King v Phillips

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE SINGLETON,LORD JUSTICE DENNING,LORD JUSTICE HODSON
Judgment Date16 Feb 1953
Judgment citation (vLex)[1953] EWCA Civ J0216-1
Docket Number1951 K. No. 1228

[1953] EWCA Civ J0216-1

In The Supreme Court of Judicature

Court of Appeal

Before:

Lord Justice Singleton

Lord Justice Denning and

Lord Justice Hodson

1951 K. No. 1228
Michael Charleb King
(An Infant by Kathleen, Clara King, Married Woman, His Mother and Next Friend) and the Said Kathleen Clara King
and
A. Phillips (Male)

Counsel for the Appellants: MR F. G. PATERSON, instructed by Messrs Darracotts.

Counsel for the respondent: MR N. WIGGINS, instructed by Mr Alfred E. Johnson.

LORD JUSTICE SINGLETON
1

On the 2nd August, 1951, a smell boy, Michael Charles King, was on his tricycle in Birstall Road, Tettenhrs, about the point where Birstall Road joins Greenfield Road. A taxicab which was driven by a servant of the Defendant, Mr Phillips, called at a house in Greenfield Road, and having picked up the fare, was in the act of backing his taxi cab into Biretell Road so that he might return towards Seven Sisters Road when he heard a call. It appeared that his taxicab had struck the boy's tricycle. The boy was slightly hurt; the tricycle was damaged. The boy gathered himself together and ran back towards his home in Birstall Road. He brought an action through his mother against the Defendant claiming damages for personal injuries. His injuries, as I have said, were very slight and the learned Judge assessed the damages to which he was entitled at the sum of £5 along with some damages in respect of the tricycle.

2

There was an appeal to this Court on damages, but we thought that there was no reason to hold that the determination of the Judge was wrong as to the amount of damages the boy should recover; but there was at the same time an action by the boy's mother, herself, Mrs Kathleen Clara King. She was at an upstairs window in No. 12, Birstall Road, which is about six houses up on the right-hand side of the road from Greenfield Road and just about 70 or 80 yards away from the site of the accident. She heard a scream, and she looked down the road and she saw the taxicab backing on to the tricycle or upon the tricycle, and she saw the tricycle udder the taxicab. She could not see the boy. She ran downstairs and into the road, when she met her little boy running towards her, and she took him inside. As a result of what she heard and saw she suffered trembling fits, become distressed and tearful. She consulted he doctor on the 17th August, and shecontinued to attend the doctor until November.

3

The learned judge, Mr Justice McNair, was satisfied that her condition as spoken to by Dr Barron was direly condition by what she heard and saw at the time of the accident; and, subject to liability, he assessed the damages in her case at the sum of £100.

4

The learned Judge decided further that there was no liability upon the Defendant in respect of Mrs King's claim and upon that he gave judgment for the Defendant.

5

Against that judgment the Plaintiff, Mrs King, appeals to this Court.

6

It is clear that a person who sustains damage from nervous shock has a right of action against one whose negligence caused the shook. An allegation of negligence postulates a breach by the Defendant of a duty owed by him to the Plaintiff. In the civil law there is no such thing as negligence in the air; liability only arises where there is a duty to take care and where failure in that duty has caused damage.

7

Mr Justice McNair delivered a considered judgment in favour of the Defendant. In so deciding he followed the decision of the House of Lords in Hayfork Bourhill v. young reported in 1943 Appeal Cases at page 92, in which it was held: "(1) that the duty of the motor cyclist on the public road to other persons using it was to drive with such reasonable care as would avoid the risk of injury (including injury by shook although no direct impact occurred) to such persons as he could reasonably foresee might be injured by his failure to exercise that care; (2) that the appellant was not within the area of potential danger arising as the result of his negligence, and, accordingly, he owed no duty to her and was not guilty of negligence in relation to her". I do not see that the learned Judge could come to anyother conclusion, having regard to what was said in that case. The view of each of the learned Law Lords was that on the facts no duty was owed to the Appellant by the motor cyclist who collided with a motor van. At the time of the collision the Appellant was on the offside of a tramcar which the motor cyclist had passed on its near side. The point of impact was some 45 to 50 ft. beyond her and the tramcar was between her and the vehicles which came into collision. It was clear that the motor cyclist was at fault and that in relation to the driver of the motor car he was guilty of negligence, but it was held that he owed no duty to the Appellant, and that, consequently, vis-a-vis her he was not negligent.

8

The test was put by Lord Thankerton at page 102 in this way: "Can it be said that John Young could reasonably have anticipated that a person, situated as was the Appellant, would be affected by his proceeding towards Clinton at the speed at which he was traveling"; and by Lord Macmillan at page 105: "But can it be said that he ought further to have foreseer that his excessive speed, involving the possibility of collision with another vehicle, might cause injury to the Appellant?", and he was of opinion that John Young was under no duty to the Appellant to foresee that his negligence in driving at an excessive speed, and consequently colliding with a motor car, might result in injury to her, for such a result could not reasonably and probably be anticipated; thus he was not guilty of negligence in a question with the Appellant.

9

Lord Wright, at page 111, said that the Appellant was completely outside the range of the collision, and added: "I cannot accept that John Young could reasonably have foreseen, or, more correctly, the reasonably hypothetical observer could reasonably have foreseen, thelikelihood that anyone placed as the Appellant was, could be affected in the member in which she was."

10

Lord porter at page 119, said: "In order, however, to establish a duty towards herself the Appellant must still show that the cyclist should reasonably have foreseen emotional injury to her as a result of his negligent driving, and, as I have indicated, I do not think she has done so."

11

The Appellant in this case was not very far from the scene of the accident, and one would have thought that the motor cyclist owed her a duty and would have been responsible to her in damages if, as the result of the collision with the motor car, there had been an explosion which caused bodily injury to her, but Lord Thunderstone said at pages 98 and 99: "At the time of the collision with the motor car 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 ricocheting 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." Lord Thenkerton was, of course, dealing with a claim in respect of nervous shook, and his observation on this point must be limited to the case with which he was dealing.

12

As I have said, the view of all their Lordships in that case was that the motor cyclic owed no duty to the Appellant, and that consequently he was not guilty of any negligence in relation to her, so that she could not recover damages for the shook which she had abstained.

13

When the Defendant's driver in the present case backed his taxicab so that it came into contest with the tricycle of the plaintiff's little boy he was inGreenfield Road, about its junction with Birstall Road. The plaintiff lived at No. 12 Birstall Road. She was looking out of an upstairs window when she heard a scream; she saw the taxicab on the tricycle, but she did not see the boy at the time; she ran downstairs and out into the road and found her little boy running towards her; he was not much hurt. According to the Judge's finding, she was 70 to 80 yards away from the site of the accident up the side road. The taxicab had only moved (back a short distance along Greenfield Road. We were told that the Defendant's driver, who had taken a passenger to No. 51, was about to turn in order to go back towards Seven Sisters Road.

14

If there was no duty owed to the Appellant in the case of Hay or Bourhill v. Young, I cannot see how there was any owed by the Defendant to the mother on the facts of this case. In Bourhill's case Lord Russell of Killowen at page 102, and Lord Macmillan at page 104, adopted the words of Lord Jamieson: "No doubt the duty of a driver is to use proper care not to cause injury to persons on the highway or in premises adjoining the highway, but it appears to me that his duty is limited to persons so placed that they may reasonably be expected to be injured by the omission to take such care." And Lord Macmillan added: "The duty to take care is the duty to avoid doing or omit tong to do anything the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed."

15

Can it be said that the driver (or any driver in the world) could reasonably or probably anticipate that injury — either physical from shook — would be, caused to the mother who was in No. 12 Birstall Road whenhe caused his taxicab to more backwards a short distance along Greenfield Road without looking to see if anyone was immediately behind? There can surely be only one answer to that question. The driver owed a duty to the boy, but he know nothing of the mother; she was not on the highway; he could not know that she was at the window, nor was...

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