A Study On Compensation For Non-pecuniary Damage Of Indirectly Injured Person

Shock case is an issue in animated discussion of comparative law. Though there is no domestic scholars make a systematic research on this problem, there are many cases of this type in practice. Some scholars indicate that this problem belongs to the scope of causation in continental law, while it belongs to the question of duty of care in common law. In fact, the fault (the foreseeability of the damage) and the causation are the key problems in these cases.Through comparative approaches we find that there are two kinds of different regulations on shock cases in the world: one type is the liability for interference with the family relation in common law and the claim of near relatives to non-pecuniary damage, the other type is the intent or negligent infliction of mental distress in common law and the claim of indirectly injured persons to non-pecuniary remote damage. In the former, liability of the injurer rests on the point that whether there is close and loving relationship between the injured persons, while in the latter liability depends on the proximity in terms of time and space. The difference arises from the fact that the characteristic of the accident which causes nervous shock can be divided into two types: the first is the accident has particular effect on special persons, the typical case is the non-pecuniary damage of near relatives caused by worrying about his kinsfolk' s safety; The second is the psychiatric illness of the witnesses caused by the miserable accident.One of the principles of tort law is that except for special regulations of the law and agreements of the party concerned, the remote damage can not be compensated. So the non-pecuniary damage of indirectly injured person caused by nervous shock can not be protected by tort law. Considering from the aspect of rights and interests which are encroached on, the remote damage caused by nervous shock can be "converted" into direct damage. Then the non-pecuniary damage of the indirectly injured person can be protected by tort law.Based on the theory mentioned above, this dissertation deems that the shock case should be divided into two categories: compensation for violent against another' s right of kinship and compensation for violent against another' s right to life and health. In these two circumferences, the indirectly injured person should be entitled to right to claim damages.