1.
Nervous shock is that branch of law which is nascent and still developing. If a person has got injury through his senses i.e., by his visual or acoustic senses it comes under the category of nervous shock.
We know that the brain regulates the function of the body. From brain's hind-part i.e., medulla oblongata, spinal chord arises from which nerves originate and goes to various parts of the body. We have got five senses (eye, ear, nose, tongue and skin) through which we came to know about the things which surround us. In simple terms, if a man has seen something which is unbelievable or horrible or supposed to cause imminent danger to him/others, then he may suffer with nervous shock.
Victorian Railway Commissioners v. Coultas, (1888) 13 App Cas 222.-
In this case, the appellant's gate-keeper negligently invited the plaintiff and his wife, who were driving in a buggy, to enter the gate at a railway crossing when the train was approaching. The distance between buggy and train was very narrow and actual collision did not take place, but seeing the danger from so close, the lady got fainted and suffered a severe nervous shock resulting in illness and miscarriage. The Privy Council held that "damage arising from mere sudden terror unaccompanied by any physical injury but occasioning a nervous or mental shock cannot under such circumstances be considered a consequence which in the ordinary course of things would flow from negligence of the gate-keeper". And in this case it was held that the damage was too remote to be recovered since there was no actual bodily impact.
But this view was changed later on when it was held in the case Dulieu v. White, (1901) 2 KB 669, that to take cognizance of only physical injury resulting from actual impact is to be discarded on the ground that the nervous shock accompanied by definite illness is as much a physical injury as a broken bone or torn flesh wound.
Dulieu v. White, (1901) 2 KB 669.-
The plaintiff, a pregnant woman, was standing behind the bar of her husband's public house, and the defendants by their servants, negligently drove a pair of horse van into that house. The plaintiff was physically not hurt but suffered nervous shock. She fell ill and delivered a prematured baby.
Defendant's plea was that there is no action since plaintiff did not suffer any physical injury. But, Kennedy J., held the defendant liable and said-
"........merely mental pain unaccompanied by any injury to the person cannot sustain an action for negligence. If the fear is proved to have naturally and directly produced physical effects, so that the ill results of the negligence which caused the fear are as measurable in damages as the same results would be if they arose from an actual impact, why should not an action for those damages lie just as well as it lies where there has been an actual impact".
Justice Kennedy also introduced a limitation of liability by stating that the shock where it operates must be a shock which arises from a reasonable fear of immediate personal injury to oneself.
In Dulieu's, the principle laid down in Victorian Railway Commissioners' case as the damage due to nervous shock is too remote a consequence for recovery was put to rest. Justice Kennedy held that the defendant's negligence would make him liable if the natural and direct consequence is nervous shock followed by illness, subject to the condition that the shock must have been due to reasonable fear of one's own safety.
Hambrook v. Stokes Bros, (1925) 1 KB 141.-In this case, the defendant's servant left a motor lorry unattended at the top of street with its engine running. Somehow, lorry started running on the street violently. Mrs. Hambrook, was walking on the street, and her children had just parted with her and were gone in the direction where now lorry was approaching. She got frightened for safety of her children. One of the passer by informed her that one child similar to description given by her has got injured. After hearing this news she suffered a serious nervous shock and she died. The plaintiff's plea was that the defendant was negligent in leaving the lorry unattended and running. Mrs. Hambrook suffered nervous shock either due to reasonable fear of immediate personal injury to her or her children and she died. Defence plea was that although the servant of defendant was negligent, but the shock was due to fear of her children and it did not give rise to a cause of action.
Trial court taking the view of Dulieu case, applied the limitation put forth by J., Kennedy and found that Mrs. Hambrook died due to fright for the safety of her children and defendant was not liable.
On appeal, Bankes and Atkin L.JJ., rejecting, the limitation proposed by
J., Kennedy in Dulieu case held that the defendant was liable for her death-
"Accepting the line of reasoning illustrated by authorities, it follows that what a man ought to have anticipated is material when considering the extent of his duty. Upon the authorities as they stand the defendant ought to have anticipated that if his lorry ran away down this narrow street, it might terrify some woman to such an extent, through fear of some immediate bodily injury to herself, that she would receive such a mental shock as would injure her health."
Justice Bankes imposed a limitation by stating that "the defendant would be liable only if the shock resulted from what Mrs. Hambrook either saw or realized by her own unaided senses, and not from something which some one told her".
It was also noted in this case that there was an acceptance of negligence in the pleadings, and this meant that the breach of a duty owed to Mrs. Hambrook was admitted by the defendant. That is why it was not necessary for the court to consider the circumstances in which a duty of care exists in cases of nervous shock.
King v. Philips, (1953) KB 433.-
A small boy, Michael Charles King was on his tricycle on Bristall Road, London. A taxicab driver while backing his cab hit the tricycle. The mother of the child, who was inside her house some 70 to 80 yards away, heard boy's scream, she came out and saw tricycle of his son under the taxicab, but the child was not there who came to home with slight injury. The lady suffered nervous shock followed by illness, for which she claimed damages.
The lower court awarded damage only to boy (œ 10) and rejected the claim of his mother. The Court of Appeal also upheld the decision of the lower court and held that the defendant owed a duty of care to the boy and not to the mother.
Singleton L.J.-
"............the decision of the House of Lords in Bourhill v. Young, shows that the test in such cases is whether the driver could reasonably, have foreseen any damage to the plaintiff. Unless he could, it was said, no duty was owed to her, and consequently there was no negligence vis-a-vis the plaintiff."
McNair, J.-
"If I am asked where the line is to be drawn, I should humbly, reply....... it should be drawn where in the particular case the good sense of the jury or judge decides."
Denning Lord J.,-
"The true principle is this: Every driver can and should foresee that if he drives negligently, he may injure somebody in the vicinity in some way or other; and he must be responsible for all the injuries which he does in fact cause by his negligence to anyone in the vicinity, whether they are wounds or shocks, unless they are too remote in law to be recovered. If he does by his negligence and in fact causes injury by shock, then he should be liable for it unless he is exempted on the ground of remoteness."
Denning Lord J., also distinguished this case with that of Hambrook's case, as-
"......I think that the shock in this case is too remote to be a head of damage. It seems to me that during slow backing of the taxicab the driver cannot reasonably be expected to have foreseen that his backing would terrify a mother 70 yards away, whereas the lorry driver ought to have foreseen that a runaway lorry might seriously shock the mother of children in the danger area."
From the above observations, it may be inferred that although the Judges agreed in the result but they disagreed in the theoretical basis of that result.
Mcloughlin v. O'Brian, (1982) 2 All ER 298.-The plaintiff's husband and three children met with an accident. One child died while plaintiff's husband and other children received severe injuries. The plaintiff was two miles away from the site of accident, when the accident took place. After hearing this news, the plaintiff suffered severe and persisting psychiatric illness. The House of Lords in an unanimous voice (L. Bridge, L. Scarman, L. Wiberforce, L. Edmund Davies and L. Russell) held the defendant liable for the nervous shock and allowed the appeal for damages.
Page v. Smith, (1995) 2 All ER 736.-
The plaintiff in the motor accident remained unhurt but suffered 'Myalgic Encephalomyelitis', a psychiatric illness with which he had earlier suffered but was in remission that time. The injury although was not foreseeable in a normal man but as a personal injury of physical harm was foreseeable, the defendant was held liable for damages. The House of Lords also laid down following propositions, which may be taken as guiding factors in deciding such kind of cases-
(i) In cases involving nervous shock, it is essential to distinguish between the primary and secondary victims.
(ii) In claims by secondary victims, the law insists on certain control mechanisms, as a matter of policy in order to limit the number of potential claimants. Thus, the defendant will not be liable unless psychiatric injury is foreseeable in a person of normal health. If, plaintiff is the primary victim, then this mechanism has no place.
(iii) If claim is sought by secondary victims, it may be legitimate to use hindsight in order to be able to apply the test of reasonable foreseeability at all.
(iv) Subject to the above qualifications, the approach in all cases should be the same.
(v) A defendant who is under a duty of care to the plaintiff, whether as primary or secondary victim, is not liable for damages for nervous shock unless the shock results in some recognised psychiatric illness.
3.
Due to vagueness/ambiguity of the rule of foreseeability, the House of Lords faced a lot of difficulty and therefore laid down some qualifications to the rider of reasonable foresight in certain cases e.g.-
(i) where secondary victim has close relationship of love and affection with the primary victim and also that his proximity to the accident is sufficiently close in time and space (Mcloughlin v. O'Brian);
(ii) in case of secondary victims, it may be legitimate to use hindsight in order to be able to apply the test of reasonable foreseeability at all (Page v. Smith); and
(iii) tortfeasor must take his victim as he finds him (Page v. Smith).
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