Why were courts originally reluctant to allow a claimant to recover for nervous shock and why has this changed

Why were courts originally reluctant to allow a claimant to recover for nervous shock and why has this changed. -Discuss

Introduction:

The phrase “nervous shock” in the context of personal injury litigation, unlike “stress at work”, finds its origins in the 19th century. It has been criticized as inappropriate shorthand for claims for psychiatric injury but it remains the shorthand of choice for many. The matter has been controversial in overseas for at least a decade, many relevant cases of high authority have been decided and much academic and official commentary has been written. However, the law due in part to its having been frozen under accident compensation and latterly released back into tort law. This law is not yet developed in Bangladesh and there is no example for this case in our country. It has therefore been unclear to what extent or which of the overseas authorities and approaches apply here.

Understanding of Nervous Shock:

Nervous shock has no definite definitions. According to Lord Atner nervous sudden appreciation [1]by sight or sound of a horrifying event, this violently agitates the mind. Nervous shock is a term used to denote a psychiatric illness or injury caused to a person by events, due to the negligence of another person. For a claim of nervous shock the illness must be recognized as a psychiatric disorder. The types of psychiatric illnesses that are likely to form the basis of claims include post-traumatic stress disorder, depressive disorders, adjustment disorders and anxiety disorders. However, a person who suffers from extreme grief and sorrow, but which falls short of a recognized psychiatric illness is not able to recover damages, as one is expected to be able to deal with grief and sorrow.

Determination of Plaintiff and Defendant:

To determine who the plaintiff is where the injury is not so visible is tough and so a lot many [2]unbiased cases could come up. Which could lead to different many theories of determining one? So in order to generalize this a bit, based on the reasonability test victims are divided in two categories for the convenience in providing compensation:

· Primary Victims· Secondary Victims

It was Lord Oliver, in his judgment in Alcock v Chief Constable of South Yorkshire Police, according to him the two potential victims are a passive and unwilling witness of injury caused to others.

Primary Victims:

An injured plaintiff who was involved mediates or immediately as a participant is known as the primary victim. This category plaintiff description had a wider scope with was later modified in Page v Smith which narrowed the scope describing primary victims as people who were directly involved in accident and well within the range of foreseeable injury. But the case judgment further covers rescuers, involuntary participation and people who got shock for the fear of own safety.

Secondary victims:

The position of secondary victims is governed by the decision in Alcock [3] v Chief constable of South Yorkshire, one who suffers psychiatric damage even though not directly related to the accident. Even then secondary victims can only claim for compensation if she falls under the category of control mechanism as explained below.

Control Mechanism:

Lord Wilberforce in Mcloughlin v. O’ Brian case held that a secondary victim needs to satisfy three additional control mechanisms to limit the scope:

1. Proximity of relationship with immediate victim:- That is the secondary victim was in a close relationship of love and affection with the immediate victim; such as spouses, parents, children and scope of the relations stated above can be expanded to fiance, grandparents etc.

2. Proximity in time and space to the events causing the psychiatric illness: According to situation in particular case the plaintiff must have witnessed the actual accident or aftermath but within short space of time (some liberty is provided under this criteria provided according to situation)

3. The means by which the psychiatric illness is caused: – Information received by third party is not considered because of being exposed to circumstances or subsequent reflection on event is different from witnessing an event and its aftermath.

Reasons of not allowing recovery for nervous shock:

Nervous shock is the phrases commonly use to describe an action in negligence for the infliction of a psychiatric illness on the plaintiff. The injury is commonly referred to as post traumatic stress disorder. Tort law and the law of negligence readily compensate individuals for the loss to the person. Nervous shock and recovery for pure economic loss have historically caused the courts major difficulties in allowing damages and those are.

· The courts were of the view that such an injury was difficult to quantify in terms of the damages awarded.

· There was a natural skepticism where the court was unable to physically observe the injury to the plaintiff which would not be the case with a broken bone for example

· A claim for damages for the injury to the mind was considered to be an ignoble concept.

Causes of changes in the Law:

The courts initially were very slow in dealing cases regarding psychiatric damages. Initially they denied claims of psychiatric injury which did not result from a physical harm-as was seen in the case of Victorian railways commissioner v. Coultas. In this the defendants had negligently drove the carriage onto the railway tracks while the train was on the verge of crossing the place. No physical harm occurred, but the plaintiff who pregnant received nervous shock and this unfortunately lead to her miscarriage. The courts held that the plaintiff was not entitled to receive compensation as there was no physical harm caused. This decision was so taken because then, people did not have much knowledge about the working of people’s mind. But the view gradually started changing with time. Initially the courts decided on a case by case basis whether or not a legal duty of care existed in a particular situation. Once a duty of care had been established, for a particular activity, similar actions were easy to initiate. However, if the facts surrounding a litigant’s case differed in any way from established precedent he could not be sure of success. Much depended on whether or not the trial judge was prepared to widen the scope of the duty of care to embrace the new circumstances. The creation of new categories of duty by the judiciary would have made it look as if they were making law. Lord Atkin believed that what was needed was a set of principles which could admit new categories of duties without involving the judiciary in apparent law making. A set of principles which would allow flexibility in the law and enable it to adapt to changing circumstances where there is a need to hold people legally and financially responsible to others for the adverse outcomes of their actions.

Three attempts at developing a principle were made

· Brett M.R. (latter to become Lord Esher) postulated the proximity test in Heaven v Pender.

· Lord Wright put forward the ?Reasonable foresee ability of danger or harms test? in Bourhill v Young.

· Lord Atkin established the ?Neighbor Test? in Donoghue v Stevenson.

Conclusion and Suggestions:

Thus we can conclude that in various jurisdictions the law was although different, yet it was not very wide apart. We see that in cases references the judges were initially quite reluctant to compensate victims very easily. The law was mainly based on whether victims directly related to the accident. Later on of course the secondary victims were also taken into account. Now law has been enacted by the court to ensure the correct compensation of such victims.

After this briefing about all the aspects of liability of psychiatric damages I would like to suggest that firstly, this law need to be codified keeping in mind all the situations that can take place and flexible enough to provide compensation for victim in unforeseeable situations. Also basis on which it needs to be just one should be waded. Its scope should expand. For instance victim who is subject to gradual torture also suffer some mental imbalance, secondary victim who is not in any relation with the victim suffer a shock because act he saw was so grieve in nature; so on and so for. Further people should be made aware about this. In context to India we already have an act on how to maintain mental patients if we can think about this we need to first fix liability of their expenses. On the larger picture, humanitarian institutions need to stretch their hand; convention, protocol or a universal act would act much better. For this kind of liability in law is still developing I hope small chances as stated above will be of great help.

Bibliography:

· Causes of change in law. (n. d). March 28, 2012, from http://www.irishtimes.com/legal/medical-malpractice/case-allows-patients-to-recover-compensation-for-delayed-diagnosis/

· Causes of change in law. (n. d). March 28, 2012, from http://legalservicesindia.com/article/article/the-liability-of-psychiatric-damages-in-indian-and-foreign-jurisdictions-522-1.html

· Causes of change in law. (n. d). March 28, 2012, from http://www.oppapers.com/essays/Business-Law-Nervous-Shock/174607

· Control mechanism. (n. d). March 28, 2012, from http://legalservicesindia.com/article/article/the-liability-of-psychiatric-damages-in-indian-and-foreign-jurisdictions-522-1.html

· Conclusion and suggestion. (n. d). March 28, 2012, from http://www.pearsonrowe.co.uk/2012/what-is-nervous-shock

· Determination of Plaintiff and Defendants. (n. d). March 28, 2012, from http://legalservicesindia.com/article/article/the-liability-of-psychiatric-damages-in-indian-and-foreign-jurisdictions-522-1.html

· Determination of Plaintiff and Defendants. (n. d). March 28, 2012, from http://www.pearsonrowe.co.uk/2012/what-is-nervous-shock

· Primary victim. (n. d). March 28, 2012, from http://www.pearsonrowe.co.uk/2012/what-is-nervous-shock

· Primary victim. (n. d). March 28, 2012, from http://legalservicesindia.com/article/article/the-liability-of-psychiatric-damages-in-indian-and-foreign-jurisdictions-522-1.html

· Secondary victim. (n. d). March 28, 2012, from http://www.pearsonrowe.co.uk/2012/what-is-nervous-shock

· Secondary victim. (n. d). March 28, 2012, from http://legalservicesindia.com/article/article/the-liability-of-psychiatric-damages-in-indian-and-foreign-jurisdictions-522-1.html

· Understanding of Nervous Shock. (n. d). March 28, 2012, from http://www.pearsonrowe.co.uk/2012/what-is-nervous-shock

· Understanding of Nervous Shock. (n. d). March 28, 2012, from http://www.lawguys.com/Negligent_Infliction_of_Emotional_Distress.htm

· Understanding of Nervous Shock. (n. d). March 28, 2012, from http://www.findlaw.com.au/articles/1697/high-court-revisits-duty-of-care-in-relation-to-ne.aspx

· Understanding of Nervous Shock. (n. d). March 28, 2012, from http://www.pearsonrowe.co.uk/2012/what-is-nervous-shock

· Understanding of Nervous Shock. (n. d). March 28, 2012, from http://www.lawguys.com/Negligent_Infliction_of_Emotional_Distress.htm

· Determination of Plaintiff and Defendants. (n. d). March 28, 2012, from http://legalservicesindia.com/article/article/the-liability-of-psychiatric-damages-in-indian-and-foreign-jurisdictions-522-1.html

· Primary victim. (n. d). March 28, 2012, from http://www.pearsonrowe.co.uk/2012/what-is-nervous-shock

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