NERVOUS SHOCK

Tort is a civil wrong arising from an act or failure to act, independently of any contract, for which an action forpersonal injury or property damages may be brought

Definition of tort according to-

Salmond:- Tort is a civil wrong for which the remedy is a common law

action for unliquidated damages, and which is not exclusively the breach of contract or the breach of trust or other

merely equitable obligation.

What is a Tort?

Winfield:- Tortuous liability arises from breach of duty primarily

fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages

The word tort is equivalent to-WRONG in EnglishDELICT in RomanJIMHA in Sanskrit

When we look at the journey of the word ‘tort’ from France to India we find that it came from to India from

England. In 1605, England was conquered by Normandy (a place in France) and French became the spoken language of courts for many years. Thus, it happened

The word ‘tort’ is of French origin and has been derived from the Latin word tortum which means to twist.

Evolution

That many technical terms of English law are of French origin. When Britishers ruled over India, during the 18th century British courts were established and use of British legal terms were common. Thus, the word ‘tort’ was introduced in Indian legal system.

As per Salmond’s definition, the essentials of a tort are – 1- There must be a civil wrong, 2- The remedy for that wrong, is a common law action for

unliquidated damages, 3- and which is not exclusively the reach of a contract or the

breach of trust or other merely equitable obligation.

According to Dr. Winfield, the essentials of a tort are – 1- Tortuous liability arises from breach of duty primarily fixed by

law, 2- This duty is towards person generally, 3- Its breach is redressable by an action for unliquidated

damages.

Essentials of Tort

It is a shock to the nerve and brain structures of the body It is not a physical injury either by stick, bullet or sword but

merely by what has been seen or heard. E.g., injury through agitation caused by a false alarm

or unlawful threats may result in a nervous breakdown or a mental shock which may injure the plaintiff for his ordinary activities.

It is a shock which arises from a reasonable fear to immediate personal injury to oneself

what is Nervous Shock?

For a case under nervous shock, the plaintiff has to prove the following things: -

Necessary chain of causation between nervous shock and the death or injury of one or more parties caused by the defendant's wrongful act; Plaintiff is required to prove shock caused to him by seeing or hearing something. Physical injury is not necessary; His proximity to the accident was sufficiently close in time and space.

REQUIREMENTS

Thus, a man who came up on a scene of serious accident for

acting as a rescuer, when suffered a nervous shock, was allowed to claim the damages

In Page v. Smith (1995 ) 2 All ER 736) (House of Lords case), the plaintiff, though directly involved in the motor accident remained physically unhurt but suffered a psychiatric illness.

The House of Lords held the defendant liable for damages and laid down the following important propositions: -

in cases involving nervous shock, it is essential to distinguish between the primary victims and secondary victims;in claims of secondary victims, the law insists on certain control mechanisms, to limit the number of potential claimants;

Thus, defendant will not be liable unless the psychiatric injury/nervous shock is foreseeable in a person of normal health.

The control mechanism has no place where the plaintiff is a primary victim.

in claims of secondary victims, it may be legitimate to use hindsight/observation in order to be able to apply the test of reasonable foreseeability; subject to the above, whether the defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal physical injury or nervous shock?If the answer is YES, then the duty of care is established,

even though physical injury does not in fact occur.

the defendant who is under a duty of care to the plaintiff, whether primary or secondary victim, is not liable for damages for nervous shock unless the nervous shock results in some recognized psychiatric illness.The tortfeasor must take his victim as he finds him.A mere bystander not in the vicinity of danger zone and

who suffers injury by nervous shock cannot recover damages from the defendant.

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