Introduction:
Psychiatric damage is referred to as damage that is bought by a sudden shock. There is no element of physical harm as the victim is suffering from blood circulatory failure, decreased blood pressure followed by a sudden increase, Excessive sweating, and breathing difficulty lastly severe breakdowns.
In India, Psychiatric damages are a fairly new concept as the damages suffered by a person are often compared with the physical damages.[1] These are separate concepts and should not be mixed. Psychiatric damages are a much more-graver and severe form of damage than physical damage. A psychiatric injury is also referred to as a nervous shock.
These types of damages can occur when a person suffers from a mental shock due to a certain event which causes the sudden burst of emotions and subsequently to contain the outburst hormones are secreted which causes a change in the desired level and hence lead to excessive mental distress.
Analysis
Psychiatric damages are considered as a part of the negligence because a person who has committed the act was negligent in doing so as the other party was negatively affected which resulted in injury.
Two conditions are recognized historically which are to be fulfilled to constitute a Psychiatric Damage-
A recognizable Psychiatric Disability
The person who is affected must be disabled psychologically in a way that is recognized by the legislature. [2]There are specific conditions that are recognized by the legislature to constitute a Psychiatric disability. These may include depression, post-traumatic stress disorder (PTSD), Personality disorder, Pathological Stress Disorder. These are the conditions that a person must be going through to be considered as a Psychiatrically disabled person. For all other conditions like stress, grief, anxiety, restlessness, etc. the law is not bound to compensate.
Test of Reasonable Foreseeability
This test ensures that the person who is committing the act must have had reasonable foreseeability regarding the consequences of his actions and thus must be reasonably foreseeable. [3]This test is slightly different from the simple foreseeability as different conditions would require different levels of foreseeability and thus the intent of the parties involved must be checked and whether proper precautions from their side were taken or not must be analyzed. For this test 2 conditions are to be taken into consideration
- The first condition states that the defendant must presume that the other party is a woman who has a “reasonable standard of foreseeability”. This condition would ensure that the defendant has taken reasonable steps to ensure that if any person has suffered from a nervous shock then he/she must be entitled to receive full compensation for the same.
- The second condition states that the parties must have a reasonable level of predictability based on past experiences. The question becomes of the fact that the person who has suffered injuries due to the actions of the defendant would have received the same degree of injuries even before the act is committed and whether it could have been predicted that the person would receive the same level of shock as a direct consequence of the actions of the defendant in the normal course of action.
Both these conditions and the present sub-conditions have to be fulfilled to ensure that the plaintiff is liable to be treated under the reasonable degree of Psychiatric damages.[4] But to ensure that the plaintiff must receive damages he/she must prove that all the elements of negligence were present and their rights have been breached.
- A duty of care existed between the parties
- There was a breach in the duty between the parties
- There must be a link between the breach of duty and the shock
- The shock must not be the result of a remote consequence.
To get adequate compensation, the plaintiff must ensure that a relation between the conditions existed and that the defendant had a reasonable degree of care towards the plaintiff. The shock must not be a result of a remote consequence and there must be a relation between the two that is reasonably foreseeable. This is one of the most important aspects of the law.
Both Primary and secondary victims can receive damages for the actions of the defendant. Primary victims are referred to as the victims who are involved directly in the incident and the defendant has a direct relationship with them. [5]Secondary victims on the other hand are people who are indirectly involved in the incident but still have a direct impact on their lives. The compensation of secondary victims would depend on the facts and circumstances of the case. The relation between the primary and secondary victims is of prime importance as this directly impacts the secondary victims and hence makes them entitled to compensation.
Position in India
In India, psychiatric damages are dealt with by the Mental Health care act, 2017. Before the commissioning of this act, the Indian courts were liberal in their approach towards psychological injury cases. The position changed after the [6]Halligua vs. Mohansundram case. In this case, the Madras High court was of the view that the nervous system is an important part of the body and must be protected from any kind of harm or injury. This ideology was further strengthened in the case of Lucknow development authority vs. M.K. Gupta[7] where the appellant was harassed by the government officials and as a result, suffered nervous shock.
The Mental Health Care Act, 2017 is not without drawbacks, there are certain limitations to the act which must be addressed and brought to light before making any significant decisions.
- The act only deals with the psychiatric injury that must be treated by clinical methods but does not focus on the rehabilitation aspect of the recovery as it is the most important method of ensuring recovery.[8] This is further enforced by the professions included in the act as the approved therapists. It includes Ayurveda, homeopathy, Siddha, and Unani but completely avoids psychologists, psychoanalysts, psychotherapists, etc.
- The act fails to be future-ready as different professions that could help cure these conditions are left out of the preview and this makes the act only a temporary measure to ease the problem.[9]
- All the treatments that are necessary for the complete recovery of the victim are not authorized by the act and thus leave the patients without any certain direction of recovery.
- The bill does not take into account the socioeconomic or cultural factors that are the main reasons for the public to avoid going to such institutions. Hence the problem at the root level still exists
Conclusion
The government is taking many steps to improve the situation in India. This is certainly true for the recent situation as the government has introduced this new legislature with positive intent. The decriminalization of suicide cases is a positive step as they are trying to analyze the root cause of the problem rather than eliminating the source. More emphasis should be provided on the rehabilitation and prevention of such conditions as the victim needs to be reintegrated into the society once they have fully recovered and become a productive member of the society again.
The liability which arises from such incidents falls upon the defendant but would depend largely upon the facts of the cases, and the relation of the victim upon whom such incident occurs is to be taken into consideration while deciding the type of victim (Primary or secondary victim). This would directly impact the amount of compensation to be received by the victims of the incident.[10]
The fundamental approach of the government is changing as significant investment is being made by the government to develop infrastructure like health clinics, mental hospitals, medical colleges, etc. to improve the conditions in the country and help in implementing the necessary laws to change the scenario and make the country attractive to live in.
References:
[1] Arman01, The liability for nervous shock, with relation to India & other jurisdictions, Legal Service India, http://www.legalservicesindia.com/article/522/The-Liability-of-Psychiatric-Damages–in-Indian-and-Foreign-Jurisdictions.html (Last Visited November 10, 2021)
[2] Kalyani Pandey, Nervous Shock and liability of Psychiatric Damages in India and in common law countries, Legal Services India, https://www.legalserviceindia.com/legal/article-1721-nervous-shock-and-liability-of-psychiatric-damages-in-india-and-in-common-law-countries.html (Last Visited November 10, 2021)
[3] Arman Das & Apurva Mathur, Liability of Psychiatric Damages in India & foreign jurisdictions, SSRN (January 29, 2011), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1750588 (Last Visited on November 10, 2021)
[4] Anaya Jain, Psychiatric damages – regulations and compensation in the Indian scenario, iPleaders (November 27, 2020), https://blog.ipleaders.in/psychiatric-damages-regulations-compensation-indian-scenario/ (Last Visited on November 10, 2021)
[5] Abhishek Mishra & Abhiruchi Galhotra, Mental Healthcare act 2017: Need to waite and watch, NCBI (Apr- June, 2018), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5932926/ (Last Visited on November 11, 2021)
[6] Mrs. H.I. Halligua vs Mohanasundaram And Anr [AIR 1951 Mad 1056, (1951) IIMLJ 471]
[7] Lucknow development authority vs. M.K. Gupta [1994 AIR 787, 1994 SCC (1) 243]
[8] Zikra Mansoor, Nervous Shock under the Law of Torts, iPleaders (June 17, 2020), https://blog.ipleaders.in/nervous-shock-law-torts/ (Last visited on November 11, 2021)
[9] Nidhi Singh, Nervous Shock and Psychiatric Injury, academike (August 7, 2014), https://www.lawctopus.com/academike/nervous-shock-psychiatric-injury/ (Last visited on November 11, 2021)
[10] Harshita Jhunjhunwala, Psychiatric injury- Conflicting views under the English legal system, Legal Junction (May 25, 2011), https://www.legallyindia.com/views/entry/psychiatric-injury-conflicting-views-under-the-english-legal-system (Last visited on November 11, 2021)
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