Legal and medical aspects of liability for negligently occasioned nervous shock: a current perspective

This article examines recent developments in Australian and English common law relating to negligently occasioned psychiatric illness (nervous shock) in the light of advances in understanding of aetiology, neurophysiology and psychology of emotional injury. The legal analysis focuses on the modern concept of proximity relationship between the plaintiff and the defendant. The courts use the notion of proximity to determine the existence of duty of care in cases involving liability of the defendant for the negligent infliction of 'mere' nervous shock; that is where the plaintiff who had not been present at the site of the accident in which a close relative or a co-worker has been negligently killed or injured, claims to have suffered a lasting psychoneurosis or a psychosomatic illness as a result of a sudden and severe emotional distress occasioned by the defendant's wrongful act. Cases from the US, [1] Canada, [2] South Africa [3] and New Zealand [4] are not discussed; to include them would have involved too much exposition in comparison to their influence upon the development of the law of nervous shock. Nevertheless, since the developments described below concern the core question of law, the nature and the ambit of defendant's liability for unintentionally occasioned psychiatric damage, they will have to be considered in any jurisdiction in which this question arises.