Tort law is concerned with civil wrongs for which remedy is provided by the law. It maintains fairness between persons by compensating for damages, allowing the parties to recreate the status quo that existed before the damage. Tort law tries to make up for the plaintiff’s loss, i.e., to make the plaintiff whole. Under tort law, the plaintiff is compensated for all damages, including pain and suffering.
The English legal system has frequently considered negligence and compensation for mental injury as a contentious topic in tort law. Many judges, attorneys, and scholars have seen the rules governing mental damage, or “nervous shock,” as the courts have frequently referred to it, as producing contradictory findings, having complicated criteria and standards, and adopting irrational ways that end in injustices.
The nervous shock might be seen as a mental injury or a medically acknowledged psychiatric disorder. In recent years, the courts have moved to abandon this language in favour of referring to “psychiatric illnesses” rather than “nervous shock.” The logic behind the rule of nerve shock is that the body is controlled by its nervous system, and if the functions of the body are hindered as a result of an acute shock to the nervous system, the body is therefore stopped from operating properly, there is a definite “bodily injury.”
Elements that are required to prove Nervous Shock
To recover damages for nerve shock caused by the defendant’s negligence, a claimant must show all elements of the tort of negligence-
- Duty of care- It is one of the necessary conditions of negligence for the offender to be held responsible. It indicates that when executing an action, everyone owes a responsibility of care to another person. Although this obligation occurs in all activities, it is legal and cannot be criminal or unlawful, nor can it be moral, ethical, or religious.
- Breach of Duty to take care- A plaintiff must demonstrate that the defendant broke his duty to the plaintiff in addition to proving that the defendant owes him a duty of care. A defendant violates such a responsibility when he or she fails to use reasonable care in carrying out the duty. In other words, a violation of a duty of care indicates that the person who has an existing duty of care should behave prudently and not neglect or perform any act that he is required to do or not do as direct.
- The causal link between the breach and shock
- The shock was not too remote a consequence.
The Evolution of the Law of Nervous Shock
Concerning the law of nervous shock, all we have is to examine the law by tracing the cases. The law of nervous shock has developed over the decades as courts shifted from accepting claims exclusively restricted to abrupt shock to having a broader and more flexible approach in dealing with an individual’s claims taking into account many possibilities.
Initially, the courts were hesitant and delayed in recognizing psychiatric illness claims, fearing that it would draw questionable and fraudulent claims under the guise of psychiatric illness since it would be difficult to describe and establish the precise boundaries of responsibility in this sector.
For example, the difficulty of demonstrating the relationship between the defendant’s behaviour and the plaintiff’s shock as a result of the defendant’s conduct. The law of nerve shock has evolved via case laws dating back to 1861.
Lynch v Knight, was one of the first decisions to address responsibility for mental harm. The remark, however, was obiter dicta, and the case featured a defamation claim. The following comment was made- Mental pain or anxiety the law cannot value and does not pretend to redress when the unlawful act complained of causes that alone, though where material damage occurs and is connected with it, it is impossible for a jury, in estimating it, to entirely disregard the feelings of the party interested. The case that serves as the actual beginning point for all case laws on nervous shock is Victorian Railways Commissioners v. Coultas.
Nearly two decades later, in Bourhill v. Young, the issue of psychiatric illness responsibility was debated for the first time in the House of Lords. It will be remembered as it included a pregnant woman who heard a traffic collision some distance away while descending off the tram. She subsequently arrived at the accident site, saw blood on the road, and had a miscarriage due to shock.
The House of Lords effectively determined that the woman had not been envisaged as a claimant. In other words, she couldn’t explain her acts by blaming them on the misconduct of others. The landmark case of McLoughlin v. O’Brian followed in 1982. In this case, the plaintiff was not there at the time of the accident but experienced nervous shock when she learned of it.
The House of Lords expanded the rule by finding the defendants responsible in a case where the plaintiff had not seen or heard the event itself but had come into contact with its immediate aftermath. Lord Wilberforce suggested three considerations that must be taken into account in each case:
1. the group of people whose assertions should be accepted
2. the closeness of such individuals to an accident
3. the mechanism by which psychiatric illness developed.
Primary and Secondary Victims
A primary victim is a person who is directly engaged in an accident and suffers injuries as a result of a tortfeasor’s negligence. A secondary victim is someone who suffers from nervous shock without being now exposed to any physical risk as a result of the first victim’s accident.