Health Final 2

NERVOUS SHOCK AND LIABILITIES
SUBJECT: HEALTH LAW
SUBMITTED TO:
MR.VIKRAM SINGH
SUBMITTED BY:
VIJAYANT SINHA
ROLL NO-180
5TH YEAR XTH SEMESTER
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

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Table of Contents
Acknowledgement
..3
Research
Methodology
4
Introduction5
Psychiatric Injury: Evolution of a concept7
Psychiatric Damage..10
Primary Victims13
Secondary Victims13
The three test determining Nervous Shock15
Evolution of cases regarding Psychiatric Damages.20
Present law regarding liability of Psychiatric Damage..24
Indian approach 26
Fundamental question on cases of Psychiatric damage regarding liability27
Policy factors relating to Psychiatric illness29
Options for reform34
Conclusion.42
Bibliography44

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ACKNOWLEDGEMENT
I would like to thank my faculty Mr.Vikram, whose assignment of such a relevant and current topic
made me work towards knowing the subject with a greater interest and enthusiasm and moreover he
guided me throughout the project.
I owe the present accomplishment of my project to my friends, who helped me immensely with
sources of research materials throughout the project and without whom I couldnt have completed it in
the present way.
I would also like to extend my gratitude to my parents and all those unseen hands who helped me out
at every stage of my project.

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RESEARCH METHODOLOGY
This project is based upon doctrinal method of research. This project has been done after a
thorough research based upon intrinsic and extrinsic aspects of the project.
Sources of Data:
The following secondary sources of data have been used in the project-
1. Articles.
2. Books
3. Journals
4. Websites
Method of Writing:
The method of writing followed in the course of this research project is primarily analytical.

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Mode of Citation:
The researchers have followed a uniform mode of citation throughout the course of this
project.
INTRODUCTION:-
Psychiatric Injury- which is also known as Nervous Shock is a pretty new area, has gained
much importance. It is used to describe a claim where the claimant might claim for
compensation even though she has not clearly received any physical harm. It comes under the
ambience of negligence. When an injury is done to a person by some actions, which are either
negligent, or intentional, or also due to omission of any particular action it is recoverable
under Psychiatric Damages. Now, what do we mean by Psychiatric Damages?
Medical Definition: In medicine, circulatory failure marked by a sudden fall of blood
pressure and resulting in pallor, sweating, fast (but weak) pulse, and sometimes completes
collapse. Its causes include disease, injury, and psychological trauma. In shock, the blood
pressure falls below that necessary to supply the tissues of the body, especially the brain.
Treatment depends on the cause. Rest is needed, and, in the case of severe blood loss,
restoration of the normal circulating volume. The issue of recovery of damages for
negligently inflicted psychiatric harm is widely regarded as not only highly ridiculous and
illogical, but also as one of the most controversial in the law of torts. On one hand is the view
that psychiatric illness should be treated no differently from physical injuries to the person,

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and damages for the former should be no less extensive than the latter. On the other hand,
though, is deep scepticism about the reality of conditions grouped together under the label of
psychiatric illness, and the problem of identifying and segregating the true claimants. Since
old times law has been cautious about awarding damages for non physical harm to any
person. Even today this general perception has not changed. 1 "In the case of mental shock...
there are elements of greater subtlety than in the case of an ordinary physical injury and these
elements may give rise to debate as to the precise scope of legal liability" Bourhill v Young
[1943] AC 92, 103 per Lord Macmillan.
In many respects the history of liability for psychiatric illness 2 has been characterised by
ignorance, suspicion and fear (a view that could equally be applied to the history of mental
illness itself). There has been ignorance of the causes of psychiatric illness, judicial suspicion
of the medical discipline devoted to treating psychiatric illness, and fear that opening up
liability would produce a flood of claims (either fraudulent or genuine). Deeply pragmatic
the common law and its judges may be, but in the context of liability for psychiatric illness
this, on occasion, seems to translate into the simple, indeed simplistic, notion that if it cannot
be seen it cannot be shown to have caused any harm. This in turn has produced what might
be termed the "pull yourself together" school of legal analysis (sometimes aided, it must be
said, by a similar attitude within the medical profession) which regards psychiatric damage as
less important, less significant and indeed less worthy of compensation than physical injury,
which after all can be objectively seen and measured. Although we have moved on to some
extent from these attitudes, they nonetheless lurk beneath the surface of the "policy factors"
which are wheeled out to justify restricting recovery.
The courts have refused to treat psychiatric damage on the same basis as physical damage,
though with remarkable, but scarcely commented upon, inconsistency see no difficulty in
compensating psychiatric damage produced as a direct consequence of physical injury to the
plaintiff (even to the extent of compensating for the plaintiff's suicide in the course of a
1 Encyclopedia by Farlex
2 Historically, the term "nervous shock" has been used by lawyers to describe a medically recognised
psychiatric illness, although in Attia v British Gas [1987] 3 All ER 455, 462 Bingham LJ described it as a
"misleading and inaccurate expression." Throughout this article I will refer to psychiatric illness or injury,
which is distinguished from emotional distress, anguish or grief, for which there can be no action unless it leads
to some positive psychiatric illness, such as an anxiety neurosis or reactive depression, or physical illness, such
as a heart attack: McLoughlin v O'Brian [1983] 1 AC 410, 431

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depressive illness produced by his physical injuries: Pigney v Pointer's Transport Services
Ltd [1957] 1 WLR 1121; Cotic v Gray (1981) 124 DLR (3d) 641). Indeed, the House of
Lords has now reached the position that if some physical injury to the plaintiff was
foreseeable in the circumstances, however trivial, but did not in fact occur, the plaintiff can
recover for psychiatric illness without even asking the question whether the psychiatric
illness was foreseeable: Page v Smith [1995] 2 All ER 736. The presence or even the
foreseeability of physical injury somehow legitimates the plaintiff's claim for psychiatric
injury. The primacy of physical injury in the realm of compensation is apparent even when
the courts are engaged in permitting recovery for psychiatric illness. Lord Macmillan's
"elements of greater subtlety" apply only to psychiatric illness which is not produced by
means of physical injury to the plaintiff .
3
Psychiatric Injury Evolution of a concept:
Initially psychiatric injury was called nervous shock because it was treated as a response to
an extremely traumatic event. But this was gradually replaced by mental injury due to the
expansion in law as to what came under its ambit to claim damages. Most mental injury
though comes under the category of Post Traumatic Stress Disorder (PTSD). At the outset
damages could not be claimed for psychiatric damage unaccompanied by physical damage
though now claims can be filed for psychiatric injury without physical damage. Damages can
also only be claimed if the mental injury gives rise to a recognized psychological disorder
and not for normal grief and sorrow experienced on the demise of a person.
Psychiatric injury is a form of injury which affects a person like physical injury but it causes
more problems in law as there are difficulties in putting a monetary value on such harm; there
is also the risk of fictious claims and excessive litigation, and the problems of proving the
link between the defendants negligence and the injury to the claimant. The claimants of
psychiatric injury are classified into three broad categories primary, secondary and special
categories.
The Alcock case lays down the concepts of primary and secondary victims, but these were
4
3 Boardman v Sanderson [1964] 1 WLR 1317; Chadwick v British Railways Board [1967] 1 WLR 912; Benson
v Lee [1972] VR 879)
4 1901) 2 KB 669

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further elaborated in Page v Smith. In this case, the victim was involved in a road accident
but was not physical injured. Almost immediately after the accident he yielded to an acute
revival of chronic fatigue syndrome (myalgic encephalomyelitis) from which he had
periodically suffered in the past. The defendant argued that any normal person without any
history of any psychiatric illness will not become ill because of a minor accident.
The House of Lords, in this case, classified the victims into primary and secondary according
to their involvement in the accident. Essentially, primary victims are claimants who
(1) suffer severe physical injury or succumb to mental illness triggered by trauma of accident
or its aftermath, or
(2) Dont suffer from any bodily injury from an accident but suffer from shock and fear
leading to mental illness.
A claimant who is not directly associated with the accident in any way and suffers no injury
as a result but suffers from psychiatric harm by witnessing injuries to others comes under the
category of secondary victims. To keep a check on the number of false claims arising out of
this provision of law, control mechanisms requiring proximities of relationship, time and
space, etc were devised. Firstly, he must be closely related to the injured person by ties of
love and affection like parents and children, spouses, and those who can establish such a
relationship due to special factors; Secondly, he must be physically near the place at the time
when the traumatic event took place; Thirdly, he should have perceived the event via his own
unaided senses and not by the notifications of third parties .
5
Additionally, there are provisions for bystanders, rescuers, employers, and witnesses to self-
infliction of psychiatric harm to claim compensation as a result of psychiatric injury too. The
courts require strong proofs to award compensation to the victims lying in this category.
Page vs. Smith also gave that a person suffering from unforeseeable psychiatric injury could
6
claim damages as long as physical injury was foreseeable from the event. This was based on
the thin skull principle which held the defendant responsible for any damage caused due to
any pathological predispositions in the claimant. As a consequence, mere bystanders and
relatives like siblings, in-laws etc. could not claim damages. Lord Ackner however said that
bystanders could claim damages if the incident was especially horrific. McFarlane v E.E.
Caledonia Ltd though negated this by saying that bystanders could not claim damages
5 Law Commission Report, U.K. 249
6 (1943) AC 92

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however horrific the accident as it went against the general principles of Alcock.
McLoughlin v OBrian was another landmark case that expanded the rule regarding
proximity of time and place to cover the immediate aftermath of the event. In this case the
law moved in the direction of a test of reasonable foreseeability, which states that
witnessing the immediate aftermath was as good as witnessing the accident as the state of
the victim had not changed in that while. It was upheld by the House of Lords and approved
in Alcock. If a person views the victims in the same condition as they were immediately after
the incident and is psychiatrically injured by it, he will be considered a secondary victim.
Those who watched a disturbing event on television could also not claim damages but the
case did not rule out claims for mental injury caused due to live television transmission of an
incident. In Alcock while the television showed the happenings in the stadium which could
lead to fear in the minds of the viewers for their loved ones, no individual suffering was
shown such that it could lead to the founding of a claim. The illness has to be caused by
suddenly witnessing a horrifying event which shocks the mind and leads to mental injury.
White vs. CC South Yorkshire , another Hillsborough case, held that the policemen who acted
7
as rescuers at the event could not claim damages for mental injury by claiming to be primary
victims. There was no special category for them. They could not bypass the standards
established by Alcock of having close ties of affection with the people threatened. It was felt
to be unjust by the court that policemen should get compensation while relatives of the
victims were not. They were also not allowed to claim damages on the basis that their
employer, who was responsible for the disaster, owed a duty of care to them as it would mean
that rescue workers employed by someone else like an ambulance crew could not claim
damages as their employers were not responsible for the act.
In 1998 The Law Commission on Liability of Psychiatric Illness recommended reforms to the
existing position of English Law regarding compensation for psychiatric injury. It favoured
the continuation of control mechanisms but wanted to broaden the scope of recovery of
damages for secondary victims by eliminating the requirements for being present at the event
or shock being caused by a sudden event .8
7 (1901) 2 KB 699
8 Law Commission Report, U.K. 249

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Psychiatric damages:-
Psychiatric damages are also known as nervous shock in English law. It comes under the
ambience of negligence. When an injury is done to a person by some actions, which are either
negligent, or intentional, or also due to omission of any particular action it is recoverable
under Psychiatric Damages. The Medical Specifications regarding Psychiatric Damages.
In this part we discuss the medical specifications which are required for an action to be
recoverable under Psychiatric Damages. According to the Law Commission Report of U.K
are two main conditions which are to be fulfilled :
9
A. A Recognizable Psychiatric Illness
According to Lord Bridge- It is first very important to establish that the person is not
suffering from only grief, or normal emotional stress but its must be a positive psychiatric
illness. According any recognizable psychiatric illness would comprise morbid depression,
hysterical personal disorder, post-traumatic stress disorder, pathological stress disorder and
Chronic Fatigue Syndrome.[2] There should also be expert medical witness or reports by
medical experts proving the above facts. For mere anxiety, emotional outbreak etc, the law is
not bound to give compensation.
B. Test of Reasonable Forseeability
9 (1888) 13 App Cas.222

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The Law Commission considered that the Psychiatric Damages should be tested beyond a
simple Forseeability test. It suggested that a reasonable Forseeability test should be used. The
first case in U.K. to be followed in this regard was Delieu v White & Sons[3].In this case it
was decided that the plaintiff should be able to recover only when the danger is reasonable
enough to be nervous or receive mental shock. This test varies according to the circumstances
of the different. But in this case there are two points which are to be noted.
First, in applying the reasonable forseeability test the defendant must presume that the
plaintiff is a prudent woman who has a normal standard of forseeability. Then when the
plaintiff has established her prudent nature and that it would be normal for a reasonable
woman to suffer the nervous shock she suffered in the particular case, she is entitled to
recover full compensation. Second, foreseeability of the psychiatric illness is considered ex
post facto in the light of all that has happened. Unless hindsight is used, [t]he question
ceases to be whether it is foreseeable that a reasonably robust person would have suffered
psychiatric illness as a result of what actually happened and becomes instead whether it is
foreseeable that such a person would have suffered psychiatric illness as a result of what
might have happened but did not in fact do so. Thus we see that the judge must see herself to
be a reasonable, prudent woman, when deciding the cases of psychiatric damages. In the
words of Lord Bridge, the judge should decide a particular case relying on her own opinion
as that of a reasonably educated woman. 10
History of Psychiatric Damages
Origin of Psychiatric Damages:
The courts initially were very slow in dealing cases regarding psychiatric damages. Initially
they denied claims of psychiatric injury which did not result from a physical harm-as was
seen in the case of Victorian railways commissioner v. Coultas. In this the defendants had
negligently drove the carriage onto the railway tracks while the train was on the verge of
crossing the place. No physical harm occurred, but the plaintiff who pregnant received
nervous shock and this unfortunately lead to her miscarriage. The courts held that the plaintiff
was not entitled to receive compensation as there was no physical harm caused. This decision
was so taken because then, people did not have much knowledge about the working of
peoples mind. But the view gradually started changing with time. It was first seen in the case
of Deliue v White where a carriage was driven into a pub, where the plaintiff, a lady was
10 (1964) 1 WLR 1317

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working. She was terrified by such an event and had a miscarriage. The courts upheld her
claim and took a bold approach which opened a new area of claim.
Intentionally inflicted nervous shock:-
It is well established in English law that a person who has intentionally and without good
reason caused another emotional distress will be liable for any psychiatric injury that follows.
An example of this is a bad practical joke played on someone which triggered serious
depression in that person. The joker intended to cause the other person emotional distress and
will be liable for the medical consequences.
Negligently inflicted nervous shock:-
Before a claimant can recover damages for the nervous shock which he suffered as a result of
the defendant's negligence, he must prove all of the elements of the tort of negligence:
1. The existence of a duty of care, i.e. the duty on the part of the defendant not to inflict
nervous shock upon the claimant;
2. A breach of that duty, i.e. the defendant's actions or omissions in the circumstances
fell below what would be expected from a reasonable person in the circumstances.
3. A causal link between the breach and the psychiatric illness, i.e. the nervous shock
was the direct consequence of the defendant's breach of duty;
4. The nervous shock was not too remote a consequence of the breach.
For fear of spurious actions and unlimited liability of the defendant to all those who may
suffer nervous shock in one form or other, the English courts have developed a number of
"control mechanisms" or limitations of liability for nervous shock. These control mechanisms
usually aim at limiting the scope of the defendant's duty of care not to cause nervous shock,
as well as at causation and remoteness.

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Primary victims
A "primary victim" is a person who was physically injured or could foreseeably have been
physically injured as a result of another person's negligence. An example of this is a claimant
who is involved in a car accident caused by the defendant's careless driving and gets mildly
injured (or even remains unharmed) as a consequence, but the fright from the crash triggers a
serious mental condition. Such a claimant can recover damages for his car, his minor injuries
and the nervous shock he had suffered. "Primary victims" also include rescuers (such as
firemen, policemen or volunteers) who put themselves in the way of danger and suffer
psychiatric shock as a result. 11
Secondary victims
A "secondary victim" is a person who suffers nervous shock without himself being exposed
to danger. An example of this is a spectator at a car race, who witnesses a terrible crash
caused by negligence on the part of the car manufacturers and develops a nervous illness as a
result of his experience. It is in these cases where the courts have been particularly reluctant
to award damages for nervous shock. In several decisions, the courts have identified several
strict requirements for the recognition of a duty of care not to cause nervous shock, as well as
causation and remoteness:
11 Bourhill v Young [1943] AC 92, 110, per Lord Wright

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The claimant must perceive a "shocking event" with his own unaided senses, as an
eye-witness to the event, or hearing the event in person, or viewing its "immediate
aftermath". This requires close physical proximity to the event, and would usually
exclude events witnessed by television or informed of by a third party.
The shock must be a "sudden" and not a "gradual" assault on the claimant's nervous
system. So a claimant who develops a depression from living with a relative
debilitated by the accident will not be able to recover damages.
If the nervous shock is caused by witnessing the death or injury or another person the
claimant must show a "sufficiently proximate" relationship to that person, usually
described as a "close tie of love and affection". Such ties are presumed to exist only
between parents and children, as well as spouses and fiancs. In other relations,
including siblings, ties of loved and affection must be proved.
It must be reasonably foreseeable that a person of "normal fortitude" in the claimants

position would suffer psychiatric damage. The closer the tie between the claimant and
the victim, the more likely it is that he would succeed in this element. However, once
it is shown that some psychiatric damage was foreseeable, it does not matter that the
claimant was particularly susceptible to psychiatric illness - the defendant must "take
his victim as he finds him" and pay for all the consequences of nervous shock (see
"Eggshell skull" rule). A mere bystander can therefore hardly count on compensation
for psychiatric shock, unless he had witnessed something so terrible that anybody
could be expected to suffer psychiatric injury as a result. However, it seems that such
a case is purely theoretic (see McFarlane v. EE Caledonia Ltd, where the plaintiff
witnessed an explosion of a rig where he and his colleagues worked, but received no
compensation).

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The Three-Part Test of determining Nervous Shock:-
The three-part test states that firstly, it must be reasonably foreseeable that the conduct of the
defendant will cause some harm to the claimant. For example, damage or harm were
reasonable foreseeable in Kent v Griffiths but not in Bourhill v Young. 12
Secondly, there must be some sufficient proximity between the parties. For example, was
there a legal relationship or physical closeness? There was proximity in Home Office v
Dorset Yacht Club, but not in Caparo.
Thirdly, whether in all circumstances the courts consider it fair, just and reasonable for the
law to impose such a duty of care. It was held not to be fair, just and reasonable to impose a
duty on the police in Hill v Chief Constable of West Yorkshire. However, a duty was imposed
on the fire brigade in Capital and Counties plc v Hampshire County Council.
The second factor the courts will take into account to establish negligence is breach of duty.
This occurs where the defendant's conduct falls below the standard of care expected. The
standard of conduct to be attained is that of the reasonable man. This is commonly known as
the reasonable man' test. Baron Alderson in Blyth v Birmingham Waterworks Co said:
12 Bourhil v. Young (1943) AC 92

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Negligence is the omission to do something, which a reasonable man, guided upon those
considerations, which ordinarily regulate the conduct of human affairs, would do, or do
something, which a prudent and reasonable man would not do.
However, specific rules apply if the defendant is a child, learner or a professional. Children
and young people will usually be judged by the objective standard of the ordinarily prudent
and reasonable child of the same age, as in Mullins v Richards, though children cannot plead
infancy as a defence to a tort. However, if a young person deliberately commits an action
with an obvious risk of harm, they may be judged by the standards of an adult as in Williams
v Humphrey. Also, where a person has held themselves as having a skill, they are required to
show that skill normally possessed by persons doing that work, as seen in Bolam vFriern
Barnet Hospital. However, in Wells v Cooper, the defendant was found not liable as hewas
merely classed as an apprentice carpenter or underskilled. Nevertheless, motorists owe a duty
of care even if they are a learner or inexperienced driver, which could be perceived as being
underskilled, as seen in Nettleship v Weston.
In deciding whether a duty has been breached the courts will take into account a number of
factors. Firstly they will look at the degree of risk involved, as the claimant may have
characteristics that render the likelihood of harm greater and therefore increase the risk. In the
case of Haley v London Electricity Board , a risk was shown to be involved and it was held
13
that a body conducting operations on a city highway should foresee that blind persons would
walk along the pavement. However, in Bolton v Stone there was a low risk as the cricket club
had done everything reasonable to prevent the accident happening.
Secondly, the courts will look at the practicability of prevention, as the courts expect people
to take reasonable precautions in guarding against harm to others. An example of this is in the
case Latimer v AEC Ltd. 14
Thirdly, the courts will consider the magnitude of harm that is likely. The courts will take into
account the risk of any damage to the claimant and also the extent of the damage that is
risked. An example of this is Paris v Stepney Borough Council . 15
13 (1968) 29 ALR 3d 1316
14 (1992) 1 AC 310-410
15 (1983) 1 AC 410,431

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The courts may also be called on to assess the defendant's actions. The defendant could have
been serving a socially useful purpose, and he may then have been justified in taking risks as
seen in Watt v Hertfordshire County Council.
The third factor of negligence the courts need to establish is whether the damage was caused
by the defendant's breach. To establish this, three things need to be fulfilled. Firstly, causation
in fact needs to be determined. Here, the claimant must prove that the harm would not have
occurred but for' the negligence of the defendant. This is usually referred to as the but for'
test. This test is illustrated in the case of Barnett v Chelsea Hospital Management
Committee . 16
Secondly, a degree of probability of damage must be satisfied. Where there are a number of
possible causes of injury, the claimant must prove the defendant's negligence caused the
damage or was a contributory factor, as established in Wilsher v Essex Area Health Authority.
Finally, remoteness of damage must be fulfilled. The basic test for this was in the case of Re
Polemis and Furness, Withy & Co and remained the same, until the Privy Council changed
the decision in 1961 with the case of Overseas Tankship Ltd v Morts Dock & Enginerring
Co. This decision now means, that a person is only responsible for the consequences that
could reasonably have been anticipated.
The final point to clarify concerns instances where harm has been suffered of an emotional or
mental nature. In a case of nervous shock' or most recently referred to by the courts as
psychiatric damage', the claimant will have to demonstrate on the basis of medical evidence,
that they have a recognisable psychiatric condition. Claims in this area tend to occur where a
person suffers a reaction due to witnessing an accident in which a loved one is injured.
However, where the damage to the claimant is nervous shock other points need consideration,
including the floodgates argument. This is based on the fear of too many potential claimants'
arising from one incident of negligence.
At first, it was thought that a claimant could only succeed in a claim if they were within the
range of physical impact as in Dulieu v White. In other words, only the primary' victim could
sue; being the person who would foreseeably suffer physical damage. However, this was later
16 Thing v La Chusa 1989 48 Cal 3d 644

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extended to include people who saw or heard the accident, as established in Hambrook v
Stokes.
Furthermore, in the case of Mclaughlin v O'Brian the law moved in the direction of a test of
reasonable foreseeability', which included immediate aftermath of the accident, but not
necessarily present at the scene. Lord Wilberforce stated that there were three elements to a
claim. The first element was the relationship of the person who could sue. The closer the
emotional tie the greater the claim for consideration. The second element to be satisfied was
the claimant had to be proximate to the accident, which must be close both in time and space,
though this could include persons who did not witness the accident but came upon the
aftermath of events. Shock resulting from being told by a third party would not be sufficient.
The distinction between primary and secondary victims was summarised by Lord Oliver in
Alcock v Chief Constable of the South Yorkshire Police. Lord Oliver classed a primary victim
as a person directly involved in an accident as a participant and who was actually exposed
to the risk of physical injury, whilst a secondary victim would simply witness the accident.
The significance of this distinction became clear in Page v Smith.
With regard to advising the claimants, Billy will have to prove the accident put him at risk,
which it appears it did. Billy is owed a duty of care from Ian, as obviously, one road user
owes a duty of care to another road user. Billy will then be classed as a primary victim, as he
was involved either directly or immediately as a participant in the events. Even though Billy
did not suffer any physical injury in the accident, he did suffer post-traumatic stress disorder,
which is recognised as a psychiatric ailment. If this was the case, the defendant would be
liable for psychiatric injury sustained by Billy as a result of his negligence, as seen in Page v
Smith. Therefore, Billy can be advised he has a claim under nervous shock and thus can sue
Ian. The outcome would be receipt of damages . 17
With reference to Minty; he did not see the crash, but heard it, and on approaching the scene
witnessed Phil's car, which in turn, triggered a previous psychological condition. The House
of Lords held in Bourhill v Young that a motorist has a right to expect that bystanders are
people of reasonable fortitude, and will be able to cope with the ordinary day-to-day horrors
of the road. However, if Minty can prove he had a close tie of love and affection with Phil, he
may be able to claim, otherwise mere bystanders probably could not sue. A mere bystander,
17 1994 512 US 532, 544,547,548

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who was not a rescuer and to whom no duty such as that arising from the master and servant
relationship was owed by the tortfeasor, would not generally recover as in McFarlane v E. E.
Caledonia Ltd, and would only be able to do so if he was linked by ties of love and affection
to a primary victim as in Alcock. Damages have only ever been recovered in the courts if the
relationship was husband and wife or parent and child. However, it was also made clear in
Alcock that other close relationships may suffice if evidence can justify this. Therefore, Minty
would have to prove there was a close relationship with Phil; otherwise, Minty should be
advised that he has no prospect of a successful action.
Regarding the emergency services; some members suffered a recognisable psychiatric illness
after witnessing the scene. Rescuers may be classed as primary victims' if they are, or
believe themselves to be, exposed to physical danger, which in this scenario, for the fire
service, could be perceived as possible, since the carrier was carrying flammable substances
which could have exploded. An example of this is in the case Chadwick v British Railways
Board. However, in White v Chief Constable of South Yorkshire, the House of Lords
considered claims by police officers who had suffered psychiatric injury after tending the
victims of the Hillsborough tragedy. It was held that an employer has a duty to protect his
employees from physical but not psychiatric harm. A rescuer, not himself exposed to physical
risk by being involved in a rescue was a secondary victim, and as such, not entitled to claim.
The effect of this decision is that all psychiatric injury claims where personal injury is not
reasonably foreseeable means employees and rescuers do not get special consideration.
Therefore, if the fire service cannot prove that they were exposed to physical danger, it can be
assumed that there is no prospect of a successful action. However, if their lives were exposed
to any personal physical danger, the fire service could advisedly have a claim under nervous
shock. The outcome would be receipt of damages. Regarding the paramedics, who are trained
to cope with witnessing harrowing scenes and the sight of grievous injuries. Therefore, a
claim for psychiatric harm does not include them at present under current law. In addition, in
this scenario, the paramedics were some distance from the danger of the tanker. Thus, the
paramedics have no prospect of a successful action. 18
Regarding Phil's wife Stella who is diagnosed with post-traumatic stress disorder after
identifying Phil's body at the scene of the accident. However, Stella and Phil had separated,
and had not seen each other for six months. In McLaughlin v O'Brian, members of the
18 Alock v. Chief Constable of South Yorkshire Police (1992) 1 AC 310-410

P a g e | 20
claimant's family were badly injured, and, although the claimant was not present at the
accident, and therefore not in any physical danger, she suffered a psychiatric illness as a
result. The House of Lords held that, where it was reasonably foreseeable that a psychiatric
injury would arise from an event, the person who caused the event, had a duty of care in
respect of a psychiatric injury. Therefore, if it can be shown that Stella still had a close tie of
love and affection with Phil, she will be able to seek damages from Ian. If, however, this
cannot be proven, there is no prospect of a successful action.
Finally regarding Peggy, who was notified of the accident by a phone call from Stella whilst
on holiday, after seeing the body of her deceased son and ill grandchildren, she suffered post-
traumatic stress disorder. However, as Peggy only witnessed the body of her son and ill grand
children, ten hours after the accident, this could not be regarded as the immediate aftermath'
of the accident. In Alcock, it was stated that psychiatric harm must come through the
claimant's own sight or hearing of the event or its immediate aftermath. Peggy, could thus be
advised that she is unlikely to succeed in a claim of nervous shock, as her post-traumatic
stress disorder could not be classed as being in the immediate aftermath of the events. 19
Evolution of cases regarding psychiatric damages:-
Foreign Jurisdictions: U.K.
When we talk of any particular type of cases the U.K jurisdiction is the first thing that comes
to our mind. So first I will deal with the evolution of cases regarding psychiatric damages
with regard to the English jurisdiction. As mentioned in the previous sub-part the first cases
regarding psychiatric claims were as early as 1888, when the case of Victorian railways
commissioner v. Coultas arose. But after that various cases arose and as the scientific
knowledge of people regarding how the human mind works increased, things began to be
looked in a very different way, which will be regarded in the following cases. The first hint of
change was when in Delieu v White the court gave compensation for nervous shock which
was not caused due to physical injury. Thus the thing called impact theory which said that
no nervous shock would be recognized without physical injury was abandoned. This was
done to cover a new category of plaintiffs whom we call secondary victims. These things
are dealt with in details in the next chapter. Such situation occurred in 1925 when a mother,
19 Galli-atkinson v.Sehgal

P a g e | 21
who was pregnant and was leading her three other children to school. When she left her
children near the school a lorry came rushing and the woman was terrified. As a result she
had a miscarriage. Here again she was a secondary victim but her claim was granted.
After the above mentioned case there wan no case of nervous shock until 1943 when there
arose a chance for further expansion of victims. But it was denied on the ground of
forseeability. In this case a pregnant lady came down from the tram and heard about an
accident. Later on she went to the accident site, saw blood and received mental shock
resulting in miscarriage. But in this case her claim was not granted because the accident was
not considered reasonably foreseeable. But this decision was contradicted in Boardman v.
Sanderson where the plaintiff was compensated even when she heard the heard the accident
that involved her son and then arrived just after the accident .
20
Thus we see that in English jurisdiction the view of the judges changed quite a lot as time
passed. In the beginning nervous shock without physical harm was denied. But then the
impact theory was ultimately abolished. Then the law further expanded in McLoughin v.
OBrian where the accident involved the plaintiffs children and husband. But she was about
two miles away from the scene. But when she was informed and she arrived at the hospital
she saw the miserable condition of the family members and received a nervous shock and
severe persisting psychiatric illness. Here she was compensated on the ground as a secondary
victim.
U.S.A- Now I move onto the history of how cases evolved in U.S.A. Here to similar to U.K
the courts were lethargic about cases on psychiatric damage. In lot of cases compensation was
denied on the ground of being out of the zone of danger. But the first case which was
decided for the plaintiff was Dillion v. Legg where a little girl was injured in a car accident.
Her mother and sister suffered nervous shock after seeing that and sued for compensation.
The court told that from this case onwards the case should be dealt with the test of
forseeability not by seeing whether they were in the zone of danger. The reason that was
given was that sometimes some close relations can cause psychiatric damages even though
she is not within the so-called zone of danger. Henceforth in the cases in U.S.A this
reasoning applied and refined according to the circumstances which we will deal in brief in
this chapter.
20 Law Comission Report, U.K. 249

P a g e | 22
In 1989 a minor son was injured and when his sister informed her mother, she came running
only to see her son unconscious and covered with blood. As a result she had a nervous shock.
Here the trial judge decided in favor of the plaintiff, the mother. Here thus we see a notifiable
change, in the case of Dillion v. Legg the trial judge did not give compensation to the
plaintiff, but the higher court did. Here the trial court did not hesitate to give compensation.
This we see that the situations were changing with time. After the case of Dillion v. Legg the
criteria of being near the accident zone, having a relation to the accidentee was considered a
full-proof test for justice in these cases.
Indian Jurisdiction
It was generally seen that the Indian courts were quite liberal regarding the cases of
psychiatric damages. According to the Madras high court the impact theory was totally a
wrong test to determine in cases of nervous shock, because the body was controlled by the
nervous system and even though if there is no harm done to the party physically, yet the
nervous system could be affected. This was also due to the fact that cases regarding nervous
shock came as late as during the 1950s. In the case of Halligua v Mohansundarum .. The 21
Madras High court held the aforesaid decision. The generosity of Indian courts can also be
found in cases like Lucknow Development Authority v. M.K Gupta where damages were
22
give to the plaintiff because of the harassment which Mr. Gupta, the plaintiff received from
the Government officials. This decision was followed in many similar cases like Gazhiabad
Development Authority v. Balbir Singh. It can also be seen in cases like Spring Meadows
Hospital v. Harjot Alhuwalia . Here the plaintiff suffered nervous shock when their child was
23
left in a vegetative state due to negligence of the defendant, where she was taken for
treatment.
Determination of Plaintiff and Defendant
To determine who the plaintiff is where the injury is not so visible is tough and so a lot many
unbiased cases could come up. Which could lead to different many theories of determining
one? So in order to generalize this a bit; Based on the reasonability test victims are divided in
two categories for the convenience in providing compensation:
21 AIR 1994 Sc 737, pp 799, 800
22 AIR 2004 SC 2141
23 AIR 2007 SC 2198

P a g e | 23
Primary Victims
Secondary Victims
It was Lord Oliver, in his judgment in Alcock v Chief Constable of South Yorkshire Police,
according to him the two potential victims are a passive and unwilling witness of injury
caused to others.
Control Mechanism
Lord Wilberforce in Mcloughlin v. O Brian case held that a secondary victim needs to
24
satisfy three additional control mechanisms to limit the scope:
1. Proximity of relationship with immediate victim:- That is the secondary victim was in a
close relationship of love and affection with the immediate victim; such as spouses, parents,
children and scope of the relations stated above can be expanded to fianc, grandparents etc.
2. Proximity in time and space to the events causing the psychiatric illness: According to
situation in particular case the plaintiff must have witnessed the actual accident or aftermath
but within short space of time (some liberty is provided under this criteria provided according
to situation).
3. The means by which the psychiatric illness is caused: - Information received by third party
is not considered because of being exposed to circumstances or subsequent reflection on
event is different from witnessing an event and its aftermath.
SUDDEN SHOCK requirement:
According to Lord Ackner the sudden appreciation by sight or sound of a horrifying event
which violently agitates the mind Shock must be sudden and it is presumed that it happens
when there is close relationship with victim. The accident which takes place should be
qualified enough so that a reasonable presumption can be made that a normal woman would
suffer psychiatric damage. A shock is clearly not required in cases of psychiatric illness
induced through stress at work. Thus, to sum up a defendant is liable as mentioned above.
Compensation to be paid to primary victim and secondary victims covered under control
mechanism and also to plaintiff who are victim by sudden shock; which varies from situation
24 512 US 532

P a g e | 24
to situation. Whereas NO LIABLITY LIES ON THE DEFENDANT WHERE THE CLAIMANT

IS MERELY INFORMED ABOUT THE ACCIDENT.
Present Law regarding liability of Psychiatric Damages [Foreign Jurisdictions- UK,

USA]
The law regarding the liability of psychiatric damages has been in different jurisdictions
different. In this chapter we intend to look mainly the current acts which regulate the liability
of nervous shock in:
UK: Protection of Harassments Act, 1997
USA: Based on Case laws
UK
In England the law regarding liability of nervous shock is seen to by the Protection of
Harassments Act, 1997.Under the section 1(2) of this act it is said:
For the purposes of this section, the person whose course of conduct is in question ought to
know that it amounts to harassment of another if a reasonable person in possession of the
same information would think the course of conduct amounted to harassment of the other.
The other condition which is needed to be fulfilled for claiming of damages is given under
section 7(3) which is as follows: (3) A course of conduct must involve conduct on at least
two occasions 3A) a persons conduct on any occasion shall be taken, if aided, abetted,
counseled or procured by another
(a) To be conduct on that occasion of the other (as well as conduct of the person whose
conduct it is); and
(b) to be conduct in relation to which the others knowledge and purpose, and what he
ought to have known, are the same as they were in relation to what was contemplated
or reasonably foreseeable at the time of the aiding, abetting, counseling or procuring.
Thus this act tells us that the person can claim for compensation if the criteria of harassment
and if the course of conduct as mentioned in the act is fulfilled.
Thus in the case of Wainright v Home Office where the plaintiff Alan Wainright and his

P a g e | 25
mother went to the prison to meet his stepbrother who had been imprisoned for dealing with
drugs . The police had no idea, from where he got supply of drugs and they were ordered to
strip-search everyone who visited him. Thus while strip-searching the son; the officer
accidentally touched the penis. A psychiatrist concluded that the son had suffered severe
nervous shock and thus could read or write correctly, also his mother had suffered nervous
shock which was not expressly visible. The Wainrights sued the Home Office for
compensation.
The judges held that a claim cannot be given affirmed if a merely negligent act contrary to
general principles, give rises to claim for damages for distress because its affects privacy
rather than some other interest like bodily safety.
USA
In the United States of America there is no such act for dealing with liability of psychiatric
damages- it is mainly based on case-laws. As of now forseeability is the basic core of
judgments reasoning. The courts also do not differentiate between physical and psychiatric
injury. Though the approach followed by the judges is to recognize the victim through the
criteria that the psychiatric injury suffered by the victim is not a result of a physical injury but
on the other hand for a successful claim damage should be supplemented with a physical
injury, that too within the scope of immediate risk.
A case which can thus be referred here is Consolidated Railway Corporation v Gottshall.
Here the crew member filed a suit of emotional distress on the basis that he was forced to
participate & observe the events surrounding a fellow employees death because of the
circumstances created by the authoritys negligence. This type of injury was not recognized in
Federal Employees Liability Act but as the case was passed the law stated in this was
interpreted in a different sense, hence following rules for such claims were decided by the
court the proper test for evaluating such claims was under which court determines whether
the factual circumstances provide a threshold assurance that there is likelihood of genuine
and serious emotional injury and if so evaluates the claim in light of traditional tort concepts,
with the forces resting on plaintiffs injury.
Second important aspect here is forseeability in another case called Consolidated Railway
Corporation v Alan Carisle. In this case a crew member got compensation on the basis that he
was forced to work in unfavorable conditions due to which he got emotional distress.
On the basis of these we could thus infer that even though no act is passed for psychiatric

P a g e | 26
damages in the USA judges have adjudicated on the basis of forseeability of a reasonable
woman. Thus giving it a hope of development.
Indian Approach on cases of Psychiatric Damages
In India, the area regarding the liability of tort law is not very much developed.
A well known case in this regard is the case of Lucknow Development Authority v M K
Gupta. In this case the Lucknow Authority failed to provide a flat to the plaintiff MK Gupta
in due course of time as stated by it during the time of payment for it. In such a situation the
plaintiff filed for compensation under harassment and mental agony. He was granted
compensation on the ground that the judgment socially benefited the victim and so in the part
of the judgment stating to grant relief was also paid.
From the above case we can very rightly infer that India does not have any statute regarding
liability for nervous shock. Cases regarding psychiatric damages are adjudicated on the basis
of reasonability of a prudent woman. Further many cases have come up for psychiatric
damages like the case of Ghaziabad Development Authority v Balbir Singh and Haryana
Development authority v Vijay Aggarwal where the same line of judgment was followed.
25
But this was again distinguished in the case of Ghaziabad Development Authority v UOI
where there was a contract for a plot which was delayed in giving than the date specified date
in the contract. Here the court looked the case only from the point of the contract and
followed The Specific Relief Act, 1963; without taking into account any aspect of tort. Here
the Supreme Court also said that it was improper for compensating the plaintiff for mental
languishment.
From this we can very well point out that the major cases that have come up regarding such
damages are related to Consumer Protection Act. One such case is that of Jose Philip
Mamphilli v Premier Automobile Ltd in which the maximum compensation has been paid for
mental agony, in India. The basic facts of this case are that a defective car was sold to the
plaintiff Mr. Jose as a brand new car, who suffered from nervous shock as a result of this. The
manufacturer chose to deny liability for such a trivial matter and contested the case. S N
Variacuc In his judgment quoted that There is no doubt that appellant has to suffer mental
agony in taking delivery of a defective car after having paid to the dealer for a brand new car
25 AIR 2000 SC 2003

P a g e | 27
and taking the car again and again to the dealer for repairs. The plaintiff was thus entitled to
a compensation of Rs 40,000. Here arises the question of how much compensation to be
awarded.
Now quoting the latest judgment regarding nervous shock in which damages were paid was
Bangalore Development Authority v Syndicate Bank clearly states that the amount of
compensation will depend on the fact of each situation, nature of harassment, the period of
harassment, & nature of arbitrary or capricious or negligent action of the authority which led
to such harassment." Thus just one act regulating the rules which govern a person suffering
from mental illness and authority taking care of her is governed by the Mental Health Act,
1987 which is the only legislation in India in this area of tort. The rest of the aspects are dealt
in the manner as explained above.
The fundamental questions regarding liability:-

In any review of the law on liability for psychiatric illness there are two fundamental
questions that should be addressed. First, why treat the victims of psychiatric illness
differently from those who suffer physical injury? There may well be good reasons for
regarding these forms of injury differently for the purpose of compensation, but they must be
clearly articulated and must stand up to public scrutiny. A major criticism of the present state
of the law is that in an attempt to place limits on recovery for negligently inflicted psychiatric
illness the courts have established criteria which are arbitrary in their application and, in
some respects, do not correspond with medical understanding of how such damage can occur.
Indeed, some of the present rules are so arbitrary as to be utterly indefensible, even on
grounds of policy, and are such as to bring the law into disrepute with the general public.
The second, and equally significant, question is whether psychiatric illness is a form of harm
worth protecting through the tort system. 26
In other words, do we want to compensate
plaintiffs who suffer this type of loss, and if so why? The answer seems almost self-evident,
namely, yes. The tort system already recognises the importance of compensating for
psychiatric illness since the courts do permit recovery: (a) where the plaintiff has sustained
some physical injury, no matter how trivial, and (b) where the plaintiff has not sustained
physical injury but satisfies the criteria re-stated by the House of Lords in Alcock. Moreover,
26 Cf also Taylorson v Shieldness Produce Ltd [1994] PIQR P329 and Calascione v Dixon
(1993) 19 BMLR 97.

P a g e | 28
psychiatric illness can be very serious for the person suffering from it; indeed, it can be just
as debilitating, in some instances more so, than physical injury. Understanding and
awareness of the problems caused by psychiatric illness, although by no means perfect, has
moved a long way since "shell-shocked" soldiers could be executed as deserters in the First
World War, or described in pseudo-medical terms as "lacking moral fibre." The significance
of psychiatric injury and the appropriateness of claims for psychiatric illness were recognised
over fifty years ago in Bourhill v Young [1943] AC 92 when Lord Macmillan acknowledged
that "a mental shock may have consequences more serious than those resulting from physical
impact."27
Given that psychiatric illness is a serious form of damage which is compensatable through the
tort system in some circumstances, the question is why should the law distinguish between
different plaintiffs who have suffered this form of damage as a result of the defendant's
negligence. The burden of proof that it is just, fair or reasonable to exclude certain plaintiffs
from the ambit of recovery should rest very firmly with those who would deny them
compensation. The grounds for distinguishing between plaintiffs must rest in policy rather
than principle, but before addressing the policy factors that have been invoked bear in mind
that in all cases it is assumed that both negligence by the defendant and causation of the
damage (in the sense that as a question of fact the psychiatric illness suffered by the plaintiff
can be causally attributed to the defendant's negligence) have been established. It is trite that
proof of both negligent conduct and causation is an essential element of a cause of action for
negligence.28 The policy factors invoked to exclude liability are being applied to plaintiffs
who have been injured by the defendant's fault. A further preliminary point (raised here
27 See also Lord Wilberforce in McLoughlin v O'Brian [1983] 1 AC 410; N.J. Mullany and P.R. Handford, Tort
Liability for Psychiatric Damage, 1993, p. 309: "... an injured mind is far more difficult to nurse back to health
than an injured body and is arguably more debilitating and disruptive of a greater number of aspects of human
existence."
28 The Law Commission raised the question of liability for psychiatric illness in general, but in practice it
would appear that the most difficult problems have arisen in the context of claims for negligence. The courts do
not appear to have engaged in lengthy debate about the recovery of damages for psychiatric illness arising from
other torts such as the intentional torts or, say, defamation. Provided that the plaintiff proves a genuine
psychiatric illness and the other requirements for establishing the tort are satisfied then, presumably, the
damages will reflect the true extent of the plaintiff's loss, including the psychiatric damage. Possibly this is not
seen as problematic because there is no perceived threat of opening the floodgates in such cases and the
compensation issue is simply part of the assessment of damages rather than a matter of liability or a function of
the requirement to establish a "duty of care."

P a g e | 29
simply to discount its relevance) is that there is no force in the argument that one should
compare the position of those who sustain psychiatric illness as a result of a tort with those
many people who suffer psychiatric illness as a result of non-tortious events who will have no
means of compensation for their loss, other than that provided through the social security
system, the National Health Service, private insurance or charitable provision. To suggest,
for example, that one should not extend liability for psychiatric illness through the tort system
because it simply exacerbates the anomalies and inequities that the tort system creates
between tortiously injured individuals and non-tortiously injured individuals, is to shift the
focus of the debate away from the question of psychiatric illness itself, to the value of the tort
system in general as a means of compensating the victims of personal injury, disease or even
congenital disability. That is a much larger question which the Pearson Commission
addressed in the 1970s and may well have to be revisited in the future. The point is that
objections to the tort system as a whole should not deflect one from addressing the more
limited question of recovery for psychiatric illness within the current tort system.
Policy factors relating to psychiatric illness:-

The Law Commission identified several policy factors underlying the courts' attitude to
psychiatric illness. The historical scepticism of psychiatry as a discipline in turn has
produced scepticism about the ability of the medical profession to distinguish genuine from
false claims and raised the fear that there might be a flood of fraudulent claims. The
credibility of the psychiatric profession is no longer seriously in doubt (for example, we have
the Mental Health Act 1983, which erects a whole legal structure for dealing with psychiatric
patients, curtailing their civil liberties, on the basis of the diagnosis of mental illness and
disorder), and the possibility of fraudulent claims, though clearly present, is not a factor
which should cloud the question of compensation. There is occasionally fraud in claims for
physical injury, particularly in the form of exaggerating symptoms, but this is dealt with by
the forensic process.
Perhaps carrying greater weight now is the fear that there will be a flood of genuine claims.
Indeed, it is arguable that this is now the only policy factor that can be taken seriously as a
reason for limiting the entitlement of plaintiffs to claim damages for psychiatric illness
caused by the negligence of another. There are a number of responses to the floodgates
argument. First, if the claims are genuine then it indicates that there are considerable
numbers of victims of negligence who currently go uncompensated. Similar concerns were

P a g e | 30
expressed in the nineteenth century about claims by employees in respect of injuries at work.
The courts developed the "unholy trinity" of defences, volenti non fit injuria, common
employment and contributory negligence, as a means of virtually excluding any claim by
workers against their employers. It was said that imposing such widespread liability would
have been too costly and would have impeded the growth of manufacturing industry. In
effect, injured workers were sacrificed to the national interest in promoting economic growth.
Secondly, if there were to be a flood of genuine claims for psychiatric illness who would pay
for it? Presumably, motorists, employers, consumers and tax-payers who bear the cost of
insurance premiums or the cost of self-insurance. How much would it cost? Would it add,
for example, 10 pence to the cost of a standard insurance policy, 50 pence, 10, 100? Given
that the manner in which the tort system functions in practice is to distribute the loss through
an insurance mechanism of some kind, information of this nature is essential to the arguments
about the overall cost of "opening the floodgates." No-one would now suggest that
employers should not be liable for negligence on the basis of the cost to industry of
compensating the victims of their negligence. It is simply part of the cost of doing business
which must be budgeted for. If the cost of compensating the victims of psychiatric illness
were say, 10 per insurance policy, who is to say that this is a cost that cannot or should not
be borne as a matter of legal policy, particularly when much higher costs may be imposed
(and met, however reluctantly) when market conditions dictate higher premiums or
government policy dictates that there should be a tax on insurance premiums? Given that, as
the Law Commission accepts, there is simply no concrete evidence (though plenty of "gut
reactions") as to how many claims there would be, or how expensive it would be to meet
them, the floodgates argument is simply unsubstantiated.
Thirdly, the floodgates argument sometimes concentrates on disaster cases such as

Hillsborough or the King's Cross fire, where there are a large number of potential victims
from one incident. The vast majority of claims, however, are likely to arise from much
smaller incidents where the risk of imposing crushing liability on a defendant is much less
obvious. Moreover, the number of potential claims does not even figure in the lawyer's
thinking when considering physical injury. If 5,000 people had been physically injured at the
Hillsborough stadium no one would have suggested that the sheer number of claims should
lead to a complete re-think of the manner in which physical injuries are compensated, or to
the exclusion of certain types of physical injury according to the precise manner in which
they occurred (eg by compensating say leg injuries but not arm injuries).

P a g e | 31
Finally, it is a strange principle that declares that the greater the extent of the damage caused
by the defendant the greater the need to protect the defendant from legal responsibility. In the
realm of pure economic loss, where the argument has also been employed, there may be
sound economic reasons for limiting the range of potential liability. Plaintiffs who are at risk
of suffering this form of loss are frequently in a better position to insure against the risk, and
more cheaply, than potential defendants. This argument simply does not apply in the case of
psychiatric illness, or at least if it does it proves too much, because precisely the same
argument would demonstrate that plaintiffs should insure themselves against the risk of
negligently inflicted physical injuries.29
Another objection raised to extending liability for psychiatric illness is that the defendant's
liability will be "disproportionate." It is not clear what weight this argument is meant to
have, except that it is presumably intended to apply more to disaster cases such as
Hillsborough or King's Cross than the typical road traffic or work accident. In this sense it is
almost a restatement of the floodgates argument. Moreover, under the tort system liability is
already disproportionate. It is one of the standard criticisms of negligence as reflecting a
principle of moral responsibility that the awards of damages bear no relationship whatsoever
to the degree of the defendant's fault. Once liability is established the principle of
compensating the plaintiff's actual loss takes over. If this means a claim for 1.5 million in
the case of serious brain damage to a child, then the fact that the defendant was only "a little
bit" negligent is neither here nor there. Conversely, the most gross instances of careless
conduct may produce small awards of damages where, quite fortuitously, the defendant's
conduct has caused little damage.
The Law Commission Consultation Paper considered and then dismissed two further policy
objections sometimes raised. First, there may be differences of medical opinion due to the
fluidity of psychiatric thinking and secondly, that "psychiatric illness is less serious than
bodily injury." The first point was rejected on the ground that the courts are no less capable
of weighing competing psychiatric opinion than competing expert opinion in many other
spheres, and moreover there is evidence that psychiatrists are as consistent in their diagnoses
as other physicians. As to the second, the Law Commission clearly accepts that psychiatric
29 It may also be worth pointing out that in McLoughlin v O'Brian [1983] 1 AC 410 neither Lord Bridge nor
Lord Wilberforce were much impressed by the floodgates argument.

P a g e | 32
illness is as deserving of the law's protection as physical injury. In this it is respectfully

submitted that the Commission is correct.
The final policy argument is that the plaintiff is commonly a "secondary victim." While not
expressly endorsing this view, neither does the Law Commission reject it outright, merely
commenting that it may simply be a restatement of the floodgates argument in disaster cases,
and in any event has no application where the plaintiff is a "primary victim." There are two
respects in which the classification of the victims of psychiatric illness as "secondary" victims
is flawed. First, by distinguishing between the "primary victim" who suffers physical injury
and the "secondary victim" who suffers psychiatric illness one is simply re-stating the
proposition that physical injury is somehow superior to, or morally more entitled to
compensation than, psychiatric illness. If one accepts the premise that psychiatric illness is
just as substantial and disabling as physical injury and is just as much a subject for
compensation under the tort system then the distinction between "primary victims" who
suffer physical injury and "secondary victims" who suffer psychiatric illness dissolves. A
mother who suffers psychiatric illness on witnessing the death of her child is as much a
primary victim of the defendant's negligence as the child. The causal mechanism by which
the mother sustains the damage is different, involving as it does the impact of witnessing the
event working on the mother's mind rather than, say, the impact of metal on flesh and bone in
a road traffic accident. To treat the causal mechanism as a reason for describing one victim as
"secondary" is merely to conclude that it is somehow "less deserving." A person who is
financially dependent upon a victim of personal injury (whether physical or psychiatric), such
as a dependant under the Fatal Accidents Act 1976, is more accurately described as a
secondary victim. This is the correct analogy with Lord Oliver's examples of "outmoded
concepts of the quasi-proprietorial rights of husbands over their wives, parents over their
children or employers over their menial servants" (in Alcock at [1992] 1 AC 310, 409, cited in
the Consultation Paper at para. 4.12)
Secondly, within the context of claims for psychiatric illness, the distinction drawn in Alcock
between "primary" and "secondary" victims is also false, and should not form the basis of
different treatment in law. It is a means of classifying or categorising plaintiffs in order to
explain the present legal structure, but it is not a justification for the present legal structure.
For example, in Hambrook v Stokes Bros [1925] 1 KB 141 the Court of Appeal awarded
damages for the first time to a "secondary victim," the mother who watched a runaway lorry
descend the hill where she had just left her children, as opposed to the plaintiff who

P a g e | 33
succeeded because she feared for her own safety (as in Dulieu v White & Sons [1901] 2 KB
669). Clearly, the Court considered that it would have been wrong not to compensate the
mother solicitous for her children's safety, when another mother could succeed in a claim if
she feared only for her own safety. The anomaly which this example highlights provides not
merely the justification for extending liability to "secondary victims" but also the rationale
for suggesting that the distinction between "primary" and "secondary" victims does not bear
logical scrutiny. Given that in Page v Smith [1995] 2 All ER 736 a majority of the House of
Lords concluded that in the case of a "primary" victim psychiatric damage need not even be
foreseeable provided physical injury to the plaintiff is foreseeable (even though the physical
injury does not in fact occur), the distinction between the "selfish mother" and the mother
solicitous for her children's welfare appears even more untenable. The "selfish mother" will
recover for her psychiatric illness almost automatically, whereas the "solicitous mother" will
have to jump all the hurdles of proximity in time and space, the suddenness of the event, the
aftermath, the closeness of the tie of love and affection etc. Although, on the facts of the
hypothetical example given in Hambrook v Stokes Bros she would certainly satisfy these
additional criteria, it is simply absurd that this artificial legal categorisation, a product of the
history of the law's development, should produce discrete tests for recovery of damages. A
"primary" victim, whether it be a person who fears for her own safety (Dulieu v White &
Sons [1901] 2 KB 669), a rescuer (Chadwick v British Railways Board [1967] 1 WLR 912) or
an involuntary participant in the events (Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd's
Rep 271) has suffered psychiatric illness as a consequence of what (s)he has
witnessed/experienced, just as the relatives in Alcock suffered psychiatric illness as a result of
what they had witnessed/experienced. They may have observed the events at close quarters,
but nonetheless the mechanism by which the psychiatric illness was caused is essentially the
same in the case of both "primary" and "secondary" victims. What possible reason can there
be for distinguishing between them?
In the "rescuer" cases there is clearly a different strand of policy at work, in that the law seeks
to encourage acts of valour by individuals in attempting to rescue others put at risk by a
negligent defendant, or at least the law should not seek to discourage such conduct by
denying the rescuer compensation for injury incurred in the act of rescue. But in seeking to
promote this worthy objective the law entirely abandons the notion of the closeness of the
relationship between plaintiff and victim. This is then "explained" by putting the rescuer into
the artificial legal category of "primary" victim, despite the fact that in Chadwick the

P a g e | 34
plaintiff's psychiatric illness came as a reaction to the events he had witnessed, involving
injury to others but no fear of injury to himself. The plaintiff was undoubtedly closer in time
and space than the plaintiffs in Alcock, (as indeed might be a mere bystander) but he could
not possibly satisfy a test based on relationship. Calling the plaintiff a "primary victim" does
not assist the analysis since there must still be some rational justification for permitting such
plaintiffs to recover while denying the claims of relatives. The categorisation merely states a
conclusion rather than a basis for the distinction. The arbitrary nature of the "rescuer
principle" is only highlighted by the courts difficulty in deciding precisely who qualifies as a
rescuer (see McFarlane v E.E. Caledonia Ltd and Frost v Chief Constable of South Yorkshire,
The Times, July 3, 1995, QBD).
The options for reform :- 30
In reviewing the law on liability for psychiatric illness there are, in general terms, four
options:
(1) abolish all liability for psychiatric illness in the absence of physical injury;
(2) leave the present rules on recovery as they are;
(3) amend some of the most arbitrary rules, generally by removing restrictions on
recovery thereby extending liability, though retaining some restrictions;
(4) treat liability for psychiatric illness in exactly the same way as liability for
physical injury.
The first option, though not without support,31 is rightly rejected by the Law Commission. In
some respects it is a sad commentary that at the end of the twentieth century the question of
whether there should continue to be liability for negligently inflicted psychiatric illness that
does not arise from physical injury to the plaintiff even needs to be asked. The option of
leaving the present rules in place is also rejected. The Commission takes the view that there
30I am not seeking here to set out in detail the Law Commission's provisional views, even if that were possible,
merely the broad thrust of their thinking as it appears in the Consultation Document.
31 See J. Stapleton, 'In Restraint of Tort' in P. Birks (ed), The Frontiers of Liability (1994) Vol 2, pp94-96.

P a g e | 35
is a need for reform. This must be right. We currently have the worst of all worlds in which
arbitrary lines are drawn for "policy reasons" (albeit that the policies are not always clearly
articulated, even less justified by careful analysis) but the lines do not produce certainty.
Moreover, reform must come in the form of legislation. The law on liability for psychiatric
illness is entirely judge-made. The anomalies and arbitrary results which are the hallmark of
the law in this area are not a good advertisement for judicial law-making, and the courts are
unlikely to be able to free themselves from the intellectual morass into which they have
wandered, given the restrictive view taken in Alcock.
The Law Commission has taken the provisional view that the third option is the appropriate
route. Whilst rejecting a return to a requirement of actual or apprehended physical injury to
the plaintiff, the Commission accepts that there should be special limitations over and above
reasonable foreseeability where the defendant has negligently injured or imperiled someone
other than the plaintiff. This necessarily implies acceptance of one or more of the policy
factors. Nonetheless, the Law Commission's principles of liability would extend the scope of
liability by abandoning the requirement of closeness in time and space, and perception
through one's own unaided senses, where there is a close tie of love and affection between the
plaintiff and the "primary" victim. This would effectively abolish the artificial distinction
between the "aftermath" and the "immediate aftermath," but it would also open up a much
wider range of potential plaintiffs than those whose claims were rejected in Alcock.
Witnessing events through live television broadcasts would qualify, as indeed would simply
being told about the events subsequently. This proposal removes two of the four planks
restricting recovery in Alcock. The Commission apparently wishes to retain the first plank,
the closeness of the tie of love and affection, while seeking views on whether there should be
a fixed list of relationships that would qualify, a list creating a rebuttable presumption of
closeness, no list, or some other variant. The Commission appears to be agnostic about the
fourth plank, the requirement that the plaintiff's psychiatric illness must be "shock induced."
It is arguable that this is the most anomalous of all the current restrictions. It appears to be a
product of the way in which the law on "nervous shock" developed (the phrase itself
implying a sudden event), and in medical terms reflects the understanding of a previous age.
Even if a person who sustains trauma in the form of a sudden assault on the nervous system is
more likely to suffer psychiatric illness, this should be a matter for causation. It is not a
reason for excluding the plaintiff who develops a psychiatric illness over a period of time, for
example by watching a child gradually die in a hospital bed (see Sion v Hampstead Health

P a g e | 36
Authority [1994] 5 Med LR 170; and Taylorson v Shieldness Produce Ltd [1994] PIQR
P329). There is no greater moral worth in suffering psychiatric illness in reaction to a sudden
event than suffering a similar illness in response to events extended over a period of time.
The fourth, and most radical, option would be to abolish the distinction between the
principles of liability which apply to claims for physical injury and claims for psychiatric
illness, whether or not arising from physical injury to the plaintiff. This would remove any
special limitations over and above reasonable foreseeability of the damage, assuming, of
course, that the plaintiff can prove both negligence and causation. It is submitted that this is
the preferable option, for a number of reasons. First, the present state of the law reflects
discredit upon the legal system by drawing arbitrary distinctions, for "policy" reasons, which
are extremely difficult to defend on rational grounds. Why are we selecting certain plaintiffs
as worthy of compensation while denying others? Why should Mrs. McLoughlin succeed,
while Mr. Sion or Mr. and Mrs. Taylorson are denied compensation? Even policy should
seek to draw lines that are intellectually defensible. Moreover, the policy line is drawn in
such a way as to produce uncertainty in the law, which almost invites litigation.
Secondly, the floodgates argument (which is perhaps the strongest of the policy grounds for
restricting liability) is not persuasive, at least in the absence of empirical evidence that the
number of claims for genuine psychiatric illness (as opposed to grief or distress) will far
outstrip the ability of defendants, through their insurance arrangements, to meet the costs.
Thirdly, the ordinary principles of negligence provide sufficient means for controlling the
extent of liability. The psychiatric illness must be foreseeable, and the plaintiff must still
prove negligence and, importantly, causation of a genuine psychiatric illness. To some extent
this involves placing trust in the ability of the medical profession to identify causal
mechanisms in cases of psychiatric illness, but it must be remembered that the plaintiff
always has the burden of proof, and where there is doubt, on the balance of probabilities, the
claim will fail.
Finally, and most importantly, psychiatric illness is a form of loss which is equally as
important and worthy of protection as physical injury. It is not a secondary injury, and the
plaintiffs are not "secondary victims." The causal mechanism by which plaintiffs sustain
psychiatric illness is different from that by which plaintiffs sustain physical injury, in that it
involves the workings of the mind, but that does not render their injuries any less real or less
disabling. Moreover, in the case of physical injuries leading to psychiatric illness, eg

P a g e | 37
depression, the causal mechanism is the same as cases not involving physical injury (ie the
impact of the event upon the plaintiff's mind), and yet it is accepted without question that this
loss will be compensated as a matter of course (provided negligence and causation are
established). Thus, the distinction between causal mechanisms which the different approach
to physical and psychiatric damage appears to suggest is significant in terms of liability rules,
is not universally applied.
Further, the present law on recovery for psychiatric illness in the absence of physical injury
distinguishes between "primary" and "secondary" victims despite the fact that the causal
mechanism is essentially the same. Thus, in so far as an "involuntary participant" in the
event suffers foreseeable psychiatric illness as a consequence of the events then the plaintiff
should succeed, but the "involuntary participant" should not recover damages simply by
virtue of being classified as a "primary victim." The plaintiff suffers psychiatric illness as a
result of the effect on the mind of certain events, which may or may not involve
"participation." A relative of a deceased person who did not witness the death is "involved"
in the consequences of the events, and the psychiatric illness is also a product of the effect on
the mind of the events. The precise causal mechanism by which these plaintiffs sustain their
psychiatric illness should not form the basis of a legal distinction which has such profound
consequences as the ability to recover damages. There is no inherent moral or ethical
superiority in one or other of these causal mechanisms (eg the fact that the involuntary
participant may feel "guilt"). Mr. Chadwick, for example, suffered psychiatric illness as a
consequence of what he had witnessed (Chadwick v British Railways Board [1967] 1 WLR
912), just as the relatives in Alcock suffered psychiatric illness as a result of what they had
witnessed. He may have been more directly involved, and witnessed the events at close
quarters, but nonetheless the mechanism by which his injury was caused was essentially the
same as that of the plaintiffs in Alcock. The fact that he was a "rescuer" does not alter this. If
it is said that this is a more likely basis upon which a person might suffer psychiatric illness
then this will simply be reflected in the number of plaintiffs who are able to prove causation.
If the Law Commission were to adopt the fourth option most of the specific issues that the
Consultation Document raises for debate would disappear. There would be no need to
identify a fixed list of qualifying relationships for plaintiffs. The closeness of the tie of love
and affection would clearly be a factor to be considered when assessing causation, in that the
closer the tie the more likely there is to be a causal link. But other than that, requiring
plaintiffs to prove the quality of their emotional ties (or giving the defendant an incentive to

P a g e | 38
disprove them) is intrusive and likely to lead to an unedifying spectacle in the courts.
Moreover, it removes the arbitrary distinction between so called "primary" and "secondary"
victims. If Mr. Chadwick can recover without any relationship whatsoever to the victims of
the train accident, it is difficult to see why relatives and friends must prove the quality of their
relationship.
The closer the emotional tie the easier it will be to establish that the psychiatric illness was
reasonably foreseeable. Thus, it may come to the point that in some instances foreseeability
can be assumed (just as a motorist who drives a vehicle on the road carelessly can readily
foresee the risk of physical injury to other road users). Nor would there be any difficulty in
dealing with the claims of bystanders. If a bystander suffered a genuine psychiatric illness,
proved the causal link between the event and the illness and was not abnormally sensitive,
then there is no reason in principle for objecting to recovery. The numbers who would satisfy
these criteria would probably be relatively small. Given that a bystander should be entitled to
recover for psychiatric illness in some circumstances there would be no real need to attempt
to define what constitutes a "rescue." If a rescuer satisfies the requirements of a genuine
psychiatric illness and proof of the causal link between the event and the illness (s)he should
recover. While the policy reasons for looking favourably upon rescuers are well-understood
they should not form a discrete category of plaintiff (although in practice those same policy
reasons may persuade a court to look favourably upon the rescuer's case in circumstances
where there might be some slight doubt, eg as to the causal link).
Should professional rescuers be treated differently? There is an argument for treating

professional rescuers differently in all cases where they sustain injury, whether physical or
psychological, in the course of a rescue,32 but given that in Ogwo v Taylor [1987] 2 WLR 988
the House of Lords concluded that the same principles of liability should apply to a
professional rescuer who sustains physical injury as to any other claim for personal injury,
there would seem to be no good reason for distinguishing psychiatric injury. On the other
hand, causation arguments would appear to have some force here. The fact that professional
rescuers will to some extent have become hardened to witnessing horrific events may make it
more difficult to prove causation, and the fact that they are likely to have witnessed several
such events may make it more difficult to attribute psychiatric illness to a specific event.
Clearly, this is a matter of degree.
32 See MA Jones, 'Compensating Professional Rescuers' (1988) 104 LQR 195-198.

P a g e | 39
Under the tort of negligence foreseeability is an essential element of culpability, and therefore
the requirement that the plaintiff be of reasonable fortitude should be retained, as an aspect of
foreseeability. However, just as defendants are required to assume that the general public will
include people with a visual impairment (Haley v London Electricity Board [1965] AC 778)
so also it must be recognised that some people are more vulnerable to suffering psychiatric
illness. This, however, is foreseeable. The fact that some relatives do not suffer psychiatric
illness as a result of witnessing the death of a loved one, for example, does not make it
unforeseeable that others would suffer a psychiatric reaction. Where, on the other hand, the
reaction of the plaintiff is due to some peculiar abnormality which could not reasonably be
predicted (eg where a plaintiff suffers psychiatric illness because the defendant carelessly ran
over a pen33) then the principle of fault liability suggests that the defendant should not be held
responsible. Since the Consultation Paper was published the House of Lords has held that
where physical injury to the plaintiff was foreseeable, so that the plaintiff can be regarded as
a "primary" victim, the defendant must take the plaintiff "as he finds him" with respect to any
psychiatric damage which results, even if physical injury did not in fact occur: see Page v
Smith [1995] 2 All ER 736. This would appear to eliminate the requirement for reasonable
fortitude, because the plaintiff succeeds irrespective of the state of his "phlegm" if physical
injury was foreseeable. This decision has the unwelcome effect of reinforcing the present
arbitrary distinction between physical injury and psychiatric injury, albeit by making it easier
to recover for psychiatric illness where physical injury was merely foreseeable. Unless all
forms of personal injury which are a direct consequence of the negligence are to be regarded
as a foreseeable consequence of any other form of personal injury, the requirement that the
plaintiff's psychiatric illness should be a foreseeable consequence of the defendant's
negligence should be retained. If, on the other hand, Page v Smith has effectively restored Re
Polemis and Furness, Withy & Co Ltd [1921] 3 KB 560 as the test of remoteness of damage
in cases of personal injury then it is perfectly logical to treat all forms of personal injury as
foreseeable as a result of the occurrence of any other form of personal injury. In these
circumstances there is no need to distinguish between types of personal injury for the purpose
of remoteness of damage, and therefore no need to ask whether psychiatric illness was
foreseeable if physical injury to the plaintiff was foreseeable.
33This example was cited at the SPTL Torts Group Seminar on the Consultation
Paper No 137, held at Bristol University in June 1995.

P a g e | 40
Under the present law it is distinctly odd that it could be easier for a plaintiff to recover
damages for psychiatric illness consequent upon damage to property than it is for plaintiffs
who suffer such injury consequent upon physical injury to another person, which appears to
be the effect of Attia v British Gas [1987] 3 All ER 455. If liability for psychiatric illness
were to be based upon the same test as liability for physical injury then there would be no
difficulty applying this test to cases where the psychiatric illness is the consequence of
witnessing property damage. If, however, some additional restrictions on recovery for
psychiatric illness were to be considered essential then it is difficult to see why any plaintiff
should succeed in a case such as Attia when plaintiffs who suffer psychiatric illness as result
of physical injury to another person are excluded, whatever the circumstances of that
exclusion. In other words, as long as any plaintiff is denied recovery on policy grounds when
their illness is the product of physical injury to a third party it would not be just, fair or
reasonable to permit recovery arising from witnessing property damage. Any other rule
would appear to suggest that the law is more willing to protect the consequences of property
damage than it is the consequences of personal injury, a view which reverses the priorities
that most people would want to support.
The final issue concerns liability for negligent communication of bad news to the plaintiff.
The Law Commission's provisional view is that the existence of a duty of care should not rest
on foreseeability alone. There is no good reason to distinguish between negligent statements
which produce physical injury (as eg where the defendant says "the wall is safe", when the
wall subsequently collapses on the plaintiff) and negligent statements which produce
psychiatric illness (see eg Jinks v Cardwell (1987) 39 CCLT 168, Ontario High Court).
Moreover, excluding such claims when actions in respect of economic loss are available
under Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 would be perverse.
More problematic is the situation where the statement is true. In principle there is no obvious
reason for excluding such claims where the negligence consists of breaking the news in such
a way as to foresee ably cause psychiatric illness.34 The problem from the plaintiff's
perspective will be to prove causation, namely that it was the manner of the communication
rather than the contents of the communication which caused the illness. It seems so unlikely
34See eg Furness v Fitchett [1958] NZLR 396 where it was accepted that a
doctor may be under a duty of care to his patient not to inform her about her
medical condition, and the defendant was held liable for harm to the plaintiff's
psychiatric health even though the information was true.

P a g e | 41
that a plaintiff will be able to establish this that any risk to those charged with conveying bad
news would be virtually non-existent.
CONCLUSION:-
The concept of psychiatric harm has, as illustrated in this essay, gone through plenty of
transformations and modifications in various cases but still not reached a satisfactory level
where it can be unquestionably and universally accepted by all. Some inconsistencies still
persist in the awarding of damages. One way to do away with these inconsistencies would be
to widen the category of secondary victims by removing the need for them to be present at

P a g e | 42
the scene or its aftermath. The requirement for a sudden shocking event should also be
abolished.
The test of reasonable foreseeability ought to be based on informed judicial opinion by
courts, not expert psychiatrists; over-reliance on medical categories can be as misleading as
fixed legal principles. A more principled approach can also be adopted by removing the
artificial barriers to recovery applied to secondary victims (this will expand the range of
potential claimants), as well as by requiring primary victims and claimants who suffered
physical injury to show that psychiatric harm was foreseeable in the circumstances (this will
narrow the range of potential claimants).
Thus we can conclude that in various jurisdictions the law was although different, yet it was
not very wide apart. We see that in UK the judges were initially quite reluctant to compensate
victims very easily. The law was mainly based on impact theory concerning victims
directly related to the accident. Later on of course the secondary victims were also taken into
account. Also now a law has been enacted by the British Parliament Protection of Harassment
Act, 1997 to ensure the correct compensation of such victims. Whilst we see that in USA the
law is still entirely based on case-laws. Before like the UK, here too only direct victims were
compensated- those in the zone of danger. As happened in UK this was also overruled in a
case [Dillion v Legg] which enabled the indirect victims to be compensated. The case was a
little different in India. The judges here were a bit more generous in giving compensation.
But this was due to the fact that cases arose quite late, and by that time scientific knowledge
of woman was much advanced than it was during the early cases in UK. In India the Mental
Health Act, 1987 was also later on passed that looked into cases on mental agony and
harassment.
After this briefing about all the aspects of liability of psychiatric damages we would like to
suggest that firstly, this law need to be codified keeping in mind all the situations that can
take place and flexible enough to provide compensation for victim in unforeseeable
situations. Also basis on which it needs to be just on should be wided. Its scope should
expand. For instance victim who is subject to gradual torture also suffer some mental
imbalance, secondary victim who is not in any relation with the victim suffer a shock because
act he saw was so grieve in nature; so on and so for. Further people should be made aware
about this. In context to India we already have an act on how to maintain mental patients if
we can think about this we need to first fix liability of their expenses. On the larger picture,
humanitarian institutions need to stretch there hand, convention, protocol or a universal act

P a g e | 43
would act much better. For this kind of liability in law is still developing I hope small chances
as stated above will be of great help.
Finally, our response to claims for psychiatric harm should be more intuitive. Rather than
focusing on categorisation of victims, we must put more emphasis on notions like fault and
culpability on the defendants part. This would take us back to the theory of foreseeabilty.
Hence, the evolution in the matter has been remarkable but there are some issues which have
to be addressed so as to have a consolidated and concrete law on the claims of psychiatric
damage. For that, more research should be carried out in this area of law.
BIBLIOGRAPHY
Books Referred:
The Law of Torts : Justice G P Singh
Winfield & Jolowicz : WVH Rogers

P a g e | 44
Articles Referred:
The Mental Health Act, 1987
- Law comission Reports referred :
Liability for Psychiatric Illness , Law com no 249
Websites:-
-www.wickipedia.com
-www.legalserviceindia.com
-www.googlebooks.com
-www.scribed.co.in
- www. Legallyindia.co.in
- www.myspace.co.in

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NERVOUS SHOCK AND LIABILITIES

SUBJECT: HEALTH LAW

5TH YEAR XTH SEMESTER

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

Psychiatric Injury: Evolution of a concept7

The three test determining Nervous Shock15

Evolution of cases regarding Psychiatric Damages.20

Present law regarding liability of Psychiatric Damage..24

Fundamental question on cases of Psychiatric damage regarding liability27

Policy factors relating to Psychiatric illness29

Options for reform34

NERVOUS SHOCK AND LIABILITIES

NERVOUS SHOCK AND LIABILITIES

NERVOUS SHOCK AND LIABILITIES

NERVOUS SHOCK AND LIABILITIES

NERVOUS SHOCK AND LIABILITIES

Psychiatric Injury Evolution of a concept:

NERVOUS SHOCK AND LIABILITIES

5 Law Commission Report, U.K. 249

NERVOUS SHOCK AND LIABILITIES

8 Law Commission Report, U.K. 249

NERVOUS SHOCK AND LIABILITIES

A. A Recognizable Psychiatric Illness

B. Test of Reasonable Forseeability

9 (1888) 13 App Cas.222

NERVOUS SHOCK AND LIABILITIES

History of Psychiatric Damages

Origin of Psychiatric Damages:

10 (1964) 1 WLR 1317

NERVOUS SHOCK AND LIABILITIES

Intentionally inflicted nervous shock:-

Negligently inflicted nervous shock:-

NERVOUS SHOCK AND LIABILITIES

11 Bourhill v Young [1943] AC 92, 110, per Lord Wright

NERVOUS SHOCK AND LIABILITIES

It must be reasonably foreseeable that a person of "normal fortitude" in the claimants

NERVOUS SHOCK AND LIABILITIES

The Three-Part Test of determining Nervous Shock:-

12 Bourhil v. Young (1943) AC 92

NERVOUS SHOCK AND LIABILITIES

13 (1968) 29 ALR 3d 1316

NERVOUS SHOCK AND LIABILITIES

16 Thing v La Chusa 1989 48 Cal 3d 644

NERVOUS SHOCK AND LIABILITIES

17 1994 512 US 532, 544,547,548

NERVOUS SHOCK AND LIABILITIES

18 Alock v. Chief Constable of South Yorkshire Police (1992) 1 AC 310-410

NERVOUS SHOCK AND LIABILITIES

Evolution of cases regarding psychiatric damages:-

Foreign Jurisdictions: U.K.

NERVOUS SHOCK AND LIABILITIES

20 Law Comission Report, U.K. 249

NERVOUS SHOCK AND LIABILITIES

Determination of Plaintiff and Defendant

22 AIR 2004 SC 2141

23 AIR 2007 SC 2198

NERVOUS SHOCK AND LIABILITIES

satisfy three additional control mechanisms to limit the scope:

SUDDEN SHOCK requirement:

NERVOUS SHOCK AND LIABILITIES

to situation. Whereas NO LIABLITY LIES ON THE DEFENDANT WHERE THE CLAIMANT

Present Law regarding liability of Psychiatric Damages [Foreign Jurisdictions- UK,

UK: Protection of Harassments Act, 1997

USA: Based on Case laws