Table of Contents

Nervous Shock is a personal injury to the nerve and brain structure of the body and hence damages may be recovered. Mental shock is a shock to the moral or intellectual sense of a person. Such a shock may be caused by the defendants acts or words without any physical injury or impact.


No action lies for mere mental anguish, feeling or distress. But, if the shock is factual and real then "True nervous shock is as much a physical injury as a broken bone or a torn flesh". The defendant is liable.


Tests of a claim for nervous shock:

The legal test for a nervous shock claim typically involves three criteria established by common law:


  1. Duty of Care: The defendant must owe the plaintiff a duty of care, meaning the defendant had a legal obligation to act reasonably and avoid causing harm to the plaintiff.


  1. Foreseeability of Psychological Harm: It must be reasonably foreseeable that the plaintiff could experience psychological harm as a result of the defendant’s actions or inaction. In other words, a reasonable person in the defendant’s position should have anticipated the risk of causing psychological harm to the plaintiff.


  1. Causation: The plaintiff’s psychological injury must be a direct result of the defendant’s negligent act or omission. The plaintiff must establish a clear causal link between the defendant’s actions and their psychological harm.


Who can bring a Nervous Shock Claim?

A nervous shock in tort claim can be brought by an individual who has been diagnosed with a genuine mental illness resulting from an event that the defendant should have reasonably anticipated could cause such an illness in a person of “normal fortitude” if reasonable care were not taken.


In addition to the affected individual, certain close relatives of the victim can also bring a nervous shock claim. These close relatives include:

  1. One of the victim’s parents.
  2. People who are parents to the victim.
  3. The victim’s spouse or domestic partner.
  4. The victim’s child or stepchild.
  5. Any other individual for whom the victim serves as a parent.


The term “close relatives” also encompasses siblings, half-brothers or half-sisters, step-brothers and step-sisters. A spouse, husband, wife or de facto partner is referred to as a “spouse or partner” in this context. These close relatives may bring a nervous shock claim if the criteria for such a claim are met.


Relevant Case Laws:

Here are two notable case laws related to nervous shock in tort:


1. Bourhill v. Young (1943)


  1. Facts - In this case, the House of Lords addressed the issue of liability for mental illness. A pregnant woman exited a tram and heard the distant sound of a car accident. She then visited the accident scene, saw blood on the road and later experienced a miscarriage due to the stress she endured.


  1. Judgement - The House of Lords ruled that the woman was not a “foreseeable claimant.” In other words, she was not allowed to base her claim on harm done to another person. This case set a precedent that limited who could bring a claim for nervous shock in torts.


2. McLoughlin v. O’Brian (1983)


  1. Facts - In this case, the plaintiff was not physically present near the accident but was greatly distressed upon learning about it.


  1. Judgement - The House of Lords held the defendants responsible and expanded the law to include cases where the plaintiff arrived immediately after the accident but had not personally witnessed or heard it. Lord Wilberforce proposed three control mechanisms that should be determined in each case: the group of people whose claims should be accepted, their proximity to the disaster and the mechanisms leading to mental illness. Following a unanimous vote in the House of Lords, these control mechanisms were revised and applied to cases involving nervous shock in torts.


Conclusion:

Nervous shock in tort law refers to the emotional distress or psychiatric harm suffered by an individual due to the negligent or intentional actions of another party. To establish a claim for nervous shock, several key elements must be proven, including the defendant’s duty of care, a breach of that duty, foreseeability of psychological harm and a direct causal link between the defendant’s actions and the plaintiff’s emotional distress.