Nervous Shock: Discussion on Kennedy Limitation/Physical & Mental Proximity

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Nervous Shock: Discussion on Kennedy Limitation/Physical & Mental Proximity

June 7, 2020 Law of Torts 0
Nervous Shock: Discussion on Kennedy Limitation/Physical & Mental Proximity 1

 

NERVOUS SHOCK

There can be two kinds of injuries:

1. Actual Physical Injury,

2. Injury by shock sustained through medium of eye or ear without direct contact (i.e., Nervous Shock)

Development of Nervous Shock:

First Stage: In Victoria RC vs. Coultas (1888), The Privy Council held that if we admit the claim of nervous shock then we will be unable to distinguish between right and wrong claim because medical evidence is not available to either prove or disprove nervous shock. The problem is further complicated since it may open flood gates of litigation.

The first successful nervous shock case was Dulieu vs. White (1901), in this case a pregnant lady suffered a nervous shock as she witnessed the horse van charging towards her. The court concluded that since there was reasonable fear of immediate personal injury, the claim of nervous shock should go through. This case is famously termed as Kennedy Limitation. As per this limitation the claim of nervous shock can be successfully made only if there is a fear of immediate personal injury. This kennedy limitation was subsequently rejected.

Kenedy limitation pointed out two situations:

i) Mother of Child—- When Scared of Immediate Personal injury— Damages will be given & therfore it is nervous shock

ii) Mother of Child—- When Courageous/ not scared— No damages & not nervous shock.

Second Stage: In Hambrook vs. Stokes (1925) mother apprehended injury to the Child & in the process suffered nervous shock. The court awarded her damages on the ground of nervous shock.

In the second stage therefore it is clear that the kennedy limitation was done away with and courts started awarding damages on nervous shock even for the safety of close relatives.

Third Stage (Physical Proximity): This stage is known as Impact Theory. In this stage the courts took into account the forseenability of some act occuring to the plaintiff and started awarding damage only if the plaintiff was within the forseenable area of impact or close enough to witness the scene of accident. Which simply means person is in physical proximity of act (closeness).

Fourth Stage (Mental Proximity): This stage considered mental proximity important for claims of nervous shock. In this stage the courts have asserted that even if plaintiff is outside forseenable area of impact even then damages can be awarded if he is in the forseenable area of shock.

In king vs. Philips, the courts rightly came to the conclusion that the claim of the nervous shock should fail because injury was not reasonably forseenable.

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