The principle of reasonable foreseeability in Suit for damages for mental torture Part 2
S J Tubrazy
The test of foreseeability is to be judged’ from the standard of a man of ordinary prudence who would foresee that any wrongful act, accident or injury to a person or property would’. be a probable cause for mental shock to such relatives or persons, who were very close to the victim but were neither present at the scene of occurrence nor witnessed the incident.
Another aspect to be considered is whether a plaintiff who has not seen the incident nor suffered any physical injury can file action for damages. A person who is put to “reasonable fear of immediate injury” arid suffers physical injury due to shock arising from the peril of physical impact though it did not materialise, can file an action claiming damages. However, an action will also lie for shock caused by actual sight or sound or apprehension of immediate physical injury to a close relative or friend. The presence of the plaintiff at the scene of occurrence is no longer a condition precedent for claiming damages. It is not the sight alone causing shock that entitles a plaintiff for claiming damages but if such shock has been suffered by the sound or hearing of the incident, such claim can be made.
There can be no yardstick or definite principle for assesging damages in such cases. The damages are meant to compensate a party who suffers an injure. It may be bodily injury loss of reputation, business and also mental shock and suffering. So far nervous shock is concerned, it depends upon the evidence produced to prove the nature, extent and magnitude of such suffering, but even on that basis usually it becomes difficult to assess a fair compensation and if those circumstances it is the discretion of the Judge who may, on facts of the case and considering how far the society would deem it to be a fair sum, determines the amount to be awarded to a person who has suffered such a damage. The conscience of the Court should be satisfied that the damages awarded would, if not completely, satisfactorily compensate the aggrieved party.