Liability of Psychiatric Damages in Indian & Foreign Jurisdiction

Abstract

Psychiatric Injury - which is also known as Nervous Shock is a pretty new area, has gained much importance. It is used to describe a claim where the claimant might claim for compensation even though she has not clearly received any physical harm.

Now, what do we mean by Psychiatric Damages?

Medical Definition: In medicine, circulatory failure marked by a sudden fall of blood pressure and resulting in pallor, sweating, fast (but weak) pulse, and sometimes completes collapse. Its causes include disease, injury, and psychological trauma. In shock, the blood pressure falls below that necessary to supply the tissues of the body, especially the brain. Treatment depends on the cause. Rest is needed, and, in the case of severe blood loss, restoration of the normal circulating volume.

Psychiatric damages are also known as nervous shock in English law. It comes under the ambience of negligence. When an injury is done to a person by some actions, which are either negligent, or intentional, or also due to omission of any particular action it is recoverable under Psychiatric Damages.

The Medical Specifications regarding Psychiatric Damages: In this part we discuss the medical specifications which are required for an action to be recoverable under Psychiatric Damages. According to the Law Commission Report of U.K [249] are two main conditions which are to be fulfilled: A. A Recognizable Psychiatric Illness; According to Lord Bridge - It is first very important to establish that the person is not suffering from only grief, or normal emotional stress but its must be a positive psychiatric illness. According any “recognizable psychiatric illness” would comprise morbid depression, hysterical personal disorder, post-traumatic stress disorder, pathological stress disorder and Chronic Fatigue Syndrome. There should also be expert medical witness or reports by medical experts proving the above facts. For mere anxiety, emotional outbreak etc, the law is not bound to give compensation. B. Test of Reasonable Forseeability: The Law Commission considered that the Psychiatric Damages should be tested beyond a simple Forseeability test. It suggested that a reasonable Forseeability test should be used. The first case in U.K. to be followed in this regard was Delieu v White & Sons .In this case it was decided that the plaintiff should be able to recover only when the danger is reasonable enough to be nervous or receive mental shock. This test varies according to the circumstances of the different. But in this case there are two points which are to be noted. First, in applying the reasonable forseeability test the defendant must presume that the plaintiff is a prudent woman who has a “normal standard of forseeability.” Then when the plaintiff has established her prudent nature and that it would be normal for a reasonable woman to suffer the nervous shock she suffered in the particular case, she is entitled to recover full compensation. Second, foreseeability of the psychiatric illness is considered ex post facto in the light of all that has happened. Unless hindsight is used, “[ he question ceases to be whether it is foreseeable that a reasonably robust person would have suffered psychiatric illness as a result of what actually happened and becomes instead whether it is foreseeable that such a person would have suffered psychiatric illness as a result of what might have happened but did not in fact do so.”

Thus we see that the judge must see herself to be a reasonable, prudent woman, when deciding the cases of psychiatric damages. In the words of Lord Bridge, the judge should decide a particular case relying on her own opinion as that of a reasonably educated woman.

Keywords: Psychiatric Damages, Liability in Tort Law, Liability of Nervous Shock

JEL Classification: K13