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Tort - Nervous Shock I

Updated on August 14, 2017

Nervous shock or psychological illness or psychiatric illness is an illness that is recognized in tort as a possible consequence of the negligent acts or omissions (failure to act) of one party that results in some form of mental impairment to another party. It is an illness that may in some instances be fatal see Hambrook v Stokes Brothers (1925).

Because of the nature or the illness, it is difficult to quantify it in monetary terms until the consequences of the illness become apparent. Anyone can claim to suffer from nervous shock and it is difficult to ascertain if they indeed have suffered from nervous shock or otherwise unless there is some type of evidence which tends to indicate that they have.

In Sullivan v Moody (2001) for example a father claimed that he had suffered from a phycological illness because he was investigated for child abuse and sued a medical practitioner and a social worker for conducting an investigation. The court held that neither were liable because they were simply doing what they were required to do by law.

The courts are more prepared or inclined to recognize nervous shock in the following two instances because it is foreseeable that shock of some kind would be the natural consequence or the likely result of the defendant’s actions: -

i) where there is a special relationship between the victim or the perceived victim for example in cases or instances of the parent-child relationship and

ii) where nervous shock or psychiatric illness was caused by fraud.

In Dulieu v White (1901) a pregnant woman was awarded damages because the shock that she suffered as a result of being in a public house when the defendant crashed into it with his carriage had caused her to deliver prematurely and as a result her child was born with below average intelligence.

In Janvier v Swenney (1919), the plaintiff was employed as a maid and she was corresponding, at that time, with a German man who was believed to have had been a spy during the first world war and was as a result interned in the Isle of Man. The defendant who intended to procure some documents belonging to her employer, pretended to be an officer from Scotland Yard and interviewed or interrogated her on the nature of her correspondence with her friend, implying that she might be committing treason. The impact of the interview or interrogation was so severe that the plaintiff went into shock and took a long time to recover. The plaintiff sued and the court found in her favor and held that the defendant was liable.

In Hambrook v Stokes Brothers (1925) a mother went into nervous shock and subsequently died as a result of the trauma she suffered when she thought her children who were playing around the curb were hit by a lorry. Her husband was entitled to claim damages for the phycological illness that had been caused to his wife as a result of the defendant’s negligence.

In Bourhill v Young (1943) the plaintiff a pregnant fishwife was entitled to be awarded damages when she went into nervous shock after she’d witnessed the aftermath of a horrific accident and consequently her baby was stillborn.

In McLoughlin v O'Brian (1983) the plaintiff’s husband and her children were in a car that was involved in a serious accident with a lorry as result of which she lost one of her children. The mother rushed to the hospital as soon as she heard the news and saw her husband and her other two children prior to their wounds being cleaned up and bandaged and immediately went into shock. The plaintiff sued and the House of Lords in line with the decision in Bourhill v Young (1943) held that the plaintiff, even if she’d only witnessed the aftermath of the accident was entitled to claim especially considering the fact that the victims were her husband and children.

Because of the special relationship that the plaintiff shared with the victims, it was foreseeable that the plaintiff would suffer from some sort of psychiatric or phycological illness as a result of witnessing the aftermath of the accident.

The court found that the plaintiff was within the scope of proximity and foreseeability of suffering from some form of illness as a result of witnessing either the accident or its aftermath.

Without stretching it too far, it is possible to say, though they may not be able to claim for it, others who had witnessed the accident and its aftermath, including innocent by-standers, police and ambulance staff would have also suffered from some form of shock.

With regards to being within the width of the scope of proximity and foreseeability ideally it should depend on the facts or the circumstances of the case. Would they plaintiff have suffered from nervous shock if she was residing some distance away from the victims and received the news by telegram? It is fair to say that she probably would.

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward

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