Nervous shock
Encyclopedia
Nervous shock is a term used in English law
to denote psychiatric
illness or injury inflicted upon a person by intentional or negligent
actions or omissions of another. It is most often applied to psychiatric
disorders triggered by witnessing an accident, for example an injury caused to one's parents or spouse. Although the term "nervous shock" has been described as "inaccurate" and "misleading", it continues to be applied as a useful abbreviation for a complex concept. The possibility of recovering damages
for nervous shock, particularly caused by negligence
, is strongly limited in English law.
, such as anxiety neurosis or reactive depression. Damages for bereavement suffered as a result of the wrongful death of a close one are available under the Fatal Accidents Act 1976
, while courts can also award damages for "pain and suffering" as a result of physical injury.
's negligence, he must prove all of the elements of the tort of negligence
:
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.
not to cause nervous shock, as well as causation and remoteness:
decisions arising from the Hillsborough disaster
:
and a third House of Lords decision in a case arising from a road traffic accident:
See also McLoughlin v O'Brian [1982] 2 All ER 298
, where the House of Lords outlines the concept of "immediate aftermath" of the accident and Attia v British Gas plc
[1988] QB 304, where the Court of Appeal considered whether damages for nervous shock as a result of witnessing the destruction of property were recoverable.
has drafted a proposal, suggesting i.a. that the requirements of proximity in time and space to the accident and the "own unaided senses" rule should be abolished.
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
to denote psychiatric
Psychiatry
Psychiatry is the medical specialty devoted to the study and treatment of mental disorders. These mental disorders include various affective, behavioural, cognitive and perceptual abnormalities...
illness or injury inflicted upon a person by intentional or negligent
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
actions or omissions of another. It is most often applied to psychiatric
Psychiatry
Psychiatry is the medical specialty devoted to the study and treatment of mental disorders. These mental disorders include various affective, behavioural, cognitive and perceptual abnormalities...
disorders triggered by witnessing an accident, for example an injury caused to one's parents or spouse. Although the term "nervous shock" has been described as "inaccurate" and "misleading", it continues to be applied as a useful abbreviation for a complex concept. The possibility of recovering damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
for nervous shock, particularly caused by negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
, is strongly limited in English law.
Definition
To amount in law to "nervous shock", the psychiatric damage suffered by the claimant must extend beyond grief or emotional distress to a recognised mental illnessMental illness
A mental disorder or mental illness is a psychological or behavioral pattern generally associated with subjective distress or disability that occurs in an individual, and which is not a part of normal development or culture. Such a disorder may consist of a combination of affective, behavioural,...
, such as anxiety neurosis or reactive depression. Damages for bereavement suffered as a result of the wrongful death of a close one are available under the Fatal Accidents Act 1976
Fatal Accidents Act 1976
The Fatal Accidents Act 1976 is an Act of Parliament of the Parliament of the United Kingdom, that allows relatives of people killed by the wrongdoing of others to recover damages....
, while courts can also award damages for "pain and suffering" as a result of physical injury.
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 defendantDefendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
's negligence, he must prove all of the elements of the tort of negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
:
- The existence of a duty of careDuty of care in English lawIn English tort law, an individual may be owed a duty of care by another, to ensure that they do not suffer any unreasonable harm or loss. If such a duty is found to be breached, a legal liability is imposed upon the duty-ower, to compensate the victim for any losses they incur...
, i.e. the duty on the part of the defendant not to inflict nervous shock upon the claimant; - A breach of that dutyBreach of duty in English lawIn English tort law, there can be no liability in negligence unless the claimant establishes both that they were owed a duty of care by the defendant, and that there has been 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 personReasonable personThe reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...
in the circumstances. - A causal linkCausation (law)Causation is the "causal relationship between conduct and result". That is to say that causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the actus reus from which the specific injury or other effect arose and is...
between the breach and the psychiatric illness, i.e. the nervous shock was the direct consequence of the defendant's breach of duty; - The nervous shock was not too remoteRemotenessRemoteness in English law is a set of rules in both tort and contract, which limits the amount of compensatory damages for a wrong.In negligence, the test of causation not only requires that the defendant was the cause in fact, but also requires that the loss or damage sustained by the claimant was...
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
Duty of care in English law
In English tort law, an individual may be owed a duty of care by another, to ensure that they do not suffer any unreasonable harm or loss. If such a duty is found to be breached, a legal liability is imposed upon the duty-ower, to compensate the victim for any losses they incur...
not to cause nervous shock, as well as at causation and remoteness.
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.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 careDuty of care in English law
In English tort law, an individual may be owed a duty of care by another, to ensure that they do not suffer any unreasonable harm or loss. If such a duty is found to be breached, a legal liability is imposed upon the duty-ower, to compensate the victim for any losses they incur...
not to cause nervous shock, as well as causation and remoteness:
- 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 presumedRebuttable presumptionBoth in common law and in civil law, a rebuttable presumption is an assumption made by a court, one that is taken to be true unless someone comes forward to contest it and prove otherwise. For example, a defendant in a criminal case is presumed innocent until proved guilty...
to exist only between parents and children, as well as spouses and fiancés. 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 claimant’s 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" ruleEggshell skullThe eggshell skull rule is a well established legal doctrine used in some tort law systems, with a similar doctrine applicable to criminal law.-The law:...
). 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).
Leading cases
Currently leading cases include two House of LordsJudicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
decisions arising from the Hillsborough disaster
Hillsborough disaster
The Hillsborough disaster was a human crush that occurred on 15 April 1989 at Hillsborough, a football stadium, the home of Sheffield Wednesday F.C. in Sheffield, England, resulting in the deaths of 96 people, and 766 being injured, all fans of Liverpool F.C....
:
- Alcock v Chief Constable of South Yorkshire Police [1992] 1 A.C. 310Case citationCase citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
- White v Chief Constable of South Yorkshire Police [1999] 2 A.C. 455Case citationCase citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
and a third House of Lords decision in a case arising from a road traffic accident:
- Page v Smith [1996] A.C. 155Case citationCase citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
See also McLoughlin v O'Brian [1982] 2 All ER 298
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
, where the House of Lords outlines the concept of "immediate aftermath" of the accident and Attia v British Gas plc
Attia v British Gas plc
Attia v British Gas Plc [1988] QB 304 is an English tort law case, establishing that nervous shock from witnessing the destruction of personal property may be actionable. Prior to this case, a duty of care for an individual's mental health had not been established in situations not involving...
[1988] QB 304, where the Court of Appeal considered whether damages for nervous shock as a result of witnessing the destruction of property were recoverable.
Criticism
The current position of the English courts has been criticised as leading to unfair results both in law and from the medical point of view. For example, it may be arbitrary that a mother who witnesses the death of her child with her own eyes can recover if she develops a mental illness, while one that hears of her child's death on the phone and suffers the same condition cannot. Reform has been widely advocated and in 1998 the Parliamentary Law CommissionLaw Commission
A Law Commission or Law Reform Commission is an independent body set up by a government to conduct law reform; that is, to consider the state of laws in a jurisdiction and make recommendations or proposals for legal changes or restructuring...
has drafted a proposal, suggesting i.a. that the requirements of proximity in time and space to the accident and the "own unaided senses" rule should be abolished.
External links
- House of Lords Judgment in White v. Chief Constable of South Yorkshire Police
- Told nervous shock: has the pendulum swung in favour of recovery by television viewers?, Ramanan Rajendran, [2004] DeakinLRev 31