Nervous Shock

In one line

Nervous shock is a claim for a recognisable psychiatric injury caused by what the plaintiff saw, heard or feared, without any physical impact on him.

In the wording a student can write in an exam: nervous shock is the term used for a claim in negligence for psychiatric injury caused otherwise than by physical impact; the plaintiff must prove a recognisable psychiatric illness and not merely grief, fright or distress; a primary victim, who was himself within the range of foreseeable physical injury, recovers if injury of some kind was foreseeable, while a secondary victim, who suffers through what happened to another, must in addition show a close tie of love and affection with the person endangered, closeness in time and space to the event or its immediate aftermath, and that the shock came through his own sight or hearing of it.

Why the law was reluctant

Three reasons were given for refusing such claims, and all three still shape the rules.

Proof. An injury that leaves no mark is harder to prove and easier to fabricate.

Floodgates. One accident may be witnessed by hundreds, and every one of them might sue.

Where to stop. Grief at a death is universal, and if grief were compensable the law would be compensating an ordinary incident of life.

The law's answer to all three is the requirement of a recognisable psychiatric illness: a medically identified condition, diagnosed by evidence, and not sorrow, fright or anxiety however genuine.

How the law developed

Stage one. The earliest decisions refused a claim for shock unaccompanied by physical impact at all.

Stage two. Recovery was allowed where the plaintiff had reasonably feared for his own safety, that is, where he was himself in the zone of danger.

Stage three. Recovery was extended to a plaintiff who feared for the safety of a close relative and witnessed the event.

Stage four. The modern control mechanisms were settled for secondary victims: a close tie of love and affection, proximity in time and space to the accident or its immediate aftermath, and perception by the plaintiff's own unaided senses rather than by being told about it.

Primary and secondary victims

The "immediate aftermath" is the boundary that produces most of the litigation: a parent who reaches the hospital while the injuries are still untended may be within it, and one who is told by telephone the next day is not.