Nervous shock denotes psychiatric illness or injury caused to a person by the perception of acts caused due to the negligence of another, for example, by witnessing injury caused to one’s children.
To claim damages for nervous shock, the damage suffered by the plaintiff must not be mere emotional distress of suffering. It must amount to a recognized mental illness like psychotic neurosis or anxiety disorders, schizophrenia etc.
- Essential Elements:
- The plaintiff must perceive a ‘shocking event’ with his own ‘unaided senses’ i.e., without any via media like television, e-mail, etc; or he must view the immediate aftermath of the accident.
- The claimant must have a ‘sufficiently proximate’ relationship with the victim of the defendant’s negligence. For example, relationships of spouses, parents and children and siblings are included. Claims by bystanders are generally ruled out.
- It must be reasonably foreseeable that psychiatric harm to the claimant could be caused. The closer the ties between the claimant and the victim of the accident, the more the likelihood of psychiatric harm.
- Can you recover for psychiatric injuries?
There exists some uncertainty as to whether the courts can accurately determine the extent of a psychiatric injury with regard to the appropriate level of recovery that could or should be awarded. This is illustrated in the 19th Century case of Lynch v Knight.
“Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone” This view was echoed in Gatzow v Buening. The judges on this side of the argument say that in matters relating to psychiatric injury the monetary value of recovery would be purely based on speculation or conjecture and also that injuries could be feigned. In his book, Butler argues that this would be no more uncertain than the attempts by judges in other cases to try to “restore the plaintiff to the position he or she occupied prior to an accident”. Particularly in today’s world where there have been so many medical advances since the time of the Lynch decision recovery on the basis of purely psychiatric injury should really be no more difficult then recovery for a physical injury.