Page:Harvard Law Review Volume 8.djvu/395

A GENERAL ANALYSIS OF TORT-RELATIONS. 379 2. Next we may group veritable physical injuries, of whatever sort, — cuts, blows, disease, and the like. The controversies in this connection concern commonly the naturalness and probability of the harmful result with reference to the defendant's conduct, and belong therefore under the Responsibility heading below. The exact nature of the harm is often of consequence in connec- tion with the measure of damages. Other than these, the most points are few. Of recent years, discussion has arisen as to claims based on nervous disorders, especially when caused without physi- cal contact. The question is then usually, from the present point of view, whether the injury or suffering is a physical, not merely a mental one ; and, if so, whether there is any reason why it should be denied the recovery which is granted for all other physical injuries. It is not always observed that there may be in this respect a distinction between (i) mere fright (a mental injury; see />osf) and (2) positive physical illness resulting from fright. 3. Next to physical injuries may be grouped those annoyances and offences to the senses which do not amount to illness or wounding, but yet are positive harms; they are covered in ordi- nary legal diction by the term ** Nuisance." ^ Many affect merely a single sense — hearing, sight, or smell — but most are of a mixed character. They fall naturally together in treatment ; Jlrst, because they often bring us to the border-land at which de 7ninimis non curat lex, and they frequently call upon the judges for attempts to define the boundary in satisfactory terms ; secondly, they are usually worth considering for those only who are con- tinually exposed to them, i. e. the owners or occupiers of land; and hence there are certain questions common to all of them, in that e. g. some interest in land must usually be shown in order to base a claim, and it is commonly said that the harm is to be tested by its effect in depreciating the value of land or in render- ing it uncomfortable to life. The claims seem at bottom, how- ever, to be based on a personal harm.^ We come next, naturally, to " mental " injuries, so-called, the idea of which, as distinguished from physical injuries, is that they are 1 So far as a distinct health-injury is covered by this term, it belongs in theory in the preceding class. 2 Certainly there are numerous cases where the claim is recognized independently of any property-right in the claimant. One of the best recent examples is the action allowed in England against a newsboy for offensive noise in crying his papers (Innes v. Newman, L. R. '94, 2 Q. B. 292), though a municipal regulation was there involved.