Law of Torts

LLB 1st Sem

Unit – III: Specific Torts

 Defamation
 Negligence
 Nuisance
  Assault, battery and mayhem
 False imprisonment and malicious prosecution
 Nervous Shock

Defamation

Elements of Defamation

Defamation occurs when the defendant makes a defamatory statement of and concerning the plaintiff with
publication to a third party. In matters of public concern, there are additional requirements of fault and falsity.
Damages only need to be proven in certain types of slander cases; otherwise, damages are presumed.

1. Slander (Defamatory statement) : A statement that will adversely affect the plaintiff’s reputation.

The statement must be either alleging factual information or stating an opinion that is likely to be interpreted as
having a factual basis (e.g., merely calling someone mean and nasty would not generally be considered a
defamatory statement).

2. Libel(Publication): For publication to occur, someone other than the plaintiff (a third party) must hear or read
the defamatory statements. Intent is not a factor; publication can occur through the defendant’s negligence.

Matters of public concern: Can either involve defamatory statements made about public figures and officials (e.g.,
famous actors or politicians) or private figures regarding events that are a public concern (e.g., a private citizen
involved in a public demonstration).In addition to the normal requirements for a defamation claim, matters of
public concern have:

• Fault: The plaintiff must prove that the defendant acted with a certain level of fault. For public figures and
officials, the standard is reckless disregard for the truth. For private figures regarding events that are a public
concern, a simple negligence standard applies.

• Falsity: Damages requirements for slander vs. libel The plaintiff must prove that the defamatory statements are
false.

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Slander is spoken defamation whereas libel is defamation in a more permanent format (usually written). Slander
per se is a special category of slander where there is no obligation for the plaintiff to prove damages. Slander per
se is based on common law and includes statements that are about a plaintiff’s profession, impute unchastity to a
woman, imply that the plaintiff has a loathsome disease, or accuse the plaintiff of a crime of moral turpitude. In all
other slander claims, the plaintiff must prove damages, specifically economic harm. Libel claims do not require
proof of damages.

Defences to Defamation

There are five major defenses to defamation.

1. Truth: Always a defense in matters of private concern. For matters of public concern, the plaintiff has the burden
to prove falsity as an element of the claim.

2 Consent: A defense in all defamation matters. If the defendant has permission to make the defamatory
statements, the plaintiff cannot support a valid claim.

3. Humor: There is a first amendment defense related to humor if the defendant can prove that the
audience believed the statements were made in jest.

4. Absolute privilege: Applies in very limited circumstances. In general, absolute privilege exempts persons
from liability for potentially defamatory statements made:

  during judicial proceedings

  by high government officials
  by legislators during legislative debates  during political broadcasts or speeches, and 
in between spouses.

5. Qualified privilege: Other types of communications are subject to what is called a qualified privilege, meaning
that the person making the allegedly defamatory statement may have had some right to make that statement.

If a qualified privilege applies to a statement, it means that the person suing for defamation must prove that the
person who made the defamatory statement acted intentionally, recklessly, or with malice, hatred, spite, ill will or
resentment, depending on your state’s law.

Just some of the statements for which a qualified privilege applies are:- 

 statements made in governmental reports of official proceedings

 statements made by lower government officials such members of town or local boards
 citizen testimony during legislative proceedings
 statements made in self-defense or to warn others about a harm or danger
 certain types of statements made by a former employer to a potential employer regarding the employee,
and
 published book or film reviews that constitute fair criticism.

The employer review qualified privilege is particularly noteworthy. In order to avoid defamation claims, some
employers these days refuse to confirm any details about former employees other than their dates of
employment. But certain types of negative statements might fit in under the qualified privilege category, If, for

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example, the employer fired the employee for theft, a statement about that to a potential employer might qualify
as a statement made to warn others about a harm or danger (i.e., the danger of hiring someone who might steal
from you).

Negligence

In everyday usage, the word ‘negligence’ denotes mere carelessness. In legal sense it signifies failure to exercise
standard of care which the doer as a reasonable man should have exercised in the circumstances. In general, there
is a legal duty to take care when it was reasonably foreseeable that failure to do so was likely to cause injury.
Negligence is a mode in which many kinds of harms may be caused by not taking such adequate precautions.

According to Winfield and Jolowicz- Negligence is the breach of a legal duty to take care which results in damage,
undesired by the defendant to the plaintiff.

In Blyth v. Birmingham Water Works Co., (1856) LR 11 Exch. 781; Alderson, B. defined negligence as, negligence is
the omission to do something which a reasonable man…….. would do, or doing something which a prudent or
reasonable man would not do.

In Lochgelly Iron & Coal Co. v. Mc Mullan, 1934 AC 1; Lord Wright said, negligence means more than headless or
careless conduct, whether in commission or omission; it properly connotes the complex concept of duty, breach
and damage thereby suffered by the person to whom the duty was owing.

Essentials of negligence:

In an action for negligence, the plaintiff has to prove the following essentials:

1. Duty to take care: One of the essential conditions of liability for negligence is that the defendant owed a legal
duty towards the plaintiff. The following case laws will throw some light upon this essential element. In Grant v.
Australian Knitting Mills Ltd., 1935 AC 85; the plaintiff purchased two sets of woolen underwear from a retailer and
contacted a skin disease by wearing underwear. The woolen underwear contained an excess of sulphates which
the manufacturers negligently failed to remove while washing them. The manufacturers were held liable as they
failed to perform their duty to take care.

2. Duty to whom: Donoghue v. Stevenson, 1932 AC 562 carried the idea further and expanded the scope of duty
saying that the duty so raised extends to your neighbour. Explaining so as to who is my neighbour Lord Atkin said
that the answer must be “the persons who are so closely and directly affected by my act that I ought reasonably to
have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are
called in question”.

3. Duty must be towards the plaintiff- It is not sufficient that the defendant owed a duty to take care. It must also
be established that the defendant owed a duty of care towards the plaintiff.

In Bourhill v. Young, 1943 AC 92; the plaintiff, a fishwife, alighted from a tram car. While she was being helped in
putting her basket on her back, a motor-cyclist after passing the tram collided with a motor car at the distance of

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15 yards on the other side of the tram and died instantly. The plaintiff could see neither the deceased nor the
accident as the tram was standing between her and the place of accident. She had simply heard about the collision
and after the dead body had been removed she went to the place and saw blood left on the road. Consequently,
she suffered a nervous shock and gave birth to a still-born child of 8 months. She sued the representatives of the
deceased motor-cyclist. It was held that the deceased had no duty of care towards the plaintiff and hence she
could not claim damages.

4. Breach of duty to take care: Yet another essential condition for the liability in negligence is that the plaintiff must
prove that the defendant committed a breach of duty to take care or he failed to perform that duty.

In Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750; a clock-tower in the heart of the Chandni
Chowk, Delhi collapsed causing the death of a number of persons. The structure was 80 years old whereas its
normal life was 40-45 years. The Municipal Corporation of Dellhi having the control of the structure failed to take
care and was therefore, liable.

In Municipal Corporation of Delhi v. Sushila Devi, AIR 1999 SC 1929; a person passing by the road died because of
fall of branch of a tree standing on the road, on his head. The Municipal Corporation was held liable.

5. Consequent damage or consequential harm to the plaintiff: The last essential requisite for the tort of negligence
is that the damage caused to the plaintiff was the result of the breach of the duty. The harm may fall into following
classes:-

 physical harm, i.e. harm to body;

 harm to reputation;
 harm to property, i.e. land and buildings and rights and interests pertaining thereto, and his goods;
 economic loss; and mental harm or nervous shock.

In Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2 SCC 634; a cotton mop was left inside the body by
the negligence of the doctor. The doctor was held liable.

Defences for negligence: In an action for negligence following defences are available:-

1. Contributory negligence: It was the Common law rule that anyone who by his own negligence contributed to the
injury of which he complains cannot maintain an action against another in respect of it. Because he will be
considered in law to be author of his wrong.

Butterfield v. Forrester, (1809) 11 East 60; the defendant had put a pole across a public thoroughfare in Durby,
which he had no right to do. The plaintiff was riding that way at 8’O clock in the evening in August, when dusk was
coming on, but the obstruction was still visible from a distance of 100 yards, he was riding violently, came against
the pole and fell with the horse. It was held that the plaintiff could not claim damages as he was also negligent.

2. Act of god or vis major: It is such a direct, violent, sudden and irresistible act of nature as could not, by any
amount of human foresight have been foreseen or if foreseen, could not by any amount of human care and skill,
have been resisted. Such as, storm, extraordinary fall of rain, extraordinary high tide, earth quake etc.

In Nichols v. Marsland, (1875) LR 10 Ex.255; the defendant had a series of artificial lakes on his land in the
construction or maintenance of which there had been no negligence. Owing to an exceptional heavy rain, some of

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the reservoirs burst and carried away four country bridges. It was held that, the defendant was not liable as the
water escaped by the act of God.

3. Inevitable accident: Inevitable accident also works as a defence of negligence. An inevitable accident is that
which could not possibly, be prevented by the exercise of ordinary care, caution and skill. it means accident
physically unavoidable.

In Brown v. Kendal, (1859) 6 Cussing 292; the plaintiff’s and defendant’s dogs were fighting, while the defendant
was trying to separate them, he accidentally hit the plaintiff in his eye who was standing nearby. The injury to the
plaintiff was held to be result of inevitable accident and the defendant was not liable. In Holmes v. Mather, (1875)
LR 10 Ex.261, 267; a pair of horses were being driven by the groom of the defendant on a public highway. On
account of barking of a dog, the horses started running very fast. The groom made best possible efforts to control
them but failed. The horses knocked down the plaintiff who was seriously injured, it was held to be an inevitable
accident and the defendant was not liable.

In Stanley v. Powell, (1891) 1 QB 86; the plaintiff and the defendant, who were members of a shooting party, went
for pheasant shooting. The defendant fired at a pheasant, but the shot from his gun glanced off an oak tree and
injured the plaintiff. It was held that the accident was an inevitable accident and the defendant was not liable.

Res ipsa loquitur-

It means ‘the things itself speaks’. When the accident explains only one thing and that is that the accident could
not ordinarily occur unless the defendant had been negligent, the law raises a presumption of negligence on the
part of the defendant.

Hambrook v. Stokes Bors. – Soon after parted with her children in a narrow street, a lady saw a lorry violently
running down the narrow street. When told by some bystander that a child answering the description of one of her
children had been injured, she suffered a nervous shock which resulted in her death. The defendant was held
liable.

Contributory negligence

When the plaintiff by his own want of care contributes to the damage caused by the negligence or wrongful
conduct of the defendant, he is considered to be guilty of contributory negligence. This is a defence in which the
defendant has to prove that the plaintiff failed to take reasonable care of his own safety and that was a
contributing factor to harm.

Rural Transport Service v. Bezlum Bibi (1980) – The conductor of an overcrowded bus invited passengers to travel
on the roof of the bus. The driver ignored the fact that there were passengers on the roof and tried to overtake a
cart. As a result, a passenger was hit by a branch of tree, fell down, received injury and died. It was held that both
the driver and the conductor were negligent towards the passengers, there was also contributory negligence on
the part of the passengers including the deceased, who took the risk of travelling on the roof of the bus.

Yoginder Paul Chowdhury v. Durgadas (1972) – The Delhi High Court has held that a pedestrian who tries to cross a
road all of a sudden and is hit by a moving vehicle, is guilty of contributory negligence.

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Nuisance

Nuisance claims deal with infringement of property rights. Generally, the remedy for a nuisance claim is damages;
however, injunctive relief is available in cases where damages are considered inadequate (e.g., toxic fumes are
creating a serious health risk to the surrounding community).

The two types of nuisance are private nuisance and public nuisance. A private nuisance is a civil wrong; it is the
unreasonable, unwarranted,or unlawful use of one's property in a manner that substantially interferes with the
enjoyment or use of another individual's property, withoutan actual Trespass or physical invasion to the land. A
public nuisance is a criminal wrong; it is an act or omission that obstructs, damages,or inconv eniences the rights of
the community.

1. Public Nuisance

The term public nuisance covers a wide variety of minor crimes that threaten the health, morals, safety, com fort,
convenience, or welfare of acommunity. Violators may be punished by a criminal sentence, a fine, or both. A
defendant may also be required to remove a nuisance or to pay the costs of removal. For example, a manufacturer
who has polluted a stream might be fined and might also be ordered to pay the cost of cleanup. Public nuisances
may interfere with public health, such as in the keeping of diseased animals or a malarial pond. Public safety
nuisances include shooting fireworks in the streets, storing explosives, practicing medicine without a license, or
harboring a vicious dog.Houses of prostitution, illegal liquor establishments, Gaming houses, and unlicensed prize
fights are examples of nuisances that interfere with public morals. Obstructing a highway or creating a condition to
make travel unsafe or highly disagreeable is examples of nuisances threatening the public convenience.

A public nuisance interferes with the public as a class, not merely one person or a group of citizens. No civil remedy
exists for a private citizen harmed by a public nuisance, even if his or her harm was greater than the harm suffered
by others; a criminal prosecution is the exclusive remedy. However, if the individual suffers harm that is different
from that suffered by the general public, the individual maymaintain a tort action for damages. For example, if
dynamiting has thrown a large boulder onto a public highway, those who use the highway cannot maintain a
nuisance action for the inconvenience. However, a motorist who is injured from colliding with the boulder may
bring a tortaction for personal injuries.

Some nuisances can be both public and private in certain circumstances where the public nuisance substantially
interferes with the use of an individual's adjoining land. For example, Pollution of a river might constitute both a
public and a private nuisance. This is known as a mixednuisance.

2. Private Nuisance

A private nuisance is an interference with a person's enjoyment and use of his land. The law recognizes that
landowners, or those in rightful possession of land, have the right to the unimpaired condition of the property and
to reasonable comfort and convenience in its occupation.

Examples of private nuisances abound. Nuisances that interfere with the physical condition of the land include
vibration or blasting thatdamages a house; destruction of crops; raising of a water table; or the pollution of soil, a
stream, or an underground water supply. Examples of nuisances interfering with the comfort, con venience, or
health of an occupant are foul odors, noxious gases, smoke, dust, loud noises,excessive light, or high temperatures.
Moreover, a nuisance may also disturb an occupant's mental tranquility, such as a neigh bor who keepsa vicious
dog, even though an injury is only threatened and has not actually occurred. An attractive nuisance is a danger

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likely to lure children onto a person's land. For example, an individual who has a pool on his property has alegal
obligation to take reasonable precautions, such as erecting a fence, to prevent foreseeable injury to children.

Trespass is sometimes confused with nuisance, but the two are distinct. A trespass action protects against an
invasion of one's right to exclusive possession of land. If a landowner drops a tree across her neighbor's boundary
line she has committed a trespass; if her dog barks all night keeping the neighbor awake, she may be liable for
nuisance.

Trespass to the person

There are three types of trespass, the first of which is trespass to the person. Whether intent is a necessary
element of trespass to the person varies by jurisdiction. Under English decision, Letang v Cooper, intent is required
to sustain a trespass to the person cause of action; in the absence of intent, negligence is the appropriate tort. In
other jurisdictions, gross negligence is sufficient to sustain a trespass to the person, such as when a defendant
negligently operates an automobile and strikes the plaintiff with great force. "Intent is to be presumed from the
act itself." Generally, trespass to the person consists of three torts: assault, battery, and false imprisonment.

Assault, battery and mayhem

Assault and Battery are two terms that are used interchangeably extremely often. In one’s mind, the term ‘assault’
means to physically hit or injure another, but it is not so. They are two distinct legal terms. In reality, it is ‘battery’
that means the action of physical force upon a person, whilst ‘assault’ refers to attempting battery or allowing one
to believe that an act of battery is about to occur. There is also another tort in relation to Assault and Battery called
‘mayhem’ which is an offense against the person in which the offender violently deprives his victim of a member of
his body, thus making him less able to defend himself.

Assault

Under the statutes of various common law jurisdictions, assault is both a crime and a tort. Generally, a person
commits criminal assault if he purposely, knowingly, or recklessly inflicts bodily injury upon another; if he
negligently inflicts bodily injury upon another by means of dangerous weapon; or if through physical menace, he
places another in fear of imminent serious bodily injury. A person commits tortuous assault when he engages in
"any act of such a nature as to excite an apprehension of battery [bodily injury]". In some jurisdictions, there is no
requirement that actual physical violence result—simply the "threat of unwanted touching of the victim" suffices
to sustain an assault claim. Consequently, in R v Constanza, the court found a stalker's threats could constitute
assault. Similarly, silence, given certain conditions, may constitute an assault as well. However, in other
jurisdictions, simple threats are insufficient; they must be accompanied by an action or condition to trigger a cause
of action.

Incongruity of a defendant's language and action or of a plaintiff's perception and reality may vitiate an assault
claim. In Tuberville v Savage, the defendant reached for his sword and told the plaintiff that "if it were not assize-
time, I would not take such language from you". In its American counterpart, Commonwealth v. Eyre, the
defendant shouted "if it were not for your gray hairs, I would tear your heart out". In both cases, the courts held
that despite a threatening gesture, the plaintiffs were not in immediate danger. The actions must give the plaintiff
a reasonable expectation that the defendant is going to use violence; a fist raised before the plaintiff may suffice;
the same fist raised behind the window of a police cruiser will not.

Battery

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Battery is "any intentional and unpermitted contact with the plaintiff's person or anything attached to it and
practically identified with it". The elements of battery common law vary by jurisdiction. A general rule to determine
liability for battery:

An act which, directly or indirectly, is the legal cause of a harmful contact with another's person makes the actor
liable to the other, if:

(a) the act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof
to the other or a third person, and

(b) contact is not consented to by the other or the other's consent thereto is procured by fraud or duress, and

(c) the contact is not otherwise privileged.

Battery torts under Commonwealth precedent are subjected to a four point test to determine liability:

1. Directness. Is the sequence of events connecting initial conduct and the harmful contact an unbroken series?

2. Intentional Act. Was the harmful contact the conscious object of the defendant? Did the defendant intend to
cause the resulting harm? Though the necessity of intent remains an integral part of Commonwealth battery, some
Commonwealth jurisdictions have moved toward the American jurisprudence of "substantial certainty". If a
reasonable person in the defendant's position would apprehend the substantial certainty of the consequences of
his actions, whether the defendant intended to inflict the injuries is immaterial.

3. Bodily Contact. Was there active (as opposed to passive) contact between the bodies of the plaintiff and the
defendant?

4. Consent. Did the plaintiff consent to the harmful contact? The onus is on the defendant to establish sufficient
and effective consent.

Mayhem

Mayhem is a tort that causes severe injury to the victim such that he is unable to defend himself from the
tortfeasor. It is closely intertwined with assault and battery. While assault refers to the threat of battery, and
battery is the physical usage of force against a person, mayhem deals with the disfigurement or loss of any body
part due to physical injury caused by tortfeasor. The disabling of an arm, hand, finger, leg, foot, or eye are
examples of mayhem. To be guilty of the criminal offense, one must intend to ddismember the victim or must
assault him so recklessly as to create the danger of dismemberment even though not intending to cripple.

Several jurisdictions do not consider the difference between mayhem and battery, but rather count mayhem as a
form of ‘aggravated battery’ as is done in countries like Japan. The United States considers mayhem as a felony.
The concept of Mayhem can be understoodthrough the following cases –

Fetter v. Beale [91 Eng. Rep. 1122] – The plaintiff had recovered damages from the defendant for an action of
battery. Shortly thereafter, “part of his skull by reason of the said battery came out of his head”, and the plaintiff
brought a subsequent action under mayhem. Through this case, the scope of mayhem was also expandeexpanded
to loss of skull.

False Imprisonment

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False imprisonment is defined as "unlawful obstruction or deprivation of freedom from restraint of movement". In
some jurisdictions, false imprisonment is a tort of strict liability: no intention on the behalf of the defendant is
needed, but others require an intent to cause the confinement. Physical force, however, is not a necessary
element, and confinement need not be lengthy; the restraint must be complete, though the defendant needn't
resist.

A tort distills false imprisonment liability analysis into a four-prong test:

1. The defendant intends to confine the plaintiff. (This is not necessary in Commonwealth jurisdictions.)

2. The plaintiff is conscious of the confinement. (Prosser rejects this requirement.)

3. The plaintiff does not consent to the confinement.

4. The confinement was not otherwise privileged.

Defences

a. Child correction

Depending on the jurisdiction, corporal punishment of children by parents or instructors may be a defense to
trespass to the person, so long as the punishment was "reasonably necessary under the circumstances to discipline
a child who has misbehaved" and the defendant "exercised prudence and restraint". Unreasonable punishments,
such as violently grabbing a student's arm and hair, have no defense.

b. Consent

Denning, LJ: "In an ordinary fight with fists there is no cause of action to either of [the combatants] for any injury
suffered."

Perhaps the most common defense for the torts of trespass to the person is that of volenti non fit injuria, literally,
"to a willing person, no injury is done", but shortened to "consensual privilege" or "consent". If a plaintiff
participates in a sporting activity in which physical contact is ordinary conduct, such as rugby, they are considered
to have consented. This is not the case if the physical contact went beyond what could be expected, such as the
use of hand gun during a fistfight, as in Andrepont v. Naquin, or where the injuries were suffered not from the
plaintiff's participation in the sport but inadequate safety measures taken, as in Watson v British Boxing Board of
Control Ltd. Where the plaintiff and defendant voluntarily agree to participate in a fight, some jurisdictions will
deny relief in civil action, so long as the injuries caused are proportionate: "in an ordinary fight with fists there is no
cause of action to either of [the combatants] for any injury suffered". Other jurisdictions refuse to recognize
consent as a defense to mutual combat and instead provide relief under the doctrine of comparative negligence.

Medical care gives rise to many claims of trespass to the person. A physician, "treating a mentally competent adult
under non-emergency circumstances, cannot properly undertake to perform surgery or administer other therapy
without the prior consent of his patient". Should he do so, he commits a trespass to the person and is liable to
damages. However, if the plaintiff is informed by a doctor of the broad risks of a medical procedure, there will be
no claim under trespass against the person for resulting harm caused; the plaintiff's agreement constitutes
"informed consent". In those cases where the patient does not possess sufficient mental capacity to consent,
doctors must exercise extreme caution. In F v West Berkshire Health Authority, the House of Lords instructed
British physicians that, to justify operating upon such an individual, there :-

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(1) must be a necessity to act when it is not practicable to communicate with the assisted person,and

(2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best
interests of the assisted person".

C . Self-defence / defence of others / defence of property

Self-defense, or non-consensual privilege, is a valid defense to trespasses against the person, assuming that it
constituted the use of "reasonable force which they honestly and reasonably believe is necessary to protect
themselves or someone else, or property". The force used must be proportionate to the threat, as ruled in
Cockcroft v Smith.

Malicious Prosecution

Malicious prosecution is a common law intentional tort, while like the tort of abuse of process, its elements
include:-

(1) intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal
action (civil or criminal) that is

(2) brought without probable cause and

(3) dismissed in favour of the victim of the malicious prosecution.

In some jurisdictions, the term "malicious prosecution" denotes the wrongful initiation of criminal proceedings,
while the term "malicious use of process" denotes the wrongful initiation of civil proceedings.

Criminal prosecuting attorneys and judges are protected from tort liability for malicious prosecution by doctrines
of prosecutorial immunity and judicial immunity. Moreover, the mere filing of a complaint cannot constitute an
abuse of process. The parties who have abused or misused the process, have gone beyond merely filing a lawsuit.
The taking of an appeal, even a frivolous one, is not enough to constitute an abuse of process. The mere filing or
maintenance of a lawsuit, even for an improper purpose, is not a proper basis for an abuse of process action.

Declining to expand the tort of malicious prosecution, a unanimous California Supreme Court in the case of
Sheldon Appel Co. v. Albert & Oliker, 47 Cal. 3d 863, 873 (1989) observed: "While the filing of frivolous lawsuits is
certainly improper and cannot in any way be condoned, in our view the better means of addressing the problem of
unjustified litigation is through the adoption of measures facilitating the speedy resolution of the initial lawsuit and
authorizing the imposition of sanctions for frivolous or delaying conduct within that first action itself, rather than
through an expansion of the opportunities for initiating one or more additional rounds of malicious prosecution
litigation after the first action has been concluded."

Nervous Shock

The law relating to nervous shock has a long history of recognition. The question of recovery for nervous shock (or
psychiatric injury) negligently caused by another has been one which has perplexed various courts in various
common law jurisdictions throughout the world since it was first established in the case of

Byrne v Southern and Western Railway Co. In no area of tort, is the task of providing liability more difficult or more
contentious than in the case of nervous shock where the victim claims is based on psychiatric damage. Where the
damage is the result of the effects that are suffered by another due to carelessness of the tortfeasor.

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Under the English law of tort, the same is defined as follows: nervous shock or injury inflicted upon a person by
intentional or negligent actions or omissions of another. It is most often applied to psychiatric disorders triggered
by witnessing an accident, for example an injury caused to one’s parents or spouse. Although the term “nervous
shock” has been described as “inaccurate” and “misleading” (Lord Keith and Lord Oliver, respectively, both in
Alcock v chief constable of south Yorkshire)it continues to be applied as a useful abbreviation for a complex
concept.

The case which forms the actual starting point for all the case laws on nervous shock is the case of Victorian
Railways Commissioners v. Coultas, the privy council observed that:

“Damages arising from mere sudden terror unaccompanied by any actual physical injury, but occasioning a
nervous or mental shock, cannot under such circumstances their Lordships think, be considered a consequence
which, in the ordinary course of things, would flow from the negligence of the gate-keeper” In 1901, however, the
courts adopted a more liberal approach in deciding Dulieu v. White & Sons, in this case, it was noted that shock
must be such as “arises from reasonable fear of immediate personal injury to oneself”. This case brought into
picture what is called impact theory. According to which the plaintiff would be allowed to recover for psychiatric
illness provided that this was caused by reasonable fear of being physically injured by the defendants negligence.
Impact theory was followed for about 20 years until the decision of Hambrook v. Stokes Bros. In order to extend
the law, Bankes LJ was careful to point out that the ratio of the decision was to be confined to situations where the
plaintiff suffered psychiatric illness because of fear for the safety of her children. The decision was not intended to
overturn previous authority to the effect that a plaintiff could not recover in respect of psychiatric illness caused by
witnessing physical injury to a person with whom the plaintiff had no relationship of love and affection. Nearly
twenty years later, in Bourhill v. Young, the question of psychiatric illness liability came before the House of Lords
for the first time. It will be recalled that it concerned a pregnant woman who, while descending from the tram,
heard a road accident occur some distance away. She later attended the scene of accident, saw blood on the road,
and subsequently suffered a miscarriage produced by shock. The House of Lords held, in effect, that the woman
was not a ―foreseeable claimant. In other words, she could not base her action on a wrong done to someone else.
Thereafter in 1982 the landmark case of McLoughlin v. O’Brian came. In this, the plaintiff was not present in close
proximity of the accident but sustained nervous shock when she was told about the accident. In holding the
defendants liable the House of Lords extended the law to cover a situation where the plaintiff had not seen or
heard the accident itself but had come upon its immediate aftermath. Lord Wilberforce identified three factors
that would need to be identified in every case:

 the class of persons whose claims should be recognized;

 the proximity of such persons to accident; and

the means by which psychiatric illness was caused. These three control mechanisms suggested by Lord Wilberforce
were subsequently reformulated and applied by a unanimous house of Lords.

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