McLoughlin v O'Brian

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Wilberforce,Lord Edmund-Davies,Lord Russell of Killowen,Lord Scarman,Lord Bridge of Harwich
Judgment Date06 May 1982
Judgment citation (vLex)[1982] UKHL J0506-3

[1982] UKHL J0506-3

House of Lords

Lord Wilberforce

Lord Edmund-Davies

Lord Russell of Killowen

Lord Scarman

Lord Bridge of Harwich

McLoughlin (Married Woman) A.P.
(Appellant)
and
O'Brian and Others
(Respondents)
Lord Wilberforce

My Lords,

1

This appeal arises from a very serious and tragic road accident which occurred on 19th October 1973 near Withersfield, Suffolk. The appellant's husband, Thomas McLoughlin, and three of her children, George, aged 17, Kathleen, aged 7 and Gillian, nearly 3, were in a Ford motor car: George was driving. A fourth child, Michael, then aged 11, was a passenger in a following motor car driven by Mr. Pilgrim: this car did not become involved in the accident. The Ford car was in collision with a lorry driven by the first respondent and owned by the second respondent. That lorry had been in collision with another lorry driven by the third respondent and owned by the fourth respondent. It is admitted that the accident to the Ford car was caused by the respondents' negligence. It is necessary to state what followed in full detail.

2

As a result of the accident, the appellant's husband suffered bruising and shock; George suffered injuries to his head and face, cerebral concussion, fractures of both scapulæ and bruising and abrasions; Kathleen suffered concussion, fracture of the right clavicle, bruising, abrasions and shock; Gillian was so seriously injured that she died almost immediately.

3

At the time, the appellant was at her home about two miles away; an hour or so afterwards the accident was reported to her by Mr. Pilgrim, who told her that he thought George was dying, and that he did not know the whereabouts of her husband or the condition of her daughter. He then drove her to Addenbrooke's hospital, Cambridge. There she saw Michael, who told her that Gillian was dead. She was taken down a corridor and through a window she saw Kathleen, crying, with her face cut and begrimed with dirt and oil. She could hear George shouting and screaming. She was taken to her husband who was sitting with his head in his hands. His shirt was hanging off him and he was covered in mud and oil. He saw the appellant and started sobbing. The appellant was then taken to see George. The whole of his left face and left side was covered. He appeared to recognise the appellant and then lapsed into unconsciousness. Finally, the appellant was taken to Kathleen who by now had been cleaned up. The child was too upset to speak and simply clung to her mother. There can be no doubt that these circumstances, witnessed by the appellant, were distressing in the extreme and were capable of producing an effect going well beyond that of grief and sorrow.

4

The appellant subsequently brought proceedings against the respondents. At the trial, the judge assumed, for the purpose of enabling him to decide the issue of legal liability, that the appellant subsequently suffered the condition of which she complained. This was described as severe shock, organic depression and a change of personality. Numerous symptoms of a physiological character are said to have been manifested. The details were not investigated at the trial, the court being asked to assume that the appellant's condition had been caused or contributed to by shock, as distinct from grief or sorrow, and that the appellant was a person of reasonable fortitude.

5

On these facts, or assumed facts, the trial judge (Boreham J.) gave judgment for the respondents holding, in a most careful judgment reviewing the authorities, that the respondents owed no duty of care to the appellant because the possibility of her suffering injury by nervous shock, in the circumstances, was not reasonably foreseeable.

6

On appeal by the appellant, the judgment of Boreham J. was upheld, but not on the same ground. Stephenson L.J. took the view that the possibility of injury to the appellant by nervous shock was reasonably foreseeable and that the respondents owed the appellant a duty of care. However, he held that considerations of policy prevented the appellant from recovering. Griffiths L.J. held that injury by nervous shock to the appellant was "readily foreseeable” but that the respondents owed no duty of care to the appellant. The duty was limited to those on the road nearby. Cumming-Bruce L.J. agreed with both judgments. The appellant now appeals to this House. The critical question to be decided is whether a person in the position of the appellant, i.e. one who was not present at the scene of grievous injuries to her family but who comes upon those injuries at an interval of time and space, can recover damages for nervous shock.

7

Although we continue to use the hallowed expression "nervous shock", English law, and common understanding, have moved some distance since recognition was given to this symptom as a basis for liability. Whatever is unknown about the mind-body relationship (and the area of ignorance seems to expand with that of knowledge), it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind. There may thus be produced what is as identifiable an illness as any that may be caused by direct physical impact. It is safe to say that this, in general terms, is understood by the ordinary man or woman who is hypothesised by the courts in situations where claims for negligence are made. Although in the only case which has reached this House ( Bourhill v. Young [1943] A.C. 92) a claim for damages in respect of "nervous shock" was rejected on its facts, the House gave clear recognition to the legitimacy, in principle, of claims of that character. As the result of that and other cases, assuming that they are accepted as correct, the following position has been reached:

1. While damages cannot, at common law, be awarded for grief and sorrow, a claim for damages for "nervous shock" caused by negligence can be made without the necessity of showing direct impact or fear of immediate personal injuries for oneself. The reservation made by Kennedy J. in Dulieu v. White & Sons [1901] 2 K.B. 669, though taken up by Sargant L.J. in Hambrook v. Stokes Bros. [1925] 1 K.B. 141, has not gained acceptance, and although the respondents, in the courts below, reserved their right to revive it, they did not do so in argument. I think that it is now too late to do so. The arguments on this issue were fully and admirably stated by the Supreme Court of California in Dillon v. Legg (1968) 29 A.L.R. 3rd, 130.

2. A plaintiff may recover damages for "nervous shock" brought on by injury caused not to him or herself but to a near relative, or by the fear of such injury. So far (subject to 5 below), the cases do not extend beyond the spouse or children of the plaintiff (Hambrook v. Stokes, u.s., Boardman v. Sanderson [1964] 1 W.L.R. 1317. Hinz v. Berry [1970] 2 Q.B. 40—including foster children—(where liability was assumed) and see King v. Phillips [1953] 1 Q.B. 429).

3. Subject to the next paragraph, there is no English case in which a plaintiff has been able to recover nervous shock damages where the injury to the near relative occurred out of sight and earshot of the plaintiff. In Hambrook v. Stokes an express distinction was made between shock caused by what the mother saw with her own eyes and what she might have been told by bystanders, liability being excluded in the latter case.

4. An exception from, or I would prefer to call it an extension of, the latter case, has been made where the plaintiff does not see or hear the incident but comes upon its immediate aftermath. In Boardman v. Sanderson the father was within earshot of the accident to his child and likely to come upon the scene: he did so and suffered damage from what he then saw. In Marshall v. Lionel Enterprises [1972] 2 Ontario Reports 117, the wife came immediately upon the badly injured body of her husband. And in Benson v. Lee [1972] V.R. 789, a situation existed with some similarity to the present case. The mother was in her home one hundred yards away, and, on communication by a third party, ran out to the scene of the accident and there suffered shock. Your Lordships have to decide whether or not to validate these extensions.

5. A remedy on account of nervous shock has been given to a man who came upon a serious accident involving numerous people immediately thereafter and acted as a rescuer of those involved (Chadwick v. British Railways Board [1967] 1 W.L.R. 912). "Shock" was caused neither by fear for himself nor fear or horror on account of a near relative. The principle of "rescuer" cases was not challenged by the respondents and ought, in my opinion, to be accepted. But we have to consider whether, and how far, it can be applied to such cases as the present.

8

Throughout these developments, as can be seen, the courts have proceeded in the traditional manner of the common law from case to case, upon a basis of logical necessity. If a mother, with or without accompanying children, could recover on account of fear for herself, how can she be denied recovery on account of fear for her accompanying children? If a father could recover had he seen his child run over by a backing car, how can he be denied recovery if he is in the immediate vicinity and runs to the child's assistance? If a wife and mother could recover if she had witnessed a serious accident to her husband and children, does she fail because she was a short distance away and immediately rushes to the scene? (cf. Benson v. Lee, u.s.). I think that unless the law is to draw an arbitrary line at the point of direct sight and sound, these arguments require acceptance of the extension mentioned above under 4 in the interests of justice.

9

If one continues to follow the process of logical progression, it is hard to see why the present plaintiff also should...

To continue reading

Request your trial
215 cases
8 books & journal articles
  • Liability for Work Stress: Kohler Ten Years On
    • Australia
    • University of Western Australia Law Review Nbr. 39-2, September 2015
    • 1 September 2015
    ...383; Jaensch v Coffey (1984) 155 CLR 549. Gallop and Ryan JJ also referred to the then leading House of Lords case, McLoughlin v O’Brian [1983] 1 AC 410, and to the discussion of these issues in the first edition of Handford, above n 7. Interestingly, Gillespie v Commonwealth was not cited ......
  • Misconceptions about Wrongful Conception
    • United Kingdom
    • The Modern Law Review Nbr. 65-6, November 2002
    • 1 November 2002
    ...1053–1054 per Slade LJ, expresslyadopting the public policy analysis of Peter Pain J in Thake vMaurice n 9 above.60 McLoughlin vO’Brian [1983] 1 AC 410, 430.61 Fairchild vGlenhaven Funeral Services Ltd [2002] UKHL 22, [2002] 3 All ER 305, 336 at para 36.62 n 8 above, 94, quoting Kealey vBer......
  • Interpreting the Politics of the Judiciary: The British Senior Judicial Tradition and the Pre‐emptive Turn in Criminal Justice
    • United Kingdom
    • Journal of Law and Society Nbr. 41-3, September 2014
    • 1 September 2014
    ...Law 726.63 Ewing, op. cit., n. 10; Gearey, op. cit., n. 8, p. 91.64 N. Lacey, The Prisoners' Dilemma (2008) 96.65 McLoughlin v. O'Brian [1983] 1 A.C. 410, per Lord Scarman, para. 430. See, also,Robertson, op. cit., n. 3.66 Gearey, op. cit., n. 8, p. 88.67 S. Fredman, `From Deference to Demo......
  • 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
    ...better off than bereaved relatives who were not allowed to recover in the Alcock case”. 27White (n 24) 510. 28McLoughlin v O’Brian [1983] 1 AC 410 (HL) 422 (Lord Wilberforce). [2016] Southampton Student Law Review Vol.6! society.29The public would have lost respect in the judicial system an......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT