According to the first doctrine articulated by common law courts, a plaintiff could not recover for physical injury from fright alone absent a physical impact from an external source ("shock without impact"), even if the fright was proven to have resulted from a defendant's negligence, with the case on point referring to the negligent operation of a railroad in Australia, as decided by the imperial Privy Council.
[5] A change first occurred in the Irish courts, which repudiated the Australian railroad decision and recognised liability for "nervous shock" in the Byrne (1884) and Bell (1890) cases.
[6] In England, the idea that physical/mental shock without impact from an external source should be a bar to recovery was first questioned at the Queen's Bench in Pugh v. London, etc.
Railroad Co.[7] In the following year, the Court of Queen's Bench formally recognised the tort, for the first time, in the case of Wilkinson v Downton,[8] although it was referred to as "intentional infliction of mental shock".
Wilkinson has been subsequently approved by both the Court of Appeal (Janvier v Sweeney [1919] 2 KB 316) and House of Lords (Wainwright v Home Office [2003] UKHL 53, [2004] 2 AC 406).
There are some reported cases in which a plaintiff will bring only a NIED claim even though a reasonable neutral observer could conclude that the defendant's behavior was probably intentional.
As a matter of public policy, insurers are barred from covering intentional torts like IIED, but may be liable for NIED committed by their policyholders, and therefore are targeted indirectly in this fashion as deep pockets.