A Project Report

On

NERVOUS SHOCK

RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW

INDIAN INSTITUE OF TECHNOLOGY
KHARAGPUR
WEST BENGAL
OCTOBER, 2007

Submitted by:
Nidhi Anand
09IP6014

NERVOUS SHOCK
INTRODUCTION:

Nervous shock is a phrase used to describe a type of claim, most usually in negligence, where injury
to the claimant is not clearly physical. One may not claim for nervous shock due to a physical injury
caused by, say, being run down by a vehicle or kicked by a horse. Similarly, merely because one has
suffered a fright and subsequently an emotional reaction, this is not in itself cause for nervous
shock1. The physical injury must be a visible disability or provable illness or injury in order to give
rise to a claim. An actual or apprehended physical injury to a plaintiff or to a person other than the
plaintiff is a necessary requirement of law in an action for nervous shock. The condition of actual or
apprehended physical injury must be satisfied in order for recovery of damages to succeed.

HISTORY:

The historical developments of nervous shock are slow to take form and this is shown in the case,
heard in the Privy Council, of Victorian Railway Commissioners v Coultas.2 In this case a railway
crossing gate keeper had negligently left the gate open, allowing Mr and Mrs Coultas to cross when
the train was approaching. They narrowly avoided the train, but Mrs Coultas suffered psychiatric
injury as a result of the near miss. Whilst initially successful, on appeal, the Privy Council held that
damages arising from mere sudden horror, unaccompanied by any physical injury, but occasioning
psychiatric illness, could not be considered a consequence, which would follow from a negligent
gatekeeper.

In Dulieu v White & Sons,3 Justice Kennedy held that a person could claim for psychiatric injury
only if they were themselves within the range of potential physical harm. Kennedy J stated that
recovery for nervous shock will only be allowed if the injury arose “from a reasonable fear of
immediate personal injury to oneself.”

This limitation was later relaxed by the Court of Appeal in Hambrook v Stokes,4 where a mother was
allowed recovery after suffering psychiatric illness from anticipated injury to her children, even
though she did not observe her children being harmed. Mrs Hambrook eventually discovered that her
daughter Mabel was seriously injured. In allowing recovery however the court excluded recovery
where the nervous shock was suffered following third party communication of the incident.

Lord Oliver in the 1992 decision of Alcock v Chief Constable of South Yorkshire Police,5 espoused
the proposition that claimants suffering psychiatric illness may recover if they viewed the incident
with their “own visual perception” rather than through third party communication. This requirement
of “own visual perception” is the primary threat to recovery for ‘nervous shock’ by claimants who
view distressing events on television broadcasts because viewing through this medium is unlikely to
be equivalent to ‘own visual perception’.

One such case was Bourhill v. Young6 , in which the pursuer, an Edinburgh fishwife, suffered a
miscarriage as a result of hearing the noise of an accident, and later seeing a pool of blood in the

1
Ratanlal and Dhirajlal, ‘The Law of Torts’, 24th edition 2004
2
(1888) 1 3 App. Cas. 222.
3
(1901) 2 K.B. 669
4
(1925) 1 K.B. 141
5
[1992] 1 AC 310, 412.
6
16 [1943] A.C. 92.
road. She was about sixty feet away from a collision which had taken place between a motor bicycle
and a car.

A tram, from which she had just alighted, was between her and the accident. The House of Lords
treated the case entirely as one of the existence of a duty of care, depending in the circumstances on
the possibility of foresight of damage from emotional shock. Their lordships did not consider the
possibility of damage from physical impact could reasonably have been foreseen; nevertheless, as
Denning L.J. has pointed out in a recent case, the fishwife would have been entitled to recover if by
some freak chance she had been struck7 It would, of course, have been a very different kind of
accident for this to have happened, and the question raises very difficult metaphysical problems as to
the situation of the hypothetical reasonable observer in time and space. The accident between the
two vehicles was agreed to have been the fault of the cyclist, but it was pointed out in the House of
Lords that although he was driving his cycle at an excessive speed, it was nevertheless under control
and there could be no possibility of a person in the pursuer's position being in danger from physical
impact.

PRIMARY AND SECONDARY VICTIMS :

Mental suffering amounting to a recognisable psychiatric illness, when not consequent to personal
injury, is redressable in a limited class of cases for which purpose the sufferers are divided into two
categories :

1) Primary victims
2) Secondary victims

Primary victims are those who are participants in the event or in other words, are in the actual area of
danger of receiving foreseeable personal injury but suffer only a recognisable psychiatric illness and
escape personal injury by chance or good fortune.
They are entitled to receiveing compensation for mental suffering which amounts to a recognisable
psychiatric illness even if psychiatric illness was not foreseeable.

Secondary victims are those which are not participants in the event or in other words are not in the
area of danger of receiving foreseeable personal injury but yet suffer recognisable psychiatric illness.
A plaintiff falling under this category can be allowed damages if the following conditions known as
‘control mechanism’ are satisfied:
a) The plaintiff must have close ties of love and affection with the main victim. Such
ties must be established by evidence, if not spouse, parent or children.
b) The plaintiff must have been present at the accident or its immediate aftermath.
c) The psychiatric injury must have been caused by direct perception of the accident or
its immediate aftermath and not upon hearing about it from someone else. A plaintiff who was an
employee of the tort-feasor and suffered psychiatric injury in the course of his employment but who
was not within the range of foreseeable physical injury has to prove the conditions mentioned above.
The mere fact of employer and employee relationship with the tort- feasor cannot enable him to
claim as a primary victim. Similar is the position of a plaintiff who was a rescuer and suffered
psychiatric injury by witnessing or participating in the aftermath but who was not within the range of
foreseeable physical injury. 8

7
King v. Phillips [1953] 1 Q.B. 429
8
Ratanlal and Dhirajlal, ‘The Law of Torts’, 24th edition 2004 p. 200
 Such a plaintiff also cannot be given any special treatment simply because he was a rescuer and has
to prove the above mentioned conditions, like any other secondary victim. The effect of the decision
in White’s case is to finally replace the test of foreseability of psychiatric injury to a person of
normal fortitude which started from Bounhill v. Young9, by the test of foreseability of personal
injury incase of primary victims and by the control mechanisms mentioned above incase of
secondary victims. These tests which are reaffirmed in White’s case10 have their origin in Alcock v
Chief Constable of South Yorkshire Police11
and Page v. Smith12. Policy considerations have played an important role in treating pure psychiatric
injury different from personal injury and in limiting the area within which compensation can be
claimed for the former.

RECOVERY OF DAMAGES:

In order to recover damages for nervous shock a plaintiff must establish:

(a) That he or she actually suffered a recognisable psychiatric illness.

(b) That such illness was shock induced.
(c) That the nervous shock was caused by the defendant's act or omission.
(d) That the nervous shock sustained was by reason of actual or apprehended physical injury to the
plaintiff or a person other than the plaintiff.
(e) That the defendant owed him or her a duty of care not to cause him or her a reasonably foreseeable
injury in the form of nervous shock as opposed to personal injury in general.13

MEDICAL AND LEGAL ASPECTS:

There is no direct coherence between medical and legal concepts or between medical and legal ways
of thinking.14As a result, there are often substantial difficulties in translating the findings of one
(medicine) into the decisions of the other (law). In order to minimise interdisciplinary confusion, it is
necessary for each to have an understanding of the approach of the other.

To establish negligence a plaintiff must show that:

(1) The defendant owed the plaintiff a duty of care (because the defendant should have had the plaintiff's
possible injury in mind)
(2) There was a breach of the duty of care (according to the relevant legal standard)
(3) The damage suffered was caused by the breach (that is, the breach caused the psychiatric injury).

Except in cases of alleged psychiatric negligence, psychiatric expertise is relevant only to the
description of any (psychiatric) damage, it and its prognosis, with or without treatment. The court
will put a direct monetary value on any financial loss which flows from the psychiatric injury (for
example, specific loss of employment), and will attempt to do so with regard to any nonfinancial loss
(for example, loss of libido or suffering from psychiatric symptoms generally). Psychiatric evidence
9
(1942) 2 All ER 396 (HL)
10
(1999) 1 All ER 1 pp.40,41 (HL)
11
(1991) 4 All ER 907 (HL)
12
(1995) 2 All ER 736 (HL)
13
John Murphy ‘ Street on Torts’, 11th edition
14
David W. Robertson, Liability in Negligence for Nervous Shock, The Modern Law Review, Vol. 57,
No. 4 (Jul., 1994),
is therefore relevant in relation to causation of the first type of loss and in offering a description of
the second type. The latter will directly affect the 'quantum' of damages, as will any estimate of
appropriate treatment (and likely outcome), further damages being implied by virtue of treatment
cost.15
The reasoning which sets up nervous shock as a separate tort is fairly characteristic of the prevailing
confusion as to the causation of damage from emotional shock.
This has been enhanced by difficulties in terminology 16,which has led to breakdown in
communication between Medicine and the Law on the subject. Furthermore the position has not been
assisted by inaccurate observations on causation which have appeared in legal periodicals, and, in
some cases, have seeped into the courts.17 The necessary co-operation between medicine and the law
is probably delayed by the fact that the two professions appear to be out of sympathy with each other
over the question of personal damages.
The first step in assessing liability for personal damage of any kind is to establish the medical
connection between the alleged damage and the act or omission in question. This preliminary inquiry
is not concerned with any qualification such as the proportion of the damage caused by the act, the
contribution of pre- existing damage, or the effect of susceptibility to the type of damage suffered; it
is concerned solely with the question whether the alleged personal damage, or any part of it, can be
connected in the medical sense with the act which is alleged to have been negligent. If there is no
evidence of such connection the action will fail.18
The next step is to determine what damage is actionable in negligence. For reasons of policy the
courts have restricted recovery for nervous shock to that resulting in physical illness; in other words
mental distress unaccompanied by such illness will not be actionable.19
This restriction requires analysis in terms of medical causation. Damage from emotional shock may
be, in medical language, "somatic " or " psychic," and not infrequently it is a combination of both.
These terms mean respectively "organic" (i.e., physical) and "mental" (i.e., non-physical). Organic
sequelae of an emotional shock would include miscarriage, coronary thrombosis and cerebral
haemorrhage (" stroke ").20 Psychic sequelae would include hysteria and various neuroses. It is
important to note that psychic damage may give rise to physical symptoms; hence conversion
hysteria (purely psychic damage) may give rise to paralysis of one or more limbs, a condition which
would clearly rank as physical illness for legal purposes.
One way of expressing the distinction is to create separate " body safety " and " mind safety "
interests, with the result that the defendant will not be liable for directly consequential damage from
emotional shock if damage from physical impact alone should have been foreseen21; the converse
15
Advances in Psychiatric Treatment (1995), Nigel Eastman, vol. I, pp.154-160
16
e.g., in medical terminology the term "shock" is used in at least two completely different senses.
17
A notable culprit is the note appearing in (1933) 11 Can.Bar Rev. 516, which not only confuses
surgical shock (which has nothing to do with emotion) with nervous shock, but also states that
irreversible organic changes, i.e., physical damage, may occur in the nervous system tissue as a result
of emotional shock. This proposition, which can be supported by no medical authority whatsoever,
clearly influenced Evatt J., who quoted it in Chester v. Waverley Corporation (1939) 62 C.L.R.I. 1, in a
judgment which Lord Wright thought ' will demand the consideration of any judge who is called upon
to consider these questions": Bourhill v. Young [1943] A.C. 92 at 110.
18
The Modern Law Review, Vol. 19, No. 5 (Sep., 1956), pp. 478-497
19
Austin v. Mascarin [1942] 2 D.L.R. 316, in which " interference with the physical well-being" of a
mother who had seen her child injured in an accident was held actionable in negligence. It appears that
an action in negligence must be sustained by something more than a temporary dis- turbance, whether
physical or emotional. The position with intentionally inflicted harm is not clear. Note however that "
interference with health and comfort " amounts to " actual bodily harm " .
20
Steve Hedley, Nervous Shock: Wider Still and Wider? The Cambridge Law Journal, Vol. 56, No. 2
(Jul., 1997), pp. 254-257
21
A proposition which is strongly disapproved of by Singleton and Denning L.JJ. in King v. Phillips
[1953] 1 Q.B. 437, 440. See also Donovan J. in Dooley v. Cammell Laird d Co. [1951] 1 Lloyd's Rep.
271. The distinction is not recognised by the American Restatement of Torts, Vol. 1, s. 17, and was
would also apply. This proposition would confront the medical evidence with an impossible task of
apportionment where the plaintiff's damage is of both types, and it is submitted that the result would
be discreditable to any system of jurisprudence. Whereas there was during the latter part of the last
century some support for the medical concept of specificity of damage, modern medical experience
has shown that in most illnesses it is not possible to isolate the emotional and physical factors to the
extent which would be required by the courts if the distinction were to be accepted. It seems
unreasonable to erect a special tort in the case of emotional shock. It is true that it is not, apparently,
possible to bring an action in trespass for intentionally caused emotional shock, but it appears that
even this distinction will have to be reviewed in the light of recent work on the historical
development of trespass.22

PRESENT SCENARIO IN INDIA:

The courts in India have been more generous in awarding damages for mental suffering. Damages
for mental agony in a case of harassment of the plaintiff by the officers of a public authority were
allowed by the Supreme Court 23. Damages for mental agony were also allowed to parents when their
child because of negligence of hospital , where he was taken for treatment suffered severe damage
due to negligence of the hospital stall and was left in a vegetative state.24 The child was separately
allowed damages for the injury suffered in the same case.
In the case of Ravneet Singh Bagga Vs.M/s KLM Royal Dutch Airlines25 the appellant booked his
passage through the respondent KLM Airlines to attend his business commitments at New York on
18th October, 1991 and as he could not reach in time allegedly on account of negligence and
deficiency in service of the said respondent, he filed a complaint before the National Consumer
Disputes Redressal Commission (hereinafter referred to as the "National Commission") praying
therein for payment of US $76,000 or the equivalent thereof in INK with interest @ 24% per annum
from 18 October, 1991 to the date of the filing of the petition as also pendente lite and future interest
at the same rate till realisation. He also claimed Rs. 5 lacs with interest, both pendente lite and future
@ 24% per annum towards damages for an emotional distress, nervous shock, pain and suffering and
US $450 or equivalent thereof in INR together with interest both pendente lite and future @ 24% per
annum till realisation towards medical and transportation expenses. The complaint was dismissed by
the National Commission vide the order impugned in this appeal. The order of the National
Commission is alleged to be against law, facts and the provisions of the Customer Protection Act,
1986 and the prevalent practice of carrying the passengers in the Airlines. It was found that the
complainant had been taking contradictory stands. On perusal of the whole record it was of the
opinion that the respondents could not be held guilty of deficiency in service entitling the
complainant for compensation as claimed by him. Though, for unforeseen reasons and suspicious
circumstances not attributable to the complainant, he had been subjected to great harassment and
mental torture but it is equally true that for those circumstances none of the respondents was guilty.
Also,the Madras High Court has held that the theory that damages at law could not be proved in
respect of personal injuries unless there was some injury which was variously called ‘bodily’ or
‘physical’ , but which necessarily excluded an injury which was only ‘mental’ is wrong at the

resisted by Winfield, Textbook of the Law of Tort, 5th ed., 38.

22
The new theory regards trespass vi et armis not as the ancestor of trespass, but as a distinguished
member of the same generation; they were all just actions in tort, and there was no special magic about
those redressing forcible injuries "; Milsom [1955] C.L.J. 107.
23
Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787. Distinguished in Gaziabad
Development Authority v. Union of India , JT 2000 (7) SC 256 (compensation for mental agony cannot
be allowed in cases of breach of contract ).
24
Spring Meadows Hospital v. Harjot Ahluwalia, JT 1998 (2) SC 620
25
(2000)1SCC66
present day . It is only shock of this description which can be measured by direct consequences on
bodily activity which can form the basis for an action in damages.26

CONCLUSION:

If some psychiatric illness induced by shock was reasonably foreseeable by the tortfeasor as a natural
and probable consequence of the breach of his duty of care (the plaintiff for the purpose of this
exercise being assumed to be a person of normal disposition and phlegm) then the court will hold
that the plaintiff is entitled to recover damages for any recognized psychiatric illness which the
plaintiff actually suffers and for such of its direct consequences as are not dissimilar in type or kind,
whether or not those consequences were initially reasonably to be foreseen. The fact that those
consequences were more likely to occur or were more severe in the plaintiff's case than in the case of
a person of a different disposition does not absolve the defendant of liability in negligence with
respect to those consequences.

BIBLIOGRAPHY:

1) Ratanlal and Dhirajlal, ‘The Law of Torts’, 24th edition 2004

26
Halligua v. Mohan Sundaram, (1951) 2 MLJ 471
2) John Murphy ‘ Street on Torts’, 11th edition
3) Advances in Psychiatric Treatment (1995), Nigel Eastman, vol. I, pp.154-160.
4) David W. Robertson, Liability in Negligence for Nervous Shock :The Modern Law
Review, Vol. 19, No. 5 (Sep., 1956)
5) Steve Hedley, Nervous Shock: Wider Still and Wider? The Cambridge Law Journal,
Vol. 56, No. 2 (Jul., 1997)
6) King v. Phillips [1953] 1 Q.B. 429
7) The Modern Law Review, Vol. 57, No. 4 (Jul., 1994)
8) Bourhill v. Young [1943] A.C. 92 at 110.
9) Winfield, Textbook of the Law of Tort, 5th ed., 38.
10) Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787.
11) Gaziabad Development Authority v. Union of India , JT 2000 (7) SC 256
12) Spring Meadows Hospital v. Harjot Ahluwalia, JT 1998 (2) SC 620
13) Halligua v. Mohan Sundaram, (1951) 2 MLJ 471