P L D 1996 Supreme Court 737 (PLP)

SALEEM AKHTAR, J.‑‑‑The appellant by this direct appeal has challenged the judgment and decree passed by the learned Judges of the High Court whereby the appeal filed by the respondent was partly allowed and the compensation of Rs.6,50,000 awarded to him by the learned trial Court was reduced to Rs.2,91,600.

2. The appellant was carrying on business of Readymade Garments at site known as 102‑C, measuring 8 x 9 situated in Anarkali at the comer of Katchery Road, Lahore. He was occupying the site on the basis of Tehbazari till 31‑12‑1988. Thereafter, lie made an application for grant of tenancy rights, which was allowed by the respondent where after he erected a permanent structure, which was also regularised by the respondent on payment of Rs.200. It was pleaded that on 15‑7‑1990 all of a sudden and without notice, the staff of the respondent raided the shop of the appellant, demolished the structure, destroyed the show cases and furniture and took away all the merchandize goods, shutters, furniture and fittings. The appellant claimed damages as follows:‑‑ (1) Ready ‑made Garments Rs150000 (2) General merchandise goods Rs60,000 (3) Furniture Rs 20,000 (4) Superstructure including RS 1,40,000 shutters, side‑walls, asbestos ceiling (5) Electric fittings RS 30,000 (6) Show cases, Rs 50,000 (7) Mental torture Rs 2,00,000 Total: Rs 6,50,000 The respondent filed written statement in which besides the preliminary and legal objections it was pleaded that during clean‑up operation the shop was demolished which was carried out according to law and in public interest. It was denied that any damage was caused to the appellant. The learned trial Court passed judgment and decree in the stun of Rs.6,50,

000. The respondent appealed against it and the learned Judges allowed damages as follows:‑‑ (i) Ready‑made Garments Rs. 1,50,000 (ii) General merchandise goods Rs. 60,000 (iii) Superstructure Rs. 21,600 (iv) Show‑cases Rs. 5.0,000 (v) Damage for mental torture Rs. 10,000 Total: Rs.2,91,600

3. The learned counsel for the appellant contended that the damages under heads, furniture, superstructure including shutters etc. and electric fittings have not properly been assessed. We have examined the evidence on record and in our vie the compensation awarded for superstructure seems to be proper and justified. As regards furniture and electric fittings, there is hardly any evidence worth the name to prove the nature of electric fittings and the cost incurred by the appellant in this regard. Any person claiming any damages has to prove it I A through evidence. The evidence in this regard is general, vague and scanty. We, therefore, do not propose to disturb the finding on these items.

4. The only item which remains for consideration is the damages claimed for mental shock and torture. The appellant had claimed Rs.2,00,000 as damages for mental torture. The learned trial Court has awarded Rs. 10,000 on this account and the same has been maintained by the learned Judges of the High Court.

5. Previously jurists and Judges were reluctant to grant claim for damages for mental shock and torture, but now it is well‑settled that a person, who suffers mental torture and nervous shock, is entitled to recover damages. In Hinz v. Berry (1970) 2 QB 40, Lord Denning observed: "It' has been settled that damages can be given for nervous shock caused by the sight of an accident, at any rate to a close relative. Damages are, however, recoverable for nervous shock, or to‑put it in medical terms, for any recognizable psychiatric illness caused by ‑the breach of duty by the defendant". In awarding damages for nervous shock and mental torture, or "psychiatric illness" or "Psychosomatic illness", which are the terms currently used the Court should be vigilant to see that the claim is not fanciful or remote and in fact it fairly or naturally results from the wrongful act, of the defendant. Therefore, in order to claim damages for mental or nervous shock and suffering or psychiatric illness, a party must prove wrongful act done by the defendant and that due to such act he has suffered mental shock and torture, which may, at times also result in physical injuries, but not in all cases. In Janvier v. Sweeney and another (1919) 2 K9 316) two defendants, who were private detectives, were sued by the plaintiff, a maid servant in a house whose master had certain letters and documents in his possession which the defendants/detectives wanted to examine. As they thought that the plaintiff has access to those documents, they lured and threatened her, as a result of which she fell ill from a nervous shock. As a result of threat and statements made to her she sustained nervous shock and became incapacitated for following her employment and suffered from neurasthenia shingler and other ailments. The defendants were held liable for damages. The principle that can be deduced is that compensation can be granted where a wrong is done to a party C and the damage flows from that wrong. Again in Hay or Bourbill v. Young (1943 AC 93) a motorcyclist while negligently driving at an excessive speed, I collided with a motor car and was killed. The ‑appellant, a fishwife standing about 45 ft. away from the point of impact on the far side of a stationary tramway car from the platform from which she was unloading her basket, heard the noise, although she did not see the accident, suffered freight resulting in severe nervous shock which disabled her from carrying On her trade for some time. At the time she was eight months' pregnant and about a month later a child was still born owing to the injures sustained by hen She admitted that at the time of accident she had no reasonable fear of immediate 'bodily injury to herself. it was held that the motorcyclist on a public road had a duty to other person using it to drive with reasonable r‑ate and avoid risk of injury including injury by shock 'to such persons as he could reasonably foresee, might be injured by his failure to exercise that care, Thereto the principle of reasonable foreseeability is applied in cases where a person suffers nervous shock by 'hearing the impact or seeing certain accident. The duty of the wrong‑doer is to D the extent that he could reasonably foresee that his failure to exercise duty and care‑he owes to the public was likely to cause mental shock, pain and damage to the claimant. In this case the Privy Council held that the plaintiff, who was far' away unloading goods from the tramcar could not by the motorcyclist be foreseeable that she would suffer such an injury. As be owed no duty to her, damages were refused. This principle of duty and care, a person owes, was stated in Heven v. Pender (1883) 2 QBD 503 (509) where it was observed: "Whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger Of injury to the person or property of the other, a duty arises to use ordinary care ‑and skill to avoid such danger." Again, Lord Atkin in Donoghue v. Stevenson (1932 AC 562 (580) observed: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be‑persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so‑affected when I am directing my mind to the acts or omissions which are called in question". Therefore, the liability arises where there is a duty to take care and the failure has occurred, which has caused damage. Such duty arises 'and is only in respect of those persons whom one can reasonably anticipate to be affected by such wrongful act.

6. A person is entitled to claim damages for mental/nervous shock and suffering where it is a natural and immediate result of the offending act complained of. The wrongful act should be a probable causes for such suffering which in such circumstances may be suffered by an Ordinary normal man. The liability of a wrong‑doer is correlated to the duty of care he owes to the victim/claimant in the circumstances of the case. In cases of accident the duty of care is owed not only to the victim but also to such near relatives of the injured victim who were known to be very near the scene of occurrence and likely to reach there irrespective of the fact whether they had seen the incident or not. Such was the principle decided in Board man and another v. Sanderson and another (1964) I WLR 1317. The test of forseeability 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 we're very close to the victim but were neither present at the scene of occurrence .nor witnessed the incident.

7. 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" and 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. Salmond and Heuston on the Law of Torts, 19th Edition, after review of judgments‑of English Courts including McLoughlin v. 0' Brian (1983) AC 410 summed up as follows:‑‑ "So, by the end of the 1970s it was settled that an action lies if the injury apprehended or actually seen or heard is to any relative as well as a spouse or a child, or to a friend, or fellow‑workman, or even to any third party, but the Court ruled against liability when the plaintiff suffered shock from seeing her pet cat killed in front of her eyes. Protection may even be extended to one who has witnessed some unnerving or ghastly spectacle, though neither the life nor limb of any third party has been imperilled. Fifthly, it is now clear since the decision of the House of Lords in 1982 in McLoughlin v. O'Brian that there is. no principle or policy or rule of law which prevents damages being awarded to a plaintiff who has not seen or heard the accident in question, but who has suffered reasonably foreseeable nervous shock by experiencing its ,immediate aftermath. It is easier to ‑ state the effect of McLoughlin in this negative way For although all the Law Lords were clear that reasonable foresight of nervous shock was a necessary condition of liability, some of them also thought that something more was required to establish the necessary proximity. What that something more may be has been left for future Courts to work out. But the factors of time, space, and relationship between the parties will each be important. The way in which the shock occurs will also be of importance. The shock must be caused by the actual sight or wound of the accident or its immediate aftermath, mid not by the result of a communication from a third party, There is a real distinction between shock and grief But it can definitely be asserted that the 'need for the claimant's initial presence at the scene of the disaster in nervous shock cases has been consigned. to the lumber room of rejected legal fallacies.' It is true that the alarming prospect of open ended liability has been painted in bright colours. But the difficulties of proving constituent elements of the cast of action impose their own appropriate limitation on its scope. Lord Bridge of Harwich said that 'if asked where the thing is to stop, I should answer, in all adaptation of the language of Lord Wright and' Stephenson, L.J. 'Where in a particular case the good sense of the Judge, enlightened by progressive awareness, of mental illness, decides'. 8. 'Once it is determined that a person who suffers mental shock and injury is entitled to compensation on the principles stated above, the difficult question arises what should be the amount of damages for such loss caused by wrongful act of a party. There can be no yardstick or definite principle for assessing damages in such cases. The damages are meant to compensate a party who suffers an injury. 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 in 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.

9. Applying these principles to the facts of the present case, we find that the appellant had claimed Rs.2,00,000 for nervous shock, pain and suffering. The facts as concurrently determined by both the Courts. are that the appellant IV was in lawful possession of the shop which was illegally and wrongfully demolished, destroyed and all goods of merchandise and furniture were taken away by the respondent. The respondent in the written' statement denied the claim and stated that the shop was illegal and had been demolished in accordance with the Rules. However, finding of the Court is completely opposite to it. As regards mental shock and suffering, appellant has stated that he had no other business and this was the only means of livelihood for his family. After the demolition he became mad and his children suffered starvation and became sick He had to sell his belongings lot the treatment of hi‑ children, He also lost the goodwill of the shop and, its market value. He had suffered mental shock for which he claimed about Rs.2,00,

000. He further stated that after demolition of the shop, he has now put up a temporary stall at his place and started business by taking goods on credit and it is very difficult to maintain himself. Strangely enough he has not been cross‑examined on this aspect of the case at all and the only cross‑examination is that the appellant is making false statement and that he had not suffered any mental shock. In fact the evidence of the appellant has gone almost unchallenged, but it was also not of such great strength that he may be entitled to the entire claim of Rs.2,00,

000. Considering the facts and circumstances of the case and also the mental and nervous shock the appellant would have received and suffered due to abrupt demolition of the shop and removal of the entire goods depriving him of his means of livelihood and further that the respondent owed a duty of care to at cast notify him and permit him to remove his merchandise if they wanted to demolish the shop, make the appellant's case for damages stronger. In these circumstances, it would be fair and just that in the light of evidence the appellant has brought on. record, the damages should be assessed at Rs.50,

000. The appeal is partly allowed to the extent that the damages for mental shock and suffering are granted to a sum of Rs.50,

000. The rest of the judgment and decree is maintained. (Sd.) SALEEM AKHTAR, J. SAIDUZZAMAN SIDDIQUI, J.‑‑‑ I have had the advantage of reading the proposed judgment of' my learned brother Saleem Akhtar, J. in the above appeal. I agree with the conclusion and at ' so the reasoning of my learned brother that a plaintiff in an action for damages may recover compensation for mental torture, nervous shock and injuries of like nature arising out of breach of duty or a wrongful and negligent act of defendant and that in such an action the proof of physical presence of the plaintiff at the time of incident is not necessary. However, I reserve my opinion on the question whether damages could be claimed for shock caused by actual sight or sound or apprehension of immediate physical injury to a close relative or friend as in my humble view this controversy does not arise in the present appeal. The damages for mental torture, nervous shock etc. fall in the category of general damages for which no standard or method of proof can be laid down with precision ' The claims of such nature are difficult to estimate. The Courts, therefore, in assessing such damages employ a‑‑ guess work which can only meet the test of a reasonable assessment by a man of ordinary prudence. I, therefore, agree that the appeal be allowed partly by modifying the judgment and decree of Courts below to the extent of award of the damages for mental shock and suffering in the sum of Rs.50,

000. No order as to costs. M.B.A./M‑3250/S Appeal partly allowed.