McLoughlin v O'Brian

JurisdictionEngland & Wales
JudgeLORD JUSTICE STEPHENSON,LORD JUSTICE GRIFFITHS
Judgment Date16 December 1980
Judgment citation (vLex)[1980] EWCA Civ J1216-4
Docket Number1976 M 534
CourtCourt of Appeal (Civil Division)
Date16 December 1980
Rosina Mclaughlin
(Appellant)Plaintiff
and
Thomas Alan O'Brian
(Respondent)First Defendant
and
A. E. Docker & Sons Ltd.
(Respondents) Second Defendants
and
Raymond Sygrove
(Respondent) Third Defendant
and
Ernest Doe & Sons Ltd.
(Respondents) Fourth Defendants

[1980] EWCA Civ J1216-4

Before:

Lord Justice Stephenson

Lord Justice Cumming - Bruce

and

Lord Justice Griffiths

1976 M 534

In The Supreme Court of Judicature

Court of Appeal

On Appeal from The High Court of Justice Queen's Bench Division

Cambridge District Registry (Mr. Justice Boreham)

MR. MICHAEL OGDEN, QC and MR. JONATHAN HAWORTH (instructed by Messrs Vinters, solicitors, Cambridge) appeared on behalf of the Appellant (Plaintiff).

MR. MICHAEL TURNER, QC and MR. J. LEIGHTON-WILLIAMS (instructed by Messrs Hextall Erskine & Co. solicitors, West Sussex) appeared on behalf of the Respondents (Defendants).

LORD JUSTICE STEPHENSON
1

I am authorised to say that Lord Justice Cumming-Bruce, who is not able to be here this morning, agrees with both the judgments which are about to be delivered.

2

On 23rd October 1978 Mr. Justice Boreham decided that the plaintiff had no claim against the four defendants for shock, distress and injury to her health and gave judgment for the defendants. He also refused the plaintiff leave to present a petition of appeal to the House of Lords pursuant to the 'leap-frogging' provision of S.12 of the Administration of Justice Act 1969.

3

The facts and circumstances which give rise to this claim and appeal are these.

4

The plaintiff is the wife of Thomas McLaughlin and was the mother of four children. On 19th October 1973 her elder son George, then aged 17, was driving his father and his two young sisters, Kathleen aged 7 and Gillian aged nearly 3, in a motor car along the A604 road from Cambridge to Haverhill when it collided with a motor lorry owned by the second defendants and driven by the first defendant. That lorry had just collided with another motor lorry owned by the fourth defendants and driven by the third defendant. There is no dispute that the collision with the motor car was caused by the negligence of the defendants and that they were responsible in law for the injuries thereby caused to Mr. McLaughlin and the three children in the motor car with him. Those injuries were: to George, injuries to his head and face, including cerebral concussion, fractures of both scapulae and bruising and abrasions; to Kathleen, concussion, a fracture of the right clavicle, bruising, abrasions and shock; toGillian, such serious injuries that she died almost immediately.

5

But the defendants deny that they owed the plaintiffs any duty of care or that they broke any duty by the negligent driving which injured her husband and children. Her injuries were of a different kind and were pleaded as:

"… shock, distress and injury to health, loss and damage.

The Plaintiff was born on the 23rd June 1933. She suffered severe shock, organic depression, and a change of personality. Symptoms include recurrent headaches, irritability, coughs, loss of voice, loss of appetite, poor sleeping, depression and fatigue, lapse of memory and loss of concentration, an irrational fear of the unknown, and perpetual myoclonus of the left orbital muscles.

The above has severely affected her abilities as a wife and mother. She has been and remains under medical treatment."

6

The nature and extent of those injuries are not admitted, but the court is asked to assume that the plaintiff has developed, and received medical treatment for, a condition of nervous shock, as distinct from grief or sorrow, and the mental distress which that causes, and is a woman of reasonable fortitude and normal susceptibility to such shock. The condition for which she claims damages from the defendants was caused in the following way.

7

The accident took place at about 4 pm. The plaintiff was then at the family home on the same A. 604 road at Sawston, about 2 miles from the scene of the accident. The first she heard of the accident was the bells of a passing ambulance some time in the late afternoon. About 6.pm a Mr. Pilgrim came and told her that there had been an accident, that he thought George was dying, that he did not know about Gillian and that he did not know where her husband was.

8

He then drove her a distance of about 8 or 10 miles to Addenbrooke's Hospital in Cambridge. There she saw her other son, Michael, 11 years old, apparently uninjured but crying, who told her that Gillian was dead. She was then taken down a passage past windows through which she could see Kathleen, crying, looking terrible, covered in some black stuff, her face all cut and oil all over hair and face. She was then taken on down the passage, where she could hear a scream and loud shouting which she knew came from George, to see her husband. He was sitting with his head in his hands, covered in oil or something, with mud all over the floor. When he saw her, he limped across the room and started crying but was too dazed to talk. She could still hear George shouting and ranting and laughing. A doctor took her to see him and told her, "Don't be too frightened by what you might see". She saw him, only one side of his face and body uncovered and still shouting. She took his hand and managed to make him understand she was there before he lost consciousness. Then she went back to Kathleen. She had lacerations to her face which had been treated and her arm was strapped or bandaged; she did not speak but kept crying and clinging to her mother and would not let her go "and she was like this for weeks and weeks". Then Mr. Pilgrim drove her and her husband and Kathleen home.

9

It would be difficult to resist the conclusion that at least some part of the plaintiff's subsequent physical and mental condition was caused by what the judge called the 'harrowing experience' of being told what she was by Mr.Pilgrim and of seeing and hearing what she did at the hospital. The question for the court is whether the defendants are legally liable to compensate her for her condition. The statement of claim sets out the facts of the two collisions, alleges that the collision with the motor car was caused by the defendants' negligence, then alleges that the injuries and death of those in the motor car were caused by that negligence and finally alleges, in paragraph 7, amplified at the court's suggestion by amendment on the hearing of the appeal:

"7. At about 6 pm on the said date the Plaintiff was informed of the accident by one Pilgrim, and told that members of her family were involved and had been injured. She thereupon went to Addenbrooke's Hospital Cambridge, where she was told that her child Gillian McLaughlin was dead. She there saw heard and spoke to her husband Thomas McLaughlin and her children George and Kathleen McLaughlin, who were suffering from the aforesaid injuries. As was reasonably foreseeable, by reason of the matters aforesaid the Plaintiff has suffered shock, distress and injury to health, loss and damage."

10

Then follow the particulars of injuries which I have already read.

11

Claims for damages for injury by shock to 'A' from physical injury caused to 'B' by 'Cs' negligence have been adjudicated by the courts in a number of reported cases both in this country and elsewhere. The judge reviewed a good number of them. He concluded from them (at page 32 of the transcript of his judgment) that his decision depended on the answer to the basic question: "Would the hypothetical reasonable bystander have foreseen the risk of injury by shock to this plaintiff if the defendants failed to exercisereasonable care in the driving of their motor vehicles on the highway at the material place and time?" He answered it in the defendants' favour in these words: "I feel bound by principle and what I conceive to be good sense, if not constrained by authority, to conclude that in such circumstances (as those of this case) injury to the mother is too remote a possibility to come within the ambit of the foresight of the reasonable bystander. Sorrow and hurt of the feelings and grief he would doubtless foresee but not, I think, injury by shock".

12

That conclusion is challenged on three grounds succinctly stated in the notice of appeal as follows:

1. That the Learned Judge was wrong in deciding that the Respondent owed no duty to the Appellant to avoid exposing her to risk of injury by shock.

2. That it was reasonably foreseeable that the Appellant might suffer injury from shock (a) as a result of being told of the death of her child and of injuries to other members of her family, and (b) as a result of what she saw and heard when she visited the injured members of her family in hospital.

3. That the Respondent was in breach of his duty of care towards the Appellant and is liable for such injury by shock as the Appellant suffered."

13

Those grounds have been ably elaborated by Mr. Ogden in the course of taking us through many of the relevant authorities. At the end of all the arguments we have heard I have come to the conclusion that there are two questions, not one, to be answered. I take them from the speech of Lord Wilberforce in Anns v Merton London Borough Council 1978 AC at page 751:

"Through the trilogy of cases in this House - Donoghue v Stevenson (1932) AC. 562, Hedley Byrnes & Co. Ltd. v Heller & Partners Ltd (1964) AC. 465 and Dorset Yacht Co. Ltd v Home Office (1970) AC. 1004, the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrong-doer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such...

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