GROUP 3

ISLAMIC UNIVERSITY IN UGANDA

KAMPALA CAMPUS
FACULTY OF LAW

COURSE UNIT : LAW OF TORTS II

COURSE CODE : LAW 2201
YEAR : 2
SEMESTER : 2
LECTURER : MR. KANYIKE YUSUF BUULE
GROUP : 3
PROGRAM : EVENING
STREAM : B

QUESTION: UNDERSTANDING INJURY WITHOUT IMPACT UNDER THE TORT

NEGLIGENCE: LEGAL PRINCIPLES AND APPLICATION .

GROUP MEMBERS
NO NAME REGISTRATION SIGNATURE
NUMBER
1 MULEMA MALISERINO 223-053012-27593
2 ADONG SARAH SHELLY 223-053012-25998
3 AGABA MANDELA 223-053012-26044
4 AWEKO GRACE 223-053012-26121
5 KAGIMU ABUBAKAR 223-053012-25887
6 KALUNGI MULUTADAN 223-053012-26118
7 MUHEDE ROGERS 223-053012-27568
8 MASERUKA GEOFERY BRIAN 223-053012-27846
9 MATOVU ASLAM ABDALLAH 223-053012-25903
10 MUSUDA SARAH 223-053012-27441
11 KALULE SWABIRU 223-053011-25257
12 NABAKKA MOUREEN 223-053012-27449
13 NEBOSHI SOPHY 223-053012-24936
14 WAMASEBE FRED 223-053012-25895
15 NANYONGA ZAKIA 223-053012-27165

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 TABLE OF CONTENTS
INTRODUCTION .................................................................................................................................... 2
ELEMENTS OF INJURY WITHOUT IMPACT......................................................................................2
WHO CAN SUE?........................................................................................................................................6

CLASSIFICATION OF VICTIMS............................................................................................................20

RESTRICTIONS ON RECOVERY.......................................................................................................... 23

DEFENSES……………………………………………………………………………………………….25

REMEDIES……………………………………………………………………………………………….26

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UNDERSTANDING INJURY WITHOUT IMPACT UNDER THE TORT OF NEGLIGENCE:
LEGAL PRINCIPLES AND APPLICATION

OVERVIEW:
This presentation offers a detailed analysis of injury without impact, delving into the complexities of
this area of law. It discusses the essential elements required to establish a claim, the categories of
individuals who can sue, and the defenses that can be raised by the defendant's as well as remedies
available to successful claimants.

1.0 INTRODUCTION
MEANING AND NATURE OF THE TORT OF INJURY WITHOUT IMPACT.
1.1 Injury without impact refers to a sudden severe disturbance resulting from witnessing or
experiencing a traumatic or horrific event leading to a recognisable psychiatric-illness. For
example, Post Traumatic Stress Disorder, Pathological Grief Disorder, Personality Dismissal
Trauma, Chronic Fatigue Syndrome among others.

1.2 The tort of Psychiatric injury therefore is a legal claim to damage resulting from a recognisable
severe mental or emotional distress caused by another's negligent or intentional conduct.

1.3 The development of the law of negligence had a considerable influence in shaping the law relating
to injury without impact since the law of negligence imposes duties on individuals' wrongful acts
that cause mental anguish.

1.4 English law has recognized a claim for nervous shock as it is now more accurately called
psychiatric illness. The principles that make up the scope of legal liability have evolved over the
century leading to a shift away from emphasizing the special limitations which apply in finding
liability and towards equating, atleast in relation to certain plaintiffs, the duty of care not to cause
psychiatric illness to another.

2.0 GENERAL ELEMENTS OF INJURY WITHOUT IMPACT.

For a claimant to successfully recover damages under injury without impact, it is necessary that,
after proving that the defendant owed him/her a duty to protect him/her from wrongful acts that
may cause mental anguish and that he breached that duty leading to the injury complained of, to
further prove to court that;

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 2.1 A recognizable Psychiatric illness which is sudden and not gradual was suffered as a
result of that breach.
The first huddle which a plaintiff claiming damages of the kind in question must establish that
he/she is suffering, not merely, grief, distress or another normal emotion but a positive psychiatric
illness1. Such positive psychiatric illness may include, Post-Traumatic Stress Disorder,
pathological grief disorder and chronic fatigue syndrome.

The claim must be based on mental distress accompanied with Psychiatric-illness. Mental shock
perse therefore will not be actionable without proof of some Psychiatric illness and the claimant
must prove that this illness directly flowed from the wrongful act of the defendant.

The positive psychiatric illness must be proved by expert medical evidence. A recognizable
psychiatric illness will suffice.
The plaintiff may be further required to show that his or her psychiatric illness was induced by
shock. According to Alcock case, what is required is “the sudden appreciation by sight, or sound
of a horrifying event, which violently agitates the mind2.

A plaintiff may recover only if the psychiatric illness is the result of Psychiatric injury negligently
inflicted on him by the defendant or if it is induced by “shock”3.

In Dulieu Vs White & Sons4, the defendant negligently drove a pair-horse van into the bar where
the pregnant plaintiff was working as a bar maid. The plaintiff was frightened and even lost the
pregnancy as a consequence. Court held that, the pregnant bar maid could recover damages for
nervous shock caused by her fright at seeing a horse driven into the bar where she was operating.
This was the first case to establish liability arising from Psychiatric illness.

2.2 Reasonable fore seeability

For psychiatric injury to be actionable, there must be some degree of reasonable foreseeability. In
Dulieu Vs White & Sons6 Kenneth J, suggested that recovery should only be available when the
plaintiff’s illness arose in a reasonable fear of injury to him or herself. This posed a limitation on
who can claim. However this was soon rejected by the court of appeal in Hambrook Vs Stokes
Bros7. Where a liberal test was adopted “reasonable foreseeability test”.

1
Page Vs Smith [1996] AC 155
2
[1983] 1 AC 410
3
[1992] 1 AC 310
4
[ 1997] 3 WLR 1194
5
[1901] 2 KB 669

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 Under reasonable foreseeability test the plaintiff was required to establish that his or her
psychiatric illness was a reasonably foreseeable consequence of the defendant’s conduct.

In Hambrook case a mother saw a lorry careering out of control from the direction in which she
had just left her children whom she was walking with. She was so terrified by fear for their safety
that she became ill and later died. The court found it objectable that the plaintiff should be able to
recover damage for an illness, suffered because of fear for him/herself, but not when it resulted
for fear for another. In an action brought by the father under the fatal accidents legislation, the
majority held that, had the mother survived, she would have been entitled to damage on the ground
that, the defendants should have anticipated that a mother in her position might be so terrified for
her children that her health was injured.

In assessing whether psychiatric illness is reasonably foreseeable, the defendant unless he/she has
special knowledge to the contrary, may assume that the plaintiff is a person of “Customary
polilegm” and has a “normal standard of susceptibility. What is danger of particular infirmity
that would include must depend on all the circumstances. However when the plaintiff has
established that it is reasonably foreseeable that a person of reasonable fortitude would suffer some
Psychiatric illness, then the normal "eggshell skull" or "thin skull" rule of remoteness of damage
applies, so that the susceptible plaintiff may recover for the full extent of illness.
Further foreseeability of psychiatric injury is considered expost facto in the light of all that has
happened, unless hind sight is used.

“The 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 actually do so.
In applying the test of reasonable foreseeability, the judge should treat himself as a representative
of the reasonable man and hence the consensus of informed judicial opinion was the best yardstick
by which to determine whether the harm was foreseeable in law.

In Mclaughlm Vs O’Brian8 court observed that, reasonable foreseeability is a necessary and

sufficient condition for liability arising out of nervous shock.

7.
[1925] 1 KB 141
8.
[1983] 1 AC 410
Distinction between a primary and a secondary victim and the test of reasonably foreseeable
personal injury.
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 This distinction was drawn by the House of Lords in the case of Page Vs Smith9 prior to this case
it was generally assumed that the test of reasonable foreseeability of psychiatric illness applied in
all cases where the plaintiff claimed damages for negligently inflicted psychiatric illness (except
where the psychiatric illness was consequent to physical injury).

However in Page Vs Smith, details the House of Lords was not correct test where the plaintiff
was directly involved in that accident and well within the range of foreseeable physical injury, in
such circumstances the plaintiff was to be regarded as a “primary” rather than “secondary” victim
of the accident and the duty of care owed by the defendant to him or her was the same duty of care
not to cause personal injury which applies in cases of physical harm.

In Page vs Smith, the plaintiff was involved in a collusion with the defendant when he failed to
give way while turning out of a side road. The plaintiff was physically unhurt in the collusion but
the accident caused him to suffer the onset of mental disease which he had suffered last 20 years
but which was in remission. The disease caused prevented him from ever working again. The
plaintiff brought an action against the defendant claiming damages for chronic and permanent
disease. The judge awarded the plaintiff damages.

Holding: Primary victims do not need to prove psychiatric injury to recover damages for nervous
shock, instead they only had to show that they were directly involved in the accident and their
injuries were reasonably foreseeable.

A distinction was drawn between primary victims and secondary victims that classes of victims
existed with regards to psychiatric injury.

Primary victims, included those directly involved in the accident or incident for example occupants
of the car involved in the accident and also those in the range of foreseeable physical injury as per
Lord Lloyd. Secondary victims on the other hand are individuals who are not directly involved in the
accident or traumatic event but are nonetheless affected by the injury of the victim.
In cases involving primary victims therefore there is no need to distinguish between physical injury
and psychiatric illness in applying the reasonable foreseeability test.

9.
[1996] AC 155
It is sufficient to ask whether the defendant should reasonably have foreseen that the plaintiff might
suffer some personal injury (physical or psychiatric) as a result of the defendant’s negligence if so
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 the defendant is under duty of care to avoid causing personal injury or psychiatric. It is unnecessary
to ask whether the defendant should reasonably have foreseen that the plaintiff might suffer
psychiatric illness and it is irrelevant that the foreseeable psychiatric injury didn’t occur.

However, it is material to consider what the defendant ought to have foreseen as a reasonable
person. It is not every emotional disturbance or every shock which should have been foreseen is
actionable.

In Bourhill vs young, Lord McMillan observed that, injury by Psychiatric illness is more suitable
than physical harm. In this case the defendant was a motorcyclist who crashed and killed himself
by his own Negligence. The claimant who was pregnant did not see the crash but heard it and later
saw blood on the road. She suffered nervous shock as a result and subsequently miscarried her
child. It was held that no duty of care was owed to the claimant. Here although it was foreseeable
that the defendant might physically harm other road users with his negligent riding, it was not
foreseeable that someone in the claimant's position would suffer nervous shock. She failed to prove
proximity.

3.0 WHO CAN SUE UNDER INJURY WITHOUT IMPACT? AND WHAT MUST HE
PROVE?
Since 1901 when a Divisional Court ruled that a Pregnant Bar maid could recover damages for
nervous shock caused by her fright at seeing a pair-horse van being driven into the bar where she
was serving (Delieu Vs White & Sons), English law has recognized a cause of action for nervous
shock, or as it is now accurately called "Psychiatric illness" The principles that make up the scope
of legal liability have evolved over a century, culminating in the House of lord's decision in Page
vs Smith [1996] in which the House of Lords was given it's fourth opportunity to consider the law
relating to liability for negligently inflicted Psychiatric illness the previous House of Lord's
decisions being Bourhill vs young [1943], McLoughlin vs O'Brian [1983], and Alcock vs Chief
Constable of South Yorkshire police [1992]. The decision in Page vs Smith [1996] makes a
shift from emphasizing the special limitations which apply in finding liability and towards
equating, at least in relation to certain plaintiffs, the duty of care not to cause Psychiatric illness.

The injury/mental illness can be caused by apprehension of fear of danger to one’s safety (primary
victim), safety of one who is closely related to the plaintiff (secondary victim). The following
categories of victims can claim;

3.1 Direct participants

Direct participants are plaintiffs within the area of reasonable foreseeability of physical injury.
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After the principle set in Page Vs Smith10 no special rules apply in relation to liability for
psychiatric illness suffered by a plaintiff who was within the area of reasonably foreseeable
physical injury created by the defendant’s negligence, provided that the plaintiff could show that
the defendant should reasonably have foreseen that his or her conduct might cause the plaintiff
any personal injury (physical or psychiatric), the plaintiff may recover for psychiatric illness
suffered as a result of the defendant’s negligence under normal tort principles, whether or not the
foreseeable physical injury does not occur.

This was illustrated by the straight forward acts of Page vs Smith. In this case, the plaintiff was
involved in a car accident of moderate severity caused by the defendant's negligent driving.
Neither the plaintiff, the defendant nor any passenger suffered any physical injury. The plaintiff
gave no evidence that he was in fear of his own or other's safety. However, following the accident
he suffered a recurrence of Chronic fatigue syndrome, of such severity that it was unlikely that he
would work again.

The House of Lords held that, since it was reasonably foreseeable that the plaintiff might suffer
physical injury as a result of the defendant's negligent driving, the defendant owed him a duty of
care to avoid causing personal injury without more.
It was not relevant to ask whether the injury by way of psychiatric illness was reasonably
foreseeable either to the plaintiff (who had a history of CFS) or to the person of normal fortitude.
The page decision is applied by court of appeal in Young Vs Charles Church (Southern) Ltd11.
The plaintiff, a construction worker, suffered psychiatric illness after witnessing the death of his
colleague from a distance of some six to ten feet, his colleague was killed instantly when a scaffold
pole which the plaintiff had just handed him, brushed against a live overhead electric power line.
Another colleague standing nearby suffered burns unlike the car driver page, the plaintiff’s
psychiatric illness was caused by the impact upon him of the dreadful injuries and death of his
colleague.

However, the court of appeal held that, the distinction was not significant. The plaintiff was at risk
of physical injury from an accident which could be foreseen and his illness was caused by the
accident which did occur as a result of the defendant’s negligence.

10.
[1996] AC 155
11.
Young vs Charles Church Ltd
He was therefore a primary victim under the page test and able to recover damages for his
psychiatric illness, proof of proximity is so important.

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3.2 The plaintiff who is not actually in danger but, because of the sudden and unexpected nature
of events, reasonably fears that she/he is in danger.
A plaintiff may recover damages for "nervous shock" brought on by injury caused not to him or
herself nor to another near relative, nor by the fear of such injury.
In MC Farlane Vs EE Caledonia Ltd12 Stuart Smith LJ identified three situations in which a
plaintiff may recover damages for psychiatric illness sustained through fear of physical injury to
him or herself; they include;
 Where the plaintiff is in the actual area of danger created by the event but escapes physical
injury by chance or fortune. Here the rule is Page Vs Smith applies.
 The plaintiff is a rescuer and gets Psychiatric injury as a result of distress arising from dealing
with injured people as a rescuer. The rule in Frost vs Chief Constable of South Yorkshire police
applies.
 The plaintiff who is not actually in danger but because of the sudden or unexpected nature of
events, reasonably believes that he or she is. Such a plaintiff can recover but to do so must show
that not only that he or she genuinely feared for his or her safety, but the defendant should have
reasonably foreseen that a person of ordinary fortitude in the plaintiff’s position would have
done so.

In Macfarlane Case, the plaintiff was a workman on support vessel which went to aid the crew on
board, the burning pipe alpha oil platform. He spent about 2 hours on the support vessel before being
evacuated by helicopter and claimed he had suffered psychiatric injury as a result. He failed to recover
on grounds that it could not be said that the defendant’s out reasonably to have foreseen that a person
of ordinary fortitude in his position would suffer psychiatric illness. Even the appeal failed.

In a case brought by another worker who was on the same vessel with the plaintiff in the previous case,
ie Hegarty Vs EE Caledonia Ltd13 the plaintiff claimed that, he fell on the category of plaintiff
identified by Stuart Smith LJ in McFarlane who was not actually in danger but because of sudden
events or expected nature of events reasonably believes that he/she is. Court of Appeal accepted that
the plaintiff was a person of reasonable fortitude and that he had genuinely feared that he was in danger.
However the court agreed with trial judges that this fear was not a reasonable one.

12.
[1994] 2 ALL ER 1
13.
[1997] 2 ALLER Llyod's Rep 259.
From the two cases, it is apparent that, the fear would be reasonably foreseeable where the plaintiff
was abnormally susceptible to fear from the particular present danger and the defendant was aware of

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 the fact.

Whether such a plaintiff would be able to recover under this category is an open question. It would
involve the test of reasonable fear being assessed on a more subjective basis than has previously been
the case.

3.3 Where the defendant causes death, injury or imperilment of a person other than the claimant
and the claimant can establish sufficient proximity in terms of;
 His or her tie of love and affection with the immediate victim
 His or her closeness in time and space to the incidence or its aftermath.
 The mean by which he or she learns about the incident.

Whereas Claimants who suffered psychiatric illness pursuant to another person’s death, injury or
imperilment must show that his or her psychiatric illness was reasonably forseeable, it is clear that,
certain factors, such as plaintiff's closeness in time and space to the scene of the Accident, and
plaintiff’s relationship to the immediate victim are particularly important to the finding of liability in
this category. It was however not clear whether these were factors for testing foreseeability or whether
they were additional huddles over and above foreseeability.

In Mclonghlin Vs O’Brian14 Lord Wilberforce thought that, reasonable foreseeability was not the
sole test. The risk of opening the door to a limitless number of claims required that, the law should
impose additional proximity tests in terms of class of persons whose claims may be recognized, the
proximity of such persons to the accident and the means by which the shock is caused. Lord Scanman
and Lord Bridge thought that there three factors were to be weighed in applying the reasonable
forseeability test but were not limitations on it.

In O’Brian Case, The plaintiff's husband and three children were involved in a road accident caused by
the negligence of the defendants. One of the plaintiff's children was killed and her husband and other
two children were severely injured. At the time of the accident the plaintiff was at home two miles away.
She was told of the accident by a motorist who had been at the scene of the accident and was taken to
hospital where she saw the injured members of her family still covered with oil and mud and the extent
of their injuries and shortly heard that her daughter had been killed.

14.
[1983] 1 AC 410

As a result of hearing, and seeing the results of, the accident the plaintiff suffered severe and persisting
nervous shock. The plaintiff claimed damages against the defendants for the nervous shock, distress
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 and injury to her health caused by the defendants' negligence. The judge dismissed her claim on the
ground that her injury was not reasonably foreseeable.

On appeal, the Court of Appeal held that the plaintiff was not entitled to claim against the defendants
either because as a matter of policy a duty of care was not to be imposed on a negligent defendant
beyond that owed to persons in close proximity, both in time and place, to an accident, even though
the injuries received by the plaintiff might be reasonably foreseeable as being a consequence of the
defendants' negligence, or because the duty of care owed by a driver of a motor vehicle was limited to
persons on or near the road.

The plaintiff appealed to the House of Lords Held - The test of liability for damages for nervous shock
was reasonable foreseeability of the plaintiff being injured by nervous shock as a result of the
defendant's negligence. Applying that test, the plaintiff was entitled to recover damages from the
defendants because even though the plaintiff was not at or near the scene of the accident at the time or
shortly afterwards the nervous shock suffered by her was a reasonably foreseeable consequence of the
defendant's negligence and the appeal would accordingly be allowed.

The issue of the three factors was decisively dealt with in the decision of the house of Lords in Alcock
Vs Chief Constable of South Yorkshire Police15.

This was a test case brought by a number of relatives and friends of spectators involved in
Hillsborough disaster. It was admitted that, the death and injuries of the fans at the stadium occured
as a result of the negligence of the police and it was assumed for the purposes of trial that each of the
plaintiffs had proved the infliction of psychiatric illness. Sixteen plaintiffs claimed damages and 10
were successful at first instance. The court of appeal allowed the defendant's appeal in respect of nine
of these plaintiffs and denied the cross-appeals by the six unsuccessful plaintiffs. Ten of the fifteen
plaintiffs appealed to the House of Lords. The relationship of these plaintiffs to the immediate victims
ranged from parents to brother, sister, brother-in-law law, fiancée, and grandfather. Two of the
plaintiffs were present at the match, whilst the others had watched events on television either as the
disaster unfolded on live broadcast or subsequently on recorded bulletins. None of the plaintiffs was
successful before the House of Lords.

15.
[1992]1 AC 310

The House of Lords unanimously adopted Lord Wilberforce’s view that, liability for psychiatric
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 illness was limited on policy grounds by the concept of proximity. This involved, “not only an element
of physical proximity to the event but a close temporal connection between the plaintiff and the
primary victim”. Therefore everywhere psychiatric illness is a reasonably foreseeable consequence of
the defendants’ conduct if all the three additional proximity requirements are not met, the claim will
fail.

The three factors in Alcock case can be expanded as follows;

3.3.1 A close tie of love and affection

In order to succeed under the third category of plaintiffs (secondary victims), the plaintiff must
establish a close tie of love and affection to the immediate victim.

In Alcock Vs Chief Constable of South Yorkshire Police16 such a tie may be present in family
relationships or those of close friendship, such closeness must be proved in each case although
it may be rebuttably presumed in case of spouse, parent, or child and possibly fiancé. More
distant friends and relatives are required to show that their relationship is too close to intimate
that their love and affection is comparable to that of normal spouse, parent or children but it is
the closeness of the care as opposed to the nature of relationship which is important.
This proximity by relationship should be decided on a case by case basis. Lord Oliver stated
that creating a list of categories within which claims may succeed and without which they are
doomed to failure would, work great injustice and could not be rationally justified, and Lord
Jauncey thought that any such dividing line would be arbitrary and lacking logic.

In Mcloughlin Vs O’Brian17 the victims were children and husband to whom the plaintiff was
closely related in both love and affection and hence the claim succeed on those grounds.
In McCarthy vs Chief Constable of South Yorkshire police, a plaintiff whose half-brother
had died at Hillsborough successfully recovered damages for Psychiatric illness which he
suffered. He adduced evidence from relatives and friends that his family was very close, and
the two half-brothers particularly so.

16.
Ibid
17.
Opcit

However, In Alcock, one plaintiff had been present at the ground and had witnessed the
accident in which his two brothers were killed. His claim failed because he produced no
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 evidence of close tie of love and affection with his brothers and no assumption of such a tie
was to be made in the case of siblings.

3.3.2 Physical and temporal proximity

The plaintiff must be close to the accident both in terms of time and space. In Mclaughlin Vs
O’Brian18. The scene of accident was extended to include not only the scene of event which
causes the death, injury or imperilment, but also it's "immediate aftermath". In this case the
plaintiff was two miles away at her home when a car carry her husband and three of her children
was involved in accident caused by the defendant’s negligence one of her children died almost
immediately and the other two were seriously injured.
An hour later or so she was told of the accident and went directly to the hospital where she saw her
husband and two children still covered with dirt and oil, suffering obvious pain and distress. She was
held to have established sufficient proximity to the events which made up the accident. Lord Wilber
stated that, it would be impractical and unjust to insist on direct and immediate sight or hearing and to
exclude a plaintiff who comes very soon upon the scene.
Attempt in Alcock Vs Chief Constable Yorkshire Police19 to extend the concept beyond the immediate
aftermath failed because the plaintiffs were not at the scene or it's aftermath.

In Bourhill Vs Young 20, the action failed because the plaintiff lacked reasonable proximity in terms of space
since she only heard the bang and she was some 45 to 50 feet from the accident scene and out of visual
range hence failed to recover.

In King vs Phillips [1953] 1QB 429, a mother who heard her child scream from some 70 to 80 yards
distance when a taxi backed into him failed to recover.

3.3.3 The means of perception

In O'Brian case, Lord Wilberforce noted, that, there was no case law in which the law had compensated
shock brought about by communication by a third party; and said this was “surely right”. The shock, he
said, must come through sight or hearing of the event or it's immediate aftermath. He left open the
question whether some equivalent of sight or hearing such as simultaneous television would suffice.

18.
Ibid
19.
Opcit
20.
1942]2 ALL ER 396

Perception by television was considered in Alcock case where several plaintiffs had watched the

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 disaster unfold on live broadcast. This was held not to create the necessary degree of proximity
for two reasons;

 None of the scenes depicted the suffering of recognizable individuals, this being excluded as the
defendant was aware, by the broadcasting code of ethics, the cameras from different scenes all
of which one person could not have seen with edited pictures and a superimposed commentary
a direct suffering of a person.
 The pictures did not provide a degree of immediacy required to found a claim for psychiatric
illness. The trauma arose not from seeing the original viewing of the pictures, but in part from
the confirmation that the death of the loved ones had occurred and in part from the linkage of
this confirmation, to the images, seen earlier. Following Alcock case, a plaintiff who suffers
psychiatric illness after the communication of distressing news by a third parties will not be able
to recover.
This case overruled the decisions in Herican Vs Ruane21 and RavenScroft Vs
Rederiaktiebolaget Transantilatic22 where in both cases liability had been found against the
defendant where the plaintiffs had suffered psychiatric illness after being told about the death of
their children in an accident and by the defendant’s negligence.

3.4 Rescuers
Rescuers provide a special category of plaintiffs entitled to recovery for psychiatric illness.
A rescuer who suffer Psychiatric injury while rescuing victims of an incident arising from the
negligence of the defendant is entitled to recovery.
In Chadwick Vs British Railways Board23 Mr. Chadwick’s estate recovered damages for
psychiatric illness suffered by Mr. Chadwick as a result of the horror of assisting at the scene of
a railway disaster which occurred near his home in which 90 people were killed and many more
injured. The defendant owed Mr. Chadwick a duty of care since it was reasonably foreseeable
that somebody might try to rescue the passengers and suffer injury in the process.

21.
1991
22.
1991
23.
[196 ]1 WLR 912

A plaintiff may recover as a rescuer even if the rescue attempts were made in the course of his or her
processional duties. In Frost Vs Chief Constable of South Yorkshire Police24. Several Police
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 Officers who had provided first aid at the scene of the Hillsborough disaster and had attempted to
resuscitate victims were able to recover damages for post-traumatic stress disorder suffered as a
consequence of their involvement. The defence that the officers should not be able to recover because
it was part of their professional duties to deal with such situations was rejected.

It is important to note however, that not every involvement in a disaster will qualify a rescue attempt.
For example in Mcfarlane Vs EE Caledonia Ltd25 the plaintiff was on board a support vessel going
to the aid of victims of the piper Alpha disaster. However he was classified a non-essential personnel
and his involvement in the rescue efforts was limited hence the claim failed. He only moved blankets
and perhaps assisted two walking injured persons as they arrived at the rescue vessel. This was not
sufficient to bring him in rescue category.

Rescue situation and proximity in time and space.

A claim by a rescuer who is not Geographically proximate to the scene at the time the incident occurs
may fail.
In Duncan Vs British Coal Corporation26 A pit Deputy attempted to resuscitate one of the men for
whom he was responsible who had been crushed by machinery. He failed to recover damages for his
consequential psychiatric illness as a rescuer. While his actions were proximate in time to the
deceased’s injury, he was not geographically proximate when the incident occurred. When he arrived
at the scene there was no danger to him or to the deceased. The first aid which he administered was
within the normal scope of his employment duties and there were no unusually distress features.

Likewise in frost case, three Police Officers at Hilbborough Stadium failed to qualify as rescuers,
considering that each of the officers at the scene did different roles. Janet Smith was not at the ground
when the incident occurred, but reported about one hour later to the local hospital where she was asked
to strip bodies and complete casualty forms in the mortuary; DC Hallam was in the gymnasium when
the disaster occurred. He attempted to revive an apparently dead boy, he saw the mayhem created as
more causalities, relatives and police arrived in the gymnasium, PC Glave was also in the gymnasium
but was ordered to go to the end of the ground far from the pen where the tragedy occurred. He helped
to receive bodies and obtained first aid. None of these three officers was held to qualify as rescuer on
grounds that they were not sufficiently closely involved in incident or its immediate aftermath.

24.
[1997] 3 WLR 1194
25.
Opcit
In contrast however majority of court of appeal judges held that the remaining three (3) officers all
qualified as rescuers.
14 | P a g e
 Factors to be considered in determining whether a particular plaintiff is a rescuer. In reaching his
decision in relation to each officer, Rose LJ, said that factors to be considered whether a particular
plaintiff is a rescuer include;
 The character and extent of the initial incident caused by the tortfeaser.
 Whether that incident has finished or is continuing
 Whether there is any danger, continuing or otherwise to the victim or the plaintiff;
 The character of the plaintiff’s conduct in itself and in relation to the victim and
 How proximate in time and place, the plaintiff’s conduct is to the incident.

3.5 The plaintiff as an involuntary participant.

A claim by involuntary participants shall succeed against their employer where the incident leading to
the Psychiatric injury complained of arise from the Negligent acts of their employer.
The category of involuntary participant was first recognized by Lord Olive in Alcock case. It includes
those cases where “the negligent act of the defendant has put the plaintiff in the position of being or
of thinking that he is about to be or has been, the involuntary cause of another person’s death or injury
and the illness complained of stems from the shock to the plaintiff of the consciousness of this
supposed fact”.

He included in this category the case of Dooley Vs Cammell Liard27 whereby a crane driver suffered
psychiatric illness after seeing a defective rope on his cranes nap thereby causing the crane to drop its
load onto the hold of a ship where he knew his fellow employees were working. Although no one
infact was injured, he feared for his safety.

In the case of Galt British Railways board, 28 A train driver came up on two workmen as he rounded
a bend and being unable to stop, feared that he had killed them, hence suffered psychiatric injury and
his own claim was successful.

However in Frost vs Chief Constable of South Yorkshire police29 Henry LJ suggested a different
categorisation for these cases. He described them as "master and servant" cases where employer's
negligence in imperiling a fellow workmate makes the plaintiff an unwilling participant in the event.

26.
[1997]1 ALL ER 540
27.
([1951]) ALLER 1317
28.
Galt vs British Railways board
29.
Opcit
If this were the rationale, then the involuntary participant would not have a claim against any other
tortfeasor but only a tortfeasor who is his/her employer.
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 This would rule out recovery by for example a car driver who run over a pedestrian having been unable
to stop in time due to the negligent manufacturer of his/her brakes.

3.6 The plaintiff who is an employee who is directly involved in an incident caused by his/her
employer's negligence which results into injury or imperilment.
An employee may be able to recover damages from his/her employer in respect of reasonably
foreseeable Psychiatric illness suffered in the course of employment as a result of the employer's
negligence. Just as an employer has a duty of care to his or her employees not to expose them to the
risk of physical injury, so also an employer has a duty of care not to expose them to a risk of Psychiatric
illness.

In Frost case, two of the police officers who failed to qualify as rescuers, DC Hallam and PC Glave,
recovered damages from the Chief Constable (who for these purposes was treated as the employer) on
the basis that, the carrying out of their duties had brought them within the range of foreseeable
Psychiatric injury created by the employer's negligence.

However, an employer is not in every circumstance liable for Psychiatric illness suffered by an
employee who carries out employment duties following his/her negligence. Where illness is suffered
pursuant to another person's physical injury or imperilment, employees must show that,
 "they were directly involved, in the course of employment, in the consequences flowing from
their employer's negligence.
 That carrying out employment duties brought them within the area of risk of physical or
psychiatric injury.

3.7 Cases where the defendant has neither imperiled nor caused physical injury to any person.
3.7.1 The Plaintiff who suffers reasonably foreseeable psychiatric illness through stress at work.
Stress from work which causes Psychiatric harm or illness is actionable. This is what Clerk and
Lindsell describe as occupational stress. Employees may recover damages from employers for
Psychiatric injury sustained in the course of employment due to the employer's negligence.

In cases where employees suffer nervous breakdown caused by stress at work, the test that has been
applied is simply whether the breakdown was reasonably foreseeable as stated in Walker vs

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 Northumberland county council30 .That in case of psychiatric illness, is consequent upon injuries to
a third person, the employee should have to prove not only that his/her illness was reasonably
foreseeable but also that he/she was in some sense “directly involved".

It was emphasized in this case that, it was clear law that an employer has a duty to provide his
employeevwith a reasonably safe system of work and to take reasonable steps to protect him from risks
which are reasonably foreseeable.

3.7.2 Plaintiff who suffers reasonably foreseeable psychiatric illness as a result of the defendant
causing damage to property.
As a matter of law, Psychiatric illness caused by injury to property may be actionable if it is reasonably
foreseeable.
The most important decision on this subject matter is in a case of Attia Vs British Gas PLC31 on the
preliminary issue the court of appeal held a plaintiff could be entitled to damages for a psychiatric
illness which she had suffered as a result of witnessing a fire caused by the negligence of the workmen
whom she had employed to install central heating in her home. The case was allowed to proceed to
trial on the facts. The court regarded the issue as raising questions of remoteness only. Dillon LJ said
that the defendants unquestionably owed a duty of care to the plaintiff not to set fire to her home, and
indeed her claim for property damage had already been settled.

Court held that psychiatric illness caused by property damage could be reasonably foreseeable and was
not prepared to accept that as a matter of policy all such claims should be ruled out.
Birmingham LJ suggested examples to show why recovery could not be denied, "Suppose for example,
that a scholar's life’s work of research or composition were destroyed before his eyes as a result of a
defendant’s careless conduct causing the scholar to suffer reasonably foreseeable psychiatric illness or
suppose that a house holder returned home to find that his most cherished possessions had been
destroyed through the carelessness of an intruder in starting a fire or leaving a tap running causing
reasonably foreeasable damage to the owner”.

30.
[1995] 1 ALL ER 737
31.
[1988] QB 304
Owens Vs Liverpool Corporation32 may also be regarded as a case involving property damage. The
defendant had negligently driven into a hearse, causing damage to the hearse and overturning the coffin
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so that it appeared that the coffin might fallout.

Relatives of the deceased man saw the damage from their position in the funeral procession and suffered
nervous shock as a result. The court of appeal held that the right to recover damages for psychiatric
illness was not restricted to cases in which apprehension as to human safety was involved, although the
fact that alleged shock may well be material in considering whether the allegation be proved.

3.8 Plaintiffs who suffer injury due to intentional acts.

Liability for Psychiatric illness will also arise from willful, calculated and unreasonable acts of the
defendant the defendant ought to have known the consequences of his conduct.

In Wilkison Vs Downtown33 The Defendant as a practical joke with intent to frighten her, willfully
deceived the plaintiff that he had been sent to inform her that her husband had been seriously injured in
an accident with both legs were broken, was lying in hospital and for her to pick him. As a result the
plaintiff suffered a severe nervous disorder. Held: Where an act willfully calculated to cause physical
damage actually causes such harm: there will be liability in trespass in nervous shock.

In Janvier Vs Sweeney34 where a private detective told a woman that she was a police detective and
that she was wanted for communicating with a German Spy. He did this in order to obtain certain
information about her employer and the woman suffered shock and nervous illness as a result of the
statement. In applying the rule in Wilkison vs Downton the court ruled that the detective was liable for
the nervous shock to the plaintiff who had an even stronger case than in Wilkison vs Downton since
there was a clear intention to frighten the victim in order to unlawfully obtain information.

Note: The intentional and direct nature of these claims qualified them to brought under the tort of
trespass on person and not under negligent torts.

3.9 Plaintiffs who are recipients of distressing news and suffer reasonably foreseeable Psychiatric
illness as a result of news being broken in an insensitive manner.
There is a precedent to suggest that negligently presenting shocking news to someone that can meet the
standard for actionable psychiatric injury is sufficient.

32.
[1939] 1 KB 394
33.
[1897] 2 QB 57
34.
[1918-199] ALL ER 1056
In Allin Vs City and Hackney Health Authority35 The claimant was told inaccurately that her baby
was dead. It was held that the defendant had a duty to avoid such false disclosures and so a case of
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psychiatric injury was found to exist.

3.10 Miscellaneous
There are other circumstances in which recovery may be available in negligently inflicted psychiatric
illness (assuming that the standard elements of the tort of negligence can be made out).
These include;
 where a patient suffers a psychiatric illness because of negligent treatment by his or her
psychiatrist.
 where a prisoner foreseeably suffers a psychiatric illness as a result of ill-treatment by prison
officers among others.

CAN A PLAINTIFF WHO IS A MERE BYSTADER RECORVER?

Whether a person that merely witnesses the death, injury or imperilment of the immediate victim but
has no close tie of love, and affection with him or her may in any circumstance recover for psychiatric
injury is not certain.

In Mcloughlin Case Lord Wilberforce thought that such claims would be denied either on the basis that
bystanders must be assumed to be possessed of sufficient fortitude to enable them endure the calamities
of modern life. On this basis the defendants cannot be expected to compensate the world at large.

The question was left open in Alcock per Lord Ackner, thought whilst that it was not ordinarily
foreseeable that a bystander would suffer psychiatric illness as a result of witness the accident; if
circumstances of catastrophe occurring very close by were particularly horrific, then this might be the
case. Lord Akner provided an example of such a horrific event the sight of a petrol tranker careering
out of control into a school session and bursting into flames. Lord Oliver could not exclude the
possibility of successful claims by bystanders who witness circumstances of such horror that would be
“likely to traumatise even the most phlegmatic spectator.

However, the court of appeal in McFarlane Vs EE Caledonia Ltd, thought that as a matter of both
principle and policy the court should not extend the duty of care to those who are mere bystanders or
witnesses of horrific events.

35.
(1996)7 med LR 167
To extend liability to those who do not have a close tie of love and affection to an immediate victim
would be to base the test of liability on foreseeability alone, something which was ruled out by the
19 | P a g e
decision in Alcock. Moreover, there would be a great problem in deciding which accidents were
sufficiently horrific, sincere actions to horrific events are entirely subjective.

Bystanders therefore are excluded from a list of plaintiffs that can succeed under Psychiatric illness
claims. However, where there may be situations of much horror likely to traumatize even the "most
Phlegmatic Spectator" they may be covered.

4.0 CLASSIFICATIONS OF VICTIMS.

Victims of Psychiatric Injury are categorized into two; Primary and Secondary Victims.

In Page Vs Smith the distinction was drawn between the primary victims and the secondary victim of
an accident.
Court stated that; Primary victims include those directly involved in the accident or incident for example
occupants of the car involved in the accident and also those in the range of foreseeable physical injury
as per Lord Lloyd, Secondary victims on the other hand are individuals who are not directly involved
in the accident or traumatic event but are nonetheless affected by the injury of the victim.

4.1 Primary Victims

A primary victim is a person who was physically injured or could foreseeably have been physically
injured as a result of another person’s negligence e.g in Page Vs Smith

They are direct participants in the incidents. In the case of Dulieu Vs While37, the claimant Mrs. Dulieu
was working in a public horse, while she was serving, the defendant negligently drove his horse drawn
van into the bar. She suffered shock which resulted into miscarriage and she sued the defendant Mr.
White was held liable for causing nervous shock resulting in miscarriage as the claimant reasonably
believed her to be in danger.

Similarly in Page Vs Smith, It was held that Smith was liable for causing Mr. Page psychiatric injury
(Chronic Fatigue Syndrome) after a car crash because Smith should have reasonably foreseen that Mr.
Page would suffer physical injury for the crash. So liability for causing psychiatric injury to primary
victims depends on foreseeability of the physical injury as long as psychiatric injury is medically
recognized.

In Young Vs Charles Church (Southern KTD). The claimant was a “participant in the event where
he and Mr. Cook were raising scaffolding poles in an area that was secured by the employers. The power
20 | P a g e
lines were not switched off. Mr. Cook touched a pole to the electric wiring and suffered horrific death
which caused Mr. Young great distress. Even though he never feared for the loss of his own life,
According to Evans and Hutchinson LJ the plaintiff was a primary victim. Hobhouse LJ disagreed: the
plaintiff was a secondary victim since he was an observer of a traumatic and fatal injury inflicted upon
the other.

In Mcloughlin Vs Jones and others36, there was an allegation that Mr. Mcloughlin was a bad landlord,
threatening and beating up tenants to get their rent from them in cash. He was charged for criminal
offence and sentenced to prison. He claimed that his solicitors (Jones and Others) had acted without
the evidence especially the witness statement of a person who knew that Mr. Mcloughlin was not
present when the beatings allegedly took place.

It soon became apparent that he was actually an upstanding member of the society and he
suffered psychiatric injury as a result of the imprisonment and loss of reputation (Note that
solicitors have a pre-existing duty of care towards their clients).
In Frost Vs Chief Constable of Yorkshire Police37 putting the primary/secondary victim
distinction, into practice was viewed with difficulty. In this case 5 of the officers were classified
as primary victims. Although Henry LJ recognized that this was difficult to reconcile with
Llyods manner classification in Page.
However it was stated that, labelling the plaintiff did not really matter since the distinction only
went to the question of proximity.

In Hegarty Vs EE Catendonia Ltd38 the court of appeal held that, a primary victim is either;
 As laid down in Page Vs Smith a person “directly involved in the accident in question and
well within the range of foreseeable physical injury or
 One who was involved as a participant who feared for his or own safety. This second
category, although said to be based on Lord Oliver’s classification, in Alcock case has a
gloss added on to it. It requires that the plaintiff should have feared for his safety. This
should exclude officers from frost case and the involuntary participants in Dooley Vs
Cammell Case.

36.
[2002] QB 1312.
37.
Opcit
38.
Opcit

There is therefore a confusing inconsistently of approach by the courts in classification of

21 | P a g e
 primary and secondary victims. Nor is it clear how the distinction will be drawn is "non-
accident" cases.
Lord Oliver gave three examples of plaintiff whom he would classify as being involved as
participants.
 Plaintiffs who feared for their own safety
 Rescuers
 Involuntary participants

4.2 Secondary Victims

A secondary victim is a person who suffers nervous shock without himself being exposed to
danger.

An example is a spectator at a car race, who witnesses a terrible crash caused by negligence on
the part of the car manufacturers and develops nervous shock as a result of his experience. It is
in these cases where the courts have been particularly reluctant to award damages for nervous
shock.
In several decisions the courts have identified several strict requirements for the recognition of
a duty of care not to cause nervous shock as well as causation and remoteness.

For a secondary victim to succeed;

4.2.1 The claimant must perceive a shocking event with his own unaided senses such as an
eye witness to the event or hearing the event in person or viewing its immediate aftermath.
This requires close physical proximity to the event and would usually exclude events
witnessed by television or informed of by a third party.

4.2.2 The shock must be sudden and not a “gradual” assault on the claimant’s nervous
system. So the claimant who develops a depression from living with a relative debilitated
by the accident will not be able to recover damages for the Psychiatric illness that may
result afterwards.

4.2.3 If the nervous shock is caused by witnessing death or injury of another person,
usually the claimant must show a ‘sufficiently’ proximate relationship to that person
usually described as close tie of love and affection such ties are presume to exist between

22 | P a g e
 parents and children, spouses and finances etc in other relations including siblings, ties of
love and affection must be proved.

4.2.4 It must be reasonably foreseeable that a person of a normal fortitude in the

claimant’s position would suffer psychiatric damage. The closer the tie between the claimant
and the victim, the more likely it is that he would succeed.
However once it is shown that the psychiatric damage was foreseeable, it does not matter that
the claimant was susceptible to the psychiatric injury. The defendant must “take his victim as
he finds him” and pay for all consequences of nervous shock. “the egg skull rule applies".

A mere bystander can therefore hardly count on compensation for psychiatric shock unless he
had witnessed something so terrible that anybody could be expected to suffer psychiatric injury
as a result. It seems such a case is theoretic.
In Mcfarlane Vs EE Caledonia Ltd case where the plaintiff witnessed an explosion of a rig
where he and his colleagues worked but received no compensation.

5.0 RESTRICTIONS TO RECOVERY.

5.1 The plaintiff is required to show that his or her psychiatric illness was induced by a
shock.
According to Lord Ackner, what is required is sudden appreciation by site or horrifying
event which agitates the mind. Failure of which the claim shall fail.

5.2 The defendant as the immediate victim.

In situations where an accident is out of the victim's negligence and results into nervous
shock to others, on grounds of policy, court would exclude liability of this nature. This is
because imposing a duty on the victim to avoid self inflicted injury would impose
limitations on the right of self determination.
Dicta by Deane J in the Australia case Jaensch Vs Coffey39 suggests that where the
plaintiff suffers psychiatric illness pursuant to the death, injury or imperilment of another,
damages are not recoverable where the other was a defendant him/herself.

39.
[1997] 3 WLR 1194

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 Lord Robertson in his judgment in the court of Session in Bourhill vs Young are the
same effect. He suggested that the Rationale for the exclusion is that, there must be some
end to the legal consequences of a careless act. In the case of young the primary victim
(the rider) was the one who was negligent and hence was the defendant.
A Secondary victim cannot recover when the defendant is also the primary victim.
In Greatorex Vs Greatorex40 It was held that, If an individual negligently causes
themselves a horrible injury, a secondary victim cannot sue for psychiatric injury. In this
case where a father got nervous shock when acting as a fireman in response to an accident
and found the victim to be his son. In an action against his son in an insurance claim, court
rejected the claim on grounds that, though the claimant satisfied all the conditions of a
secondary victim, making his son liable would be imposing a duty on him to avoid self
inflicted harm and would undermine the son's rights of self determination. It would not
be just, fair and reasonable.

There are four features of claims for psychiatric injury upon which a restrictive
approach is based.
 Drawing the line between a cute grief for which damages are irrecoverable and
psychiatric harm which is actionable is difficult. Also proof of psychiatric harm requires
expert evidence. It is costly and timing consuming and therefore, has been found to
impair administration of justice.
 There is the danger of expanding claims for potential claimants who might have
witnessed gruesome events.
 The abolition of special rules governing recovery of damages for psychiatric harm
would increase the class of claims.
 Imposition of liability for pure psychiatric harm in a wide range of situations would
result in a burden of liability as defendants which may be disproportionate to tortions
conduct.

40.
(2000)1 WLR 69

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6.0 DEFENCES
6.1 Contributory negligence.
This defense is simply an argument that, through some action or omission of their own, the
plaintiff contributed manifestly to their own injuries and that this fact should be reflected in the
awarded damages. The extent to which the claimant contributed to the act causing the injury is
deducted from the damages awarded to her.

Lord Denning MR identified foreseeability requirement that,

“Just as actionable negligence, requires foreseeability of harm to oneself, a person is guilty of
contributory negligence if he ought reasonably to have foreseen that if he did not act as a
reasonable, prudent man, he might hurt himself.
In Greatorex Vs Greatorex41 It was held that, If an individual negligently causes themselves
a horrible injury, a secondary victim cannot sue for psychiatric injury. In this case where a
father got nervous shock when acting as a fireman in response to an accident and found the
victim to be his son. In an action against his son in an insurance claim, court rejected the claim
on grounds that, though the claimant satisfied all the conditions of a secondary victim, making
his son liable would be imposing a duty on him to avoid self inflicted harm and would
undermine the son's rights of self determination. It would not be just, fair and reasonable.

6.2 Voluntary assumption of a risk.

This arises where the plaintiff was aware of the risk but went on and continued to do an action
that puts his life in danger.
In Duncan vs British Coal Corporation42 ([1977] 1 AA ER 540) A pit deputy attempted to
resuscitate on of the men for whom he was responsible who had been crushed by machinery.
He failed to recover damages for his consequential Psychiatric illness as a rescuer. It was held,
the first aid which he administered was within the normal scope of his employment duties
which he understook to do and there were no usually distressing features.

41.
Ibid
42.
[1977] 1 ALL ER 540

6.3. Inevitable accident

25 | P a g e
 Where the claimant suffers psychiatric injury arising from an inevitable accident with no proof
of Negligence on the side of the side of the defendant. The claim shall fail since there was no
Negligence on the side of the defendant. For example where a train accident is a result of land
slides that suddenly separate the railway line, such an accident is inevitable and the claim
against the company is bound to fail.

6.4 Act of God

Where one develops Psychiatric illness due to property destruction cause by act of God, his
claim for compensation shall fail. For example, if thunder strikes your house causing the
electricity to spark into fire that destroys the house resulting into psychiatric illness, a claim
against the electricity board is bound to fail.
6.5 Statutory authority.
The acts of the defendant in execution of a lawful authority from court shall not give rise to
liability. A situation where a relative of a person condemned to death develops Psychiatric
illness as a result of witnessing his spouse or child being executed by hanging shall not succeed
in a claim against a hangman who is only executing a a lawful order.

6.3 Necessity
Where the act leading to nervous shock was done to avert a greater danger, it shall constitute a
defense to defendant.

7.0 REMEDIES:
The common remedies for Psychiatric injury are damages.
In Mcloughlin Vs O’ Brian43 The test for damages for nervous shock was reasonable
foreseeability of the plaintiff being injured by the nervous shock as a result of the defendant’s
negligence. Applying this test, the plaintiff was entitled to recover damages for the defendant
because even though the plaintiff was not at or near the scene, of accident at time and shortly
afterwards the nervous shock suffer was reasonably foreseeable consequence of the defendant’s
negligence. The appeal was therefore allowed.

43.
Opcit

These damages can be General damages, special damages, exemplary damages/punitive

26 | P a g e
damages and aggravated damages.

7.1 General damages.

These are damages awarded to cater for the inconveniences and lost of opportunities or earnings
incurred by the plaintiff as a result of the defendant's act leading to psychiatric illness. For
example in Page vs Smith44 the plaintiff recovered general damages because he suffered
Chronic Fatigue Syndrome that made it impossible for him to work again.
These damages are awarded at the discretion of court.

7.2 Special damages.

These are damages awarded to victims of Psychiatric injury arising from calculable and
ascertainable expenses the have incurred in dealing with the illness such as receipted expenses
in paying medical bills.
In Wakiso transporters vs Wakiso local Government45, I was stated that, special damaymust
be specially pleaded and strictly proved. This proof can be by receipts or other verifiable means.

7.3 Exemplary damages.

These are punitive damages awarded by the court to punish the outrageous conduct of the
tortfeasor. It is applicable where the defendant's conduct is extreme and outrageous, intentional
or reckless and causes severe emotional distress to another. Although civil law is not punitive in
nature, these damages can be awarded at the discretion of the court in circumstances where the
tortfeasor commits an obviously negligent act with impunity leading to the Psychiatric illness of
the plaintiff. They are awarded as an addition to general damages especially where negligence
is by public officers to serve as an example to deter other officers from being such negligent.

44.
Opcit

8.0 CONCLUSION
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In conclusion therefore, it is important to note that, while dealing with liability arising from
nervous shock, it is imperative link the Psychiatric illness of the victim to the Negligent acts of
the tortfeasor and the suffering must not merely be grief, distress, or any other normal emotion,
but a positive Psychiatric injury. This must be proved by medical evidence. Reasonable
foreseeability is key in the case of primary victims while a close tie of love and affection with
the immediate victim, closeness in time and space, to the incident or it's aftermath and the means
by which the plaintiff learns of the incident are essential to the secondary victims. All this is
done to prevent a floodgate of vexatious and frivolous cases and abuse of the justice system.

References:
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Case law

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