Secondary Victims’ Claims for Psychiatric Damage: Reform Opportunities in India

By | January 18, 2022
Claims for Psychiatric Damage

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This article – Secondary Victims’ Claims for Psychiatric Damage: Reform Opportunities in India is being presented by Mr. Ashish Abhishek and suggests various reform opportunities in India.

Scientific advances in the mind-body connection have led courts to acknowledge that physical harm to the human body and system that may be identified as sickness is possible even if there is no direct physical contact between a person and a physical event. As a result, anxiety neurosis or reactive depression may be recognized as a kind of nerve shock that includes or excludes psychosomatic symptoms. The phrase Nervous Shock.’ describes this character’s illness.

This study looks at secondary victim mental damage claims, which are subject to stringent restrictions, and as a result, the number of valid claims has been substantially reduced. In order to restrict the number of claimants who are not the main victims of tortious behaviour, the law mandates control measures.

While it’s true that claims should be limited since startling occurrences may impact a large number of people, there’s no denying that the current system for compensating secondary victims needs improvement. When courts use standards for recoverability, they may produce outcomes that are illogical and unfair, according to judges, attorneys, and others. An analysis and reform recommendations are included in this study on secondary victims of mental damage.

Secondary Victims’ Claims for Psychiatric Damage

It’s never been simple to bring a lawsuit to recover damages for nervous shock. To avoid opening the floodgates of precedent, courts place a high standard on proving a claim. The question is, how many additional claims for nervous shock, whether from the same event or from another accident, will be accepted if one claim for nervous shock is allowed? The defendant (the wrongdoer) must be found negligent, and the damage must have resulted as a direct result of the defendant’s carelessness.

It’s critical to remember that the defendant owes you a duty of care. The burden of proving carelessness caused a defendant’s mental illness or condition (referred to as “psychiatric damage” in legal jargon”) is considerably heavier when it comes to nerve shock[i]. In order to back up my claim. Medical proof (often a psychiatric report) proving that one has or acquired a diagnosable mental illness will be required.

A causal connection between your injury or illness and what you saw may be difficult to prove, even with psychological evidence to the contrary. When it comes to common law, no compensation can be given to those who have suffered loss or distress as a result of the event; however, those who have suffered a positive nervous shock, in other words, those who are in the area of danger the event creates but escape harm due to luck or good fortune, can make a claim for damages for nervous shock.

Previously, under Tort law, compensation was only given to those who had been injured physically. Stress and damage to the mind were deemed “less deserving” under tort law and were not recognised as such. They refused to regard psychological harm the same as physical damage, yet they had no problem paying for the psychological damage that was a direct result of physical injury.

There has been a change in this legislation throughout time, and precedents are being established with regard to remedy for those who have suffered mental damage or shock as a result of their actions. Victorian Railway Commissioners v. Coultas[ii], heard in the Privy Council, demonstrates the gradual historical development of nervous shock. A passenger train was delayed owing to the carelessness of the railway crossing gatekeeper, who allowed a carriage to careen over the rails without stopping.

The plaintiff, a pregnant woman, was riding in the vehicle when the train came and she thought she was going to die. She went into shock and lost the baby. The Privy Council ruled that if there was no physical damage, no one could be held liable for mental harm. One explanation offered was that mental processes were unknown and that favouring a certain claim may lead to a large number of false claims. The courts started awarding damages for nervous shock in the early twentieth century, when the condition was still known as “nervous shock.”

Should the claimant be forced to seek medical treatment because of his or her own safety being endangered or witnessing extremely upsetting injuries to others, they may be eligible for psychiatric injury compensation. Case of Dulieu v. White and Son[iii] in which an expectant barmaid working behind the counter suffered from a panic attack after a on the run horse and carriage smashed through the front door of the establishment, stopping just a few feet from where she stood. After then, she had a miscarriage. Using the Wilkinson v. Downton[iv] precedent, Kennedy J upheld her claim.

As mentioned in the Victorian Railway case, the potential increase in fraudulent claims was not considered a good enough reason to deny legitimate claims by His Lordship, who stated: “Such an approach involves the denial of redress in meritorious cases, and it necessarily implies a certain degree of distrust, which I do not share in the capacity of legal tribunals to get to the truth in this class of claim.” When judges wanted to be in charge of responsibility, they came up with a theory known as the ‘impact theory,’ which allows a plaintiff to sue for mental health damages as long as the plaintiff had a reasonable fear of harm from the defendant’s conduct.

Literature Review

Who are the main and secondary victims, precisely, in this scenario?

Another instance followed in which the house of Lords made an ambiguous judgement. Although it led to a division between the primary and secondary victims as a result of the incident Secondary Victims as well as First Degree Victims As the name implies, a main victim is a person who is directly injured in an accident due to the negligence of the tortfeasor (victim). When someone is injured in an accident and the main victim is not hurt, the secondary victim suffers from nervous shock.

Because of the judgement in Page v. Smith[v], a claimant may be compensated for mental damage even if the threatening physical harm never occurs. For Lord Lloyd, if someone can be compensated for psychiatric illness when they have actually suffered physical harm, it should follow that if someone has been lucky enough to avoid suffering reasonably foreseeable physical harm, they should not be denied compensation because of the existence of this purely lucky fact. Overall, this case emphasised the need of treating both physical and psychological harm equally when there is a risk of harm to one or both.

The victim is a secondary victim in this instance, therefore it’s quiet. It is the judgement in Alcock v. Chief Constable of South Yorkshire[vi] that governs the situation with respect to second-degree victims Before a defendant may be found responsible for damages, the House of Lords outlined three control mechanisms that must be examined where there are secondary victims. Not only did they have to prove that their injuries were foreseeable, but they also have to meet the following three criteria:

  1. The closeness of the connection with the victim.
  2. The method through which the mental disease is brought on.
  3. Closeness of perception is a term used to describe the second and third control processes.

What is exactly a psychiatric injury/damage?

Injury to the mind was defined as “a sudden assault on the nervous system” or “a sudden appreciation… of a horrifying event, which violently agitates the mind”. It wasn’t until recently that the negligence tort applied to mental harm claims. However, this field of law has recently been somewhat more definite with the setting down of different guidelines and standards regulating whether a person may claim damages as a consequence of witnessing an incident that causes them some kind of mental harm.

Even though psychological harm affects a person just like physical harm, it poses more legal challenges because it’s difficult to put a monetary value on such harm; there’s also the risk of false claims and excessive litigation, as well as the challenge of proving the causal link between negligence[vii] on the part of the defendant and harm suffered by the claimant. The question here is whether the police officer in White v Chief Constable of South Yorkshire should have been successful in their claim for their psychiatric injuries on the premise that it would incrementally improve the law in psychiatric damage.

Plaintiffs in White were police officers who had suffered mental injuries as a consequence of their work in the Hillsborough tragedy. All six claimants had helped the wounded and tried to ensure that people leaving the stadium had no further need. According to the sixth claimant, he or she was working at the nearby makeshift morgue when the accident occurred. There was no evidence that any of the claims posed a physical threat to anybody. The court of appeals ruled 2-1 that the police on the ground had a duty of care (not the one at the mortuary).

As in White, the court previously declined to pay plaintiffs who claimed mental damage in Alcock v. Chief Constable of South Yorkshire. Relatives of those who died or were injured in the Hillsborough tragedy were outraged by this development. To pay police officers for mental damage suffered while doing their duties, even though compensation had been denied to the families in Alcock, the House of Lords had reversed the Court of Appeal’s judgement. The reasoning for this was that the public would find it intolerable[viii].

What is a nervous shock?

A rapid drop in blood pressure, pallor, sweating, a quick (but weak) pulse, and occasionally a total collapse characterize circulatory failure in medicine. Trauma, illness, and other life events may all contribute to it. The shock causes the blood pressure to drop dangerously low, depriving the body’s tissues, particularly the brain, of oxygen.

The kind of treatment you get is determined by the underlying cause. Rest is essential, as is restoring the normal circulation volume if there has been a significant loss of blood. Nervous shock is another term for psychiatric damages in English legal parlance. It has a carelessness vibe about it. Psychiatric Damages may be recovered when harm is caused to a person by acts that are either negligent or deliberate or even by the omission of any specific action.

An Unmistakable Psychiatric Disorder

According to Lord Bridge, the first step is to make sure the individual isn’t just grieving or going through a typical amount of emotional stress; instead, they need to be diagnosed with a serious mental disease. Anyone with “recognisable mental disease” would have symptoms such as major depressive disorder (MDD), psychosis (PTSD), chronic fatigue syndrome (CFS), and hysteria (HPD).

Expert medical witnesses or reports by medical specialists should also be provided to support the aforementioned assertions[ix]. The law does not require compensation for minor emotional distress, such as worry or a sudden emotional outburst.

Rational Foreseeability Test

Psychiatric Damages should be assessed more than only foreseeability, according to the Law Commission. An appropriate Foreseeability test was recommended. For the first time in the United Kingdom, a case called Delieu v. White & Sons was really followed in this respect. Only where there is a realistic risk of nervousness or mental shock was it determined in this instance that the plaintiff should be entitled to recover. This test has a wide range of applications since it is context-sensitive.

However, in this instance, two things should be kept in mind. To begin, the defendant must assume that the plaintiff is a sensible woman with a “typical standard of foreseeability” when using the reasonable foreseeability test. It is only once this has been proved that the plaintiff is entitled to full compensation and that a reasonable lady would be expected to experience the kind of nervous shock she did in this specific instance.

Second, in light of all that has transpired, the foreseeability of the mental disorder is now evaluated ex post facto. A reasonable robust person would have suffered psychiatric illness regardless of what happened, but without hindsight, “the question ceases to be whether it is foreseeable that such a person would have suffered mental illness regardless of what might have happened but did not in fact do so,” the author says.

As a result, while considering instances involving psychological damages, the judge must view herself as a sensible, cautious lady. To paraphrase Lord Bridge, a judge should determine a matter based on her own judgement as a “fairly educated” woman.

Control Mechanism

A secondary victim must meet three additional control mechanisms to restrict the extent of the attack, according to Lord Wilberforce in the Mcloughlin v. O’ Brian[x] case. This means the secondary victim had a deep love-and-affection connection with the initial victim, such as a spouse or parent-child relationship, and the scope of the above-mentioned relationships may extend to a fianc√© or grandparents, for example.

It’s important for a plaintiff to have seen the original accident or its aftermath, but only for a brief period of time before developing a mental condition (some liberty is provided under these criteria provided according to situation). Mental illness is induced by the following factors: As a result of being exposed to conditions or later contemplation on the incident, information acquired from a third person is not taken into account.

Analysis

“The quick appreciation by sight or hearing of a horrific occurrence which strongly agitates the psyche,” according to Lord Ackner, is required for SUDDEN SHOCK. The shock must come on suddenly, and it’s likely to happen if the victim and the perpetrator are close friends. The incident that occurs should be severe enough to warrant assuming that a healthy woman will experience psychological harm as a result.

When mental illness is brought on by work-related stress, a shock is obviously unnecessary. To summarise, a defendant has the aforementioned responsibility. Depending on the circumstances, compensation may be given to main and secondary victims who are covered by a control mechanism, as well as plaintiffs who are the result of an unexpected shock. And no liability is on the defendant if a claimant is only informed of the accident after it has already occurred.

The field of tort law liability in India is still developing.

Lucknow Development Authority v. M K Gupta[xi] is a well-known case in this respect. Plaintiff MK Gupta sued Lucknow Authority for failure to provide an apartment on the promised date, which was indicated during the time of payment. The plaintiff, in this case, sought damages for harassment and mental anguish. According to the ruling, he was entitled to compensation since the decision benefitted him socially as well as financially.

According to the aforementioned instance, India does not have any legislation addressing the issue of responsibility for nervous shock. Cases involving mental injuries are decided by using the standard of a sensible woman’s reasonableness. Bangalore Development Authority v. Syndicate Bank[xii] clearly states that “the amount of compensation will depend on the fact of each situation, nature of harassment, period of harassment, and nature of arbitrary or capricious or negligent authority action that led to such harassment,” citing the most recent judgement on nervous shock.

This means that only the Mental Health Act of 1987, India’s sole tort law, governs the laws that regulate a person suffering from mental illness and the authorities charged with caring for them. As previously mentioned, the remaining elements are handled in the same way.

As a result, even if the legislation varied from jurisdiction to jurisdiction, the disparity between them was not great. Judges in the United Kingdom originally showed a great deal of reluctance to recompense victims in a straightforward manner. Most of the legislation was founded on ‘impact theory,’ which dealt with those who were physically harmed in a collision.

Secondary victims were considered in the future, of course. Also, the British Parliament Protection of Harassment Act, 1997, has been passed to guarantee that victims of harassment get just compensation[xiii].

In India, things were a bit different. In this case, the compensation awarded by the courts was a little more substantial. Due to the late emergence of instances, scientific understanding about women was much more sophisticated than during the early cases in the United Kingdom. In India, the Mental Health Act 1987 (amended in 2017), which addressed instances of mental anguish and harassment, was also enacted subsequently.

As a result of this introduction to the many elements of mental harm responsibility, we believe that it is essential to propose that the law be codified while still being flexible enough to compensate victims in the event of a psychiatric accident. In addition, the foundation should be widened rather than narrowed. It should have a broader focus.

If the victim is tortured over time, he or she may suffer from mental instability; if the victim is not related to the secondary victim, the secondary victim may have a shock from seeing an event that was so tragic in nature. This information should be disseminated to a broader audience.

In India, we already have a law governing how to care for mentally ill people, but before we can do so, we must determine who is responsible for their financial obligations. Convention, treaty, or a global act would be much better in the long run for humanitarian organisations. Small changes, as previously mentioned, will be of significant assistance in the development of this kind of legal responsibility.

Conclusion

Even while the idea of mental damage has undergone many changes and adjustments, it has not yet reached an acceptable level where it can be accepted without doubt and by everyone. There are still some discrepancies in the way damages are awarded. For example, eliminating the need that secondary victims be present at the incident or in the aftermath might help eliminate these discrepancies. It’s also time to do away with the necessity of a sudden, startling occurrence.

Expert psychiatrists should not be relied upon as the standard of reasonable foreseeability; relying too much on medical categories may be just as deceptive as relying too heavily on established legal concepts. An even more principled approach would involve removing the artificial obstacles to secondary victims’ recoveries (thereby expanding the pool of potential claimants) and requiring primary victims and claimants who suffered physical injury to demonstrate that psychiatric harm was foreseeable under the circumstances (this will narrow the range of potential claimants).

Finally, our reaction to allegations of mental damage should be more logically conceived. It’s more important to concentrate on the defendant’s guilt and responsibility than on victim categorization. In other words, we’re right back where we started. After learning about all the facets of psychiatric harm responsibility, we believe it is important to propose that this legislation be codified while still being flexible enough to offer recompense for victims in unexpected circumstances.

In addition, the foundation should be widened rather than narrowed. It should have a broader focus. If the victim is tortured over time, he or she may suffer from mental instability; if the victim is not related to the secondary victim, the secondary victim may have a shock from seeing an event that was so tragic in nature. This information should be disseminated to a broader audience.

In India, we already have a law governing how to care for mentally ill people, but before we can do so, we must determine who is responsible for their financial obligations. Convention, treaty, or a global act would be much better in the long run for humanitarian organizations. The legislation governing this kind of liability is constantly evolving.

There has been tremendous progress in this area, but there are still problems that must be addressed before solid and concrete legislation can be established regarding claims of mental injury. To that end, additional work in the legal sciences is needed.


References

[i] Cane, P., & Goudkamp, J. (n.d.). The tort system in theory (part II) – atiyah’s accidents, compensation and the law. Cambridge Core. Retrieved August 27, 2021, Available Here

[ii] Victorian Railway Commissioners v. Coultas, (1887) 13 APP CAS 222

[iii] Dulieu v. White and sons, [1901] 2 KB 669

[iv] Wilkinson v. Downton, [1897] 2 QB 57

[v] Page v. Smith [1995] 2 WLR 644

[vi] Alcock v. Chief Constable of South Yorkshire Police [1991] UKHL 5

[vii] Pure Psychiatric Injury Flashcards | Quizlet. (n.d.). Retrieved August 29, 2021, Available Here

[viii] Vindication of the three proximities – JSTOR. (n.d.). Retrieved September 11, 2021, Available Here

[ix] Negligence, strict liability & procedure in torts. law256. (n.d.). Retrieved September 1, 2021, Available Here

[x] McLoughlin v. O’Brian [1983] 1 AC 410

[xi] Lucknow Development Authority v. M K Gupta 1994 SCC (1) 243

[xii] Bangalore Development Authority v. Syndicate Bank. (2007) 6 SCC 711

[xiii] Trautner, M. N. (2006). Personal responsibility v. corporate liability: How personal injury lawyers screen cases in an era of tort reform. SSRN Electronic Journal. Available Here


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Author: Ashish Abhisek

KIIT School Of Law

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