The increasing knowledge in field of medical science has made the courts accept
the fact that the harmful injuries can be caused to the man and numerous
illnesses maybe be caused to persons not only through physical injuries but also
without any physical contact at all. They have recognized the fact that the
anxiety or the clinical depression may be there without psychosomatic symptoms.
These types of injuries are usually called as Nervous Shock
under law of torts.
The project will be dealing with the comparison of development of the
concept of psychiatric injury under various jurisdictions throughout the
world primarily in USA, UK, Canada with the help of various cases under
Definition of Nervous shock
For understanding the concept of Nervous Shock and psychiatric injury, it is
imperative to know the definition of nervous shock.
In medicine, circulatory failure marked by a sudden fall of blood pressure
and resulting in pallor, sweating, fast (but weak) pulse, and sometimes
completes collapse. Its causes include disease, injury and psychological
trauma. In shock, the blood pressure falls below the necessary to supply the
tissues of the body, especially the brain. Treatment depends on the cause.
Rest is needed, and, in the case of severe blood loss, restoration of the
normal circulating volume.
Definition under law
Under the law, nervous shock can be defined in simple terms as the shock
caused to a person due to act or omission of another person. Though the
word, ‘Nervous shock' was called imprecise in Alcock's case, it is still
used to package a number of complex concepts. It is worth noticing that in
most of the jurisdictions, nervous shock is distinguished from mere grief
and sorrow. It is also noticeable that the term, Nervous shock gives the
idea that compensation will be only granted compensation for injuries
arising out of sudden shocks as the courts consider that the injuries
arising out of sudden nervous shock are as severe as physical injuries.
Difference between medical injury and psychiatric injury
Under various jurisdictions compensations are granted for psychiatric
injuries and not sorrow or grief or medical illness however, the line
distinguishing between psychiatric injuries and medical illness is very thin
and need to be demarcated not by judges but by medical practitioners. Some
of the differences are highlighted below.
- Due to medical illness, the cause can't be identified without the
medical tests but the cause can be identified through the testimony of
victim but he is prevented from articulating due to trauma.
- Medical illness is endogenous and clinical but the chemistry of
psychiatric injuries are not endogenous and different.
- Usually (in 81% cases) of medical illness there is a history with
victim and family but in cases of psychiatric injury there is no history
- The person may lack empathy in the former case but not in the latter
Owing to these nuanced differences, it becomes important that a medical
practitioner should be called upon to distinguish nervous shock from other
kinds of mental illnesses, grief and sorrow, but judges consider this as a
time taking and economically irrelevant process and refrain from calling
upon these practitioner.
Psychiatric injuries in UK Development
Under the English jurisdiction, the concept of psychiatric injury is
developed sufficiently if not completely. However, initially even under the
English jurisdiction, there was a reluctance in considering psychiatric
injuries as seen in the case of Victorian railways commissioners v Coultas
defendant who were gatekeepers had negligently let carriage with a pregnant
woman to the railway crossing when the train was about to pass.
The lady had
a nervous shock and had a miscarriage. The court did not entertain the
appeal because in absence if physical injury, no compensation could be
granted. The Privy Council in this case was apprehensive that entertaining
such claims would be opening the floodgates for imaginary claims.
in Dulieu V. Whit
e the limitation was done away with. In this case, the
offended party, a pregnant barmaid, was behind the bar when a carelessly
driven carriage fell off the street and collided with the bar, going into
the room where she was standing. She endured Nervous shock and a consequent
unnatural birth cycle. The court finally entertained the claim and granted
the compensation for the psychiatric injury.
In this case, the Impact
principle evolved as per which the offended party would be permitted to
recoup for mental disease gave this was brought about by sensible dread of
being physically harmed by the defendants recklessness.
The scope of the impact theory was limited to compensation only when the
there was an imminent threat to the plaintiff (i.e. the primary victim). It
is also notable that when physical damage caused to the victim, the court
will give grant compensation for psychiatric injury without any hesitation
no matter, how trivial the injury was. This principle was upheld in Page V. Smith
The impact theory was modified and the ambit was expanded in Hambrook v
 where a pregnant lady left her three kids for school near a bent road,
her kids disappeared and a negligently driven lorry came downhill. The
mother heard thudding sounds and became afraid that here children might be
hurt and then started looking for them, one of her child was injured.
She suffered mental shock and suffer miscarriage. The court granted her
compensation, this case was differentiated from the King V. Philips
where it was held that the mother was too far away from the accident sight.
Thus in case of the secondary victims, the English jurisdiction look for the
proximity of primary and secondary victim to limit the compensation. Also
the English jurisprudence, do not consider mere bystanders to be eligible to
seek compensation for these injuries as held in Bourhill V. Young
The modern development in the rule is brought in the case of Mcloughlin v
 in this case; the plaintiff had not witnessed the accident but
was informed two hours later by the neighbour that the car driven by her
seventeen year old son, George having her husband and kids had an accident.
She along with the neighbour went to hospital only to find out that her
three-year-old daughter had died she heard her husband covered in blood
wailing in pain. She suffered a nervous shock, disrupting the ordinary
course of her life.
The House of Lords in this very case, expanded the ambit
of Nervous shock to blanket a scenario where the plaintiff not necessarily
witness the accident but comes in the immediate aftermath of it. Immediate
aftermath here meant that the plaintiff witnessed victim and when they had
not been cleaned up yet and was almost in same condition as at the time of
accident, thereby make up the accident as an entire event. Thus under
the doctrine of immediate aftermath courts give compensation when the event
leading to the psychiatric injury is one which is chained with the accident
and not a separate one.
Under this case the three factor test was evolved as:
- Who can claim – the courts held that people under close tie like
parent-child or husband, wife can claim (however, in later cases the
ambit was increased to other relations of love and affection) bystanders are not
considered because they are considered to be reasonably having the fortitude
to witness this accident.
- Proximity- to get compensation, the plaintiff must be proximate in
time and space to the accident, but it is not required for him to
witness the accident
- Thirdly, it is also relevant to look at the means through which
injury has been caused.
These are the limiting factors to satisfy when looking at psychiatric
So far, we have seen, in English jurisdiction, the compensation for
psychiatric injuries can be brought up when
- There is a physical injury to the primary victim or a nervous shock
caused to him by apprehension of being under imminent threat.
- When the secondary victim suffers a nervous shock and satisfy the
three factors of Mcloughlin's case.
In the Case of Alcock vs Chief Constable of South Yorkmshire
 there was an endorsement in the Mcloughlin rule, in this case
Hillsborough Football stadium was over crowded during FA cup. 96 spectators
died and 450 had been injured in a stampede. The Claimants witnessed the
accident on TVs, radios etc and brought a claim of psychiatric injury.
The court expanded the criteria of loved ones and started considering
siblings, fiancé etc. as close relationship. Secondly, the courts held that
in this case the proximity is not satisfied nor is the doctrine of immediate
- The broadcasters are liable for shock not the police
- More importantly, the cameras give different views of an accident
not possible for the live viewers. Thus the claim had failed.
Psychiatric injuries to the rescuers
The English jurisdiction has a very generous attitude towards the rescuer
where they have suffered physical harm for example in case of Haynes v
. Where a policeman was injured and while protecting a crowd
from horse negligently left unattended by defendants.
Or in Vaker v T.E. Hopkins and son ltd
 where the representative
of doctors were succeeded in getting the compensation for the death of a
doctor who descended into the well to save a kid who fell due to negligence
of defendant. However, in case of pure psychiatric injuries there is a
series of jurisdictions.
In case of Chadwick v. British Transport Commission
, a train
accident occurred in Lewisham, South London. Chadwick who lived nearby came
to help the victims. He worked throughout the night and thereby suffered
Court awarded him the compensation. The courts preferred the special
treatment to the rescuers. However, in the Case of White Vs. South
 a different stance was taken. In this case, the
claim was brought by rescuers who were working to rescue victims who
suffered in the Hillsborough Football stadium accident.
The courts held that the rescuers would not be able to claim compensation
unless they are in actual threat or satisfy the criteria of secondary victim
as per Alcock case
. The court did this to prevent mere bystanders
from getting the compensation as rescuers. However, English courts generally
presume the rescuers to be under threat and give compensation without
Psychiatric injury caused by defendant endangering himself
In orbiter of Alcock case a question was raised whether compensation could
be sought where the defendant has put himself in risk. This was answered in Greatorex Vs. Greatorex
 where John Greatorex was drunken and
driving car on wrong side and crashed the car. He was trapped inside it.
Fire brigade came to rescue; coincidently one of the rescuers was G
Greatorex, father of John who later on sued his son for the nervous shock.
The court denied the compensation saying that as the injuries were
self-inflicted the compensation to those who were the witnesses is against
the public policy consideration of self-determination. Thus English courts
do not give compensation under such case.
Psychiatric injuries arising because of inflicting harm on others.
English courts also consider the psychiatric injuries to plaintiff where
they suffer because of causing harms to other by zero fault of theirs but of
defendant. For example, in the case of Dooley v Cammell Laird and Co ltd
plaintiff was operating the crane when the wire holding the load snapped,
load fell. Plaintiff suffered a nervous shock that he may have killed his
coworkers. The claim was acknowledged. Lord Hoffman said that:
there may be grounds for treating such a rare category of case as
exceptional and exempt from the Alcock control mechanisms
stance was taken in case of W V. Essex CC
The psychiatric injuries due to dam1age to property
In case of Attia v British gas plc
 the plaintiff's house caught
fire owing to reckless installation of heater by defendant the plaintiff
suffered psychiatric injury and brought a claim. The Birmingham LJ held that
a duty of care could exist in case of damage to property.
Psychiatric injuries in USA
In USA, a limited approach is followed in case of secondary victims is
commonly followed. Initially, all the states of USA used to follow the
concept of Zone of Danger. Zone of danger is defined as the area within
which one is in actual physical peril from the negligent conduct of another
person. Hence this concept is somewhat like the impact theory of UK where
the compensation seeker for had to prove that psychiatric injury arises from
the reasonable apprehension Of physical harm. This was firstly undone in the
1968 case of Dillon v Legg. In this case a small girl was mortally
injured by a car, the sister of victim was also hit by driver but mother was
unharmed. Both mother and sister sued the driver, sister was in zone of
danger, mother wasn't.
But the Californian Court held that the Zone of danger is not a just method
and approached the Control Mech1anism fo1r the secondor4y victims. The
main idea of this control mechanism was that there must be close
relat1ionship among sufferer and plaintiff and there must be direct
perception of accident. Other states who opted out of the concept of Zone
of Danger are Nebraska and Wyoming. However most of the states are still
following the zone of danger test including North Dakota, Minnesota,
Missouri, Colorado and New York.
Instead of referring to psychiatric injury as nervous shock
in USA refer to it as Emotional distress
or mental distress
to cover both the initial emotional reaction to traumatic stimuli and
the secondary more serious physical and psychiatric consequences which may
flow from them
, thus it is suggested that the emotional agony
should also be compensated however, the courts try not to give any
compensation for trivial emotional distress and only compensate the serious
emotional distress. However the definition was quite ambiguous. And a better
understanding is needed.
In Asaro v Cardinal Glennon Memorial Hospital
 the son of
plaintiff underwent a heart surgery to remove the ring from heart, the ring
was not removed properly the kid suffered some the fits of shock and
fainting cycles. The heart was damaged ultimately, another doctor removed
the ring. Mother brought the claim of psychiatric injury against the primary
doctor. It was held that in order to get the compensation, the secondary
victim must prove that his injury are medically diagnosable and also more
than that of an uninterested witness (bystander).
The US jurisdiction grants the compensation to secondary victims in case of
psychiatric injury only when the plaintiff has the close relationship of
intimacy with the sufferer. The Supreme Court of California in Thing v
case, it was held that the compensation should be limited to
the members living in the same residence. In the later case Trombetta
v Conkling et al
 the claimant had seen his aunt being fatally
injured in an accident.
She had brought the claimant up from his childhood. He suffered mental shock
on losing her. However, the court said that because of the poli1cy
consid4eration, we should not grant compensation to the bysta7nders who do
not have blo4od relation8ship with victim. Thus, there is a very limited
approach towards the secondary victim in US jurisdiction.
Psychiatric injuries to the rescuers
In most of the US states there is a principal called the firemen rule is
followed under this rule, it is believed that the members of the emergency
servi1ce providers (Fire brigade, police, life guards etc.) are appointed
and in fact, paid to do the work of the rescuers . hence they should not be
compensated in case they suffer any kind of injury while carrying out the
For an example the case of White v. Edmond
 defendant's house
was on fire by the time white reached the Edmond's property, it was
completely engul8fed in fire. Before White's arrival, the gas cylinder of
Volvo had exploded.
When white was trying to subdue the fire, cylinder again exploded injuring
White in the feat. He sued Edmond. The court applied the fireman rule and
denied the compensation. This rule is followed by most states and the
compensation is not given to the rescuers neither in the case of physical
rescuers nor in the case of psychiatric injuries. State of Pennsylwenia is
one of the few states which do not follow the firemen rule.
Psychiatric injuries arising out of own conduct
In the judgement of Dillon V. Legg
 Justice Tobriner said that if
the child had been injured due to her sole negligence or even because of
contributory negligence. Then, the mother and sister would have failed in
getting any compensation for the mental trauma. The court believed there is
no reason to compensate the secondary victims, if the immediate victim has
been endangered by her own wrongful conduct. There is a consensus on this
line of rationale throughout most of the states of USA. Thus, the
compensation to the secondary victims does depend on the immediate victim.
Psychiatric injuries resulting out of them inflicting harms on other
Again in US, the injuries for mental shock in this type of cases is varying
in different states for example, in Californian case of Kately v
 the plaintiff brought a boat from defendant to ski,
plaintiff and her friend went to ski, while driving the boat, the steering
somehow got jammed and boat couldn't be controlled, friend of plaintiff was
injured in leg, plaintiff suffered psychiatric trauma and sued defendant.
The court granted the compensation. Conversely, in Straub vs Fisher &
Paykel Health Care the claimant, a therapist operated patient on a
faulty ventilator made by defendant. The patient died, plaintiff suffered
emotional distress and sued the defendant. The court in Utah ordered that
the compensation couldn't be granted.
Psychiatric injuries arising out of loss of property
In most if "the USA states, the psychiatric injuries arising out of loss of
property is covered. In the case of Harrison v Raynott
, the house
of Harrison caught fire due to negligence of the watchman. Harrison suffered
mental agony. The Court in California said that the defendant should be
granted both economic and non-economic damages should be granted.
Non-economic damages are referred to as non-mon1etary loss including pain
and suffering, emotional distress.
Psychiatric injuries in Canada
In Canada, in order to get the compensation, you have to show a recognizable
psychiatric injury, mere emotional distress cannot be held to fetch the
compensation. For the primary victim in Canada in order to get the
compensation it is sufficient to show that there was a foreseeability of
harm however, in case of secondary victim, there is a need of establishing
aproximity. The proximity means the relationship of tenderness between
sufferer and plaintiff, the presence and quick arrival.
And most importantly, the immedia1te perception is needed. In Canada the
bystanders has the right to sue but there is a reluctance in granting the
compensation to those who have not have the direct perception, a family was
denied the compensation because he came to see the body after a few hours.
Hence, to get compensation for the secondary victim, the policy
consideration of proximity should be satisfied. The fortitude of the
plaintiff is important, while assessing the compensation it is looked what
was the susceptibility of him. If the plaintiff is hypersensitive then the
court might curtail the compensation or deny it.
Psychiatric injuries to the rescuers
Canadian jurisdiction has a liberal view towards the rescuers. In Fenn v
City of Peterborough, Fenn's house caught fire, his wife and his three
children were there when he arrived, he saw here one kid and wife being
loaded in the ambulance He saw two kids still inside the rubbles, he tried
to rescue them and while doing so he suffered psychiatric injury although he
did have any imminent threat. The court established the res2cuer principle
in this case. The principle was also accepted in the case Bechard v
Psychiatric injuries due to loss of property
In Canada, in past few years, appellate courts have started granting the
compensation in the case of loss of pets Ferguson v. Birchmount Boarding
Kennels Ltd'. (2006),) the plaintiff brought the cage for his dog form
Birchmount. The cage was faulty, the dog escaped and died. Ferguson suffered
the courts had given the compensation for psychiatric injury. Notably, in
Canada the pets considered as property. However, the stand on non-living
property is unclear.
While studying the concept of psychiatric injuries of various countries and
jurisdictions, following trends were seen.
- In case of primary all three jurisdictions, i.e. Canadian, USA and
English jurisdiction have similar approach where if any physical injury
is caused to plaintiff then the compensation for psychiatric injury is
given. Also if there is nervous shock arising out of apprehension of
physical injury, then too the compensation is granted even in absence of
- In case of secondary victims, the approach is somewhat different, in
both UK and Canada in order to get the compensation, the secondary
victim need to have the relationship of tenderness with immediate
sufferer, the proximity (immediate afterma2th rule) needs to be proved.
Both countries try to exclude bystanders from the compensation seeker,
however, in Canada there is some consideration of bystander. In USA,
most of the states follow the rule of Zone of danger which
excludes the secondary victims. The rest of the states have abandoned
this rule. They consider those secondary victims who pass the control
- In the case of rescuers, English and Canadian jurisdiction has a
liberal stance, they consider the rescuers as a category of victims who
should be compensated for the psychiatric injuries. This approach may be
attributed to the public policy consideration to promote the actions of
rescue work. However, in USA many states follow the debated rule of
firemen rule and do not give compensation to rescuers not even in case
of physical injuries, some states have done away with this rule but
still their consideration is limited to physical injuries only.
- Both USA and UK do not consider giving the compensation in a case
where the defendant/immediate victim have because of his wrongful action
has endangered him.
- English jurisdiction considers those cases where the plaintiff has
harmed the third party (immediate victim) due to the defendant's fault
and by the virtue of that fact has suffered the psychiatric injury, so
does many states in the USA. The Canadian courts do not take into
consideration such claims of psychiatric injuries.
- Under English jurisdiction the psychiatric injuries arising out of
loss of property is addressed. This property can be both living (pets)
and non-living. Canadian jurisdiction compensates the loss of animals
but stand on other properties is not clear. In many states of USA
including California, Arkansas the psychiatric injury for loss of
property is addressed.
Through the study of various jurisdictions and cases, we come to see that
the laws regarding psychiatric injuries in various countries converge at
some points and diverge at the others. The laws regarding the psychiatric
injuries are not fully developed anywhere in the world. With the development
in the field of medical sciences, it is needed that the laws pertaining to
nervous shock also evolve. There is much need of development in USA
jurisdiction in terms of psychiatric injuries Canadian and English
jurisdictions are comparatively more liberal and evolved in this regard.
- Encyclopaedia by farlex
- Cathrine Francis et al Media reporting of specific mental illnesses
in the context of crime: implications for mental health literacy, The
Medical Journal of Australia (Dec. 1, 2003, 5:45 PM) https://www.mja.com.au/journal/2003/179/11/media-reporting-specific-mental-illnesses-context-crime-implications-mental
- Victorian Railway Commissioners v. Coultas: PC (1888) 13 App Cas 222
- Dulieu v White and Sons KBD ( 2 KB 669)
- Page v Smith 1995] 2 WLR 644
- Hambrook v Stokes KBD1 k.B.141
- Bourhill v Young  AC 92
- Mcloughlin v O'Brian  1 AC 410
- Mcloughlin v O'Brian  1 AC 410
- Alcock and Others v Chief Constable of South Yorkshire Police QBD (
 2 WLR 814
- Haynes v Harwood KB 1 K.B 146
- Vaker v T.E. Hopkins and son ltd  1 WLR 966 C
- Chadwick v British transport commission 1 W.L.R. 912
- White v Chief constable of south Yorkshire (1999)2,a.c 455
- Supra note 14.
- Greatorex v Greatorex (2000)1 WLR1970
- Dooley v Cammell Laird and Co ltd.  llyod's rep.271
- Supra note 14.
- W v Essex CC (2000)2 ALL E.R 237
- Attia v British gas plc (1988)QB 304
- Dillon v Legg (1968) 29 ALR 3d 1316
- NJ Mullany, "Fear for the Future: Liability for Infliction of
Psychiatric Disorder", chapter 5 of Mullany (ed), Torts in the
Nineties (LBC Information Services, 1997),
- Asaro v Cardinal Glennon Memorial Hospital (1990) 799 SW 2d 595
- Thing v La Chusa (1989) 48 Cal 3d 644
- Trombetta v Conking at al (1989) 48 Cal 3d 644
- White v Edmond (1992) 971 F.2d 681
- Firemen rule abandoned in MULL v. KERSTETTER 373 Pa.Super. 228
- Supra note 21.
- Kately v WIlkinson (1983) 195 Cal Rptr 902.
- Straub v Fisher and Paykel Health Care (1999) 990 P 2d 384 (Utah).
- Fenn v City of Peterborough (1977) 73 DLR (3d) 177
- Bechard v Haliburton Estate (1991) 84 DLR (4th) 668 at 674.52
- Ferguson v Birchmount Boarding Kennels Ltd79 O.R. (3d) 681 (Div. Ct.