Liability in Tort for Nervous Shock

by Okeeto DaSilva, Attorney-at-Law

Nervous shock is a form of psychiatric injury that is caused or brought on by either

being directly involved in an accident or witnessing a loved one involved in an accident1.

According to Lord Ackner, shock is “the sudden appreciation by sight or sound of a

horrifying event, which violently agitates the mind2.

Nervous shock was explored in the case of Hambrook v Stokes Bros. Lord Atkin LJ, in
Hambrook v Stokes stated that a mother shocked by fright for herself as a result of an
accident can also recover as well as mother who was shocked as a result of her seeing
her children die before her eyes3.The statement made by Lord Atkin implies that shock
is a form of psychiatric injury.

Primary and Secondary Victims

A distinction must be made between mere grief and nervous shock. According to Lord
Denning, one cannot receive compensation for mere grief or bereavement or emotional
distress caused by the injury or death of another4. One can however recover damages
for nervous shock in certain instances. The law of nervous shock distinguishes between
primary and secondary victims5. Primary victims are persons who are directly involved
in an accident, while secondary victims perceive an accident or come up on its
immediate aftermath6.

A restricted category of duty of care

Nervous shock is restricted in its scope and only where there is proximity between the
claimant and the defendant; that is where nervous shock is a reasonable foreseeable
result of the claimants act, the claimant will be able to successfully sue7.

Nervous shock versus other types of psychological trauma

Nervous shock is significant because not every psychological trauma or injury can be
the subject of a claim. As highlighted in Hinz v Berry, one cannot claim damages for
mere grief or bereavement8 The word shock as indicated before is distinguished from
other types of mental trauma such as grief and based on the words of Lord Ackner in

1
Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310
2
Ibid
3
Hambrook v Stokes Bros [1925] 1 KB 141
4
Hinz v Berry [1970] 2 QB 40, 42
5
Alcock (n1)
6
Ibid
7
Bourhill v Young [1943] AC 92
8
Hinz (n4)
Alcock, there must be some sort of sudden effect on the individual when he or she
perceives the accident9

The rights of Secondary Victims

In McLoughlin v O’Brian, Lord Wilberforce indicated that the class of persons with close
family ties are the ones who can make a claim when it relates to secondary victims and
primary victims; he indicated that parents, husbands, wife and children are the class of
persons that would fall under the category of secondary victims10 . The purpose of this
classification would be to ensure the floodgates are not open to an indeterminable
amount of claims.

Limitations in recovering damages for Nervous shock

Limitation in respect of recovery for nervous shock for secondary victims was set out in White v Chief
Constable of South Yorkshire11;

(a)The claimant must not have been abnormally susceptible to psychiatric illness

(b)The psychiatric harm must have occurred through shock

(c)The claimant must have been in physical proximity to the accident or its aftermath

(d) The claimant must have a close personal or familial relationship with the accident victim

9
Alcock (n1)
10
Mcloughlin v O’Brien [1983] 2 AC 410
11
[1999] 2 AC 455
Table of Cases

Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310

Bourhill v Young [1943] AC 92

Hambrook v Stokes Bros [1925] 1 KB 141

Hinz v Berry [1970] 2 QB 40, 42

Mcloughlin v O’Brien [1983] 2 AC 410