NERVOUS SHOCK

- Surabhi Sarkar 13110303810 II-B

Introduction
Nervous shock is a shock to nerves and brain structures of the body. It is not a physical injury either by stick, bullet or sword but merely by what has been seen or heard. At one time no action could be taken for any mental suffering or emotional disturbance caused by the negligence of the defendant even if it was wilful unless it resulted in some manifest physical or bodily injury to the plaintiff. A bodily injury may not necessarily be manifested by external visible injury. For example, injury through agitation caused by a false alarm or unlawful threats may result in a nervous breakdown or a mental shock which may incapacitate the plaintiff for his ordinary activities. And to compensate him for the injury resulting from mental shock would be obviously just. 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 incapacitated from functioning normally, there is clearly bodily injury. The injury may not necessarily resulted from the use of physical force; it may resulted from the nervous shock caused by words and statements of the defendants. But causing of nervous shock is not enough; some injury or illness must follow as a result of it to make it an actionable tort. f his branch of law of tort is of the recent origin. This is testified by the fact as far as 1888, the privy council in Victorian Railway Commissioners v. Coultas, (1888) 1,R 13 AC 322, did not recognise injury caused by a shock sustained through the medium of eye or ear without direct contact. This view was, however, rejected and an action for nervous shock was recognised but with the limitation that the shock must arise from a reasonable fear of immediate personal injury to oneself. As in Bourhill v. Young, (1943) AC 92, Lord Macmillan observed in this regard, "The crude view that the law should take cognizance only of physical injury resulting from actual impact has been discarded, and it is now well recognised that an action will lie for injury by shock sustained through the medium of the eye or ear without direct contact."

Under the cases of nervous shock, the plaintiff has to prove the following things: (i) Necessary chain of causation between nervous shock and the death or injury of one or more parties caused by the defendant's wrongful act. (ii) Plaintiff is required to prove shock caused to him by seeing or hearing something. Physical injury is not necessary. (iii) Close relationship of love and affection of plaintiff with the primary victim is necessary to be shown and also that his proximity to the accident was sufficiently close in time and space. However, it has been held that the primary victim need not be a near relative of the plaintiff. Thus, a man who came up on a scene of serious accident for acting as a rescuer, when suffered a nervous shock, was allowed to claim the damages (Chadwick v. British Transport Corp., (1967) 1 WER 912). Also where a crane driver, the plaintiff, suffered a nervous shock when he saw that by the breaking of a rope of crane, its load fell into the hold of a ship where some men were at work, was allowed damages when the rope had broken due to the negligence of the defendants (Dooley v. Commcll Laird & Co., (1951) 1 Llyod's Rep. 271). Where the plaintiffs suffered nervous shock when disaster at a football match was televised live and in news bulletins but without depicting the suffering or dying of recognisable individuals, were held not entitled to damages (Aloock's Case (1991) 4 All ER 907). (iv) Damages for nervous shock were not limited to psychiatric damage resulting from witnessing personal injury, hut could be recovered where the plaintiff witnessed destruction of his property caused by the defendant's wrongful act (Attia v. British Gas Plc. (1987) 3 All ER 455).

Cases
In Hambrook v. Stokes Bros., (1925) I KB 141, A negligently left a motor lorry with its engine running at the top of a steep road. The lorry started sliding down. B who had left her child at the street corner saw the lorry coming down and became apprehensive that it might run into her child. She suffered a nervous shock. Held, she could recover damages. In Wilkinson v. Downtown, (1897) LR 2 QB 57, the defendant by way of practical joke informed the plaintiff that her husband had broken his leg in an accident. The plaintiff got a nervous shock and become seriously ill. Held, the defendants were liable. In Dulled v. White, (1901) 2KB 699, the defendant's servants negligently drove a horse van into a public house. The plaintiff, a pregnant woman, who was standing behind the bar, suffered nervous shock which resulted in illness and premature birth of a still born child. Held, the defendants were liable. In Janvicr V. Sweeney, (1919) 2 KB 316 (CA), the defendant's private detective asked the plaintiff, a maid-servant, to procure certain letters (which were within her access) of her mistress for their inspection under a false threat. The threat was that unless she did so they would inform the authorities that her fiance was a German spy. As a result, she suffered from a mental shock resulting in her physical illness. Held, the defendants were liable. In Boardman v. Sunderson, (I 964) 1 WLR 1317, the defendant, while backing his car, ran over the foot of the plaintiff's son who was seriously injured. On hearing the son's screams, the plaintiff who was within earshort distance, rushed to release his son. Field, in an action of negligence against the defendant, the plaintiff was entitled to recover damages on account of the nervous shock he suffered.

Present View
The common law regarding recovery of compensation for pure psychiatric illness described by the expression nervous shock was recently reviewed by the House of Lords in White v. Chief Constable of South Yorkshire, (1999) I All ER 1 (HL), where all relevant earlier authorities were considered. The court noticed that this law "is a paichwork quilt of distinctions which are difficult to justify." The court, however, declined to reform the law leaving this task to Parliament. For understanding the law as it now stands after While's case, mental suffering has to be divided into different categories. Mental suffering which follows from foreseeable physical injury is routinely compensated under the head 'pain and suffering' while awarding compensation for personal injury. Mental suffering which is not a concomitant of physical injury is further subdivided into two groups. The first group embraces that mental suffering which does not amount to a recognisable psychiatric illness even if it consists of extreme grief and the sufferer is debilitating. The second group consists of that mental suffering which amounts to a recognisable psychiatric illness. The difference between the two groups is often difficult to draw and is a matter for expert psychiatric evidence. Mental suffering not following physical injury which does not amount to a recognisable psychiatric illness, irrespective of its severity or debilitating effect on the sufferer, is not redressable under the common law. 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 viz, primary victims and 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. Primary victims are entitled to

receive compensation for mental suffering which amounts to a recognisable psychiatric illness even if psychiatric illness was not foreseeable. Secondary victims are those who 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 in the category of secondary victim can be allowed damages if the following conditions known as 'control mechanism' are satisfied: (1) The plaintiff must have close ties of love and affection with the main victim. Such ties may be presumed in some cases (e.g., spouses, parent and child) but must otherwise be established by evidence. (2) The plaintiff must have been present at the accident or its immediate aftermath. (3) The psychiatric injury must have been caused by direct perception of the accident or its immediate aftermath and not upon hearing about it from some one 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 like other secondary victims, for claiming damages and 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. Such a plaintiff also cannot be given special treatment simply because he was a rescuer and has to prove the conditions mentioned above, like any other secondary victim. The effect of the decision in White's case is to finally replace the test of foreseeability of psychiatric injury.to a person of normal fortitude which started from Hay or (Bourhill) v. Young, (1942) 2 All ER 396, by the test of foreseeability of personal injury in case of primary victims and by the control mechanisms mentioned above in case of secondary victims. These tests which are reaffirmed in case have their origin in Alcock v. Chief Constable of South Yorkshire Police, (1991) 4' All ER 907, and Page v.

Smith, (1995) 2 All ER 736. 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. Page v. Smith, (1995) 2 All ER 736 (HI), is a case where the plaintiff though in a position of a primary victim, being directly involved in the accident, remained unhurt. The plaintiff, however, suffered a psychiatric illness with which he had earlier suffered but which was then in remission. This illness which the plaintiff suffered as a result of a motor accident was not foreseeable in a person of ordinary fortitude but as personal injury of physical harm which the plaintiff did not suffer was foreseeable, the plaintiff succeeded in recovering damages for psych iatrib illness suffered by him. In Mclovghlin v. O'Brian, (1982) 2 All ER 298, the plaintiffs husband and three children were involved in a road accident caused by the negligence of the defendants. One child was killed and the husband and the two other children were severely injured. The plaintiff at the time of the accident was two miles away. After being told of the accident, the plaintiff was taken to the hospital where she saw the injured husband and children and heard about the death of her daughter. The plaintiff suffered severe and persisting psychiatric illness and was allowed damages for nervous shock. This case relates to a secondary victim in which the 'control mechanisms' noticed above were satisfied. The plaintiffthough not present at the accident was present at the aftermath in the hospital and suffered nervous shock on seeing her severely injured husband and children in the hospital. Close ties of love and affection were presumed as the plaintiff was wife and mother of the injured. Two cases which will be noticed hereinafter and which settle the present law relating to damages for nervous shock, arose out of a disaster in a Football stadium resulting in the death of 96 spectators and physical injuries to more than 400. It also scarred many others for life by emotional harm. The disaster occurred by the negligence of the police in allowing the over crowding of two spectators' pen. Scenes from the ground were

broadcast live on television from time to time during the course of disaster and later on television as news. News of the disaster was also broadcast over the radio. In accordance with the guidelines, none of the television broadcasts depicted the suffering or dying of recognisable individuals. The chief constable admitted liability in respect of those who died or were injured but denied liability in respect of those who did not receive any physical injury. In Alcock v. The Chief Constable of the South Yorkshire Police, (1991) 4 All ER 909, sixteen persons who did not receive any physical injury but suffered psychiatric injury claimed damages against the chief constable. The plaintiff were relatives or friends of the persons killed or injured in the disaster. Some of the plaintiffs were in the stadium at the time of disaster but not in the area where disaster occurred. They alleged to have suffered nervous shock caused by seeing or hearing news of the disaster. One of the plaintiffs, Mr. H, who was present elsewhere in the stadium and whose two brothers died failed to satisfy condition no. (1) of the control mechanism because the court refused to presume existence of close ties of love and affection between brothers and no evidence was led to prove that they existed in this case. Two of the plaintiffs Mr. & Mrs. C, whose son died failed t- atisfy condition no. 2 because they were not present in the stadium and saw the scenes on television. One of the plaintiffs Mr. A who identified his brother-in-law in the mortuary at mid-night failed to satisfy condition no. 3 because he was not in time for the immediate aftermath of the tragedy. The claims of others were also dismissed on similar grounds. White v. Chief Constable of the South Yorkshire, (1999) 1 All ER 1 (HL), is the second relevant case that arose out of the same football stadium disaster. In this case the claimants were a number of police officers who were on duty at that time at the stadium and who suffered post traumatic stress disorder, a recognised psychiatric illness, while engaged in the rescue work in the aftermath of the disaster. The plaintiffs were not within the range of foreseeable physical injury but they claimed that they should be treated as primary victims merely because they were employees of the tort-feasor and the nervous shock was suffered in the course of employment. They also claimed special treatment as a primary

victim on the ground that they were rescuers. The plaintiffs' claims were rejected on the ground that they did not satisfy the test of being a primary victim as they were not in the range of foreseeable personal injury and the fact that they were employees of the tortfeasor or the fact that they were rescuers did not enable them to claim as primary victim. A third case which also arose out of the same football stadium disaster is Hicks v. Chief Constable of the South Yorkshire Police, (1992) 2 All ER 63 (HL). In this ease the plaintiff made a symbolic claim on behalf of his daughters who died in the disaster for the distress suffered by them before they died. The claim was negatived holding that fear of impending death felt by the victim of a fatal injury before that injury is inflicted did not furnish any cause of action. But the common law relating to recovery of compensation for pure psychiatric injury can not be taken to have been finally settled by the decision in White v. Chief Constable of South Yorkshire to cover all situations. This follows from the decision of the House of Lords in W v. Essex County Council, (2000) 2 All ER 237 (I-IL). In this case the plaintiffs, parents of four young children, were approved as foster carers by the defendant local authority. They had however told the authority that they were not willing to accept any child who was a known or suspected child abuser. Despite this the authority placed with them a 15 year old boy who was a child abuser, a fact recorded on the authority's file but which was not disclosed to the plaintiffs. The boy so put in the care sexually abused the four children of the plaintiffs. The plaintiffs who claimed to have suffered psychiatric illness after learning of the sexual abuse of their children sued for damages against the local authority. Their claim was struckout as not maintainable, but the House of Lords reversed that decision and remitted the case for trial without giving any indication either way as to outcome of the case holding that the existing case law did not conclusively show that the parents could not be primary or secondary victims and their claim could not be said to be so certainly or clearly bad that they should be barred from persuing it to trial.

A claim on account of nervous shock which was caused to a man who came up on a scene of serious accident for acting as a rescuer was allowed though the persons involved in the accident did not include any near relative. This case has been explained in White's case to be a case where the rescuer was in the zone of foreseeable personal injury. A mere bystander not in the danger zone cannot re-cover. Wainwright v. Home Office, (2003) 4 All ER 969 (HL), is another recent case of the House of Lords relating to nervous shock. A mother and son who were claimants in this case went to see another son who was in prison on a charge of dealing in drugs. Claimants were strip searched by the prison authorities before being allowed to see the prisoner. The prison authorities acted in good faith in strip searching the claimants without any intention to cause any distress to them but in certain respects the prescribed procedure was not followed therefore, the searches were not protected by statutory authority. When searching the son, one of the prison officers touched his penis. There was no other physical contact with any of the claimants. The son had been so affected by the experience that he suffered post-traumatic stress disorder a recognised psychiatric illness. The mother suffered emotional distress but not any recognised psychiatric illness. The claim of the son for damages succeeded on the ground that touching his penis by a prison officer amounted to battery and he was entitled to damages for recognised psychiatric illness which he suffered. The mother's claim for emotional distress was negatived.