Hinz v Berry

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,LORD PEARSON,Sir GORDON WILLMER
Judgment Date16 Jan 1970
Judgment citation (vLex)[1970] EWCA Civ J0116-3

[1970] EWCA Civ J0116-3

In The Supreme Court of Judicature

Court of Appeal

Appeal by defendant from judgment of Mr. Justice O'Connor on 4th June, 1969.

Before:

The Master of the Rolls (Lord Denning)

Lord Pearson and

Sir Gordon Willmer

Between
Evelyn Frances Hinz
Plaintiff Respondent
and
Anthony Paul Berry
Defendant Appellant

Mr. GEORGE CARMAN (instructed by Messrs. Gregory Rowcliffe & Co., agents for Messrs. John Gorna & Co., Manchester) appeared on behalf of the defendant appellant.

Mr. KENNETH JUPP, Q.C., and Mr. F. MARR-JOHNSON (instructed by Messrs. Waterhouse & Co., agents for Messrs. F.B. Jevons, Riley & Poper) appeared on behalf of the plaintiff respondent.

THE MASTER OF THE ROLLS
1

It happened on the 19th April, 1964. It was bluebell time in Kent, Mr. and Mrs. Hinz had been married some 10 years, and they had four children, all aged 9 and under. The youngest was one. Mrs. Minz was a remarkable woman. In addition to her own four, she was foster-mother to four other children. To add to it, she was two months pregnant with her fifth child.

2

On this day they drove out in a Bedford Dormobile van from Tonbridge to Canvey Island. They took all eight children with them. As they were coming back they turned into a lay by at Thurnham to have a picnic tea. The husband, Mr. Hinz, was at the back of the Dormobile making the tea. Mrs. Hinz had taken Stephanie, her third child, aged 3, across the road to pick bluebells on the opposite side. There came along a Jaguar car driven by Mr. Berry, out of control. A tyre had burst. The Jaguar rushed into this layby and crashed into Mr. Hinz and the children. Mr. Hinz was frightfully injured and died a little later. Nearly all the children were hurt. Blood was streaming from their heads. Mrs. Hinz, hearing the crash, turned round and saw this disaster. She ran across the road and did all she could. Her husband was beyond recall. But the children recovered.

3

An action has been brought on her behalf and on behalf of the children for damages against Mr. Berry. The injuries to the children has been settled by various sums being paid. The pecuniary loss to Mrs. Hinz by reason of the loss of her husband has been found by the Judge to be some £15,000; but there remains the question of the damages payable to her for her nervous shock — the shock which she suffered by seeing her husband lying in the road by the van dead, and the children strewn about.

4

The law at one time said that there could not be damages for nervous shock: but for these last 25 years, it has been settled that damages can be given for nervous shock caused bythe sight of an accident, at any rate to a close relative. Very few of these cases have come before the Courts to assess the amount of damages. Mr. Justice O'Connor fixed the damages at the sum of £4,000 for nervous shock. The appellants appeal saying that the sum is too high.

5

I would like to pay at once a tribute to the insurance company for the considerate and fair way in which they have dealt with the case. In English law no damages are awarded for grief or sorrow caused by a person's death. No damages are to be given for the worry about the children, or for the financial strain or stress, or the difficulties of adjusting to a new life. Damages are however recoverable for nervous shock, or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of duty by the defendant.

6

There are only two cases in which the quantum of damages for nervous shock has been considered. One is Schneider v. Eisovitch (1960 1 A.E.R. 169). The other an unreported case of Tregoning v. Hill reported in The Times newspaper of the 2nd March of 1965. But they do not help us here. Somehow or ocher the Court has to draw a line between sorrow and grief for which damages are not recoverable: and nervous shock and psychiatric illness for which damages are recoverable. The way to do this is to estimate how much Mrs. Hinz would have suffered if, for instance, her husband had been killed in an accident when she was 50 miles away: and compare it with what she is now, having suffered all the shock due to being present at the accident. The evidence shows that she suffered much more by being present. I will consider first the grief and sorrow if she had not been present at the accident. The consultant psychiatrist from the hospital in Maidstone said: "It is common knowledge that there is a "Mourning Period" for all of us, and that normally time dispels this. In the average person it might be a year, but in a predisposed person it can be greatly prolonged…". Mrs. Hinz was not predisposed at all. She was a woman of great capacity, level-headed, hard working, happily married. She would have gotover the loss of her husband in, say, a year.

7

Consider next her condition, as it is, due to being present at the accident. Two years after the accident, the consultant psychiatrist said: "There is no medical doubt at all that she is suffering from a morbid depression; she is now officially ill". He went on to give some of the symptoms. She said to him: "It does not seem worth going on. I feel I cannot cope at all. I get so dreadfully irritable with the children too. It is wrong but I feel like killing him", that is, the posthumous child. The consultant went on: "She feels exhausted, has frequent suicidal ruminations and at the same time is covered with guilt at being like this". The posthumous baby "now saddens her even more because it cries Dad, Dad", and one of the elder children persists in saying "You have not got a Dad"; and then the other fatherless children join in the chorus." The consultant concluded: "In other circumstances I would probably have brought her into Hospital, at least for a rest, but possibly for electrical treatment and it may come to that yet."

8

At the trial, five years after the accident, she frequently broke down when giving her evidence. She brought the children to Court. They were very well turned out. The Judge summed up the matter in this way: "I am satisfied that she was of so robust a character that she would have stood up to that situation, that she would have been hurt, sorrowful, in mourning, yes, but in a state of morbid depression, No."

9

He awarded her £4,000 on this head. There is no suggestion that he misdirected himself. We can only interfere...

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3 books & journal articles
  • Sticks, Stones and Words: Emotional Harm and the English Criminal Law
    • United Kingdom
    • Journal of Criminal Law, The Nbr. 74-6, December 2010
    • 1 December 2010
    ...53, [2004] 2 AC 406; Corr v IBC Vehicles Ltd [2006]EWCA Civ 331, (2006) 103(16) LSG 24.42 Bunyan v Jordan (1937) 57 CLR 1; Hinz v Berry [1970] 2 QB 40 at 42 (LordDenning MR); Jaensch v Coffey (1984) 155 CLR 549 at 587 (Deane J); Attia v BritishGas plc [1988] 1 QB 304 at 311 (Dillon LJ); Cal......
  • Negligently Caused Psychiatric Harm: Recovering Principle and Fairness after the Alcock-Up at Hillsborough
    • United Kingdom
    • Southampton Student Law Review Nbr. 6-1, January 2016
    • 1 January 2016
    ...order requires the observance of a minimum standard of behaviour”. 15[1990] 2 AC 605 (HL). 16ibid 617-18 (Lord Bridge). 17Hinz v Berry [1970] 2 QB 40 (CA) 43 (Lord Denning MR): “Somehow or other the court has to draw a line between sorrow and grief for which damages are not recoverable, and......
  • Secondary Iatrogenic Harm: Claims for Psychiatric Damage Following a Death Caused by Medical Error
    • United Kingdom
    • The Modern Law Review Nbr. 67-4, July 2004
    • 1 July 2004
    ...S I 2002 No 644).35 Gillies vLynch2002 1420 SLT(Outer House) applying the Damages (Scotland)Act 1976, s 1(4).36 Hinz vBerry[1970] 2 QB 40; Al cock vChiefConstableof SouthYorkshire[1992] 1AC 310.Paula Case567rTheModern Law Review Limited Grief, sorrow, deprivationymust be sustained without c......

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