The Shock Cases And Area Of Risk
| DOI | http://doi.org/10.1111/j.1468-2230.1953.tb02762.x |
| Author | A. L. Goodhart |
| Published date | 01 January 1953 |
| Date | 01 January 1953 |
THE
SHOCK
CASES
AND
AREA
OF
RISK
IN
his classic essay
on
university politics,
“
Microscosmographia,”
’
Professor Cornford discussed the various arguments which can
be
advanced in favour of doing nothing. Of these, he said, the most
important is the thin end of the wedge argument
:
“The
Principle
01
the’Wedge
is
that you should not act
justly now for fear of raising expectations that you may act
still more justly in the future-expectations which you are
afraid you will not have the courage
to
satisfy.”
With slight modifications, this argument has at times proved
not
unpopular in legal circles, put instead of referring
to
“,a
wedge
”
lawyers are inclined to speak of
“
opening a wide field,”
which they tend
to
regard with some alarm.
It
is diflicult
to
see
why,
if
the field should prove
to
be a fertile one, this process should
be considered with such disfavour.
On
the other hand,
if
it
should
prove, as is generally the case, only
-of
limited extent, then the
exaggerated fears have been unnecessary.
A
striking illustration
of the effect of this fear can
be
found in the brief history of the
shock cases, as they have been called, which have tended to vary
in
spirit from extreme caution to hesitant experimentation.
The history begins with an illustration
of
extreme caution,
because, in
Victorian Railway Commissioners
v.
Coultm,s
the Privy
Council allowed an appeal from the Supreme Court of Victoria
which had held that the respondent, who had received a violent
shock owing to the negligence of the appellants, was entitled
to
damages for the physical illness which had resulted. The Privy
Council held that such damages could not be considered
“
a conse-
quence which in the ordinary course of things would flow from the
negligence of the gate-keeper.” This,
8s
has been frequently
pointed out, is an
odd
conclusion, because it is not surprising that
a woman, who has escaped death by inches, should receive a shock
causing her physical injury. The true ground of the case can
be
found in the fear that a dangerous precedent would be created if
nervous shock.were recognised as a cause of action.
Sir
Richard
Couch, in deliverihg the judgment of the Board, said
‘
:
“Not
only
in such a case
as
the present, but in every
case where an accident caused by negligence had given a
person a serious nervous shock, there might be a claim for
damages
on
account
of
mental injury. The difficulty which
now often exists in case
of
alleged physical injuries
of
deter-
mining whether they were caused by the negligent act would
1
4th
ed:.
1949.
2
p.
15.
3
flW)
13
App.Cas.
82.2.
4
p.
925.
14
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