Attia v British Gas Plc
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE WOOLF,LORD JUSTICE BINGHAM |
| Judgment Date | 26 June 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0626-5 |
| Docket Number | 87/0647 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 June 1987 |
[1987] EWCA Civ J0626-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF SIR DOUGLAS FRANK Q.C.,
SITTING AS A DEPUTY JUDGE OF THE QUEEN'S BENCH DIVISION
Royal Courts of Justice
Lord Justice Dillon
Lord Justice Woolf
Lord Justice Bingham
87/0647
MR D.W. TUCKER, instructed by Messrs Freemont & Co., appeared for the Appellant (Plaintiff).
MISS J.M. TURNER, instructed by P.H. Deacon Esq. (Staines), appeared for the Respondents (Defendants).
This is an appeal by the plaintiff in the action against a decision of Sir Douglas Frank Q.C., sitting as a deputy judge of the High Court in the Queen's Bench Division, which was given on 19th December 1986 by way of determination of a preliminary issue in the action.
As to the facts, in the summer of 1981 the plaintiff, Mrs Attia, lived (as I apprehend she still does) at No. 11 Leaver Gardens, Greenford, Middlesex, and the defendants, British Gas, were engaged to instal central heating there. When she was returning home at about 4 p.m. on 1st July 1981 she saw smoke coming from the loft of the house. She telephoned the fire brigade, but by the time the firemen arrived, the whole house was on fire and it took the firemen over four hours to get the fire under control. Obviously the house and its contents were extensively damaged.
The defendants admit that the fire was caused by their negligence—i.e. by the carelessness of their employees who were working at the house—and we were told that the plaintiff's claims for damage to the house itself and its contents have been settled. In this action the plaintiff's only claim is for a different type of damage, namely, damages for nervous shock; by this is meant that, though she did not suffer any physical injury, the plaintiff, as the result of seeing her home and its contents ablaze, has suffered a psychiatric or mental illness, the effects of which are set out in some detail in her statement of claim.
The defendants dispute this claim of the plaintiffs, but in order to save costs, especially as the plaintiff has legal aid, the parties agreed, and the Master ordered, that the following question should be set down for determination as a preliminary issue, viz:
"Can the plaintiff recover damages for nervous shock caused by witnessing her home and possessions damaged and/or destroyed by a fire caused by the defendants' negligence while installing central heating in the plaintiff's home?"
For the purpose of this preliminary issue, the facts alleged in the statement of claim are to be assumed to be true; in particular it is to be assumed that the plaintiff has suffered a psychiatric illness which was caused by the shock of seeing her home and its contents ablaze. Causation does not therefore have to be considered on the preliminary issue, though it will have to be considered at the trial if the preliminary issue is not answered in the negative, as the defendants would wish. The defendants say on the preliminary issue that the plaintiff cannot succeed in this action for either of two reasons, viz:
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(1) that it was not reasonably foreseeable that the plaintiff might suffer any psychiatric illness as a result of the defendants' negligence in starting the fire; or
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(2) that, even if it was reasonably foreseeable that the plaintiff might suffer psychiatric illness, damages for "nervous shock" can, as a matter of law and public policy, only be recovered if the shock was caused by the death or injury of a person, or by fear of the death or injury of a person, normally a person closely related to the plaintiff, and cannot be recovered if it was merely caused by injury to property.
The preliminary issue was raised to test these two contentions of the defendants'. The deputy judge decided in favour of the defendants on contention (1) and therefore dismissed the action. The plaintiff now appeals.
The law as to "nervous shock" has recently been considered very carefully and helpfully by the House of Lords in McLoughlin v. O'Brian [1983] 1 A.C. 410 and by the High Court of Australia in Jaensch v. Coffey [1984] 58 Aus L.J. 426. In McLoughlin Lord Bridge said, at page 431G-H:
"The common law gives no damages for the emotional distress which any normal person experiences when someone he loves is killed or injured. Anxiety and depression are normal human emotions. Yet an anxiety neurosis or a reactive depression may be recognisable psychiatric illnesses, with or without psychosomatic symptoms. So, the first hurdle which a plaintiff claiming damages of the kind in question must surmount is to establish that he is suffering, not merely grief, distress or any other normal emotion, but a positive psychiatric illness."
The plaintiff accepts this statement of the law, and accordingly it is claimed that what she has suffered, as described in the statement of claim, amounts to a positive psychiatric illness. Where exactly the line is to be drawn between possibly extravagant grief, distress or other normal emotion and a positive psychiatric illness, may perhaps be difficult to discern in what may for all I know be a matter of degree; but that is a matter for the trial and does not arise on the preliminary issue.
In the next place it is to be assumed that the plaintiff is of a normal disposition or toughness, possessing, as it has been put in the cases, "the customary phlegm". Whatever the position may be at the trial, on this preliminary issue we are not concerned with the possibility of it being shown that she has suffered psychiatric illness because, though the defendants did not know and she herself may not have known, she was particularly or "abnormally" susceptible to some form of psychiatric illness.
A third point which emerges from the cases cited is that damage for "nervous shock", i.e. for psychiatric illness occasioned by shock, is regarded as a separate head of damage, distinct, for example, from damage for personal injury. The law has developed step by step and is still developing. In those circumstances I would be particularly reluctant to lay down any general rule as to the conditions in which such damages can or cannot be recovered as a matter of public policy. For that reason the procedure of a preliminary issue on assumed facts, somewhat briefly stated, has disadvantages where what is under consideration is how the law should develop in a matter of some general importance.
That said, however, as appears from the speeches in McLoughlin and the judgments in the Australian case, a great deal of the difficulty which has been felt over the development of the law as to damages for "nervous shock" has arisen in relation to what, in the terminology of the tort of negligence, is described as the question of proximity. How far is it right that the law should allow a claim for damages against a wrongdoer, where the wrong done by the wrongdoer was primarily a wrong done to someone other than the claimant, and the claimant is a person of whom, at the relevant time, the wrongdoer had ho knowledge and who may then have been far away from the scene of the wrongdoer's act? This difficulty is particularly concerned with whether the wrongdoer owed any duty of care to the claimant. But that difficulty does not arise in the present case because in the present case there is no problem of proximity. The defendants knew about the plaintiff and unquestionably owed a duty of care to her not to start a fire in her house. If her claims for damage to the house and contents had not been settled, she would have brought the one action against the defendants in which she would have pleaded the negligence of the defendants in starting the fire and would have gone on to assert that, by reason thereof, she had suffered and was suffering damage and loss, which would be put under two headings, viz: (1) damage to the house and contents; and (2) damage for nervous shock. The issues at the trial, assuming the facts pleaded, including the psychiatric illness, were proved, would have been (a) causation and (b) foreseeability of the damage as a question of remoteness. I can see no good reason why, in such a context, the law should have refused to allow her damages for "nervous shock" if she could get over the hurdles of causation and foreseeability as an aspect of remoteness. It cannot make any difference that in the event her claim for damage to the house and contents has been settled; the duty was nonetheless there.
I am not therefore prepared to hold that the fact that the shock which caused the plaintiff's assumed psychiatric illness was caused by damage to property must preclude her from recovering damages for "nervous shock" even if it was reasonably foreseeable that she might suffer psychiatric illness as a consequence of the defendants' negligence in causing the fire in her house.
Are the defendants right, then, in asserting a priori that it was not reasonably foreseeable that the plaintiff might suffer any psychiatric illness as a result of their negligence in starting the fire? It is not necessary that any particular psychiatric illness should have been foreseen.
Whether it was reasonably foreseeable to the reasonable man—whether a reasonable onlooker, or, in the context of the present case, a reasonable gas fitter employed by the defendants to work in the plaintiff's house—is to be decided, not on the evidence of psychiatrists as to the degree of probability that the particular cause would produce the particular effect in a person of normal disposition or customary phlegm, but by the judge, relying on his own opinion of the operation of cause and effect in psychiatric medicine, treating...
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