ORIGINAL ARTICLES Nervous Shock: Time and Space

Bernadette Bain The College of The Bahamas1 ABSTRACT Liability for psychiatric injury, also known as nervous shock, may pose several challenges when considered as an aspect of personal injury. Within the context of Bahamian tort law, it is an emerging area, which so far has been dealt with only briefly. Several questions arise when assessing nervous shock, such as determining whether a defendant is liable and whether the plaintiff should be awarded damages. In The Bahamas the approach has been similar to that in other jurisdictions such as England and other Commonwealth states. In these jurisdictions the issue has been whether the cause of the psychiatric injury was reasonably foreseeable, especially where the claimant did not suffer any physical injury or was not directly involved in the accident. This article reflects on The Bahamas’ approach to nervous shock, the correlation of “time and space,” where the claimant is said to have witnessed the injury: it will present a discussion of the current understanding of nervous shock and whether it constitutes an appropriate claim.

INTRODUCTION Wilchcombe* was born on Tuesday August The concept of nervous shock in negligence, 6, 1996, at the New Beginning Birthing recognises the elements of time and space, Centre, Nassau, The Bahamas. She was and considers whether the victim should be transferred to the Special Care Baby Unit of entitled to damages based on psychiatric the Princess Margaret Hospital for injury suffered consequential upon the shock observation because her umbilical cord was sustained, not from direct contact, but around her neck at birth. She later developed through the medium of the eye or the ear. At a fatal Acinetobacter spp. infection first sight, this aspect of personal injury, (Mcdonald et al., 1998). which affects the mind, may appear The Acinetobacter spp. bacteria are found incomprehensible but Bahamian case law primarily in water and soil and cause human affirms that “damages for nervous shock disease. It is especially prevalent in intensive caused by negligence can be made without care units of hospitals (Centers for Disease immediate personal injury to oneself” Control and Infection, 2010). After being (Wilchombe vs Princess Margaret Hospital, infected with Acinetobacter spp., infant p. 25). Dominique died four days later on August Consider the case of Wilchombe vs Princess 10, 1996. Her parents sued the hospital to Margaret Hospital: Infant Dominique recover damages for psychiatric injury

1 Bernadette Bain, College of The Bahamas/University of the West Indies School of Law, The College of The Bahamas, P.O. Box N-4912, Nassau, Bahamas. E-mail: [email protected] APA reference: Bain, B. (2015). Nervous shock: Time and space. The International Journal of Bahamian Studies, 21(1), 22-26. http://dx.doi.org/10.15362/ijbs.v21i1.228 *Note that the Plaintiff’s surname was misspelled consistently in the Carilaw database and other published sources. The correct spelling is Wilchcombe. –Ed.

 B. Bain, 2015. Journal compilation The International Journal of Bahamian Studies, 2015 B. Bain. Nervous Shock 23 because of her death. The relevant question involvement in the accident. was whether the hospital could be held liable DISCUSSION for psychiatric injury suffered by the parents At the outset, it is important to note that who witnessed her death. The analysis of when one considers the term “nervous this case is based on a traumatic event shock” legally, it is taken to mean mental culminating in a claim for nervous shock injury or psychiatric illness and not simply and/or psychiatric damage. grief and sorrow (Wilchombe vs Princess PRINCIPLES ADVANCED Margaret Hospital). The criterion which if Nervous shock is an area of law in which the used identifies nervous shock, resulting in courts have expanded their approach for liability, cannot in and of itself relate to damages in respect of negligently inflicted psychiatric illness carte blanche. This was psychiatric injury. In medical terms, clarified in the case of Eastern Airlines Inc. psychiatric injury may be considered as an vs Floyd. In this case there was a near crash aspect of personal injury (Kodilinye, 2009, landing of an Eastern Airlines flight between p. 122). The courts have ruled that a Miami, Florida and The Bahamas. The plaintiff, in some instances, may recover United States Supreme Court held only by damages for nervous shock brought on by an virtue of the Warsaw Convention, that injury not to himself or herself, but rather to compensation was not allowed for purely a near relative. The challenges in these cases mental injuries (Eastern Airlines Inc. vs occur because the claimant is not the Floyd, pp. 534-553). The critical issue for primary victim and the injury sustained is in the Supreme Court in determining the the mind. This is considered problematic for liability of Eastern Airlines was that in 1929, the law because it is believed that it presents under the Warsaw Convention, personal a greater risk of inaccurate diagnosis and the injury did not encompass psychiatric line between ‘mental and physical’ is not injuries. fully, scientifically understood (Rogers, The House of Lords, authorities considered 2006, p. 225). The mind is an unseen highly persuasive in The Bahamas, noted in element and mental injury is, in contrast to Page vs Smith that nervous shock means a physical injury, often difficult to determine; reaction to an “immediate and horrifying therefore, trying to reconcile even the fear of impact, resulting in some recognizable such injury, could be considered subjective. psychiatric illness” (p. 736). Lord Keith of In addition, there is the principal issue of Kinkel observed that there must be some proximity, denoting ‘time and space’, which serious mental disturbance outside the range may appear to lead to an illogical of normal human experience (p. 739). His conclusion. It raises the question of Lordship noted that such mental disturbance foreseeability of injury and remoteness of goes beyond ordinary emotions of anxiety, damage in negligence. It considers the grief or fear. The recognition of a serious question of whether the accident caused or mental disorder not associated with direct materially contributed to the plaintiff's personal injury, represents the increasing deteriorating condition. The difficulty the recognition by the courts that although at courts face is in determining the common law damages cannot be awarded circumstances in which there should be for grief and sorrow, damages for psychiatric compensation for psychiatric injury and illness may be made where there is injury by which could be regarded as reasonably shock without direct contact (Alleyne vs foreseeable where the claimant had no direct Attorney General, p. 10). It may be a

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difficult concept to assimilate that a person injure your neighbour. Who then, in law may be awarded damages caused by shock is my neighbour? The answer seems to applicable through the eye or ear without be persons who are so closely and direct contact. However, once it is directly affected by my act that I ought understood that psychiatric harm is reasonably to have them in comparable to physical harm, one cannot contemplation as being so affected then disregard that liability may be possible when I am directing my mind to the acts for the wrongdoer. Sustaining an injury from or omissions which are called in a blow inflicted by a stone to the head is no question (p. 580). less significant than an immediate and The neighbourhood principle and the horrifying impact to the mind. Once the time concept of duty of care encompass both the of the accident is concurrent with the primary victim and the secondary victim. resulting shock, psychiatric harm is The primary victim is directly affected by significant to a claim in negligence. the accident and can reasonably be seen as The immediacy of the tort was seen in being within the contemplation of the Alcock vs Chief Constable of South wrongdoer. If we reflect on the Hillsborough Yorkshire Police (p. 907), a leading English disaster it can be reasonably deduced that law tort case. In this case, fans died in a those victims who died or were injured massive crush during a semifinal football during the stampede should have been in the game, at the Hillsborough Stadium in contemplation of the officers, calculating Sheffield, England. Lord Oliver observed that if an excessively large number of people that cases classified as nervous shock should were allowed into the stadium, in relation to be divided broadly into two categories. The the capacity to comfortably house them, then first category are those in which the plaintiff in the event of a disaster, the likelihood of was involved as a participant in the incident harm was almost a certainty. giving rise to the action–the primary On the other hand, in the case of Alleyne vs victims–and those where the plaintiff was a Attorney General, the Barbadian High Court witness to the injury caused to others–the was not prepared to rule on nervous shock secondary victims. where the claimant’s deceased baby was In order to differentiate between primary accidentally incinerated. According to Reifer victims and secondary victims, it is J, there was no causal link between the important to note that as with any other plaintiff’s psychiatric illness and the injury in tort, the claimant in cases of defendant’s negligence as the evidence nervous shock must establish a duty of care. failed the threshold test of breach of duty. The concept of a duty of care presumes that The claimant was unable to establish individuals have a legal obligation to others reasonable foreseeability, which did not fall for risks of harm that may be reasonably within the “control mechanism” of the foreseeable. This foreseeability of harm was persons responsible. In Wilchombe vs developed in the case of Donoghue vs Princess Margaret Hospital, Small J Stevenson (p. 562), where Lord Atkin referred to Lord Wilberforce in McLoughlin enunciated the neighbourhood principle: vs O’Brian, when he noted that because You must take reasonable care to avoid nervous shock is capable of affecting a wide acts or omissions which you can range of people, the law needs to put some reasonably foresee would be likely to limitation on admissible claims: “(1) the class of persons whose claims should be

The International Journal of Bahamian Studies Vol. 21 #1 (2015) B. Bain. Nervous Shock 25 recognised, (2) the proximity of such psychiatric, the test remains the same. In the persons to the accident and (3) the means by case of Page vs Smith it was held that the which the shock is caused” (Wilchombe vs defendant was liable for damages for Princess Margaret Hospital, p. 29). The nervous shock suffered by a primary victim control mechanism therefore anticipates of the accident if personal injury to that reasonable foresight, once negligence has person was reasonably foreseeable. The been established. A duty of care could be victim is not required to prove that nervous presumed where it is reasonable to expect shock was reasonably foreseeable, where it that a hospital maintain a clean environment, is foreseeable that the victim may suffer free from deadly bacteria. It is medically physical injury from the act or omission of known that the Acineobacter spp. bacterium the defendant. This was likewise noted by is easily spread to vulnerable patients and Lord Bridge in McLoughlin vs O’Brian (p. special attention should be paid to infection 312) where the interrelation between control procedures. These clinical factors physical and psychiatric injury was relate to the third arm of Lord Wilberforce’s observed. The suffering sustained by a control mechanism in classifying nervous patient from psychiatric disorders is no less shock. painful or disabling than that inflicted by The court in Bourhill vs Young (p. 92) held physical injury. no duty of care was owed to Mrs. Bourhill, There is no doubt that the claimant mother the plaintiff, even though she was in the in the Barbadian case of Alleyne vs Attorney vicinity of a fatal motorcycle crash and General, suffered mental distress because of witnessed the accident caused by the the accidental incineration of her deceased negligence of the defendant in which the infant. The court did not determine that her defendant was killed. She claimed she heard psychiatric illness at the time of the trial the accident and saw the aftermath of it and gave rise to nervous shock, which would this caused her baby stillborn. It was held have enabled the court to find the defendant that the defendant was not liable because it hospital liable. Reifer J reiterated that even was not reasonably foreseeable that she though nervous shock is reasonably would suffer nervous shock. She was not in foreseeable, the law does not award damage danger herself nor was she closely connected if the psychiatric injury was not induced by with the deceased by way of a relationship. shock. This would involve a horrifying event She was not of the class of persons whose which violently agitates the mind. This claims should be recognised. judgment by Reifer J begs the question of However, in McLoughlin vs O’Brian, the what is to be classified as a horrifying event. majority of the members of the House of It affirms the challenges of the court when Lords found the defendant liable, after the considering an injury involving not only the plaintiff viewed the badly battered and mind but also the relationship of the parties. bloodied bodies of her family following their In the Alleyne case, the psychiatric illness involvement in a road traffic accident. There occurred over a period of time, not in the must therefore be a close tie of love and immediate aftermath and the case therefore affection between the plaintiffs, a secondary failed the threshold test of breach of duty. It victim, as was noted in Alcock vs Chief appears that the court in Alleyne vs Attorney Constable of South Yorkshire Police. Where General did not consider the time period of the claimant is the primary victim it matters three months as being in the immediate not whether the injury was physical or aftermath, and so the case did not fit the

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control mechanism significant to time and in nervous shock is the same as that of other space. common-law jurisdictions. Courts in these In the Bahamian case of Wilchombe vs jurisdictions realize the challenges faced Princess Margaret Hospital, Small J when assessing injury of the claimant, a adopted Lord Wilberforce’s control secondary victim. Psychiatric illness, unlike mechanism of time and space as applicable physical illness, creates difficulties, because to proximity of the relationship between the the injury is sustained through the medium claimant parents and the defendants. The of the eye or ear and weighs heavily on Wilchcombes, parents of Dominique, had mental determination. In determining anticipated her recovery and eventual liability for nervous shock, the Bahamian discharge, not her death within three days of court was mindful of the judgment of Lord birth. Relationship, time, space, and Keith in Page vs Smith in ruling out reasonable foreseeability were prima facie emotional distress, in contrast to a serious evidence of the hospital’s liability. It was mental disturbance. Like any other personal fair and just that the parents be compensated injury matter, foreseeability remains a for the injury suffered. relevant principle in nervous shock, where the control mechanism of time and space CONCLUSION must be applied. Small J’s ruling in It may be deduced from the ruling by Small Wilchombe vs Princess Margaret Hospital, J in the Bahamian case of Wilchombe vs has set a noteworthy precedent for future Princess Margaret Hospital that the claims for nervous shock. Bahamas’ approach in determining liability

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