian.php
3. https://en.wikipedia.org/wiki/Wilkinson_v_Downton