Recovery for Pure Nervous Shock - Assignment Example

Recovery for Pure Nervous Shock of the Name of the Concerned Professor 28 January 2011 Should our courts, as Jane Stapleton has suggested, wipe out recovery for pure nervous shock on the basis that no reasonable boundaries for the cause of action can be found? Law, as any other socio-political institution, does not happen to be a static entity, but an organic discipline, which evolves in tandem with the other developments taking place in the society at large. The concept of intentional or unintentional harm caused to a citizen is a subject that is always open to alternative interpretations, in the context of the vantage point from which it is analyzed. It goes without saying that existed times in the history of the English society in general and the world community in particular when ‘harm’ as it goes in the law was considered to be a gross and visible injury caused to a person or persons1. As the science of psychology and psychiatry evolved and gained formal recognition, it dawned upon the society and the associated disciplines and institutions like law that the notion of a ‘psychiatric injury or harm’, sometimes unaccompanied by blood or gore was a valid, acceptable and plausible possibility. So, the institution of law attempted to commensurately extend the available remedies and recoveries, albeit to accommodate within its ambit the notions of psychiatric injury or harm. The concept of ‘nervous shock’ within the English law is a direct outcome of such humane and propitious developments.2 The problem is that the ‘nervous shock’ inflicted on a person is often not quantifiable like physical injuries, not to mention the many other pragmatic problems associated with this legal concept. In the light of this problem, there exists a school of intelligentsia represented by luminaries like Jane Stapleton who advocate the abolition of the legal remedies associated with such harm.3 Yet, it will be utterly sensitive and reasonable to hold that considering the problems and confusions associated with a form of injury or harm, necessitates and calls for a further evolution of the English law, rather than vying for the already scarce remedies available for it. Nervous Shock As per the English Law, ‘nervous shock’ stands to be a psychiatric illness caused to a person, usually intentionally. This legal provision also includes the psychiatric illnesses caused to a person owing to the negligent behaviour of somebody. It goes without saying that the term ‘nervous shock’ is somewhat misleading in the context of the issue it intends to cover. Yet, the English Law has chosen to continue with the usage of this term to refer to the complex notion or concept it alludes to. As per the English Law, a person can claim damages, owing to the nervous shock caused to one by the intentional or negligent behaviour of a person or a party. However, recovery due to nervous shock is to some extent restrained if not impossible in the English Law. This development is influenced by the fact that mostly no reasonable boundaries for the course of action can be traced in such cases. ‘Nervous shock’ is this context is an issue that the English Law is still trying to grapple with so as to somewhat concretize and positively solidify the remedies and provisions associated with this form of wrong or injury.4 Problems Associated with the Concept of Nervous Shock In the realm of law, which depends to a great extent on logic, rationality and the analysis of reasonable and verifiable facts, the concept of ‘nervous shock’ almost seems to be an aberration and anomaly. In that context, the possibility of a mental injury or shock appears to have a predilection towards the realm of philosophy or metaphysics. Mind, no doubt, since times immemorial has been considered to be a metaphysical term, which is known and understood by many but which evades all attempts at generalization or the possibility of arriving at a common agreement as to holding some universal definition.5 Mind is an attribute that has to do with the consciousness of the human beings, and consciousness is a term that is still considered to be vague, amorphous and confusing.6 Thus mind is a word that caters to the descriptive or analytical attributes of human reason, but eludes all attempts at establishing some substantial attributes. The law does recognize the fact that mental ailments, disorders or problems are as real and authentic as physical ailments and diseases. Yet, the law has been at a loss to furnish a rational understanding when somebody refers to having suffered a mental injury. Not only is it difficult to establish the causation of a mental injury, it is also arduous as to understand the extent and magnitude of a mental injury and establishing a commensurate level of recovery owing to a mental injury. Now, the point is that the law simply cannot ignore an area of hurt or injury, just because there do not exist concrete scientific instruments to authenticate and quantify it. The challenge before law is not to do away with recovery for pure nervous shock, but to hold on to this area till it succeeds in arriving at the statutory instruments that justly and logically settle claims associated with nervous shock. The recent developments in science have already made way for a better understanding of psychiatric injuries and losses. The scientific advances in neurology have already brought the idea of psychiatric injury, closer to the notion of a physical injury.7 Now it is well understood that psychiatric injuries do involve verifiable changes in the chemistry and cytology of brain.8 So, now it is more than ever difficult for law to do away with the option of recovery due to pure nervous shock, as such claims now come backed with authentic scientific reasons if not proofs. It is today more relevant to say that psychiatric injury is a branch of law that has still to learn a lot to accomplish a concrete and practical metamorphosis. The good thing is that it is not that law has been always oblivious of mental distress and pain. The English Law do extends damages for pain and suffering caused by a physical injury. Also the Fatal Accidents Act 1976 allows for the payment of damages owing to the bereavement suffered by the wrongful death of a loved one. The provision for recovery due to pure mental shock is an expected and understandable step in the movement for legal evolution and the English Law has already achieved much in that direction. Establishment of Nervous Shock suffered owing to Negligence. As it goes with the establishment of a physical injury, the existing instruments and mechanisms of the English Tort Law, do serve a similar purpose in the case of nervous shock.9 It is not that the English Law will have to start from a zero in that direction. For example, while claiming recovery owing to the nervous shock suffered by a claimant, one is required to pursue the same line of establishment as enunciated in the tort of negligence that are: To verify a duty on the part of the guilty party as to not to cause nervous shock to the claimant.10 To establish a breach of that duty.11 To establish a direct link between the breach of that duty on the part of the defendant and the causation of nervous shock to the claimant.12 To establish that the causation of nervous shock was not to remote a consequence of the breach on the part of the defendant.13 The existing statutory instruments and mechanisms in the Law of Tort do serve the purpose of the provision of ‘nervous shock’, to begin with. The deliberate further, it will be really interesting to delve on the development of the concept of recovery for pure nervous shock in the English Law. Tracing the English Jurisprudence on the Concept of Recovery for Pure Nervous Shock Morris v KLM14 was the instance when the English legal system was required to confabulate on the possibility of incorporation of mental injury in the existing social and commercial legal instruments. A 15 year old girl claimed of having suffered clinical depression owing to an assault inflicted by an indecent co-passenger. This case nudged the courts of law in England to delve on the notion of nervous shock and psychiatric injury in a contemporary perspective. The English legal system gave way to the extent of agreeing that if a claimant developed a recognized psychiatric illness owing to negligence, the possibility of recovery exists. In Victorian Railway Commissioners v Coultas15, the law propounded the ‘floodgate argument’, thereby recognizing the possibility of an inundation of the legal system with a range of spurious cases demanding recovery for nervous shock. While doing so, the legal system agreed that though the possibility of injury resulting from nervous shock was valid, the concept was indeed clouded by ramifications which could defy the existing knowledge and rational. It was indeed a great landmark in the history of English Law. Dulieu v White16 was the case that concretized the provision that in case a claimant suffered psychiatric injury owing to a fear of the possibility of a physical injury caused by an act of a defendant, the recovery claim would be held to be valid. Hambrook v Stokes17 ushered in the concept of ‘secondary victim’, which pertained to a psychiatric injury suffered by a person owing to the apprehension of threat to a loved one. Bourhill v Young18 consolidated the concepts of causation and remoteness in the existing legal provisions. The other cases that signified to be termed the epoch making steps in the development of the legal concept of ‘nervous shock’ are White v Chief Constable of South Yorkshire Police19, Chadwick v British Railways Board20, McLoughlin v O’Brian21, Alcock v Chief Constable of South Yorkshire Police22, etc. Even a cursory perusal of the above mentioned cases safely leads to the conclusion that the English Law till today has not only been successful in evolving the system as to the provisions regarding recovery for nervous shock. This evolution on the one hand had been a result of the fine tuning of the legal system in the light of the admission of successive and new cases pertaining to nervous shock, presenting novel and unheard of possibilities and variations. The inputs facilitated by the science of psychology and psychiatry are also bound to make significant contributions to this concept in the times to come. So, it will be really farfetched to demand the abolition of recovery for pure nervous shock, when the legal system has already come too far and has succeeded in figuring out the concept by the development of valid precedence, control criteria and strict requirements. Conclusion There is no denying the fact that human evolution in an individual and societal sense is far from being complete. With the passage of time, the law will have access to new inputs and information from varied sources including science and the discipline of sociology. This will led to the inculcation of unheard of concepts within the ambit of law that may include cyber law, laws related to intellectual property, law related to space and what not. Hence, it would not be optimist to shy away from these concepts by refusing to develop legal structures regarding them or abolishing such legal provisions. And ‘nervous shock’ is one such concept. The premise of Jane Stapleton in this context stands to be invalid and conclusively pessimistic. Word Count: 2,050 Reference List Alcock v Chief Constable of South Yorkshire [1992] AC 310 Bourhill v Young [1943] AC AC 92 Chadwick v British Railways Board [1967] WLR 912 Dulieu v White [1901] 2 KB 669 Garland, Brent 2004, Neuroscience & Law, Dana Press, London. Hambrook v Stokes [1925] 1 KB 141 Hamilton, Peter J 2010, The Origin and Growth of the Common Law in England & America, Cornell University Library, New York. Harpwood, Vivienne 2003, Modern Tort Law, Cavendish Publishing, London. Lanqbein, John H & Lerner, Renee Le How, 2009, History of the Common Law, Wolters Kluwer & Business, London. Markesinis, BS & Unberath, Hannes 2002, The German Law of Torts, Hart Publishing, London. McLoughlin v O’Brian [1983] AC 410 Morris v KLM [2001] 3 WLR 351 Victorian Railway Commissioners v Coultas (1888) App Cas 222 Villanueva, Enrique (ed.) 2008, Law: Metaphysics, Meaning and Objectivity, Rodopi, New York. White v Chief Constable of South Yorkshire Police [1999] 2AC 455 Wintgens, Luc J 2011, The Law in Philosophical Perspectives, Springer, London. Wishik, Jeffrey 2005, Medical and Legal Aspects of Neurology, Lawyers & Judges Publishing, New York. Youngs, Raymond 1988, English, French and German Comparative Law, Routledge, London. Read More