Bourhill v Young

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Thankerton,Lord Russell of Killowen,Lord Macmillan,Lord Wright,Lord Porter
Judgment Date05 Aug 1942
Judgment citation (vLex)[1942] UKHL J0805-1
Docket NumberNo. 3.

[1942] UKHL J0805-1

House of Lords

Lord Thankerton

Lord Russell of Killowen

Lord Macmillan

Lord Wright

Lord Porter

Hay or Bourhill
and
Young

After hearing Counsel, as well on Monday the 11th, as on Tuesday the 12th, Thursday the 14th and Friday the 15th, days of May last, upon the Petition and Appeal of Mrs. Euphemia Hay or Bourhill, wife of and residing with David Bourhill at 21 Bush Street, Musselburgh, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Sessions in Scotland, of the Second Division, of the 28th of March 1941, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutor might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of James Young, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal, in the Court of Parliament of His Majesty the King assembled, That the said Interlocutor, of the 28th day of March 1941, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within One Calendar Month from the date of the Certificate thereof, the Cause shall be, and the same is hereby, remitted back to the Court of Session in Scotland, or to the Judge acting as Vacation Judge, to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.

Lord Thankerton

My Lords,

1

The Appellant is pursuer in an action of reparation, in which she claims damages from the Respondent as executor-dative of the late John Young, in respect of injuries alleged to have been sustained by her owing to the fault of John Young, on the occasion of a collision between a motor-cycle which the latter was riding and a motor car on the 11th October, 1938, which resulted in the death of John Young, to whom I will hereafter refer as the cyclist.

2

After a proof, Lord Robertson assoilzied the Respondent on the ground that the cyclist had not been guilty of any breach of duty to the Appellant, and this decision was affirmed by the Second Division, Lord Justice Clerk Aitchison dissenting.

3

The facts as to the occurrence of the collision and its relation to the Appellant are comparatively simple. The Appellant, who is a fishwife, was a passenger on a tramway car which was proceeding in the direction of Colinton along the Colinton Road, which may be taken as a south-westerly direction, and which stopped at a stopping-place at a short distance before Colinton Road is joined at right angles by Glenlockhart Road from the south- east, that is, on the near side of the tramcar. The Appellant alighted, and went round the near side and front of the tramcar, in order to lift her fishbasket from the off-side of the driver's platform. Meantime, the cyclist, travelling in the same direction as the tramcar, had come up and, as the Appellant was getting her basket, he passed on the near side of the tramcar and, when mostly across the opening of Glenlockhart Road, his cycle collided with a motor car, which had been travelling in the opposite direction, but had turned across the path of the cycle in order to enter Glenlockhart Road. The cyclist, who was held by the Lord Ordinary to have been travelling at an excessive speed, was thrown on to the street and sustained injuries from which he died. There is no doubt that the Appellant saw and heard nothing of the cyclist until the sound of the noise created by the impact of the two vehicles reached her senses. At that moment she had her back to the driver's platform and the driver was assisting to get the basket on to her back and the broad leather strap on to her forehead. It may be taken that the distance between the Appellant and the point of impact was between 45 and 50 feet. After the cyclist's body had been removed, the Appellant approached and saw the blood left on the roadway. The injuries alleged to have been sustained by the Appellant are set out in condescendence 4 of the record, as follows:—

"Condescendence 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."

4

The words italicised were inserted by amendment in the Inner House, after the Lord Ordinary had dismissed the action as irrelevant, and, as the result of the reclaiming motion, the case was sent to proof before answer.

5

After the proof, the Lord Ordinary expressed his view that while the Appellant had sustained a nervous shock as the result of hearing the noise of the collision, which disabled her from carrying on her business for some time, she had failed to prove either that the death of the child in utero or the injury to her back resulted from the shock or her immediate reaction to the fright of the event. The Respondent does not dispute the finding of the Lord Ordinary that the Appellant had sustained a nervous shock, which affected her business, and this finding is admittedly sufficient to raise the question of liability. At the hearing of the Appeal your Lordships decided to have the argument on liability completed on both sides, before considering the other injuries alleged to have resulted.

6

While both the Lord Ordinary and Lord Jamieson refer to an apparent inconsistency between the evidence given by the Appellant at the trial, and the averment added by amendment that the Appellant's terror did not involve any element of reasonable fear of immediate bodily injury to herself, the argument of the Appellant before this House was conducted on the footing that the added averment was correct; indeed, the Appellant's argument was that the shock ensued without any functioning of the brain at all. I am content to consider the question of liability on this footing.

7

It is clear that, in the law of Scotland, the present action can only be based on negligence, and "it is necessary for the pursuer in such an action to shew there was a duty owed to him by the defenders, because a man cannot be charged with negligence if he has no obligation to exercise diligence"; per Lord Kinnear in Kemp & Dougall v. Darngavil Coal Co. Ltd., 1909 S.C. 1314, at page 1319. I may further adopt the words of Lord Johnston in the same case, at page 1327, "the obligee in such a duty must be a person or of a class definitely ascertained, and so related by the circumstances to the obligor that the obligor is bound, in the exercise of ordinary sense, to regard his interest and his safety. Only the relation must not be too remote, for remoteness must be held as a general limitation of the doctrine."

8

My Lords, I doubt whether, in view of the infinite variation of circumstances which may exist, it is possible or profitable to lay down any hard and fast principle, beyond the test of remoteness as applied to the particular case. The Lord Justice Clerk, who dissented, accepted the test of proximity, although it is a little difficult to follow how he made his conclusion satisfy this test. In the observations that I have to make, I shall confine myself to the question of the range of duty of a motor cyclist on the public road towards other passengers on the road; clearly this duty is to drive the cycle with such reasonable care as will avoid the risk of injury to such persons as he can reasonably foresee might be injured by failure to exercise such reasonable care. It is now settled that such injury includes injury by shock, although no direct physical impact or lesion occurs. If then the test of proximity or remoteness is to be applied, I am of opinion that such a test involves that the injury must be within that which the cyclist ought to have reasonably contemplated as the area of potential danger which would arise as the result of his negligence, and the question in the present case is whether the Appellant was within that area. I am clearly of opinion that she was not, for the following reasons:—

9

Although admittedly going at an excessive speed, the cyclist had his machine under his control, and this at once distinguishes this case from such cases as those where the motor has been left standing unoccupied and insufficiently braked, and has started off on an uncontrolled career. At the time of the collision with the motor, he was well past the tramcar, and the Appellant was not within the range of his vision, let alone that the tramcar obstructed any view of her. The risk of the bicycle ricochetting and hitting the Appellant, or of flying glass hitting her, in her position at the time, was so remote, in my opinion, that the cyclist could not reasonably be held bound to have contemplated it, and I differ from the Lord Justice Clerk on this point, but, as already stated, the Appellant's case is not now based on any fear of such possibilities, but merely on the sound of the collision. There is no suggestion...

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