BY-Surbhi Jain (Mohanlal Sukhadia University College of Law)
Whenever we talk about injury, it is the physical injury that comes first in our mind. In our normal life, we take physical injury more seriously and almost ignore the mental injury. This is probably because physical injury can be seen and on one can see the mental injury. Normally people give advice to forget about mental injury and mental illness. It is also true that some mental injuries should be forgotten. But what if your mental injury does not allow you to live and end the peace of your life and what will happen if the mental injury violates some of your legal rights? In this particular situation, it is very important that the same amount of importance we give to the physical injury should be given to the mental injury as well.
The mental & psychiatric injury is a consequential to the physical injury, there is no need to recognised or show mental injury, claimant can claim for the pain and suffering, it is necessary that the claimant’s condition must be recognised as a mental condition.
Meaning of mental & psychiatric injury:
In Law, whenever there is a violation of legal right of an individual it is said to have caused a legal injury. E.g. right to speak, right to vote, right to privacy etc, if there is any violation of above said right it will cause an injury. An injury is different from damage, damage means any kind of loss, material, physical, monetary etc can cause damage.
An injury is of two types- 1. Physical injury, 2. Mental injury.
When one person physically injures another person, due to which his body is damaged, it is known as physical injury, legally, the injury is infringement of a legal right of the plaintiff by the defendant. Hurt, grievous hurt, culpable homicide are some examples of physical injury.
Mental injury is a kind of injury which is considered as a mental harm, sufferings, damages, impairment or a state of mind, it is a kind of psychological and psychiatric condition and creates emotional and psychological trauma. it is a result of an extra ordinary stressful events that shatters your sense of security, making you feel helpless and vulnerable. It’s usually life threating, but any situation makes you feel overwhelmed and alone can be traumatic, even if it does not cause any physical harm. This kind of harm is actionable under various Indian laws.
Normally it is hard to measure the actual degree of mental injury, and it is also hard to categories them because we cannot calculate the actual level of mental injury only the doctors and psychiatrists can measure the level of mind’s injury but as a ordinary person, we cannot understand what kind of mental injury a person is going through because no one can know what is passing in the mind of another man.
In such a situation, who will help that person who is suffering from mental injury and who is responsible for his mental injury? In India, certain laws are dealing with this problem and punishing the wrongdoer, mental injury is an issue of both civil and criminal law. Sometimes the results of mental injury can change a case into civil suit and sometimes into criminal suit.
If a person was deprived of money due to fraud and because of this he has gone into depression, then it would be a civil suit and if a person commit suicide because of that depression then it would be a criminal suit. As a part of society, we usually suffer from big and small mental injury, all these kinds of mental injury are very common so, the law doesn’t describe them but if these injuries violate our legal rights then it became actionable.
We have a population of around 135 crores out of which 6.5% people are suffer from mental injury and mental illness. The reason why I am connecting the mental injury and mental illness together this is because mostly the mental injury turns into a mental illness and change into a mental disease like anxiety disorders, including panic attacks, phobias, post traumatic compulsive disorders and high depression. For example, A son leaves his mother alone and goes away and because of this his mother goes into depression and commits suicide. Under such situation, it is necessary to see which right of mother has been violated and who is responsible for her suicide. This example represents that how the mental depression turns into a serious criminal case.
Mental Injury in The Law of Torts:
The law of torts represents the legal maxim “ubi jus ibi remedium” the meaning of this principle is that “where there is right there is remedy”. it means that in torts every wrong has a remedy, if there is no legal remedy, there is no legal wrong. The law of torts defines the mental injury as a wrong and also provide remedy for that wrong. The primary aim of torts is not to punish the wrongdoer but to award compensation to the injured person. There are certain principles in torts deals with mental injury.
DAMAGES FOR NERVOUS AND MENTAL SHOCK:
By “mental shock” is meant a shock to the moral or intellectual sense; by “nervous shock” a shock to the nerve and brain structures of the body.
An action lies for nervous shock and bodily illness or disorder supervening on it, though the shock was caused not by the application of physical force to the body of the sufferer, but by words and acts calculated to cause emotional disturbance like fear, sorrow, or distress. Now it is well settled rule that damages may be awarded for nervous shock which is not followed by physical illness but by the psychiatric injury.
· In Torts, the categories of victims of mental injury are divided into three parts-
1. Primary victim: - These are the victims who suffer psychiatric injury as a direct result of defendant’s negligence. In addition to physical damage and because of fear of personal physical injury or damage.
In the leading case of Page v. Smith, defendant negligently hit victim with his car. Victim’s existing condition which getting better worsted permanently preventing him from ever returning to work. According to rule of law, it is reasonably foreseeable that the victim suffers some personal injury, the defendant will be liable for the victim’s nervous shock too.
In the case of Attia v. British gas, claimant was very house proud, she left British gas installing a new boiler. When she returned home, she found her house was on fire permanent damage resulted. According to rule of law the claimant may successfully sue for psychiatric injury resulting from the defendant negligently damaging her property.
2. Secondary victim: - Secondary victim is a person who suffer psychiatric injury as a result of witnessing or being informed the incident, but not being in the zone of damage.
Secondary victim needs to prove certain element like love and affection between the claimant and the victim and it must show that the nervous shock is a result of that incident. These are victims who suffer psychiatric injury as a result of fearing for another’s safety because of defendant’s negligence.
In the leading case Alcock v. chief constable of south Yorkshire police (1992), sixteen persons who suffered no physical injuries but sustained psychiatric injury claimed damages against the chief constable.
They were relatives of the persons killed or injured in the disaster. Some of them were present in the stadium but not in the disaster area, they had nervous shock caused by the news. One of them had two brother’s dead but he was away from the disaster. Liability for nervous shock was ruled out because there was nothing to show a sufficiently close degree of relationship between the brother.
3. Rescuers: - These is a special category of seconding victim. They suffer nervous shock as a result of being involved in the rescue of victims of defendant’s negligence. In order to recover damages for pure psychiatric injury, a rescuer has to show that he had exposed himself to danger or reasonably believed that he was doing so and that there was element of personal risk. Same condition was applied where the plaintiff has the dual status of rescuer and close relative of the primary victim.
It has been decided that if the psychiatric injury is the result of a gradual appreciation of events rather than a sudden shock then there will be no liability.
MENTAL INJURY IN INDIAN PENAL CODE:
According to section 44 of I.P.C “an injury is any harm whatever illegally caused to any person in BODY, MIND, REPUTATION, or PROPERTY”.
It means that Indian penal code divided injury into four major parts 1. Body, 2. Mind, 3. Reputation, and 4. Property. Legally, injury is not limited only to physical injury and pecuniary injury but extends also to mind or reputation. there are various sections in I.P.C which is related with mental injuries and also prescribes punishment for serious mental injuries. Offences like defamation, cruelty by husband or relatives of husband, criminal intimidation insult and annoyance, outraging modesty of woman, abetment of suicide, mental torture, and mental harassment are the offences which does not give any bodily injury but it creates high level of criminal mental injury which is declared as an offence under I.P.C., it means that psychological harm is also defines as an offence under law of crimes.
E.g. Murder of husband affects women mentally and should therefore, be treated as an injury to the widow. She has the right to recover the damage caused by her mental injury.
Mental injury and Indian society:
Mental injury problems are spreading like an epidemic but still this issue is being neglected as a whole country. In our society, every person is a victim of mental injury but we get used to it but it is hurting our life so much. Most of the time we do not understand the mental injury because it is not visible like physical and any other injury. but the truth is that physical injury is soon cured, but the mental injury takes a lot of time to recover and it happens that it is never recover sometimes and in every physical injury there is always a presence of a mental injury. The biggest thing here is that people do not even know that they are the victims of mental injury. In our country, we see that there is very less law which deals with the offences of mental injury, in the cases like suicide, it is very hard to prove that who is guilty and because of lack of evidence most of the cases has to be closed. We need a proper guideline which only deals with issues related to mental injury. Association for Scientific Advancement in Psychological Injury and Law (ASAPIL) is dedicated to serving the psychological and legal communities in understanding the area of psychological injury and its scientific bases and in promoting and disseminating research in the area. Its aim to facilitate communication between the psychological and legal community appreciate the role that psychologists can provide their clients and the courts.
Mental injuries are the running issue among the have-nots as well, research findings have highlighted that financial hardship, physical illness, lack of education & skill and lack of basic resources and inability to provide for one’s family to be major factors that contribute to mental illness and suicide among the poor and under privileged.
Actually, mind is a controller of our body that’s why we need to protect it first, every action of our life is an order of our mind so it is very essential to make it fresh, mental injury can ruin your life easily so it is necessary to finish it as soon as possible. The first solution to reduce mental injury is awareness. Government should come up with policies where they actually on a practical basis creates this awareness through media so that people could get rid of that fear of being called mad and we start with required treatment.
Secondly, the educational institutions have to play a very big role in this matter, subject like psychology and human behaviour should be teach in schools. In the rural areas there is zero awareness about the mental injury. there is a need to appoint mental health workers and social workers in every area whether it is urban and rural. Mental injury is a part of science as well as law. Scientific research on mental health or injury is associated with legal research and practice. Together we can definitely reduce this problem and will make our life better.
The law of torts book by- M.N. Shukla
Indian penal code (1860)
Springer.com (psychological injury and law)
[DISCLAIMER: This article is for general information only. We have tried to include as much information as possible but there are chances that some important information may have been missed .It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the this article shall not be liable for any act or omission based on this note].