Nervous Shock
Chapter Forty-Eight
Syllabus topic 2.5, "Joint Tort-Feasors, Nervous Shock and Malicious abuse of Legal Process."
Pages 196 to 198 of 434
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
| Primary victim | Secondary victim | |
|---|---|---|
| Who he is | Within the range of foreseeable physical injury, or a rescuer | Suffers through what happens to another |
| What he must prove | A recognisable psychiatric illness, and that injury of some kind was foreseeable | The illness, plus the three control mechanisms |
| Close tie needed? | No | Yes |
| Presence at the scene needed? | He was there by definition | Yes, at the event or its immediate aftermath |
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.
Nervous Shock
Where the claim actually appears in India
Indian courts do not often use the label. The same interest is protected in three other ways, and a good answer names them.
As part of the damages in a personal injury or fatal accident claim. Section 168 of the Motor Vehicles Act 1988 requires the Claims Tribunal to award compensation which appears to it to be just, and mental suffering, loss of amenities and loss of consortium are heads within it, as chapter [Computing Just Compensation] shows.
As compensation for mental agony under the consumer law. Section 39 of the Consumer Protection Act 2019 empowers a Commission to direct payment of compensation, and Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787, holds that a Commission may award compensation for harassment, mental agony and oppression caused by a public functionary, on a finding recorded carefully on convincing material, and that the amount is to be recovered from the officers responsible where it is paid out of public funds.
As compensation in a writ petition for the violation of a fundamental right, which chapter [Constitutional Tort] deals with.
A worked example
A school bus overturns. Consider five claimants.
A child in the bus who is uninjured but develops a diagnosed anxiety disorder. He is a primary victim: he was within the range of foreseeable physical injury, and the illness is recoverable.
A mother who sees the crash from the pavement and develops a psychiatric illness. She is a secondary victim, and she satisfies all three control mechanisms: a close tie, presence at the event, and perception by her own senses.
A father who is told by telephone and develops the same illness. He fails the second and third mechanisms and would not recover as a secondary victim.
A passer-by with no connection to any child who is badly shaken. He fails the close-tie requirement, and mere distress is not a psychiatric illness in any event.
A rescuer who pulls children out and is left with a diagnosed condition. He is treated as a primary victim, and chapter [Volenti Non Fit Injuria] explains why consent is no answer to him either.
What it does NOT mean
Grief is not compensable. The plaintiff must prove a recognisable psychiatric illness.
It does not require physical impact. That was the earliest rule and it has gone.
It is not available to everyone who was upset. The control mechanisms exist precisely to limit the class.
It is not a separate tort. It is a kind of damage in the tort of negligence, so duty, breach and causation must all be proved.
Nervous Shock
Quick revision
- Nervous shock is a claim for a recognisable psychiatric illness caused without physical impact.
- Grief, fright and distress are not enough.
- Development: no recovery without impact, then fear for one's own safety, then fear for a close relative witnessed, then the modern control mechanisms.
- Primary victim: within the range of foreseeable physical injury, or a rescuer; foreseeability of injury of some kind suffices.
- Secondary victim: close tie of love and affection, proximity in time and space to the event or its immediate aftermath, and perception by his own senses.
- In India the interest is protected mainly through the heads of compensation: section 168 of the Motor Vehicles Act 1988, section 39 of the Consumer Protection Act 2019, and compensation in a writ petition.
- Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787: compensation for harassment and mental agony against a public authority, recoverable from the erring officers.
Test yourself
1. What is nervous shock and what must a plaintiff prove? Nervous shock is the traditional name for a claim in negligence for psychiatric injury caused otherwise than by physical impact, that is, by what the plaintiff saw, heard or feared. He must prove a recognisable psychiatric illness, medically identified, and not merely grief, fright, anxiety or distress, however genuine. If he is a primary victim, that is, someone who was himself within the range of foreseeable physical injury or who acted as a rescuer, it is enough that injury of some kind was foreseeable. If he is a secondary victim, suffering through what happened to another, he must in addition satisfy three control mechanisms: a close tie of love and affection with the person endangered, closeness in time and space to the accident or its immediate aftermath, and perception of the event by his own unaided senses rather than through being told of it.
2. Why did the law resist claims for nervous shock, and how were the objections met? Three objections were raised: that such injuries are difficult to prove and easy to feign; that a single accident may be witnessed by hundreds, so that liability would be indeterminate; and that grief at a death is a universal incident of life which the law cannot compensate. The law met all three with a single requirement, that the plaintiff prove a recognisable psychiatric illness rather than emotion, which answers the proof objection by demanding medical evidence and the floodgates objection by excluding those who are merely upset. The control mechanisms for secondary victims then limit the class further, by requiring a close relationship, presence at the event or its immediate aftermath, and direct perception.
3. How is this interest protected in Indian practice? Less by a distinct tort than by the heads of compensation in the statutory claims. Section 168 of the Motor Vehicles Act 1988 requires a Claims Tribunal to award compensation which appears to it to be just, and mental suffering, loss of amenities and loss of consortium are recognised heads within it. Section 39 of the Consumer Protection Act 2019 empowers a Commission to order compensation, and in Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787, the Supreme Court held that a Commission may award compensation for harassment, mental agony and oppression caused by a public functionary, on a finding recorded carefully and not lightly, and that where the money comes from public funds the department must recover it from the officers responsible. Compensation in a writ petition for the violation of a fundamental right is the third route.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.