CORRESPONDENCE
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01930.x |
| Published date | 01 January 1994 |
| Date | 01 January 1994 |
| Author | Allan Gore |
CORRESPONDENCE
As
Counsel for the Respondent Plaintiff who was called upon first, the Appellant
not even being called upon to seek to submit
why
the decision at first instance was
wrong,
I
read
Ms
Steele's case note on
Ruvenscroft
v
Rederiuktieboluget
Transatlantic
(56
MLR
244)
with keen interest.
May
I
add two points that your readers might find of interest?
First, floodgates has always been the 'reason' advanced by judges for seeking to
restrict recoverability of damages for nervous shock.
I
deliberately adduced the
clearest (and as it turned out, unchallenged)
fuctual
evidence that this concern was
misplaced. Given that to be actionable, the nervous shock must have caused
recognisable psychiatric illness as opposed to 'mere' shock (see
Hinz
v
Berry
119701
2
QB
40
and now
Nicholls
v
Rushton
(1992)
7'he Times,
19
June),
I
sought
to establish that the likelihood of persons crossing that threshold was, in fact, very
small. That, as your contributor notes, was found as fact by Ward
J
at first
instance.
Second, there are fundamental and, to me personally, offensive and
objectionable consequences of the current approach to these cases. Doctors have to
be asked the (impossible) question: was
it
what was seen that caused the illness or
was it, for example, the effects
of
bereavement? The former results
in
an award of
damages but the latter does not. Even more offensive to
my
mind is that to prevent
the sort of injustice that
I
believe Mrs Ravenscroft suffered, lawyers must exhort
their potential clients to insist in every case on actually seeing the body of their
loved one in order to protect their legal rights.
What to me was profoundly disturbing was that the Court
of
Appeal found the
case as easy as
it
expressed it to be, due to authority, and that the reason for that
was that the House of Lords
in
Alcock
v
ChiefConstuble ofSouth Yorkshire
Police
[1992]
1
AC
310
had doubted the correctness of Ward
J's
decision. What the
House of Lords did not have was either a transcript of the
evidence
in the
Ruvenscrofi
case or the opportunity to hear argument about the legal principles to
apply in factual circumstances that were profoundly different to those prevailing in
the appeals before it.
I
have yet to find an example of where
the
Court of Appeal
have been prepared to argue that the House of Lords was wrong, or where the
Court
of
Appeal or House of Lords has been prepared to say that a point of law of
general public importance arises that in effect calls for reconsideration of a leading
House
of
Lords case within months only of the speeches having been delivered.
Thus,
in
practical terms it remains impossible
to
litigate these important issues
afresh, at least until another respectable interval
of
time has elapsed
(10
years
passed between
Mcbughlin
v
O'Briun
[1983]
1
AC
410
and
Alcock).
Is
it not therefore essential that Parliament now intervenes to legislate in this
important and controversial field, as indeed was recognised in
Alcock?
Allun Gore"
*I2
Kings
Bench
Walk.
Templc.
London
EC4Y
7EL.
174
0
The
Mcxlern
Law Review
Limited
1YY4
(MLR
57:l.
January). Published
by
Blackwell
Publishers.
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