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Nervous Shock and Liability of Psychiatric Damages in India and In Common Law Countries

This project talks about liability in case of psychiatric damages in India and also the present scenario of awarding compensation in common law countries also.

The first part of the project deals with the introduction which talks about what the psychiatric injury is and what are damages awarded in the form of compensation and some conditions in order to claim compensation.

The second part of the project deals with the evolution of cases of nervous shock in Indian jurisdiction.

Then there is a explanation of the concept of determination of plaintiff and defendant which was aroused through one case law. After the explanation of this concept, Indian approach in the case of nervous shocks and its landmark cases.

And the last major part deals with the common law countries approach in awarding the compensation in the injury caused due to psychiatric illness.

In the concluding part there is conclusion in which I gave my conclusion remarks and some suggestions which I felt to be done in Indian jurisdiction to improve the condition of these cases and laws which need to codified.

Research Question
Liability in cases of nervous shock in Indian jurisdiction and in common law countries is sufficient or not?

Research Methodology
I used doctrinal method of research in this project. Sources of internet is also used in collecting content of topic. Mainly sources which are used are secondary sources which are relevant books relating to Law of Torts which were available in the library.

Research Objective
To show how psychiatric damages are dealt in different jurisdictions and how it differ in Indian jurisdictions. Also in complicated cases how to determine who is the plaintiff and who is the defendant.

This project is mainly focused on the law relating to liability for negligently inflicting psychiatric damages to any individual. This type of tort relating to psychiatric injury in which defendant claims compensation gained the popular interest and has gained widespread media coverage also.

Psychiatric Injury- It is also known as Nervous Shock, used to describe a claim where the claimant might claim compensation even though she has not clearly received any physical harm.

Psychiatric Damages- According to medical conditions which defines as, circulatory failure marked by a sudden fall of blood pressure and resulting in pallor, sweating, fast (but weak) pulse, and sometimes collapse.

For this condition to occur major causes are disease, injury, and psychological trauma. In shock, the blood pressure falls below that necessary to supply the tissues of the body, especially to the brain. Treatment depends on the cause.

Two conditions needs to be fulfilled in order to claim compensation under psychiatric damages.

These two conditions are:

  1. A recognizable psychiatric illness.
    According to Lord Bridge- To claim compensation under this it should be established that person is not suffering from only grief but it is positive psychiatric illness which is recognizable which would include morbid depression, hysterical personal disorder, post-traumatic stress disorder, pathological stress disorder and chronic fatigue syndrome and there should also be one medical witness or expert proving the above facts. There will be no compensation for mere anxiety, emotional outbreak etc.
     
  2. Test of Reasonable Forseeability.
    The law commission considered that the psychiatric damages should be tested beyond the simple forseeability test and reasonable forseeability should be used. First time it was used in the case of Delieu v White & Sons.(1)


In this case the pregnant wife of A.R. Delieu was seated behind the bar of her husband’s public-house when the defendants’ servant negligently drove a horse driven van so as to direct it in the public house and due to which plaintiff suffered a nervous shock that caused her a illness and consequently the pre-mature birth of an idiot baby and for this plaintiff claims compensation so it was decided by the court that plaintiff should be able to recover only when danger is reasonable enough to be nervous or receive mental shock and here in this case plaintiff was apprehended fear for his safety so it was actionable and should be granted compensation.

Two points which should be noticed from this case are:

First, in applying the reasonable forseeability test the defendant must presume that the plaintiff is a prudent woman who has a normal standard of forseeability. Then when the plaintiff has established her prudent nature and that it would be normal for a reasonable woman to suffer the nervous shock she suffered in the particular case, she is entitled to recover full compensation.

Second, foreseeability of the psychiatric illness is considered ex post facto in the light of all that has happened. Unless hindsight is used:
the question ceases to be whether it is foreseeable that a reasonably robust person would have suffered psychiatric illness as a result of what actually happened and becomes instead whether it is foreseeable that such a person would have suffered psychiatric illness as a result of what might have happened but did not in fact do so.

Thus we see that the judge must see herself to be a reasonable, prudent woman, when deciding the cases of psychiatric damages. In the words of Lord Bridge, the judge should decide a particular case relying on her own opinion as that of a reasonably educated woman.

History of Psychiatric Damages Through Cases

Origin of Psychiatric Damages- Initially courts did not granted damages in the cases of psychiatric damages as this was seen in the case of Victorian railways commissioner v Coultas(2). in this case defendants had negligently drove the carriage onto the railway tracks while the train was on the verge of crossing the place and by this accident there was a pregnant lady received a nervous shock which leads to miscarriage and when plaintiff filed a suit for compensation court held that plaintiff is not entitled to receive compensation as there was no physical harm caused to him.

This case was decided at the time when people was not having much knowledge about the working of people’s mind but later on after sometime another case came into the front of court called Deliue v White(3), in this case carriage was driven into the pub where one lady was working who was pregnant she got terrified by such an event and had suffered nervous shock and she claimed compensation for it and in this situation court granted the compensation to the lady which opened a new area to claim for compensation under the view of negligence in the name of psychiatric damages.

Now there are many cases through which nervous shock concept is evolved in Indian jurisdiction similar to the evolvement of concept of nervous shock evolved in common law countries.

Cases in Indian Jurisdiction

As Indian courts were very liberal regarding the cases of psychiatric damages but this mentality gets changed when Madras High court given the decision in the case of Halligua v Mohansundarum(4) and held by the court that body was controlled by the nervous system and even though there if there is no harm done to the party physically yet the nervous could be affected and granted compensation.

The nature of courts somewhat extended much in another case called Lucknow Development Authority v M.K. Gupta (5). In this case damages were given to the plaintiff because the plaintiff gets the nervous shock after getting harassed for government officials. This decision was also followed in many cases like Gazhiabad Development Authority v Balbir Singh(6) .

Determination of Plaintiff And Defendant

There are many cases where it is difficult to determine who is entitled to get compensation and wo is not so in order to clear this confusion court takes a one step ahead and bifurcated the kind of victims into two types i.e. Primary victim and Secondary victim in the case of Alcock v Chief Constable of South Yorkshire Police (7).

Primary Victims

An injured plaintiff who was involved mediates or immediately as a participant is known as primary victim. This category plaintiff description had a wider scope with was later modified in Page v Smith (8)which narrowed the scope describing primary victims as people who were directly involved in accident and well within the range of forseeable injury.

Secondary Victims

The position of secondary victims is governed by the decision in Alcock v Chief Constable of South Yorkshire, one who suffers psychiatric damage even though not directly related to the accident. Even then secondary victims can claim compensation if they will fall under Control Mechanism.

Control Mechanism

This concept of control mechanism was defined in the case Mcloughlin v. O’ Brian(9) and held that a secondary victim needs to satisfy three additional control mechanisms to limit the scope:

  1. Proximity of relationship with immediate victim i.e. 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 fiancé, 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.


Indian Approach on Cases of Psychiatric Damages

In India jurisdiction and liability in tort law is not very developed but there are so many cases through which compensation is given to the plaintiff and from these cases only liability if psychiatric damages evolved. Even though India does not have any legislation regarding nervous shock but cases are decided by court on the basis of reasonability of prudent person.

There was a case named as Jose Philip Mamphilli v Premier Automobile Limited(10) in this case maximum compensation was granted to the plaintiff for mental agony, in India. A brand new car was sold to the plaintiff (Mr. Jose) which was defective and as a result of this Mr.Jose suffered from a nervous shock and when the plaintiff complains for it, manufacture denies his liability by giving reason that it is not his fault since it is very trivial matter.

Court held that plaintiff is entitled to compensation as there is no doubt that he will suffer from mental agony after paying so much amount and getting a defective car. In this case court granted 40,000 cases now from this cases it was difficult to understand that how much compensation to be awarded to the plaintiff.

Recent judgment of nervous shock called Bangalore Development Authority v Syndicate Bank(11) judgment of this case clearly states that compensation granted will depend on the fact of each case, nature of harassment, the period of harassment and nature of arbitrary or capricious or negligent action of the authority which led to such harassment.

The only legislation in India which governs the mental illness and authority taking care of her is governed by Mental Health Act, 1987 and rest of the aspects are dealt in accordance with the reasonability and as explained above.

A well known case in this regard is the case of Lucknow Development Authority v M K Gupta(12), In this case the Lucknow Authority failed to provide a flat to the plaintiff MK Gupta in due course of time as stated by it during the time of payment for it. In such a situation the plaintiff filed for compensation under harassment and mental agony.

He was granted compensation on the ground that the judgment socially benefited the victim and so in the part of the judgment stating to grant relief was also paid. From the above case we can very rightly infer that India does not have any statute regarding liability for nervous shock. Cases regarding psychiatric damages are adjudicated on the basis of reasonability of a prudent woman.

Further many cases have come up for psychiatric damages like the case of Gaziabad Development Authority v Balbir Singh(13) and Haryana Development authority v Vijay Aggarwal(14) where the same line of judgment was followed. But this was again distinguished in the case of Gaziabad Development Authority v UOI (15)where there was a contract for a plot which was delayed in giving than the date specified date in the contract.

Here the court looked the case only from the point of the contract and followed The Specific Relief Act, 1963; without taking into account any aspect of tort. Here the Supreme Court also said that it was improper for compensating the plaintiff for mental languishment.

Laws Relating To Nervous Shock In Common Law Countries

Liability related to psychiatric damages is different in different jurisdictions and hence in common law countries liabilities are different as from India.
USA: In USA liabilities are decided on the basis of case laws.
UK: Protection of Harassments Act, 1997.

UK Jurisdiction

In England cases of nervous shock are dealt by the Protection of Harassments Act, 1997. Section 1(2) of this Act it is written that:
For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

The other condition which is needed to be fulfilled for claiming of damages is given under section 7(3) which is as follows:

(3) A course of conduct must involve conduct on at least two occasions 3A) a person’s conduct on any occasion shall be taken, if aided, abetted, counseled or procured by another— (a) To be conduct on that occasion of the other (as well as conduct of the person whose conduct it is); and (b)to be conduct in relation to which the other’s knowledge and purpose, and what he ought to have known, are the same as they were in relation to what was contemplated or reasonably foreseeable at the time of the aiding, abetting, counseling or procuring.

There was case of Wainright v Home office(16), in this the plaintiff and his mother went to the prison to meet his stepbrother who had been imprisoned for dealing with drugs and since was having not having any idea regarding so they decided to strip-search everyone whoever will visit to the prison and thus while searching the police officer touched the penis of son by mistake and psychiatrist concluded that son has suffered severe nervous shock and mother also which was not visible. Wainright claims for compensation, court held that claim cannot be affirmed if ‘a merely negligent act contrary to general principles, give rises to claim for damages for distress because its affects privacy rather than some other interest like bodily safety.

USA Jurisdiction

In USA there is no such law which deals with the cases of psychiatric damages as there is legislation in UK which deals this type of cases. On the basis of judicial precedents cases of psychiatric damages are adjudicated. On the basis of reasonable forseeability of prudent man cases are decided. In USA judges do not distinguish between physical and psychiatric injury.

One of the landmark judgment called Consolidated Railway Corporation v Gottshall(17) in this case one crew member was forced to attend the events of employee’s death because of the circumstances created by authority’s negligence so he filed a suit in the court for compensation because he suffered an severe depression and post-traumatic stress disorder under Federal Employers Liability Act but court decided that this type of injury is not recognized, the proper test for evaluating such claims was under which court determines whether the factual circumstances provide a threshold assurance that there is likelihood of genuine and serious emotional injury and if so evaluates the claim in light of traditional tort concepts, with the forces resting on plaintiff’s injury.

Second important aspect here is forseeability in another case called Consolidated Railway Corporation v Alan Carisle(18) . In this case a crew member got compensation on the basis that he was forced to work in unfavorable conditions due to which he got emotional distress.

On the basis of these cases mentioned above it can be infer that even though no legislation is there to regulate these cases but the cases has been decided on the basis of reasonable prudent person and the judicial precedents.

Conclusion
In the above project Indian jurisdiction has been discussed which shows that judges are liberal in granting compensation to the victims because in India cases of psychiatric damages came in front of court very late and by that time scientific knowledge of people an judges also gets increased and people got advanced and as a result Mental Health Act, 1987 was later on passed that looked into cases on mental agony and harassment.

But this was not the case in UK because in earlier time judges do not granted compensation. Initially law was based in impact theory concerning only those victims who are directly related to the accident but as the time passes secondary victims are also considered to grant compensations. Later on a law has been enacted by the British Parliament Protection of Harassment Act, 1997 to ensure correct compensation of such victims. In USA law is still based on case-laws and compensation has been given only to those who come in Zone of danger.

Recommendations
After this research it is concluded from my side that laws needs to codify after considering all the situations that can take place and should me made flexible so that compensation can be granted to those in unforeseeable situations also. Its scope should expand.

In the case of India we already have particular act to control mental patients so there should be fix liability of their expenses and public should be made aware about this so that it can provide much help and since this kind of liability is still developing and so there should be made legislation after considering unforeseeable situations also to compensate in that of cases as well.

Bibliography
Books Referred:

  1. Akshay Sapre, Ratanlal and Dhirajlal, the Law of Tort (27th ed. 2016).
  2. B.M. Gandhi, Law of Torts (4th ed.).


Articles Referred:

David W. Robertson, Liability in Negligence for Nervous shock, Vol. 57, No.4, JSTOR.

End-Notes:

  1. (1901) 2 KB 669
  2. (1888) 13 App Cas.222
  3. (1901) 2 KB 699.
  4. (1951) 2 MLJ 471.
  5. AIR (1994) SC 787.
  6. AIR (2004) SC 2141.
  7. (1991) 2 All ER 907: (1992) 1 AC 310: (1991) 3 WLR 1057 HL.
  8. (1996) AC 155 HL.
  9. (1964) 1 WLR 1317
  10. AIR 2004 SC 1524
  11. AIR 2007 SC 2198
  12. AIR 1994 SC 737, pp 799, 800
  13. AIR (2004) SC 2141
  14. AIR 2004 SC 3952
  15. (2000) 7 JT 256, p.261: (2000) 6 SCC 113: AIR 2000 SC 2003
  16. (2003) AII ER 969
  17. (1994) 512 US 532,544,547,548
  18. (1994)512 US 532, 544,547,548

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