Earlier in tort law reimbursement was awarded for suffering from some physical injury only. Nervous shock is that branch of law that is nascent and still evolving. If a person has got injury through his senses i.e., by what he has seen or acoustic senses it comes under the category of nervous shock. It is used to describe a claim where the claimant might ask for damages even though the person has not clearly received any physical harm. It is a shock to nerves and segments of the brain. It is not a physical injury either by a stick, bullet, or weapon but merely by what has been seen or heard. Nervous shock can be seen a mental injury or medically recognized psychiatric illness. It denotes a psychiatric illness or injury caused to a person by the perception of acts caused due to the breach of duty or negligence of another. For example, a girl met with an accident in Infront of her mother. It is reasonably foreseeable that the mother will suffer shock and she is entitled to ask for compensation. In Wilkinson v. Downton, the defendant was held liable when the plaintiff suffered nervous shock and got seriously ill on being told misleadingly, by way of a practical joke, by the respondent that her husband had broken both the legs in an accident.
There can be 2 types of the victim in case of nervous shock
- Primary victim
A “primary victim” is the one who was bodily injured or could foreseeably have been physically injured as a result of negligence. An example of this is a person who is involved in a car accident caused by the respondent’s careless driving and gets slightly injured (or even remains unharmed) as a consequence, but the fright from the bang triggers a serious mental condition. Such a person can recover damages for his car, his minor injuries, and the nervous shock he had suffered. Rescuers (such as firemen, policemen or volunteers) who put themselves in the way of danger and suffer psychiatric shock, as a result, used to be “primary victims”, until the decision in White v Chief Constable of the South Yorkshire Police explained that rescuers had no special position in the law and had to prove reasonable fear as a consequence of exposure to danger.
- Secondary victim
A “secondary victim” is the person who suffers nervous shock without himself being getting any physical harm or injury. For example, a person watching a car race and witnesses a terrible crash caused by the negligence of the defendant and develops a nervous ailment as a result of his experience. It is in cases like these where courts have been particularly reluctant to award compensations for nervous shock. In many decisions, the courts have identified several strict requirements for the acknowledgment of a duty of care not to cause nervous shock, as well as connection and remoteness:
- The person must observe a “shocking event” with his own unaided senses, as an eye-witness to the event, or hearing the action in person, or seeing its “immediate aftermath”. There has to be close physical proximity to the event, and hence the court usually dismisses the events witnessed by television or informed of by a third party.
- The shock must be a “sudden” and not a “gradual” attack on the person’s nervous system. Hence, a person who develops depression from residing with a relative debilitated by the accident will not be able to get compensation.
- If the nervous shock is caused by seeing the death or injury or another person the plaintiff must show a “sufficiently proximate” relationship to that person, generally described as a “close tie of love and affection”. Such ties are supposed to exist only between parents and children, as well as spouses and fiancés. In other relations, including siblings, ties of love and affection must be proved.
To constitute the tort under nervous shock there must be a recognized mental ailment like psychotic neurosis or anxiety disorder. There should be expert medical witness or reports by medical experts that gives a clear indication that the person is suffering from nervous shock. For mere anxiety, emotional breakdown, etc, the courts are not bound to give damages. The person asking for damages should have a sufficient proximate relationship with the victim. There has to be a chain of events between nervous shock and the death or injury of the person by the negligent act of the person. It has to be kept in mind that physical injury is not necessary.
- (1897) L.R. 2 Q.B. 57; Also see Janvier v. Seveeny, (191) 2 K.B. 316.
- Ramaswamy Iyer’s, The Law of Torts, Lexis Nexis, 2007 (10th Edn)
- R.K Bangia