Bourhill v Young
| Jurisdiction | Scotland |
| Judgment Date | 28 March 1941 |
| Date | 28 March 1941 |
| Docket Number | No. 35. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION EXTRA DIVISION.
Ld. Robertson.
ReparationNegligenceRemoteness of damageCollision between motor vehiclesNervous shock to person in neighbourhood resulting from frightFright caused by noise of collisionNo reasonable fear of personal bodily injury.
A motor cyclist passed a tramway car, which was stopped at a stopping place, on its near side, and, owing to his negligence, ran into a motor car which had crossed in front of the tramway car and was about to enter a side road distant some 45 or 50 feet from the stopping place. Fright caused by the noise of the collision resulted in nervous shock to a fishwife, who, standing on the street, was, at the time of the collision, getting her creel on to her back from the off side of the front platform of the tramway car
Held (diss. the Lord Justice-Clerk) that, in the circumstances of the case, the negligence of the motor cyclist did not warrant a claim of damages at the instance of the fishwife, in respect that the shock was not founded upon a reasonable apprehension on her part of immediate personal bodily injury, an apprehension which the motor cyclist should reasonably have foreseen as a probable consequence of his negligence.
Authorities considered.
In November 1939, Mrs Euphemia Hay or Bourhill brought an action against the executor-dative of the late John Young, Edinburgh, in which she claimed 1250 in respect of loss, injury and damage sustained by her through the fault of the late John Young.
The parties averred, inter alia1:(Cond. 2) "On or about 11th October 1938 at about noon the pursuer dismounted from a tramcar, which had come from Edinburgh, at the tram stopping place near the north-east corner of the junction of Colinton Road and Glenlockhart Road, Edinburgh. She then proceeded on foot along the roadway on the near side of the tramcar and round the front thereof to the front platform on the off side in order to take her fish basket off the platform. At the same time a motor cycle, owned and driven by the said John Young, was proceeding along Colinton Road in a south-westerly direction, and on the near side of the road, and a motor car which had been proceeding towards Edinburgh along Colinton Road was in the act of turning into Glenlockhart Road which branches off to the south-east. When the pursuer was standing with her back to the driver's platform ready to take the basket on to her back, the motor car, which was crossing the front of the tramcar, was suddenly run into by the motor cycle. As a result of the collision the said John Young was hurled across the roadway and landed near the pursuer's feet suffering terrible head injuries from which
he died later in the day. As a result of the accident the pursuer sustained the injuries aftermentioned. With reference to the statements in answer" judge=" explained that the pursuer did not see the collision but heard the loud crash thereof and saw the deceased thrown through the air and that in falling he had sustained very serious head injuries from which blood was gushing out. Quoad ultra denied so far as not coinciding herewith." (Ans. 2.) "Admitted that at the time averred a motor cycle owned and driven by the said John Young was proceeding along Colinton Road. Explained that the said John Young was proceeding southwards and on the east side of said road. Admitted that a motor car which had been proceeding in the opposite direction along Colinton Road was in the act of turning from Colinton Road into Glenlockhart Road, which joins Colinton Road on the east side thereof. Admitted that said motor car proceeded across the southward-bound set of tramway rails in Colinton Road some distance from the front of a stationary south bound tramcar which was then standing at a stopping place near the north-east corner of the said junction. Admitted that a collision took place between the said motor cycle and the said motor car, and that the said John Young sustained injuries to his head from which he died later in the day. Believed to be true that at the time of the said accident the pursuer was standing at the off side of the driver's platform of the said tramcar with her back to the driver's platform. Her prior movements are not known and not admitted. Quoad ultra denied. Explained that the said driver's platform is at the off side, near the front of said tramcar. The said collision took place at the junction of Glenlockhart Road with Colinton Road. After the collision the said John Young fell between the eastmost tram-rail of the southward bound set of tramway rails and the line of the kerb on the east side of Colinton Road. The part of the roadway on which he fell was well to the south of the said tramway car, which he had passed, and a considerable distance from the pursuer as she stood at the said driver's platform. The pursuer was not involved in the said accident, sustained no injury therein, and departed on her rounds thereafter. The pursuer is called upon to specify particularly where she alleges the said John Young fell, how far from her he fell, and what she saw of the collision. It is believed and averred that the pursuer, who was standing with her back to the locus of the accident, did not see the collision and had no reason to be apprehensive of her personal safety." (Cond. 3.) "The accident was caused through the fault of said John Young. It was his duty, when approaching the said junction, to drive carefully and at moderate speed, to give warning of his approach and have his motor cycle under proper control. Further, it was his duty when passing the said stationary tramcar on the near side, as he did, to keep a good look-out for any traffic coming across the front of the tramcar into Glenlockhart Road, including the said motor car, and not to proceed beyond the front of the tram until he saw that it was safe for him so to do. In these duties Young failed and by his failure caused the accident. He was driving carelessly and at excessive speed, he gave no warning of his approach to the junction and did not have his cycle under proper control. Further, he passed the stationary tramcar on the near side without looking for traffic crossing the front end of the tram, and collided violently with the motor car. Had the said John Young performed his duties the accident would not have happened." (Ans.3.) "Admitted that the ordinary duties of a careful driver were incumbent on the said John Young. Quoad ultra denied." (Cond. 4.) "As an immediate result of the violent collision and the extreme shock of the occurrence in the circumstances explained, the pursuer wrenched and injured her back and was thrown into a state of terror and sustained a very severe shock to her nervous system.Explained that the pursuer's terror did not involve any element of reasonable fear of immediate bodily injury to herself. The pursuer was about eight months pregnant at the time, and gave birth to a child on 18th November 1938 which was still-born owing to the injuries sustained by the pursuer. The pursuer has been receiving manipulative treatment for her back injury, which is gradually having a beneficial effect. She has been under medical supervision since shortly after the said accident. The injuries sustained by the pursuer were the natural and direct result of the negligence of the said John Young." (Cond. 5.) "The pursuer has been totally unfit for her work as a fishwife since the accident and is still unable to lift a heavy fish creel on her back and carry it. It is uncertain when and to what extent she will be fit to resume her work. The loss of the child has been a great grief to the pursuer, and she has suffered considerable pain. In the circumstances, the sum sued for is a reasonable estimate of the loss, injury and damage sustained by the pursuer as a result of the accident." (Ans. 4and 5.) "Denied that the pursuer sustained any injury or shock in consequence of the said accident. Denied that her delivery of a still-born child on 18th November 1938 was in any way due to said accident. The pursuer was in no danger of being involved in said collision or of sustaining any injury thereby. As above explained, the said John Young had passed well to the south of said tramcar when the collision occurred. The point of impact was a considerable distance from the pursuer. The pursuer is called upon to state specifically the cause of her alleged state of terror. Believed and averred that the pursuer made no complaint of injury, proceeded on her rounds and delivered her fish, and afterwards returned to the locus of the accident. Quoad ultra not known and not admitted."
The pursuer pleaded, inter alia:"(1) The pursuer having sustained loss, injury and damage through the fault of the said John Young, as condescended on, and being entitled to reparation therefor out of his estate, decree should be granted in terms of the conclusions of the summons."
The defender pleaded, inter alia:"(1) The pursuer's averments being irrelevant and insufficient to support the conclusions of the summons et separatim being lacking in specification, the action should be dismissed. (2) The pursuer's averments, so far as material, being unfounded in fact, the defender should be assoilzied. (3) The pursuer not having sustained loss, injury and damage through the fault of the said John Young, the defender is entitled to absolvitor."
On 26th April 1940, after a hearing in the Procedure Roll, the Lord Ordinary (Robertson) sustained the first plea in law for the defender, and dismissed the action.
LORD MACKAY.The class of claims under the law of reparation where the sole thread of connection between the alleged breach of duty and the ultimate physical consequences is a purely mental one in the alleged sufferer from the breach has continually led to anxious judicial consideration. I shall touch later upon what is meant by this mental link.
But, first, the facts in the claim must be dealt with. For in the...
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