“REASONABLE FORESIGHT OF NERVOUS SHOCK”
| Published date | 01 September 1956 |
| Date | 01 September 1956 |
| Author | John HavardM.A |
| DOI | http://doi.org/10.1111/j.1468-2230.1956.tb00373.x |
“
REASONABLE FORESIGHT OF
NERVOUS SHOCK
”
TEE purpose of this article is to relate the existing medical
knowledge
on
the causation of nervous shock with the legal opinions
as to liability for nervous shock caused inadvertently.
The reasoning which sets up nervous shock as a separate tort
is fairly characteristic of the prevailing confusion as to the causation
of damage from emotional shock. This has been enhanced by
difficulties in terminology,’ which has led to breakdown in com-
munication between Medicine and the Law
on
the subject.
Furthermore the position has not been assisted by inaccurate
observations
on
causation which have appeared in legal periodicals,
b
and, in some cases, have seeped into the c0urts.l The necessary
co-operation between medicine and the law
is
probably delayed
by the fact that the two professions appear to be out of sympathy
with each other over the question of personal damages.
“It
is
all very well to say that the law should keep pace with modern
psychology and psychiatry. People who say this are apt to forget
that the administration of justice is a practical art which involves
a
great many policy considerations outside the frame of references
of science.” This statement by
a
recent legal writerS sums up
what can only be called the
“
ostrich
”
attitude of some lawyers*
Equally uncompromising are the words of
a
recent medical writer
:
“Medicine
is
a practical subject in which all interest must be
massed
on
the actual patient and his clinical state. Thus medical
men find
it
hard to comprehend
or
approve any system in which
the sufferer
is
neglected
in
favour of a theoretical approach to the
financial alleviation of injury.”
The first step in assessing liability for personal damage of any
kind
is
to establish the medical connection between the alleged
damage and the act or omission in question. This preliminary
inquiry is not concerned with any qualification such
as
the propor-
tion of the damage caused by the act, the contribution of pre-
existing damage,
or
the effect of susceptibility to the type of
1
e.g.,
in medical terminology the term “shock
”
is used in at least two
completely different senses.
2
A
notable culprit is the note appearin in (1933)
11
Can.Bar Rev. 616, which
not only
confuses
surgical shock (wffich has nothing
to
do with cmotjon)
with nervous shock, but also states that irreversible organic changce,
c.e.,
physical dama e, may occur in the nervous system tissue as a result
of
emotional
shocl.
This
proposition, which can
be
supported by no medicpl
authority whatsoever, clearly influenced Evatt
J.,
who
quoted it in
Chester
v.
Waoerley, Corporation
(1939) 62 C.L.R,I. 1, in a
jud
ment which Lord Wright
thought will demand the consideration
of
any pfge
who
in called
upon
to
consider these questions”:
Bourhill
v.
Young
[l943]
A.C.
92 at 110.
S
McIntyre (1953)
31
Can.Bar Rev. 775.
4
Murphy (1052) J.Irish Med.haan. 186.
478
SEPT.
19116
"
REASONABLE FORESIGHT OF
SHOCK
"
479
damage suffered;
it
is concerned solely with the question whether
the alleged personal damage,
or
any part of
it,
can be connected
in the medical sense with the act which is alleged to have been
negligent.
If
there is
no
evidence of such connection the action
will fail.
The next step is to determine what damage is actionable in
negligence.
For
reasons of policy the courts have restricted
recovery for nervous shock to that resulting in physical illness; in
other words mental distress unaccompanied by such illness will not
be actionable.5 This restriction requires analysis
in
terms of
medical causation. Damage from emotional shock may be,
in
medical language,
''
somatic
"
or
"
psychic," and not infrequently
it
is
a
combination of both. These terms mean respectively
''
organic
"
(Le.,
physical) and
"
mental
yy
(i.e.,
non-physical).
Organic sequelae of an emotional shock would include miscarriage,
coronary thrombosis and cerebral haemorrhage
("
stroke
").
Psychic sequelae would include hysteria and various neuroses.
It
is important to note that psychic damage may give rise to physical
symptoms; hence conversion hysteria (purely psychic damage)
may give rise
to
paralysis of one
or
more limbs,
n
condition which
would clearly rank as physical illness for legal purposes.
It
is especially important to understand this point in relation
to
the threatened emergence of nervous shock
is
a separate tort.6
It
is not clear what is meant by this development.
It
could mean
that damage (whether organic
or
mental) from emotional shock
must be kept separate from damage due to other damaging agencies
(e.g.,
physical impact).
On
the other hand
it
could mean
that
mental damage must be kept separate from organic damage.
Whichever interpretation is adopted, the medical implications will
5
See however
Austin
v.
Mascarjn
"421 2
D.L.R.
316,
in which
"
interference
with the physical well-being of
a
mother who had seen her child injured
in
an nccident was held actionable in negligence.
It
appears that
an
nction
in negligence must be sustained by somethin more than
a
temporary dis-
turbance, whether physical
or
emotional.
inflicted harm
is
not clear; Note however tht! "interference with henld
and comfort amounts to actual bodily
harm
within the Offences against
the Person Act,
1861,
c.
100,
8.
47,
Archbold,
32nd
ed.,
969.
Hence in
R.
v.
Miller
[1964] 2
Q.B.
282
"
interference'with the state
of
mind
for
the
time being
"
was held within the section,
.per
Lynskey
J.
at p.
2!2.
For
an
Americ?: case allowing recovery for mtentional invasion
of
mental
tranquillity see
Barnett
v.
Collection Setaice,
(1932) 242
N.W.Rep.
25
(Supreme Court
of
Iowa), in which the plaintiff suffered mental pain, anguish,
and
humiliation
as
a
result
of
receivin threatening letters
from
the defendant.
4
"
Perhaps it
mag
be objected that welave no warrant
for
thus distinguishing
mental health and security of bone and muscle. But history and certain
practical considerations require that these be considered apart, whatever
a
stricter abstract adherence to biological science might dictate
"
:
Pound
(1916)
28
Hnrv.L.R.
856.
He did however admit that the advance
of
medical science
would determine the development of the law on this point. See also Bohlen,
Studies
in
the
Law
of
Tort
262;
Goodhart
(1053)
16
M.L.R.
22;
Ellis Lewis in
Winfield,
Tort,
6th ed.,
92;
Dins (1965)*,C.L.J.
201;
and Machin
(1964)
17
M.L.R.
413
(who discusses the separate body and mind safety interests
"
considered below). The view
is
alao
implicit in the judgments of Bnnkes
and Sargant
L.JJ.
in
Hambrook
V.
Stokes
Broa.
(infra).
Tfe position with intentionall
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