Study On Compensation Rule Of Nervous Shock

When expounding the intention definition of ‘nervous shock’, a made-up case in which a mother suffers emotional trauma which results in psychiatric illness, such as PTSD, from witnessing the infliction of death to her child for which the tortfeasor is liable in negligence is always quoted in Chinese literature. Such an extreme illustration would make people harbor a preconceived idea that the compensation rule of nervous shock has associations with ‘damages for bereavement’, ‘pure emotional distress’ or ‘subsequent damage’, and people who hold one of the above viewpoints in their theses always devote a good deal of space to refute the other two arguments.However, none of these perspectives can completely explain the role that elements of‘witnessing’, ‘mother-child’, ‘negligence’, ‘the infliction of death’, ‘psychiatric illness’ played in the imposition of liability for nervous shock. The divergent opinions on the intention definition of ‘nervous shock’ have held back the in-depth analysis of this area of law and its important meaning on the improvement of personal damage compensation system. This article clearly delimits the intention definition of ‘nervous shock’ and analyzes the justifiable grounds for adopting a cautious and restrictive approach to the imposition of liability in nervous shock cases in English law.Nervous shock is usually discussed in the chapter of negligence as a special damage which differs in the determination of duty of care in English tort law textbooks. Psychiatric injury caused by intentional torts is beyond the scope of discussion because it’s different with the same caused by torts of negligence on2 constitutive requirements of liability. Nervous shock is not spiritual damage or mental distress, but personal injury by its nature, which is clearly clarified in English tort law textbooks. But compared to ordinary physical damage, psychiatric injury has two distinct characteristics which determines the different rule on the judgment of duty of care. First is the pattern of manifestation of this kind of damage. Traditional physical damage cases involve injuries either visible to the eye or diagnosable with established medical tests such as blood tests or X-rays. But when the claimant’s claim is for post-traumatic stress disorder(PTSD), a traditional psychiatric injury, this raises the problems of whether there is such a thing, whether the claimant is suffering from it and whether it was caused by the defendant’s negligent act. A further difficulty is the‘floodgates’ problem. Ordinary physical damage caused by negligent conduct will by its nature be limited to those within the range of impact. Nervous shock is not so limited, as persons not within the range of impact may be affected, which makes the causation harder to establish. People who worry about the safety of themselves for the approaching danger, or witness an accident in which a loved one is injured, or learn about the news that their close family members died or severely injured from a third party are all likely to suffer psychiatric injury.The English courts have been conscious of the above characteristics of psychiatric injury as they strictly limited the compensation scope to those who suffered physical damage in early time. As the amount and types of claims for psychiatric injury damages increased, the English courts began to recognize that an injured mind is far more difficult to nurse back to health than an injured body and is arguably more debilitating and disruptive of a greater number of aspects of human existence. It is unjustifiable to dismiss all the claims of people who suffer severe psychiatric injury without external physical damage. Considering this, on the basis of recognizing the compensability of damage caused by nervous shock, English case law differentiates between primary victims and secondary victims and limit the scope of the duty of care by reference to a number of proximity requirements in secondary victim cases. The three principle restrictions on nervous shock liability to secondary victims are proximity of relationship, of time and space, and of perception.Compensation of nervous shock is more regularly discussed in three-party cases as a special legal question as mentioned before. For the better understanding of the imposition of liability for nervous shock, it is necessary to distinguish three different sub-categories of case. There are cases in which(a) the plaintiff was personally exposed to physical danger by the defendant’s negligence and suffered actual physical damage;(b) the plaintiff was at risk of physical harm but suffered no actual physical damage;(c) the plaintiff was put in no danger of physical impact but merely witnessed the exposure of a third party to such danger. Where the plaintiff is personally exposed to the risk of physical harm(‘primary victims’), it is sufficient that some form of personal injury – whether occasioned by physical or psychiatric means– be foreseeable. It is not necessary to show that injury by shock was itself foreseeable. In the former two situations, there is no need for the plaintiff to satisfy the various proximity requirements. In the third situation, to those who merely witness the exposure of others to physical danger(‘secondary victims’), a much more restrictive approach is adopted. The main reason for the difference is that in the primary victim cases, people who would be injured is fixed and limited, but in cases of witness, people who would suffer psychiatric injury is uncertain. So, the primary/secondary victims divide should be based on whether the plaintiff is ‘within the range of foreseeable physical injury’. The position of rescuer and the relationship of employer-employee should have no effect on the above divide.On the basis of making accurate delimitation of nervous shock and fully analyzing the grounds on which the restraints on the liability for nervous shock is imposed, this article pointedly analyzes some judicial cases of our country. Claims for nervous shock is relatively rare in China, especially secondary victim cases, because of the lack of a clear-cut legal basis. In three-party cases where the third party suffers psychiatric illness because of witnessing the infliction of death to the primary victim,Chinese courts tend to adjudicate according to the rule of ‘damages for bereavement’.The fact of suffering psychiatric illness is only regarded as evidence of the severity of the mental distress the third party is suffering, which is considered as a factor for the determination of compensation amount. However, in two-party cases, victims of4 psychiatric illness are usually relieved in accordance with the infringement of health right, which is contradictory to the judgments in three-party cases.Nervous shock is different from mental distress, the normal human emotions that ordinary people experience after particularly traumatic events – ‘mere’ grief,anxiety and depression – which gives rise to no liability in the absence of infringement of ‘personal rights and interests’ according to existing statutes. The Article 22 of Tort Law of PRC provides that where any harm caused by a tort to a personal right or interest of another person inflicts a serious mental distress on the victim of the tort, the victim of the tort may require compensation for the infliction of mental distress. If a secondary victim of nervous shock cases tries to claim for damages under this article, he/she has to prove that there is a tort to his/her personal right or interest, which is impossible to be proved for the fact that the plaintiff is not‘within the range of foreseeable physical injury’. Some scholars also put forward the argument that the imposition of liability for nervous shock is to protect the independent mental and emotional well-being of victims but this can not explain why the British case law imposed a number of proximity requirements limiting the circumstances in which a duty of care is owed in cases of witness. People will feel perplexed why would a mother have to be at the scene of the accident and witness the infliction of injury or death to her child can she claim for the compensation for her mental suffering.Delimiting nervous shock as the infringement of health right seems to be the most appropriate way under existing statutes. But this ignores the difference between nervous shock and traditional physical damage. It is hard to explain the grounds for the primary/secondary victim divide and the imposition of other liability restrictions except ‘suffering positive psychiatric illness’ in cases of witness. In Germany, the courts further interpret the restrictions on nervous shock liability through ‘Regulatory Purpose Theory’. But it is still need to be explained why the same provision has different regulatory purposes in nervous shock cases and cases of traditional physical injury.Given that psychiatric injury is different from traditional physical damage asdiscussed above, the author holds that a separate chapter should be set amongst chapters of special tort liability such as product liability, liability for motor vehicle traffic accident to regulate the compensation for this special damage. And we should use the experience of England for reference. It is necessary to distinguish the person within the ‘area of impact’(i.e. at risk of injury by physical means) from the mere witness: the requirements of proximity of relationship, proximity in time and space,and proximity of perception only apply to the latter.