Nervous Shock (Reasonably Foreseeable Consequence of Negligence)
The common law gives no damages for grief, emotional distress, anxiety etc. Under ‘nervous shock’, a claim for damages can be made without showing direct impact or fear of immediate personal (bodily) injuries. But it is only the shock, which can be measured by direct consequences on bodily activity, which can form the basis for an action. The rationale behind is that the body is controlled by its nervous system. Causing of nervous shock itself is not enough to make it an actionable tort, some injury or illness must take place as a result of emotional disturbance, fear or sorrow.
It may be noted that this branch of law is comparatively of recent origin. The courts have been quite reluctant to award damages for emotional disturbances, such as the difficulty of proving the link between the defendant’s conduct and the shock to the plaintiff, the risk of fictitious claim and excessive litigation. The nervous shock may arise due to negligence or intentional wrongdoing. The plaintiff could suffer nervous shock by witnessing (seeing or hearing) personal injury (or an accident) or destruction of his property caused by the defendant’s wrongful act. The plaintiff must be so placed where injury through nervous shock can be foreseen by a reasonable man. [Bourhill (or Hay) v Young (1943) A.C. 92]. The plaintiff need not be in the area of physical injury to himself but his proximity to the accident should be sufficiently close in time and space.
The primary victim need not be a near relative of the plaintiff. Thus, where a crane driver (plaintiff) suffered a nervous shock when he saw that by the breaking of a rope of crane its load fell into a ship where some men were at work was allowed damages. However, where plaintiffs suffered nervous shock when disaster at a football match was televised live and in news bulletins, they were not allowed damages.
In Wilkinson v. Downton, (1897) L.R. 2 Q.B. 57; the defendant was held liable when the plaintiff suffered nervous shock and got seriously ill on being told falsely, by way of practical joke, by the defendant that her husband had broken both the legs in an accident.
In Dulieu v White (1901) 2 K.B.669, a pregnant woman who was standing behind the bar of a public house, suffered shock when the defendant’s servants negligently drove a horse van into that house. The defendant was held liable.
In Hambrook v Stokes Bros. (1925) 1 K.B. 141, held that it is not necessary that shock must be such as arises from reasonable fear of immediate personal injury to oneself. In this case, a motor lorry, left unattended with the engine running, started off by itself and ran violently down the incline. A lady, who had been walking up the street with her children, had just parted with them at the point where the lorry was heading. A bystander told her that a child answering the description of one of her children had been injured. She suffered shock and died. The defendant was held liable.
However, in King v Phillips (1953) 1 Q.B. 429, the defendant was held not liable on the ground that the mother was wholly outside the area of reasonable apprehension. In this case, a taxi driver backed his taxicab negligently and ran into a child on a tricycle immediately behind him. The child\’s mother, who was in her house, 70 or 80 yards away, heard him scream and looking out of a window saw the cab back into a tricycle, but she could not see the child. She suffered nervous shock.
This case requires consideration (Winfield).
In Bourhill v Young. a motorcyclist collided with a motorcar and was killed. The plaintiff, a fishwife, standing about 45 feet from the point of impact heard the noise. After the body of the motorcyclist had been removed, she happened to go, the scene of the accident and saw the blood on the road. She suffered nervous shoe’. It was held that the deceased could not be expected to foresee any injury to the plaintiff. And, thus, he did not owe any duty of care to her.
In McLoughlin v O Brian (1982) 2 All ER 298, the plaintiff’s husband and three children were involved in an accident caused by the defendant’s negligence, in which one child was killed and others were seriously injured. After being told or the accident, the plaintiff was taken to the hospital where she saw the injured husband and children and heard about the death of her daughter. She suffered nervous shock. She was allowed damages even though she was not at or near the scene of the accident at that time or shortly afterwards.
In Ownes v Liverpool Corpn. (1939) 1 K.B. 394, a funeral procession was going along a road, a tramcar violently collided with a hearse and caused the coffin to be overturned as a result of which the mourners at the funeral suffered shock. The mourners were allowed damages for mental shock, although there was no apprehension, or actual sight, of injury to a human being.