PAGE
(APPELLANT)
v.
SMITH
(RESPONDENT)
ON 11TH MAY 1995
Lord Keith of Kinkel
Lord Ackner
Lord Jauncey of Tullichettle
Lord Browne-Wilkinson
Lord Lloyd of Berwick
LORD KEITH OF KINKEL
My Lords,
On 24 July 1987 the plaintiff, Mr. Page, was involved in a motor
accident. He was driving his Volvo car along a road in Bury St. Edmunds
when the defendant, Mr. Smith, driving his Datsun car in the opposite
direction, cut across to enter a side road. A collision occurred. The plaintiff
sustained no bodily injury. Neither did the defendant or his wife and child
who were with him in his car. However, the plaintiff had for a very long
time been suffering from a condition variously described as myalgic
encephalomyelitis (ME), or chronic fatigue syndrome (CFS) or post viral
fatigue syndrome (PVFS), which had manifested itself from time to time with
different degrees of severity. The plaintiff had suffered a particularly severe
attack in March 1987, apparently as a result of a viral infection, but his
evidence was that he was recovering from it and hoped to be able to return to
his work as a teacher in September 1987. The plaintiff took proceedings
against the defendant claiming damages for personal injuries caused by the
defendant’s negligence. His case was that his condition of what I shall for
convenience refer to as CFS had as a result of the accident become chronic
and permanent so that he would never be able to work again. Trial took place
before Otton J., who on 22 December 1992 found in the plaintiff’s favour and
awarded him damages of £162,153. The defendant appealed, and on 30
March 1994 the Court of Appeal (Ralph Gibson, Farquharson and Hoffmann
L.JJ.) reversed the decision of Otton J. and entered judgment for the
defendant. The plaintiff now appeals to your Lordships’ House.
– 1 –
The question primarily at issue is whether in claims for damages due
to nervous shock it is in all cases incumbent upon the plaintiff to prove that
injury by nervous shock was reasonably foreseeable by the defendant, or
whether it suffices, where the plaintiff was himself involved in an accident,
for him to prove that personal injury of some kind was reasonably foreseeable
as a result of it. The trial judge took the latter view but the Court of Appeal
unanimously took the former. Ralph Gibson L.J. was in addition of the
opinion that the plaintiff had not proved that his recrudescence of CFS was
caused by the accident. The other two members of the Court of Appeal did
not deal with that matter.
It is necessary at the outset to particularise what is meant by “nervous
shock,” such as may result in liability for damages. The decided cases
indicate that it means a reaction to an immediate and horrifying impact,
resulting in some recognisable psychiatric illness. There must be some serious
mental disturbance outside the range of normal human experience, not merely
the ordinary emotions of anxiety, grief or fear. As was observed by Lord
Oliver of Aylmerton in Alcock v. Chief Constable of South Yorkshire Police
[1992] 1 AC 310, 407, the cases divide broadly into two categories, those
in which the plaintiff was involved as a participant in the incident which gave
rise to the action, and those in which the plaintiff was a witness to injury
caused to others, or to the immediate aftermath of an accident to others. The
first category includes Dulieu v. White & Sons [1901] 2 KB 669, where the
plaintiff was terrified by a cart and horses bursting into the public house
where she was employed, and Schneider v. Eisovitch [1960] 2 Q.B. 430.
where the plaintiff was herself injured in the accident which resulted in the
death of her husband. Cases in the second category include Hambrook v.
Stokes Brothers [1925] 1 K.B. 141, where a mother was terrified by the
prospect of injury to her children from a runaway lorry, and Mcloughlin v.
O’Brian [1983] 1 AC 410, where the plaintiff shortly after a road accident
saw her husband and children badly injured in hospital. Liability for
negligence depends upon proof both that it was reasonably foreseeable that
injury would result from the act or omission called in question and that a
relationship of proximity existed between plaintiff and defendant. Where the
plaintiff is personally involved in a terrifying incident proof of proximity
presents no problem. Where, however, the plaintiff is what may be described
as a secondary victim proximity may be very difficult to establish . It was
held to exist in McLouglin v. O’Brian [1983] 1 AC 410 but not in Alcock v.
Chief Constable of South Yorkshire Police [1992] 1 AC 310. Proximity
clearly existed in the present case. Further, it was clearly reasonably
foreseeable that the plaintiff might suffer physical injury in the accident,
though in the event he did not. The question is whether or not the plaintiff
was required to prove that it was reasonably foreseeable that he would suffer
such nervous shock as was capable of leading to some identifiable illness.
The decided cases reveal several observations indicating that this
question is to be answered in the affirmative.
– 2 –
In King v. Phillips [1953] 1 Q.B. 429. 441 Denning L.J.. said:
“Howsoever that may be, whether the exemption for shock be
based on want of duty or on remoteness, there can be no doubt since
Bourhill v. Young [1943] AC 92 that the test of liability for shock
is foreseeability of injury by shock.”
That statement was endorsed by Viscount Simonds in The Wagon Mound
(No. 1) [1961] AC 388, 426.
In Mount Isa Mines Ltd. v. Pusey (1970) 125 C.L.R. 383, 402
Windeyer J. said:
“In what way does one test whether a particular harm is of the
genus that was foreseeable? We have at least one ‘fixed and definite
line.’ Liability for nervous shock depends on foreseeability of nervous
shock. That, not some other form of harm, must have been a
foreseeable result of the conduct complained of. The particular
pathological condition which the shock produced need not have been
foreseeable. It is enough that it is a ‘recognisable psychiatric illness.'”
In Jaensch v. Coffey (1984) 54 A.L.R. 417, 452 Deane J. said,
referring to Bourhill v. Young [1943] A.C. 97:
“One finds in the judgments an implicit (explicit in the case of Lord
Porter, at p. 119) acceptance of a refinement of the ordinary test of reasonable
foreseeability of injury which has subsequently received general acceptance:
in the case of mere psychiatric injury, the requirement of reasonable
foreseeability will not be satisfied unless injury in that particular form, as
distinct from personal injury generally . . . was reasonably foreseeable.”
(Deane J.’s underlining)
Later, he said, at p. 460:
“The limitations upon the ordinary test of reasonable
foreseeability in cases of mere psychiatric injury are conveniently
stated in negative form. Two of them have already been mentioned.
The first of those is that reasonable foreseeability of risk of personal
injury generally will not suffice to give rise to a duty of care to avoid
psychiatric injury unassociated with conventional physical injury: a
duty of care will not arise unless risk of injury in that particular form
was reasonably foreseeable.”
In The Wagon Mound (No. 2) [1967] 1 AC 617, 636. Lord Reid
stated as a general proposition applicable to cases based on negligence:
– 3 –
“It has now been established by The Wagon Mound (No. 1)
[1961] AC 388 and by Hughes v. Lord Advocate [1963] AC 837
that in such cases damages can only be recovered if the injury
complained of was not only caused by the alleged negligence but was
also an injury of a class or character foreseeable as a possible result
of it.”
That general proposition is valid in principle both as regards persons directly
involved in an accident who claim on grounds of nervous shock and as regards
those who claim as secondary victims. Reasonable foreseeability being the
test, there is no logical ground for distinguishing between the two classes of
claimants.
A considerable amount of argument ranged over the question whether
in applying the test of reasonable foreseeability in cases of nervous shock
matters fell to be considered prospectively or ex post facto. In Bourhill v.
Young [1943] AC 92, 110, Lord Wright said:
“It is here, as elsewhere, a question of what the hypothetical
reasonable man, viewing the position, I suppose ex post facto, would
say it was proper to foresee.”
In McLoughlin v. O’Brian [1983] AC 410 Lord Wilberforce spoke
to similar effect at p. 420, and Lord Bridge of Harwich at p. 432. I think that
what these judges had in mind was that it is necessary to look at the
circumstances as they actually occurred and consider whether the hypothetical
reasonable man, when directing his mind to the act or omission which is
called in question, would have foreseen those circumstances, including that
some person in the position of the plaintiff might as a result of what happened
suffer nervous shock leading to an identifiable illness. Lord Wilberforce, at
p. 422 in McLoughlin v. O’Brian mentioned that one of the factors in the light
of which the claim had to be judged was the nature of the accident.
Foreseeability of nervous shock is to be judged in the light of what
would be suffered by a person of normal fortitude. In Bourhill v. Young
Lord Wright said, at p. 110:
“What is now being considered is the question of liability, and
this, I think, in a question whether there is a duty owing to members
of the public who come within the ambit of the act, must generally
depend on a normal standard of susceptibility.”
Lord Porter said much the same thing at p. 117, and in McLoughlin v.
O’Brian Lord Russell of Killowen said, at p. 429:
– 4 –
“… the plaintiff is to be regarded as of normal disposition or
phlegm: we are therefore not concerned to investigate the applicability
of the ‘thin skull’ cases to this type of case.”
I turn to apply the foregoing principles to the facts of the present case.
The defendant can be liable only if the hypothetical reasonable man in his
position should have foreseen that the plaintiff, regarded as a person of normal
fortitude, might suffer nervous shock leading to an identifiable illness. For
this purpose the nature of the accident is to be taken into account. The
collision which occurred between the two cars is described by the trial judge
as one of “moderate severity.” No one involved sustained any bodily injury
whatever. The plaintiff was able to drive his car home after the accident,
though the damage to the car was such that owing to its age it was not
economic to repair it, so that it was written off. The trial judge also said that
the collision “must have been a frightening experience for Mr. Page and I
have no doubt that he did suffer nervous shock in the broad sense of the
word.” These are inferences by the trial judge from the fact that a collision
of moderate severity occurred. The plaintiff himself gave no evidence to the
effect that he was at all frightened or shaken up. He did, however, give
evidence that some three hours after the accident he began to suffer symptoms
indicative of a recrudescence of CFS. Whether this recrudescence was
attributable to the accident is debatable. Ralph Gibson L.J., after a careful
review of the evidence, took the view that it was not. But assuming that it
was, this can only be on account of the plaintiff’s peculiar susceptibility. In
my opinion a reasonable man in the position of the defendant would not have
foreseen that an accident of the nature that he actually brought about might
inflict on a person of normal susceptibility such mental trauma as to result in
illness. There is no question of the plaintiff having been terrified by his
experience, as the plaintiff foreseeably was in Dulieu v. White [1901] 2 K.B.
669, or having suffered an “acute emotional trauma,” to use the expression of
Lord Bridge of Harwich in Mcloughlin v. O’Brian [1983] AC 410. 433.
My Lords, for these reasons I would dismiss this appeal.
LORD ACKNER
My Lords,
I have had the advantage of reading in draft the speech of my noble
and learned friend Lord Lloyd of Berwick. I agree with it and for the reasons
he gives I too would allow this appeal and make the order he proposes.
As regards Mr. McKay Q.C.’s alternative submission, namely, that if
it was necessary to establish foreseeability of injury by nervous shock in a
person of normal fortitude, then the Court of Appeal were wrong to hold that
– 5 –
such injury was not foreseeable, I should like to add the following
observation:
Assuming in favour of the respondent that the circumstances of the
accident were such that:
-
-
-
The risk of injury by nervous shock was remote; and
-
Such a risk, although a possibility would become an actuality only in
very exceptional circumstances.
-
-
Nevertheless, the risk could not be said to be so farfetched or fantastic
as to be “. . .a mere possibility which would never occur to the mind of a
reasonable man” (per Lord Dunedin in Fardon v. Harcourt-Rivington (1932)
146 L.T. 391, 392). The risk was a real risk in the sense that it was
justifiable not to take steps to eliminate it only if the circumstances were such
that a reasonable man, careful of the safety of his neighbours, would think it
right to neglect it. A reasonable man would only neglect such a risk if he had
some valid reason for doing so, e.g. if it would involve considerable expense
to eliminate the risk. He would weigh the risk against the difficulty of
eliminating it. (See Wagon Mound (No. 2) [1967] 1 AC 617 per Lord Reid,
at pp. 640-642, where for the reasons which have already been explained, the
evidence led was substantially different from the evidence led in Wagon
Mound (No. 1)). Of course, there was no justification whatsoever for the
respondent suddenly and without warning driving across the path of the
appellant, thereby making what must have been a frightening collision
inevitable.
The risk of injury by nervous shock was clearly foreseeable. A person
of “normal fortitude,” whatever that imprecise phrase may mean, could well
have been terrified by the event and the resultant assault on his or her nervous
system could well have caused a post-traumatic neurosis of one kind or
another. That it would have been as serious and as long lasting, as occurred
in this case, is accepted by the respondent to be nothing to the point.
LORD JAUNCEY OF TULLICHETTLE
My Lords,
The primary issue in this appeal is whether in a case of injury resulting
solely from nervous shock a plaintiff must show that injury of such a type was
foreseeable or whether it is sufficient to show that any personal injury was
foreseeable. By nervous shock, I mean such an impact upon the mind or
nervous system as is recognised by modern medical science as capable of
causing physical or psychiatric illness. The ordinary emotions of anxiety,
– 6 –
fear, grief or transient shock are not conditions for which the law gives
compensation.
The appellant accepts that in what may be described as bystander cases
where there is no direct impact upon the plaintiff it is necessary to establish
the foreseeability of nervous shock. However he maintains that in participant
cases, where there is direct involvement of the plaintiff in the negligent act,
such foreseeability need not be established. It suffices that any personal injury
may be foreseen. Much stress was laid by the appellant upon the distinction
between participant and bystander and it is therefore appropriate to consider
whether it is supported by principle or authority. When a plaintiff suffers
damage as a result of the negligent act of another he must establish
foreseeability of the general type of damage before he can succeed. The fact
that personal injury is a likely consequence will not support a claim for pure
economic loss. In the normal personal injury case arising from a factory or
road accident the foreseeability of such injury arising from the negligent act
seldom requires to be addressed since it is self evident from the
circumstances. However that is not to say that the need for it is dispensed
with. It is by no means impossible that a plaintiff could be directly involved
in an accident caused by a negligent act where the circumstances required
specific proof that injury was foreseeable. In Overseas Tankship (U.K.) Ltd
v. Morts Dock & Engineering Co. Ltd. (The Wagon Mound) [1961] AC 388
the judgment of the Board contained the following observations, at p.426:
“Their Lordships conclude this part of the case with some general
observations. They have been concerned primarily to displace the
proposition that unforeseeability is irrelevant if damage is ‘direct’. In
doing so they have inevitably insisted that the essential factor in
determining liability is whether the damage is of such a kind as the
reasonable man should have foreseen. This accords with the general
view thus stated by Lord Atkin in Donoghue v. Stevenson [1932] A.C.
562, 580: ‘The liability for negligence, whether you style it such or
treat it as in other systems as a “species of-culpa,” is no doubt based
upon a general public sentiment of moral wrongdoing for which the
offender must pay.’ It is a departure from this sovereign principle if
liability is made to depend solely on the damage being the ‘direct’ or
‘natural’ consequence of the precedent act. Who knows or can be
assumed to know all the processes of nature?”
If therefore a plaintiff who is directly involved in an accident requires
to establish that the physical injuries sustained by him were the foreseeable
consequences of a negligent act it is not easy to see in principle why such a
plaintiff who suffers merely nervous shock and its consequences should not
require to prove that it was similarly foreseeable. As a matter of common
sense physical injuries are far more likely to result from an impact accident
than is nervous shock causing subsequent illness. While it is not uncommon
for a severe physical injury to give rise to some degree of psychiatric illness
it is not the law that such illness is presumed to be a foreseeable consequence
– 7 –
of every physical injury, rather does each case depend on its own
circumstances. If therefore the foreseeability of psychiatric illness consequent
upon physical injury requires to be established independently of the
foreseeability of the physical injury why should the position be different where
there was at the most a risk of physical injury which never eventuated?
I turn to consider some of the authorities. In Bourhill v. Young [1943]
A.C. 92 an Edinburgh fish wife sought damages from the executor of a
deceased motorcyclist whose negligence caused him to collide with a motor
car on the side of a tramcar opposite to that beside which the pursuer was
standing. She did not, and indeed could not, see the collision but heard the
noise and was frightened thereby although she had no reasonable fear of injury
to herself. This House rejected her claim for nervous shock and consequential
physical injuries on the ground that the motorcyclist owed her no duty since
the reasonable hypothetical observer could not have foreseen that placed as she
was the pursuer could have been affected by the accident in the manner in
which she was. In short it was not foreseeable that she would suffer nervous
shock. This lack of foreseeability went not to remoteness of damage but to
the existence of a duty as was pointed out by Lord Russell of Killowen in the
following passage at p. 101:
“In considering whether a person owes to another a duty a breach of
which will render him liable to that other in damages for negligence,
it is material to consider what the defendant ought to have
contemplated as a reasonable man. This consideration may play a
double role. It is relevant in cases of admitted negligence (where the
duty and breach are admitted) to the question of remoteness of
damage, i.e., to the question of compensation not to culpability, but
it is also relevant in testing the existence of a duty as the foundation
of the alleged negligence, i.e.. to the question of culpability not to
compensation.”
Bourhill v. Young was followed in King v. Phillips [1953] 1 Q.B. 429
where a mother saw a taxi some 70 yards away reverse towards and run
apparently over her small son whom she heard scream. He was in fact only
slightly hurt. Denning L.J. after dismissing the concept of there being two
different torts, namely one where physical injury is foreseeable and another
where emotional injury is foreseeable concluded that the only consequences
for which a tortfeasor was excused were those which were too remote. He
continued, at p.441:
“Howsoever that may be, whether the exemption for shock be based
on want of duty or on remoteness, there can be no doubt since
Bourhill v. Young [1943] AC 92 that the test of liability for shock is
foreseeability of injury by shock.”
– 8 –
This passage was referred to with approval in the following passage in
the judgment of the Board in The Wagon Mound (No. 1) [1961] AC 388.
at p.426:
“We have come back to the plain common sense stated by Lord
Russell of Killowen in Bourhill v. Young [1943] AC 92, 101. As
Denning LJ. said in King v. Phillips [1953] 1 Q.B. 429, 441 ‘there
can be no doubt since Bourhill v. Young that the test of liability for
shock is foreseeability of injury by shock.‘ Their Lordships substitute
the word Tire’ for ‘shock’ and endorse this statement of the law.”
The plain common sense stated by Lord Russell of Killowen is to be
found in the passage at p. 101 to which I have already referred. In
McLoughlin v. O’Brian [1983] AC 410, although the appellant (plaintiff),
accepted that the agreed test for liability for shock was the foreseeability
thereof Lord Bridge of Harwich said, at p. 432:
“The judges, in all the decisions we have been referred to, have
assumed that it lay within their own competence to determine whether
the plaintiff’s ‘nervous shock’ (as lawyers quaintly persist in calling it)
was in any given circumstances a sufficiently foreseeable consequence
of the defendant’s act of omission relied on as negligent to bring the
plaintiff within the scope of those to whom the defendant owed a duty
of care.”
He later stated, at p.433:
“The question, then, for your Lordships’ decision is whether the law,
as a matter of policy, draws a line which exempts from liability a
defendant whose negligent act or omission was actually and
foreseeably the cause of the plaintiff’s psychiatric illness and, if so,
where that line is to be drawn.”
It was argued that Denning L.J. had misunderstood the reasoning in
Bourhill v. Young [1943] AC 92 and that his error had been perpetuated in
later cases. I do not consider that this criticism is justified. In both King v.
Phillips [1953] 1 Q.B. 429 and in Bourhill v. Young the only injury relied
upon by the plaintiff was that resulting from nervous shock. The pursuer
failed in Bourhill v. Young because it was held that the motor-cyclist could not
reasonably have foreseen that she would suffer nervous shock as a result of
his negligent driving. The factual position in King v. Phillips was broadly
similar and it seems to me that Denning L.J. was doing no more than
recognise that where the only injury complained of results from nervous shock
foreseeability of such shock must be established before a breach of duty can
arise.
– 9 –
My Lords, as is so often the case in the field of negligence valuable
contributions to the discussion are to be found in judgments of the High Court
of Australia and in the context of this appeal I propose to refer to two. In
Mount Isa Mines Ltd v. Pusey (1970) 125 C.L.R. 383 two electricians in a
power house were horribly burnt following an explosion and an electric arc
of intense heat. The plaintiff who was working on a lower floor heard the
noise, immediately went to investigate and helped one of the two electricians
down to an ambulance. He later developed a serious mental disturbance. The
High Court, in holding the defendant liable, accepted that the test of liability
for shock was foreseeability of injury by shock. Windeyer J., after referring
to a passage in the judgment of Dixon J. in an earlier case in The High Court
of Australia said, at p. 395:
“This passage is noteworthy: first, as an anticipation of the present-
day rule that a cause of action for nervous shock depends on
foreseeability of harm ‘of some such nature’ as that which actually
occurred. Secondly, it emphasises that nervous shock cases are not a
new tort: they turn simply on the circumstances in which damages are
recoverable for a particular kind of harm caused by a tort.”
He said, at p. 402:
“In what way does one test whether a particular harm is of the genus
that was foreseeable? We have at least one ‘fixed and definite line’.
Liability for nervous shock depends on foreseeability of nervous shock.
That, not some other form of harm, must have been a foreseeable
result of the conduct complained of. The particular pathological
condition which the shock produced need not have been foreseeable.
It is enough that it is a ‘recognizable psychiatric illness’.”
Walsh J. said, at p.413:
“One must ask also whether or not the finding that ‘shock and some
form of mental illness or neurosis’ was foreseeable satisfies the
requirements of the principle asserted in The Wagon Mound (No.l)
[1961] AC 388, 426 that ‘the essential factor in determining liability
is whether the damage is of such a kind as the reasonable man should
have foreseen’. In the application of this principle there may be
difficulty in some cases in determining whether damage for which an
action is brought and damage which was foreseeable are the same
‘kind’ of damage. But in the present case there are two reasons which
appear to me to justify the conclusion reached by Skerman J. The first
is that it is not a condition of liability that either the precise character
of the damage or the extent of it should have been foreseen. It is
necessary only that the damage suffered should not be different in kind
from that which was foreseeable: see Hughes v. Lord Advocate [19631]
A.C. 837, 845 and Chapman v. Hearse (1961) 106 C.L.R. 112, 121.
The second reason is that in The Wagon Mound (No 1) [1961] A.C.
– 10 –
388. 426 express approval was given to the statement of Denning L.J.
in King v. Phillips [1953] 1 Q.B. 429, 441 that ‘there can be no doubt
since Bourhill v. Young [1943] AC 92 that the test of liability for
shock is foreseeability of injury by shock’. Thus injury by shock is
treated as a distinct ‘kind’ or class of damage for the purposes of the
general principle enunciated in The Wagon Mound (No.1) [1961] A.C.
388 that liability depends upon the foreseeability of the kind of damage
for which the defendant is sued.”
In Jaensch v. Coffey (1984) 54 A.L.R. 417 The High Court held that
it was reasonably foreseeable that a wife who visited her seriously injured
husband in hospital would suffer shock inducing a psychiatric illness.
Brennan J. after a detailed consideration of authorities including Bourhill v.
Young, the two Wagon Mound cases Mount Isa Mines Ltd v. Pusey and
McLoughlin v. O’Brian said, at p.430:
“In cases of negligence occasioning nervous shock, as in cases of
negligence occasioning physical injury the ‘essential factor in
determining liability is whether the damage is of such a kind as the
reasonable man should have foreseen’ (The Wagon Mound (No 1)
[1961] AC 388, 426). The distinction in principle between the two
classes of cases, however, depends on the kind of damage that the
reasonable man should foresee. Where a plaintiff is entitled to
damages for negligence occasioning nervous shock, some recognizable
psychiatric illness induced by shock must be reasonably foreseeable.”
Deane J. expressed views to a similar effect, at p.460:
“The limitations upon the ordinary test of reasonable foreseeability in
cases of mere psychiatric injury are conveniently stated in negative
form. Two of them have already been mentioned. The first of those is
that reasonably foreseeability of risk of personal injury generally will
not suffice to give rise to a duty of care to avoid psychiatric injury
unassociated with conventional physical injury: a duty of care will not
arise unless risk of injury in that particular form was reasonably
foreseeable.”
In the USA Tobriner J. delivering the judgment of the Supreme Court
of California in Dillon v. Legg (1968) 69 Cal. Reptr. 72 also refers to the fact
that the law of tort holds a defendant liable only for injuries to others which
to the defendant at the time were reasonably foreseeable, and he continued
later, at p.80:
“This foreseeable risk may be of two types. The first class involves
actual physical impact. A second type of risk applies to the instant
situation. ‘In other cases, however, plaintiff is outside the zone of
physical risk ‘(or there is no risk of physical impact at all), but bodily
– 11 –
injury or sickness is brought on by emotional disturbance which in turn
is caused by defendant’s conduct. Under general principles recovery
should be had in such a case if defendant should foresee fright or
shock severe enough to cause substantial injury in a person normally
constituted’. . . (2 Harper & Jones, The Law of Torts (1956) at 1035-
1036).”
It was urged upon your Lordships that all these cases involved
bystanders as opposed to participants and that they were therefore not relevant
to the present appeal where the appellant was directly involved in the
collision. I reject this submission for two reasons. In the first place in none
of the judgments was it suggested that the need to prove foreseeability of
nervous shock was other than a general requirement applicable to all cases
where damages therefor were claimed. Indeed Wagon Mound (No 1) was a
case of direct damage by fire, comparable to a participant case, but the
judgment nevertheless applied to it the dictum of Denning L.J. to which I
have already referred, in King v. Phillips, albeit substituting “fire” for
“shock”. In the second place foreseeability of injury is necessary to determine
whether a duty is owed to the victim. Unless such injury can be foreseen the
victim is not a neighbour within the celebrated dictum of Lord Atkin in
Donoghue v. Stevenson [1932] A.C.562 and cannot recover. A victim
therefore has to establish neighbourhood whether he is a participant in the
negligent act or merely a bystander and there can be justification neither in
law nor in logic for departing from the general principles expressed in
Donoghue v. Stevenson. I have no doubt that the Court of Appeal were
correct to conclude that the appellant could only succeed if he could
demonstrate that nervous shock giving rise to some form of psychiatric illness
was a foreseeable consequence of the respondent’s negligence.
The appellant relied strongly on a passage in the speech of Lord Oliver
of Aylmerton in Alcock v. Chief Constable of South Yorkshire [1992] 1 A.C.
310, 406F – H. After referring to the fact that compensable injury may be
caused just as much by a direct assault upon the nervous system as by direct
physical contact with the body Lord Oliver continued, at p. 407A:
“Cases in which damages are claimed for directly inflicted injuries of
this nature may present greater difficulties of proof but they are not,
in their essential elements, any different from cases where the damages
claimed arise from direct physical injury and they present no very
difficult problems of analysis where the plaintiff has himself been
directly involved in the accident from which the injury is said to arise.
In such a case he can be properly said to be the primary victim of the
defendant’s negligence and the fact that the injury which he sustains is
inflicted through the medium of an assault on the nerves or senses does
not serve to differentiate the case, except possibly in the degree of
evidentiary difficulty, from a case of direct physical injury.”
– 12 –
Lord Oliver then went on to remark that cases of “liability for nervous
shock broadly divided into two categories:”
“… that is to say, those cases in which the injured plaintiff was
involved, either mediately or immediately, as a participant, and those
in which the plaintiff was no more than the passive and unwilling
witness of injury caused to others. In the context of the instant appeals
the cases of the former type are not particularly helpful, except to the
extent that they yield a number of illuminating dicta, for they illustrate
only a directness of relationship (and thus a duty) which is almost self-
evident from a mere recital of the facts.”
It was argued that these passages supported the contention that
foreseeability of nervous shock was not necessary in a direct participation
case. I do not agree. Lord Oliver was considering proximity as determinative
of the existence of a duty of care and drawing a distinction between a victim
directly involved in an accident and one who merely witnessed it. He
certainly was not saying that a victim directly involved in an accident did not
require to prove the foreseeability of the nervous shock from which he
suffered as a result thereof.
The appellant argued that if foreseeability of nervous shock was
required to be proved by a participant, the assumption of reasonable fortitude,
which applied in the case of a bystander, did not apply to him but rather that
the respondent tortfeasor must take his victim as he found him. The rule that
a tortfeasor is entitled to assume that his victim is of normal fortitude is
designed to limit the class of bystanders to whom a duty is owed and is
neither relevant nor necessary in the case of participants. Taking your victim
as you find him however is relevant, not to the existence of a duty owed to
him but rather to the question of damages payable in respect of breach of a
duty otherwise established. So far as the fortitude rule is concerned it is
necessary to look at a number of authorities.
In Wilkinson v. Downton [1897] 2 QB 57 the defendant informed the
plaintiff that her husband had been smashed up in an accident sustaining two
broken legs. This was quite untrue and apparently intended as a practical joke.
The plaintiff however received a severe shock producing serious physical
consequences. Wright J. after concluding that the defendant had wilfully done
an act calculated to cause physical harm said, at p.59:
“One question is whether the defendant’s act was so plainly calculated
to produce some effect of the kind which was produced that an
intention to produce it ought to be imputed to the defendant, regard
being had to the fact that the effect was produced on a person proved
to be in an ordinary state of health and mind. I think that it was.”
– 13 –
I take from this passage that the judge thought it appropriate to apply
the foreseeability test in the context of a person of normal susceptibility to
such an act. In Bourhill v. Young [1943] AC 92, 110 Lord Wright said:
“What is now being considered is the question of liability, and this. I
think, in a question whether there is duty owing to members of the
public who come within the ambit of the act, must generally depend
on a normal standard of susceptibility.”
A few sentences later he said:
“What danger of particular infirmity that would include must depend
on all the circumstances, but generally, I think, a reasonably normal
condition, if medical evidence is capable of defining it, would be the
standard. The test of the plaintiff’s extraordinary susceptibility, if
unknown to the defendant, would in effect make him an insurer.”
Lord Porter said, at p. 117:
“The driver of a car or vehicle, even though careless, is entitled to
assume that the ordinary frequenter of the streets has sufficient
fortitude to endure such incidents as may from time to time be
expected to occur in them, including the noise of a collision and the
sight of injury to others, and is not to be considered negligent towards
one who does not possess the customary phlegm.”
In McLoughlin v. O’Brian [1983] AC 410, 422 Lord Wilberforce
referred to the assumption that ordinary bystanders be possessed of fortitude
sufficient to enable them to endure the calamities of modern life and Lord
Bridge of Harwich (p.436) considered that the above quoted dictum of Lord
Porter in Bourhill v. Young was as acceptable in 1982 as it was in 1942. I
consider that it is still acceptable in 1995. In Jaensch v. Coffey 54 A.L.R. 417
Brennan J. said, at p. 431:
“Moreover, it is generally recognized that what will induce a
psychiatric illness in one person may leave another unaffected. Some
people are naturally more robust – or less sensitive – than others. Yet
reasonable foreseeability is an objective criterion of duty, and a
general standard of susceptibility must be postulated. At least to that
extent it is possible to confine consideration of the question whether it
is reasonably foreseeable that the perception of a particular
phenomenon might induce in the plaintiff a psychiatric illness. Some
general guidelines apply. The first guideline is this: the question
‘whether there is duty owing to members of the public who come
within the ambit of the act, must generally depend on a normal
standard of susceptibility.’ (per Lord Wright in Bourhill v. Young
[1943] A.C. at p. 110)”
– 14 –
None of these cases involved participants but the observations of Lord
Wright and Brennan J. were stated in fairly broad terms and were not
specifically confined to bystander cases. That there appear to have been no
similar expressions of opinion in relation to participants is, perhaps, hardly
surprising since cases such as the present where a participant sustains no
immediate physical injuries must be rare. However there do not appear to be
reasons in principle or logic for drawing a distinction between the two classes
of person. To take a simple example suppose A while slowly reversing his
car into a tight parking space inadvertently bumps the car of B which is
stationary, B, who is a woman prone to hysteria, promptly develops that
condition with consequential physical injury. The circumstances are such that
no normal person would have been in any way mentally or physically affected
by the bump. Is B to be compensated because A should have foreseen that a
hysterical woman might be in the car and thereby sustain a shock from a
minor bump? Commonsense would loudly say No and in my view the law
should and does likewise. I am satisfied that in determining whether a
tortfeasor should have foreseen that either a participant or a bystander would
suffer nervous shock as a result of his negligent act the proper test is to
assume that the victim is of reasonable fortitude and susceptibility unless, of
course, the tortfeasor has special knowledge of the victim’s unusual condition.
In applying this test in the present appeal consideration must be given
to the precise circumstances in which foresight is to be exercised. The
appellant maintained that the respondent should have applied his mind to the
position immediately before the impact without regard to the consequences
thereof while the respondent submitted that what had actually occurred must
be taken into account. Support for the respondent’s contention is to be found
in Bourhill v. Young [1943] AC 92, 110 where Lord Wright said:
“It is here, as elsewhere, a question of what the hypothetical
reasonable man, viewing the position, I suppose ex post facto, would
say it was proper to foresee.”
In McLoughlin v. O’Brian [1983] AC 410, 420 Lord Wilberforce
after referring to Lord Atkin’s celebrated dictum in Donoghue v. Stevenson
continued:
“This is saying that foreseeability must be accompanied and limited by
the law’s judgment as to persons who ought, according to its standards
of value or justice, to have been in contemplation. Foreseeability,
which involves a hypothetical person, looking with hindsight at an
event which has occurred, is a formula adopted by English law, not
merely for defining, but also for limiting, the persons to whom duty
may be owed, and the consequences for which an actor may be held
responsible.”
This statement, following as it did immediately after the reference to
Donoghue v. Stevenson, was clearly intended to apply to foreseeability in
– 15 –
negligence generally and not only to cases involving nervous shock to a
bystander. Lord Bridge of Harwich said, at p. 432:
“Then, here comes the all-important question. Given the fact of the
plaintiffs psychiatric illness caused by the defendant’s negligence in
killing or physically injuring another, was the chain of causation from
the one event to the other, considered ex post facto in the light of all
that has happened, ‘reasonably foreseeable’ by the ‘reasonable man’?”
Although Lord Bridge posed the question in the context of psychiatric
illness suffered by a bystander he said nothing to suggest that ex post facto
consideration was peculiar to such a situation.
The appellant’s argument was that if the respondent had considered the
matter immediately before impact he should have foreseen that a serious
accident was likely to occur. The difficulty about this argument is that it
appears to ignore reality. The question ceases to be whether it is foreseeable
that a reasonably robust person would have suffered psychiatric illness as a
result of what actually happened and becomes instead whether it is foreseeable
that such a person would have suffered psychiatric illness as a result of what
might have happened but did not in fact do so. In this context I cannot do
better than quote the following words of Windeyer J. in Mount Isa Mines Ltd
v. Pusey 125 C.L.R. 383. 401:
“… the suggestion that because the plaintiff could have had damages
if he had suffered a different kind of harm he can now have damages
for the harm he actually suffered calls to mind the ‘imaginary necktie’
and Professor Goodhart’s vigorous comments.”
My Lords I have no hesitation in adopting the approach of Lord
Wilberforce (supra) and in concluding that foreseeability whether of danger
or of injury likely to be suffered necessarily involves consideration of events
as they have actually occurred.
Against this background I now turn to consider whether it was
foreseeable that the appellant would have suffered some nervous shock with
consequential physical injury as a result of this accident. In all the reported
cases in which a plaintiff has recovered damages for nervous shock the
causative event has been of a dramatic and horrifying nature. In Dulieu v.
White & Sons [1901] 2 KB 669 the plaintiff was assumed to have reasonable
apprehension of immediate bodily hurt when the pair-horse van was driven
into the bar where she was working. In Hambrook v. Stokes Brothers. [1925]
1 K.B. 141 the plaintiff saw a run-away lorry heading in the direction of her
children and then discovered that it had injured one of them. In Attia v.
British Gas Plc [1988] 1 Q.B. 304 a woman saw her house and all her
possessions therein go up in flames. In McLoughlin v. O’Brian [1983] A.C.
410 a mother found her injured husband and children in a terrible state in
– 16 –
hospital. In that case Lord Bridge of Harwich pointed out. at p.433. that the
legal profession well understood that acute emotional trauma could well cause
a psychiatric illness. In Chadwick v. British Railways Board [1967] 1 W.L.R.
912 a volunteer rescuer at the scene of the Lewisham railway disaster
witnessed horrific scenes during the course of his heroic work. In Mount Isa
Mines Ltd v. Pusey 125 C.L.R. 383 the rescuer was faced with a horrifying
sight of his horribly burnt work mate and in Jaensch v. Coffey 54 A.L.R. 417
a wife saw her husband after an accident in circumstances in which it was
thought that he would not survive. There can be little doubt that in all these
cases the plaintiff suffered the acute emotional trauma referred to by Lord
Bridge of Harwich (supra). In marked contrast was the unreported Court of
Appeal case of Nicholls v. Rushton (unreported) 29 april 1992: Court of
Appeal (Civil Division) Transcript No. 0401 of 1992 in which the plaintiff had
been driving a car involved in a collision. As in this appeal she suffered no
physical injury and was able to drive away after the accident. She sought
damages for severe shock and shaking up but her claim was dismissed by the
Court of Appeal.
On no view could it here be suggested that the appellant suffered an
acute emotional trauma. Otton J. found that the collision was one of moderate
severity. However neither the plaintiff nor the occupants of the other car
were injured. The appellant suffered no bruises from his seat belt and did not
suggest that he was at any time in fear for his own safety or that of the
occupants of the other car. He was able to write down the name and address
of the respondent, to telephone his wife quite normally and then drive home.
His car sustained damage which resulted in it being written off by his insurers
but it appears that it was on the ground of economics due to its age and small
value rather than because of the severity of the damage. This case is
accordingly far removed from those cases in which foreseeability of nervous
shock has been established. A motor car collision in which the only damage
is to the vehicles involved neither of which even leave the road is not an event
which could normally be expected to produce nervous shock with
consequential psychiatric illness to one or more of the occupants. I entirely
agree with the views of Ralph Gibson and Hoffmann L.JJ. in the Court of
Appeal [1994] 4 All E.R. 522, at pp. 544g and 552h – 553c respectively to the
effect that it was not reasonably foreseeable that the appellant would suffer
nervous shock as a result of this accident. The appeal must therefore be
dismissed.
LORD BROWNE-WILKINSON
My Lords,
I have had the advantage of reading in draft the speech prepared by my
noble and learned friend Lord Lloyd of Berwick. I too would allow the
– 17 –
appeal for the reasons which he gives. As your Lordships are not agreed in
the result and we are differing from the conclusions reached by the Court of
Appeal, I propose to add a few words of my own.
In my view this case is bedeviled by the use of the description
“nervous shock” to describe any injury suffered otherwise than by a chain of
demonstrably physical causes. The law has long recognised tangible physical
damage to the body of the plaintiff as a head of damage. Medical science has
now advanced so far that the process whereby an impact causing direct
physical injury to one limb or organ of the body can be demonstrated to have
caused consequential physical damage to another limb or organ. Lawyers can
readily accept that such consequential, physical damage is the consequence of
the original impact. Hence there is a willingness to accept that all such
tangible physical damage is foreseeable.
Medical science has also demonstrated that there are other injuries the
body can suffer as a consequence of an accident, such injuries not being
demonstrably attributable directly to physical injury to the plaintiff. Injuries
of this type may take two forms. First, physical illness or injury not brought
about by a chain of demonstrable physical events but by mental or emotional
stresses i.e. by a psychiatric route. Examples are a heart attack or a
miscarriage produced by shock. In this case, the end product is a physical
condition although it has been brought about by a process which is not
demonstrably a physical one but lies in the mental or nervous system. The
second form is psychiatric illness itself which is brought about by mental or
emotional stresses i.e. by a psychiatric route. Because medical science has so
far been less successful in demonstrating the nature of psychiatric illness and
the processes whereby it is brought about by the psychiatric route, the courts
have been more reluctant to accept the risk of such illness as being
foreseeable. But since the decision of this House in McLoughlin v. O’Brian
[1983] AC 410 it has been established that, in certain circumstances, a
defendant can be liable for illness or injury, whether psychiatric or physical,
produced in a plaintiff by purely psychiatric processes, without any direct
physical impact on, or injury to, the limbs or organs of the plaintiff. That
case also establishes that such a process is, in certain circumstances, to be
treated as foreseeable by a defendant.
It follows that in the present case the fact that the plaintiff suffered no
tangible physical injury is irrelevant to the question whether or not he is
entitled to recover damages for the recrudescence of his illness. On the
judge’s findings, the plaintiff suffered injury (the recrudescence of his illness)
by the psychiatric route i.e. by reason of shock exacerbating his condition.
The question, therefore, is whether a driver of a car should reasonably foresee
that a person involved in an accident may suffer psychiatric injury of some
kind (whether or not accompanied by physical injury). I have no doubt that
he should. It is not physical injury alone which causes illness or injury:
physical or psychiatric illness occurs quite apart from physical injury. Thus
in Dulieu v. White and Sons [1901] 2 KB 669 the pregnant plaintiff behind
– 18 –
the bar received no physical injury when the defendant’s pair-horse van
arrived in the bar from the highway. Her only allegation was that the nervous
shock caused her to give birth prematurely i.e. she alleged physical injury by
the psychiatric route. It was held that she was entitled to recover: nobody
has since suggested that the case was not rightly decided.
In Currie v. Wardrop 1927 S.C. 538 the plaintiff was walking arm in
arm with her fiancé when they were both knocked down by a bus. The fiancé
was badly injured but the plaintiff suffered no physical injury. She claimed
damages for shock, such shock being in part due to fear for herself and in part
to fear for her fiancé. The issue was whether the jury’s award of damages for
shock due to her fear for herself “aggravated by anxiety for the safety of her
companion” could stand, the law of Scotland at that date not allowing damages
for shock caused by anxiety for others. Although the Court of Session was
divided on whether the award could stand, all the members were of one mind
that the pursuer was entitled to damages for nervous shock caused by her fear
for her own safety. See also Brown v. Glasgow Corporation 1922 S.C. 527.
A consultation paper (No. 137 of 1995) entitled Liability for psychiatric illness
issued by the Law Commission since the conclusion of the argument before
your Lordships contains material showing that psychiatric illness is a frequent
consequence of involvement in a road accident and that participants in a
traumatic event are more likely to suffer such illness than those who merely
witness or hear of it: see particularly paragraphs 3.11 and 3.13.
The law has therefore been established both in England and Scotland
for many years that a plaintiff who is a participant in an accident is entitled
to recover damages for shock even though he or she has not suffered any
tangible physical injury. I can see no good reason to modify this law. The
analogy drawn with the more recent development in the law permitting a
plaintiff, not a participant in an accident, to recover damages for nervous
shock flowing from fear for the safety of others or from the trauma of
witnessing the event does not seem to me to touch on the case. A non-
participant plaintiff is outside the ordinary area within which the defendant can
foresee causing damage. The only method whereby a non participant plaintiff
can establish that the defendant should have foreseen damage to the plaintiff
is by showing that he ought to have foreseen nervous shock. As Lord Lloyd
of Berwick has demonstrated, the law as laid down in relation to these non-
participant claims for nervous shock damages has not been applied to claims
for such damages made by a plaintiff who was himself involved in the
accident. In this connection, it is noteworthy that in Bourhill v. Young [1943]
A.C. 92, 120 Lord Porter, whilst dismissing the pursuer’s claim in that case,
referred to Currie v. Wardrop 1927 S.C. 538 and said “Undoubtedly, there
was in that case a duty to the pursuer (the woman) and a breach of that duty
…” It is clear that Lord Porter at least was drawing a distinction between
claims for nervous shock made by a participant in the accident on the one
hand and by a non-participant on the other.
– 19 –
I am therefore of opinion that any driver of a car should reasonably
foresee that, if he drives carelessly, he will be liable to cause injury, either
physical or psychiatric or both, to other users of the highway who become
involved in an accident. Therefore he owes to such persons a duty of care to
avoid such injury. In the present case the defendant could not foresee the
exact type of psychiatric damage in fact suffered by the plaintiff who, due to
his M.E., was “an eggshell personality”. But that is of no significance since
the defendant did owe a duty of care to prevent foreseeable damage, including
psychiatric damage. Once such duty of care is established, the defendant must
take the plaintiff as he finds him.
Finally I would endorse Lord Lloyd’s remarks about the dangers of the
court seeking to draw hard and fast lines between physical illness and its
causes on the one hand and psychiatric illness and its causes on the other.
Although medical science has not as yet progressed very far in elucidating the
processes whereby psychiatric disorders come about, recent developments
suggest a much closer relationship between physical and mental processes than
had previously been thought. There is a substantial body of informed medical
opinion which attributes some mental illness to physical causes such as
chemical or hormonal imbalance. In the present case, for example, although
all but one of the distinguished doctors who gave evidence were agreed that
there was indeed an illness (however mysterious) called M.E. and that the
plaintiff suffered from it, they had differing views as to its causes. One
thought M.E. was linked to viral infection (physical) and stress
(psychological): another to neuroendocrine disturbance (physical) and
psychiatric disorder. In cases where distinguished doctors take differing views
as to the aetiology of an illness it obviously presents great problems for the
court to resolve what was the cause of the recrudescence of such an illness.
For the courts to impose different criteria for liability depending upon whether
the injury is “physical” or “psychiatric” is likely to lead to a growing
complication in straight forward personal injury cases. In my judgment, the
law will be more effective if it accepts that the result of being involved in a
collision may include both physical and psychiatric damage.
I would therefore allow the appeal and remit the issue of causation (if
not agreed) to the Court of Appeal for its determination.
LORD LLOYD OF BERWICK
My Lords,
Introduction
This is the fourth occasion on which the House has been called on to
consider “nervous shock”. On the three previous occasions, Bourhill v. Young
– 20 –
[1943] AC 92, McLoughlin v. O’Brian [1983] AC 410 and Alcock v. Chief
Constable of South Yorkshire Police [1992] 1 AC 310, the plaintiffs were,
in each case, outside the range of foreseeable physical injury. Thus, in
Bourhill v. Young the plaintiff was “not in any way physically involved in the
collision”: see per Lord Russell of Killowen, at p. 101. The defendant’s
motor cycle was already some 45 feet past the plaintiff when he collided with
a motor car, and was killed. The plaintiff was on the far side of a tramcar,
and so shielded from the physical consequences of the accident. If, therefore,
liability was to be established, it could only be on the basis that the defendant
should have foreseen injury by nervous shock. The plaintiff did, in fact,
suffer injury to her health as a result of the shock which she sustained. But
as the defendant could not reasonably foresee that she would suffer injury by
shock, it was held that she could not recover.
Likewise, in McLoughlin v. O’Brian, the plaintiff was at home two
miles away when her husband and three children were involved in a road
accident. When she reached the hospital about two hours later, she heard that
her daughter had been killed and saw the extent of her son’s injuries. The
shock which she suffered resulted in psychiatric illness. It was held by this
House, reversing the Court of Appeal and the trial judge, that the plaintiff
could recover damages, since it was reasonably foreseeable that, unlike Mrs.
Bourhill, she would suffer nervous shock as a result of injuries to her family.
Alcock v. Chief Constable of South Yorkshire Police was the case
arising out of the disaster at the Hillsborough football stadium. A number of
plaintiffs brought actions for damages for nervous shock. Two of the
plaintiffs were present at the stadium. Others saw the disaster on television.
They all failed either because the relationship between the plaintiffs and the
victims was not sufficiently close, or because watching the scene on television
did not create the necessary degree of proximity.
In all these cases the plaintiff was the secondary victim of the
defendant’s negligence. He or she was in the position of a spectator or
bystander. In the present case, by contrast, the plaintiff was a participant.
He was himself directly involved in the accident, and well within the range of
foreseeable physical injury. He was the primary victim. This is thus the first
occasion on which your Lordships have had to decide whether, in such a case,
the foreseeability of physical injury is enough to enable the plaintiff to recover
damages for nervous shock.
The factual distinction between primary and secondary victims of an
accident is obvious and of long-standing. It was recognised by Lord Russell
of Killowen in Bourhill v. Young, when he pointed out that Mrs. Bourhill was
not physically involved in the collision. In Alcock’s case [1992] 1 AC 310
Lord Keith of Kinkel said, at p. 396, that in the type of case which was then
before the House, injury by psychiatric illness “is a secondary sort of injury
brought about by the infliction of physical injury, or the risk of physical
– 21 –
injury, upon another person.” In the same case. Lord Oliver of Aylmerton
said, at p. 407, of cases in which damages are claimed for nervous shock:
“Broadly they divide into two categories, that is to say, those cases in
which the injured plaintiff was involved, either mediately, or
immediately, as a participant, and those in which the plaintiff was no
more than the passive and unwilling witness of injury caused to
others.”
Later in the same speech, at pp. 410-411, he referred to those who are
involved in an accident as the primary victims, and to those who are not
directly involved, but who suffer from what they see or hear, as the secondary
victims. This is, in my opinion, the most convenient and appropriate
terminology.
Though the distinction between primary and secondary victims is a
factual one, it has, as will be seen, important legal consequences. So the
classification of all nervous shock cases under the same head may be
misleading. In Alcock’s case Lord Oliver said, at p. 407:
“It is customary to classify cases in which damages are claimed for
injury occasioned in this way under a single generic label as cases of
‘liability for nervous shock’. This may be convenient but in fact the
label is misleading if and to the extent that it is assumed to lead to a
conclusion that they have more in common than the fact of similarity
of the medium through which the injury is sustained – that of an assault
upon the nervous system of the plaintiff through witnessing or taking
part in an event – and that they will, on account of this factor, provide
a single common test for the circumstances which give rise to a duty
of care.”
It is of cardinal importance in the present case to bear that warning in mind.
Although the plaintiff was, as I have said, the primary victim, the
peculiarity of the present case is that, by good fortune, he suffered no broken
bones and no bruising; indeed he had no external physical injury of any kind.
But as a direct result of the accident he suffered a recrudescence of an illness
or condition known variously as M.E., C.F.S. or P.V.F.S., from which he
had previously suffered in a mild form on sporadic occasions, but which,
since the accident, has become an illness of “chronic intensity and
permanency”.
The Facts
The facts, as found by the judge, are that the plaintiff, a schoolteacher
by profession, was driving at approximately 30 miles per hour when suddenly,
without warning, the defendant, coming in the opposition direction, turned
right across the white line. The plaintiff braked hard, but the two vehicles
– 22 –
were so close that he could not avoid a collision. The impact was severe
enough to cause considerable damage to both vehicles. Nevertheless, the
plaintiff was able to drive his car home. The judge said:
“I find on the balance of probabilities that there was a collision of
moderate severity. It must have been a frightening experience for Mr.
Page and I have no doubt that he did suffer nervous shock in the broad
sense of the word.”
Three hours later the plaintiff felt exhausted. He took to his bed. The
exhaustion continued. The plaintiff has never fully recovered, and has not
worked since.
The judge heard a great deal of medical evidence over many days as
to whether an illness or condition known as M.E. exists at all. and if so how
it is caused, whether the plaintiff was suffering from the illness before the
accident, and whether and to what extent his present condition is attributable
to the accident.
Having heard all this evidence, the judge made the tindings to which
I have already briefly referred. In particular, he found that, despite scepticism
on the part of some of the doctors, and it may be members of the public,
M.E. is a genuine illness. He specifically rejected any suggestion that the
plaintiff is guilty of malingering or hysteria.
The correct approach
Against that factual background, the judge dealt with the law quite
shortly. He referred to Malcolm v. Broadhurst [1970] 3 A.E.R. 508, a
decision of Geoffrey Lane J. In that case, a woman suffered head injuries in
a car accident, as a result of which a pre-existing nervous disturbance was
exacerbated. Geoffrey Lane J. said, at p. 511:
“The defendant must take the wife as he finds her and there is no
difference in principle between an egg-shell skull and an egg-shell
personality: Love v. Port of London Authority [1959] 2 Lloyd’s Rep.
541. Exacerbation of her nervous depression was a readily foreseeable
consequence of injuring her … I do not derive any assistance from
the ‘nervous shock’ cases; they are concerned with the effect of the
sudden traumatic effect of witnessing or hearing of an accident and
their somewhat special rules do not seem to me to be applicable to the
present circumstances.”
Otton J. adopted the same line of reasoning.
“Once it is established that C.F.S. exists and that a relapse or
recrudescence can be triggered by the trauma of an accident and that
nervous shock was suffered by the plaintiff who is actually involved
– 23 –
in the accident, it becomes a foreseeable consequence. The nervous
shock cases relied on by Mr. Priest, in my judgment, have no
relevance. The plaintiff was not a spectator of the accident who
suffered shock from what he witnessed happening to another. He was
directly involved and suffered the shock directly on experiencing the
accident. The remoteness argument, therefore, must be rejected.”
Since physical injury to the plaintiff was clearly foreseeable, although it did
not in the event occur, the judge did not consider, as a separate question,
whether the defendant should have foreseen injury by nervous shock.
When the case got to the Court of Appeal [1994] 4 All E.R. 522, the
approach became more complicated. Mr. Priest’s argument, as summarised
by Ralph Gibson L.J., at p. 540, was follows:
“If a plaintiff establishes that he has suffered some physical injury, he
may advance a claim in respect of a recognised psychiatric illness
which has resulted from that physical injury. If a plaintiff has suffered
no physical injury, and his only injuries are a recognised form of
psychiatric illness, he may succeed if the court decides that psychiatric
illness was foreseeable in the case of a person of reasonable fortitude.
There is no difference in this respect, it was submitted, between a
bystander and a person directly involved in an event, except that the
consequences are more likely to be foreseeable in the case of the latter
than in the case of the former.”
The Court of Appeal accepted Mr. Priest’s argument. “The fact”, said Ralph
Gibson L.J., at p. 544, “that this plaintiff was directly involved does not, in
my judgment, render irrelevant the question whether injury by nervous shock
was reasonably foreseeable as a result of what happened to him in the
accident.” The Lord Justice went on hold that injury by nervous shock was
not foreseeable in a person of ordinary fortitude as a result of what happened
to the plaintiff. In reaching this conclusion he was much influenced, as is
apparent from his judgment, by the fact that the plaintiff suffered no physical
injury.
Hoffmann L.J. (p. 549) put the point with his usual epigrammatic
force. In cases of nervous shock, he said, “foreseeability of physical injury
is neither necessary nor sufficient”. I agree that it is not necessary, as
Hambrook v. Stokes Brothers. [1925] 1 K.B. 141, McLoughlin v. O’Brian
[1983] AC 410 and numerous other cases show. But is it not sufficient?
Hoffmann L.J. considered that if one part of his apophthegm was true, the
other must also be true. But I am not sure that this follows.
If as in Malcolm v. Broadhurst [1970] 3 All E.R. 508, the plaintiff had
suffered a head injury or a broken leg, or significant bruising, with
consequential psychiatric illness, it is very doubtful whether the case would
ever have reached the Court of Appeal at all. It would be like many other
– 24 –
personal injury cases which are tried or settled every day in the High Court
and the County Courts. Of course, it would have been necessary to prove that
the psychiatric illness was genuine, arid that it was caused by the accident.
But nobody would have stopped to consider the foreseeability of nervous
stock. Nobody would have referred to Bourhill v. Young [1943] AC 92.
We now know that the plaintiff escaped without external injury. Can it be the
law that this makes all the difference? Can it be the law that the fortuitous
absence of foreseeable physical injury means that a different test has to be
applied? Is it to become necessary, in ordinary personal injury claims, where
the plaintiff is the primary victim, for the court to concern itself with different
“kinds” of injury?
Suppose, in the present case, the plaintiff had been accompanied by his
wife, just recovering from a depressive illness, and that she had suffered a
cracked rib, followed by an onset of psychiatric illness. Clearly, she would
have recovered damages, including damages for her illness, since it is
conceded that the defendant owed the occupants of the car a duty not to cause
physical harm. Why should it be necessary to ask a different question, or
apply a different test, in the case of the plaintiff? Why should it make any
difference that the physical illness that the plaintiff undoubtedly suffered as a
result of the accident operated through the medium of the mind, or of the
nervous system, without physical injury? If he had suffered a heart attack, it
cannot be doubted that he would have recovered damages for pain and
suffering, even though he suffered no broken bones. It would have been no
answer that he had a weak heart.
I must say at once that I prefer the simplicity of the judge’s approach
to what, with respect, seems to be an unnecessary complication introduced by
the Court of Appeal. Foreseeability of psychiatric injury remains a crucial
ingredient when the plaintiff is the secondary victim, for the very reason that
the secondary victim is almost always outside the area of physical impact, and
therefore outside the range of foreseeable physical injury. But where the
plaintiff is the primary victim of the defendant’s negligence, the nervous shock
cases, by which I mean the cases following on from Bourhill v. Young, are
not in point. Since the defendant was admittedly under a duty of care not to
cause the plaintiff foreseeable physical injury, it was unnecessary to ask
whether he was under a separate duty of care not to cause foreseeable
psychiatric injury.
Apart from its simplicity, Otton J.’s approach has other attractions.
As medical science advances, it is important that the law should not be seen
to limp too far behind: see Mount Isa Mines Ltd. v. Pusey (1970) 125 C.L.R.
383 per Windeyer J. at 395. As long ago as 1901 the courts were already
beginning to become aware that there may be no hard and fast line between
physical and psychiatric injury, such as had hitherto been supposed. In Dulieu
v. White & Sons [1901] 2 KB 669, Kennedy J. said, at p. 677:
– 25 –
“For my own part, I should not like to assume it to be scientifically
true that a nervous shock which causes serious bodily illness is not
actually accompanied by physical injury, although it may be
impossible, or at least difficult, to detect the injury at the time in the
living subject. I should not be surprised if the surgeon or the
physiologist told us that nervous shock is or may be in itself an
injurious affection of the physical organism.”
In Bourhill v. Young [1943] AC 92 Lord Macmillan said, at p. 103:
“The crude view that the law should take cognisance only of physical
injury resulting from actual impact has been discarded, and it is now
well recognised that an action will lie for injury by shock sustained
through the medium of the eye or ear without direct contact. The
distinction between mental shock and bodily injury was never a
scientific one, for mental shock is presumably in all cases the result of,
or at least accompanied by, some physical disturbance in the sufferer’s
system. And a mental shock may have consequences more serious
than those resulting from physical impact.”
Likewise, in more recent times, Lord Bridge of Harwich drew attention to the
inter-relation of physical and psychiatric injury in McLoughlin v. O’Brian
[19831 AC 410, 433:
“No judge who has spent any length of time trying personal injury
claims in recent years would doubt that physical injuries can give rise
not only to organic but also to psychiatric disorders. The sufferings
of the patient from the latter are no less real and frequently no less
painful and disabling than from the former. Likewise, I would
suppose that the legal profession well understands that an acute
emotional trauma, like a physical trauma, can well cause a psychiatric
illness in a wide range of circumstances and in a wide range of
individuals whom it would be wrong to regard as having any abnormal
psychological make-up. It is in comparatively recent times that these
insights have come to be generally accepted by the judiciary. It is
only by giving effect to these insights in the developing law of
negligence that we can do justice to an important, though no doubt
small, class of plaintiffs whose genuine psychiatric illnesses are caused
by negligent defendants.”
In an age when medical knowledge is expanding fast, and psychiatric
knowledge with it, it would not be sensible to commit the law to a distinction
between physical and psychiatric injury, which may already seem somewhat
artificial, and may soon be altogether outmoded. Nothing will be gained by
treating them as different “kinds” of personal injury, so as to require the
application of different tests in law.
– 26 –
My noble and learned friend Lord Keith of Kinkel has drawn attention
to an observation of Lord Wright in Bourhill v. Young [1943] AC 92, 110,
that in nervous shock cases the circumstances of the accident or event must
be viewed ex post facto. There are similar observations by Lord Wilberforce
and Lord Bridge in McLoughlin v. O’Brian [1983] AC 410, at pp. 420 and
432. This makes sense, as Lord Keith points out, where the plaintiff is a
secondary victim. For if you do not know the outcome of the accident or
event, it is impossible to say whether the defendant should have foreseen
injury by shock. It is necessary to take account of what happened in order to
apply the test of reasonable foreseeability at all. But it makes no sense in the
case of a primary victim. Liability for physical injury depends on what was
reasonably foreseeable by the defendant before the event. It could not be right
that a negligent defendant should escape liability for psychiatric injury just
because, though serious physical injury was foreseeable, it did not in fact
transpire. Such a result in the case of a primary victim is neither necessary,
logical nor just. To introduce hindsight into the trial of an ordinary running-
down action would do the law no service.
Are there any disadvantages in taking the simple approach adopted by
Otton J.? It may be said that it would open the door too wide, and encourage
bogus claims. As for opening the door, this is a very important consideration
in claims by secondary victims. It is for this reason that the courts have, as
a matter of policy, rightly insisted on a number of control mechanisms.
Otherwise, a negligent defendant might find himself being made liable to all
the world. Thus in the case of secondary victims, foreseeability of injury by
shock is not enough. The law also requires a degree of proximity: see
Alcock’s case [1992] 1 AC 310 per Lord Keith of Kinkel at p. 396, and the
illuminating judgment of Stuart-Smith L.J. in McFarlane v. E.E. Caledonia
Ltd. [1994] 2 All ER 1, 14. This means not only proximity to the event in
time and space, but also proximity of relationship between the primary victim
and the secondary victim. A further control mechanism is that the secondary
victim will only recover damages for nervous shock if the defendant should
have foreseen injury by shock to a person of normal fortitude or “ordinary
phlegm”.
None of these mechanisms are required in the case of a primary
victim. Since liability depends on foreseeability of physical injury, there
could be no question of the defendant finding himself liable to all the world.
Proximity of relationship cannot arise, and proximity in time and space goes
without saying.
Nor in the case of a primary victim is it appropriate to ask whether he
is a person of “ordinary phlegm”. In the case of physical injury there is no
such requirement. The negligent defendant, or more usually his insurer, takes
his victim as he finds him. The same should apply in the case of psychiatric
injury. There is no difference in principle, as Geoffrey Lane J. pointed out
in Malcolm v. Broadhurst [1970] 3 All E.R. 508. between an eggshell skull
and an eggshell personality. Since the number of potential claimants is limited
– 27 –
by the nature of the case, there is no need to impose any further limit by
reference to a person of ordinary phlegm. Nor can I see any justification for
doing so.
As for bogus claims, it is sometimes said that if the law were such as
I believe it to be, the plaintiff would be able to recover damages for a fright.
This is not so. Shock by itself is not the subject of compensation, any more
than fear or grief or any other human emotion occasioned by the defendant’s
negligent conduct. It is only when shock is followed by recognisable
psychiatric illness that the defendant may be held liable.
There is another limiting factor. Before a defendant can be held liable
for psychiatric injury suffered by a primary victim, he must at least have
foreseen the risk of physical injury. So that if, to take the example given by
my noble and learned friend Lord Jauncey of Tullichettle, the defendant
bumped his neighbour’s car while parking in the street, in circumstances in
which he could not reasonably foresee that the occupant would suffer any
physical injury at all, or suffer injury so trivial as not to found an action in
ton. there could be no question of his being held liable for the onset of
hysteria. Since he could not reasonably foresee any injury, physical or
psychiatric, he would owe the plaintiff no duty of care. That example is.
however, very far removed from the present.
So I do not foresee any great increase in unmeritorious claims. The
court will, as ever, have to be vigilant to discern genuine shock resulting in
recognised psychiatric illness. But there is nothing new in that. The
floodgates argument has made regular appearances in this field, ever since it
first appeared in Victorian Railways Commissioners v. Coultas (1888) 13 App.
Cas. 222. I do not regard it as a serious obstacle here.
My provisional conclusion, therefore, is that Otton J.’s approach was
correct. The test in every case ought to be whether the defendant can
reasonably foresee that his conduct will expose the plaintiff to risk of personal
injury. If so, then he comes under a duty of care to that plaintiff. If a
working definition of “personal injury” is needed, it can be found in section
38(1) of the Limitation Act 1980:
‘”Personal injuries’ includes any disease and any impairment of a
person’s physical or mental condition …”
There are numerous other statutory definitions to the same effect. In the case
of a secondary victim, the question will usually turn on whether the
foreseeable injury is psychiatric, for the reasons already explained. In the
case of a primary victim the question will almost always turn on whether the
foreseeable injury is physical. But it is the same test in both cases, with
different applications. There is no justification for regarding physical and
psychiatric injury as different “kinds” of injury. Once it is established that the
defendant is under a duty of care to avoid causing personal injury to the
– 28 –
plaintiff, it matters not whether the injury in fact sustained is physical,
psychiatric or both. The utility of a single test is most apparent in those cases
such as Schneider v. Eisovitch [1962] Q.B. 430, Malcolm v. Broadhurst
[1970] 3 All E.R. 508 and Brice v. Brown [1984] 1 All E.R. 997, where the
plaintiff is both primary and secondary victim of the same accident.
Applying that test in the present case, it was enough to ask whether the
defendant should have reasonably foreseen that the plaintiff might suffer
physical injury as a result of the defendant’s negligence, so as to bring him
within the range of the defendant’s duty of care. It was unnecessary to ask,
as a separate question, whether the defendant should reasonably have foreseen
injury by shock; and it is irrelevant that the plaintiff did not, in fact, suffer
any external physical injury.
The authorities
I turn now to the authorities to see if there is anything which supports
the contrary view taken by the Court of Appeal. All the dicta which appear
to support the contrary view are to be found in cases where the plaintiff was
the secondary victim, and they almost all go back to an observation of
Denning L.J. in King v. Phillips [1953] 1 Q.B. 429, 441, an observation
which has been very frequently repeated, but has often, I suspect, been
misunderstood.
Before coming to King v. Phillips, however, it is first necessary to
look at Victorian Railways Commissioners v. Coultas (1888) 13 App. Cas. 222
and Dulieu v. White & Sons [1901] 2 KB 669.
In the former case, the defendant’s servant permitted the plaintiff to
drive across a level crossing in her buggy, when a train was approaching.
There was no actual impact, but a very near miss. The plaintiff suffered
severe nervous shock, which in turn produced illness and a miscarriage. She
recovered damages for negligence at first instance, but the decision was
reversed by the Privy Council, on the ground that the damage was too remote.
The decision has long since been disapproved. Today there can be no doubt
that the plaintiff would have kept her damages, but not, I suggest, because the
defendant’s gatekeeper should have foreseen injury by shock, but on the
straightforward ground that he should have foreseen that a collision might
result in the plaintiff’s injury or death.
In Dulieu v. White & Sons, the Divisional Court declined to follow
Victorian Railways Commissioners v. Coultas, preferring instead to follow two
decisions of the Irish Courts. The facts of that case were that the defendant’s
horse-van was driven so negligently that it ended up in a public house where
the plaintiff was serving behind the bar. She suffered no impact, but
according to her statement of claim the shock resulted in serious illness, and
the premature birth of her child. It was held that the statement of claim
– 29 –
disclosed a good cause of action. In the course of his judgment Kennedy J.
suggested that recovery for nervous shock should be limited to cases in which
the plaintiff fears for his own safety. He said, at p. 675:
“The shock, where it operates through the mind, must be a shock
which arises from a reasonable fear of immediate personal injury to
oneself.”
It is now clear that this proposed limitation was too restrictive. But it has
never, until now, been suggested that the decision depended in any way on
foreseeability of injury by shock, as distinct from the ordinary duty of care
owed to lawful users of the highway.
In Hambrook v. Stokes Brothers [1925] 1 K.B. 141, the Court of
Appeal by a majority disapproved Kennedy J.’s dictum in Dulieu v. White.
It was held that the plaintiff was entitled to recover damages under the Fatal
Accidents Act for the death of his wife, resulting from nervous shock. Her
shock was caused by fear, not for her own safety, but for her children’s
safety, not her own. She was thus the secondary victim of the defendant’s
negligence. It went without saying that if the shock had been brought about
by fear for her own safety, she would have recovered. Thus, Bankes L.J.
said, at p. 151:
“Upon the authorities as they stand, the defendant ought to have
anticipated that if his lorry ran away down this narrow street, it might
terrify some woman to such an extent, through fear of some immediate
bodily injury to herself, that she would receive such a mental shock as
would injure her health.”
Atkin L. J. said, at p. 158:
“In my opinion it is not necessary to treat this cause of action as based
upon a duty to take reasonable care to avoid administering a shock to
wayfarers. The cause of action, as I have said, appears to be created
by breach of the ordinary duty to take reasonable care to avoid
inflicting personal injuries, followed by damage, even though the type
of damage may be unexpected – namely, shock. The questions appears
to be as to the extent of the duty, and not as to remoteness of
damage.”
After considering another way of putting the matter, Atkin L.J. added, at p.
159:
“It may be, however, that there is not any practical difference between
the two ways of putting it; for the degree of care to be exercised by
the owner of the vehicle would still in practice be measured by the
standard of care necessary to avoid the ordinary form of personal
injuries.”
– 30 –
Sargant L.J. dissented. He would not have extended liability for
nervous shock beyond the area covered by Kennedy J. ‘s dictum, that is to say,
cases where the plaintiff fears for his own safety. But that is the very area
with which we are concerned in the present case. The following passage, at
pp. 161-162, is thus directly relevant:
“It is no doubt more difficult to prove that physical injury results from
nervous shock than from direct impact. But when once this difficulty
of proof is overcome, I cannot see why a negligence which so nearly
causes direct impact as to cause physical injury by nervous shock is a
more remote or less natural cause of damage than a negligence causing
actual physical impact. Or, to put it more precisely, as a matter of
duty which is owed to the plaintiff, and the neglect of which has
caused damage, the duty of the defendant so to control his vehicle as
to avoid causing physical injury to those on or near the highway,
including the plaintiff, can hardly be limited to actual physical impact
on the plaintiff (though this is in fact the result of the American cases),
but must logically include such an immediate threat of impact on the
plaintiff as to produce physical injury to him, or her. through the
nervous system. There seems to me to be no magic in actual personal
contact. A threatened contact producing physical results should be an
equivalent.”
There is no support in any of the judgments for the view that where the
plaintiff is the primary victim of the defendant’s negligence, liability for
nervous shock depends on the foreseeability of injury by nervous shock.
I now come to King v. Phillips [1953] 1 Q.B. 429, the case of the
“unimaginative taxi cab driver”, as it was called by Professor A. L. Goodhart
in (1953) 69 L.Q.R. 347. In the course of backing his taxi without looking,
the defendant injured a small boy, and damaged his tricycle. His mother was
at a window, about 80 yards away, when she heard a scream. She saw the
taxi backing slowly onto the tricycle, but she could not see her son. She
suffered severe shock. She brought an action on behalf of her son as the
primary victim, and also on her own behalf. McNair J. found in favour of
the son. He was awarded £5. for his personal injuries and £10. for his
tricycle. But the mother’s action failed, and her appeal was dismissed.
It seems clear enough that the result nowadays would have been
different. In particular, the ground on which Denning L.J. decided the case,
namely, that because the taxi was backing so slowly, the damage was too
remote, is indefensible. Professor Goodhart’s caustic comment seems well
justified. But the leading judgment given by Singleton L.J. is instructive.
After referring to Bourhill v. Young, he said, at p. 437:
“I find it difficult to draw a distinction between damages from physical
injury and damage from shock; prima facie, one would think that, if
a driver should reasonably have foreseen either, and damage resulted
– 31 –
from the one or from the other, the plaintiff would be entitled to
succeed.”
Denning L.J. agreed. He said, at p. 439:
“I cannot see why the duty of a driver should differ according to the
nature of the injury. … If he drives negligently with the result that
a bystander is injured, then his breach of duty is the same, no matter
whether the injury is a wound or is emotional shock. Only the damage
is different.”
Denning L.J. refused to accept any distinction between physical and emotional
injury. Otherwise, he said, one would be driven to the view that there are
two different torts, one tort when the defendant can foresee physical injury,
and another tort when he can foresee emotional injury. This could not be
right. He said, at p. 440:
“There is one wrong only, the wrong of negligence. I know that
damage to person and damage to property are for historical reasons
regarded as different torts; but that does not apply to physical injury
and emotional injury.”
So far. there is nothing which assists the defendant’s case. Indeed, the
passage from Singleton L.J.’s judgment is strongly against him. But then
comes Denning L.J.’s celebrated dictum at p. 441:
“Howsoever that may be, whether the exemption for shock be based
on want of duty or on remoteness, there can be no doubts that since
Bourhill v. Young [1943] AC 92 that the test for liability for shock
is foreseeability of injury by shock.”
The danger of any good phrase is that it gets repeated so often and applied so
uncritically that in the end it tends to distort the law. Denning L.J.’s dictum
is wrong in two respects. It is both too wide and too narrow. It is too wide
where the plaintiff is the secondary victim, as she was in King v. Phillips.
For subsequent cases have shown that foreseeability of injury by shock is not
the sole test: (see Alcock’s case [1992] 1 AC 310, 396 per Lord Keith of
Kinkel and McFarlane v. E.E. Caledonia Ltd. [1994] 2 All ER 1) The test
is also too narrow, where, as here, the plaintiff is the primary victim. There
is nothing in Bourhill v. Young to displace the ordinary rule that where the
plaintiff is within the range of foreseeable physical injury the defendant must
take his victim as he finds him. The whole point of Bourhill v. Young was
that the plaintiff was not within the range of foreseeable physical injury. She
was not “involved” in the collision. There was, therefore, no way in which
she could recover damages unless she could show that the defendant ought to
have foreseen injury by shock. It is only in that limited sense that it was ever
true to say that liability for shock depends on foreseeability of injury by
– 32 –
shock. The dictum has no application where the plaintiff is the primary victim
of the defendant’s negligence.
Mr. Priest relied heavily on two cases decided by the High Court of
Australia. In the first, Mount Isa Mines Ltd. v. Pusey 125 C.L.R. 383, the
plaintiff went to the rescue of two fellow employees who had been severely
burnt by an electrical short circuit. One of them died the next day. The
plaintiff went on working without any apparent ill consequences. Then about
four weeks later he developed a psychiatric illness described as severe
schizophrenic reaction. The court had no difficulty in holding that the
defendant should have foreseen that a fellow employee might come to the
rescue, and might suffer psychiatric damage. The point in the case, as
appears from the argument at p. 385, and the judgment of Barwick C.J., at
p. 388 and p. 390, turned on the finding of the trial judge that the “specific
psychological reaction” was not foreseeable. It was held by the High Court
that this was irrelevant. It was enough that the class of injury as distinct from
the particular injury was foreseeable. The observation of Windeyer J., at p.
402, to which Lord Keith of Kinkel has referred, must be read in this light.
The purpose of referring to psychiatric injury as a class was not to draw a line
between psychiatric injury on the one hand and physical injury on the other;
but to include within the psychiatric class all forms of psychiatric injury
however rare and unforeseen. It follows that the case does not touch in any
way on the issue in the present case. This is abundantly clear from a passage
in Walsh J.’s judgment at p. 414. Having cited Denning L.J.’s dictum, he
continued:
“It is not here necessary to consider whether or not there are
satisfactory reasons for treating injury by shock as different in kind
from other forms of personal injury. If all personal injuries whether
“mental” or “physical” were to be treated as being of the same kind
then it would be evident in the present case that damage of a
foreseeable kind was suffered. But for the purposes of the present
case the statement in The Wagon Mound (No. 7) [1961] AC 388, 426
that the test of liability for shock is foreseeability of injury by shock
may be accepted.”
The facts of the second Australian case, Jaensch v. Coffey 54 A.L.R.
417 were very similar to those in McLoughlin v. O’Brian. The plaintiff
suffered severe anxiety and depression after seeing her husband in hospital,
shortly after he had been severely injured in a car accident. The High Court
upheld her claim for damages. The only point of interest in the decision, as
appears from the leading judgment of Gibbs C.J. is that the plaintiff was
“exceptionally pre-disposed” to anxiety and depression. Otherwise, all the
case called for was a straightforward application of the principles already well
established in Mount Isa Mines Ltd. v. Pusey and McLoughlin v. O’Brian.
The facts came nowhere near the present case. However, in the course of a
very lengthy judgment Deane J. made a number of observations, two of which
– 33 –
are quoted by Hoffmann L.J. in the Court of Appeal in the present case. He
said, at p. 452:
“One finds in the judgments [in Bourhill v. Young] an implicit (explicit
in the case of Lord Porter, at p. 119) acceptance of a refinement of the
ordinary test of foreseeability of injury which has subsequently
received general acceptance; in the case of mere psychiatric injury, the
requirement of reasonable foreseeability will not be satisfied unless
injury in that particular form, as distinct from personal injury generally
(cf. per Atkin L.J. Hambrook v. Stokes at pp. 157-8 and per Singleton
L.J. King v. Phillips at p. 437), was reasonably foreseeable …”
With great respect, this seems to be a misunderstanding of what Lord Porter
said in Bourhill v. Young [1943] AC 92. The case was fought on the basis
(as Deane J. had just recognised) that the plaintiff was not in fear for her own
personal safety. So she could not succeed by showing that she was within the
range of foreseeable physical injury. She could only succeed by showing that
she was within the range of foreseeable emotional injury. But this she failed
to do. Bourhill v. Young does not represent a refinement of the ordinary test
of reasonable foreseeability. It represents an extension of that test, as Lord
Edmund-Davies pointed out in McLoughlin v. O’Brian [1983] AC 410, 423-
424. He quoted in support of his view the laconic observation of Professor
Goodhart in “The Shock Cases and Area of Risk” (1953) 16 M.L.R. 14, 16,
note 10:
“The area of risk of physical injury may extend to only x yards, while
the area of risk of emotional injury may extend to y yards.”
The cases cited by Deane J. do not support the restrictive proposition
that in cases of “mere psychiatric injury” (by which I understand him to mean
cases not involving physical injury) the plaintiff’s injury must be foreseeable
“in that particular form as distinct from personal injury generally”. On the
contrary, Atkin L.J. in Hambrook v. Stokes Brothers and Singleton L.J. in
King v. Phillips lend strong support to the opposite view.
The second passage is at p. 460.
“The limitations upon the ordinary test of reasonable foreseeability in
cases of mere psychiatric injury are conveniently stated in negative
form. Two of them have already been mentioned. The first of those
is that reasonable foreseeability of personal injury generally will not
suffice to give rise to a duty of care to avoid psychiatric injury
unassociated with conventional physical injury: a duty of care will not
arise unless risk of injury in that particular form was reasonably
foreseeable.”
– 34 –
This adds nothing to the earlier passage. For the reasons already stated, I do
not regard it as a correct view of the law.
I come last to what is, perhaps, the strongest authority supporting the
view taken by the Court of Appeal: Overseas Tank Ship (U.K.) Ltd. v. Morts
Dock Engineering Co. Ltd. (The Wagon Mound (No. 1)) [1961] AC 388.
This case, and the companion case of The Wagon Mound (No. 2) [1967] 1
A.C. 617, established that “the essential factor in determining liability is
whether the damage is of such a kind as the reasonable man should have
foreseen”: see p. 426. The defendants allowed a large quantity of bunker oil
to spill over in Sydney Harbour. The oil was ignited by welding operations
of the employees of the plaintiff dock company. The Wagon Mound (No. 1)
was presented on the basis, in which both parties joined, that fuel oil on water
did not crease a forseeable fire risk. Had the plaintiff company done
otherwise it would have been met with the defence of contributory negligence
which in New South Wales then provided a complete defence. The defendants
could, however, foresee that the oil would do some trivial damage to the
plaintiffs slipway by fouling. The Supreme Court of New South Wales found
in favour of the plaintiffs, applying the rule in In re Polemis and Furness
Withy & Co. Ltd. [1921] 3 K.B. 560. The decision was overturned by the
Privy Council. Viscount Simonds, in tendering the advice of the Privy
Council, said that their Lordships had been concerned primarily to displace
the proposition that unforeseeability is irrelevant if damage is “direct”. But
in the course of his judgment (p. 426), he cited by way of illustration the
dictum of Denning L.J. in King v. Phillips [1953] 1 Q.B. 429, 441, and
added: “Their Lordships substitute the word ‘fire’ for ‘shock’ and endorse this
statement of the law.”
Viscount Simonds did not attempt to define what he meant by “kind of
damage”, and the concept is apt to be elusive, as Mr. R.W.M. Dias and
Professor Jolowicz have pointed out in their comments in [1961] C.L.J. 23,
30. See also Clerk and Lindsell on Torts 16th ed. (1989), at pp. 587-588. It
is clear that Viscount Simonds regarded shock as a “kind of damage”.
Otherwise, he would not have cited Denning L.J.’s dictum. But the case was
not in any way concerned with liability for shock. The reference to Bourhill
v. Young [1943] AC 92, both in the argument and in the judgment, was for
quite a different purpose, namely, to pray in aid the “plain common sense”
stated by Lord Russell of Killowen, that foreseeability goes to compensation
as well as culpability. I do not think the Privy Council was intending to
indicate that Denning L.J.’s dictum applied across the board in personal injury
actions, or that psychiatric injury is “a different kind of damage” from
physical injury, for the purposes of establishing the relevant duty of care.
Although the Privy Council in The Wagon Mound (No. 1) has often been
regarded as having approved the full width of Denning L.J.’s dictum, I
consider this goes too far. As I have said, I prefer to regard the reference to
the dictum as being more by way of illustration. If so, then it does not stand
in the way of a sensible and practical approach to cases where the plaintiff is
– 35 –
the primary victim of the defendant’s negligence, along the lines proposed by
the judge.
Many other cases were cited in argument, but I need only refer to one,
Brice v. Brown [1984] 1 All E.R. 997. This was one of the authorities cited
with approval by Hoffmann L.J. There can be no doubt that the case was
correctly decided on the facts. It would have been a reproach to the law if the
plaintiff had not been able to recover damages for the severe mental illness
which she suffered as a result of the accident, partly out of fear for herself,
and partly out of fear for her daughter. But as she was herself involved in the
accident, and as the accident was quite severe (her daughter suffered quite
serious injuries), she was plainly owed a duty of care by the defendant. In
these circumstances it was, in my opinion, unnecessary to ask as a separate
question whether the defendant should have foreseen injury by shock to a
person of normally robust constitution. It sufficed that she was a primary
victim of the defendant’s negligence.
I return to the facts of the present case to mention a fall-back argument
on which Mr. McKay relied. Assuming, contrary to his primary argument,
that it was necessary to establish foreseeability of injury by nervous shock in
a person of normal fortitude, then the Court of Appeal were wrong to hold
that such injury was not foreseeable. The judge held, as I have said, that the
collision was one of moderate severity. He had no doubt that the plaintiff
suffered nervous shock in the broad sense of that word. He concluded that
since the plaintiff was actually involved in the accident, it became a
foreseeable consequence.
I have some difficulty in understanding how the Court of Appeal was
justified in disturbing the judge’s primary findings, or the inference which he
drew from those findings. Ralph Gibson L.J. was impressed by the fact that
the plaintiff suffered no physical injury. If he was using this piece of
hindsight in order to qualify the judge’s finding that the accident was one of
moderate severity, then, with respect, he was wrong. If he was saying that
a person of normal fortitude involved in an accident does not suffer shock,
with recognised psychiatric consequences, unless he receives some physical
injury, then I would disagree. As Lord Bridge of Harwich, said in
McLoughlin v. O’Brian [1983] AC 410, 433:
“. . .an acute emotional trauma, like a physical trauma, can well
cause a psychiatric illness in a wide range of circumstances and in a
wide range of individuals whom it would be wrong to regard as having
any abnormal psychological make-up.”
When cars collide at 30 miles per hour, the possibility that those involved will
suffer nervous shock, resulting in some form of psychiatric illness, is not
something to be brushed aside. In my opinion, the Court of Appeal were
wrong to find that psychiatric illness, in some form, was not a foreseeable
– 36 –
consequence of the accident in a person of normal fortitude. But for reasons
already mentioned, I do not regard that as the relevant test.
In conclusion, the following propositions can be supported:
-
-
-
In cases involving nervous shock, it is essential to distinguish between
the primary victim and secondary victims; -
In claims by secondary victims the law insists on certain control
mechanisms, in order as a matter of policy to limit the number of potential
claimants. Thus, the defendant will not be liable unless psychiatric injury is
foreseeable in a person of normal fortitude. These control mechanisms have
no place where the plaintiff is the primary victim. -
In claims by secondary victims, it may be legitimate to use hindsight
in order to be able to apply the test of reasonable foreseeability at all.
Hindsight, however, has no part to play where the plaintiff is the primary
victim. -
Subject to the above qualifications, the approach in all cases should be
the same, namely, whether the defendant can reasonably foresee that his
conduct will expose the plaintiff to the risk of personal injury, whether
physical or psychiatric. If the answer is yes, then the duty of care is
established, even though physical injury does not, in fact, occur. There is no
justification for regarding physical and psychiatric injury as different “kinds
of damage”. -
A defendant who is under a duty of care to the plaintiff, whether as
primary or secondary victim, is not liable for damages for nervous shock
unless the shock results in some recognised psychiatric illness. It is no answer
that the plaintiff was predisposed to psychiatric illness. Nor is it relevant that
the illness takes a rare form or is of unusual severity. The defendant must
take his victim as he finds him.
-
-
These propositions do not, I think, involve any radical departure from
the law as it was left by Kennedy J. in Dulieu v. White & Sons, and by the
Court of Appeal in Hambrook v. Stokes Brothers [1925] 1 K.B. 141 and King
v. Phillips [1953] 1 Q.B. 429, although the decision in the latter case can no
longer be supported on its facts. In McLoughlin v. O’Brian [1983] AC 410
your Lordships had the opportunity to take the law forward by holding that the
plaintiff could recover damages for nervous shock, even though she was two
miles away at the time of the accident. No such opportunity offers in the
present case. But it is at least as important that the law should not take a step
backwards. This would, I fear, be the result if the decision of the Court of
Appeal were allowed to stand.
In the result, I would restore the judgment of Otton J., but subject to
one last caveat. One of the grounds of appeal from Otton J.’s judgment was
– 37 –
that his finding on causation was against the weight of the evidence. Ralph
Gibson L.J. upheld this ground of appeal, but it was left open by Farquharson
L.J. and Hoffmann L.J. Unless, therefore, the claim can now be settled, the
case will have to go back to the Court of Appeal for a finding on this issue.
I would allow the appeal and order that the respondents pay the
appellants’ costs in your Lordships’ House. Costs before the judge and the
Court of Appeal will have to wait the outcome of the issue on causation.
– 38 –
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