Page v Smith

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Keith of Kinkel,Lord Ackner,Lord Jauncey of Tullichettle,Lord Browne-Wilkinson,Lord Lloyd of Berwick
Judgment Date11 May 1995
Judgment citation (vLex)[1995] UKHL J0511-1

[1995] UKHL J0511-1

House of Lords

Lord Keith of Kinkel

Lord Ackner

Lord Jauncey of Tullichettle

Lord Browne-Wilkinson

Lord Lloyd of Berwick

Page
(Appellant)
and
Smith
(Respondent)
1

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

Lord Keith of Kinkel

My Lords,

2

On 24 July 1987 the plaintiff, Mr. Page, was involved in a motor accident. He was driving his Volvo car along a road in Bury St. Edmunds when the defendant, Mr. Smith, driving his Datsun car in the opposite direction, cut across to enter a side road. A collision occurred. The plaintiff sustained no bodily injury. Neither did the defendant or his wife and child who were with him in his car. However, the plaintiff had for a very long time been suffering from a condition variously described as myalgic encephalomyelitis (ME), or chronic fatigue syndrome (CFS) or post viral fatigue syndrome (PVFS), which had manifested itself from time to time with different degrees of severity. The plaintiff had suffered a particularly severe attack in March 1987, apparently as a result of a viral infection, but his evidence was that he was recovering from it and hoped to be able to return to his work as a teacher in September 1987. The plaintiff took proceedings against the defendant claiming damages for personal injuries caused by the defendant's negligence. His case was that his condition of what I shall for convenience refer to as CFS had as a result of the accident become chronic and permanent so that he would never be able to work again. Trial took place before Otton J., who on 22 December 1992 found in the plaintiff's favour and awarded him damages of £162,153. The defendant appealed, and on 30 March 1994 the Court of Appeal (Ralph Gibson, Farquharson and Hoffmann L.JJ.) reversed the decision of Otton J. and entered judgment for the defendant. The plaintiff now appeals to your Lordships' House.

3

The question primarily at issue is whether in claims for damages due to nervous shock it is in all cases incumbent upon the plaintiff to prove that injury by nervous shock was reasonably foreseeable by the defendant, or whether it suffices, where the plaintiff was himself involved in an accident, for him to prove that personal injury of some kind was reasonably foreseeable as a result of it. The trial judge took the latter view but the Court of Appeal unanimously took the former. Ralph Gibson L.J. was in addition of the opinion that the plaintiff had not proved that his recrudescence of CFS was caused by the accident. The other two members of the Court of Appeal did not deal with that matter.

4

It is necessary at the outset to particularise what is meant by "nervous shock," such as may result in liability for damages. The decided cases indicate that it means a reaction to an immediate and horrifying impact, resulting in some recognisable psychiatric illness. There must be some serious mental disturbance outside the range of normal human experience, not merely the ordinary emotions of anxiety, grief or fear. As was observed by Lord Oliver of Aylmerton in Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310, 407, the cases divide broadly into two categories, those in which the plaintiff was involved as a participant in the incident which gave rise to the action, and those in which the plaintiff was a witness to injury caused to others, or to the immediate aftermath of an accident to others. The first category includes Dulieu v. White & Sons [1901] 2 K.B. 669, where the plaintiff was terrified by a cart and horses bursting into the public house where she was employed, and Schneider v. Eisovitch [1960] 2 Q.B. 430, where the plaintiff was herself injured in the accident which resulted in the death of her husband. Cases in the second category include Hambrook v. Stokes Brothers [1925] 1 K.B. 141, where a mother was terrified by the prospect of injury to her children from a runaway lorry, and Mcloughlin v. O'Brian [1983] 1 A.C. 410, where the plaintiff shortly after a road accident saw her husband and children badly injured in hospital. Liability for negligence depends upon proof both that it was reasonably foreseeable that injury would result from the act or omission called in question and that a relationship of proximity existed between plaintiff and defendant. Where the plaintiff is personally involved in a terrifying incident proof of proximity presents no problem. Where, however, the plaintiff is what may be described as a secondary victim proximity may be very difficult to establish. It was held to exist in McLouglin v. O'Brian [1983] 1 A.C. 410 but not in Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310. Proximity clearly existed in the present case. Further, it was clearly reasonably foreseeable that the plaintiff might suffer physical injury in the accident, though in the event he did not. The question is whether or not the plaintiff was required to prove that it was reasonably foreseeable that he would suffer such nervous shock as was capable of leading to some identifiable illness.

5

The decided cases reveal several observations indicating that this question is to be answered in the affirmative.

6

In King v. Phillips [1953] 1 Q.B. 429, 441 Denning L.J., said:

"Howsoever that may be, whether the exemption for shock be based on want of duty or on remoteness, there can be no doubt since Bourhill v. Young [1943] A.C. 92 that the test of liability for shock is foreseeability of injury by shock."

7

That statement was endorsed by Viscount Simonds in The Wagon Mound (No. 1) [1961] A.C. 388, 426.

8

In Mount Isa Mines Ltd. v. Pusey (1970) 125 C.L.R. 383, 402 Windeyer J. said:

"In what way does one test whether a particular harm is of the genus that was foreseeable? We have at least one 'fixed and definite line.' Liability for nervous shock depends on foreseeability of nervous shock. That, not some other form of harm, must have been a foreseeable result of the conduct complained of. The particular pathological condition which the shock produced need not have been foreseeable. It is enough that it is a 'recognisable psychiatric illness.'"

9

In Jaensch v. Coffey (1984) 54 A.L.R. 417, 452 Deane J. said, referring to Bourhill v. Young [1943] A.C. 97:

"One finds in the judgments an implicit (explicit in the case of Lord Porter, at p. 119) acceptance of a refinement of the ordinary test of reasonable foreseeability of injury which has subsequently received general acceptance: in the case of mere psychiatric injury, the requirement of reasonable foreseeability will not be satisfied unless injury in that particular form, as distinct from personal injury generally … was reasonably foreseeable." (Deane J.'s underlining)

10

Later, he said, at p. 460:

"The limitations upon the ordinary test of reasonable foreseeability in cases of mere psychiatric injury are conveniently stated in negative form. Two of them have already been mentioned. The first of those is that reasonable foreseeability of risk of personal injury generally will not suffice to give rise to a duty of care to avoid psychiatric injury unassociated with conventional physical injury: a duty of care will not arise unless risk of injury in that particular form was reasonably foreseeable."

11

In The Wagon Mound (No. 2) [1967] 1 A.C. 617, 636, Lord Reid stated as a general proposition applicable to cases based on negligence:

"It has now been established by The Wagon Mound (No. 1) [1961] A.C. 388 and by Hughes v. Lord Advocate [1963] A.C. 837 that in such cases damages can only be recovered if the injury complained of was not only caused by the alleged negligence but was also an injury of a class or character foreseeable as a possible result of it."

12

That general proposition is valid in principle both as regards persons directly involved in an accident who claim on grounds of nervous shock and as regards those who claim as secondary victims. Reasonable foreseeability being the test, there is no logical ground for distinguishing between the two classes of claimants.

13

A considerable amount of argument ranged over the question whether in applying the test of reasonable foreseeability in cases of nervous shock matters fell to be considered prospectively or ex post facto. In Bourhill v. Young [1943] A.C. 92, 110, Lord Wright said:

"It is here, as elsewhere, a question of what the hypothetical reasonable man, viewing the position, I suppose ex post facto, would say it was proper to foresee."

14

In McLoughlin v. O'Brian [1983] A.C. 410 Lord Wilberforce spoke to similar effect at p. 420, and Lord Bridge of Harwich at p. 432. I think that what these judges had in mind was that it is necessary to look at the circumstances as they actually occurred and consider whether the hypothetical reasonable man, when directing his mind to the act or omission which is called in question, would have foreseen those circumstances, including that some person in the position of the plaintiff might as a result of what happened suffer nervous shock leading to an identifiable illness. Lord Wilberforce, at p. 422 in McLoughlin v. O'Brian mentioned that one of the factors in the light of which the claim had to be judged was the nature of the accident.

15

Foreseeability of nervous shock is to be judged in the light of what would be suffered by a person of normal fortitude. In Bourhill v. Young Lord Wright said, at p. 110:

"What is now being considered is the question of liability, and this, I think, in a question whether there is a duty owing to members of the public who come within the ambit of the act, must generally depend on a normal standard of susceptibility."

16

Lord Porter said much the same thing at p. 117, and in McLoughlin v. O'Brian Lord Russell of Killowen said, at p. 429:

"… the plaintiff is to be regarded as of normal disposition or phlegm: we are therefore not concerned to investigate...

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