What is Nervous Shock?
Meaning of Nervous Shock: – Medically speaking nervous shock would mean a sudden drop in blood pressure and resulting circulatory failure marked by pallor, sweating, rapid (but weak) pulse, and sometimes complete collapse. Causes include disease, injury, and psychological trauma. In shock, the blood pressure drops below what is needed to supply the body’s tissues, especially the brain.
In English law, a nervous shock is a psychiatric/mental illness or injury inflicted upon a person by intentional or negligent actions or omissions of another. It is a shock which arises from a reasonable fear to immediate personal injury to oneself. Often it is a psychiatric disorder triggered by witnessing an accident, for example an injury caused to one’s parents or spouse. Although the term “nervous shock” has been described as “inaccurate” and “misleading”, it continues to be applied as a useful abbreviation for a complex concept. The possibility of recovering damages for nervous shock, particularly caused by negligence, is strongly limited in English law.
For a case under nervous shock, the plaintiff has to prove the following things: –
- Necessary chain of causation between nervous shock and the death or injury of one or more parties caused by the defendant’s wrongful act;
- Plaintiff is required to prove shock caused to him by seeing or hearing something. Physical injury is not necessary;
- His proximity to the accident was sufficiently close in time and space.
Tort law was always considered an unwritten principle for bodily injuries. The courts have earlier said that nervous shock or psychiatric injury will not be entitled for any compensation. He said that in no way a nervous shock can be equated with physical damage. However, it was very clear that if nervous shock is so direct as to physical damage that it can cause damage to the brain, so in such a case, compensation for nerve shock is also allowed.
Nervous shock claims can be brought by persons who have witnessed, at the scene, a victim being killed, injured or put in peril if it is accepted by the Court that they have a genuine psychiatric illness arising from a circumstance that the defendant ought to have foreseen to be capable of causing a person of normal fortitude to suffer a recognisable psychiatric illness if reasonable care were not taken. Claims for damages for pure mental harm or nervous shock should only be brought by individuals who have suffered very significant psychological injury as a result of a particular event. Appropriate compensation can be awarded to persons with significant injuries that negatively impact upon their ability to earn an income and which give rise to significant medical expenses.
In addition, if a recognised psychiatric injury is suffered by a close member of the family of the victim who was killed, injured or put in peril, they need not have witnessed, at the scene, the relevant event.
Is Nervous Shock worth protecting through the Tort System?
Tort law protects the interests of the individual and adjudicates private wrongs. It is a judicial proceeding developed through case law in which the rules of evidence apply. Fault or negligence is an important issue in tort law and tort law is fault oriented. Tort law deals with civil wrongs for which the law provides compensation. It protects equality between individuals by providing compensation for the loss, so that the status quo that existed before the loss can be re-established between the parties.
The rationale behind the law of nervous shock is that the body is controlled by its nervous system (an essential part of the body) and if by reason of an acute shock to the nervous system the activities of the body are impaired and as a consequence is prevented from functioning normally, there is a clear “bodily injury”. It is important to note that the cause of nervous shock itself is not enough to make it an actionable tort, some injury or illness must take place as a result of emotional disturbance, fear, or sorrow.
It is important to note that the cause of the nervous shock itself is not sufficient to make it an actionable tort, should some injury or illness occur as a result of emotional disturbance, fear or grief.
For a plaintiff to receive damages from nervous shock caused by the defendant’s negligence, they must prove all elements of the tort of negligence: –
- A duty of care exists;
- There is a breach of that duty;
- The causal link between the breach and the shock;
- Shock was not too remote a consequence.
Primary Victims and Secondary Victims of Nervous Shock
Meaning of Primary Victims and Secondary Victims of Nervous Shock: – A primary victim is a victim who is directly involved in an accident and suffers injuries as a result of the fault of a tortfeasor. A secondary victim is one who suffers nervous shock without himself/herself being directly exposed to any physical danger in the accident to the primary victim. A very early case on this front is the case of Dulieu vs. White and sons, where Kennedy J gave a test to determine the liability of the defendant in a nervous shock case.
A test can determine the defendant’s liability in a nervous shock. The test is a two-fold test: –
- The extent to which shock is presented in the courts can be predictable and
- The shock must come from a justified fear that it may cause bodily harm.
This test differentiated between the primary victim and the secondary victim in the sense that the party who is directly involved in the accident and has a reasonable fear of causing bodily injury is the primary victim. A secondary victim is one who suffers nervous shock without the primary victim being directly exposed to any physical danger in the accident.
But this test was reduced in the case of Page vs. Smith where the judges held that where the reasonable foreseeability can be proved, there “physical and psychiatric harms are not of different types, so that if the former is foreseeable, the claimant can recover in respect of both physical and psychiatric harms, even where the latter is not in itself foreseeable”. This means that the requirement for the plaintiff is to prove that they were in the purview of the physical injury and then they are directly eligible to get compensation for the nervous shock/ mental illness. But this may open the floodgates, if the nervous shock was not foreseeable.
Therefore, the final test for primary victims claiming the compensation under the nervous shock must prove that they were in the zone of physical danger and the secondary victims need to prove proximity and the relation between them and the primary victim.
Historical Evolution of Law of Nervous Shock
Before we go and analyse the Law Commission’s report, it is important to understand the developments in this area and how judges have imposed limitations on narrowing the scope of the term ‘mental injury’. The law of nervous shock has been evolved over the decades by the courts, wherein they moved from entertaining claims only limited to sudden shock to taking a wider and more flexible approach in dealing with the claims of an individual taking into account several eventualities. Initially the courts were reluctant as well as slow in recognising the claims for psychiatric illness, for it was felt that it would attract dubious and false claims under the garb of psychiatric illness as it would prove very difficult to outline and define the precise parameters of liability under this field. For instance difficulty of proving the link between defendant’s conduct and shock to the plaintiff resulting from the conduct of the defendant. There are numerous English law cases which provide the best picture of the development of the law in this area.
In 1901, however, the courts adopted a more liberal approach in deciding Dulieu vs. White & Sons, in this case, it was noted that shock must be such as “arises from reasonable fear of immediate personal injury to oneself”. This case brought into picture what is called impact theory. According to which the plaintiff would be allowed to recover for psychiatric illness provided that this was caused by reasonable fear of being physically injured by the defendants negligence.
But nearly two decades later, the case came in Hambrook vs. Stokes Brothers, where the judges held that nervous shock can also come to the victim’s close relatives and friends, and they can also claim damages for it. These people were said to be secondary victims of the case. Now the judges have limited the scope of nervous shock liability to include the proximal part as well.
Nearly twenty years later, in Bourhill vs. Young, the question of psychiatric illness liability came before the House of Lords for the first time. It will be recalled that it concerned a pregnant woman who, while descending from the tram, heard a road accident occur some distance away. She later attended the scene of accident, saw blood on the road, and subsequently suffered a miscarriage produced by shock. The House of Lords held, in effect, that the woman was not a foreseeable claimant. In other words, she could not base her action on a wrong done to someone else.
Control Mechanism in Nervous Shock
Courts have taken different approaches to developing the concept of nervous shock as a form of tort. Out of fear for false claims and unrestricted liability of defendants, the courts have created a number of “control mechanisms” which can limit liability. As in the case of McLaughlin vs. O’Brien, where the House of Lords was clear that compensation could be awarded in this case, divisions arose when deciding the examination of liability. In this, the plaintiff was not present in close proximity of the accident but sustained nervous shock when she was told about the accident. In holding the defendants liable the House of Lords extended the law to cover a situation where the plaintiff had not seen or heard the accident itself but had come upon its immediate aftermath. It gave a three-part test in order to restrict the compensation. Lord Wilberforce identified three factors that would need to be identified in every case.
Lord Wilberforce held that liability should not only be based on foresight and the following factors should also be taken into account: –
- The class of persons whose claims should be recognized;
- The proximity of such persons to accident; and
- The medium through which the mental illness was caused – it must have come through the plaintiff’s own vision or hearing of the incident or immediately thereafter; Communication by third parties was not enough.
These three control mechanisms suggested by Lord Wilberforce were subsequently reformulated and applied by a unanimous house of Lords. This test was given by Lord Wiberforce and later, it came to be known as ‘Alcock test’ and this test was used to control the number of claims. This test was applied a decade later in several cases, including one in Alcock vs. Chief Constable of South Yorkshire. However, by applying this test, the court held that the claim could not be allowed as the above conditions were not fulfilled.
Second and third control mechanisms are sometimes also called proximity of perception. The limits of the decision in Alcock were explored in the case of white v chief constable of south Yorkshire Police. It is a 1998 case in English tort law in which police officers who were present in the aftermath of the Hillsborough disaster sued for post traumatic stress disorder. The officers present at the stadium were entitled to succeed without needing to meet Alcock criteria as special rules applied where a psychiatric illness claimant was a “rescuer” or an employee and the officers in question were both. Until relatively recently, the tort of negligence relating to claims for psychiatric injury was very uncertain. However, in recent times, this area of law has become slightly more certain with the laying down of various guidelines and criteria governing whether an individual can recover damages as a result of witnessing an event which causes them some form of psychiatric injury.
The distinction between the physical harm and the nervous shock is also important and it is discussed in the case of White vs. Chief Constable of South Yorkshire.
However, the Law Commission report in 1998 claimed that these reasons equally apply to physical harm as well. It also suggested that it is however not really possible to prove the kind of harm that the plaintiff is in- in a nervous shock.
This means that all the conditions need to be proved. A plaintiff in the Alcock case who had seen two of his brothers die failed to prove his claim because he was suffering from great stress after the incident.
However, today the situation is the same as it was created by the courts. These controls should be taken into account when making a nervous shock claim. These mechanisms should be taken into account to control the flood of claims.
Law Commission Reports
The Law Commission report suggested that there is a need to restrict claims in respect of secondary victims otherwise it would open the floodgates for the number of cases. At the same time, he should act according to judicial precedents and use judicial powers to bring justice to the innocent. The Law Commission also said that proximity should not be used in the context of time and place.
After giving this example, he said, “How many hours after the accident the mother of an injured child manages to reach the hospital should not be the deciding factor in deciding whether the defendant may be liable for the mother’s resultant mental illness”. However, it can be argued both ways. However, for Floodgate’s argument, the commission held that the folds of love and affection should be strictly used and to give more clarity, they gave a definitive list of relationships.
He acknowledged that his reforms would open the floodgates but then added that courts should look at policy considerations to allow/deny those claims.
Case Laws for Nervous Shock under Law of Torts
- Bourhill vs. Young
Facts of the case: – The question of mental illness liability first came up before the House of Lords. It will be recalled that this relates to a pregnant woman who heard the sound of a road accident at some distance while getting off the tram. She later attended the accident scene, saw blood on the road, and later suffered a shock-induced miscarriage.
Judgement of the case: – The House of Lords actually held that the woman was not a “foreseeable claimant”. In other words, she could not base her action on a wrong done to someone else.
- McLoughlin vs. O’Brian
Facts of the case: – In this, the plaintiff was not present near the accident but when she was told about the accident, she was shocked.
Judgement of the case: – Holding the defendants liable, the House of Lords expanded the law to cover a situation where the plaintiff had not seen or heard the accident himself, but had come in the immediate aftermath. Lord Wilberforce identified three factors that would need to be identified in every case:
- the class of persons whose claims should be recognized;
- the proximity of such persons to accident; and
- the means by which psychiatric illness was caused. These three control mechanisms suggested by Lord Wilberforce were subsequently reformulated and applied by a unanimous house of Lords.