AN ANALYSIS: COMPENSATION FOR PURE PSYCHIATRIC HARM
Author: Aman Verma, Bharati Vidyapeeth University, New Delhi, India.
A tentative claim for nervous shock falls under the head of the psychiatric condition, being an area in tort law, it presented many difficulties for tortuous claims since there is a burden of proof lies on the sufferer to prove of direct involvement to the incident. Since 1924, the judicial body has recognized that a person who suffers a medically-recognized psychiatric harm or illness due to the action or omission of the defendant party, he can recover damages from that person whose negligence is a cause of accident. This article helps to study about the historical aspects, current scenario of psychiatric illness, the compensation covered under the judicial body, evaluates and focuses on primary and secondary victims.
“There is no legally cognizable right to happiness.”
The term “Psychiatric Injury” is defined as an unpredictable assault on the nervous system of a horrifying event which forcibly distempers the mind. Previously the coverage of psychiatric injury in tort of negligence was very uncertain. The treatment process under it, was slightly delayed by the judiciary as it fails to entertain those cases which are grievous in nature. But comparing to the present time, this area of law has now been more certain with the laying down of various new laws and guidelines through which an individual can recover damages on an incident where he was witnessed and the event caused him some form of psychiatric injury. It can also be said that the psychiatric injuries are generally named as nervous shock in tort law, which means a sudden harm or a sudden shock to the mind of a person due to a sudden incident caused by the negligence of another person and the cause of action is extremely serious to the affected person. Nervous shock is the inception to the psychiatric harm which is caused by witnessing of a negligent act or omission.
Although this term is described as inaccurate and misleading as it continuously applies as a useful abridgement for a complicated concept.The recovering possibility of damages caused by nervous shock has been strictly and strongly limited in English Law. It was held in English law that a person who has mala fideor intentionally reason of emotional distress to the affected person, will be liable to pay for any psychiatric injury. For example, A bad practical joke cracked on someone and which triggered serious depression or mental harm in that person. Here, the joker mala fide to cause emotional distress to the other person, so that he’ll be liable for the medical care of that person.There are some conditions or tests to prove the occurrence of nervous shock, that is, the amount of psychiatric damage suffered by the claimant must be beyond emotional distress to a well-recognized mental illness such as depression, anxiety.
Primary and Secondary Claimants:
To proof the amount of Nervous Shock, the Psychiatric damage which is suffered by the claimant, must be extend beyond emotional distress and serious to a recognized mental illness for example anxiety, depression etc. On the basis of studies, it was observed that when an incident has occurred due to the mala fide and negligent act of another person, two categories of claimants come forward which are explained below: –
Primary Victims– These claimants are the people who suffer psychiatric harm after being directly physically injured or Put in fear of injury. They are immediate participants to the accident caused by the defendant. This category of plaintiff had a wider scope which was thereafter modified in a case cited as “Page vs Smith”. In this case, it was held in the leading judgment which was given by “Lord Lloydof Berwick”, that the plaintiff was a primary victim and his case was of a different nature. So, in case of direct victims, the rule of “Eggshell skull” will be followed i.e., takes the plaintiff as one finds him.
Secondary Victims- Secondary claimants are the people who witness the accident which puts them into an injury/situation to suffer from psychiatric harm.In this category, it is necessary for the claimant that he must have suffered the harm through shock. They must have enjoyed a close familial relationship with thevictim i.e., Family member. Secondary claimants are the one who suffers any psychiatric damage even though not being directly related to the accident.
The Famous case of Secondary Victims: “Bourhill vs Young” In this case, the plaintiff Mrs. Bourhill was about to leave a tram in which she was traveling. Suddenly Mr. young, who had been negligently riding a motorcycle, got in a collision with a car. Mrs. Bourhill heard the crash noise but didn’t see the incident by her eyes. Later she moved to the incident place and saw some blood on road and she gave birth to the stillborn child. She claimed for damages. It was held by the court that the incident was unforeseeable from her viewing angle and she was not supposed to rush to the incident place. Therefore, she was not entitled for the compensation.
Indian approach on Compensation for Psychiatric Harm:
Basically, in India, the jurisdiction and liability in tort law is not very evolved but there are still so many cases by the means of which, compensation is provided to the plaintiff and from these cases only liability if psychiatric harm developed. Although India still doesn’t have any legislation related to nervous shock but cases are decided by the court on the basis of suitability of discerning person.
Compensation in inconsistent accidents is a trade-off. It requires sacrifice of legal rights to access for compensation. Cases of Pure psychiatric damages caused by stress-inducing work have led off to surface. The tentative issues of nervous shock are whether a certain set of circumstances can give rise to a duty of care. In present time, psychiatric harm is being treated as a tort. There is no particular law regarding nervous shock as there is little inconsistency in the part of law, but the government is working hard to implement such laws which helps the plaintiff to claim damages of a psychiatric harm.
Saadati v Moorhead  1 SCR 543 at 
 2 WLR 644,  UKHL 7
 AC 92, p. 94