01.Introduction
In this paper I would like to show the historical developments of remedial action for negligence in deeply a specific area called “Nervous Shock” in both celebrated English and Roman-Dutch legal systems. Further analyze the merits and demerits of above stated legal systems on the basis of Legal scope as well as Social scope too. I have used doctrinal method of research paper is descriptive and nature.
02.(a) Applicability of English Law
“Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”---Winfield.
“Negligence is the omission to do something, which a reasonable man, guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do, or do something, which a prudent and reasonable man would not do[1]”.The recovery actions made on the basis for Nervous shock[2] called “Duty of care” and “Boni Monis” called respectively in common law and civil law[3].
(b)Analyze through case laws
First i go through the common law concept how the concept grew then move to Nervous Shock concept development. Common law always depend on principle wise movements and experiments. Firstly in 1932 Lord Atkin[4] introduced the duty of care principle in Donahue v Stevenson through neighbour hood principle. Then 1978(Two-Tier Principle)[5] , 1985(Just and Reasonable)[6], 1990(Three Part Test)[7] and finally 1991(Incremental Approach)[8]
A claimant wants to succeed in tort of negligence action he should prove three actions. Firstly the defendant owned them a duty of care[9]. Secondly the defendant was in breach of that duty under this part court will take into account a number of factors[10], it mostly interconnected with the concept of Standard of care. Finally the claimant suffered damage caused by defendant’s breach[11].
Most legal jurisdictions throughout the world now recognise a general right to seek redress in respect of the concept of negligently inflicted ‘pure’ psychological harm or damage[12]. It includes Depressive disorders, Post Traumatic Stress disorder, Adjustment disorders and anxiety disorders. However , who suffers from extreme Grief & Sorrow[13] cannot recover damages.
Under English law in 1888[14] Privy Council refuse the claim of claimant, who miscarried her child by “Nervous Shock”. But in 1901[15] Kennedy .J Introduced “Impact Theory[16]” in Dulieu V white & sons and upheld the claimant claim on the basis of psychological harm to the primary victim. But in 1925[17] Hambrook V Stokes, Bros abanded the Impact theory and the principle expanded the law, recover the damages Secondary victims[18] too. But they did not hesitate to put a limitation that claimant should prove the scope of danger apply to his loved ones. The Co-Workers also can claim damages as a secondary victims[19], Rescuers also claim damages[20] but now this principle no longer applicable[21].McFarlane V E.E Calendonia Ltd, clear that no duty[22] such as arising master servant relationship in nervous shock. In 1943 Bourhill V Young[23] , it mere describes the secondary victim’s foreseeable scope. In 1953 King V Phillips also reaffirmed the decision of Bourhill, slightly distinguished form Hambrook. But 1960 Boardman V Sanderson, the courts took more liberal approach and upheld the decision of Hambrook.
Next we move to a Land mark case Mclaughlin V O’Brain[24]. In this case Lord Wilberforce direct the test of “reasonable foreseeability” which include immediate aftermath[25] of the accident, here lordship established three control mechanism to get remedy. First Class of persons[26], Second Proximity of such persons[27], finally by which psychiatric illness was caused[28]. Then English law has a wider interpretation of psychological harm because in Attia V British gas plc[29] regarding the damage of property also can recover the damages from defendant who acted in negligence. Further Bingham L.J holding that a duty of care could exist in such a situation,cited other examples such as where ―a scholars life‘s work of research or composition was destroyed before his eyes as a result of defendant‘s careless conduct.
Then we take three more modern case laws to clearly understand the current legal position of English law enumerated by the time period respectively 1991[30], 1996[31], and 1999[32].
Lord Oliver in Alcock case, clearly classed a primary victim as “a person directly involved in an accident as a participant and who was actually exposed to the risk of physical injury”, whilst a secondary victim would “simply witness the accident.”And this case made the way to arising fear about floodgates arguments on the basis of public policy to House of Lords.
Further in White case, Lord Steyn use policy consideration method when determining the psychiatric harm .First No material difference between grief and real psychiatric illness[33], Second Consider the effect of people who had witnessed gruesome events on increasing the availability of compensation, Third Fear of floodgates argument[34] and finally Crushing liability.
In English law psychiatric illness claim the vital element is Primary victim and Secondary victim. When deterring the class of person’s[35] courts apply different methods to identify the correct class of persons. Foreseeability in nervous shock of primary victims now sphere headed with Page V Smith, Lord Llyord “Where there is a danger of physical injury the law should regard physical and psychiatric injury as the same kind of harm”. Here lord ship thought the foreseeability of physical harm is good enough bit not necessarily prove foreseeability of psychiatric injury because it purely fortitudinous fact and apply the “eggshell skull rule[36]” Very recent case in 2007 Rothwell V Chemical and industries Co[37] , plaintiff relay on Page V Smith, but the facts are dissimilar House of lords denied the claim. But declined to say the case ha been wrongly decided.
Secondary victims in foreseeability, who suffering psychiatric illness because of witnessing an event, through they are not themselves danger, but here must established psychiatric illness was reasonably foreseeable with the “Customary Phlegm[38]” . It may be the reason of plaintiff who could not succeed in Bourhill V Young. But now the indicator of secondary victims consider as decision of Alcock.
03.(a) Applicability of South African Law
Accroding to White case, Lord Hoffman established two factors to satisfy the primary victim test , firstly there may be a requirement of actual danger , secondly In any event the claimants fear for his/her own safety must be reasonable.Under south African law, Acqulian Action and Actio Injuriarum ( B.C 287) are the foundation stones of Roman Dutch law of Delict. Acqulian Action is a general remedy for property damages. Actio Injuriarum is a general remedy for dignity approaches.
lex acqulia , a claimant should prove three elements like English law but with dissimilarities. Firstly, to prove a wrongful act it includes commission and omission, determined by Legal conviction of the community conduct. Second, Defendant had Dolus[39] or culpa[40], Finally, Claimant suffers from patrimonial loss to the defendant’s
The concept of legal conviction of the community defined[41] as “an inquiry that is done after the damage causing even has taken place, and incorporating a policy based investigation of the reasonableness or unreasonableness of the defendant’s conduct”.
Under South African law also in Delict negligence is a remedial action but liability may impose for Nervous shock and the early development follow similar lines as the English law. Burchell says “In the early cases in South Africa, liability for negligently inflicted nervous shock was restricted by two factors: The nervous shock had to result in physical injury and the plaintiff must have feared for his or her own safety.
Under south African law , Acqulian Action and Actio Injuriarum ( B.C 287) are the foundation stones of Roman Dutch law of Delict. Acqulian Action is a general remedy for property damages. Actio Injuriarum is a general remedy for dignity approaches.
(b)Analize through case laws
Now I move to enumerate cases under South African law to make clear how the courts took the approach in boni mores. First 1916 Hauman V Malmesbury Divisional Council[42], here plaintiff narrowly escaped from a blast made negligently by defendant’s servants .Courts upheld plaintiff’s claim. It is a refelction of Dulieu in 1901.
Land mark case of South African Nervous shock in 1973 which has the authority until now is Bester V Commercial Union[43]; here basis liability for Nervous shock is the foreseeability of injury by shock. It is an extension of the acqulian action. But I think it is easily comparable with Hambrook[44] in 1925. Under the case established the principle Compensation will not, however, be awarded for insignificant temporary emotional shock. But it also established under English law in Hinz V Berry.
In Maisba , Boberg commenting South African law as “It is gratifying that this branch of our law governed by the board principle of foreseeability. This flexible criterion will, it is believed, enable the courts to give effect to society’s believes as to what reactions are reasonable in the face of tragedy”. Simply defined as “Legal conviction of the community”.
In a recent case The road accident fund V Magdelene Caroline Sauls[45] , the court quoted Bester who is wrong doer will be foreseen by a reasonable person in the place wrong doer is enough to determine the liability, further psychological or psychiatric injury is “bodily injury” for the purposes. Foresight of the reasonable possibility of harm required. And vitally the arguments forwarded by the defendants relayed on Alcock in regard to the class of persons entitled to succeed. But courts held the ground of public policy is not justified only quoted the primary and secondary victims.
04.Conclusion
While concluding this paper I want to say which legal approach is best? In English law I analyzed from 1888[46] to 2007[47] it gradually develop the Nervous Shock. But they too depend on prior established legal principles in preceding cases. But we cannot forget those principles also formulated on the basement of social factors ( Alcock ) but nowadays the claim under English law is wider than prior. Its sphere within the limit of foreseeability, Proximity and Reasonableness but the degree of the above stated elements did not determined mathematically judges behalf on the circumstances judged the elements.
South African law also followed similar lines as the English law. But in 1957[48] a reasonable claim rejected by courts, may be the case succeed it if it came behind the English law courts. Because in 1957 before 58 years (Duile) English courts accept the liability. I analyzed case laws form 1916 to 2001[49]. They always support the concept “Legal conviction of the community”. Freshly they enact National Veld and Forest Fire Act No 101 of 1998[50]. Time to time quote English legal principles and some of them either accepted or rejected So South African courts consider reasonableness on the basis of legal conviction of the community.
When Extreme grief or sorrow arose from damage cannot claim under both legal systems .But English law give the right to bereavement suffered claimants to claim under Fatal Accidents Act 1976. Burchell[51] criticize Alcock, it shows unjust fear about floodgate consequence in House Of Lords. But practically South African law had narrower scope than English law in Nervous Shock.
I found many similarities within both systems: First in intentionally inflicted Nervous Shock, that full within the area of battery. Here the foreseeability[52] did not apply. And rescuers also always get only very narrower remedies in both systems[53].
Finally both systems give remedial actions within their scope. Because South Africa is a industrial state so accidents will be very huge when comparing England. Practically South African courts cannot take wider view, otherwise they cannot limit the imaginary claims and it gives a way to unjust enrichment on imaginary claims. So the narrower approach is also desirable in given circumstances.
So when comparing the two legal systems I cannot found any specific merit or de-merits. Because English authorities logically hold principles, but practicably handle the case with social background. Other hand South African law holds reasonableness behalf community logically, but practicably they limit the scope behalf on the socio-economic policy crisis[54].
(Total words 1720).
Selected Biography
01.Burchell, Jonathan, ‘Principle of delict’, Justa & Co ltd, Capetown (1993)
02.Prof.Mc keeron-Law of delict .7th edition P.156
03.The Handout for law of delict in Open University
04.Statutary arrangements is necessary in Nervous shock to Sri Lanka? G.M. Sivapaatham, Senior lecturer , Faculty of law, University of Colombo.
05. http:www.wikipedia.org/en
06.http:www.law24.com
07.http:www.lawteacher.net/Nervousshock
08.Nervous shock , Development & Dilemma: a comparative study of UK, USA and Canada.
09.http://www2.dwaf.gov.za/webapp/Documents/ForestFire/192.168.10.11/nvffa.nsf/b7b166d03d55d7bf42256fcd004b44d6/4cebe8548525b66a42256dfe0074beed02ec.html?OpenDocument
[1] Baron Alderson in Blyth v Birmingham Waterworks Co
[2] A part of Negligence action
[3] The Common law under the action of “Tort” and Civil law under “Delict”
[4]This was first established by the speech of Lord Atkin in Donahue v Stevenson “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - 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.”Lord Atkin in
[5] Anns V Morton London Borough council (1978) AC 728
[6] Peabody Donation fund V Parkinson (1985) AC 210
[7] Caparo Industries (Plc) V Dickman and others 1990 AC 608
[8] Murphy V Brentwood District Councul (1990) 3WLR 414
[9] Note (4) Supra
[10] 1.Degree of Risk involve ( Haley V London Electricity Board and reaffirmed by Bolton V Stone.
2.Practicability of Prevention ( Latimer V A.E.C Ltd)
3.Magnitude of harm that is likely ( Paris V Stepney Borough Council)
4.Assess the defendants action ( Watt V Hertfordshire Country council)
[11] 1.Causation ( Barnett V Chelsea Hospital Limited)
2.A dgree of probability of damage must be satisfied (Wilsher v Essex Area Health Authority)
3.Remotness of damage must be fulfilled (Re Polemis and modified in Overseas Tankship Ltd v Morts Dock & Enginerring )
[12] It been termed differently in many jurisdictions, such as ‘nervous shock’, ‘emotional distress’, ‘mental harm’
[13] Hinz V Berry , the decision was reaffirmed by Sri Lankan courts in Priyani Soysa V Rienzie Aresecularatne ( C.A 173/94(F), Court of Appeal , ( Unreported )
[14] Victorian Railways Commissioners V Coultas (1888) Privy Council .13 application 222. But it was vigorously critizied by Lord Hoffman in White V Chief constable of South Yorkshire that lack of medical evidential capacity and extraordinary fear about the large number of imaginary claims.
[15] 1901 2 K.B 669
[16] A claimant could only succeed in a claim if they were within the range of physical impact.
[17] 1925 1 K.B 669
[18] Who not in actual physical danger but the witness of the incident, instance saw or hear the accident.
[19] Dooley V Cammell laird & Co . and Mersay Insultation Co Ltd. 1951 Lyolds Rep . 271
[20] Chardwick V British Transport Commission 1967. 2 ALL E R 945
[21] white v. chief constable of South Yorkshire By Lord Steyn
[22] Expressed that the employer should take the care for physical injury not amounting to psychiatric injury .
[23] Bourhill V Young (1943)AC 92
[24] Mclaughlin V O’Brain (1983)AC 410
[25] In the case Wife saw his husband and child on the blooded and muddy face, so when she saw the atmosphere almost very close to the accident place.
[26] he closer the emotional tie the greater the claim for consideration
[27] Close in both time and place
[28] Direct perception of the accident or its immediate aftermath by sight or hearing.
[29] (1988) QB 304
[30] Alcock v. chief constable of South Yorkshire [1991] 4 ALL E.R 907 (H.L)
[31] Page v Smith (1996)AC 155
[32] white v. chief constable of South Yorkshire
[33] Because the degree of differentiation is too narrow. It is purely depend on medical evidence.
[34] May the claims increase for imaginary claims.
[35] Lord Wilberforce in McLaughlin V O’Brian
[36] It is considered more fully provides that where an injured claimant suffers serious medical consequences the defendant may be liable for all of those consequences, even though they could not all have been reasonably foreseen.
[37] (2007) UHKL 39; WLR 876
[38] Brice V Brown (1984) 1 WLR 997
[39] Intention to a wrong Action
[40] Negligently acted the action
[41] Boni mores defind by Rumpuff CJ in Minister van Polise V Ewels 1975
[42] (1916) CTD 216
[44] Note (17) Supra
[45] Case number 423/2000
[46] Note (14) Supra
[47] Note (37) Supra
[48] Mulder V South British Insurance Co ltd (1957) 2 SALR 444
[49] Ghiva Van eeden V Minister of Safety and security. Case no 176/200
[50] Section 34: accessedonhttp://www2.dwaf.gov.za/webapp/Documents/ForestFire/192.168.10.11/nvffa.nsf/ b7b166d03d55d7bf42256fcd004b44d6/4cebe8548525b66a42256dfe0074beed02ec.html?OpenDocument
[51] Principles Of delict : Jonathan Burchell in Juta & Co, Ltd. Wetton, Cape Town. Pages 59-63.
[52] Wilkinson V Downton [1897] 2 QB 57 and Bosewell V Minister of police (1978) (3) SA 268 (E)
[53] Alcock and Sueltz V Bolter (1914) E.DL 176
[54] Prof.Mc Kerron-Law of Delict. 7th edtion P.156
