The basic rule of law is that a person who by act or omission causes damage to another is liable to the offended for damages. This is in the nature of damages for any tortuous act that is caused to complainant. Under this doctrine, the concept of nervous shock, which is defined in English law to denote psychiatric illness or injury inflicted upon a person by intentional or negligent actions or omissions of another, is also relevant. In the case of Kelly –v- Hennessey (1995) 3IR 253, it was held that negligent infliction of emotional distress is actionable if it leads to mental or emotional distress.
Furthermore, in the case of Page v. Smith, primary victims can recover for their nervous shock, even if the shock was not reasonably foreseeable. As long as physical injury was foreseeable, they can recover for their unforeseeable shock. If there is damaged that is caused to a person, be it physical, emotional or mental, that person is entitled to collect for damage or is entitled to be compensated for whatever injury that person suffers. This is in consonance with a number of rulings on the matter as well as recent laws. In applying the relevant case law to the case, the facts must be reexamined.
In this case, it will be noted that no direct damage or physical injury befell any of the complainants. The general rule, even under tort law, is damnum absque injuria. This means that while there is a wrong committed, if there is no direct injury that is caused to the complainant, there is no cause of action. The burden, therefore, lies in being able to establish a certain link between the negligent or tortuous act and the injury that occurs. As one recalls, the element of negligent infliction of emotional distress only requires that there be an injury caused to complainant and that the defendant is the proximate cause of such injury.
In the case at hand, the most that any of the complainants suffered from was nervous shock from witnessing the event. There is no provable direct injury that was caused by the defendant in this case. In fact, there was no resulting injury from that shock either, such as the inability to function properly or even psychological trauma which has prevented the complainants from carrying on their normal activities. The only thing that was shown in this case was the fact that they were around when the incident happened and that they are suffering from the shock of having witnessed the event.
Without showing any direct effect to their well being, it is difficult to claim any damage attributable to the defendant. An important law to apply is the ruling in Kelly –v- Hennessey (1995) 3IR 253since the issue covers the subject of negligent infliction of emotional distress. The facts of the case show that the driver was negligent as he was drunk when he took the wheel of his truck. As ruled in the cases of Owens –v- Liverpool Corporation (1939) 1QB394 or Athia –v- British Gas (1987) 3AER 455, damages may be based solely upon serious emotional distress, even absent proof of a predicate physical injury.
The nervous shock that was caused to the onlookers may be argued to be at such extent that it caused serious emotional injury. As such, any damage arising out of such situation is considered as emotional distress for which the defendant may be held liable. Another important matter is the liability of the company that the driver worked for. The fact that the company did not ensure that their drivers would not drive while under the influence removes this from the ambit of intentionally inflicted emotional distress and places it within the purview of negligent infliction of emotional distress.
As such, the company can be made primarily liable for being negligent in the selection and hiring of the driver and not ensuring that no injury would be caused by their direct employee. Negligent infliction of emotional distress, as opposed to intentional infliction of emotional distress, has its roots in the idea that damages may be based solely upon serious emotional distress, even absent proof of a predicate physical injury.
This has been awarded by the court several times in cases that show the complainant suffering from emotional or mental distress due to actions that can be directly attributed to the defendant. In the case at hand, it is clear that as long as it is reasonably foreseeable that such injury would cause some person emotional distress it can be the basis for an action of tort. It must be noted, however, that the new rules applying NIED do not require that physical injury be inflicted.