H ILLSBOROUGH “R EM O TEN ESS -
VOLUME T H R E E
R E P O R T E D CASES
Wilkinson - v - Downton 1897 2 Q.B. 57
Mary T.
R. C ur rie - v -
William Wardrop 1927 S .C .
538
M a r g a r e t Walker - v - The P i t l o c h r y Motor Company
1930 S .C . 565
Hambrook - v - St oke s Br ot h er s 1924 1 K.B.
Owens - v -
L i v e r p o o l C or p o ra t io n 1938 1 K.B.
B o u r h il l - v - Young 1943 A.C.
Dooley - v - Cammell L a ir d
Reports 271
King - v -
Phillips
C h a d w ic k - v 912
British
1951 1 L l o y d ' s List Law
1317
R a i l w a y s Board 1967 1 W.L.R.
Berry 1972 2 Q .B .
M c l o u g h l in - v - O ’ B ri an
British
429
1964 1 W.L.R.
40
C a r li n - v - H e l i c a l Bar Ltd.
Galt - v -
394
92
1953 1 Q.B.
Boardman - v - S a n d e r s o n
Hinz - v -
141
1970 KIR 154
1982 2 ALL ER 298
R a i l w a y s Board 1983 NLJ 870
Wigg - v -
British
R ailways
Attia - v -
B r i t i s h Gas p ic
Board 1986 TLR
1987 3 ALL ER 455
C ap a r o I n d u s t r i e s pic - v - D i c k m a n
Ja e n s c h - v - Coffey 1984 ALJ
1990 1 ALL ER 568
2Q .B .
57
QUEEN’S BENCH DIVISION.
W IL K IN S O N v. D O W N T O N .
Action— Cause o f—Xervcus Shock—Practical Joke causing—Remoteness of
Damage.
The defendant, by way of a practical joke, falsely represented to the
plaintiff, a married woman, that her husbaDd had met -with a serious
accident whereby both his legs were broken. The defendant made the
statement with intent that it should be believed to be true. The plaintiff
believed it to be true, and in consequence suffered a violent nervous shock
which rendered her ill:—
E tld, that these facts constituted a good cause of action.
Victorian Railways Commissioners v. Coultas, (1SSS) 13 App. Cas. 222,
and Allsop v. Allsop, (I860) 5 H. & N. 534, considered.
F u r t h e r C o n s i d e r a t i o n ' before W right J . after trial with
a jury.
On April 9, 1896, Thomas W ilkinson, the husband of the
plaintiff, w ent to a race-meeting, and on the evening of the
sam e day the defendant came to the plaintiff's house and repre­
sented to her that her husband, while returning in a wagonette
w ith some friends from the races, had m et with an accident aad
had both his legs broken, that he was lying at T he E lm s publichouse at Leytonstone, and had desired the defendant to request
th e plaintiff to go at once with a cab and some pillows to fetch
h im home. These statements were false. T hey were meant
by the defendant to be believed to be true, and the plaintiff so
believed them , with the result that she became seriously ill
from a shock to her nervous system. She also on the faith of
the defendant’s statement incurred a small expense for railway
fares of persons whom she sent to Leytonstone to see after her
husband. T he jury assessed the expense of the railway fares
at Is. lOJd., and the damages for the injury caused by the
nervous shock at 100/.
I t was contended on behalf of the defendant that so far as
the damage caused to the plaintiff by nervous shock was
concerned the action could not be supported.
W arburton, and A . N . Talbot, for the plaintiff.
A binger, for the defendant.
1897
Hay 8.
•
QUEEN’S BENCH DIVISION.
[1897]
J. In this case the defendant, in the execution of
what he seems to have regarded as a practical joke, represented
to the plaintiff that ho was charged by her husband with a
message to her to the effect that her husband was smashed up
in an accident, and was lying at Tho E lm s at Loytonstono
with both legs broken, and that she was to go at once in a
cab with two pillows to fotch him home. All this was false.
Tho cffcct of tlio statement on the plaintiff was a violent shock
to her nervous system, producing vomiting and other more
serious and permanent physical consequences at one time
threatening her reason, and entailing weeks of suffering and
incapacity to her as well as expense to her husband for medical
attendance. These consequences were not in any way tho
result of previous ill-health or weakness of constitution; nor
was there any evidence of predisposition to nervous shock or
any other idiosyncrasy.
In addition to these matters of substance there is a small
claim for Is. 104cZ. for the cost of railway fares of persons sent
by tho plaintiff to Leytonstone in obcdioncc to the protondcd
message. As to this Is. 10i<i. expended in railway fares on the
faith of the defendant’s statement, I think the case is clearly
v
within the decision in Pasley v. Freeman. (1) Tho statement
was a misrepresentation intended to be acted on to tho damage
of the plaintiff.
The real question is as to the 100/., the greatest part of
which is givon as compensation for the female plaintiff's illness
and suffering. I t was argued for her that she is entitled to
recover this as being damage caused by fraud, and therefore
within the doctrine established by Pasley v. Freeman (1) and
Lanyridye v. L ev y. (2) I am not sure that this would not bo
an extension of that doctrine, the real ground of which appears
to be that a person who makes a falso statement intended to
ho acted on must mako good tho damago naturally resulting
from its being acted on. Hero there is no injuria of that kind.
I think, however, that the verdict may bo supportod upon
another ground. T he defendant has, as I assumo for the
moment, wilfully done an act calculated to cause physical
W
b ig iit
(1) (1789) 3 T. It. 51.
• (2) (18.17) 2 M. & W. 619.
2 Q. B.
....
QUEEN’S BENCH DIVISION.
harm to the plaintiff—that is to say, to infringe her legal right
to personal safety, and has in fact thereby caused physical harm
to her. That proposition without more appears to me to state
a good cause of action, there being no justification alleged for
tho act. ■ T his wilful injuria is in law malicious, although no
malicious purpose to cause tho harm which was caused nor
any motive of spite is imputed to the defendant.
I t remains to consider whether tho assumptions involved in
the proposition arc mado out. Ono question is whether tlio
defendant’s act was so plainly calculated to produce some cffcct
of tho kind which was produced that an intention to produce it
ought to ho imputed to the dofendant, regard boing had to tho
fact that tho effect was produced on a person proved to bo in
an ordinary-state of health and mind. I think that it was. It
is difficult to iiuagino that such a statement, made suddenly
and w ith apparent seriousness, could fail to produco grave
effects under the circumstances upon any but an exceptionally
indifferent person, and therefore an intention to produce such
an cffcct must bo imputed, and it is no answer in law to say
that moro harm was dono than was anticipated, for that is
commonly tho case with all wrongs. Tho other question is
whether the effect was, to use tho ordinary phrase, too rcinoto
to be in law regarded as a conscquenco for which tho defendant
is answerable. Apart from authority, I should givo the same
answer and on tho saino ground as the last question, and say
that it was not too remote. W hether, as tho majority of tho
H ouse of Lords thought in L yn ch v. K nigh t (1), the criterion
is in asking what would be tho natural cffcct on reasonablo
persons, or whether, as Lord Wcnsloydalc thought (2), tho
possible infirmities of human nature ought to be recognised,
it seems to me that the connection between the cause and the
cffcct is sufficiently closo and complete. I t is, however, neces­
sary to consider two authorities which arc supposed to have
laid down that illness through mental shock is a too rcmoto or
unnatural consequence of an injuria to cntitlo tlio plaintiff to
recover in a caso where damago is a necessary part of the causo
of action. One is the caso of Victorian lia ilw a y s Commissioners
(1) (1801) 9 II. L. C. 577, at pp. 592, 590.
(2) 9 II. L. C. 577, at p. COO.
59
1897'
WlUUNBOM
V.
D
ow m ton.
W rig h t J .
QUKKN'S BENCH DIVISION.
CO
DH'J7]
2 Q. B.
1897
W
il k in s o n
v.
D
ow nton.
vrright J .
v. Coidtas (1), where it was held in tlio Privy Council that
illness which was tlie effect of shock causcd by fright was too
rcmoto a consequence of a negligent act which caused the
fright, there being no physical liana immediately causcd. T hat
decision was treated in the Court of Appeal in Pugh v. London,
Brighton and South Coast Jig. Co. (2) as open to question. It
is inconsistent with a decision in the Court of Appeal in
Ireland : see Bell v. Great Northern lig . Co. o f Ireland (3), where
the Irish Exchequer Division refused to follow i t ; and it has
been disapproved in the Supreme Court of N ew Y o r k : seo
Pollock on Torts, 4th cd. p. 47 («). (4) Nor is it altogether in
point, for there was not in that ease any clement of wilful
w rong; nor perhaps was the illness so dircct and natural a conscqucncc of the defendant’s conduct as in this case. Oil these
grounds it seems to me that the ease of Victorian Itailw ays
Commissioners v. Coultas (1) is not an authority on which this
case ought to be decidcd.
A more serious difficulty is the decision in Allsop v.
Allsop (5), which was approved by the H ouse of Lords in
L ynch v. K night. (6) In that case it was held by Pollock C.B.,
Martin, Bramwcll, and W ilde B B ., that illness causcd by a
blandcrous imputation of unchastity in the caso of a married
woman did not constitute such spccial damage as would sustain
an action for such a slander. That ease, however, appears to
have been dccidcd on the ground that in all the innumerable
actions for slander there were no precedents for alleging illness
to be sufficient special damage, and that it would be of evil
consequence to treat it as sufficient, because such a rule m ight
lead to an infinity of trumpery or groundless actions. Neither
of these reasons is applicable to the present cose. N or could
such a rule be adopted as of general application without results
which it would be difficult or impossible to defend. Suppose
that a person is in a precarious and dangerous condition, and
another person tells him that his physician has said that he
(1)
(2)
(3)
(4)
13 A pp. Cm . 222.
[189C] 2 Q. B. 248.
(1890) 2C L. It. Ir. 428.
[This decision Las since been
reversed on Appeal: Mitchell v. It, It.
Co., 161 N. Y. 107.—F. I*.]
(G)G II. & N. 534.
(G) 9 II. L. C. G77.
*
iNCII DIVISION.
has but a day to livo. In such a ease, if death onsucd from
the shock causcd by tho falso statomcnt, I cannot doubt that
at this day tho caso m ight be ono of criminal hoinicidc, or that
if a serious aggravation of illness ensued damages might be
rccovcrcd. I think, however, that it m ust be admitted that
the present case is w ithout precedent. Some E nglish deci­
sions—such as Jones v. Boyce (1); W ilkins v. D a y (2); H arris
v. Mobbs (3)— aro citcd in licvcu on Ncgligcnce as inconsistent
with the decision in Victorian lia ilw a y s Commissioners v.
Coultas. (-I) B ut I think that those cases arc to bo explained
on a different ground, namely, that the damago which im m e­
diately resulted from the act of the passenger or of the horse
was really the result, not of that act, but of a fright which
rendered that act involuntary, and which therefore ought to
be regarded as itself the dircct and immediate cause of the
damage. In S m ith v. Johnson 10 Co. (5), dccidcd in January
last, Bruce J. and I held that where a man was killed in the
sight of the plaintiff by the defendant’s negligence, and the
plaintiff became ill, not from the shock from fear of harm to
himself, but from the shock of seeing another person killed,
this harm was too rcmoto a consequcnco of tho negligence.
B u t that was a very different case from the present.
There must be judgment for the plaintiff for 100/. Is. lOJ.
Judgment f o r plaintiff.
Solicitor for plaintiff: J. S. Waters.
Solicitor for defendant: G. E . Philbrick.
(3) (1878) 3 Kx. D. 2C8.
(1) (1HIG) 1 Stark. 493.
(4) 13 App. Cas. 222.
(2) (18S3) 12 Q. II. 1). 110.
(5) Unroported.
J. F. C.
Cl
1897
W
il k in s o n
D
ow nton.
t>.
W right J.
o- •
’r ■w-r:
CASES D E C ID E D
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19 27 S.
A t t h e t r ia l cour.se] fo r th e - M e n d e r a s k e d t h e p r e s i d e ^ p - . p
to g iv e c e r t a i n d i r e c t i o n ; to th e j u r v . w h i c h d i r e c t i o n s w*r*
j ;je d e f e n d e r e x c e p t e d , a n d l o d g e d a bii] o f e x c e p t i o n s . w h i c h
forth,
(,:■>, : _ • • T h e r e w a s n o e v i d e n c e o f p e r s o n a l i n i u r v to t h e
p u r s u e i o t h e r t h a n n e r v o u s sh o c k , arid t h e e v i d e n c e w a s t o th e
efiect t h a t t h e s h o c k w a s d u e — in p a r t a t ail e v e n t s — t o th<- f r V . t
w jiich st.e g o t w h e n s h e r e a lis e d t h a t a n a c c i d e n t h a d b e f a l l s U r
c o m p a n i o n a n d t o a l a r m a n d h o r r o r on a c c o u n t of t h e i n j u r i e s w h ich
he h a d s u s t a i n e d .
”
. " u “ b6’~ a lf of t h e p u r s u e r it w a s m a i n t a i n e d t h a t — on t h e asMJir.rt; o n o f f a u l t on t h e d e f e n d e r 's p a r t — s h e w a s e n t i t l e d to d a m a n s
n o t o n . y m r e s p e c t o f n e r v o u s s h o c k su tf e r e d b v h e r d i r e c t l v as a
r e s u i t o f t h e a c c i d e n t b u t also f o r s h o c k s u s t a i n e d b v h e r th r r . u t'h
s e e i n g n e r c o m p a n i o n ^ i n j u r i e s a n d t h r o u g h f r i g h t w h e n she realised
t e e s e r i o u s n a t u r e of t h e a c c i d e n t w h i c h h a d b t f a l l e n him .
O n t h e d e f e n d e r ’s b e h a l f it w a s c o n t e n d e d t h a t t h e p u r s u e r Lad
f a y e d to p r o v e a n y p e r s o n a l i n j u r v d i r e c t l v a t t r i b u t a b l e to t ’t «
d e . e n c . e r s f a i t h — e v e n a s s u m i n g t h a t Le w a s ' t o b is m e for t h e acci­
d e n t — m r e s p e c t of w h i c h d a m a g e s c o u ld be c l a im e d a g a i n s t h im
A l t e r n a t i v e l y it w a s a r g u e d f o r t h e d e f e n d e r t h a t t h e n e r v o u s
shocK s u s t a i n e d b y t h e p u r s u e r w a s a t t r i b u t a b l e , in p a r t a t least,
to a , a r m a n d a n x i e t y f o r h e r c o m p a n i o n a n d t o h o r r o r a t t h e
o f h : s . p a r i e s . a n d . in so f a r a* d u e t o t h e s e cau ses, d id n o t : > 'm
t h e s u o j e s : o f a v a l id c l a im of d a m a g e s a g a i n s t t h e d e f e n d e r .
" A l t e r t h e e v i d e n c e of bo th p a r t i e s h a d been closed, e n d a f t e r t h * :r
resp ectiv e^ co u n s el h a d a d d r e s s e d t h e j u r y , t h e p r e s i d i n g iu d ^ e
cnarge-u jih e j u r y t o t h e etfeet t l j a t . on t h e h v n o t h e s i s t h a t th e
c r i v e r ot t h e _bus w as g u i l t y of a b r e a c h of his d u t y t o e x e r c is e
c a r e tv w a r d s t n e p u r s u e r , a . t h o u g h th e n e r v o u s s h o c k s u s t a i n e d b v
t n e p u r s u e r s h o a i d be h e ld to be d u e sole ly t o t h e a p p r e h e n s i o n for
a n o t n r r . y - t on t h e f a c t s or t h i s ca se n e r v o u s s h o c k so s u s t a i n e d
| ’.ves a c a u s e of a c t i o n to t h e p u r s u e r , w h e r e u p o n co u n s el f o r th e
d e i e n a e r ^ e x c e p t e d a n d h e r e b y e x c e p t s t o t h e s a id d i r e c t i o n a n d
r e q u e s t e a t h e said L o r d M u r r a y t o d i r e c t t h e j u r v t h a t if n o d ir e c t
v
«
T ih rc rA fl'
. . . . . . . . . . . J ___ ^
p h y s i c a l i n j u r ie s a r e p r o v e d a n d n o n e r v o u s ‘s h o c k d u e to r e a s o n ­
a b l e a p p r e h e n s i o n o f i m m e d i a t e p e r s o n a l h r u r i e s to h e r s e l f t h e n
t n e v e r d i c t m u s t be f o r t h e d e f e n d e r , w h ic h d i r e c t i o n t h e =aid L rd
Murrar r e r u s e d to giv e. W h e r e u p o n t h e c o u n s e l f o r t h e d e f e n d e r
r e s p e c t i u i ; y e x c e p t e d t o h is L o r d s h i p 's r e f u s a l .
, “ A n d w h e r e a s t h e s a id L o rd M u r r a y .
d i r e c t e d th * i u r v
t n a t , on t h e h y p o t h e c ' s t h a t t h e d r i v e r o: t h e bu s wa« c ' u i l t y ' . f a
b r e a c h of n :s d u t y t o ex e rcise c a r e t o w a r d s t h e p u r s u e r "if th e
n erv o u s shock su sta in e d by th e p u r s u e r w as associated w ith a p p r e ­
hension for h e r ow n s a fe ty then the w hole of t h e d am ag e s s u tu r e d
A n d was he d e e d in g a t the head ’ .*A.; \^ c,.
H-., A:j*i Ix suppose
,
e&. ,‘Q.)
V'-‘U
were very lauch concerned for hijjo ? ( A . , F o r both of u s' :: jJ' d i u not
know -i-nat r.ad happened. ,Q.j ^'-iS jt r^,t coni-tm fur v.,.ur swee*.i;eart
1 1 ''?t5 “ t'perK’Ost in yo-jr m i n d ’ iA ., No, i-,
f,,r b,.th ,.f -JS
<<y.)
h a t was your concern for v o u r s e lf 1 i'A.) \V e]]. J was vj«.t n-i a d
‘ (| '
were
th a t a n y t h in g * « - o in c to haf.pen to t , . : )
V010 nc>: * IjC’w- 'Q - ' ^ ou
a friL'r**-: isr/t i h n t it : < ; 'Y * s
(Q.) A n d aloi5? with th e frig ht thut you your*e3f -ot. vou Trtre\ho-kfcd
t o see t!,e :n: -jncs done to yo ur s w e e t h e a r t : isn't t h a t what it comes v. ?
^A.) i es.'
%
lo
1927 S. C.
C O U R T O F S E S SIO N , £c.
541
bv her are reco v erable even a lth o u g h th e v are a g g r a v a te d b y th e M
f a c : t h a t h e r c o m p a n i o n w a s i n v o l v e d in t h e c a t a s t r o p h e . W h e r e - , - . ;n ,. v<
u p o n c o u n s e l f o r t h e d e f e n d e r l v s p e c t i Ui.y e x c e p t e d t o t h e saio:'.Y.irj;v;.,
directi'.'ii a n d r e q u e s t e d 1j:s L o r d s h i p t o d ir e c t t h e j u r y t h a t if t h e
p a r s e r ' s n e r v o u s s h o c k is p r o v e d to h a v e bee n p a r t l y d u e t o r e a s o n ­
ab le a p p r e h e n s i o n o f i m m e d i a t e p e r s o n a l i n j u r y t o h e r s e l f a n d
p a r t l v d u e t o e x c i t e m e n t o t h e r w i s e a r i s i n g o u t of o r f o l l o w i n g on
t h e a c c i d e n t, d a m a g e s a r e d u e o n ly for t h e f o r Ijj er, w h i c h d i r e c t i o n
tiie said L o r d M u r r a y r e f u s e d to g i v e : w h e r e u p o n c o u n s e l f o r t h e
p u r s u e r r e s p e c t f u l l y e x c e p t e d to h is L o r d s h i p s r e i u s a h
" A n d w h e r e a s t h e L o r d O r d i n a r y in t h e c o u r s e of h i s c h a r g e to
th e j u r y p u t to t h e m t h e f o l l o w i n g specific q u e s t i o n s a n d r e q u e s t e d
answ ers th ereto , v iz.:— A ssu m in g th a t th e d riv e r w as n e g lig e n t and
also a s s u m i n g t h a t a s t h e d i r e c t r e s u i t of nis b r e a c h o f d u t y t o t h e
p u r s u e r , t h e p u r s u e r s u s t a i n e d a n e r v o u s sh o c k , w a s t h a t n e r v o u s
sh o c k .1 i D u e w h o l l y to t h e p u r s u e r ' s a p p r e h e n s i o n f o r t h e s a f e t y
of h e r c o m p a n i o n i o r 2) D u e w h o iiy o r in p a r t t o a p p r e h e n s i o n
for her ow n sa fe ty ' T h e preced in g qu estio n s h a v i n g been p u t b v
t h e L o rd O r d i n a r y t o t h e j u r y t h e y a n s w e r e d t h e first q u e s t i o n in
t h e n e g a t i v e a n d t h e second in th e a ffirm a tiv e .
•
A n d th e j u r y d i d t h e r e a f t e r d e l i v e r t h e i r v e r d i c t f o r t h e p u r s u e r
fis f o llo w s :— T h e j u r y u n a n i m o u s l y find f o r t h e p u r s u e r .
The
u n a n i m o u s f i n d i n g o f t h e j u r y is — T h a t t h e d e f e n d e r w a s n e g l i ­
g e n t a n d t h a t as t h e d i r e c t r e s u l t of h i s b r e a c h o f d u t y t o t h e
p u r s u e r th e p u r s u e r s u s t a i n e d p e r s o n a l i n j u r y r e s u l t i n g in n e r v o u s
shock i n v o l v i n g a p p r e h e n s i o n f o r h e r o w n s a f e l y a g g r a v a t e d b y
a n x i e t v {or t h e s a f e t y of h e r c o m p a n io n . T h e j u r y a s s e s s t h e
d a m a g e s a t O n e h u n d r e d a n d f ift y p o u n d s s t e r l i n g . ’'
T h e d e f e n d e r also o b t a i n e d a r u l e u p o n t h e p u r s u e r t o s h o w
cause w h v a n e w t r i a l s h o u l d n o t be g r a n t e d .
T h e bill of e x c e p t i o n s a n d t h e r u le w e r e h e a r d b e f o r e t h e S e c o n d
D iv ision ' w i t h L o r d M u r r a y i or. 3 r d a n d 4-th M a r c h 19 2* .
A r g u e d f o r t h e d e f e n d e r : — T h e e x c e p t i o n s o u g h t t o be a l l o w e d .
T h e C o u r t s f o r m e r l y r e f u s e d to g iv e d a m a g e s f o r n e r v o u s s h o c k
w here th e re w as no physical in ju ry .1 A lth o u g h th e la w had
developed, t h a t p r i n c i p l e still a p p l i e d t o t h e effect t h a t a j i n v . t
w as pla ce d t o t h e k i n d o f s h o c k f o r w h ic h d a m a g e s c o u l d b e
r ec ov ered.
T h u s m e n ta l pain unaccom panied b y a n y i n j u r y to
t h e p e r s o n c o u ld n o t s u s t a i n a n a c tio n . 1 b u t o n e c o u l d b e s u s ­
tained b v re a so n ab le ap preh en sion of im m ed iate b o d ily in ju ry .
T h a t l i m i t a t i o n h a d a l w a y s been a c c e p te d . H e re t h e r e c o u l d n o t
be a n y r e a s o n a b l e a p p r e h e n s i o n of i n j u r y b e c a u s e t h e p a r t i e s
did n o t e x p e c t a collision, so ti .a t a n y s h o c k t o t h e p u r s u e r w a s
r e a iiv d u e t o o b s e r v i n g t h e i n j u r y t o h e r fiance, a n d t h a t d i d
n o t so u n d in d a m a g e s . ” I n B row n v. G 'tnpoir C o iyo .’ai/o n ‘ t h e r e
w a s a r e a s o n a b l e a p p r e h e n s i o n of d a n g e r t o t h e p u r s u e r , a n d t h e
C o u r t d i s t i n g u i s h e d 1 t h a t f r o m m e r e l y w i t n e s s i n g a n accidc-nt
‘• V ic to r ia n R a ilw a y Commissioners v. C t-u lta '. t ]
; 13 Apt*. Cas.
222. .Sir R ich ard Couch at p. '--5.
: Buiieu v. W h i t e <r Sons, 'IS O 1.] 2 K. B. 6C9. K e n n e d y . J . . a t pp.
h I 0*4.
: Campbell v- J a m e s B e n d e r ^ n . L im ited. 151*1. 1 S. L. T. 419. The
Lord Justice-C lerk referred to W iikin s'm v. B o w m e n . [1S&7] 2 Q.'B. 57.
4 1922 S. C. 527, L ord H u n t e r a t p. 532.
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542
CASES D E C ID E D
IN T H E
1CJ27 S. C.
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I d F s i’:.’<'i' v, . V ''"h L r i :t'n 11 n ' f u - j Co.- a.i
t h a t t h e C o u r t <3i*i w a s to a llo w a p r o o f b e f o r e a n s w e r . I t w a s
t r u e t h a t it h a d been d e c id e d in t h e E n g i M i C o u r t s r e c e n t l y t h a t
apprehs«v;.-,n f o r a n o t h e r d i d f o u n d a cla im for d;-.in;.ges -: b u t th e
p r e s e n t ea s* w a s .ii^ tin g t ijs h a b ie . bec au s e h e r e t h e aii»*ged i n j u r y
a r o s e f r o m w h a t t}i—p u r s u e r s a w a l t e r t h e o c c u r r e n c e , a n d n o t from
w h a t s h e fe a re d . I n a n v e v e n t , t h a t OeC.sion w a s Dot o ;n d ; n g
a n d o u g h t ri'.t t o be fo llo w e d . T h e la w -,va> c o r r e c t l y set f o r t h in
t h e d i s s e n t i n g o p in i o n of S a r g a n t., L .J ., :n t h a t eas*. [ T h e Lord
J - j ' t i c e - C i r r k r e f e r r e d t o t h e op: si ion o f L o r d S h a w in h
v.
j.J in •! •’ ■■■. /.:■/( i ‘>i!..~ t h a t J I'fvt 'u!/< h c . \ <>:••;' ( '.'■«<.■'•
* v ■1
no l o n g e r a d e c is i o n o f g u i d i n g .•-.utnonty.j T h e j u r y h a d b'-'-n
to ld t h a t , if t h e p u r s u e r p e r s o n a l l y g o t a s h o c k a t ali. sh e c r n id
recover the a m o u n t sued for. w h e th e r h e r s h o e s w as a g g ra v a te d
o r n o t b y t h e s i g h t of t h e i n j u r i e s t o h e r Mance.
n-r.^nj,
if t h e j u r v b a d n o t b e e n so d ; r - c t e d . t h a t t h e y w o u ld ,.a v c
b a'j ta^:ea
a w a r d e d » j .a v ^ r a s-um. I t w as p . a ; n r ji a t tlje
p i'ssib ie
j i a v a t i o u b y a n x i e t y f o r tiie s a f e t y o f t h e p u r s u e r s
l i a n c ; i n t V a:-<.-ount, V ;ea :jse t h e s p e c ia l v - r d i c t i v j o r d e d t h a t
fa-jt. W.hcre ;u: e x c e p t i o n w a s n o te d , a d e f e n d e r w a s e n t ; t , e d to
u«.e t h e e v id en c e, a l t h o u g h t h e p a r t i c u l a r e x c e p t i o n did n o t a p p e a r
in t h e bill.' «.»n t h e n i l e . t h e r e w a s no e v i d e n c e to s h o w t h a t the
p u r s u e r s u s t a i n e d a n v i n j u r y fr-.nj sn o c k . e x c e p t ir o tn h o r r o r at
t i i e si_rh r of t h e i n j u r i e s to "her n a n c e , T n e j u r y w e r e wronglyt o l d n o t to i . i n i i n a t e tiie a g g r a v a t i o n .
H a d jt been e l im i n a te d , tn e
] u r v miir'nt h a v e t a k e n t h e vie w t h a t , a p a r t f r o m t n e a c c i d e n t to
t h e .dance a ^ d t h e p u r s u e r s h o r r o r a s a c o c ? f c f j u e n c e . s h e s u n e r e d no
ini : r v a t a.i. Tiie d e f e n d e r ’s e o s a p l a i n t w a s n o t t h a t t h e j u r y said
tiiHt t h a t e l r ’. n e n t w a s a dirik-ult lining t o e l i m i n a t e . _^nt t h a t ti.e
i u r v w e r e t / d n o t t o e l i m i n a t e it. T h e p u r ’- u e r h e r s e ; t d : a n u t say
t h a t siie %vas a t 't - r e i .e n s iv e f o r h e r o w n s a f e t y , altn -ou gn m e j u r y
h a d fv i n d to th'a'r eriect in t h e i r spe cia l v e r d ic t. T h e j u r y h ad , ;n
f a c t, cfiven a s u m w h ic h w a s :n a d d i t i o n t o tu i! r e p a r a t i o n fo r c?.y
i n i u r v s u s t a i n e d bv tiie p u r s u e r , a n d i n a t e x t r a s u m w a s n o t d u e
i f c o n s i d e r a t i o n w as c o n f in e d t o t h e o n l y f a c t o r s on w h i c h t h e i r
v e r d i c t cou ld le g a ll y b e based .
A r g u e d i-.r t h e p a r s a e r : — Tiie d i r e c t i o n w a s r i g h t in t h e c i r c u m ­
s t a n c e s of tiie case. T h e r e w e r e t n r e e classe s of in o c K . n a zu * ,y.
f r .m a p o r e i . e n s i o n f o r o n e s e lf , o r f o r a n o t h e r , or f r o m t n e sig.’.t o:
in j i r v t o a t h i r l n a r t v . T tie p rese n t, c a s e w a s n o t '.v itnm ti.e ;a st
categ-;.rv. H e r e t h e p u r s u e r snifWred siio c k t h r o u g h a p p r e h e n s i o n
f o r n e r t-wn s a fe tv . a o '^ r a v a t e d ov a .o p r e ’n e n s io n t o r h e r d a n c e . T h e
f e a t u r e of t h i s case w a s t h a t tiie p u r s u e r h e r s e l f w a s in v o lv ed .
F a r t h e r , t h e r e l a t i o n of c a u s e a n d etfect e x i s t e d b e t w e e n t h e n e g n e e n c e of trie d e f e n d e r a n d t h e i n j u r y t o t h e p u r s u e r . I n H* > 7 / . - *
t h e p l a i n t i n w a s n o t i n v o l v e d in a n y a c c i d e n t c r e a t i n g a n y r i s k to
h e r s e lf , b j t s u e d in r e s o e c t of shriek s u s t a i n e d b y f a ls e r e p r e s e n t a ­
t i o n s t h a t h e r h u s b a n d h a d bee n i n j u r e d . J a n v ie r v. & io:entu' w as
t f - -::•£:
i 15:1 S. C. *66.
1 HambrO'jk v. Siokes B rothers.
, I K. B. 141, Bankes. L J., at
. 152. A tk in . L .J .. a t p. i5 3 . S arca n t. L.J .. at d. 162.
s 1314 S. C. i H. L.) 44, at p. 50', [1515] A.-€’. 1, a t p. 13.
4 13 A rip Ca*. 222.
; G ilm our v. Hacsc-n. 1920 S. C.
« [1597] 2 Q. B. 57.
7 [1919] 2 K. B. 316.
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a case of a s i m i l a r n a t u r e . T h e s e ca se s s u p p o r t e d t h e p u r s u e v . a n d >S»
sh o w e d t h a t t h e r e w a s n o case w h e r e s u c h s h o c k w a s ’e f t o u t o f r „
c s o ' i d e r a t i o n w h e n t h e p a r t i e s w ere c l o s e l y a s s o c ia te d . I n D a l k v '.v’a
v. !!"/<i i '} K e n n e d y . J.. d id n o : j a y t h a t , if t h e d e f e n d a n t s c a u s e d a
5 b:«ck t o t h e p i a i u t i i f t h r o u g h f e a r f o r h e r o w n s a f e t y , n o r i g h t o f
a c tio n w o u ld e s i» t. a u d d id n o t n e g a t i v e t h e c l a im of t h e p l a i n t i f f .
T h e i m p a i r e d c o n d i t i o n o f t h e p u r s u e r 's h e a l t h w a s t h e d i r e c t r e s u l t
of the accident. W here th e f r ig h t w as not a n a tu ra l and p ro b a b le
cr<"'e'.;uer.ce of t h e o c c u r r e n c e a cla im d i d n o t lie.'- b u t e v c r v i i i i D g
in t h e p r e s e n t case w a s t h e n a t u r a l a n d p r o b a b l e r e - u l t o f t h e
n e g ’ig e n ce o f t h e d e f e n d e r . T h is ca se \va« a f v r ' - a ' i of H a „ l-.r>ol:.z
T n e r e w a s h e r e a b r e a c h of d u t y b y t h e d e f e n d e r , a n d a n y s h o c k
d u e to a p p r e h e n s i o n for h e r fiancc c o u ld n o t b e s e p a r a t e d fn..m t h e
sh o c k t h e p u r s u e r a c t u a l l y s u s t a i n e d t h r o u g h b e i n g in vo lv e d in t h e
o cc u r re n c e . T h e r e w a s e v i d e n c e b e f o r e t h e j u r y to s u p p o r t she
v erd ic t, a n d t h e a w a r d o f d a m a g e s w a s n o t excessive.''
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Lof.d J u s t i c e C lei;k <Alness i.— As reg a rds t h e bill of exceptions. I
;Vel constrained to din e r from th e vie* = e n te r ta in e d , as I understan d, by
she majority of y...ar Lordships. I t is i m p o r ta n t in t h a t connexion to
cossioer
r ! i r f } what th e ’urv have done, and (stcoudt. " 'h a t th e ;u rv were
entitled to do.
As to w h a t the ju r y have done, we are n o t left in any d o u b t : in fact,
v e are exceptionally favoured in t h a t m a tte r in th i s case. T he procedure
which was followed hns th ro w n a flood of light on th e mental a t t i t u d e of
the jury. J u s t ie: me note the steps. I n th e first place, th e r u r s u e r
avers on record t h a t she suffered a shock from fear for her own sate:v and
f-.-r thiit of h e r friend. The Lord O rd in ary gave a direction, which is set
out in the bid, to th e effect t h a t “ if th e nervous shock sustained by th e
pursuer was associated w ith apprehension for h e r own safety, the n the
whole of ti.e damages suffered by her are recoverable, eve* a ltho ug h tb ev
are ag gravate d by th e fact th a t her companion was involved in th e c a ta s­
trophe." Lower down on th e same page it appears t h a t th e jurv. in
answer to a question w heth er th e nervous shock m s due wholly to the
pursuer's apprehension for the safety of h e r companion, answered it in
th e negative : and in answer to a question w h e th e r th e pursuer's shock
was due wholly or iu p a r t to apprehension for h e r own safety, th e j u r y
replied in th e atfr m a tiv e . A n d then, when I look a t the v erd ic t— I do
not th i c k t h a t I require to travel beyond its four corners— I End it is
expressed in these te rm s : “ The pursuer sustained personal inju ry r e su lt­
ing in nervous shock involving apprehension for h e r own safety agg rav ated
by anxiety for the safety of her com panion.’’ On consideration of these cir­
cumstance* I cannot en te r ta in the f a in t e s t d o u b t t h a t th e jury, in assess­
ing damages. had reg a rd — as indeed they were told th e y were entitled to do
— to th e fear which the p ursuer en te r ta in e d for her companion's safety, an d
\»s
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*• f 1901] 2 K . E. 669, at pp. 676-7.
5 Ross v. Glasgow Corporation. 1919 S. C. 174.
» : 192oj 1 K. E. 141, A tk in , L .J ., a t p. 15S.
4 E lliott v. G lasgjw Corporation, 1922 S. C. 146.
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5-i-i
C A SE ? D E C ID E D
IX
THE
1 9 2 7 S. C .
Mir.
included t h a t as an element upon which they based th e ir assessment of
damages. W h e th e r i: was tLe shock which was intensified or the a t pre­
Carrjf t,
hension which was intensified. on a graaim atical construction of the
’Wararot*.
special
verdict, appears to me to be im material. Ir. e ith er case th e assessLord J u s ’.ic-f
C ieri
m e e t of dam ages was affected bv the consideration in question, and the
verdic: bears t h a t th a t was so. I thought from the outset of this case—
a.nd I hav e h e a rd nothing which would induce me to alter th a t view—
th a t, unle.-.s th e pursuer can dem onstr ate to th e satisfaction of the Court
t h a t th e consideration to which I have ad verted was a legitimate element
to be considered b r the ju rv in assessing damages, this verdict cannot
sta nd.
W a s it, th e n , a proper consideration- T h a t leads me to th e second
qusrv which I ventured to p u t — W*re tLe ju r y en tit.e d to do what they
a i d ’ X ow, let me sar incidentally th at, on th e evidence or on the bill,
i t was n o t apprehension of w hat might happ en to the p u r s u e r s com­
panion which affected her nervous system : it was h o rro r a t w h a t she saw
a c tu a llr befall him. I refer in t h a t connexion to th e bill of exceptions,
and in p a r tic u la r to th e p ara craph which s t a t e s : ’‘ There was no
evidence of personal injurv to th e pursuer o th e r t h a n nervous shock, and
the evidence -was to the effect t h a t the shock was d u e —in p art a t all
e v e n ts — to the fr:Vat which she got when she realised t h a t an accident
had befallen her com r a n ion. and to alarm a n a h o r ro r on account ot the
injuries which he had sustained.'’ I regard t h a t as an accurate sta te­
m e n t of th e evidence, certified as :t :s by the L ord O rdinary.
hea
I t a r n to the pursuer's evidence I r.nd t h a t she is asked this ques­
tion : “ A n d along with the frig h t t h a t you yourself got, you were
shocked to see the injuries done to your sw ee th e art : isn't t h a t w hat it
comes to ? ” A nd th e answer is Y e s / ' So t h a t we are n o t here dealing
w ith a case of apprehension enterta in ed with reg a rd to injury which may
happen to someoodv else : we are dealing w ith observation by the pursuer
of a n in j u rv which has ta ken piace unoer ner very eyes. Is, tnen, the
h o rro r caused to a pursuer by what she witnessed a good ground for
a w a rd in g h e r damages, either by itself or in co njunction, if you w-il, with
a n o t h e r claim which Is ad m itted ly good ’ So far as I know, th e re is no
case dow n to th e r e a r 19i.’-f>. eith er in E n g 'a n d or in Scotland, which,
favours t h a t ■'"lew. In fact th e authorities p o int in th e opposite direction.
There :s, first of ail. the lase of C a m ,‘'-i!K- decided by Lord O rm icale in
the O u te r H o u se in '9 1 5 , in which the rubric refers to -‘ a shock caused
to t h e p ursu er bv seeing her young b ro th er run over b y * vehicle through
th e f au lt of the defenders. E ~ l l t h a t the p u r su e r was not entitled to
dam ages.'’ Then, following on t h a t decision, came th e case of B ro'ni,in which I particularly refer to the ju dg m ent of Lord H u n te r . T hat
ju d g m e n t, if I am not mistaken, is to this effect— t h a t a shock resulting
from th e sight of an accident, ap a rt from f n jury to th e pursuer herself,
is n o t a sood cro un d oi action. T h a t view of w h a t bis L ordship said :s
expressed in th e arg um e nt which » a i ten dered to the Appeal Court :n
E n c l a n d in the subsequent case of H a n v r o J :.1 115" E n g la n d the san'.e
.t
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-"1922 S.C. 527.
K. B. 141.
th a t
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vip-.v « s taKen. The case of Sm -th v. Joh^'on,'- which was referred to Ms:.
: !jiT
v.f Mr Ju stice ^ right sn TTrfoVsoj.,1 is precisely to th e same effect as
■ i. u m e v.
- J * i . e n we come to tiie case of Han-U---‘l; • in ] S25. R e g ard in gr Vir-;roii.
th a t ouse I desire to say three I hi n ^s. Id th e first place, it is a m a ’oritv
Lor4 J usticeuidgnjent of the Court of Appeal, in which th e re is a powerful dissent bv C.'erk.
L--rd Ju stice Sargant, I n the second place, th e ju d g m e n t of th e m a j o r i t y
»h:le -iititled to the highest respect and always receiving it in our Courts,
is s o : bis ling upon me. Again, it wa s a case dealing solely with a p p r e ­
hension a:id not w kh observation, as th e present case is. I mav sav t h a t
I entirely agree with th e dissentin g j u d g m e n t of Lord J u s t ic e S a r c a n t in
JJ a,.
•.’ and th a t I respectfully disagree w ith the view of the maio ritv.
and the grounds upon which th e v base th e ir view.
I understand, however, t h a t it is suggested t h a t there are specialties in
this case wnieh take it out of the categorv of the decided cases to which I
have referred. I t was said. I d th e first place, t h a t here th e r e is an
ur. r.:e--:onaule cla:r.i on th e basis of shock to th e pursuer from a p p r e h e n ­
sion
her own s&tety, and t h a t fear for th e safety of her com panion,
cauieo oy what she saw happening to him. was a mere aggravation of the
dairrige claused in respect of th e shock to herself from apprehensio n for
her owe safety. For myself. I am quite unable to apprecia te how. if a
cla.rn oases on apprehension for th e safety of a n o th e r is a bad claim ;v?r $e.
it can L'-e good if tacked on to a c.airn based on apprehension of persona]
danger, waicrj is a<2ns;tted;y valid. I f th e claim is excluded as th e sole
basis of liaoihty, I cannot see how it can'properly be included as a p artial
basis of liability. Q u a n tita tiv e ly th ere is a difference between th e tw o
cases : q ua.:tat;vely th e re is none, I n each case th e element sounds in
dsrcsges : in each esse th e t a i n t is present. I t was suggested in arcvroe:it t h a t the claim in this case was a mere aggravation of dam ages, aDd
affected th e ir measure only. T hat, it appears t o me. is merelv r la v i n g
with words. W h e n analysed, it is obvious t h a t th e agg rav atio n is based
upon an entirely separate ground of liability. T he case, to mv m in d , is
precise.y trie same as if th e j u r y had said : “ W e aw ard d am ac es to)
because th e pursuer was afraid for her own safetv. and <?,/ because she was
afraid for th e safety of h e r com panion.” T here is no distinction id p r i n ­
ciple between the cases T have cited and this case. To adm it such a claim
as this, w hether alone or in co njunction with a claim based on atp re r.ensi-n f.-,r personal safety, is, it seems to me. to open th e door to an illim it­
able multitu de of new and u n s u b s t a n ti a l claims.
That :s 'ju:te obvious, ap a r t from other considerations, from w hat Lord
JBitK-e Atkin, in Hcavhr-yjl',4 said in giving ju d g m e n t. K e said ‘'a t p. 157):
'• Perivna.ly T see no reason for excluding the b y s ta n d e r in the h ig h w av
who receiver in jury :n the same way from apprehension of or the ac tu a l sicht
of injury to a third p a r t y / ’ T hat, in his L ordship 's view, was th e logical
resu.t ot the d‘>etr.i,e which be espoused, and I entirelv auree with him.
H e frankly recognises th a t. I n th e present case, as I ventured to suggest
in t i e ev’.srst- of the ar^un.eiit. if th e t'ursuer's fa th e r an d mother Lad been
Un reported.
1915, 1 S. L. T, 419.
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walking in front of her, she could have effectively m ain tained t h a t a srood
claim w^uld lie 3t her instance fur th e intensified shock which she experieuced because she feared t h a t th e y too would become involved in the
catastrophe. F o r my part, I do n o t see ^ here th is sort of th in g is to
take end. Is this claim based on relationship or on intim ate friendship ’
W o uld the claim have been good if th e pursuer bad been walki’;;: with a
friend instead of her sw eeth eart, or with a relative 1 W h a t is its basis?
W h a t is its limitation .’ I do not know h o w the pursuer proposes to
answer these questions.
Again, it was said t h a t the pu rsu er was iu an exceptional position,
because, so to speak, she was mixed up in th e affair itself. T h a t is a
distinction in fact ; but, to my mind, it is no distinction in law. The
suggested limitation is futile, and affords no logical halting-pia'-e in the
solution of the problem presented to us. Lord Justice A tk in , as I have
indicated, envisaged no such lim itation. H is Lordship would extend the
claim to anvone who saw a shocking accident : and th a t seems to n.e to
be th e necessary and in evitable result of his reasoning. If it be held th a t
the element to which I have referred was properly ta ken into account I v
the ju r y here, it is unnecessary to m ultiply concrete illustrations oi the
application of the ductrine.
I t was furthe r said t h a t it was impossible for the jury accurately to
disentangle the two elements to which I have referred. T h a t may be
true. Bat. on the o th e r hand, if th e ju ry had been in structed to discard
t h e second element altogether. I th i n k the defender is well founded when
he s o t s t h a t the aw ard of the j u r y might, in these circumstances, Lave
been lower tha n it was. The case appears to me to be in the same G r e ­
gory as a case where in competent evidence has betu admitted. Once
t h a t evidence is a dm itted , its effect is un kn ow n : it ta in ts the " hole
proceedings, and th e following verdic t or judgm ent cannot stand. I t
is ins possible, in my opinion, to afSria in this case what th e jury v =>u!d
have done, if they had been told to banish from their minds considera­
tion of the fear en te r ta in e d by th e p u r s u e r for the safety of her com­
panion.
The conclusion of th e whole m a tte r is th is — th a t ti.e ju r y have based
th eir award partly on the fear which was en terta in ed vy th e p ursu er for
her companion's safety. The pu rsu er has failed to satisfy me t h a : that
was a ieg'tim ate consideration for th e ;u r y to take into account. In
point of fact, th e defender, in my ju d g m e n t, has shown that it was nut.
I t theref-.re follows t h a t the verdic t is bad. and th a t a new trial is
necessary.
I n the circum sta nces of this case— tor reasons which ate
perfectly obvious, and in p a rtic u la r for this reason, th at, even if a new
tria l was granted, a ju r y m ig h t reaso nably give the pursuer a verdict for
£ii>0 in respect of w hat she suffered in th e way of nervous shock because
of apprehension for .her own persona- s a fe ty — I do not regret the conclusion
a t which the m ajo rity of y our Lordships have arrived. A t the same time
I fee! bound to express th e view th a t , in my humble judgm ent, h r the
ju d g m e n t which it is proposed to pronounce, a new, far-reaching, and
dangerous principle will, for the first time, be introduced into the law of
Scotland.
i .*
1 9 2 7 S. C.
C O U R T O F S E S S I O N . &c.
547
L op. d O rmidale .— O n a consideration of t h e evidence disclosed in theM.ir. 5, 1&27.
discussion on th e rule I am satisfied t h a t th e ju r y were entitled. on. th e c • v_
•sets, :o come to the c«*ne;u»km that, not o d I t- t h e witness Lo:tu». b u : also 'Vi:drop,
the pursuer, were th r o w n to th e ground by tiie collision c»f the lUot-c bus
with th e former. I t is true t h a t the bus did not strike th e pursuer ; but,
owing to rhe fact t h a t the pursuer and h e r sw e e th e a rt were proceeding
arm linked to arm. his fall neeessari;y led to h e r falling also. T hat, it
was not disputed, was ju st the same in legal efiect as if she had been
knocked over by co n tac t with the bus. T h e incident, she sa ys— and it is
proved— gave h e r a te rrib le fright. T he defe n der was ad m itted lv in fault
in driving as he did ; a n d ; as the fright led to nc-rvous shock, th e pursuer
was e ntitled to recover compensation for t i.e i t juries th u s directly
occasioned to her.
But ihe finding of th e ju r y is; " T h a t th e defender was negligent. and
that, as th e d irec t result of his breach of c u : y to the pursuer, the p u r ­
suer sustained person?.! injury resulting in nervous shock involving
apprehension for h e r own safety ag g ra v ate d by an x ie ty for th e safetv of
her companion. T he ju ry assess the damages at £;.*>0 sterling.7' T hat
verdict I read as a sub stan tiv e statem ent t h a t th e nervous shock was cue
to apprehension in part f.-.r h e r own safety an d in part for th e safetv of
her companion : and for th e total shock m ade up from, or produced bv.
these two separate itears or causes t h e y assessed the dam ages at £ 1 3 0 —
and this, it m ust be noted, is in accord w ith the case made bv the pursuer
on record.
Now, th a t th e verdict redrcts and gives effect to the law as laid down
to the ju ry by the t r ia l judge is indisputable. Two exceptions are ta ken
to this charge.
"We are ehierly concerned w ith the second of these
exceptions, th e first resting on the assum ptio n t h a t th e nerv.-.us shock
suffered by th e p u r s u e r arose solely from appreh en sion for h e r companion,
a situation nor affirnjed by th e jury. I should like to
howevei. that,
as a t present advised, th e first exception is. to my mind, well founded,
when th e charge given to the ju r y is considered in th e iisrht of the direc­
tion which th e ju d g e refused to give. T he judge, however, also c h a ir e d
t i e j u r y “ t h a t on t h e hypothesis t h a t t h e d r iv e r of the bus was guiltv
of a breach of bis d u t y to exercise care to w a r d s th e pursuer, if the nervous
shock sustained by th e pu rsu er was associated with a t prehension for her
own safety, the n t h e whole of the damages suffered by h e r ar e recoverable
even though the y " ' t h a t is th e d a m a g e s <. “ are agg rav ated bv the fact
th a t her companion was involved in th e ca ta stro p h e ." This was excepted
to, and his L o rd sh ip was requested to direct the ju r y “ t h a t if th e p u r ­
suer's nervous shock is proved to have been p a r tly due to reasonable
apprehension of im m ed iate personal in ju ry to herself an d p artlv due to
excitement otherw ise arising out of or following on th e accident, dam aces
are due only for the former.'' H is L ord sh ip refused to j i v e this direction.
Now, it appears to me t h a t the dir ection here given bv th e jurire does
not. while th e dir ection he refused to give does, express t h e law on the
m a tte r : and t h a t a n x i e ty or alarm, •.•ecasioijerd to A bv th e sic ht of an
injury indicted on B by C, does not infer a r ig h t to dam ages on the part
of A against C. T h a t was th e law laid down b y W r ig h t and Bruce, J J . , in
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CASES D E C ID E D
IN
THE
I P 2 7 S. C.
M«. 5. V>-£. th e case of Sim'rh v. J,,lr^r,<t £ f y . , 1 and referred to with ap&roval in
C-,iTi* v"
' by M r J u s t ic e Kennedy, and foblowed iu m any o th e r cases : and
"V iro;..
in tiie case of B '." r n : the r / . e •>r ;.ri:*«*iple of law was recognised. But.
Ld. '"'rmidaU
beinsj accepte d for a q u a r te r of a ce n tu ry . in H a )u :-f->-J: v.
£,-■■:>■•. v ■* Lord J t u t i c e A tkin expressed himself to a different effect,
while L-'-i i J u s t ic e .''arjnnt in the same case accepted th e law of i'ir,:it
v. J*i.nt-K <y C’/.; I agree w ith th e la tte r's observation t h a t it would be
an extension of t h e d u ty of owners of vehicles to w ards others in or near
a high w ay if i t were held to include an obligation not to do a n v th in e to
render them liable to harm th rough nervous shock caused bv th e si "lit or
apprehcr.siou of da:nage to third parties.
This case does, no doubt, present a special feature in t h a t th e tc r s u e r
was herself mixed up with the accident and wus not a casual bystander.
B u t th is consideration does not ap pe ar to me to affect the c e n a a !
principle, especially as th e risk of im pend ing d ang er was p a s t : and th e
pursuer herself fra n k ly adm its th e position to have been this. th a t, alone
with th e frig h t she herself got. she was shocked to see the injuries done
to h e r sw eeth eart.
Jt w^s the sight of dam age done r a th e r th an the
apprehension of d am age th a t occasioned her ac ute distress and arectf-d
h e r nerves. I n a n y event, the fact t h a t th e pursuer herself was involved
in th e accident cannot, in my opinion, be held to extend in anv wav the
am b it of the defender's d u ty and so enlarge his liabilities. H is d utv w&t
to ta k e due care not to bring his mot...r bus. or to th r e a te n to b r i n j his
m o to r bus. into co n tac t with th e pursuer. H e tailed to perform t h a t
d u ty . and. owing to his negligence, the p u rsu er was knocked over, and in
consequence, alth o u g h not physically injured, suffered a nervous shock.
F o r th e shock so occasioned she was u nd oubtedly entitled to recover
compensation. H a d th e ;urv so found, th e ir verdict could not have beer,
chal lenged : but. fo.lowing the .aw as laid down by th e trial judire and
applyin g it to th e facts., they found t h a t the nervous shock from which
the v.ursuer suffered an d in respect of which she claimed comt'ensation
was not solely d u e to apprehension for herself, b u t was added to bv
an';->ry ■■•r the s-.rVy
W sw eetheart. «r,d aece**-ed th » damsires
accordingly. I quite agree t h a t th e calculation of how much the shr^k
was du e to the one cause and how much to th e o the r must have beer, an
e x tra o rd in a rily ii:5 cu it one. and I am surprised t h a t th e jtsrv undertook
th e task. B u t th e ir verdict bears th a t th e y did. and it stands to reason
t h a t th e ir assessment >r damages m ust have beet: atfected correspond;: j;v.
it may he to a c r e s t , or it may be to a very slicht. extent. As it ar t-ears
to me t h a t th e ju d g e was in error in his statem en t of th e law. it follows. •
in my ..pinion, t h a t the
r-.;ivt car.not sta n d : ar.u t h a t we should sustain
th e b::l of exceptions, and vide.- a new trial.
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Lor.:. H cntef . — A ft e r ::arrat:ng the facts and referring to th e direc­
tions given and those as kec for — T he .earner; j u d j e refused to cive the
direction asked for. ano 'i j a i s s t his refusal exception was taken. I n
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th e course of bis charge to the jury, the judge asked the jury to consider Mar. 5.1 ?J7.
■whether th e nervous shock Lad resulted wholly or in part in coi.se luenve f-,rsie v
a'.'prt:ier.sion for the pu isuer's o w n safe t v : and. after being so V.\irdrc>n
directed. th e ju r y retu rn ed a verdict to the effect thrit the defender v u- Lord HuLttr
negligent. and that, as the d irec t result of his breach of d u t y to the
pursuer, th e pursuer sustained persona: in jurv resulting in nervous shock
involving apprehension for h e r o « a safety aggravate d by anxiety for th e
safety of her conlpani-jn.
Xo doubt the co ntention p r ese nted by the learned counsel :"'>r tiie
defence ex hibited in genuity : b u t th e in g e n u ity was of so refined a
ch a racter th a t it appears to me to Lave beer; alto gether divorced from
c m m o n sense. Jf I had been presiding over the jury. I cannot think
th a t I should have oeen able to show the same com m end able patience
v i t a th e defender's contention which was apparently exhibited by th e
Lord O rd in ary who did preside. I th i n k I should have told th e ju ry that,
if they were satisfied t h a t a cause of a c tios had arisen to the p ursuer
because she had su stain ed shock in consequence of being knocked down
by th e negligent driving of t h e defender's driver, it vras immaterial for
them to consider w h eth e r the physical injury resulting from the shock was
tr aceable to any m ateria l e x te n t, and. if so, to what extent, to the n atu ra l
anxiety t h a t the p ursuer felt upon the occasion for the safety of h er
s weetbeart.
The reason th e direction asked for by t h e defender should not, in rev
opinion. have been given is th at, once you arriv e at the conclusion t h a t
there is a cause of action, then, v.-here th e injury, which the defender
contends was due to something t h a t was not the cause of action, is so
inseparable, as it is here, from th e direct consequence of th e real cause
of action, it is really for a m etaphysician and not for a jurvm an to dis­
crim inate between the two k in ds vf damages. On the facts in this CLse
I tliit.k I should have told th e ju ry t h a t it was beyond th e ir intellectual
capac ity to discrim inate between the e x t e n t to which th e pursuer had
suffered in consequence of apprehension for h e r own safety and th e ex te n t
to which h e r suffering was caused by apprehension fof the injurv t h a t
micr.t have been sustained by h e r companion. The result, in mv view,
is th is— t h a t th e Lord O r d in a r y in his direction did not er r in the course
which he took, a n d t h a t his dir ection to t h e jury, alth ough I th in k it
was probably unnecessary for him to give it. was not a dir ection t h a t led
to th e ju r y ta k in g an y course t h a t the y were not entitled and justified in
takin g in th e circumstances of th is case.
In the course of the a r g u m e n t presented to us we heard a considerable
am o un t of discussion as to t h e e x t e n t to which a n action based upon
in jury sustained in consequence of shock, or the physical in ju rv resulting
from shock, can be m a in ta in ed in accordance with the law of Scotland.
T here was a tim e when th e re was the a u th o ri ty of an opinion in the
•Tudic-ial Com mittee of th e P r i v y Council t h a t , where there is no phvsical
i n p a c t and a person merely com plains of apprehension of injurv in con­
sequence of a negligent act on t h e p art of th e defender or his servant,
t h a t circumstance does not found an action of damages. B u t th a t expres­
sion of opinion in th e P r iv y Council was rejected, f.rst in Ireland", th e n
4
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CASES
D E C ID E D
IN
THE
1927 S. C.
M a r - S ^ T . in E ngla nd, -.ben in S cotlan d : a i d finally in the House of L ords it » a*
declared. by Lord Shaw of D u n fe rm lin e in the case of 3ro>rr, v, j , , : n
TJ :ii*on L iu .iifI ,' to be not a correct statem en t of the ’a w as it stands.
Lord Hunter.
I n the English case, h o o v e r , where disagreem ent was expressed l v
learned judges in considered ju d g m e n ts as to the n a t u r e of th e decision
° f ti.e P riv y Council. M r J u s t i c e K en n e d y , as he the n was, expressed the
opinion that, while apprehensio n of in ju ry to the pursuer herseif m i-h t
be a foundation for a good action of dan,ages t h a t had arisen in conse­
quence of negligence on th e p a r t of th e defender, similar apprehension
wmcn had its rise owing to th e drea d of th e consequences to someone else
wou;c not be a good ground of action, because, as I u n d ersta n d his Lord'
ship, you could not really a t t r i b u t e to th e wrongdoer t h a t he oucl.t to
contemplate t h a t his negligence to w ards B might cause in ju ry to C. J s
is a.so tru e that, in tiie opinion which personally I expressed 'in th e ct>e
of B ro ’.r,, v. Oi 2 s-K'<c Cort-raUo)-.* to wnich your L ordship has referred. I
adopted Mr J u s tic e K en n e d y 's distinction between the t w 0 kinds of shock.
B u t since th a t decision there has been, in th e Court of Appeal in England,
an expression of opinion in considered and interesting ju d g m e n ts i i v t a
by tr.e majority of th e Court to th e effect th a t the lim itation expressed
by Mr ousr.ee K e n n e d y coujd no longer oe considered as w ell fuundec and
resting upon any sound basis of law. A s to w h ether or not th e opinion
Oi .he m ajority in t h a t case is goofl :n accordance with Scottish ie.'ai
aoc.r.ne.
th e '.'pinion or trie m in ority as is the view ap p a ren tly of r o r r
L c r a s m p m tne cnair and ot L o ra Urmidale. I express no opinion, because
in tne present case I do not t h i n k it is necessary to do so* T he circums.ances ^
- present case a p p e ar to me to iie ouite inapnr\.nr:'a.te fc-r our
determ in ing a m a tte r which may be of great consequence. " There is no
douot. i: one comes to co ntem p late the possible kinds of action t h a t m i- i:
be rounoed on shock d u e to a p pre h en sion as to what may occur to some­
one else, th e au m o er and v a r ie ty of cases are almost 'too n u ic -rou s to
figure. B u t I do not tn t n k tffat a case used in illustration was a very
app ropriate one. As regards an Dccurrence, such as was figured, at "a
•oo^oan match, it might. I th in k , m e r e oe perfectly truly said t h a t any
person •• ith nerves of insum cie nt str e n g t h to witness such a contest had
s e tte r sta y a: home and not go to th e neld a t all.
•>o ta r as th e decision in th is case is concerned. a ± r m in g . as we prcrose
to ao. tiie verdict of th e jury. I d o not think we are i n t r o d u L - i r . t r anrth.'i .approaching a n e w principle into the ' a w *f Scotland. I th i n k we are
merely gi.^ng cneot to w n at are cominon-sense principles in connexivn
with th e determ in a tion of th e dam age which the injured p a r ty has
suffered a t th e hands of th e wrongdoer : and J think it would be "extr’e melv
un fo rtu n a te if a wrongdoer were entitled, upon such grounds as have been
m ain ta in ed in this case, to escape liability for the consequences of the
injury which he has caused to anot.'ier uy allowing the consideration -if
such a question as is raised h ere to be intro duced or to interfere with the
le rdic* 01 che jury. I thin k, m o th e r words and to nut it shortlv. th a t
: 1914 S'. C. (H. L .) 44. a t p. 50,
5 1922 S. C. 527.
A. C. 1, at p. 13.
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where i t i> clear t h a t th e re is a good ground of ac tio n because of shock V j
s- c-ained bv sn injured person in consequence of apprehension * r.h
: '• v.
reference to 1jer own safety, it is quite im m aterial to consider w»,e.Let
♦h a t v-'s; ac cra vate d bv th e circurr.st.ince t h a t she was aiarmed about ihe Loid H uiitr
‘afe:y of someone w -tb'ber. T he two kinds of shock run into one another.
8Ed th e v are based upon th e proved negligence of tbe deiender.
I therefore move vour L ordship s tLat this r>i:l of exceptions sboujd oe
mm
refused and the verdic t of th e ju r y a&rmed.
V # .'
L ot.D A n I'ERSON*.— T his is a simple case of a pedestr ia n being knocked
dc.wa a;:d injured b y the negligent driving of a m o to r bus. The essential
averm ents of the pu rsu er which disclose her real case are t h a t she was
knocked clown bv t b e neglig ent driving of tb e m oto r bus. and tha.., in
co-sequence, she was bruised and sustained injuries, including snock,
en titlin g her to rep a ra tio n which she estimate s at th e sum of £ . 5 0 . A
case of t h a t simple c h a rac ter was capable of being deciced on a general
issue. and rr,v opinion is t h a t it shoula have been so oecided. The case
was capable of being deciced in t h a t way on th ese simple d ir ections from
th e r 'r e s id in i J u d g e — t h a t t h e ju r y should have been invited to consider
w h e th e r fault had been proved : w heth er, m consequence, th e re had been
i n ’iirv to the pursuer, including sh o c k ; and, thirdly, w h a t am o u n t of
*iw r
‘' ■*j r
-.Uie
v /
!
C O U R T O F S E S S IO N , <tc.
d&ma'-'es should be aw arded.
T he view I take of th e bill of exceptions is t h a t it deals w ith topics
which were entirely ir re le vant to th e real issue which th e ju r y had iO
determin e. These topics apply to an entirely different case from t h a t
with which we are concerned— to a case, cam ejy, where th e re had ^.een
no ac tua l contact betw een th e offending vefcscie and th e pursuer, b u t
where th e pursuer Lad been injured by being m g h t e n e d by reason of
im m inent and expected danger.
The J u c g e s c u t y was cisvbaiged
when be v;ave. as I assume he did. th e dir ections to which I h a ' e aiiuced.
The 'lire's d u ty was discharged when th e three m a tte rs, which I iUgges*
should ali’ine have been p u t to them, had been considered a n d ad jud icated
upon. Thev ought n o t to hav e been in vited to answ er th e two questions
put to th em , and thereb y endeavour to ascertain, as a t>odv of psychologists,
what were the c o n stitue n t elements of tbe shock, and to p u t a figure upon
these c o n stitue nt elem ents if and when th e y bad discovered w h at th ey
were. I t is doubtful if th e most em inent H a r l e y S tre et specialist could
have answered th e tw o questions which were p u t to tb e jury. These
questions. I =ny again, ought not to have been put. T here was no d u ty
on tb e ’urv to consider an d answer these questions, even if the y were
answerable! There is no evidence in th e case raising tbe points involved
in the questions. T he medical evidence was to th e enect t h a t t h e p u r ­
suer had been knocked dow n by the bus, and th a t, in consequence, she
had g o t a shock. T h a t evidence indicates an obvious cause, explaining
a likely enect. W h r , then, should th e ju r y have been set to consider
recondite m a tte rs ! There was no need to em b ark upon th e suggts .e d
in quiry when, in tb e la nguage of the logicians, tn e r e was an o b 'io u s cause
explaining th e phenom enon. The directions t h a t the d efe nd er asked
should be given b y t h e J u d g e were, in my opinion, r ig htjy refused, no*
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Id. Anderson.
CASES
D E C ID E D
IN
THE
1&27 S. C.
because they embodied bad law, b u t because th ey were entir elv irrelevant
t0 th e u su e which tb e ju r y had to determine. I am f u r th e r satisfied th a t
tLiS verc;ct of tbe ju ry as to the p u r s u e r ^ real case n » n-'.t affected bv
l i it d*”*«ioiis w hich tbe J u d g e did ji v e aud to which excepti*.* has been
taken.
The procedure in th is case has ta k en a somewhat unusual course. The
ca»e sbouid s a v e been decided, as I have said, on tb e genera] :s*ue. The
a ltern a tiv e to tb e general issue is w hat is called a special verdict. I n the
ord .n ary case a special verdic t ta kes the form of answ ers to specific nuestions p u t oy tbe J u d g e to tbe jury, and from these an s w e r; the clerk,
u n d er tbe airection of th e Judge, frames tb e verdict. B u t here another
method has been followed, because th e ju r y gave w h a t is calitd a fincinsr,
a sort of trial verdic t as it were, and it was from t h a t finding of the ;u r V'
t h a t th e clerk framed a formal verdict, which was ultim ately held to be
tn e verdict of the ju ry . !Now. I regard the finding of the j u r y as amount­
ing to a verdic t in favour of the pursuer, because it finds, in e:Tect. that,
th r o u g h negligence, she sustained personal injuries. I n o th e r words. I
th i n k t h e gist of tb e finding is to be found in th e firs: th r e s und a half
lines, ending w;th t n e worcs “ nervous shock, and, of course, tm bravin g
th e money finding in the last s e n t e n c e ; and t h a t w hat is said in the find­
ing as to apprehension for her own safety and an x ie tv for the safetv of
h e r companion is really redundancy or surplusage which m a r be dis­
regarded. Accordingly, I think- t h a t this finding may be ta k e n to be a
finding jf the ju ry to tbe e r e c t th a t, because of personal in jurie s d irec tlr
recetved and shoes f o l l o w i n g thereon caused by negligence, th e pursuer
was entitled to a sum of £ 1 5 0 .
"ft c a t are th e causes of the trouble which this case has occasioned ‘
T he pursuer here had a plain cause of action. H e r verdic t should never
hav e neen in doubt ; but it has been imperilled to such an e x t e n t th a t
she is only retaining it by a majority c.f three to two in a C ourt of five
Judges. W h y has t h a t happened in a simple case of th is s o r t" The '
causes, in my opinion, are three.*- To begin w-.;b, the root of the m atter,
as the Lord Ju stice-C lerk pointed out at a very e a r l r staff* of tiie debate,
is v* br found in th e p ursuer s ple*.d:ngs :n condescendence 4. .>he .-huse
t*> introduce an irre le v an t topic as to w h a t she bad experienced because
of w h a t was happenin g to h e r friend. T h a t is th e root of the whole
trouble. The n e s t cause was t h a t the defender followed this ui. in ;rossexamin ation an d succeeded, by p u ttin g a n um be r of leading questions to
th e pursuer, in gettin g :rom her certain answers which anb rd tiie only
basis for the c ontentio ns which are m a in ta in ed in the bill of exceMions't
and. in th e th i r d place, th e trouble was b r o u g h t to a head because the
J u d g e th o u g h t t h a t this was a case which ought to be dealt with b r way
of special verdict and answers to specific questions. In th e course
a
considerable experience, involving h u n d r e d s of ju r y trials. I have never
asked a ju ry to an sw er specific questions. I have neve r been concerned
w ith a case t h a t couid n o t be deait w;th on a cenerai issue, I have
expressed myself before, perhaps too ofteD, to th e effect t h a t s o c i a l
verdicts are exotics in tb e law of Scot!andL-and ought to be avoided.
A n y difficulties we h av e in connexion w ith motions for new trials or
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"dj I' s of exceptions alm ost in variably arise in cases where J u d g e s bi»ve >la:. 5. iSi;..
i b o u " h t fit to have a special verdict, and I th i n k t h a t is one of tn e vauses
T_
■which have occasioned t b e trouble in tb e present ca=e.
Waiurop.
Certain legal topics were d e b i te d : but these topics were applican.-c to ^
a case where the p ursuer had not been struck, b u t had on<y been terrined
a n d thereby injured.
Jn such a case, according to th e auth orities. it is
perhaps necessary to ascertain w h e th e r or not tb e pursuer was i n g h t e s e u
for her own safety, or had been u nd er ap prehensio n for t h e sarsty of
another, or had been shocked by what had happened to another. I n
such a c;ise these m a tte rs may have to be distinguished and determ ine d :
but they do not arise in this case. Y o u r Lord ships h av e commented
upon th e case of Hambrool;.* I prefer, like L o rd H u n te r , n o t to y;ve a
definite and final opinion as to t h a t case : b u t I must conieis. as a t
present advised, my impression is t h a t it is n o t a decision which is so
accordance with the law of S cotland for the reasons which yo ur L orcsnip
in the chair has expressed, and t h a t a much safer rule of ;aw
to oe
found in the English case of D u litu : and th e S cottish case of £>ro>rn.s
M v view is th a t th e bill of exceptions should be rerused. th e ;'U;e dis­
charged. and the verdic t applied in favour of th e pursuer.
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L okd M urray . —I n th is case th e jury Lave r e tu r n e d a verdict in favour
of the pursuer, assessing dam ages a t £ 1 5 0 . T he d efen der has prese nted
a bill of exceptions and also moved for a rule.
The motion for a ru le was allowed on th e r e p rese n ta tion by th e detend e r ’s counsel t h a t th e defender was to m a in ta in t h a t there was no evidence
to support the finding of th e ju ry negativing t b e first and aiErmsng the
second of the specific questions p u t by tbe ju c g e a t the trial. This con­
tention. in c v ju d g m e n t unte nable , was not pressed, or even argued.
Therefore the rule should, in my opinion, be discharged. T h e re retr ains
for consideration only th e bill of exceptions.
The facts of th e case are simple. Tbe p u r su e r an d a com panion (her
£a.nci: i were walking arm in arm along the verge of a counfry road when the y
were overtaken bv a motor bus belonging to t h e defender. T h e m oto r bus
came in -ontact with one or o th e r or bo th — which of these represen ts th e
tr u e facts is quite im material. B o th were kno cked down. T ne man. who
•was ce rtainly directly struck bv th e bus. sustained considerable physical
injurie s : th e pursuer was also injured. Beyond h er own r a t h e r indefinite
sta te m en t, there was no evidence, however, o£ a n y direct bodily in ju ry i
b u t she did sustain a serious nervous shock. F o r present purposes it may
be ta ken as adm itted (or proved; (1 / t h a t th e p u r su e r and h e r companion
were sim ultaneously involved in one and th e same accident : <t? >t h a t t e e
defender was n e s li^ e n t i (3/ t h a t it was his o u i v to exercise du e care for
th e p u r s u e r s s a fe ty ; (4) t h a t he was in b rea ch of t h a t d u t y ; and <5)
th a t, as the direct result of t h a t breach of d u ty , th e p u r su e r was injured.
I ta k e it to be quite settled in law t h a t no valid d istinction c^n be draw n
between injury due to bodily h a r m and in ju ry d u e to nervous shock. I f
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the above propositions are arr.rmed. I am of opinion t h a t the whole lec&l
conditions are satisfied which are required to infer 'ial>i;ity on th e p art of
V'irarm
th e defender. I am f u r th e r of opinion t h a t such liability extends to full
Lord Murrav. con''per.?ation for th e loss and dam age consequent upon ti.e injurv sus­
tained. provided !•>) t h a t the am o un t of such loss and camace is proved__
a 'vacation of fact : and it-) t h a t it is not open to objection as Lein 2 too
r em ote— a question ot mixed fact and law. N e ith e r of these objections
was or is advanced in th e prese n t case.
The bill of exceptions is founded on tw o directions given bv me to the
ju ry which, it is said, v.ere erroneous in ’aw, I was invited bv the
oefen-ier’s counsel to d ir e c t th e ju r y to the effect set forth in t h e excep­
tions. and in an end e avo ur (it may, perhaps. Lave been u n f o rtu n a te ; to
clear a n y am biguity which m ig h t a t t e n d a general verdict I invited the
ju ry to answer the tw o specific questions set forth in the till. A s at
present advised I do n o t see h o w I could have avoided the invitation of
th e defender's counsel, even if I held the view, as I did. t h a t the points
raised were quite im material. I declined to charge the jury to th e effect
contended for. Each of the directions objected to was given on a hypo­
the tical basis.
The first was designed to meet th e case t h a t th e injury was in fact due
solely to the pursuer's fear or apprehension for the safety of her companion,
I n this view, tb e defender argued, no legal cause of action could arise. I
declined to accept this i s a general proposition in ‘aw, and directed the
ju r y that, in the circum sta nces of th e present case, th e defender, being
guilty of breach of d u t y to w ard s th e pursuer, would, even on th is hypo­
thesis. be fully liable to tb e p ursuer. T he ju ry have, however, on the
evidence, negatived th e defender's proposition in fact, and accordingly
this exception does n^t, s tr ic tly speaking. arise. If it had arisen I should,
however, adhere to th e iirectlor. I cave, limiting this, however, as I
expressly did. to the circum stances of th e present case, in which necrlicent
breach of d u t y to the p u r su e r was a d m itte d or proved.
Tbe second exception arises u f o n a direction given by me directe d to
meet t h e case which was u lt im a te l y affirmed by tbe j u r y — t h a t the
nervous shock she sustained, due to apprehension for her own safety, was
accompanied or a g g ra v a te d by a p p re h en sion for th e safety of her com­
panion. This was, indeed, a d m itt e d by th e pursuer in her evidence. I f
she had deponed to t h e c o n t ra ry I should not have believed her. I n this
connexion I was in vited by th e defender's counsel to charge tb e ju r y to
th e effect t h a t the to tal loss and damage, as assessed by their., m u st be
discounted to the e x t e n t to which it was a t tr ib u ta b le to such vicarious
appreh ension — this upon tb e general gro un d t h a t in law damages ar e due
only in respect of th e f o rm e r — t h a t is to say, for shock consequent on the
pursuer's apprehension for h e r own personal safety. I pause here only to
observe t h a t to tb e best of my ju d g m e n t such an allocation of dam age is
n o t ca Pa ole of a s c e rta in m e n t or estim ation , even by th e injured party.
I declined to accept this view as a general proposition in l a w , and
directed th e ju r y th a t, in th e circumsta nces of this case, the y were
entitled to award as co m pensation t h e t o t a l l o s s or damage the y m ig h t
find to have been sustained, n o t w it h s ta n d i n g t h a t the inju ry w as
Currie v.
lii
CASES D E C ID E D IN THE
hi
£^#§43
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COURT
1927 3. C.
OF
555
S E S S I O N , & c.
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SCoi>e of t h e c u t v to
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th e •.•a-e. ti ie ;'uiy r-.uld Ju.t i t a - k e d to a : s - (.
~ ~
btt-vt,-!! ti.e a n x - - :.: v f shock s-i.ncrea :,v t h e p u r s u e r d u e xv"*;,..,'.
-. s.-iTs it is ' b e
the Lord
i.? ii;*6*rprtta»
There*
:V.ai th e Liuid
r I'r.'.cedure Roil
*■ bstion.
iv d
CO C R T O F S E S S I O N , &c.
1?27
of
\s
ir<i
were
w hen a motor .
c ^ l s i ' t h down. Tne
c - S ff ie ra b le physical
.•ecu a c t u a r y struck,
.-. si e suffered severely
' r.yi O rdin al v di reeled
e t u r n e r h ad suffered
,.-.vu safely, '-bey -were
.-.- a j c r a v a t i o n of ' b a t
hi, was ir.»oi’-'ed m the
-r had suffered personal
: apprehension :or aer ^
iV.v oi b e r companion,. ;^
tl i :a t h e j u r v
i*!i>e' *
tfj**
L u \ e uerr. <i: r a t e d u» o i s r t ^ a r d ai;y
i>i;er i<v
t u r ]jer c<>nsr&r.j,j]">.
1 K. B. 141
M.sKV T. R. Cl'RKiE, '.veavpr. ?o3]c-ksna^vs. G ’a s gov.', o r o u ^ L t a n !.•••'i'G -n r,
*. c v : v.
a e t i v a to r e e w n - £ l ‘.30 a s d aru ag -rs f-jr p erb o u a ] I n ju r i e s a g a i n s t
\V’ii:aiD W a rci-'ip . m o t o r c o u t h p r o p r i e t o r . B a r r h e a d .
Tiie p a r s ' J e r .< a v e r s n t i . t s as t*j t n e o c c a r r e r .c e of t h e a c cid eJit
were s a ijs t a s it ia i’. y b v r n e o u t by t b e e v i d e n c e .«ubsefjuei:tjy Ivd a t t h e
T i i a t e v i d e n c e w a s as f o l k - w s : — T h e p u r s a t r te stif ie d t h a t
,','o S u n d a y , '23s; J u n e ]91'5, a b o u t 9 P.M., sh e w a s w a l k i n g iioree to
po'.'.okshaws f ro m B a r r h e a d in ti;e c o m p a n y of n e r fi.-.ijc-.-. A s t h e y
■^■e’*e w a l k i n g 'jii tlje ^ ra s^ ' ’e r ^ e o i t n e r o a c w a y h i i k e d a i n i m a m i .
ti.e jiauC’-, w h o wa? D e a re r t o ti ie r o a c w .s y t h a n t);e p u r s u e r , w a s
:c k a n d k n o c k e d d o w n b y a m o t o r b u s b e l o n giiji'
s to the d efender
wiiich h a d a p p r o a c ) ;e a t h e p u r s u e r a n d h e r rianc-.- t r o m o e h ’.rjd. H
n er
wer
e s d c - recsiv*ed c o n s i d r r a b i e i n j u r y , b u t t h e p u r s u e r s t a t e d in aa nn ss w
t;hr ;aa t she
n a b l e to
\
ts iit w
a aa ss " uUIi;i.Jir
t. ' J s
3 t^a.t:e: w i j e t h e r sh e w
. . ua. ^s k n o c k e d c o
GUOWT1
d irec tiv b y t h e a i o t o r coacii o r a f t e r t h e m o t o r c o a ch h a d c o m e -.nto
cu’.lision w i t h h e r f r i e n d a n d t n r o w n h i m b y t h e v io le n c e o f t h e
coliifion a g a i n s t t h e p u r s u e r . ’’ Th-ere w a s e v i d e n c e t h a t t h e p u r s u e r
was ie en d o w n u n o n ti.e .,'rass v e r g e a t t h e s a m e t i m e a~ h e r n a n c e
was k n . 'c k e d d o w n . T h e p u r s u e r f u r t h e r a y e r r e d :— tC v i.d . 4 1. “ A s
a resu lt of said a c c i d e n t t h e p u r s u e r s u s t a i n e d t h e f o u c - w m g ’css,
• n 'u r v a n d dam a-^r. S h e s u n e r e d g e n e r a l b r u i s i n g a n d a s e v e r e
shock to h e r n e r v o u s s v s t e m , L 'w i n g to tr.e f r i g h t ^ne g o t a t ^ . h e
time of t h e a c c i d e n t an’d t h e f e a r s t h a t sh e h a d f u r h d - o w n s a f e t y
and i - r t h a t of h e r f r i e n d sh e i e v e i c p e d t a c h i c a r d i a a n d tr e r .i o r s
o'.v;n;r to t h e s h o c k re c e iv e d a n d w a s u n a b i e t o d u a n y w o r k t o r
S i ni'onth? a f t e r tiie a c c i d e n t. B e f o r e , ; h e a c c i d e n t s h e w a s in
excellent h e a l t h . S h e h a s n o w l a r g e l y r e g a i n e d h e r h e a l t h b u t
still su rfers f r o m t h e a f t e r - e r f e c t s
f th e accident."
( A a s . 4).
- D enied/’
. ,
T h r d e f e n d e r p le a d e d , iu la '
:— *2i “ T h e a v e r m e n t s o i tiie^
pursuer, so f a r a s m a t e r i a ! , b e i n g u n f o u n d e d in f a c t, c e c r e e of
a b s o lvito r sh o u ld be p r o n o u n c e d . "
_
,
T he ca se w a s t r i e d b e f o r e L o r d M u r r a y a n d a j u r y on 1-Stn a n d
] 9 t h N o v e m b e r 1926. w h e n a v e r d i c t w a s r e t u r n e d for t h e p u i s u e r ,
and d a m a g e s w ere a s s e s s e d a t £ 1 5 0 .*
w*
u-r
t •
*
t b e Trial t b e p u r s u e r d e p o n e d , n i f t r n ? r i:—
1 “ Do y o u r e m e m ­
ber, b a ' i n g s o t to a d i s t a n c e of a i . o u t 3 u y a r d s troin t n e p o i n t y he.fc t-.e
traicviaTs r u n in t o t h e special t r a c k , t h a t to n a e th in g b a p p v n e d t o you .
( A . ) I c a n n o t r e m e m b e r r i c h t w h a t h a p p e n e d ; I " a s daze^i fo r a unit .
Tbe ftrst tbincr I r e m e m o e r is t h a t I h a d niv a r m u n d e r niv 5 '. ' e e t b e a r i s
btod and I was s a y i n g . ' O h . w h a t h a s h a p p e n e d 1 ’ I was on t b e g r o u n a
*"hen I came to nivs-eif.
I could not say ^‘ijether in po:ijt of fact I ha i
been kno cked d o w n bv t h e b u s or w h e t h e r I h ad be en k n o c k e d d o w n .n arA
other w ar . b u t I was on t h e grass. . . .
I n c r o s s -e x a rn : n a tk 'n .
iQ ’
D i d t o u t s w e e t h e a r t seem t o b e r a t h e r b a d l y i n j u r e d .• \ A . ) ^ es.
(Q >
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L o k d Ani'EKson.— I am of opinion t h a t , in ac'-'orr.ar.ce v.'i::i ti.e provj.
sior.b oi th e Codifying A ct of S ederu nt. C. ii. 4 <<*'.. arid th e ionir-esuh.
wished practice hi th e O u ter House, th e L ord O rdin ary is i«.v.:nd to hear
ot t.’ie r .‘. cs
:d on •he reco.-c.
a debate is the P ro c edu re V.ol
a:id to di-pc'se of these pieai before d eterm in :::? on th e m a tte r of proof,
an d w ithout requiring pai ties To renov.nce f.ronation. I arc further of
i: c c t h i n c s.-tid bv L ord I*ur.ed;i
ti:e caie ot
in te n d e d To iiupinge -opon th e term s of t h a t A c t of S ed eru n t or on w*n.
settle d practice, but had reference to the j a r tic u la r facts of ti.at particuia r case.
‘ ,r* .
^•:.;•
«.- ' - -. - : •-“s- '■ 'yVL?>'-SJ33 - :•*
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^
THE
I n the pre.; eut ca^e I 'i<i not ti:5i;k t h e r .a n ies are doiiic more tb a a
aikzng :i'.e L^i': Ori-iinarv :o du w],;!t ’. lie A ct ••:' S tc c r z z z savs it ;6
3>ar4nj'. cc >.'i riL’h t of p.-iriiti i ‘j riik a J-ocL't- to do. T h a t L t i i .j so. I t h i r k tlie Lord
Co. v. T ITK
Orniin.rv here '.v.-; ' ri^ht is his f-'vr. i n i t i n c t b u t v-v v.z hi the ii;tfrrrirf&
E-;^:nri
tion which he j';!t 'Ji"iu t!ie f>p!r.i^r, expresst-d hv Lord r>ur.fd:a. T b - r t
LoH H'intt-r. .
fore I agree with y->nr L ordship ti.at o u r ausv. vr sho-oid he t b i t th e Loid
Urcir.a ry ihould p i\‘ceed :o :;ear prelim ina ry p'.'ints in the Frocecure Pl(,Ii
witho-j; cail:!:i' upon parties a t thib stu^e to :v:;uuijce {.-robatiou.
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T h e COURT d i r e c t e d t h e L o r d O r d i n a r y t o h e a r c o u n s e l for
t h e p a r t i e s in P r o c e d u r e Ho)], w i t h o u t a t t h a t s t a g e f a i l i n g
o n t h e m o r e i t h e r o f t h e m t o lod ge m i n u t e s o r a m i n u t s
r e n o u n c i r. g p r o b a t i o n .
? ' * 5'
r
M c t . t S . v . a . i : t . Macii .naLI’. & ?su»s-EK, 'A*.S.. for M.’t-'UElls. Jot:s>-T<.>*, k Co.,
— F t f s . Ji.EL.iNr, i Co.. '-V.S., for W >:. ’:. G k : e v i., ic i z n s .e v . O iisivvr __
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W i l l i a m WaRDRGP. I i e f e n d e r . — ’S t n ’-.cs, K . ‘J .— T. D. K . M v.r ay.
R f j i z r a f b n — X- y n - j i n c t —
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o f J a m u - jt— i o v i i t a & t n f t r an-f hrr
ton-i-anioyt Z’t-ickzU J ^ c n by moi->r : >r— Action o f ■n n n a fie at
f ' . n m r — AVrcvtf* sho-.-?: n .,-iri -iue :o
y f y r sa fr 'y o f :m -j aniu/>.
A y o u r .; mars an d a younsr *'On;an to whom be ^ a s e r ^ a i 't c -ve:e
walking by th e side of a road iinked arm in arm, ■»‘Len a raoti.r
omnibus c a u e up from r»ehind an d knocked th em both down. The
m a n '.vas stru c k by the om nibus a n d received considerable physical
injury. The woman did n o t a p p e a r to have been actually struck,
an d she received no d irec t physical injury, b u t she suffered severely
from shock.
I n an action of dam ages at h e r in stan c e th e Lord O rd inary directed
t h e ju r y th a t, if by the fault of th e d efend er the pursuer had suffered
nervous shock th ro ugh appreh en sion for h e r own safety, the y were
e n titled, in assessing damages, to include any aggravation of that
shock occasioned by th e fact t h a t her companion was involved in the
cata str ophe. T h e ju r y i' oudc t h a t th e p u rsu er had suffered personal
in j u ry resulting in Lervous shock involving apprehension for her
own safety agg rav ated by a n x i e ty for th e safety of h e r conn anion,
a n d aw arded damages.
—
i 19-2C S. C. ( H . L.) 27.
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«'as express’.v s ta ’.eci bv Lord Ju stic e . ' ■ a r ^ t t as tfct rt'ouud of bis dissent
in H - i n t :,ry'ji;'e : case, difti-rhii: froiu the ii-ajvrity of ; ’u t j u c . ’es. who held
'V*; •! ■:■! .
t h a t sacl; a d uty was raised by the ehcuiLStances and Lad heec breached.
Lor.; Murriv. H e r e there :s no dispute but t::at tb e d efen der owed such a du tv to tb e
p u rsu e r a i r e c t ’y, aLd t h a t be was in breach of it. T be same point
Dameiy. t h a t the pursuer was o u t v i t h th e ariibit of th e defender's du tv
to ta k e care, was involved in th e case of C a v j i b t i i . ^ H i'idhjg tb e oj itio n
I have expressed, I might, nevertheless, b av e concurred w ith Lord
Oriuidale's judgmeLt in th a t case, or d itieijte d w ith L ord J u s tic e .Saivazn
in H i r n l r o N either does B ■
t - case touc-u th e present question.
T he cautiously expressed oLiUr by L ord H u n t e r in t h a t case is directed
to a separate happening. Dot co ncurrent with, b u t su bsequent iu ti m e to.
th e injury complained of. in which th e pu rsu er was n o t concerned other,
wise t h a n as a mere spectator. There, again, a question as to the an.bit
of the d e fe n d er’s duty might well arise.
I n i s ; opinion, accjrdinclv. the verdict of th e ‘’u r r should stand.
Cs:r.i
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L O l 'k T o . s f t l l o w e d il: e bill o f exceptiu iiS. a i ; c d;sci.arv---i
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liie rule.
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IS
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T h e P k o v o s ’t . M a o - ^ t . h a t e s , a x .'j C o i t k c i i - l o k s o r t h e R.cvai.
E u r g h o f A v k (.T rustees of J a m e s M C r i e i. P e t i t i o n e r s . — I'urr'.-.
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"'J
P ’J I C i r ? .
A te stator, who died in I f 73. directe d his truste es to n:-ort
illS
e state for the purpo=e of providing bursarie s to s tu d e n ts atte n d in g
Glasgow University. One o*f th e num erous conditions which he
a t ta c h e d to the bursaries involved th e m a in te n an c e of a li brary in
his house in Ayrshire, where b u rsars were bound to study for part
of every year. H e prohibited the sale of his h e r it a b le estate, a n a be
f u r t h e r directed t h a t any moveaole estate should be invested in la n d .
I n ’. 9 ‘> j the trustee?, presented a p etitio n to the nol>'e'-jm-'i«:« and
u n d e r the T rusts Scotland. Act. lCJ' 2 ; . i n which th e y stated t h a t
th e scheme had become whollv :nc>:>erative t h r c u c h lack of at-nlicants
ow inn to th e conditions attac h ed to th e h old ing of th e bursaries:
an d th e y submitted a new scheme for th e a p p r o v a l of th e Court.
C n d e r th e new scheme, from which th e necessity for study a t the
A v rs h i re house was omitted, it was n e i th e r necessarv. nor, in view
of th e new purposes, was it expedient, to r eta in th e heritage, and the
truste es craved power to sell it and to invest t h e proceeds in any
mat-Der authorised by section 10 of th e T ru s ts S cotland) Act. 1 9 ? i.
T he Court, having approved of th e sc heme arid g ra n te d th e power of
sale.
H eld f u rth e r that, where th e enlargem ent of powers of investi
}
5V
i
Vi
1935, 1 :>. L. T. 4 19.
i K. R 141.
* 1922 S. C. £>i!'
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C O U R T O F S E S S I O N , ire.
T» I X T H E
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ith th e question, 1 aiu of c p i^ jp f
Kr.it. t ’u r s n e r i R e c l a i m e r '. — U
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a v a ' u f 15V
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s t o '-v:
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i i - r ! >‘ ov., th e ac sw ers to
: ■ tit]v used an d iet as a gj£i
.£._■■ „,d. acci’r c ic g to th e evid^--!r.t for SanBediat* o e c u p i t k ^ ;
j ^ ^ a: ln e A sseitor had
rite purpose for -widen it
»
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‘
.s -.ifiapteo.
- S'?,
i s to t h e souxidr.ess c-f the
i f ;d r e f e r r e d to b y y o u r L o r d j J ^ ,
■with t h e i r p r o p e r t y &nd to pttjtf:;?
b e i n s 'inde-r ar.y oongatio* j j j
•it : , c t i , h . g * e say. I th i n k , iafeE^i
i . a r r r e s e r . t a v e r y din 'erent
; te r e d as r e s i n - ' s t n e use to Tfcijjt?
-.- also he altered as regards Sat.'"'-*!
■it as a golf course. But d*#./ 'I
v.-a are cor.cei'Les with is tS*1- —
rated. I thii.k '-'e are boDBdii.
i tbe SV: D/ects.
-_v"
J
were not ;*rt to any tenaiS^j
th e Va; jati<Tj-ro;i
&sh t reasonably be expecJa^>
th e v fe’il to be treated*e-'s
If they had been
isess-jr m ig h t h a v e b sR J tj
•t. th e proprietrix na&/ ’?
ay i 9'1'C1. That be«jf J
• the ir tru e characitf- §
th a t th e y had JsS ^
iiitar.o n
ot t b
v-v -a
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r;. ■ r ' f . U
— .V:
v ‘*>*
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M
JH1«' i
fa
,• t,
— j-i-]
•• JH • -Ct. *
-A !
,,
.
j... Hctioti ..f danja^rs f - r personal injuries broug:)t_ against a
oo;uw:.v. th e pr.rif.er a v e r re d t h a t she ha« ::a%e;.e<:
hv "a' riKit■'1' oMir.'.b’is of t-ie defenderi which usually re.v-ned the
^'-niinus of its j'*urney in ti m e to c o r r e c t w ith .motljer gir.n;t.as
•A*tir." f:\'!fi th^re ; th a t, on tiie occasi>oi <>f tlie pursuer s jouriiey.
• j'<• t-mnihus in ••vhieb si.e "'as travel.nig was ‘ate in s th rttn g its journ i 1 a ’: b‘
it was driv-.-n at :m e x c e i 'i v e speed, it iai.efl to
^ r : e c t With th e second osnr.ihus : that._ i n t e n d of st(.ppiri?_at the
i»rmir.tis, th e driver proceeded to chase tile secr,!;d orr.iijr-us, d r n . n g
*t an exce«»i*’* and dang*-ro-js speed : t h a t th e omruor.s rocked and
«vavei to th.e "i'e:it aiar'n of the p assen ge rs; and th a t, when^ the
* r%-.ti "ui-nibus was e v e n f j a . l v overta ken, th e pu rsu er had been
reduced to a state of h v s t e r i a ’ and to ta l collapse by h e r fear of an
J-*i'deV.t.
The pursuer m a inta ined t h a t the way in -which tr.e
o d i o u s was : riven was such as to cause nervous shock to persons
o: v'-rmal heaith : b u t she a b o averred th a t, a t th e tinie of tne
^r^#av( c’.ifa -vas. as a re'-'i.t oi V;re''io'is ijj*r;ea;th. *n a c^t.'.d..ic.Ti
the exT'erience of
»:>nt na;,v sensitive to r.ervoiis shock, a n a
•kVjfc
‘Ti’rV r.;i occasioned a recurrence of h er iii heaith. men had
in v o lv e d h e r in ..h eav y
ner eir.EiOvnirr.t
ca-'c d her :<• . -e.........
...
rt-dicai ex:«n?e?.. T he r.'.irsuer rr.;r.r>ta:r.ea t h a t an issv.e^.r; oroiuary
f-.r.-n sho-.’.l'.i be aliowed. The defenders contended t h a t thepurv.-.er «
uvermerrs were .‘rrelev.-mt : b a t that. :i in o u iry was allowed, it snou'd
be he wav of pr'.of before answer, *
The I / c d ‘;,rdir.arr held t h a t the pu rsu er had. averreo a case .or
ino;;irr. but that- • wine to th e delicacy of tbe ■•ii:est:<iES of tact a r c
U * involved, tiie inquiry should be by way .-.f proc^f before answer.
»cd not
^irv trial.
_
,
The r>:;re>:er r^ciaimed again st tiie refusal to senrt tr.e case to a
;nrv. ^ h e '>f“:-jers. w-tb'-.it adn’.ittir,^ t'r.f relevancy oj the pnr*cer‘= are rm e n ti. acquiesced in tbe Lord O rdin ary's allowance of a
r. ^ j 1
-.V-'
pru»*f V*efr«rt’
Tho Coort ■■■}><*. Lord MorUon. refused, in tiie circumstances, to
interfere with the Lord O rd in ary 's exercise of :iis iiscretior. in
declining to -end the case to a ju r y : and ,T>r,~rcJ zo his inter ocutor.
6 l t ‘. r r i : i - ‘ e as ro w h a t may con stita re a special c a « s e ! f'-r wjtndrivirjfj a ca*e fr'cii a jr.ry. and. n particular, ' 'h e r e ...e case .s an
action of reparation for in jurie s due to nervous shock.
¥ « ? MARG4r.ET Wai.KER. M a n c l . e s t e r . b r o n p i i t a n a c tio n a g n i n s t j . r D r - w . * .
•Jbt P itlo c h rv ?'I‘>tor f / n m p a n v a n d t h e m divid ii.al p a r t n e r s th e re o f.
aoa-Jadiiivf f..r d a m a g e s in r e s p e c t of i n j u r i e s a l le g e d t o h a v e r,een
« t . U i n e d \ v h e r -.vh?’e,a p a s s e n g e r in .a m o t o r o m n i b u s b e l o n g i n g
^4 the d e f e n d e r s a n d d r i v e n b y o n e of t h e i r s e r ^ n t s .
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w i t h a:: i t h t r -ady a.’id ’n*i:• h i t h e r s h e t r a v e l l e d on t h e ous f r ’’
P itl-jc h rv to L-'C’ii T u m m e ! . a d i s t a n c e o f a b o u t elev<-n __
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on to Kinlocl,
Ra:ii; .'cii, a di.'tai.C’e vf a b o u t e ' e v e n n;i lth . ar«J rfelu)-i:td to
T u m i i i t : . '.v3ivi'e tiie p<ir -ucr a ^ a iji j o ; i , t d it. T i j t b c s k t a r t t d frrjth
L o d i Tanjiiir} a b o u t 3.'25 p.m. t o r e t u r n to P i t i o c l n y w i t h t l Jfe p u.
s u e r a b o a r d a s a p a s s e n g e r . I t w a s l a t e in l r a v h : g Lc.cli T u tc n iri
T iie citv '* r drc-ve a t a n e x c e s s : v t s p ^ e d o v e r a ijad road triilj"
DU.’n c ! '/ J S u l h o l e s a!;<i t h e ba* s w a y e d a n d r a c k e d alani;
The
. _
;.ass*r!i^e:*
‘2
,.
J,er ,safe;y-
Jngjy.
For »
p e r :o d o; t h r t e yea:> , e n a j c g a o v u t A ugu.st 192<i. Mi6 h a d su fftrtd
i’roin ex'.’p h t h a b n i c g ^ i t i e . w ’n ic h h a d le f t h e r L e a n a n d nervoc*
s y s t e m in a m o r e t h a n n o r m a l l y s e n s i t i v e co-.iditioD. By th e f 'ta t
t h e h a s r e a c h e d P i t l o c h r y ti.e p u r s u e r w a s in a liig ijly r.ervoa*
a n d s t r a i n e d c o n d i tk - n o w i n g t o tl .e d r i v e r ^ r e c k l e s s diivir.c
■K *cd
to fea; t h a t »h? w o'j id t h e r e b y be i n v o l v e d in a n accident.*
( C o n d . Si " T h e pursue:- w a s s t a y i n g a t S c o t l a n d ' s H o t e l in Moulin
(C:
R o a d . P i t l o c h r y , w h ic h r o a d is a b o u t 5 0 y a r d s f r o m tiie C o m p a u y i
offices. T h e C o m p a n y ' s offices w e r e t b e tern-.in'as o f th e j o u r c t t .
S o m e vi tl;e p a s s e n g e r s on t h e b u s w e r e a n x i o u s to c a t c h another
bus. b elo n g ;n i; to tiie s a m e C o m p a n y , w h ic h w a s t i m e d to le ave the
C o m p a n y ' s offices in P i t l o c h r y f o r D u n k e i d a b o u t t h e tim e at
w h i c h th e b u s in w h i c h t h e p u r s u e r w a s t r a v e l l i n g sh o u ld have
a r r i v e d -at P i t l o c h r y hi n o r m a l co u r se . I n s t e a d o f s t o p p i n g at t i e
C o m p a n y ' s offices— t h e t e r m i n u s o f t h e j o u r n e y — ti .e driver, on
f i n d i n g t h a t t h e D u n k e l d b u s h a d le ft , p r o c e e d e d t o cha se it. A
c o m p a n i o n of t h e p u r s . ’. e r a s k e d t h e d r i v e r to s to p , b u t h e refused
t o st<'iD a n d a c c e le ra te d his s p e ed . H e d a s h e d t h r o u g h t b e tow n at
a n e x c e s s iv e a n d d a n g e r o u s r a t e o f s p e e d , w o r k i n g u p to a speed
in t h e n e i g h b o u r h o o d o f 4 0 m i le s p e r h o u r . T h e b u s ro ck e d and
- w a v e d t o t h e g r e a t a l a r m o f tiie i n m a t e s , a n d tl.e p u r s u e r ws»
.-educed :o a h y s t e r i c a l •ioridit-ir.n. T h e D u n k e l d b u s w a s o v e r ta k e n
•>t a p o in t t w o m i le s d i s t a n t f ro m -,he C o m p a n y ’s offices. The
v u r s u e r 's c o m p a n i o n r e m o n s t r a t e d w i t h t h e d r i v e r , b u t h e ignored
tier c o m p l a i n t s . W h e n t h e b u s w a s b r o u g h t t o a s ta n d s t i l l the
p u r s u e r w a s in a s t a t e o f c o m p l e t e c o l la p s e c a u s e d b y t h e nervocs
s h o c k sh e h a d suffered t h r o u g h f e a r o f a n a c c i d e n t in d u c e d by the
s p e e d a n d r o c k i n g an d s w a y i n g o f t h e b u s a s c o n d e s c e n d e d on.
a n d t h r o u g h p a l p i t a t i o n of t h e h e a r t i n d u c e d t h e r e b y .
With
r e f e r e n c e to t h e a v e r m e n t s in a n s w e r it is a d m i t t e d that, th e bus
- t o p p e d a t S t a t i o n Pt^ad. P i t l o c h r y , w h e r e s e v e r a l passenger*
alighted.
E x p l a i n e d t h a t it h a d t h e r e a f t e r t o p ro c e e d to the
t e r m i n u s of t h e j o u r n e v . w h e r e t h e p u r s u e r i n t e n d e d t o alight.
Q uoad vH.'ct t h e a v e r m e n t s in a n s w e r a r e d e n i e d . ' ’ (C o n d . 4 “ As
a r e s u l t of t h e sa id e x p e r i e n c e t h e p u r s u e r sufVered a r e t u r n of the
h y p e r t h y r o i d i s m fro m w h i c h s h e h a d f o r m e r l y suffered. S h e also
su f fe re d a se v e re s h o c k to h e r n e r v o u s s y s t e m , t h e effects o f which
s t i l l r e m a in . S h e h a s b e e n u n d e r m e d i c a l t r e a t m e n t since the
a c c i d e n t b u t h a s n o t v e t f u l l v r e c o v e r e d . S h e r e t u r n e d to her
i*:v
IP
C O U R T O F SESSION*, -ve.
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ipso
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o f t h e jo u r n e y . ’i i "
to c a t c h a n o t h e r
l::eO 10 . e a v e the
t h e tirr.e * t -V?.f
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— t h e o r iv e r , on
5 to c h a s e it , ^
•j-'.: h e refused
■\-ga t h e to w n at
!:.g Up t O a ~pctd
r o c k e d arid
th e p u rs u e r w sj
> w as overtaken
y ? officts. T h e
. b ’-‘ h e ig n o r e d
a
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■; 1 A}*e ji e r v o u s
:
b y th e
? '‘5 ^ k c e r ; c e d r i j , .
■J^B rcy .
W ith
*d t ! , a t tl .e b u s
era! p a s s e n g e r s
p r t . f e e d t o tl-e
t j . d - d t o aliVlit.
: C o n d . 4; " A s
1 rrtl)! !) .-.f t l i t
~t-: r d . S h e also
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. t h e b a n k , b u t w a s u n a b l e -..wing t o H-* fc‘; ''c: S(/ ’^ , !' * JaI’"
-ork s
^outinlit; a t w o r k , a n d h a d to le a v e o n - n d
ktr v.
^
el,t5 J n ^ t a t t e m p t e d to go b a c k t o w o r k on ^ ' t b N - . v e n . b e r j.:.-, ,rv
6>.
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Xy i s u n a b l e u ! * . * k l U o v . r U . e w h i c h t h , MM1 . . ^ t W .
• .lie
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e
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k »t C h
vi*r:hi:e or !*:. v*. si.d >he w n - t h u s >:< » ; \ e b e d to
t
t
h
e
w '.rs
S h e wa* in r e c e ip t of a w l m y - l £2:>o a y e a r .
ssc‘
the
,«t a 11d a t r iftv veai> - f :>ge s h e w..<i;a i;av e been
bar
i :ci, j-:'1?
r.e -b a lf of h e r.................
t h e n s : . m. .v. . S l.e bo .s a:s.o
* . " J 1(1 .1 V’C li- '1* lJ Ol v ; . t - u » . » ,
“ , , „ : }CV of t h U per.>ion.
T b e l . e s r t n i j u r v w h i c h >he
1 * \ | " e j*"aS a r e s u i t o f t h e a c d d t u t w ill p r •b ab .y oe p e n i . a i ; ’- n t .
to ;ja v e c o m iii iie d ii l-h eaiti). H e r pr':.sp<.-ct.~
' . M-p'vlO
i
.<.f o o t » i n !V ; ^ ; o r a n v e s i.p k - y m e n t b a v e W e n g r a v e i y : n . p a :red . s h e
il!-‘
^.n-'ed c o n s i d e r a b l e iiiedica! a n d o t! ie r e x p o s e s i« t_ie.u.ng
‘”5 Vs c a u s e d b v t b e a c c i d e n t ” \C,.Dd. 5 i " { b e j n j u r i e s c..i.1 * -Jed on w e r e e u t i r e l v d u e to. a n d w e r e t h e r j a t u r a l oBO
^ r e K e V ^ e u u e n t - e of, t h e f a u l t of t h e d r i v e r of t h e b u s, f o r
r r ^ ^ h e defenders are r e s ^ n .ib le .
I t vras t h e d u t v oi t h e
d r i v e c a r e f u l l v a n d a t a m o d e r a t e r a t e o f s p e e d on t h e
J x i r w Lr.cn T u m n . e : to P it l o c h r y . H e d r o v e r e c k .ess.y a n d
j'-,i‘r_ ' e \ c « <>3ve a n d d a n ^ r o u s r a t e of s p e ed , w i t h t h e r e s u . t ^ >&
*: ‘ I’ ^ V e r w a s r . a s o i . a b l v a f r a i d f o r h e r s a f e t y . I t w a s I n s o u t y
,: e C V t h e Diirsnev t o a 1iV],t a t P i t l o c h r y , w h i c h w a s h e r d e s tir .c *'"* H e r e f u s e d to a i ! o W h e r to a i ig h t. A f t e r p a s s i n g t h e . e r n . ^ u s
.-in v t l.is
c a r e * a . . v ar-o 2i- a
V'-i e i o u r n e v i t w a s h is d u t y to o n v e !»)b
_
- X r a t e r a t e of s p e e d u iu i l h e d id a . l o w u . e p u r s u e r t o a,
He dro’,V
veP bi l ii!s) bb uu! s5 aa ti a<1 r e c k le s s aar.d
m a b e ^“ . iiir > dangero
—u s spe
i ' ed
, . ar,d
,
mariner t h r o u g l ; t h e to w n a n d b e y o n d . A i. t . . ’.s b e d ; a t h o u g t " « M k n e w o r o ^ b i to h a v e k n o w n t h a t ins c o n c u c t w a s c a i c u , -ad to ’••p-'dnce t b e g r e a t e s t a l a r m a m o n g t h e p a - e n g e r s m t h e
K ^ ^ a r i c u l a r i v t h c U li k e t h e p u r s u e r w h o w e r e of^ a n e r v o u s
;; V,-«?ti'*>n T h e r e s u l t w a s t h a t t h e p u r s u e r , t h r o u g h t e a r io i i.er
C’v V " i n d u c e d b y t b e -aid d r i v i n g , w a s r e d u c e d t o a s t a t e o f
a::d s u t f e r e d t b e h r ' u r e s co n d e sc er.d e o on.
C T ’.V p u r s u e r p le a d e d , i t n r a:
1 j ^ 1 h e p u r s u e r . * a ' ” -g
c - . n e red loss, i n j u r y , a n d d a m a g e t h r o u g n ti .e i a u . t o f w.e o e i e c ^ r s . ’is e n t i t l e d ^ r e p a r a t i o n t h e r e f o r . '
Tlie d e f e n d e r s p ie a d e d , X'nUr a 't t t : “
' ^ “e plil'^ r ■ • ^
, , ei.'r« heuv^ ir r e le v a v .t a n d insU3Tic:e n t m ' » V . > o
1‘
c ^ V : s W , / o f t h e s u n .m o n ^ . t h e a c tio n sb o u d i e f ;s n u s s e o .
A : a d j u s t n i e n t of iss u e s t h e p u r s u e r m a i n t a i n e d t n a . a n .s. ue . *
• P-. *
it
k"cr
1
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t r . -*
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I U p ;/ ?-*. V
*m §'jr--s V r i '!?£-<'
W 'KSfe
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e pr u• r s.o e ^ ^ e r u . e r i t s .
i i M.CKAY
’KAY S
S OPINION—
OP2NIOS.— 'A
. Afnt e«r D a n a t i i ^ tb
—*
»A r*p . <C as« . »222,
- a n id e n *d a t *p r e s e n t w
* u h Cu*r n , >- H• a . d u q », U - . as . cc ..
-r'Z_\ Ss’
. 2N-r^i , T/'-.
o - d in a r v f vnr. s h o u l d oe nil ow ed.
_
,
-a
On ° K t N o v e m b e r 1S2J‘ t h e L : r d U r u t r . a r v .M ac n ay ■ o ^ a . K w e d
th e p r o p o s e d iss u e , f o u n d t h a t t h e c a i > e « a s i ^ - r e s u ; t a r : e
^
d ‘! - , U d o f b v w a y o f p r o o f b e f o r e t h e L o r o O r i n a r y t n a n , o j a
j u r v t h e r e f o r e a l l o w e d to t h e p a r t i e s a p r o o f : * f o r e s n ^ e i .
-d
sf.p>int*-d t b e p r o o f t o proceed on a d a y t o r,e a f t e r w a r c s b s c o .
I t - > p V . n t h a t a case of th i s so rt b r i n g s t h e m a t t e r . i u , b n e ; - - b ^ e
~ I r i * of cas es in ail 9f * h i c h t h e diffi cu:ty arose fr o m
^
V J ; is k n o w n as a “ m e n t a l l i n k ." t h a t is. an etv-et o n .v p ^ o a h e a - d
receivftVile in e v i d e n c e as a_ s u b j e c ti v e s t a ' ^ o f
t~=»“n*'a'i .ink in t h e c h a i n o: cau sa f .o n e n c .n t . i t •. •
■■ -
S
<^ f -; r>.
.'3z -
CASES
. . 1.
m
'M - 0
^ ■ P ' . ‘„
-
D E C ID E D
IX
THE
1930 S.
.505. Indeed. here are riych-/..-gical!y_tw«.. mental Sinks, fear, or l t J
C"!;"-:-i!:- -:i> ••! the idea <>f a : u : a r e a.-c:aent, and terror or iLocfc ** -*
cjiiae i-;encc '.<t U.e imagined crush. ^
_
;v
I near -1 ;» --i-.-.z :tnd ij.terestiii" debate. in ’•»hivii the pia ct and n i t \ c : h t-,
of aii •jww
was <i. ».-ut»t:d irv m many p-.».:>ts of v;e w. I was
to ii’-u: the present case re.eva nt and :u ai.^w :i;i .ssue su oraiua rv f o r a j 4
I was m-ke i’aiso to th r o w it out, or allow a proof. I aai n o t prepared u,|th r ‘.»-v t^e vase 'jiic a> irre.evar:;. «nii 1 think ><>me torm of inoui
be iitri. A t th e wiHie time. tor reaiviis
i *J;au develop ;*t*r. i%
have :\.irsned tiie opiuh-t: th a t . m '.{it sta te •.•: th e « u t» o n t:e s, it »ouie i ^ ;
do: ;aere'.y -iitiicult h u t su b stan tially iuipractJv&Le to direct aright : l . t j
of aactions
c tio n s and
a n d sorts cf*
the. . classes
minds
iii.
. ;i a vof. t«*v-t<l►«v•ew individo*
d a m a cs e t h a t a—
r e a d m is s i b le . a n d th o s e ' h a. t a r e n o t.
- ..
..
.
I _ __ :l T___ —
] ■>ha:l not. discuss the m any cases ;n detail, b u t I th ink this emer).-**,.*
an*i correctlv emerges, from ail of tiieni. t n a t ad Courts ill ail couutrif^^
have
->h themselves
on odelicate
esie
,ve :t'.l
waenise.'CS uji
c u u , c ground with
»,*» c.-ues
-w.^- " ' U r e tb e Cdacc;;t^»■
vf ___......................... J .
__ 1
.
;
a!i •i Dri.'.'iarv '.ink is s u b j e c t i v e only, a n d niore p a r t i c u l a r . y so w here tf...r e |
tc rs iiito thc- a l l e g a t i o n s a n e i e m e n of a b n o r m a l i t y , c-r a t l e a s t U D u s n j ^
enters
..'esneti; It*
!!=:Sh<. in t h e n>ental o r p h v s i c a l g et-u p of t h e s u n e i e r . l h a t elemeti;
. . .
•
'
.
.T
.-iH *!*.
^5
p artio ilara* p r o j u in e n t in t h e p r e s e n t case. I t wa* p:ed. a n d i t xnigbt^
'-e;'tai:ilv eerivs to h a v e b e e n so:u*:-t'.!urs 1
d o w n , t/ . a t ti;e wijo.e quest«ofty
o f >h-*cK cases is now s e t t l e d a n d re d u ce d to a m e a su re >.f sim plicity. ^
t;..'u a i u r r tu av b e e a silv i n s t r u c t e d as to th e law w nich th e y a re to uk*<;
. -vovt h.ji.4.5
in to a c c o u nJi,
t. ‘I1 c a n n o t ag ree. N
n g coisid il l u s t r a- t e tn e d id jc u ltr of?^
* J*—
'm
«
*
. i , . « *. s
V a I . . . T. _-'*i
e cases
t o’jt t h a- yt «ttbe
;uLira’is
er;niT a "wav
a \ u-hrou.'h
: r o u j » th
ujc
u ^ a be tte r th a n to ^poin
.....................
v #yU(.r
te=r;n_
» :ne. 'in re-'iewing
: ___ *V«.
in
s
e
ff
u
r
-..he
p
u
r
su
e
r
asked
th
e
esses,
to
hold
th a t J.*5*
counsel for t.he
the judges of th e I------r is h I>i vision in Hr it. ( I ~-’0 _■ 20 L. R.. Ir.
dic .taa'.-.f
-i th.e
Palles. •..!■•.
C.I’--.
L. R.. Ir. 44
441—
shall
andj B i " i". uunreoorted.
n re c o rte c . cited by
oy Pa^.es.
: I shajl
one o u t s t a n d i n j itanse tor each autnc-rr.y— were
t- re f e m d j
-...those of the judges in tw o American cases—
■ 1v'.«■'■ 56 A m .S uv
R^o. 604. 151 S'. V* I0T. and S.>a h .- 1
60 Am. -St. Rep. 3C-3. 1 6 ; Mai*./
•2-5 . a n ’i. 'i_-iiir.. t h a t I.o:'i; Jc*’:r.st n m »i i
. 0 . H.^j ■ * * l- 1'1 j 6 S. L. T..4-5 as -\n O uter H o use i :-d-^e in our Courts, and A tk tn . L .J .. in H<u—.j
hrwK.
1 K. B. 1 4 f. i t p. '.’’I. -ire t >be preferred to ?bii3:more.
a i’er 'v a -ds L-ord Phi:h;rn-re. ;n D u ’.ru. • i f y l . - K. !•.
a*, p. f ? ! ,?
and ;«> L .i-d >t.>nnon-h P a r l i n - in C - ' ^ r . 1&0-2, 4 F %i-HS a t p. ^ 2 .
mnv a 1 i z 'v n
*•> ie'.'i'ie
a.«o iiner;rj^
t:;e care:u] oic ts of
L-.rd Justi-:e-Clerk Alnes* an d Lord Ornddale in
. 39-7 S C
5 .-5.5 :l t
5 4 4 . 54*. 'vho disappr.ived oi IJ-VMhi"rJ:.^ i .
i K . B . 1«1.
L »-i
a ' t>. 5 4 : . and Lord Andersc-c. a t p. •>.■!. pre:erred to g-.re
ooinion. l*-,r an* n a r t T thin k it ^uite conceivable that
-he end, it vjil be found t h a t there is no such c i r e c t j c o n a c t :.etween ~
»roij-,s ->f -ud.-es is lear:.ed .-ounsel assumed. N e v e n n e ess. taxman
’.^e? ' h e :u i=es did r e c a r d t h e x s e l ^ e s as diifersr.g on questions or
o r n o io le .' I t was also'-laim ed t h a t the earliest case. I .rf.-nan H a ^ - .
Cnm*:s*io™-* *■
*3 ATT- Cas. 222. was n<-w overru:ed
I a< _
con* — t to ta k e Lord >haw'# opinion t h a t it cannot oe now regarded as «f
^tiidin? nre-.-ede.'.-t: alb eit he only -iiscussed it as oear.r.,: c n a ? - n e n
proposition as to shock -rase*, which has lone disappeared rrc.m the
men*;
I -vould desire to reserve till after th e p r c f any lorniaiatK-n
a’.itrsorities
- ..............
-,.; ’■ ‘•it.. .:n o. r :c r
.
t h e vie ws I i n c l i n e to f o r m on
v .» ^......the'€f
OU' th e r a t io of m v n re « en t j w d j m e n t as to tn e p ea oi ’.rreievaccy,^,
an d ' a t f ir as to t h e t r i b u n a l . I s h o uld i n d i c a t e v a ri o u s -r.serences.
J
Tn -h e n r s t pla ce i t is e’e a r la w t h a t nor ev ery s e q u e n c e w h . c h r e a ^ tljv.s n e g l ig e n c e — m e n t a l s h o - k - p h y s i - ' a l re s u it s - r s h o c k - : , a - n ^ . e d j
as ’o n s t i t n t i n c a =ound claim .
........................................ ....
I n t h e n e x t pla ce, t h e case s wi]l -j’. t'i r. a t H y :.e to m . n to : a :< i n . o t h r t A j
if „ o t four . c V s ~ .
T t h i f k t h e c r i te r io n app .i c ah .e . may wei be foo n J5
to d-ffer a c c o rd i n g as t h e pe rso n a l le g in g m e n t a l a n d p h y s i c a l i n j u r y *
#*§<&
v a r ...- ^ .^ ..^ .
...
;.S.--\~o ':--- ■
' i*- -S-^>_ V-*»V.. >''- ^
_
-
193 0 S. C.
f t “ r . or t)1(
r i 's-'c us, «
■ "
st ked
toriii,
'• 1 l t v a r t d u,
;” '; - : r y n,u it
-«>ter. I
"•-•u io I *
••• - r it’h t ;Le
:.t;a sorts <,{
'•ins ctLtrg*^
-i! c o u r .tn n
the r ' r e t ; i i j
■ v/i)cre there
e^st unu*u*J.
Vn;tr.: i*
-^ ^ r-tstio u
' U i. t n ic it y . so
y are to •»U
c fii.T ic a h v of
*.£.e i\:nic.r
nolo th e : :Le
R.. Jr.
• — I s::a.l Ub*
"*•" ; referred
'■ -0 Am. St
:e ? m «».
'
~ T. ;n Ha.li;•'hidhn-.re. .1.,
• ;-t p. 'jJ 2 ,
at p. >>‘2.
I
•■?:•:' dicta of
. : 3 i 7 S. C.
] K . B . 3 41.
:\-rred to give
‘La*, in
n tnese
"IRU V
f ’eind
ruler:.
rarce-ii as
.a t!*-»i of
irrt.evancv.
'.*r>
—:a a r m : red
. i in to three,
ell 1<i found
:cal iDjury i»
jd.SO S- '■
C O U R T u F .S E S S I O N . i*c.
a t'triuii resiiting ;n tiie
security vf his o ’ li home or shop..;,,,.. -jj, :*30.
a j.aiies-'er utiuer c o n tra c t or in.p.leu cvt. trac t with tiit.- v a t : le i. . •• j a
Kt-r v.
. ,:,er vf tiie
,;c wjji.fc r :_:;;t tv :••: •*!; »r a:<vi:i jus.. .it- ‘ tret-ts i.- *1!• -hry
>
I.
I
L
i
t*
.
it
J
<
*J
a - 1-1
'•■'.I; :i,.;i ■■i 1!,
M •*.>»: Co.
i-:a.!v. olbvis not utidcr ai.y "i.e ut
of t .;t =tf speeral re.ativi.s
L-iu Maifcsy
. ■.'.■■ 13 App. f a s . - - - . Sj-n.-’t. <y.> A:ii
Aii!. >t. lit!'. 3Wh :C* M a i s.
..ike a:i :..«*:riit:*>i! '..ear tij*- present. it .-eeri* to n.e obvious th a t ti.e Ov-jiuarv'.
•a ; er.Min.
in the wuus o: her v« «< :«•>«;«.
txpuct
i
L-V tl'Hll.l'
j :i i i r JJVijj £ i i h i i k i r . g , sfji.ck,
t ; . e i j*
■ju t
..
.-t r nviiit;— -viiivu o ug ht t<; keel, tv tile s tr e e t;— L>u
’i ,
V j;. '.‘'.'i*— it a rig:;: very (jineivtjt in
e t froir. limt uf a ;
..• i-jl.mits ;<•> ;>e carried iu a z-ub'.ic viiiMiJiis t-ver Jtuirow fcbd ruacii
. .-'a n d roads in to Jjig'niand .'•-•eiitiy. >i:e :iced no:
th e re in h e r
- -r;:;ai coi.ditic-u. b u t th e i-thti' d. i:-- ii.hahit a h-c.r^e.
Tiie tL ird pyiut I wouid e:ujit:abi*(; is th a t ti;e <iegree of d u : v oweo.
■■A c.'i.se'jueij; effect «i bread) of th a t <i;:;r, may differ very cvsisideruu’y
ei '.1 ti.e i-artv aiiet'inc in ju ry i» in some »ort ..f eontrju-n.iii re ati.'U *<>
•t.t deteri-ifr. i m ’i-Ovinc sotiie s-t-cciai vi-lii.*at;on to car; ',', as it :s cai.ed :ji
....... crise, " n o t me: e!y safeiv hu: secu.-eiv in th e etvjjifiiocictii iei.se.
y ■- niv i a r t I ■•itu pret-'iired to a; piy ti.e ruie t h a t in aii cases acti..-i,a-?:e
-.•‘.ii'ence must be t h e w e a d i . not oi son.e d u ty t« <
u u t of sJrite
e .v- ’: by tiie p a r ti c u la r per^..i, to ti.e t a r tic u la r person. I b t t s i
%i..:.;jki tm besitatiijiriy r e je c t th e ev!.tt:itioii of coui.se; for tb e y .:rtu « r
•:.at a va^ ie vf action irises, ir a j»-r>on. vecure->:i the t-.a’-ejr.et.t teii yards
s r e in ’J tiie ne.jii'.'tnt act of .>j,t ,-river t<-«-jt rds anotiier.
dow n
• ir.ocx- I n c ire ct ieriva:ior< from t ’r .at evn.es.. ti.e m a tte r •.vi.icV. riyured
>, th e present d eb a te , narr.eiv— NV|.ether tiie jdiosyncraiy. iiMiiuai
stioet-tibtiity. or a b norm a lity , of the i>ers<>n cc-ncerned ajav '.et.rivc th e
<-j:t • ) * « •••: t h a t im m edtaey "'i.ici't is riecessar*} >.)r. titis p.-int par tict;.ar.v th e re seemed to emerge an.oris: the n.nr.v judges cite!', a d irect
ii c t of ietrai outio'-k. F " r my part I am content, in tiie m eantim e, to
.in-:- n ;r present vie-.v of th e tr»i;d of a u th o rity t i m s :— 1 th i n k th a t ,
a “ery st.eciai case is rnaoe
the resierai d u t v vf those ooriduct. ! • : '-n^tit to
m easured :>v *.:ie ita tid a rd vf iw n .a . r-e:s< :.s. Ey
<u ••jno'eri.ro.id
i ’i, *td
i: s:;oii..J be
m a r I -;o nor mean eith er ot t wo thiiiir ~‘
, ; : J -Jo •>: mean to set v.p :-.is idea: jersor.. tr.e nV •-.r-.-}-:nx spoil en Of
i v sr.e j -id?e. as se ttin g th e ?:?.ndard of -intv a t a r a th e r icw level.
I i ’j not avcin to net '-if* a n v c.iicreie *'■>•■■ .'•jJ....* of t.hviiftii and mer.tal
..ttrlbutei as ascrtbabie to tiie normal man : b u t I think it i.v in.p.-ied
.! lim its t h a t people dealing w ith passengers on
vi-.nin ce rta in wide
::.e -trerts. or with pas^engeri on pui.iie vehicles, are entitled to expect
>, ,rn*a;itv. in the absence of an v refts.-nai.ie notice of existir i' 'jntisual
•••..viition; of health, unless thev have special reason to observe th a t th e
.!;trarr rnnst be provided for. A case rea i:!\* occurrint; is t h a t •>: an
l-.v.-hid lyirii in a critical conditiori. where silence is r e v e t t e d , an d th e re
;r*.-ss neglect of th e w arnings so provided.
T tivtik all I need add to th a t is that in my present view t h a t c r ii e n o n
a alike t-o passengers in omnibuses and to s:anders-by ■•■n tiie stree t.
'm: ir.ar n o t ar.pir to cases such as D i J i v v. TT’/c'fe J* Sen?. l'.'Oi ; ‘2
K
Ct;<.
erf t.’ie home or shon is invaded. I n the home at ’east.
* 1 . i - r s v j i ...f tiie te n d e r e s t susceptibilitiec must be expected to h a rb o u r.
Fjr these view; I have noted passages from nine judges ir. seven separate
ca>;s. I do not -'anvass them iiere and now— T may vet. after proof. be
t-i-nade d th a t o th e r views are sounder.
ith these p re lim in a ry views in mir.-d. T re tu r n to the criticism of the
r -'o :d . and if th e record contained nothir.s more ias was mnee'i argued)
th n h
of an excessive’--' invalid and rieurotic person becom ing a
; ♦.'seriger on one of th<*se h i^ h ’atid ..mnibuses »r;d receivir g .'liock
i ’.j-iries because of h e r own exceptional condition, I should have th o u g h t
• • ?' vj
i
i l
'm
m
rs
t:
■
ft
r >’ -
.;
u m r n - - *
Xf- x ' -
.}, »i
-
»
:
«
i
.) i n
■..*
i. *^
A
-- .
I- *.,. to %
M..r .i ' -..
M*i
£V:, \-.; J.r:' M
&2iO
f zv ' Za:'
-.;*.*.-£
.'.w.-,*.- -V- f;
; i K
ii r i - n t . as a t p r c - i . t .. Jvi.,ed. t-, t j 1IVW ti,e case o u t. Ll-jt J I
- ’-t 'h o u g
.ri,
. .
••■•Iivixiced t i m t ;i<« p u r--------s u e r *}
h rr .a. .t h e r f a i n t- y ) jr.a,;et
a ■U - ' 'e e - ^
i:;au t h a t .
K . r < - i a:!. w ith rej&r.i to t h e e x c e p tio n a l t r e a t n ^ - * 1? ' **•*
Ctfcli
.;]■.,!,a. :••:• a;.V£K.*<;y— ii;e sav* th-it. :,; ;}.,. <C .S*.4* %»»
.........
• • startt-U
•
‘ ■ >jl
itipjt>ttriji ■>: th e jv i;r :
, ;.i:c
'Jr.'-trl
,a'.e and
'-’ve at a:,
.-■••au.-c ij*" had
iin o t.'ie r o !~ n : ;>i;* ;: J'.t...-n ry ,
_V xt. she >ay&
;:js:tavj
' S ~ U. *'*5i
i ;e recognised term. ,u*. u . t a r .x tr i w u a « ; « * th a t be had
>••-uex:oij. as)'!, ara:.* s: : ,J? -:!'":.e i :s '•'* J,is | :«*ser.j:ers. r e f u s e to s*^!? ^
il iw e with tf;•j i ji b*:V
««.tji;at)un h, a som ew hat ;lia<s
M overtake th e ■
o!u:,iiju$. V . p r ^ u n i a b h - w a s i . w e f e d : t , t ° * M<l? r
n-irmal. lei'iii.-nate
i. Jf tht.se facts »ie proved. ii;ejj t }‘fr
uav subjected in tw o s T ^ t e portions of ti.e j o u r s t y V.
i-nuditions. T hem sn •j.- '.- e.y. she j as t;.- s e a v e m e t t j . w i
pursuer was rernot.Jibiv
“ :ra5<1 f" r h e r s* :V*y '■ -Cc.„fl. 5).
I do Lot ,K- ?
th a t t h a t riei-ev-..,jr;iv. ji.taiis
means ” r ta s o s a i-iv afraid l.e.-au^e «ve
rxci'pt'.oi.a! i«rs-.n.” <- - - 'i he b u s ro ck ed a n d sv. a ved t o t b e * > V - “ 16
•
tie i n m a t e s " i Com.:, o i. T h a t m e a n s t h a t t b e o t h e r
h,te*
c«-at.V «;arioe<i. *S; The d r i v e r ‘' d r o v e his bus a t a
,lft:v^n'.:s sj-et-d a;/d n, a n e v ' - i ^ n t m a i.L e r th ro u g h t i e t o w / —t-'v
^
Ai! tins h e d id t i ; o i : - h he weii kr.ew o r o u - h t to h a v e kn o C ^ .£ '* ? ? ■
'i-L-e-.i to m ake u:
Ti:ere reirmists th e -iti^ tio n w h tth c r th e n.ode of p r ,•,.,»*
• •
T ‘jere w^re o:u-.i t„ :i.r coiiitivt.r.c d i r t s on this aiaTt^r H a vfc4
.-...uparace ca*e. /•»— -.
C. J - X ti.e r i r ^ t l.iv;,;,.,,. ed >,v ] . 2
.Vn»:»'.-.y(5e. ur..i:,:i.-=.is,y r - ! tjse.j » ;« r v trial, i.ei,^ d u h ;o^s as*‘o t C
u.H-.-.nai natu re <.r •.:!,• <-a-. J• : t.-- to :i.e e x i-t:::- auth.-r^ie*.
But
J-- ■* ’ V.-r »;‘.-r»'.--<*-i*
!>-
•; >.iV V--V- ; « -*yr. i : - •'j'
M
^30 £ ,
i-.mduct was c a l c u la t e d to p ro d u c e t h e ' - r e a t e s t a l a r m a*m/n&
paJM-n-ers ic ti ie b u s iCon-.s. 0). T h a t s t ^ s t o D re c ic a te t h e ” 5
n - a - . n a b i e a l a r m t o tl;c i:o!.’i.al person, a l t h o u g h It is t r u e ' i t
^
linisho-s:— ■‘'P a r t i c u l a r l y th o s e like t h e B u rste r” w bo wer^o** * J***4'"*
li is p'jsirio n.”
‘
" ‘
t6 rT <*t*
I am of opinion t h a t , looking to t h e s e a v e r m e n t s of a v e rv - t u c r a l
n l t r meous a c t i n g on th e d r i v e r 's p a r t , ar.d to th e se a v e r i ^ e t - c '“ r -v •
i.:s c o n d u c t of t h e »us t;p To e o n d a c t c a l c u la t e d t o cau^e Lf-r-’ou«
p h ysical i n j u r y to th e n o rm a l p erson , t h e case c o n t a i n s some -e’e,
';-..i:ter a n d rau.st v , to proof. I d iny o p in io n , do Question a r « e t as *1*
t;i«? g e o e r a . s o r t ^ c x ^ l in I n >-t »../*»;,> a
r
nvy/ , , . & f T
3 K - B. -V.O, ^ r,K 'a w as cite d , a n d o n w h ic h m u c h s t r e w , J
>?>• , r
W
< A > E > 1*D . ' I I i E D I N T H E
rxi
s m
^ • 1> IV’
i - W ? . . * , ’'ry
i
.
-'
fli® fflgr"' '"'
i m m m
mamr
C.V-V.C.-/•!..« <K
«?. C. o v :. the Sccor.0 InvUioa
. . r. tfj.'c d t“ to. "’ :i,i' 0" |J1'i&- b-avine Leb-re them / ,. V W
rvroff: ,'a>e ,f 7 - . / ^ v. I h o u U r fc n T .-a r,.,"’,-* Co
.ts^lf a n a tne tiit-’i
u * » rvrcff:
! ’.'.> >. C. tH . L.J .‘O. n■ i'- . ‘J i. IJ.ey he:d t h a t t];e law a t f ' i ' a h l e to
oase oeb.re th em
;ui:e well detein.ij.-ed >;-«• L o re H u n te r at
f’f- •
‘" a t t r * -lerrrners had n o t shown a *r.f<:al
, ■ :n :n e s ta tu to ry
-*i.? t h - case vb.’-nld not be 4e3t to a a rr
( . -• • J » r d Urniina e at p.
. I , « not ta ii,k \ for n .r r^art. th at
prop.)s;noiis couIn l,e r:-!iT:y .mo Cowr j,. all ca>es of -VrW.us -hock wjti,
pr;y»i-/al com-on-.it,-.n:s. I :* y .'i..-iy hav fc been. a n d I -}-;t a
?om_
plr-Z y applicable t.. th-- f /?/, c a , e of a r . ^ s - r i » a
••» tV .tpath with •» rutvr-vay tirtm w a r car f-.n.-ii.- i t r a i ^ t * 'r.t« her
No . i ^ t i o n of sr.eclai < ^ .;e p tjo :h ty was raised a t ' a l i : n o r could *Dr
.r.'.--:!oii arise, as ir o..e> tierc. as to her nav iL,-: accet.ted. ajth-'.i-rh t
tu r-. -wi mva.i.i. tiie or.Jiniry risks of a p ro lo n -e d r.i-bla'nd u.urr.t v ' JD
/:• • tn e Lord Urcihmry. w ithout a r - u r r e n t on th is p.dn- had ;,e«>
-.ved to approve a:i issue. Accordinsjlr. th e case does - o t ce*m u>
•:.ke i’-' ay from me 'n tiie present case rhe n e -e ssirr of Sud£r:cc- a« to the
iirri.-.ite le?al niceties, a w at to the probabilities of re is r a rn V 'e as cooa special c.u.'sr.
T should add th a t th e views eirrfcs-ed in.
m
.
rvv.
* IN T H E
\:i~ criit •' lil.
i
• rX
J93o s .( * ? ;
.. -r, the year U :~ ;i> * J tue im p - r :
Sfie VTj^
' i,t inttssi
£*.c*
f XctES!\s .
lo uatc
----v r j.
:
<1 * w * p i t * £
: ; : t r e m a t be hao
reiused to stop
.
a s..:;:ewiiai n.ad e n d e t t o j
1
t- r j c e e c b 6 a t t U
* .a r T »'r o v e c - ri;fc!J d * Pc« ^
“5
• i.e l o u r u t y t<, q u i t e e x c e p t i o n
! ***** a - ^ n t r :1) fci u
;.y
C ot.c. ok I d c i o t t f c i i i
•v at rave because she
t&
: a n a t-.vayed to the great
m a t m e oti^er pas.ser.ctrs
' ”fe
s i‘us^ a t a reckless **4
••T
tc,WE and ber<**
to nav e know n th a t fc-i
r .« ^ ^ - r .: e s t alarm among tLt
1-e-rn.s :o pred ic ate the case t f
a lth o u g h it is t r u e the n a s u ^
- u e r wjjo w ere of a nerv<*,'
•iverrLer.ts of a very u n c s ^ ^
:
ne to m e s e Hvern.ei.ts bringfe*- '
c a .c u .a te a to cause Dert-ooi and
ne case c o n tain s some r t i e T j i t '.
•r-iiiion. no question arises as TtV
:' 7 ' an-> I'vr'it,* . 'V v h y ^
and on which much stress i u
:>b
nc-f.fc <*f t r-K'f >hf.*oid b t b r
I n a v«-v
•:•- b:r~r X'ivjsfK-u. ied bv Lord
:r:aj. :^'A
c u tdt-OS as to tl-v
e t-xU ik -z au th o ritie s. B e t is
■>. C. ■->-1 . th e . S e c o n d L>irisii*a
; i t . lihv;>. g before them F v V i e r
! v * ■< “ / ;i - ' i I I'Qihtray* Co., .
ifit th e law applicable to
^i.-ed
L ord H u n te r at
i D"t shown a special
not be sent to a j u r r
r t :.: j k, for n:v p art. t h a t these
: a.i cates * r nervous shock with
- tr!i. a n a T th in k were, com*
- • -•■•?; was a case of a pedestriaa
•a r f
straig h t into her. .
5 ra.-5.ed a : a il: n or could any
r
accepted, although » .
.-••••itjreo hig h lan d jvum t-r. I a '
.ir e n t on th is point, had been
y. tr.e case does not seem t* .
- r,*.~e*si:y o f jud g in g a5 to U *
a:>i’i'.5es of rriiscarriace. as CG3>- •
i r i.a t : ’n e v ;fc\rs expressed ia t
: . c : s < :. t h : s m a t t e r .
C O l ’ KT O F S E S S I O N . _vc.
• W.V■* *- ‘ C
t>i
;2/ ;j,g ,
■ ; . : ^ reci 'cv::ticirr:ii-:e n..«-;inca:sMii
. •* *
i.-:i-e of Hi
. g n a'. v.
Ht-use
Lc-rcs d icta
11.ii'• St'*'M't years.
V.
a ;.•* j
: .S'
*1
the case vf
1
- iiat ;J.e .ik-.cm >•? Lt-rd .'ha-R :'eftrrto_t<j <at _
:iie pi'
r. Ma*.'kpv
*
.. , fcX-.re>*ru :a exceptional ciiYUJustani-Ci. T h a t cr.se l.ao i.te:. - iii.nrr .
‘ ^ ."v
af;e r hvi anxious c e b ate in liie Insiti- House, travers:ng a.i
a u t h ‘-r::ie> in th e n.avter. a t ti the sj>ei-:a> cat.>e
:
' ;t-d wai of ti;:* j.ature. th a t a i-huo « . young as not to
"»-;*>•
r of n*w‘: .i^eisoe. f»!id. in-ietd. S<> you; g m a t tt w u io
c r a ^ . ; a i sent ...ut w ith aii-tiu-:- child, twy yoiing TO -.e n s
ciiii aiit-'- ed it :o '.-scat e ;ir.<i e r a " ! u nder ti;e "L ee: oi a
: -c. t'v/u
iir.
those c o n d u c t’)!::: th e car having uv reason :o suspect the
-:i -1 car. the , curious csi-ger on a very nusy puoiic h ’.gnway. I n e
f the rights and duties
t a r e n t s :i: keeping :iicapai-.e
c q‘*cttion <j •efr*= wp.s’ thom-ht to he raised. I n th e event, t h a t point
■v
f,r‘ ^ ; . th e Hoi:se of Ivords. and Lord Shaw, therefore, «stn*
' . jiKiZ
‘n .l
:e strong
series
of cases bearu-s: on
. . . . . r -*V •••trition hav:n*rf h r tn called ..........
■ **
i Vius— tiiflt ti;C ^>l . v
cau^t
' " <!f ; ^ " t b a t ,' tthh e aaccideci
If these had been
c o O e c t rrelated
e c i te d to a child.
cliijo
.................................
••*’L-*>rdsi'iiis oi.-ser«
;V:s. tor tny n a r t_. I sh o u ld h a v e agreed w ith h
that
was th e oruv
t
t
r
j
e
t'.1
skv
t
n
a
». but then I do nut thir.
.
_
b e a rd ;n t!ie Ht'uSt <*i Lr:*ros upi*u
..* v..use : c ounsel -A'ere not bt
. a id r.o: vou.e
'.aust. ***^--* «.*-»- r -........ —--- „
a5
t0
c a u se ^ a n ,i tb e
i K ,h it-
‘u
a I , -v
even
sr for ce'.‘-s^n.
i . - f fu"lv ir-to view what I th in k has never reai.y Deen cha;.er:geC.
.. ' . ; n t h e s e ’ m atters th e pursuer of an action of damages has a right^to
*
r :r-* *if 3 ’■■ rv - t ’®16 ^r-ec.a! cause is sho'vn. jn mv op.;nio?'j. <n Lne
- i ^ * V ‘-ajc:hfcVe
SMciai cause. I t is >a!d th a t dinicu'ty in i a ^
rr^re
j-e fia l cause. The au th o ritie s enar^e one to say t e a t
.^-ton of sta tu to r y construction is not such a cause. I agree, because
. * ’■» 9
n c'tr'v be ;nt^rt>r 6 i-€:d id
way or xne •••.r.tr,
d’ instruct
■ J : - . ii'tbe ConrV. d u t r ' ^ , / , - : : ^ t o ^make
. k * up its mind
’
I t . is.
. -u- „ xhicn of th e tw o constructions rs
. ho-'^-ver.
,
' • • V r c ’n e re n t where th e law oc a sub-ect is in a sta te ot fleveK>rn.et:t
t ‘state of some dubietv. and where the ’aw c a n o n i y w ap tiv at r u e n
.. A . c'-^uinstances a f t e r ' t h e facts are con;P.ete:y ascerta;nec. l h a t
I X : t H. risk of miscarriage between judge a n a :ury tn.nv.ner.t an d
: . ^ n c . and th a t, in otv opinion, is th e n*rure or tn e present ca-e. I
sv .r ®V WIT. U I ' ™ ? , t o revindicate th e r.zn x ana t:.e <imv o.
C-’-urt dealing w h h the question to ar-plv its best -uegm ent a c u
.- v e tio n . looking a!wavs *o the - r a t u t f r y requiren er.t,^
, .
Acf^rdinsly. I shall refuse th e :s w e p r'-t-sed . a n c a i i o * a t r o o i oi th e
Julies' averments before answer <-n a date to oe nxed.
The r .u rsu e r r e c la i m e d , a n d t h e case v. a s h e a r d bef-.re t h e F i r s t
Division ( w i t h o u t L o r d S a n d s ) on i H t J a i . u a r y ]!'S0.
k - .’v+'l fo r ilie p u r s u e r ( r e c l a i m e r ; A s t h e d e l e n d e r i a c q u ie s c e d
•t tb*decrsioD o f t h e L o rd O r d i n a r y t h a t t h e r e s h o u ld b e m c u t r v .
•J,t o n l r q u e s tio n r e r o s i n i n g b e t w e e n t h e p a r t i e s w a s whr.-tber_ ;}:siiou’.d -ro t o p r o o f o r t o j u r y tr ia l. T h e p u r s u e r i> ,r.:ntainen
there w as. in t h e p r e s e n t vase, no spe cia l c a u s e s h o w n f o r w i t h •J r&w;ii£ th e c a se f r o m a j u r y . T h e o n u s w a s u p o n t h e
fenders
t-. establish special c a u s e .1 a n d t h e y h a d f a ile d to d o so. T h e L o r d
was
T i o r . £ in t r e a t i n g u n c e r t a i n t y in th e
ap. in itself.
3 Evidence .Scotland) Act. 3 r0 6 (CS and 30 V i a . cap. 11 *2>, itc . 4.
I
C A SE S I»ECII'ED IX THE
Jan.
' -Tw.
. j-
^
' •■■ ■■■ «*:•.•" ~
»'••~• " • a M>v
»
il
i
n
01 .
;>S0. a sp e cia l c a u s e .1 T h e sp e c ia l c a u s e s h o w n m u s t be special *
p a r t i c u l a r c a s e .2 I n a n y e v e n t , w h a t e v e r u n c e r t a i n t v t h t r
!*: as to t ; je g e n e r a l iaw . t h e r e w a s n o n e a s to t h e T inned,’.*
—
.1 - - ...................
r
,
, .
.
.
.t ‘ " ' • • P i e H j . j A S ' .
ca:>!e to t h e pt e.snii oa.»e. I t ha-3 b een c o n c l u s i v e l y “ S ta o !^
* « ^ lU U V £ f
!)>’><<" v.
/•■;< ,v •>./,,.■;•> t.'iat a p e r s o n p la c e d in ’.•f-.avr.riaj_.jJ
Ji.:n«if.» ;.f d.msrer. a n d surtV ring i n j u r y to h e a l t h in con's a H - r &
t!'.*-re'.l. w a s •:iitiiltrd u , r e p a r a t i o n fro m t h e p e r s o n w Ik se
r e s u lte d m „...
A c oam
nn
^ , !
ti.e ’li a i i ^ t r .
moon
n earr&r
c a r r i e r had
h a d aa i]
d u ttS
y to
rras.-.naj;..- - t e p s t o a v o i d p l a c i n g h is p a s s e n g e r s in danV*r t
facts of Ih>!io' * w e r e r e m o t e f r o m th o s e o f “the presen^caj*
its r a t i o or t h e ” m e n t a l ii n k . ’ a s i l l u s t r a t e d in C\>0]» r v. I'aJuf
/ . j o7
wa s a p p l ic a b le . W i t h t h e o n e e x c e p t i o n of
.W .'/i I j - y .s h R -ri’icn,/ Co.? cases: o f t h i s kind h a d a ] -.vavs
j u r y . ^r.-.*s c a s e o f L'.-oim \\ h’ia.ycic C“niK:'(iticr,~ \vas° a*
a u t h o r i t y in t h e p u r s u e r ' s f a v o u r , a n d t h e e o r i i e r case of
c o u ld n o t. -,n c o n s e q u e n c e of I t r w n ? be r e g a r d e d a s a n a u t h '
a d v e r s e to tiie p u r s u e r . D i t r i c j i t q u e s t i o n s o f r e l e v a n c y ^ ’: - ’^
a r is e in C e rta in " m e n t a l l i n k " c a s e s .11' w h e r e t h e i n i u r v was n '’^ r e m o t e l y d u e to t h * t . e g i i g e n c e t h i n in t h e p r e s e n t "case, b u t
in sncii c a s e s t h e leg al t e s t a p p l i c a b l e in s u c h c i r c u m s t a n c e s u
p r e s e n t h a d b e e n c l e a r l y laid d o w n .11 T h e d e c is i o n in FVj ' *
I II -w -iiis C-~'nm,vs-o,i{.'$ v. CoHlrtx} - m e n t i o n e d b y th e L o rd Ordir.
w a s n o t iv.w to be t a k e n a s a g u i d i n g a u t h o r i t y in S c o t s ’aw .’** j £ i
p r i n c i p l e t h e r e w a s n o d i s t i n c t i o n b e t w e e n i n j u r y fro m fric 4 ,j
i n j n r v i o s n p h y s i c a l i m p a c t . T iie fo rm o f i n j u r y w a s n o t mater-*!;'?
provide*! i t co u .d be r e l e v a n t l y c o n n e c te d ' w i t h t h e DegHf ««£-3
c o n d u c t. - ’ T h e q u e s t i o n w h e t h e r t h e d a n g e r r e s u l t i n g fro m t} * i?
c o n d u c t -vas sue), a s to c a u s e r e a s o n a b l e f r i g h t o n t h e p a r t
p u r s u e r w a s a q u e s t i o n t o r a j u r y .24 T h e p u r s u e r s case was lh* £i
■ -Jones v. MViL'ist.-'.tes of Harr.iltMi. 192f* S. C. '9 . Lord .Tustice-CeV-:
Alness a : pp. i-4. :*5.
: M-1 nt •-•«}> v. Commissioner* of Locr.eellv.
;
55 R. 35.
' Tar<*.*r v. f>amhnrioji Tram w ays Co..
s. c. <h. i.) ss.
Shaw of r>:;nferm;;i.e at c. 107.
i’ K. f>. 60S. K enneoy. J.. at p. ‘17 0. Or'. Bell v. G
N o rth e r n Railvritv C -. of I re ia a d . 1 1<a<’>• 2‘i L. ?.. . Ir. 4i:$.
« [1901* 2 K. 6 . *>J9.
. .. .
^
I »'V~t a ,
■ • 1■)'!5 4 F. S>0. Ix*rd •I’ustiee-C’. erk ^^:lcdona;d a t p. sSC, Lord
m onth
p. > :
L.--r.; V.-mj-c a t p.
Lf-r>! T r a j r . t r 31 p.
* IS! i < C. v ’5. L..rd p r e s l.i- n t S tra th c iv d e a : n. ' r> . "
C. .r>-7. L o r i M-.rtson a : p. S i s . L ctu J u s : :c e -C e r k
Dic^s. .n a t p. -j . i". L -r'i :;a;ve>en
p. 5C1. Li>rd ‘.‘rini'Ja’e ai p.
L.'.rd R in t e r a; p. o35.
5 i M 4 >. C. s<56.
■?
S. C. 5C7.
:0 R ots -.-. 01a;g..w C orporation, I5I& S. C. 174 : Cu rrie v. Wartjr
! ? ” 7 S C. SS>‘ : H am irook v. S tokes Rr..ifcers. '10^5'; 1 K. B. 141.
:i Cr. n.,«s v. Glasgow Cori'oratif.n. ]!«]{» S. C. 174. L , r d ________
S t r a t ’nc.v.:>? at p. 1 < •. L 'jp i Mackenzie a t p. ITS. Lor-i Skerrin"V^;<
a :p !7 ^
•
* ^
) i-3 A p r. C«s. ot'C.
J>-.
’•* B row n v. J o h n W a tso n , L im ited. 191+ S.
C. H. I... 4 4 . Lord
of Dtjnfernr.iine at p. 'sK [1915* A. C. 1. a t p.
13.
af1 In
i P o ’eir.is ar.d F-jruess. W i th y it Co., f l& C ljo K.
P>. 560.
L.-T.. a t p. 572. S'.-ruiton, L . J . a t p. oTG.
L
•3 W allace v. Kenr.e-lv, il'.K'Si 16 S. L. T. 4>-*.. Lord J.'hnston iV --.
P - « 6.
~
*£V
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; c - ^ e c . a li t o ,L
nr.-v-i-tainty t h e r e
• "* "
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5 :n ^ a n g * , ,
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-<.e o r .- ; e x c e p t i o n o f F< :- ' r r
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k i ’-d h n d ai--v«ys a o i i e t o *
'v a s a d < tu {’
ti.fe e « r . : e r ca.‘ e vf / V / o - i '
•:-e
r ^ n i e d
■ y ^ s t ^ m s .,t
as
an
wi; e r t t ! ’e !w
■> : »
tn e
authorit*
relevancy
p r e s e t
was ^
case, b u t
••
€Ve*
• in "I?11 ^um stnnc** as the
• : ‘ _ * ^ ; ^ c : s ; o n :j, r ; f;>.ri-4
. = n:i-'-.ned>r.y the ]>.rd Ordinary
-
> ; '- n t y :n S ^ : y a^-.’S £
-c m fr^Kt a *
:r- ®
::V n r .'; :-a *.n «
n^H r-ent
: V h ? P : r tn .iiu g frcra that
a u s . r p . t
in *
on
::ie
p u rs u e r s
p a n
of
the
c a s e w a s t f cafc
C. **. r..-:rn / :::sr>e-C!erk
:,'r''‘rv i;r
•« ;> . - :ssr>
■
>.. i ; - : s S. C. ■ H.
sc. Lord
I»e.:i
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1
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1
a■ :'i-i*. *yj. L-.ra >zorv r .*■ T
■ ; . --•.
j r i v r . t r a* i>. *>3
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. .
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• i >-• . C u rrie v. E a rd ro p ,
[ I K ‘5- 1 K. B. H I .
^ ^ 11- L " rd President
; • v I>'*rd skerrington
*■■
••■>• L o r d Shaw
Co.;
L.
p. $ 3*
r.
f.
4 -w.
f .o r d
; oo. F.a:A-«,
JrhnstM j
at
50
jc.30
s. c.
C O U R T O F S E S S I O N ’ . i:c.
c o n d u c t o f l.<e d c f e a d ^ r s ’ d r i v e r w a s s u c h a s t u c a u s e a l a r m l O J a:'.1. 23. I
,;! »iie.j:-as?e:ii'cr* in t h e bus. a n d a v t m e r e l y t o t h o s e w h o. ii k e t h e
pursuer, l i i i ^ t ue in a u a b a o n n a i l y s e n s i t i v e coD ditio u. I n M a d . t j^li'ktrr ' .
.I'.y'hrv
f jja.ai«i.'U>i.$hirc Vi Unti/ CV''/i( (,.• relied o n b y t h e d e f e n d e r s , ail m'*•;c.: Cl.
• \s.
U ^ J - d in >a.*J. \\ i t i i r e ^ s r d to ti:e *.jUe>iioij o f p r o o f or
I tja t it w a s tiie prv'VJiiCe
ti^e L'^’tirt b y .'W tu
t h a t oueni*»,u. L i Ci>s> v. L'd u: :-r-jh W;-,.;
.
■• w e r e tiii-ee sj.^cia.-_<j-aes;)Vu!i— vf r e i e v a n c v . u f
f ,r,:r:l>ut.ory n e g l i ^ n c e , asjd J f e v i d e n c e o f t h e co»;VtVuc'iiun of
; r s u .'v a y c a r s — w h ic h in a d e it a p p r o p r i a t e t h a t t h e case ih o u i d <*
;-ro->t. O u tije 'jiie siio n of c ;-iiir ib u t'ir y u
' r l >•;*:
* w .is
a jji.'j j v ! v\"
c r t);e
01 7
a ’1'^'
f i f I l l . i j V. L j u t k ..A-* '~*t L-, 'i->:ru ]iui. {t'rtt
I:i e ^ u e stjo .’i a r o s e n o t so m u c h
p r o u i j ' i j u r y tu)'i< us utLwttrJi pr- •of a:id trial before a
t h e rec‘vr»j.
1 :.i et i l l l c l ’l o c_u l o r -f th e L..'!-d U rd ii.a ry
.
yji'-- *i*_cc*io*lij.^\, oe lecajied. ai.i^ tjie pro[jo>ed is*ue «i.;>,-w»-d.
Ar.'Urd fu r the d e fe n d e r s re.sp. ,;,dei;t.s‘ ;— Tije defenders did u-. t
l.;.;.or = _the L j r d O r d i n a r y 's a ilo w a nc e of p r o o f before answ er,
i
tliej were not t h e r e b y to be t a k e n as adn'.ittint' th e r e le ­
vancy ->f th e p u r s u e r s a vern ie nts . A cco rd in g ly , the only question
no'v oefore J i e C o u r t w a s :— i ne Lord U r d i n a r y h a v i n g a discretion
d e t r r .n u j j n g w he tiie r special cause h a d been shown fu r w ith •Jrawing th e case from a j u r y , had he exerc ised his di>cretion
i-jv:seu.\ ou the pie se nt occasion
J he re were no g ro unds in th;^
■y.~t to iiiajte it ne cessary for the L o u r t to i n t e i f e r e w ith w h a t tbe
L;-rd U r d i o a r y had done in th e exercise of his discretion. T h e r e
existed he re a delicate q ue stio n of fact a nd Jaw incapable of a s c e r ­
tainment m a d v a n c e of i n q u i r y in to t h e facts. To ch a r r e a :u r v .
in & case w here th e alleged negligence was c a u sa llv connected w ith
the^iieged in j u r y by an i n t e r v e n i n g - m e n t a l j i n k . ” was a l w a v s a
jjiEcu t m a tte r , and ^.n th e pr e se n t case th e d i a c u i t y was increased
by tr;e a ;;ow ance to be m ade for th e p u r s u e r 's a b n o r m a l susceptisj J° - K- ^ ' ie p u r s u e r s a b n o r m a l condition a ltiio u ^ ’n
cv.e:t on j g i i t i y in th e p u rs u e r's pr e se n t a r g u m e n t , had heen tu Hv
svrrr^d on record and str essed in a r g u m e n t in t h e O u te r House,
A. t.rneu.t que stio n of law, especially one l i k e lv to em e rge a t th e
: r r , ; was a groun d fo r w i t h d r a w i n g t h e case from a iu rv .4 T h e
-ve-^a, cause shown he re was special to th e case w ith in the m e a n in g
■jl L j r a brja.v s w o ro s in T aylo r} T h e p u r s u e r had sucr-.'ested
: :,ht. because o n ly one r e p o r t e d - m e n tal l i n k " case— Foiritr*— h ad
;.^:j se nt to proof, i t w as u n u s u a l to send su c h cases to proof. T h e
;3c- was. ho wever, t h a t th e re were few r e p o r t e d in sta n ce s in which
cases had been se nt to j u r y tria l, t h e o n ly instance, since
T DV Dei'1® £ ro* “ v- Gla»jo;c C orporation} The’ cases of F o w ler'
snd S r j’ ia i - a p p e a r e d to be th e only cases on th is b ran c h of la w
l '!e question of pro o f o r j u r y t r ia l h a d been specifically
debated. T h e p resen t case was n fortiori o f F c w l'r ' for th e r e th e
L-rd U r d i n a r y s I'isscretion h a d been i n t e r f e r e d w ith and th e case
S. C. <H. L. i 9S<, a i d . 102.
: i^Os < c * 4 '
l I9 J S S .C . ■ H ,L .iS fi.
‘
s-; c.' 765.
• J o n e s v. .Magistrates of H a m ilton, i £*29 S. C. j:-*. Lord A nderson
>. C- H. L.) 96. a t p. 107.
c.-t;*
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5 14
CASES J'E C II'E l) IX
THE
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P r e s id e n t a n d L o r i M orison. s e n i o r ‘counsel re fe r re d V0 \ r r * i '■’
£?"* '»
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;rai»iiitv of •
•>v;tn a n iss u e a n d t r y i n g ti.e case befo re « j u r y « p 0 „
and to r '
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i n d i c a t i n g t h e u n d e s i r a b i l i t y of r, u tt:jj!: s e p a r a t e o u - s t j o r " ^ u '
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L ckd P/.ESIDEN-T C ' y i e : . - T n e pursuer. * h i : e cor;va ]eicent
serious ;:jn:spa;;tio7i. iras a holiday tr a v e i’er bv ;no:or orro-'but
Tam:uel B rid -» to Pitlochry. Owing to the ro u ? hness of th t’ ro-d
vt.e speed o i th e omnibus -'wnivii she savs was excessive, si'e v
riervous’y excited, and alarm ed for her safety. She extOa;rJS t h t T ^ !
n e a it aDd aerv.jiis system '-vere in a more th a n usual’r ser.^i'-rg
jtion ” at tiie tim e owing to her sta te of health. She avers t f c a t ^ f c ^ T '
o ’n’iibus instead of allowing her to a lig h t a t the usual tJ r ffi;B8 ' *
P :t;o e a r y — proceeded to o v e rta k e a n o t h e r o m n ioas p l r - E - b ^ r ^ a V *
i - c h r y a n d D u n k eid ' ^ h i c h left P itloc hry Just as tb e p u r W , oa «n
arri ved t h e r e : ir; order to tra n sfe r some of its passengers to the latter bl!
excitem ent %vas increased so th a t on her re tu r n to P itio c h rv >-he co” »'tW
from panic. *r;:h th e result t h a t th e indisposition fron: which fbe ,
recovering re tu rned.
”
**
The pursuer's averm ents are very general. T h ere is no su g^stioo rf
an y accident occurring 'or narrow ly escaped) bv t h e w v in 4 -teauefy*
of the m a n n er in which, or th e speed a t xfaicb, ‘th e .m n^bus , a* d r lv « and the re.evancy of the pu rsuer's av e rm e n ts to support her actiot k
open to d o u b t.
B u t * th e L o ra O rd in a ry has allowed a proof bef« t
answer, and ha? refused to approve an issue in th e usual jenerai for*
ap p ro p riate :o o m n a r v actions of damages for Personal ir.-'urv -.-oDrjstd
7 list ? ar,!ser w";ih a view :o i’^ 5 -rial. T he d e f e n d e r s 'a lti tu d e i s t b . t %
tr.ey do no; w e c r :0 in ju i ry la the form allowed by the Lord Ordiaarr.
B i t th e p ursuer moves for approval of her proposed issue, and insist* 4 ■i
••;•
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: ^ : ^ . c . h . l ; 96.
’ .3.1 s. C. H. L . ; SS, \
I ’unvdin at d. 10'2
» Mackje v. I 'u m o a r to n s h ir e C-r.r.tv Councii.* jf<v7 > C ;'H I ) °S
*?V ' ; - -i *.—
'£ y j%
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^ Jsc-junt D ane.iin at p. I OS . • a s ^ - E d in b u rg h ar.d I 'i . t r i c t T-a®irt r ,
uo.. i, us >.
>4 ;. Lord .>:.jrT)»o!j:h Darlijij;-*: p. '■45 : Mi :lar v. Loodoo
an a \ o r t n ^ u s t e r n Railway Co.
S C. TC?>. Lord Jus::ce-Cierk
A ‘1! s\ . t .?- * ' K L' ' rd '-‘rm ioaie a t p. 7 74. L crd A nd erso n at p. 777.
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N e it h e r ; a rty desires th a t the cast* shou.d
w- :
{P^ '-Vial OK th e record’. C. A. -S . C. ii. i - * r : and. in any <■**■
* \Valk-r v.
s <,f L ord Anderson in .l/-'7.ir v. /.• >■ ••.■•>< 'Vr '
■•'■ 7- iY.'|'-r !,TT
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to m is u r.us.ia
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i "f rei'a::i:i^:i. th e action :s •■•i.e wj;;cli *a -*k :u-:n.!i. r
■; .,,r u;:'.cs«. i :j :he w.ir-is of t h e E vidence *Scoita:.ai A r . . ; viv.*
* *
..se l,e sbewn." A special cause ina-hes k me s]-eci:i.ty -t
a h>i:t tiif citse or
circa:n&tauces. bu: *.3te C-.'^rt :;as a:«»y%
awv a tie n tp t to iay down rules t»i* ‘. he
: nor :s
T'
p ji n tin g ou: t h a t this >>r t h a t jerierui •:<.i;>:.ierati-.>i;
1
in itseif to c o nstitu te spec;.’:: cause. ^ J<et:;«.r ::.:s •:•
- • , f ;a! f e a tu r e —or some co;iib:r..-itk':i of srec ;a; f;-stu:e.- — a m i'.:
-r,.» •! i’ c sase ” is a uuestion to be dettrn;i:;ed. :;ot i t rereresice to a:.y
i r.-:»ictv*e or ca te so rw b u t as a runtter oi svui.ii c : s - r e t u ii. fiUO '...e
li
rests u iaic’T, and in the first its-.ai-ce, w ith th e I.o n ; OrOi!.i>ry
<s—r it is to t r v the case. I f it appears -.hat. aithoui-h mov.-.j to
v 2l “ ’•
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i‘k- 'fie i:a-' “ ol ^ 01je b0’ liie Ir,r-,;r
n ;u i; exercise it iijdtpi'.,. -v
ti.e reciaim ing a o te — ir(7;',i.- $■■/< v. J\ <if« c? >■’
y ••. •
B-Jt. if be has exercised it. the I n n e r H o u se :s natur*
T j:,..*- to interfere, and rarely <’if ever) does &<•, except on some -encrai *
,-vMjd which would apply to a class of sim ilar cases — 2
v.
Itej-.- I-ord M -L aren at p. o iy .
\rtlor.s of r e p a ra tio n ivr Eervoas shock are n o t un.ike.y to present
-•:&:tifs in p a r tic u la r cases, j u s t bec-ause the obligation upon w j-ch
are founded regards directly th e nervous sensi&i/ities of other
,
aud "iilv in d ire c tlr the safety o: th e ir lives and o r c a t s . Circuni’ •XV’-: :r.av be iiiiSgined in which the ordinary sta n d a r d s a t d te s ts of
- - - '' - - n e t would apt-lv equally to a case ot ti.ysica: in ju ry a i d to <•: e
; b j* in other and different circunvstssces y.njcn.t a n a o encate
i ..
,r;^ ;vjav hav e t<* oe c»ijser'*'ed. Tne aci*.en<.ure of a njC t'.r e\-.^ion a steep and winding highland read, rartf-tiec in by a person
c-.*?r3 $ior.j*<i to rap id traveiliiJL' on such a road, an d wit:: h e r ^ je a r t si.d
rnrrous svsteru " i n a more th a n usually sensitive conditi. n . " n.ay w. i
s* ;h .u -lit to p rese n t specialties which make it b e t te r to >«id t h r cc^e
for r.roof before a judge th a n to run the risk of niistinderstanciin;:
misc'fcrriaje. >osne actions of reparation for nervous shock in which th e
I'icrnatives of proof or jury trial have been considered have r.een sen t :--r
,...rr trial Brc"cn v. (ji-iwoie Cot/•o ra licn i — o th e rs have Oee:i sent ■■■ r
|.r,’..f before a jud g e — F -tc’-.r r . S o r t , B riiish / ? - 7 -r 3 '. Co* Preference
t*f the la tte r a lte rn a tiv e must d ep e n d — as J^ord ^haw j*o.n..ec! ou*. .n
T-v,:..r v.
Trannrai;* C<.T—on w h eth e r th e •• special cause :s
cjf which is special to the ; articu la r case which is to he tried.
The vi'iestion th e n is w h ether th v re are grounds req uiring us to i n t e r ­
fere ia the present case w itn tije ctacretu*n exercised by .he I_o»ci 1.';f-i*
: i.'& and 5o V ’.ct. cap. 112. sec. 4.
*1
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« I&14 S. C. SG6 .
6S7.
: i-1 > S. C. ■;H . L. ) i? , a t p. 103
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nary. I am unable to say th a t th e re are, or th a t tiie eiscretk.D has
uiireHS’-a.iii'v eNei'clie-i in tb e p u rlie u .a r circumstauces presented ot,
iiursuer s retvra
1•
I/.r .y i'.LACKi'CKN. — I agree. T h e circusnitanevs <>f :•;:* ..-ase s p p ^
to me tu In? e.\cepti'>!,a]. l ; i e relevancy is doubttu;. and ir; arjv
tiie right •»£ th e p ursuer to succeed depends upon a:i h.t:'ica-e correUtim
of fact an ! law. T be Lt-rd O rd in a ry . af te r a very full discussion of tL»
a j" :iori:le-,. lia s declined :•* hold the case irrelevant w ithout some i'dqcin: .> the fa-.-.'., and in this 1 t h i n k he wus risrit. Tiie form •:■: in q u i^
c,::bider- West a d a p te d tor the disposal of tiie ca«e is a proof and ^
ju r y trial. h aving formed tbe opinion t h a t " i n th e sta te vf tin- a u t h o r i t y
it would b t no* merely diriicult b u t su b sta n tia lly im practicable to dirtet
a rig h t ti.e nainds of " a j u r y “ as to th e classes <■! acth ns and sort*
tiai^a^e t h a t are adm issible.’’ T his sta te m e n t is an excellent reason f »
th in k in g t h a t t h e Lord O rd in a r y has exercised bis discretion *ise?j
provided he was en titled to exercise h it discretion in the m a tte r at jj r
As to th a : I do not <]uul>: t h a t t h e circuiustances of th e case consti*#*,
a - special cause ” ju stify in g him in refusing to send t i e case to jury tra].
As "'as said by L ord Gifford in th e case of iYhite v. 2>«>
;‘ tbe rule
to : :.e n a tu re of the special .-aui-e which requires to be shown js radae*’
ficxihle.” and I x y s e l f d o u b t w h e th e r it ;s possio.e to formulate tx.jpr-cise r j l e as to w hat does, or does not. c o n s titu te a
special caust.*
Of course it m ust be a cause special to th e p a r tic u la r case f;,er Lord
Shaw in T ayior v. Du-nl.i/ion Tr moc-iiiS Co..': a t p. 10>-. and not attribsta;. e to ar. outside circ-.m.stance sucii as existed ii: ti;at case :n tbe diffi­
culty of collect:ng a ju r y of m en while the co u n try was a t war. Tbe.
dicturu of L ord I 'u n e o j c in th e case of M arki* v. L>\-<i.:-arioi,th!rt Cvm fj
L\‘\ t i " ■ clrarly Indicates t h a t diSiculties sucii as exist in the i res:-nt ctj*
are sucii as may co n s titu te a “ special c a u te .’’ a n c th a t the procedure t»
be fohowed in s u e s circu.-nstaiices is a question for tne discretion of ibi*
C iurt. I f the L ord O rd in a r y h a d sent th e case to a ju r y on any i&se*
o th e r th a n a general one be would have been ado p tin g a course w hici
w -.j’-d not. in m y opinion, hav e been ;n accordance w ;th the settled pr*etice of the C o u r t of Session see L ord I 'u c e c i n ir. J-Jai? v. Cotrillt f
at p. 57.. and in th e vircutcstaaces of tbe case I th i n k tb a t be m
risiit :n ordering a proof before a n s w e r.
L of. d M o r : s o k . — I t was a d m itte d from tb e b a r t h a t tbe pursuer i s
tiiis case had sta te d a s u i c i e n t case for in quiry by way of proof befor».
answer, and the learned counsel for th e resp o n d e n ts subm itted do argo*
ment against th e relevancy of tb e pursuer's averm ents. I express, there­
fore. no opinion on this subject. T he only question argued to us w « oo* •
of p n e e i u r e —namely, w h ether th e p u rsu er was en titled to have ber caa» decided by a judge s it tin g with a jury.
N ow this is an action of d am ag es for personal in ju ry . I t is o c e r f
the enum erated causes. " and tb e p u rsu e r's right, i.y sta tu te , is to bar*
:h :U
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t-'s^--—r-1.- Ji#:-*?-.V.w-- :--~.'’r-',^L'
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* ■ . s75l i’ R. &04, at p. K'7.
- iL^-7 :s. C. (H . L.; 99, a t p. 102.
s 1^1 S S. C. H . L j &6 .
‘ 19i'6 S. C. H. L i 51.
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f J r £.*.00 r f ' t e M * * . and tbe « r . :act m a t one can
^
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be a large aw a rd is „c* in m y o p ^ .
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?ase : 1’ct Lord
■ ’■1- H'"»t a.ttribs•a.'t ;ti tb e difi.
-s at war. The
«’ *'
&
■ : I?':-* • c--*-'- --• *
•••
• rapid mode of f o r i j r s e t t i n g sucn
t r :via- or w ^ h t v / ’ T he law, to tb e same e f f e c t - a s
1
wise.’*
s t t e r at *]]
^ -o n stito
j^ u rv iriii.
:
rule a
: -■. ■/ -
^::-.
‘ ::c- a u t b o r i t i ^
i^-V.e to dil%ct,
-5 and sorti ^
• he>.i reason For
•
•
^
r,x * ri',
, srv r e i n e d a j u r y t r i a l a n d aiiow eu a r ro..f - n . i . e ^
■
w
•
T h i s D ivision uf m e C « u r t , m » a r e c .a .n — ,
L . V i ' o r J 5 r . a r v - . i n t e r ^ u t o r a t , a ord ered i s s u c s ^ o r
/:v; \ r i ' . , - d >haw in th e case of T W c - I
ie arn ed Lord O rd in a ry has failed to ap pre cia te m e real en e ct
.
^
" f V «v“
r has not fotiud, and does n o t say, th a t « y “ specisl
^
___ . . . case. On tbe 2Sth OctoDer r.e assigr.ert
^ - . ^ r ^ t e r ^ ^ ^ a t e
for a d ^ g / he
lor ^
a
. r
.
*■; t-t- -he L<---d O r d i s a r v soie.y o e ca^ se <»o v *oe i '
V , w b e disoo seo o t oy w ay
-Vo- - r e -a a s e .s fflt-re S u ^ a j . t ^
.
•
L vrd O r i i s a r r th a n b y a ju r y .” 1= »'.J
th:S
o; pr :o:
s t a t u t e and to tb e practice of th e C ourt.
*£ con.rar^ o.-* * ................................ j r.*TP»- trV-ich said to ha're
,
. ,-r a v . ^ d a - a :3 «t th e c e ie n ae rs d r ^ e r — w „ )Cn
»*•
c.;;.., , » e a
•.
MW*
tm
&
m
Ct/LUff
. '...e i-restM c*te
'...? t-rocecure
ifcrftioti of i h »
ry on a t y isst*
.• a course wbicls.
the settled pr*c.7i; v. Ci-iviilt J
1 tb a t be » i i
C-ursuer i s
oWffoc-f before
::i:t;e d s o argTJI e x p re ss, tberfr
. 4. —-
-.-jr.'-.. - ,.-..
h' "X
• ..
t.
;c
-h a t tne ir.yjr.es a - e . e a - j
X,"*. ~«r. ofU»
c~ .-p - i ’-'n. ..*at
-■ «-?°«rr‘Z
Z
K
............................
<•»»»
from tb e con sicerativn
;***.: *!■*"
»:vavr.;s to its \ e r a i c . .
_
T>!Prfefrom are the most fam iliar
she lisersaaent of the dam ages arising th e re .ro m
jsrr q:'.i=tions whicn arise in ‘L“
5
° ^ '
■ T”'
] ;ie , ke p res e c t was
< * * " •* -»
11
.-rd to US -sras o u
■
-
-
:o La~e h e r c u t
:y.
I t is one ct
s t u t e , is to b » r*
C. - H . !_;• S6 .
C. ' H . L.'. 51. . ^ 1 7*
s v li :- 3 ,'J l R. 275
: ] 61S S. C. ' H . L ) S 6
* : 9 -22 5. C. 5 -7
t:'WM
!■ t .<■ - -.<;■•••- '• £•-**
*
». '•«*,
mm
eES -SS:m«:
» l§ ll® ii
■
5
57S
V
■-.--.
^ i l i l f f l i
i
.-w
-£-.7
y-
■>'&. ■ :>
v
. -. :
■ Z & & . y
r " - i
1930 S Q
E v erv ac tio n of dam ages for personal in j u r y proceeds
:9Cv. case.
°» *
principle
of legal liability, and th is has liever been made a spc.;j
’AV./k.-t
■-V... K-.-T tv
.' .*.
V
cause w ithin th e m eaning of th e sta tu te .
I f th e defenders’ s t r r ^
M
C
here drove reckle>vy an d r.rgiigently and caused th e Injuries to tj^
■..; Morhon. pursuer which she alleges. th e y are u n d o u b te d ly liable to her in ^
damages as th e j u r y aw ard to her. I can see no reason w hy th e pursQercase should not. he tried u nder an issue in th e o r d in a r y general term*.
There are. of course, cases in which an issue in general term s is i t a p j ^
priate to th e circumstances. O ur procedure makes provision for
I n addition to a s k in g f j t the j u r y ’s ar.s« e r tr. th e question pu t i t an
in genera’, term s, th e presiding judge may. if he thir.ks it expedient.
for the iu rv ’s an s w e r to specific additional question.?, as was don eb v T^-j
M u rra v in Ck.'.-t~ v . ]Va:--lro/>.' O r th e case m ay he tr ie d on tbe recor^
u n d er tb e pro ce d u re of 3Ju;lf.i’':in-i.~ Or. if difficult questions of ] | V
arise, th e decision of them may be reserved u ntil a special verdict on tfc*
facts has been re tu r n e d by th e jury, as was done in th e case of M 'jr fa tin t
v, M 'j: -:fon , 1
I regret, therefore, t h a t I m ust dissent from th e ju d g m e n t prop***^
by vour L ordship. I do sc> because I t b i t 's it is im p o rta n t th a t ti*
s ta tu tu r v rig h t of t h e public to a tr ia l by ju r y for carnages a r is b j
from zbe n eg ligent d riving of motor vehicles should not be taken aw»y
merelv because a L^rd ‘Jr-'-imarv t h i n k s he could t r y tn e case betser.
The protracted litig a tion in th e case of M-icL-i* v. Du»<(ia.i'j*uhire Cotatlf
Council 1 10 w hich we were re fe r re d ' is a typical illustration of tiie
delay and expense which may arise when action s for d am ages—raisiaj
onlv questions oi fa c t— are not disposed of by a ju r y trial.
’ir,.
f r W
CASES D E C ID ED IX T H E
'X-'z
*y'
#
V r m m , im p
m
21.
T he C ovet adhered.
■y~> - v i i '.
v»- f : -*
M ;s ;:r .s , 3 r . r c n - L ‘>w. t T k -m s >•
?*r B l v s.- i r.'-' i 'W a lk m . M
—
A Jtsss, Mur a r e s. k AiSXAS. ’V.S.—Agnjt?.
Xo. sft.
S ib R oi -eiit C o '-k L o ^ k ha kt a n d A s o t h e u t WHltam Beveridge'*
T r.iste -is . F i r s t P a r t i e s . — .\* A . N m T s n r i.
G sokge M i ch a e l B ev ei .-j > :. f. and O thekjs . Second Pa rties.—
/«. M ,
■ r-n
-••rr:
A’..'.—
I'tLiPKANT BEVE>:;r«’-E »XI* .'THEHs. T h ir d P a rties.— fr tft—
J . IV. J-.h.^:o,K
M a s M ary T a : t BEVEr::i>oE a n d A x o t h e h W i lli a m Beveridge**
T r u s t e e s a ;id E x e c u t o r s *. a NI> O t h e r s . F o u r t h P a r t i e s . — Mr J/. ?.
F ra se r , n
— lit' ■'.-id.
•>u'•<■£>■*/'.■«— Ac?r</i‘,-it — C b P rl'in
C"iuir<; in } ?«/•t o f y>nr‘. u 1s— C-avj*
a:non-j :n*n‘vi-<— 'J-ri-L'i-m-il
P
o_- ‘•h tijrtn ot i«*6 -
» f ' i - l i i i * i i f u t ? t — U 7 i - ? . W f h u n s o f t h i l d U i * ir u lH w t a
'o w n f i o n . i l
\
v r /a ’
; %
\
A te '-w tor left tw o nfths of th e residue of his e s ta te to one cepbe»,
and the rem ainin g three fifths e.iually between nve oth e r nephew* 4
and nieces. H e provided th a t, in th e ev ent of any of the leg»w*«
19-27 S. C. 5 3 j.
s (1S65) 4 Macpb. *257
1
>V :V"1*
r
.f
’
s
'
*
---v** i r
'~i
-
: : 190?, 5 F. 637.
‘ 1627 if. C. ( H . L.) S9.
S a ltk r . J . I ngrco, and if I add a word I only
1«^/URC
thcro
m
ay
havo
been
Homo
doubt
on
the
docidcc^Kscfl
as to
AtxAnn
v.
tlio true meaning of tho sub-section under consideration. A
SEt.PRii>aR
porson who sella under the description of “ silk ” goods which
& Co.
aro not in fact sillc, is guilty of an offence against tho Act
unless ho can prove certain things, and in the absence of
such proof the law assumes th at ho intended to sell the
goods under th at description— th a t ho intended to do the
act forbidden by the statu te ; in other words, mens rea is
assumed unless the person charged can prove either paras, (a)
and (/>) or para. (r,). Taras, (a) and (6) constitute a defence.
If he fails to prove paras, (a) and (6) he m ust bo convicted
unless ho can prove para, (c), th a t is, in tho present case,
th at there was no intention to sell the stockings under tho
description of “ silk.” Here the respondents failed to prove
para. {a). They proved tho absence of dishonesty, but
failed to prove the absence of n egligence; while as to
para, (c) that was not proved, as it could not bo contended
th at the respondents did not intend to sell the stockings
under the description of “ silk.” There should therefore
1024
havo been a conviction.
A ppeal allowed.
Solicitors for appellant : Vizard, Oldham, Crowder
Solicitor for respondents : J . Barrington MaUhews.
Cash.
J. S. H.
j ^ . W H E COURT OF APPEAL.]
HAMBROOK v. STOKES BRO TH ERS.
[ 1 92 3. H . n n i 7 .]
Negligence— Kervovt Sltock resulting from Fright— Extent of Duly— Fear for
Safety of Third Persons as disiingitisheilfrom Fear for One's own Safety—
Remoteness of Damage.
Tlio defendants’ sorvant loft a motor lorry at tlio top of a steep and
narrow street unattended, with tho ongino running, and without having
lakon propor precautions to secure it. The lorry started oft by itself ami
ran violontly down tho incline. Tho plaintiff’s wife, who had been walking
up tho street with her children, had just parted with them a littlo below
a jK)int where tho street makes a bend, when sho saw tho lorry rushing
round tho bond towards her. >Sho becamo very frightened for tho safety
of hor children, who liy that timo were out of sight round tho bend, and
who sho knew must havo met tho lorry in its course. She wna almost
immediately afterwards informed by bystanders that a child answering
4tho description of one of hers had been injured. ]n consequence of her
fright and anxioty sho sufTorod a nervous shock which eventually causcd
hor death, whereby hor husband lost tho benefit of her services. In an
action by tho husband undor tho Fatal Accidents A ct:—
Held (by ISankoa ami Atkin L.JJ.; Sargant L.J. dissenting), that, on
the assumption that tho shock was caused by what tho woman saw with
hor own oyes as distinguished from what she w m told by bystanders,
tho plaintiff was ontitlcd to recover, notwithstanding that the shock wm
brought about by fear for hor children’s safoty ami not by fear for her own
Dietuin of Kennedy J. in Dnlieu v. ]Vh'te <(■ Sons 11001 ] 2 K. B. G09
disapproved,
Ai*rEAL from vcrdict and judgment at the trial before
Branson J. and a jury.
Tho action was brought under tho Fatal Accidents A ct by
a husband for tho death of liis wife alleged to be due to tlio
negligence of tho defendants. On May 1, 1923, a servant of
the defendants, who was in charge of a motor lorry belonging
to them, having brought it to a state of rest at the top of a
steep street in Folkestone called Dover Street, left it unattended
and w ith the engine running without taking proper precautions
to prevent it from moving. In his absence tho lorry started
off by itself and charged down tho steep incline. Dover Street
is a very narrow street, tho roadway being in some parts not
more than six feet wide, and there is a bend in tho lower portion
C. A.
1924
Oct. 18 ;
Nov. 12.
142
KING’S BENCH DIVISION
(^ jl9 2 5 ]
1 K . B.
A
W
C. a .
1924
Hamhiiook
*’•
JJnus.
of it. The lorry was eventually brought to a standstill by
running against tho side of a house in Dover Street below the
bend
a distance of about three hundred yards from the
point at which it started. On the day in question the deceased,
Mrs. 1 Inin brook, whose house was at tho bottom of Dover
Street, and who was in the habit of accompanying her three
children, a girl aged ten and two boys aged eleven and eight,
for part of the distance on their w ay to school, walked with
them from her house to a little below the bend in Dover Street,
and then left them to go on to tho Beliool by themselves.
Shortly afterwards she saw the lorry eoming rapidly round
the bend in her direction. She was not herself in any personal
danger, as the lorry stopped eoine little distance short of where
she was standing, and in any ease she would have had ample
time to Btej) aside into a shop into a position of safety. Hut
she became very anxious for the safety of her children, who by
that time had got out of sight round tho bend of the street, as
she knew that owing to tho narrowness of the street there was
more than a possibility of their having been injured b y tho
runaway lorry. A crowd collected and there were rumours of
an accident. Sho inquired of tho bystanders who it was who
had been injured. A friend of hers cnnio up and made
*
inquiries among tho crowd for her, and they were informed
that a little girl with glasses had been taken away injured. I t
appeared that her little girl wore spectacles. Several witnesses
spoke to tho deceased being in a state of great agitation,
tearing her hair and screaming. Sho hurried to tho school to
seo whether her children had arrived there safely, and found
tho two boys there, but tho girl was misBUig. Sho then went
to the hospital, where sho found her girl, who had been knocked
down by the lorry and had suffered considerable injuries.
Mrs. llam brook was at tho time three or four months advanced •
in pregnancy, and in consequence of what had happened bIio
had a BeriouB nervouB shock, which brought about a severe
hieinorrhage. From this she partially recovered, so much so
that on June 6 Bhe felt sufficiently well to go in a charabanc to
the Derby, and again on Juno 21 to Ascot. On Juno 28 she
became worse. On July 11 she was operated upon and a dead
' 0 ’S BENCH D IVISION.
143
w
f(utus was removed, and on July 10 she died.
b ro u g h t th e a c tio n
Tho plaintiff
t o r e c o v e r d a m a g e s fo r t h o lo s s o f h e r
services as manageress of his restaurant. In their defence
the defendants adm itted the negligence alleged, but objected
that tho shock alleged to havo been sustained by the deceased
was too remote. A t the trial Branson J., following a dictum
of Kennedy J. in Dulieu v . White <£ Sons (1), directed the jury
that if the nervous shock which resulted in the woman’s death
was caused by fear for her cluldren's safety as distinguished
from fear for her own, tho plaintiff could not recover. H e
also directed them that they m ust be satisfied that tho injury
f r o m t h o s h o c k w o u l d h a v e cau B ed h o r d e a t h e v e n if s h e h o d
not been foolish enough to go to the race meetings, and that
if her unreasonable conduct in doing so precipitated the trouble
thfe action failed. H e left to them tho question : “ W as the
death of tho wife tho result of shock produced b y fear of harm
to hersolf ? ” Their answer was, “ Verdict for tho defendants.”
I t did n ot appear clear upon the evidence whether the
nervous shock to the deceased was caused by her realization of
what had happened from the unaided cvidenco of her own
senses, or whether it was duo to what she was told by
bystanders about the injured person being a little girl wearing
glaBBeB, and no question was asked of the jury upon that point.
The plaintiff appealed upon the ground of misdirection.
Serjeant Sullivan K .C . and M arlin O'Connor for the appellant.
The case of Victorian Jlailways Commissioners v. Coultas (2),
where tho Privy Council held th at damage causcd by fright
at an impending collision was too remote to support an action
for negligence, can no longer bo regarded as good law. I t was
dissented from by the Exchequer D ivision in Ireland in
Bell v. Great Northern liy . Co. of Ireland. (3) There an excursion
train was too heavy for the ongino to draw it up an inclino, and
tho d e f e n d a n t s ’ servants detached certain carriages, leaving the
plaintiff's carriage attached to the engine. The detached
carriages ran rapidly down the inclinc, whereupon tho engine
(1)
[1901] 2 K. B. 669. 075.
(2) (1887) 13 App. Cas. 222.
(3) (1890) 20 L. K. Ir. 428.
C. A.
1024
h a u
„ kook
Hkus.
1 K. B.
|
K IN G ’S BEN CH D IVISION.
144
A
I
C. A.
1924
H
ambkook
vU kos.
1
was reversed and with the plaintiff’s carriage started down
hi]] in chase until brought up by a violent jerk. The plaintiff
wa9 Put *11 a 8 r e a t
whereby she suffered a nervous
shock. The Court held tho damage was not too remote,
following an earlier decision of tho Irish Court of Appeal in
Byrne v. Great Southern and Western liy . Co. ( 1) In th at case
the defendants by negligently allowing some railway points to bo
open caused a train to enter a siding, break down the buffer at
the end and the wall of a telegraph oflice in which tho plaintiff
was. The plaintiff, although not touched b y the train,
suffered a severe nervous Bhoek from fright at seeing tiie wall
falling. A verdict of 325i. damages having been found for
the plaintiff, the Common Pleas Division and the Court of
Appeal refused to disturb it. Those cases were followed in
Dulieu v. While & Sons (2); and in Coyle v . Watson (3) Lord
Shaw treated Victorian Railways Commissioners v. Coultas (4) as
no longer capable of being regarded as good law. B u t in Dulieu
v. While, tfe Sons (2) K ennedy J., while holding that nervous
shock caused by negligence may bo actionable, qualified his pro­
position w ith this limitation, th at “ the shock, whore it operates
through tlio mind, must bo a shock which arises from a
reasonable fear of immediate personal injury to oneself,” and
that Blioek arising from fear of injury to third persona is not
enough. In both that case and in tlio two IriBh cases the foar
w a B of injury to the plaintiff, and this is tho first case in which
the correctness of K ennedy J .’s distinction has come in
queBtion. B u t it is contended that that distinction cannot be
supported. If there is a duty n ot to shock by fear of the one
kind tliero m ust equally bo a duty n o t to shock b y fear of tlio
other. In Wilkinson v. Downton (5), where the defendant, by
w ay of a practical jolco, falsely represented to tho plaintiff, a
married woman, that her husband had m et w ith a serious
accident, and tho plaintiff, believing tho statem ent to be truo,
suffered a violent nervous shock, W right J. held th at those
facts constituted a good cause of action. T hat decision was
(1) UnrojtorUMl. Citod by Pullcs,
C.». 20 1.. II. Ir. 441.
(2 ) 1 11101] 2 K. 1$. 009. 075.
.
145
\NG’S BENCH DIVISION.
'sw / [1925]
(3) [1915] A. C. 1, 13.
(4) 13 App. Cas. 222.
(5) [1897] 2 Q. B. 57.
followed b ^ u i e Court of Appeal in Janvier v. Sweeney (I),
where tlio defendant, a detective, with tlio object of inducing
tho plaintiff by fear to com mit a breach of her duty to her
employer, said, “ You are the woman wo want. Y ou have been
corresponding with a German sp y,” whereby tho plaintiff
became ill from tho fright cauB ed. I t was held that tho
defendant was liable. Those two decisions directly support
tho present plaintiff’s contention. Secondly, tho judge mis­
directed tho jury in telling them th at it was ncccssary to show
that tho same damage would have resulted from the shock,
even if the deceased had not gone to the race meetings. The
fact that tho deceased’s conduct m ay have aggravated the
mischief did not necessarily prevent the shock from being
C. A.
1924
ilambiiooi;
tho real eauso of the death.
* II. D . Samuels for tho respondents. The judge’s direction
to the jury was right. Dulieu v. While tC Sons (2) was decided
twenty-three years ago, and Kennedy J .’s distinction between
fear for one’s own safety and foar for that of third persons lias
never before been questioned. In Brown v . Glasgow Corpora­
tion (3 ) Lord H unter took precisely tho same view as K ennedy J.
There tho pursuer, a married woman, who was pregnant, was
walking on tho footpath of a B t r e e t just bolow a point where
tlio street curved.
Sho saw a tramcar of the defendants
coming down an incline at a great speed out of control.
Between her and tho car was a dangerous turn, where to her
knowledge an accident had occurred, and slio was thrown into
a stato of terror lest tho car Bliould leave tho rails and run her
down. She averred that, “ Through tho carelcsa and reckless
actings of tho driver . . . . the pursuer was thrown into a state
of terror for her safety . . . . and received a severe nervous
shock, resulting in serious injury to her health.” The
defenders argued that tho action was irrelevant, but tho Lord
Ordinary sent tho case for proof and tho Court adhered. In
tho pursuer’s averments there was considerable reference to
w hat occurred after the car had passed h e r ; it left tho rails
and crashed into a standard, whereby several of the passengers
(1) [1919] 2 K. B. 310.
(2) [1901] 2 K. B. 009.
(3) 1922 S. C. 527, 532.
^
lino*,
140
KING'S BENCH DIVISION.
C. A.
1924
IU
mbkooi T
Si *■.
Uuos.
wore injured, but sho herself was not touched.
Lord H unter
in giving judgment said: “ The sight of an occurrence like that
m a y perfectly well unnerve a person in the delicate condition
in which the pursuer was. A t tho same tim e, a shock occasioned
by a sig h t of that sort, whore there was no real fear of injury to
the pursuer herself, would not, in my opinion, be a good ground
of action against the defenders.” T hat expression of opinion
was no doubt obiter, for tho pursuer did not found upon th at
occurrence ay giving her a causc of action at all, but so far as
it goes it supports the view of Kennedy J. T he other judges
did not refer to tho point. In S m ith v. Johnson & Co. ( 1) ,referred
to by Wright J. in Wilkinson v. Downlon (2), where a man was
killed in the sight of tho plaintiff by tlio ncgligence of the
defendant, and tho plaintiff hecuino ill, not from tho shock
from fear of harm to himsolf, but from the shock of seeing
another person killed, tho Divisional Court held th at the
illness was too remote a consequence of tho negligcnco’.
Wright J. apparently distinguished that case from Wilkinson v.
Downlon (2) on the ground th at in tho latter case there was an
clement of wilful wrong, which in law amounted to malice,
which was absent in tho former. Janvier v . Sweeney (3) may
also bo distinguished from the present case upon the same
ground.
Cur. adv. vult.
N ov. 12. Tho following written judgments were delivered :—
B an k k s L .J. This appeal raises an important and interest­
ing point of law. The appellant, who was plaintiff in the Court
below, claimcd compensation under L o rd . Campbell’s A ct
for tho loss of his wife. H is case was th at his wife died as tho
result of nervous shock caused by tho negligeneo of tho
respondents’ servant. The material facts proved or admitted
a t the trial were that the defendants were the owners of a motor
lorry, which was left by their servant unattended and w ith
tho engine running, and which ran away down a street in
Folkestone, bo narrow th at in places tho road was only ju st
six feet wide. I t was adm itted th at the defendants’ servant
( 1) U n re la te d .
(3) [1019]
2
(2 ) [1K97] 2 Q. B. 57, 01.
K. B. 310.
1 K. B.
^
'{'S BENCH DIVISION.
147
was negligent in allowing tliis to happen. The lorry was
C. A.
finally pulled up by running into a house close to where the
1924
appellant’s wife happened to be standing. Tho appellant’s iumuhook
ease was that his cluldren, at tho time the lorry came down
tho street, were on their way to school, and having regard
Ur<>mto the time at which they started, would presumably be where ll*"kML1the lorry might strike them , tho street being so narrow and the
lorry swaying from side to side of tho street, l i e further
contended that tho shock to his wife was duo either to a
reasonable fear of immediate personal injury to herself, or
alternatively, of injury to her children, and that her death
was tlio result of the shock. Tho case for tho defendants
was th at the shock was duo to a fear of injury to hor children,
which did not give rise to any cause of action, and further,
tlia* the wife’s death was due to quite independent causes.
Upon both points issues of fact were raised which were entirely
for tho jury, and upon which no question arises in this appeal.
Tho matter eonies before tliis Court upon a complaint of
misdirection by tho learned judge, upon two matters. Tho
first has reference to the w ay in which the learned judge put
tho case to tho jury upon tho question whether tho wife’s
death was tho result of tho shock, or of some independent
cause. I should not bo prepared to direct a new trial upon
this part of the case, as although tho learned judge did, in
summing up his address to tho jury on this part of the case,
put tho mattor in a way of which complaint can be made,
he had previously put tho matter so very clearly and carefully
to the jury th at I do not think they could have been
in any way misled. Tho important part of tho appellant’s
complaint is with regard to tho statem ent of tho law by the
learned judge to tho jury, in rcfcrence to tho defendants’
liability for any nervous shock caused to the wife. W hat the
learned judge told tho jury in substance was that if they
found that tho shock to tho wife resulted in her death and
aroso from reasonable fear of immediate injury to herself,
they might award the husband compensation, but that if they
found that tho fear was foar, not of injury to herself, but of
injury to her children, they must find for tlio defendants.
KING'S DENCH DIVISION. ^
148
l w ,' [1925]
In thus directing the jury the learned judge w o e following
the latest decision upon tho point, and the object of this
I U u u k o o k apj>eal is to get that decision, if decision it be, as opposed to a
St o k e s
11161-0 dictum, set aside or corrected, and tho law laid down
lJiios.
in terms wide enough to eiubruce either view of the cause of
iiBokni. J. t ]10 shock to tho wife.
C. A.
1024
Tho brunch of tho law relating to tho responsibility for
causing nervous shock has developed considerably in com ­
paratively recent years. In Lynch v. K night (1), decided in
1801, Lord Wcnsleydale speaks of mental pain or anxiety as
something which the law cannot value and docs not pretend
to redress. In 1888, in the case in tho Privy Council of the
Victorian Railways Commissioners v. Coultas (2), the question
was directly raised whether damages wore recoverable for n.
nervous shock or mental injury causcd by fright of an
impending collision. Tho decision was that they could not,
and tho ground of tho decision was th at such damages would bo
too remote. Sir R. Couch, in delivering judgment (3), says
this : “ According to tho evidence of the female plaintiff her
fright was causcd by seeing the train approaching and thinking
they were going to bo killed. Damages arising from more
sudden terror unaccompanied by any actual physical injury,
but occasioning a nervous or mental shock, cannot, under
such circumstances, their Lordsliips think, bo considered a
consequence which, in tho ordinary course of things, would
flow from the negligence of the gate-keeper. If it were held
th at they can, it appears to their Lordships that it would be
extending tho liability for negligence much beyond w hat that
liability has hitherto been held to bo. N ot 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 bo a claim for damages on account of mental
injury. Tho diflieulty which now often exists in ease of
alleged physical injuries of determining whether they were
causcd by the negligent act would be greatly increased, and a
wide field opened for imaginary claims.” The law thus laid
( 1) (1801)O i l . L . C . 577,590.
(2) 1 3 A p p .C m .222.
(3) Ibid. 225.
1 K. B.
KING’S BENCH DIVISION.
149
down was not followed in Ireland. In 1890, in the case of
Bell v. Great Northern R y. Co. of Ireland (I ),a Court consisting
of Pttllcs C.B., Andrews and Murphy J J ., refused to follow th a t
decision and accepted an earlier decision of the Court of Appeal
in Ireland in an unreported case of Byrne v. Great Southern and
Western R y. Co., in which tho exact opposite was held to bo tho
law Tho question does not appear to have been directly raised
in England until 1901, when the case of Dulieu v. White &
Sons (2) came before a Divisional Court consisting of Kennedy
and Philliinore J J . The facts in th at case were that the plaintiff
was claiming damages for illness caused by the shock resulting
from the ncgligence of the defendants’ servant in driving a
pair-horso van into the house in which she was.
The
defendants contended th at tho statem ent of claim disclosed
116 causo of action. Tho Court refused to follow the Privy
Council decision, and in elaborate and closely reasoned
judgments both learned judges held th at the plaintiff had
disclosed a cause of action. In giving judgment, K ennedy J . (3)
says t h i s : “ I t is not, however, to be taken that in my view
every nervous shock occasioned by negligence and producing
physical injury to the sufferer gives a cause of action. Thoro
is, I am inelinod to think, at least ono limitation. The shock,
where it operates through the inind, must bo a shock which
ariseB from a reasonable fear of immediate personal injury to
oneself. A. has, I conceive, no legal duty not to shock B .’s
nerves by the exhibition of negligence towards C., or towards
the property of B. or C.” In introducing this limitation tho
learned judge relies upon a reference by Wright J. in tho
ease of Wilkinson v. Downton (4) to a previous decision in tho
unroportcd case of Smith v. Johnson <£• Co., in which a Divisional
Court had held th at where a man was killed in tho sight of
tho plaintiff by the defendant’s negligence, and the plaintiff
became ill, not from the shock for fear of harm to himself, but
from tho shock of seeing another pereon killed, this harm was
too remote a conscquenco of tho ncgligence. I t must bo
noticed that tho facts in this last mentioned coso, and in tho
(1) 20 L. Tt. Ir. 428.1
(2) [1901] 2 K. li. 069.
Vol. I. 1925.
(3) [1901] 2 K. U. 875, 082.
(4) [1 897J2Q .B .67, 01.
M
2
C. A.
1924
v.
8t<>KKS
1) 110*. ,
B«nke» l . j .
1
150
KING’S BKNCII DIVISION.
W
W
[1925]
C. A.
general illustration given by K ennedy J. in support of his
>924
dictum, aro very dillerent from the facts of the present
lUMiimjoxT case. It m ay well bo th at tho duty of a person to take
Sto k k s
caro docs not extend to a person in tho position of tho
nnew, plaintiff in Smith v. Johnson eft Co., or to tho person indicated
ujukrT^L.j. )U4
;n K ennedy J .’s illustration, and y et may extend to a
person in the position of tho plaintiff’s wife. I think that
the decision in Dulieu v. White & Sons (1), apart from the
exception introduced by Kennedy J., is now accepted as good
law. I t is ccrtainly so treated by Lord Shaw in Coyle v.
Watson. (2) The surest way, as it seems to me, of testing the
question whether the limitation introduced by K ennedy J.
upon tho general rulo is good law, is by considering the
principle upon which the rulo itself is based. Pliilliinore J.
in his judgment in Dulieu v . While tfe Sons (1) approaches
the question from that point of viow. H e commences his
judgment with theso words : “ I think there m ay be cases
in which A. owes a d uty to It. not to inflict a mental
shock on him or her, and that in such a case if A . does
inflict such a shock upon B .— as by terrifying B .— and
physical damage thereby ensues, B . m ay have an action
for tho physical damage, though the medium through which
it has been inflicted is tho mind.” I had occasion, in the
case of In re Polemis and Furness, W ithy <L* Co. (3), to refer
to the authorities and to tho speech of Lord Sumnor in
Weld-Blundcll v. Stephens (4) upon the question of the
materiality of what a reasonable man ought to have
anticipated when that m an’s negligence was in question.
Lord Wensleydalo, in Lynch v . Knight (5), approved of tho
reasoning of Christian J . in considering whether the plaintiff
in that ease had established a cause of action. Ho says : “ I
strongly incline to agree with him, that to make tho words
actionable, by reason of special damage, the consequence must
bo such as, taking human nature as it is, with its infirmities,
and having regard to tho relationship of tho parties con­
cerned, might fairly and reasonably havo been antioipatcd
(1) [10011 2 K. B. 000.
(3) [1021] 3 K. B. 600.
(2) 11015] A. C. 13.
(4) [1020] A. C. 060, 083. 084.
(6) 9 II. L. C. 677, 000.
1 K. B.
^ P
^. ING’S BKNCII DIVISION.
151
and feared would follow from tho speaking the words, not
c. A.
w hat would reasonably follow, or wo m ight think ought
1924
to follow.”
~
~—
llAMBROOK
Accepting tho lino of reasoning illustrated by theso
authorities, it follows that what a man ought to havo anticipated is material when considering tho exten t of his duty.
Upon tho authorities as they stand, the defendant ought to
liavo anticipated that if his lorry ran away down this narrow
street, it might terrify some woman to such an extent, through
fear of some immediate bodily injury to h c rB clf, that she would
receive such a mental shock as would injure her health. Can
any real distinction be drawn from tho point of view of what
tho defendant ought to have anticipated and what, therefore,
his duty was, between that case and the case of a woman
wflose fear is for her child, and n ot for herself ? Take a case
in point as a test. Assume two mothers crossing this street a t
tho samo time when this lorry comes thundering down, each
holding a small child by the hand. One mother is courageous
and devoted to her child. She is terrified, but thinks only of
tho damage to the child, and n ot at all about herself. The
other woman is tim id and lacking in the motherly instinct.
Sho also is terrified, but thinks only of the damage to herself
and not at all about her child. Tho health of both mothers
is seriously affected by tho mental shock occasioned by tho
fright. Can any real distinction be drawn between the two
cases ? Will the law recognize a cause of action in tho case of
tho less deserving mother, and none in the case of tho more
deserving 0110 ? Does tho law say that the defendant ought
reasonably to havo anticipated tho non-natural feeling of tho
timid mother, and not tho natural feeling of the courageous
mother ? I think not. In m y opinion tho step which the
Court is asked to take, under the circumstancos of tho present
oaso, necessarily follows from an acceptance of tho decision
in Dulieu v . White <& Sons (1), and I think that tho dictum of
K ennedy J., laid down in quito general terms in that caso,
cannot be accepted as good law applicable in every caso.
While coming to this conclusion, for tho reasons I have given,
(1) [1001] 2 K. B. 000.
M2
2
SrvU
kos.
152
KING’S HHNC1I DIVISION.
W
[1925]
I wish to confine my decision to eases where the facts are
1024
indistinguishable in principle from tho facts of tho present
H a m b h o o k case, and in tho present case I am merely deciding that in
u.
my opinion tho plaintiff would establish a cause of action if
K to k k s
J 11(08.
ho proved to tho satisfaction of tho jury all tho material facte
lunk'i l.j. on -which ho relies— namely, that the death of his wife resulted
from the shock occasioned by tho running away of the lorry,
that the shock resulted from wliut the plaintiff’s wife either
saw or realized by hor own unaided senses, and not from
something which some one told her, and that tho shock was
due to a reasonable fear of immediate personal injury either
to herself or to her children. Tho judgment for tho defendants
must be set aside and a new trial ordered, tho costs of tho
appeal to bo paid by tho defendants and the costs of tho first
trial to abide tho event of the new trial.
C. A.
A t k in L.J. This action, so far as is relevant to our present
decision, was brought under tho Fatal Accidents A ct, 1846,
us amended by tho A ct of 1804, by a husband to recover
damages for tho death of his wife, alleged to bo caused by
the negligence of tho defendants. Tho plaintill, therefore,
has to show that tho death of his wife was causcd by tho
wrongful aet, neglect or default, of tho defendants, and that
tho act, neglect or default, is such as would, if death lind
not ensued, have entitled tho wife to maintain an action and
recover damages in respect thereof. The negligence alleged
by tho statem ent of claim is that the defendants, by their
servant, brought tho defendants’ motor lorry to rest a t the
top of a steep street in Folkestone, with tho engine running,
and om itted to take proper precautions to prevent it moving,
whereby tho plaintiff’s wife, Mrs. Hambrook, was injured.
I t is very material to notice th at by tho defence tho negligenceis adm itted, and the only material traverse raised is that tho
injury to tho wife was caused by tho negligence. The injury
alleged arose under unusual circumstances. Tho evidenco
on behalf of tho plaintiff was to tho effect that on the morning
in question, May 1, 1923, Mrs. Ilambrook had escorted her
children, two boys and a girl Mabel aged ten, to the pavem ent
1 K. B.
W"
-NG'S BENCH DIVISION.
153
in Dover Street, where they joined other children on their way
C. A.
to school. Tho group of children proceeded on their w ay,
1024
turning a corner of Dover Street within a few yards of leaving iuubrook
Mrs. Hambrook and so passing out of her sight. They had
hardly turned the corncr when the derelict motor lorry coming
linos,
down the street, ricochetting from one side of the road to tho Mlltt LJother, dashed into tho clnldrcn, inflicting serious injuries to '
the child Mabel. Tho progress of the lorry would be heard
by those round the corner, including Mrs. Hambrook. After
injuring the child, it shot round the corner, and finally came
to a stop within fifteen or tw enty feet of Mrs. Hambrook.
She immediately evinced signs of great mental disturbance,
caused, as tho jury havo found, by apprehension, not of injury
to herself, but of injury to tho child. Sho was pregnant at
the t im e ; as to tho stago of tho pregnancy there is some
discrepancy between tho evidence of tho husband, who says
three months, and tho doctor who attended hor a t her death
on Ju ly 10, 1923, who says th at on May 1 she had been
pregnant two to six w e e k s; she had a severe haemorrhage
on May 3, which sho thought was a miscarriage. Sho partially
recovered, but about Juno 28 became worse, and died on
Ju ly 10, 11)23. On Ju ly 11 sho was operated on and a foetus
removed,which the doctor said had been dead, “ say a month,
and about two or three m onths’ developm ent.” An issue
was raised by tho defendants as to whether tho death of tho
foetus and tho death of tho mother were not entirely due to
one or other of two drives in a motor charabanc which
tho wife had taken to the Derby on Juno 6 and to Ascot on
June 21. I t is sufficient to say that there was ample evidence
upon which the jury might have found that death was not
solely so caused. Tho learned judge directed tho jury that
unless tho death of tho wife was tho result of shock produced
by fear of harm to licrself, as contrasted with shock produced
by fear of harm to her child, the plaintiff could not recover.
The question for us is whether th at is a misdirection. In my
opinion it was; and in consequence there must be a new trial.
Tho legal offccts of injury by shock havo undoubtedly
developed in tho last thirty or forty years. A t one time the
154
KING’S BKNCII D I V I S I O N . ^
C. A.
1024
JIam u k o o k
S to k k s
Atui. l . j .
I
(
, [19 2 5]
theory was held that damage a t law could n ot he proved in
resjiect of personal injuries, unless there was some injury
which was variously called “ bodily ” or “ physical,” but which
nect‘ssarily excluded an injury which was only “ m ental.”
Thero can be no doubt at tho ju'csexit day that this theory
is wrong. I t is perhaps irrelevant to discuss a t length how
it arose. I t may be duo partly to a false analogy between
the action of negligence and the action of trespass to tho
person involving some sort of im pact w ith tho p erso n ; and
in part to tho law following a belated psychology which
falsely removed mental phenomena from tho world of physical
phenomena. Tho final expression of tho theory in question is
to bo found 111 Victorian R ailways Commissioners v. Coultas. (1)
T hat caso has been criticized in the Courts of England, Scotland
and Ireland, and pjronounccd by Lord Shaw to bo no longer
a decision of binding authority. O11 tho other hand there
is a series of cases in which, in varying forms of action, injury
from shock has been held to entitle the person so injured to
recover damages. I will confine myself to tho English cases.
In tho case of Pugh v. London, Brighton and South Coast
R y. Co. (2), in 189G, a signalman was held to havo been inca­
pacitated from em ploym ent by reason of accident, where tho
incapacity was duo to shock caused by the excitem ent and alarm
of successfully averting an accident to a train. Thero was
no apprehension of danger to tho signalman, and tho members
of tho Court seem to havo considered that tlio fright was the
accident, and tho shock and consequent incapacity tho result
of the accident. I 11 Smith v . Johnson tfc Co. (3), referred to
by Wright J. in his judgm ent in Wilkinson v. Downton (4),
a Divisional Court consisting of Bruce and Wright J J . decided
that where a man was killed in tho sight of tho plaintiff by tho
defendant’s negligence, and tho plaintiil became ill from thoshock of seeing the man killed, tho damage was too remote
a consequence of ncgligence. N o further particulars are
available ; tho caso was presumably a county court caso,
and it docs not appear what facts had been found. Tho
(1) 13 App. Cas. 222.
(2) 11890] 2 Q. B. 248.
I
(3) Unroported.
(4) [1897] 2 Q. B. 67.
1 K. B.
A
RING’S BKNCII DIVISION.
155
decision of tho Court, according to W right J., was based on
c. A.
tho remoteness of damage. In the case of Wilkinson v.
1024
Downlon (I) the defendant in joke had falsely represented I[AMn„oolc
to a married woman that her husband had met with a serious
"•
accident whereby both his legs were broken. Tho plaintiff
Unos.
sulTered a serious shock. Wright J. held that she was entitled A«un
to recover damages. Here the apprehension was of injury
to the husband ; there was 110 intent to injure, but there was
an intent that tho wife should believe the representation; and
Hie representation was found either by tho judge or the jury
to be calculated to cause physical harm. In Dulieu v . White
<0 Sons (2) damages for shock causcd by apprehension of injury
to the plaintiil by negligent driving were held to bo recover­
able. The case was decided by K ennedy and Phillimore J J.
cm a point of law raised in tho pleadings. The decision
is plainly right. Tho caso is important for the dictum of
Kennedy J . which Branson J . followed in the present case,
to tho effect th at the shock where it operates through tho
mind m ust bo a shock which arises from reasonable fear of
immediate personal injury to oneself. I will discuss tho cor­
rectness of this dictum later. I do not see that Philliinore J.
expressed any definite opinion upon this point. Finally,
in Janvier v. Sweeney (3), a private detective made falso
representations in the nature of threats to a female servant,
in order to obtain information from her. Tho representation
found by tho jury was : “ You are tho woman wo want, as
you havo been corresponding with a German sp y.” Tho
alleged German spy was a man named Neumann, who was
then interned, to whom tho plaintiff had been engaged for
live years. Tho Court of Appeal held that tho plaintiff was
entitled to recover damages for injury caused by shock, tho
result of tho representations. The jury had found that the
statements were calculated to cause physical injury, and were
made by the defendant with tho knowledge that they were
likely to cause injury. I t does not clcarly appear whether
tho fright of tho plaintiff was of evil consequences to herself,
(1) [1897] 2 Q. B. 67.
(2) [1901] 2 K . B. 009.
(3) [1919] 2 K. B. 310.
•
. " \
..W J ’S BENCH DIVISION.
KINO’S BUNCH DIVISION.
150
C. A.
11)21
H
a m iiho o ic
V.
SlIIKKH
Itim a.
Alklit I..J.
[1925]
or to Neumann, but it may be that the Court of Appeal
accepted tlio former view.
In this state of the authorities, was the direction of the
learned judge right 1 I t appears to me that if tho plaintiff
ean prove that her injury was tho direct result of a wrongful
aet or omission b y tlio defendant, sho can r e c o v e r , whether the
wrong is a malicious and wilful act, is a negligent act, or is
merely a failure to keep a dangerous thing in control, as for
instance a failure to keep a wild boast in control. Onco a
breach of duty to tho plaintiff is established, ono lias no longer
to consider whether the consequences could reasonably be
anticipated b y tho wrongdoer. The question is whether the
consequences causing damage are tlio direct result of tho
wrongful act or omission. Tho full cffcct of the decision in
In re Polemis and Furness, Wiiliy & Co. (1) has not yot, I
think, been fully realized, oven though that caso laid down
no new law. I agree that in the present ease the plaintiff
must show a breach of duty to her, but this she shows by the
negligence of tho defendants in the care of their lorry. I am
clearly of opinion that the breach of duty to her is admitted in
the pleadings. I do not appreciate tho nature of the admis­
sion, unless it is an admission of negligence which, if supported
b y damage, would give tlio plaintiff a cause of action. This
seems made plain b y tlio fact th at the only traverse m tho
defence is that tho negligence causcd damage, and b y the, to
me conclusive fact th at tho same admission of negligence
covers the cause of action of tlio infant plaintiff to whom tho
duty is not in dispute.
.
B u t apart from tho admission in tho pleadings, I thmk tlui
the cause of action is complete. Tho duty of tho owner of a
motor car in a highway iB not a duty to refrain from inflicting,
a particular kind of injury upon those who are in tho highway.
If so, he would be an insurer. I t is a duty to use reasonable
care to avoid injuring those using tho highway. I t is thus a
duty owed to all wayfarers, whether they are injured or n o t ;
though damage by reason of tho breach of duty is essential
before any wayfarer can sue. Further, tho broach of duty
(1) [11)21] 3 K. 11.500.
does not take place necessarily when tho vehicle strikes or
157
C.
injures tho wayfarer. Tho negligent act or omission m a y ____^ --precede tho act of injury. In this case it was completed at tho i u m d h o o *
top of Dover Street, when tho car was left unattended in such
Stoke3
a condition th at it would run violently down the steep place.
Here, then, was a breach of a duty owed to Mrs. Hambrook. Atk,B
No doubt the particular injury was not contemplated by
tho defendants, but it is plain from In re Polemis and
Ftirness, W ithy & Co. (1) that this is immaterial. H tho act
would or might probably cauB e damage, tho fact that the
damage it in fact causes is not the exact kind of damage
ono would expect, is immaterial, so long as tho damage
in in fact directly traceable to tho negligent act, and
not *duo to tho operation of independent causes having no
connection w ith tho negligent act : per Scrutton L .J. as
p. 577. I can find no principle to support the self-imposed
restriction stated in the judgment of K ennedy J. in Dulieu v.
While & Sons (2), that the shock must bo a shock which
arises from a reasonable fear of i m m e d i a t e personal injury to
oneself. I t appears to mo inconsistent w ith the decision in
P u gh v. London, Brighton and South Coast Ily. Co. (3), and with
the decision in W illcinsm v. Downton'(4), in neither of which
cases was tho shock the result of tho apprehension of the
injury to the plaintiff. I t would result in a state of the law
in which a mother, shocked b y fright for herself, would recover,
while a mother shocked b y her child being killed before her
eyes, could not, and in which a mother traversing the highway
with a child in her arms could recover if shocked by fright for
herself, while if sho could be cross-examined into an admission
that tho fright was ically for her child, she could not. In my
opinion such distinctions would be discreditable to any system
of jurisprudence in which th ey formed part. Personally I
see no reason for excluding tho bystander in the highway who
receives injury in tho same way from apprehension of or the
actual sight of injury to a third party. There m ay well be
eases where the sight of suffering will directly and immediately
(1) [1921] 3 K. B. 500.
(2) [1001] 2 K. B. 009.
(3) [1890] 2 Q. B. 248.
(4) 1181)7] 2 Q. B. 57.
158
KING’S BUNCH D I V I S I O N ^ /
C. A.
1924
[1925]
physically shock the most indurate h e a r t; and if tho suffering
of another bo the result of an act wrongful to tho spectator,
iiamdiiook I do not see why the wrongdoer should escape.
Tho reason
Stokes
a threatened battery upon tho plaintiff is actionable if
Dkos. it causcs damage, is th at it is an assault, a crime committed
A tk iu l .j .
against tho plaintiff, and therefore a wrong to him.
Tlio
reason why a threatened or an actual battery against a third
person is not actionable by a spectator is that it is n ot a wrong
to him. I t m ay bo th at to negative K ennedy J .’s restriction
is to increase possible actions. I think this m ay be exaggerated.
I find only about half-a-dozen eases of direct shock reported
in about thirty years, and I do not expect th a t shocks to
bystunders will outnumber them. B u t if they do, in the words
of K ennedy J. ( 1), “ I should bo sorry to adopt a rule ”— in
this caso tho restriction— “ which would bar all such claims on
grounds of policy alone, and in order to prevent tho possible
success of unrighteous or groundless actions. Such a course
involves the denial of redress in meritorious cases, and it
necessarily implies a certain degree of d istm st, which I do not
B hare, in the capacity of legal tribunals to get at the truth in
this class of claim.”
In my opinion it is not necessary to treat this cause of
action as based upon a duty to take reasonable care to avoid
administering a shock to wayfarers. The cauBe of action, as
I I have said, appears to be created by breach of th e ordinary
I duty to take reasonable care to avoid inflicting personal
! injuries, followed by damage, even though the .type of damage
m ay bo unexpected— namely, shock. The question appears
to be as to the extent of the duty, and not as to remoteness of
damage. If it were necessary, however, I should accept the
view that tho duty extended to the duty to take care to avoid
threatening personal injury to a child in such circumstances as
to cause damage by shock to a parent or guardian then present,
and that tho duty was owed to the parent or guardian ; but
I confess that upon this view of tho ease I should find it difficult
to explain why the duty was confined to the case of parent or
l guardian and child, and did not extend to other relations of
(1) [1901] 2 K. 15.081.'
1 K. B.
159
jG’S UKNC1I DIVISION.
life also involving intim ate associations ; and why it did not I C. A.
eventually extend to bystanders. I t may be, however, th at • 1024
there is not any practical difference between the two ways of i u m b u o o i T
putting i t ; for tho degree of care to be exercised by tho owner ,stokbs
of tho vehicle would still in practice be measured by the
B ros.
standard of care necessary to avoid the ordinary form of Alklu LJpersonal injuries. One may, therefore, conclude by saying
that this decision in no way increases tho burden of care to
bo tukon by tho drivers of vehicles, and that the risk fore­
shadowed in ono of the cases, of an otherwise careful driver
being made responsible for frightening an old lady a t Charing
Cross, is non-existent.
Tho ease m u s t go for n n e w t r ia l. I need, th e r e f o r e , n o t
p r o n o u n c o fin a lly u p o n t h e c o m p l a in t of m is d ir e c t io n as t o t h e
c a u s e of t h o in j u r y , t h o u g h I in c lin e to t h i n k t h a t it m i g h t
h a v e m is le d t h e j u r y , a n d be in it s e l f a s u ff ic ie n t ground fo r
th o o r d e r we n o w make. N o doubt a t t h o t r ia l a ll t h o factB
w ill be c a r e f u l ly investigated, in c lu d in g t h e possibility t h a t
th o B h ock received by t h e m o t h e r w a s in no w a y causcd by t h e
s i g h t or B ou n d of t h o a c c i d e n t a n d a p p r e h e n s io n of d a n g e r to
t h e child or c h ild r e n , but B olely to t h e r e p o r t of t h o in j u r y t o
t h o d a u g h t e r , made to her by t h e t h i r d p e r s o n . I content
m y s e lf w it h B a y in g t h a t t h e r e is evidence t h a t t h e l a t t e r is
n o t t h e t r u e v ie w .
TIhb
S a h o a n t L .J.
by
the
a p p e a l a r i s e B in
regard
a c la im
the death o f
the d e f e n d a n t s
p la i n t i f f u n d e r Lord Campbell^ Act fo r
liis w if e in c o n s e q u e n c e o f a m o t o r lo r r y o f
e s c a p in g
fr o m
Folkestone.
that
to
co n tro l
and
charging
dow n
Dover Street,
Tho p la in t if f , t o e s t a b lis h h is c la im , has t o s h o w
to
r e c o v e r fr o m tho d e f e n d a n t s fo r in j u r y in f lic t e d o n her.
Mrs. Hambrook h a v i n g d ie d , it iB n o t p o sa ib lo t o a s c e r t a in the
h is w if e , h a d
sho
not
died,
w o u ld h a v e b een e n title d
p r e c ise c ir c u n iB ta u c c s o f t h e a c c i d e n t .
j u s t p r e v i o u s ly sh o h a d , in a c c o r d a n c e
B u t i t is c le a r t h a t
with
h er u su al c u sto m ,
taken h e r children— t w o b o y s a n d a g ir l— a c r o s s Dover Street
o n th e ir w a y t o B clioo l, a n d t h a t t h e y had g o n e some f e w y a r d s
u p tho Btrcct a n d o u t of h e r Bight p a s t a b e n d . The lo r r y
160
KING’S BUNCII DIVISION.
C. A.
1924
IU
murook
Stokks
Hium.
sarg .u t
l .j
.
[1925]
had then charged down this higher part of the street, bumped
into tho shop of a dealer Brown, on the opposite side of the
street to that on which the children had been walking —
apparently in company with, or near to, other children— and
then crossed the street, paBBcd tho bend above Mrs. Ilambrook,
a n j finally brought np against a baker’s shop on hor side of
tho street not fur from her. She was then found in a frantic
condition, in violent hysterica, tearing hor hair and inquiring
wildly as to tho safety of her little girl. Her stato was no
donbt duo to shock arising from one or other aspect of tho
a ccid cn t; but tho evidence given did not indicate with
absolute certainty whether tho shock was due ( 1.) to apprelienuion of immediate injury to herself from tho lorry, though
her exclamations seem to negative this view, or (2.) from
apprehension of injury having been caused b y tho lorry to
ono or other of her children. And, on the lattor hypothesis,
it is not quite clear whether tho apprehension of this danger
was solely duo to tho realization th at tho lorry had been
charging down tho street in which her children were, or was
due to, or aggravated by, statem ents made to her th at a
little girl wearing spectacles (as her girl did) had been injured.
There seems to be strong ground for tho latter view, inasmuch
as sho appears to have expressed apprehension for tho girl
only, though the two boys had been in equal peril, and one of
them was the youngest of tho three and therefore the least
capable of taking care of himself. In fact, the little girl had
been seriously though not dangerously in ju red ; and after
Mrs. Ilambrook had somewhat recovered from her hysterics,
she was taken by her husband to the school, and from thero
to tho hospital, whither the littlo girl had been convoyod.
B ut Serjeant Sullivan, in his able argument beforo us,
expressly disclaimed any suggestion that tho shock to
Mrs. Hambrook, which is said to have been the cause of her
subsequent death, was duo to or aggravated by her finding that
the little girl was missing from tho school, or by her afterwards
tracing her to and seeing her in the hospital. H e relied upon
tho shock occasioned to Mrs. Hambrook by tho original
apprehension of the imminent danger to her little girl, or
1 K. B.
j HUNCH DIVISION.
161
rather perhaps of the imminent danger to her three cliildren ,
c. A.
for, apart from the information said to have been given by a 1024
bystander, there was no more reason for apprehending danger hambrook
to tho girl than to cither of tho boys.
stokes
On these facts Branson J . directed the jury, as a matter of
Hrob.
law, th a t tho plaintiff had to show, as a first step, th at the 8«g»nt l . j .
shock causing Mrs. Hainbrook’s illness arose from a reasonable
fear of immediate personal injury to herself. The appellant
says that this is a misdirection, and that it would be sufficient
for his case on this point if the shock arose from fear or
apprehension of personal injury to her children. I t is admitted
that the learned judge’s direction followed precisely the view
expressed by K ennedy J. in Dulieu v. While & Sons. (1) B ut
it is said th at tho view so expressed was not necessary to tho
decision of that case, and was wrong, and should bo overruled.
Dulieu v. While & Sons (1) seems to have been the first case
in the High Court of accident on or near the highway in which
the defendant was rendered liable for negligence without there
having been direct physical injury to the plaintiff, cither by
actual impact of the vehicle or in the course of the accident.
And it is a notable case, as having adopted tho reason­
ing of tho Court of Appeal in Ireland in Bell v. Great
Northern Ry. Co. of Ireland (2) and rejected the express
decision of the Privy Council in Victorian Railways Com­
missioners v. Coultas. (3) B ut, apart from the importance
duo to tho necessity of having to decide between two directly
conflicting decisions, I do not think that Dulieu v. While (1)
marked any great advance in the development of our law, or
any considerable extension in the liabilities of users of the
highway for ncgligcnco. I t is no doubt more difficult to provo
that physical injury results from nervous shock than from
direct impact. B ut wlion onco this difficulty of proof is over­
come, I cannot see why a negligenco which so nearly causes
direct impact as to cause physical injury by nervous shock is
a more remote or less natural cause of damago than a negligence
causing actual physical impact. Or, to put it more precisely,
( 1) [1901] 2 K . B. 009.
(2) 20 L. R. Ir. 428.
(3) 13 App. Caa. 222.
KING’S HKNCII DIVISION. A
1C2
(
i
[1925]
as a m atter of duty which is owed to the plaintiff, an d the
neglect of which has caused dam age, tho d u ty of tho defendant
iummhook so 4,0 cont'ro*
vehicle as to avoid causing physical injury
Sn'icic 1,0 t *l° 80 on 01 ,loar ^ 10 hi«hway- including tho plaintiiT, can
lin o s.
hardly bo limited to actual physical im pact on tho pluintilf
KurgnmL.J. (though tins i« in fact tho result of tho Amoriean eases), but
m ust logically include such an im m ediate th re a t of im pact
on the plaintiff as to produce physical injury to him, or
her, through tho nervous system . Thero seems to me to bo
no magio in actual personal contact. A threatened contact
producing physical results should be an equivalent. Tho
principle on which a threatened b attery m ay justify damages
for assault is in iny view strictly analogous. I n tlio case of ft
th re a t of imm inent danger to a plaintilf resulting in illness
through nervous shock, thero is, in my view, as real and direct
an interference with tho personality of fclio plaintiff as if tho
illness had been caused by actual physical contact w ith him.
A nd the d u ty of a defendant to avoid acts or omissions wliicli
will result in tho illn c B S of tho plaintiff seems to me as clear
and definite in the 0 1 1 0 case as in tho other, though no doubt
tho occasions 011 which illness will result aro much less frequent
in the first case th an in tlio second.
0
. a.
10 2 1
On the other hand, the matter is very different when the
shock to the plaintiff is duo n ot to immediate fear of personal
impact, but to the sight or approhension of impact on a third
person. Here tlio case of Sm ith v. Johnson & Co. (1), referred
to by Wright J. in his judgment in Wilkinson v . Downton (2),
is of tho highest importance. Thero the plaintiff became ill,
not from impact on himself, nor from fear of such impact, but
from the bhoclc of seeing another killed, tho death being due
to the negligence of the defendant. And it was held th at tlio
plaintilf was not entitled to recover. T hat decision seems
to me unquestionably right, though I should prefer, with
Kennedy J., to put it not 011 tho ground that tho harm was too
remote a consequence of tho negligcnco, but 011 (what is often
practically equivalent) a consideration of the exten t of the
duty of tho defendant towards tho plaintiff and others on and
(I) Unreportod.
(2) [1897] 2 Q. il. 57, 01.
1 K. B.
A
} HKNCII DIVISION.
163
near tlio highway. T hat is to say that, as the defendant
C. A.
did not do anything which could reasonably or naturally be
1024
expected to cause tho harm in question to tho plaintiff, thero h a m m i o o k
was 110 evidence of any breach of duty towards him for which ST?,’KKa
tho defendant could bo rendered liable. In iny judgment, it
»«*>»•
would bo a considerable and unwarranted extension of the s*r*"‘l LJduty of owners of vehicles towards others in or near tho
highway, if it were held to include an obligation not to do
anything to render them liablo to harm tlirough nervous
shock caused by tho sight or apprehension of damago to tliird
persons.
No doubt in tho caso of Smith v. Johnson
Co. ( 1) tho
person killed was a stranger to the plaintiff, while here tho
persons with regard to whom apprehension was entertained
were the young children of Mrs. Ilambrook herself. B ut I
cannot think th at this makes any real difference, if the question
is regarded, as I think it ought to be regarded, from tho point
of view of the exten t of tho duty of tho defendant towards
tho publio in or near tho highway. If I10 has no duty to avoid
shocking them by killing or endangering strangers, can it be
reasonably held that he has such a duty to avoid shocking
them by killing or ondangering their friends or relatives 1
And, if so, what degreo of friendship or relationship is tho
defendant to expect as that which will reasonably or naturally
result in harmful nervous shock ? I t scoms to mo that, when
once tho requirement is relaxed, th at tho shock is to be one
caused by tho plaintiff’s apprehension of damage to himself,
tho defendant is exposed to liability for ft consequence which
is only readied by a new and quite unusual link in the
chain of causation, and which cannot therefore properly
be held to havo been within his ordinary and reasonable
expectation. And the exten t of this extra liability is neces­
sarily both wide and indefinite, inasmuch as it may vary
with tho precise degree of connection between tlio person
injured and the plaintiff, and also, perhaps, with the circum­
stances attending the realization by the plaintiff of actual or
apprehended injury to tho third person. For instance, should
(1) Unreportod.
KING’S HUNCH D IV lS lO lflP ( ^ /
104
[1025]
C. A.
it e x te n d t o a sh o c k o c c a sio n e d to a d a u g h te r b y a p p r e h o n d e d
1924
d a n g e r to a m o th e r , or to a siste r b y a p p r e h e n d e d d a n g er
HamdhooT ^
a b r o th e r
1
A n d w h e r e , a s in t h i s c a s e , t h o a p p r e h e n d e d
St o k e s
d a n g e r is o u t o f th o s i g h t o f t h e p la in t if f , o u g h t th o p la in t if f
linos.
t o b e e n t i t l e d t o r e c o v e r fo r th o illn e s s b y s h o c k , if th o f a c t s
s«rg«nt l . j .
w cr0 t h a t th o p e r s o n w h o s e s a f e t y w a s in q u e s t i o n h a d tu r n e d
o ff th o d a n g e r o u s h ig h w a y , o r h a d fo r s o m o o t h e r r e a s o n n e v e r
b e e n in i m m i n e n t d a n g e r a t a ll ?
Soino stress was laid, in the argument for tho appellant, on
tho anomalies that might arise if in such a caso os this a inothor
had been hand in hand with her child, and wero entitled or
disentitled to recovor according ob her shock was duo to her
own personal danger or to her child’s. In m y judgment, no
assistance is rendered by tho consideration of possible cases
which are rendered more complicated than the present by the
concurrence or confusion of two possible causes of apprehension
and shock. Here there is, as tho evidence lias been given,
little risk of any such confusion, buico there is no evidence that
Mrs. llam brook was, or considered herself to be, in any personal
danger, and the inference which Serjeant Sullivan asked tho
Court to draw was th at tho shock was duo to Mrs. Ilam brook’s
acute apprehension of tho danger to one or more of her
children.
Tho eases *of Wilkinson v. Doumton (1) and Janvier v .
Sweeney (2) are not really in point, since they are founded
on intentional and malicious wrongdoing. Pugh v . London,
Brighton and South Coast liy . Co. (3) is merely a decision on
what amounted to an accident within tho meaning of a policy.
And In re Polemis and Furness, W ithy ds Co. (4) dealt with
a ease in which there was a duty by contract between the
plaintiff and the defendant, while here wo havo to determine,
in tho absence of contract, what is the extent of the duty of
the defendant, and whether the plaintiff’s wife fell within tho
area of the duty as so defined. I do not think that any of
theso cases assist tho solution of tho present problem.
1 K. B .
^
IG’S BKNCII DIVISION.
much more briefly doalt with. I t is said that, in charging the
C. A.
jury as to the sufficiency of tho chain of causation connecting
19'>4
the original illness of Mrs. llam brook with her ultimate death, jfAMnHOOK
the learned judge made an important mistako of fact and took
a view of the law towards tlio end of his eliargo, which was
l in o s ,
too unfavourable to tho plaintiff. If this alleged second mis* s*r**nl L1direction stood alone, I should liavo folt some difficulty ; but,
as it is, this second point becomes unimportant on eithor
ullcrnativo view of tho first point. For on tho view of the
majority of the Court as to tho first point, a new trial has
to bo granted. And, on m y view of tho first point, the
plaintiff could not succeed unless there wero apprehension by
his wifo of personal injury to herself, and there was no ovidonco
before tho jury on which they could properly find that any
suoii apprehension of injury to herself was the causo of her
illness by shock. Indeed I rend their verdict as negativing
this view.
In my opinion, the appeal should bo dismissed, but in view
of the fact th at the majority oi the Court are of opinion that
it should bo allowed, I would suggest the advisability of the
judge directing tho jury on tho new trial to find whether the
shock to Mrs. Hnmbrook was caused by hor own unaided
realization of what had happened, or was due wholly or partly
to what sho heard from bystanders. For I gather that the
view of the majority of the Court is that it is only in the
former event that the defendants would bo liable ; and, as I
havo already said, the fact that Mrs. Hambrook appears to
have expressed anxiety only as regards her daughter, is an
indication of somo weight that she had heard from others of
the injury to a little girl answering in ono respect the
description of her daughter.
A ppeal allowed.
Solicitors for tho a p p e lla n t: Edmund O'Connor
Co.
Solicitors for tho respondents : William Hurd <(? Son.
J. F. C.
A s e c o n d a lle g e d m is d ir e c t io n b y th o le a r n e d j u d g e m a y b e
(1 ) [18971 2 Q. B. r.7.
(2) [1919] 2 K. B. 316.
(3) [1896] 2 Q. B. 248.
(4) [1921] 3 K. B. SCO.
Vo l .
i
1G5
I. 1925.
N
2
KING'S BENCH D IV ISIO N.
394
C. A.
1938
Dec. 6 . lz
[1 9 8 9 ]
OWENS v. LIVERPOOL CORPORATION.
t'937- O. No.
3 7 8 6 .]
Negligence— Mental or nervous shock— Horror at sight of effects of
collision between tramcar and funeral hearse— Shock to feelings of
mourners— N o apprehension, or sight, of injury to human being—
Claim for mental or nervous injury without physical injury to
plaintiffs— Right to recover damages.
A funeral procession was going along Scotland Road. Liverpool,
when a tnimcar was so negligently driven by a servant of the
defendants that it violently collided with the hearse, damaged
the hearse and caused the coffin to be overturned, with the result
that the mourners at the funeral, who were relatives of the dead
man, suffered severe mental shock :—
Held, that the mourners were entitled to recover damages for
mental shock in an action brought by them for negligence against
the defendants, although there was no apprehension, or actual
sight, of injury to a human being.
A p p e a l from Liverpool Court of Passage.
On August 21, 1937, a funeral procession was going along
Scotland Road, Liverpool. The hearse carried a coffin
containing the corpse of a man, William Owens. It was
followed by a carriage in which were the plaintiffs, the aged
mother of the deceased, an uncle, a cousin, and the cousin’s
husband. A tramcar driven by a servant of the defendants
collided with the hearse so violently as to break its glass side,
and overturn the coffin, so that, as was alleged, there was
danger of its being ejected into the road. One of the plaintiffs,
the uncle, alone saw the actual impact of the tramcar with
the hearse; the other three saw the effects of it immediately
after it happened.
The plaintiffs sued the defendant corporation for damages
sustained by them through the alleged negligence of the driver
of the tramcar. They alleged that they witnessed and were
horrified by the accident, that the aged mother of the deceased
had in consequence suffered from severe shock and collapse,
and the other three from severe shock.
The Deputy-Judge of the Court of Passage found that the
damage to the hearse was caused by the negligence of the
driver of the trarncar and that each of the plaintiffs suffered
1 K. B.
W I N G ' S BENCH DIVISION.
395
injury in the nature of shock, to a varying degree, from the
actual sight of damage to the hearse containing the body of
a near relative, and he assessed the damages at 75/. for the
mother, 15/. for the uncle, 100/. for the cousin, and i l l . for
the cousin's husband. But he dismissed the action, because
in his view of the law there must be apprehension of injury
to a human being, or actual sight of injury to a human being,
before a plaintiff could recover in circumstances of this nature.
The plaintiffs appealed. The appeal was heard on December
6, 1938.
R. 11. Forrest for the appellants. The Deputy-Judge of
the Court of Passage was wrong in holding that there must
boiapprehension, or actual sight, of injury to a human being,
before a plaintiff can recover damages in circumstances of
this nature. Mental or nervous shock is as much an injury
as a physical blow. In Pugh v. The London, Brighton and
South Coast R y. Co. (1) the plaintiff, in the discharge of his
duty as a railway signalman, tried to prevent an accident to
a train by signalling to the driver, and the excitement and
fright arising from the danger to the train produced a nervous
shock which incapacitated him from employment. It was
held that he had been incapacitated by accident within the
meaning of a policy of insurance against accident sustained
in the discharge of his duty. In this case the family mourners
were not injured physically, but they claim damages for mental
shock caused by seeing damage done to the hearse and the
displacement of the coffin containing the body of a near
relative.
The legal effect ol injury by shock is dealt with by Atkin L.J.
in Hambrooh v. Stokes Brothers, Ld. (2), where he said : " The
"learned judge directed the jury that unless the death of the
"wife was the residt of shock produced by fear of harm to
"herself, as contrasted with shock produced by fear of harm
" to her child, the plaintiff could not recover. The question
"for us is whether that is a misdirection. In m y opinion it
" w a s; and in consequence there must be a new trial. The
( 1 ) [1 8 9 6 ]
2
Q. H.
248.
(2 ) [ 1 9 2 5 ]
2
K
1
1
K. B.
141. 153.
C. A.
1*>3«
O we n s
1
*•
L iv e r p o o l
Cok po k aTIO N .
KING'S BENCH D lV I ^ O x iS ^
396
C. A.
>93®
O
w ens
v.
L iv e r po o l
Co rpora ­
t io n .
[1 9 8 9 ]
" legal effects of injury by shock have undoubtedly developed
"in the last thirty or forty years. At one time the theory
"was held that damage at law could not be proved in respect
"of personal injuries, unless there was some injury which was
"variously called ‘ bodily ' or ‘ physical,' but which necessarily
"excluded an injury which was only ‘ m ental.’ There can be
“ no doubt at the present day that this theory is wrong.”
Then the Lord Justice deals at length with the cases, including
Smith v. Johnson &■ Co. (i). referred to by Wright J. in
Wilkinson v. Downlon. (2) In Dulieu v. While & Sons (3)
Philliinore J. said (4) : “ I think there m ay be cases in which
“ A owes a duty to B not to inflict a m ental shock on him
“ or her, and that in such a case, if A does inflict such a shock
"upon B— as by terrifying B—and physical damage thereby
"ensues, B may have an action for the physical damage,
"though the medium through which it has been inflicted is
"the mind." See also perB ankes L.J. in liambrook v. Stokes
Brothers, Ld. (5) The result of the authorities is that, if the
plaintiffs prove that the defendants’ servant was negligent or
that he was guilty of a breach of duty and that the
plaintiffs in consequence of such negligence or breach of duty
suffered shock, the plaintiffs are entitled to recover.
G. G. Blackledge for the respondents. It is submitted that
the findings of the deputy-judge can be summed up as follows.
There was damage to the hearse caused by the wrongful act
of the defendants’ servant. All the plaintiffs received injury
from actual sight of the damage to the hearse, but only one
of the plaintiffs actually saw the accident. There was no
apprehension of injury to any human being. Accepting the
decision on the question of damage that was arrived at in
In re Polemis and Furness, W ithy & Co. (6) on the question
where the damage could reasonably have been anticipated,
may it not be the position that the defendants’ servant had
been negligent or in breach of his duty in respect of the
hearse, but jvas not negligent or in breach of his duty to the
( 1 ) ( 1 8 9 7 ) Unreported.
(2 ) [ 1 8 9 7 ] 2 Q. H. 5 7 . 6 1 .
(3 ) [ 1 9 0 1 ] 2 K. B. 6 6 9 .
(4 ) [ 1 9 0 1 ] 2 K. B.
(5) [»9*5] * K. B.
(6 ) [ 1 9 2 1 ] 3 K. B.
682.
141, 150.
560.
1 K.
KING'S BENCH DIVISION.
plaintiffs or any of them ? If he was in breach of his duty
and damage resulted, then there is a right to recover. But
was there a breach of duty to the plaintiffs ? There ought
to be a limit to the claims for injury or apprehension of injury.
It cannot be that any one who suffers distaste and horror at
an accident caused by ncgligcnce can claim damages. [He
referred to Victorian R ailways Commissioners v. Coultas (1) ;
Bell v. Great Northern Ry. Co. o f Ireland (2) ; Dulieu v. White
oy Sons, per Kennedy J. (3) ; and Smith v. Johnson dr Co. (4)]
[At the conclusion of the arguments 011 December 0,
M a c K in n o n L.J. sa id : The Court desire in this case, which
raises an important point, to put their reasons into writing ;
but we may say that we are all satisfied that this appeal
4 must be allowed and judgment entered for the amounts found
by the deputy-judge, with the usual consequences with regard
to costs.]
1938. Dec. 12. M a c K in n o n L.J. The judgment I am
about to read is the judgment of the Court (MacKinnon,
Goddard and du Parcq L.JJ.).
On August 21, 1937, a funeral procession was going along
.Scotland Road, Liverpool. The hearse carried a coffin
containing the corpse of a man, William Owens. It was
followed by a carriage in which were the plaintiffs, who were
respectively the aged mother of the deceased, an uncle, a
cousin, and the cousin’s husband. A tramcar was so
negligently driven by a servant of the defendants that it
collided with the hearse so violently as to break its glass side,
and overturn the coffin, so that, as was alleged, there was
danger of its being ejected into the road. One of the plaintiffs,
the uncle, alone saw the actual impact of the tramcar with
the h ea rse; the other three saw the effects of it immediately
after it happened. The plaintiffs sued the defendant corpora­
tion for damages sustained b y them through the negligence
of the tramdriver. They alleged that they “ witnessed and
(1) (1 8 8 8 )
(2 ) ( 1 8 9 0 )
(3) [>901]
13
26
2
App. Cas. in.
L. R. Ir. 4 2 8 .
K. B. 6 6 9 , 6 7 5 .
(4 ) ( 1 8 9 7 ) Unreported, referred
to by Wright J. in Wilkinson v.
Downlon [ 1 8 9 7 ] 2 Q. B. 5 7 , 6 1 .
397
C. A.
«938
Ow
ens
v.
L iv e r p o o l
Corpo ra *
t io n .
KING'S BENCH D IV I S I O N ^ ^ vw '1
398
C. A.
1938
OWBNS
V.
L iv e r p o o l
Corpora­
t io n .
[1 9 3 9 ]
’’were horrified by ” the accident, that the old mother had in
consequence suffered from “ severe shock and collapse,” and
the other three from " severe shock.”
The D eputy-judge of the Court of Passage has found that
each of the plaintiffs did receive injury in the nature of shock,
to a varying degree, " from the actual sight of damage,
"to the hearse containing the body of a near relative,”
and he assessed the damages at 75/. for the mother, 15/.
for the uncle, 100/. for the cousin, and i l l . for the cousin’s
husband.
An appeal from the Court of Passage is not like an appeal
from a county court, so that only error in law can be raised
in this Court, and it would be open to us to review the findings
of the deputy-judge.
B ut, though we entertain con­
siderable doubt whether we should have arrived at his
conclusions as to injury being sustained by the plaintiffs, or
as to its extent, we think we ought to accept his findings and
not to interfere with them. What is perhaps more material is
that we were not asked by counsel for the respondents to do
so. The deputy-judge, though he did so find, has dismissed
the action. Mis reason for doing so is expressed in a single
sen ten ce: " In m y view of the law there must be appre“ hension of injury to a human being, or actual sight of injury
"to a human being, before a plaintiff can recover in circum"stances of this nature.” B y " circumstances of this nature ”
he clearly means claims for mental or nervous injury,
unaccompanied by any physical damage to the plaintiff, or,
as it has been put by Lord Shaw, " without any physical
"im pact or lesion.”
Cases of this nature have been frequently discussed in the
last fifty years. They begin with the decision by the Privy
Council in Victorian R ailways Commissioners v. Coultas. (1) It
was there held that damages for nervous shock or mental
injury were too remote, and could not be recovered. But
that decision has been uniformly discredited and disapproved
ever since. The first, and perhaps the loudest voice in the
chorus of disapproval was that of Palles C.B. in Ireland, in
(1 ) 1 3 A p p .
Cas.
222.
1
K. B.
W - ^ . G ’S BENCH DIVISION.
399
Bell v. Great Northern Ry. Co. o f Ireland (1), in not the least
remarkable of the judgments which established the pre-eminent
reputation of that learned judge.
In Dulieu v. While cS- Sons (2) Kennedy J. held that
damages which result from nervous shock occasioned by
fright, though unaccompanied by any actual impact, m ay be
recoverable in an action for negligence. But he held that
the shock " must be a shock which arises from a reasonable
’’fear of immediate personal injury to ’’ the claimant. In
Hambrook v. Stokes Brothers, Ld. (3), it was held that the
limitation thus imposed by Kennedy J. was erroneous. That
was the case of a mother affected by shock, not from any
apprehension of personal injury to herself, but from such appre­
hension as to her young children. " I can find no principle,”
"said Atkin L.J. (4), “ to support the self-imposed restric"tion stated in the judgment of Kennedy J .....................that
"the shock must be a shock which arises from a reasonable
"fear of immediate personal injury to oneself.” And he adds,
later on the same p a g e : " Personally I see no reason for exclud­
i n g the bystander in the highway who receives injury . . . .
"from apprehension of or the actual sight of injury to a
“ third party. There m ay well be cases where the sight of
"suffering will directly and immediately physically shock the
“ most indurate heart ; and if the suffering of another be the
"result of an act wrongful to the spectator, I do not see why
"the wrongdoer should escape.” Those two cases deal with
shock resulting from apprehension as to personal injury to
the claimant himself, or to some other person in whose safety
the claimant is, from affection, or from mere humanity,
concerned. Does it follow that, in a claim for damages for
shock, there must in every case be apprehension of injury to
some human being, as the learned deputy-judge thought ?
If real injury has genuinely been caused by shock from appre­
hension as to something less important than human life (for
example, the life of a beloved dog), can the sufferer recover no
damages for the injury he, or perhaps oftener she, has sustained ?
(1 ) 2 6 L. R. Ir. 4 2 8 .
(2 ) [1 9 0 1 ] 2 K. B. 6 6 9 .
(3 ) [ 1 9 2 5 ] 1 K. B.
(4 ) Ibid. 1 5 7 .
141.
C- A.
1938
O w ens
v.
L iv e r p o o l
Corpora­
t io n .
KING’S BENCH D l V n K t U ^
400
C. A.
1938
O
w ens
v.
L iv e r p o o l
Corpora­
t io n .
[1030]
On principle we think that the right to recover damages for
m ental shock caused by the negligence of a defendant is not
limited to cases in which apprehension as to human safety is
involved. The principle must be that mental or nervous
shock, if in fact caused by the defendant’s negligent act, is
just as really damage to the sufferer as a broken limb— less
obvious to the layman, but nowadays equally ascertainable
by the physician. That alleged shock results from apprehen­
sion as to a less important matter m ay well be material in
considering whether the allegation be proved. But fear that
unfounded claims may be put forward, and m ay result in
erroneous conclusions of fact, ought not to influence 11s to
impose legal limitations as to the nature of the facts that it is
permissible to prove. As Kennedy J. said in Dulieu v. While
<§• Sons (1) : “ I should be sorry to adopt a rule which would
"bar all such claims on grounds of policy alone, and in order
" to prevent the possible success of unrighteous or groundless
"actions. Such a course involves the denial of redress in
"meritorious cases, and it necessarily implies a certain degree
"of distrust, which I do not share, in the capacity of legal
"tribunals to get at the truth in this class of claim."
In the present case theshock was said to have been occasioned,
not by any fear for human life, but by the imperilment of the
coffm containing the corpse of a near relative. Phillimore J.,
in Dulieu v. White & Sons (2), envisaged " an experienced and
"cool citizen, the ideal vir constans for whom tixttupia makes
"M ptla." A man of that polyglot character might readily
be disbelieved if he alleged that such an incident as this had
caused him the form of illhealth which is known as shock.
The present plaintiffs might well have been disbelieved in that
assertion, but the learned deputy-judge believed them, and we
think we must accept his findings of fact. It m ay be that the
plaintiffs are of that class which is peculiarly susceptible to the
luxury of woe at a funeral so as to be disastrously disturbed
b y any untoward accident to the trappings of mourning.
But one who is guilty of negligence to another must put up
with idiosyncracies of his victim that increase the likelihood
( 1 ) [1 9 0 1 ]
2
K. B.
669, 681.
(2 ) Ibid.
684.
1 K.
KING’S BENCH DIVISION.
401
or extent of damage to him : it is no answer to a claim for a
fractured skull that its owner had an unusually fragile one.
In the result, if we accept, as we do, the finding of the
deputy-judge that the plaintiffs genuinely suffered from that
form of illness which is called shock as the result of the
negligence of the defendants’ servant, we think the plaintiffs
are entitled to recover the damages which he assessed, and that
this appeal must be allowed.
The defendants, on our intimating that we proposed to
allow the appeal, but would put our reasons into writing,
asked for leave to appeal to the House of Lords. As this case
raises a point of principle of general importance, it is one in
which such leave ought to be given. But though it is of that
4 character, it is also one in which only a small amount of money
is involved, and the plaintiffs can have little or no interest in
elucidating the question of law. In those circumstances we
think that we ought to give leave to appeal, but only upon the
condition that the defendants undertake to pay the plaintiffs’
costs in the House of Lords in any event.
The present appeal will be allowed with costs here and
below, and judgment entered for the plaintiffs for the sums
mentioned.
A ppeal allowed.
Solicitors for the ap p ellan ts: Neville, Mullen & Co.,
Liverpool.
Solicitors for the respondents : F. Venn & Co., fo r W. II.
Baines, Town Clerk, Liverpool.
T. W. M.
C.
A.
«938
O
w ens
V,
L iv e r po o l
Co rpora­
t io n .
II. L. (K.)
194*
S maht
| i i 4 >.*j>t *u<l uboul
involve the exercise of a remedy available to the
at all, whether by consent or otherwise. I move
appeal be allowed.
Lord Atkin . My Lords, I entirely agree with the opinion
Ross.
which has just been given by the Lord Chancellor, and can
express my reason for differing from the majority of the
Court of Appeal in a sentence. The appellants are not seeking
to exercise any remedy for a default in performance of the
hire-purchase agreement, but are accepting performance of
the new lawful agreement which displaced it. I agree that the
appeal should be allowed and the order of Uthwatt J. restored.
L ord T hankerton .
My Lords, I agree.
L ord W right .
My Lords, I agree.
L ord P orter .
My Lords, I also agree.
A ppeal allowed.
Solicitors for both parties : Tudor & Rowe.
[HOUSE OF LORDS.]
II. L. (Sc.)* IIAY OR H O U R H I L L .................................. A p p e l l a n t ;
1941
May u ,
ANO
11.
u. >5 :
Y O U N G ...............................................................R espondent .
Aug. 5.
Negligence— Menial or nervous shock— Person affected beyond area of
potential danger— Noise of collision of motor vehicles.
A motor cyclist, while negligently driving at ail excessive speed,
collided with a motor-car and was killed. The appellant, a fish­
wife. standing about 45 feet from the point of impact on the far
side of a stationary tramway-car from the platform of which she
was unloading her basket, heard the noise although she did not
see the accident, and suffered fright resulting in severe nervous
shock which disabled her from carrying on her trade for some time,
although she admitted that at the time she had no reasonable fear
of immediate lx>dily injnry to herself. At the time she was eight
*Present: I .o r d T h a n k k u t o n , L o r d R u s sb lj. o f
L ord Macmii. lan , L uku W uhjiit and L oud P oktkr.
motor cyclist on llie public road
| | I t U t the du ty of( uTo 1
j^ ik iin u. 111(5 11 # j> lo illiv« with such KMsonable care
- , . l l A.WI.I tlie | I » U III injury (including injury by shock
i»i iJutvl im parl ixi.uiu-d) U) »m h iicrsoiis its lie could
i i u j u t ^ Me*** might Ik mjuu-d by ln» failure l»» exercise th a t
Mi* , (< | lL*> the *|i|«IU nl vua mil ttillnn lliv area of |K>tcntial
tJ iu m
Ihe icault <il lu» negligence. and, accordingly,
U
w i J u t y tu licr uiid w ai nut guilly of negligence in relation
u ..i
v.,
llHOS., I.D.
V.
l.iU-r the child was stillborn,
H. L. (Sc.)
l»«* H IJU llO * > U > t 4 l l lm> f
K iu .o w e n ,
• *>4-*
H ay or
U o u h iiil l
Im«
■
On till* |Mint the law of England is the same as th a t
KwCUimJ.
| y —-
u| Couil of Sosioii KJ4 I S. C. 395 atlirmcd.
A>t o l lioiu Second Division of Court of Session.
|U
a* »Uted by Lokd T hankekton . were as follows :
fU
Mrs. liuphemia liourhill (formerly Hay), was
ut an action ol reparation in wliich she claimed damages
fo m Ihr ir»{*uii*lcttt, Janie* Young, as executor-dative of the
Ut« John Youii^. ut to»pect of injuries alleged to liave been
m ttuorti by U r owing to the fault of John Young on the
muamuu til a cuibuuti ln*t vii'i'ji u motor-cyclc which t he latter was
tfciM* 4txi * mut.ac-ir on O ctoU r 11. 19J#. which resulted in
I)* il<*llii4 Ji*lm Youtitf.liririnalte.r referred to its" the cyclist.
* )i<«
tlu t *lic U i l ” nu>tiiiii«*d lo*», injury and damage
ibe Uult ol the kaid John Young ” and that she
to lejurution therefor out of his estate.” After
* |w w l Lord Hubert M i t t , the Lord Ordinary. a.voiLied the
ir*|Mu>drnt on the ground that the cyclist luul not been guilty
<4 any breach of duty to the appellant, and this decision was
attuined by the Second Division of the Court of Session, Lord
Ju»tK c-U«k Aitchivjii d i l u t i n g . The appellant, who was
4 luhwtfe. was u pa^enger on a tram which was proceeding
in the dilection of Colinton along the Lolinton lvoad,
Kduiburgh, miming in a wmth-weMerly direct ion, and stopped
«t 4 ktopping-plaee ut a bhort distance before C.olinton Road
joined at right angles by Glenlockhart Road from the
muth-vu^t, that is, on the near side of the tram. The appellant
alighted, and went round the near side and front of the tram
to hit her luh-basket from the off-side of the driver’s platform.
Meantime. the cyclist, travelling in the same direction as the
tram, Itad come up and, as the appellant was getting her
Ui>ket. he passed on the near side of the tram. When mostly
aero-.', the ojx-niiig of Glenlockhart Road, his cyclc collided
v.
Y
oung
.
HOUSE OF LORDS
94
H . L . (S c .)
104*
H av o r
I lO U R I II L L
w.
Yo u k c .
6
L M
w ith a motor-car which had been travelling in the opposite
direction but had turned across the path of the cycle to enter
Glenlockhart Road. The cyclist, who was held by the Lord
Ordinary to have been travelling at an excessive speed, was
thrown on to the street and sustained injuries from which he
died. The appellant saw and heard nothing of the cyclist
until the noise created by the impact of the two vehicles
reached her ears. At that moment she had her back to the
driver’s platform, and the driver was assisting to get the basket
on to her back and Ihe broad leather strap on to her forehead.
The distance between the appellant and the point of impact
was between forty-five and fifty feet. In her evidence she
stated that on hearing the crash " I just got in a pack of
"nerves, and I did not know whether I was going to get it or
"not." After the cyclist’s body had been removed, the
appellant approached and saw the blood left on the roadway.
The injuries alleged to have been sustained by the appellant
were set out in condescendence 4 of the record as follows :
“ As an immediate result of the violent collision and the
"extreme shock of the occurrence in the circumstances
"explained, the pursuer wrenched and injured her back and
"was thrown into a state of terror and sustained a very severe
"shock to her nervous system. Explained that the pu rsu ers
“ terror did not involve any element of reasonable fear of immediate
“ bodily injury to herself. The pursuer was about eight months
“ pregnant at the time, and gave birth to a child on November
" 18, 1938, which was stillborn owing to the injuries sustained
“ by the pursuer.” The words italicized were inserted by
amendment in the Inner House after the Lord Ordinary had
dismissed the action as irrelevant, and, as the result of the
reclaiming motion, the case was sent to proof before answer.
After the proof the Lord Ordinary expressed his view that,
while the appellant had sustained a nervous shock as the
result of hearing the noise of the collision which disabled her
from carrying on her business for some time, she had failed to
prove either that the death of the child in utero or the injury
to her back resulted frpm the shock or her immediate reaction
to the fright of the event. The respondent did not dispute
the finding of the Lord Ordinary that she had sustained a
n e r v o u s shock, which affected her business, and this finding
was admittedly sufficient to raise the question of liability.
The appellant having appealed to the House of Lords, the
House decided to have the argument on liability completed
ANd J A
A . C.
on both sides before considering the other injuries alleged to
have resulte^.
'
Duffes K .C. (of the English Bar, K.C. of the Scottish Bar)
and G. Reid (of the Scottish Bar) for the appellant. To sustain
an action for damages for negligence it is not necessary to
prove physical impact. Fright resulting in illness is sufficient.
The law does not ignore the natural reactions of the mind in
connecting an accident with its consequences : Wagner v.
International R y. Co., per Cardozo J. (1). The duty of the
cyclist in the present case should be defined along the lines
of the definition by Atkin L.J. in Hambrook v. Stokes
Brothers (2). It is a duty owed to every member of the public
to drive with reasonable care so as to avoid injuring those
using the highway, even though the type, of damage may be
unexpected, namely, shock. The cyclist in the present case
failed in that care and was responsible for any resulting damage
to person or property. A careless pedestrian who walking
in a hurry negligently knocks against another person is liable
for all the consequences of his negligence, however unexpected
they are, e.g., if he knocks down a man with an unusually
thin skull or if he pushes a man off the pavement and causes
him to be run over. When the court is considering liability
for the effects of an act of negligence it is not limited to the
natural and probable results of it. [They referred to Haynes
v. Ilarwood (3) ; Wilkinson v. Downton (4) ; Smith v. Johnson
& Co. (5) ; Smith v. London and South Western Ry. Co. (6) ;
Bell v. Great Northern R y. Co. of Ireland (7)-; H .M .S. London (8);
Pugh v. London Brighton and South Coast R y. Co. (9) ; Cooper v.
Caledonian Ry. Co. (10) ; Gilligan v. Robb (11) ; Ross v.
Glasgoio Corporation (12) ; Brown v. Glasgow Corporation (13) ;
Currie v. Wardrop (14) ; A. v. B .’s Trustees (15) ; Walker v.
Pitlochry Motor Co. (16) ; Dutnbreck v. Robert Addie & Sons
(Collieries), Ld. (17).] Assuming that there is a limit
to the liability of a person who drives negligently for
(1)
(2)
158.
(3 )
(4)
(5 )
(6)
(7)
(8)
(1921) 232 N. Y. 176, 180.
[1925] 1 K- B- >•»«. •S6. <57 .
[19351 1 K. B-
11897]
(i» 97 )
(1870)
(1890)
[1914J
2 Q- !*• 57 Uurep.
L. It. 6 C. P. 14.
26 L. R. Ir. 428.
P- 72. 76- •
95
' COUNCIL.
(9) [1896] 2 Q. B. 248.
(IO) (>902) 4 K. 880.
(11) 1910 S. C. 856.
(12) «9 i 9 S. C. 174.
(13 ) >922 S . C 527.
(14) 1927 S. C. 338.
(15) (1906) 13 Sc. L. T. 830.
(16) 1930 S. C. 565.
(17) *9*9 S- C. (H. L.) 51.
H.
L.
( S c .)
1942
H ay or
B o u k h il l
young.
-----
*
A . C.
HOUSE OF LORDS
96
H , L . (S c .)
194*
H a y or
B o u k i i i i .l
u.
Y ounc.
damage caused by his negligence, the test of the limit
is not proximity in space (subject, however, to the
qualification that where the damage sustained occurs at
an extravagant distance away from the scene of the accident,
as where a person suffers shock by witnessing it through a
telescope there may be no lia b ility : sec In re Polemis and
Furness, Withy & Co.. Ld. (i)). In a claim in respect of
shock it is sumcient if the accident is near enough to affect a
reasonable person. The question for the House is whether
the view of Kennedy J. in Dulieu v. White v Sons (2) that to
give rise to a cause of action "the shock, where it operates
"through the mind, must be a shock which arises from a
"reasonable fear of immediate personal injury to oneself is
correct, or whether the opposite view expressed in Ilambrook
v. Stokes Brothers (3) and Owens v. Liverpool Corporation (4).
for which the appellant contends, should prevail. I lie whole
trend of the English authorities is in favour of the appellant.
The Scottish authorities do not cover exactly this type of case,
but A . v. B .’s Trustees (5) is directly in her favour and it has
never been challenged in the Inner House. In Harris v
Mobbs (6) and Wilkins v. D a y (7) the plaintiffs recovered
damages in respect of accidents resulting from fright caused
to horses through the negligence of the defendants. In the
case of fright to a human being it would likewise be unreason­
able to scrutinize the cause of nervous shock to find whether
the fright was reasonable. The injury to the appellant was
a direct result of the negligence of the cyclist.
Blades K .C . and Guthrie (both of the Scottish Bar) for the
respondent. The cyclist owed no duty to the appellant and
only a breach of duty can constitute actionable negligence
Nor was the injury to her the natural and probable result of
his careless driving. She did not see the accident and she
was in no danger. She only heard the noise of the eoUision
and there is no authority in England or in Scotland for the
proposition that there may be liability in damages for causing
a loud noise. Whatever may be the law of England, in the
law of Scotland nervous shock as giving rise to a cause of
action is subject to the limitation that it must arise from a
reasonable fear of bodily injury, and here there neither was.
COUNCIL.
nor could have been, such a fear. Mere fright without fear
is not actionable in the law of Scotland. On the facts this
case is distinguishable from Ilambrook v. Stokes Brothers (1),
but, in any event, in Currie v. Wardrop (2) doubt was expressed
Whether that authority was in accordance with the law of
Scotland : see also Donoghue v. Stevenson (3). [They referred
to Macintosh v. Mackintosh (4) ; Wernluim v. M'Lean, B aird &
Neilson (5) ; Campbell v. James Henderson, Ld. (6) ; Ross v.
Glasgow Corporation (7) ; Brown v. Glasgow Corporation (8) ;
and Glegg on Reparation, 3 rd ed., p. 7 .]
Duffes K .C . in reply. The drivers in Ilambrook v. Stokes
Brothers (1) and Oivens v. Liverpool Corporation (9) owed no
duty to the plaintiffs in those cases which the cyclist did not
owe to the appellant in this case. His was a general duty to
drive so as to avoid a collision which did in fact endanger the
appellant arid cause injury to her nervous system. That duty
was owed to all persons in the vicinity who might be affected.
Anything may happen to a reckless driver who may strike
one object on the first impact and others afterwards. Persons
are often injured by vehicles without anticipation on the part
of the driver and the question of reasonable anticipation is
beside the point. The general alarm and unreasoned fear
sulfered by the appellant were a natural reaction on her part
to the want of care of the cyclist.
The House took time for consideration.
1942. Aug. 5. L ord T hankerton . My Lords, while
both the Lord Ordinary and Lord Jamieson refer to an apparent
inconsistency between the evidence given by the appellant at
the trial, and the averment added by amendment that the
appellant’s terror did not involve any element of reasonable
fear of immediate bodily injury to herself, the argument of
the appellant before tlxis House was conducted on the footing
that the added averment was correct. Indeed, the appellant’s
argument was that the shock ensued without any functioning
of the brain at all. I am content to consider the question of
liability on this footing.
( 0 [1925]
f i o i i l 1 K . B . 160.
( 5) 1 3 S c . L . T . 8 3 0 .
(2) [,901] 2 lv. 11. OO9. 675.
(6) (1878) 3 Ex. D . 268.
( 3)
(4 )
(7 ) (
1 K - n - l '» 1'
1 K - B - 3V-*’
3 ) 12 Q '
97
1 K. B. 141.
(2) 1927 S. C. 538.
(3) [ ' 03 2]
A. C. 562.
(4) (1864) 2 M. 1357,
,J0QA. C. l o . n .
1362,
(5)
(6)
(7)
(8)
(9 )
1925 S. C. 407. 422.
(1915) 1 Sc. L. T. 419.
1919 s. C. 174.
1922 S. C. 527.
[>939 ] 1 K.' B. 394.
,
,,
H . L . (S c .)
1942
H a y or
B o u r iiil l
v.
Y oung.
98
UOUbli Ul« LOKUS
H. U (Sc.)
U )4i
H a y or
I k ll'K II I I. L
V.
Y
oung
.
lord
Thaoki-i ion.
l.lU'iaj
It is clear that, in the law of Scotland, the p r ^ ^ t aTEtion
can only be based on negligence, and "it is necessary for the
“ pursuer in such an action to show there was a duty owed to
"lu'm by the defenders, because a man cannot be charged
"with negligence if he has no obligation to exercise diligence ” :
per Lord lvinnear in K em p & Dougall v. Darngavil Coal
Co., Ld. (i). I may further adopt the words of Lord Johnston
in the same case (2), " the obligee in such a duty must be a
"person or of a class definitely ascertained, and so related by
"the circumstances to the obligor that the obligor is bound,
"in the exercise of ordinary sense, to regard his interest and
"his safety. Only the relation must not be too remote, for
"remoteness must be held as a general limitation of the
"doctrine.” My Lords, I doubt whether, in view of the
infinite variation of circumstances which may exist, it is
possible or profitable to lay down any hard and fast principle,
beyond the test of remoteness as applied to the particular
case. The Lord Justice-Clerk, who dissented, accepted the
test of proximity, although it is a little difficult to follow how
he made liis conclusion satisfy this test. In the observations
that I have to make, I shall confine myself to the question of
the range of duty of a motor-cyclist on the public road towards
other passengers on the road. Clearly this duty is to drive
the cycle with such reasonable care as will avoid the risk of
injury to such persons as he can reasonably foresee might be
injured by failure to exercise such reasonable care. It is now
settled that such injury includes injury by shock, although 110
direct physical impact or lesion occurs. If, then, the test of
proximity or remoteness is to be applied, I am of opinion that
such a test involves that the injury must be within that which
the cyclist ought to have reasonably contemplated as the area
of potential danger wliich would arise as the result of his
negligence, and the question in the present case is whether
the appellant was within that area.
I am clearly of opinion that she was not, for the following
reasons. Although, admittedly, going at an excessive speed,
the cyclist had his machine under his control, and this at once
distinguishes this case from such cases as those where the
motor has been left standing unoccupied and insufficiently
braked, and has started off on an uncontrolled career. 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
(1)
1 9 0 9 S . C . 1 3 1 4 . 1319-
(2) I b i d . 1 3 2 7 .
A* C-
y y COUNCIL.
Thl.0"’ ! e t fa !?ne, that ®
ram« r obstructed any view of her
or nf fl
r \Cycle ncoclietting and hitting the appellant’
yinS glass hitting her, in her position at the time w is
so remote, in m y opinion, that the cyclist could not renson ibiv
be held bound to have contemplated it. and I d°fiJr l Z l h o
nniipll t1
• ° n thlS P0int' but- as already stated the
appellant s case is not now based on any fear of such doss ,
bihtics, but merely on the sound of the collision T h. ^
suggestion that the volume of the noise of the collision ^ 'li™?
none of the cases cited presents sufficiently analogous d rcum ’
c a t r 5’ S
>^
Sh° Uld C0Utr01 the decision in
Present
The dictum, of Kennedy L.J. in Dulieu v. While & Sons M
stances in which it should not be applied, and I prefer to treat
each case on its own facts as it arises with a s s is t in g f
eases in which the tacls ^
anal
“ j *■«>
would not be right, however, in view of the a S S f p a M
to them in argument and in the opinions of the learned innL
«
■
" h a t a defendant ought to hivp
anticipated as a reasonable man is mate.ial when tiie question
is whether or not he was guilty of negligence, that is of want
of due care according to the circumstances
' in T e
present case the arbitrators have found as a fict ti. t tu
servants^ The fire appears to me to have been directlv
caused by the falling of the plank. Under these c cum
•stances I consider that it is immaterial that the e a r n i n g
’’the spark by the falling of the plank could not W
been
reasonably a n t.cp a ted .” The case is therefore of n
assistance here, and I h a w „0
, 0 a m i d u 'w £ t ™
(r) [1901] 2 K. B. 669, 675
(2) [>92 i j 3 K . B . 5 6 0 .
(3) I b id . 571.
3
H 2
H. L. (Sc.)
194
H
*
ay o r
H o iir h ill
v.
Y
oung
.
Lord
Thankerto n,
HOUSE OF LORDS
IO O
^*943]
h L. (S c .) the principle so laid down as to assessment of damages
correctly states the law of England and, if so, whether the law
~
of Scotland is the same. The same is true of Hambrook v
i£ur.mll Stokes Brothers (i), which was the case of a motor lorry left at
"
till- top of a steep and narrow street unattended, with the
engine running and without being properly secured with the
.1*7'
consequence that the lorry started off by itself and ran
violently down the incline. My noble and learned fnen
Lord Atkin, then Atkin L.J., said (2) :
I agree t:hat m the
"present case the plaintiff must show a breach of duty to her.
"but this she shows by the negligence of the defendants in
"the care of their lorry. I am clearly of opinion that the
"breach of duty to her is admitted in the pleadings.
But
there are certain obiter dicta on the question of d u t y , which
might be c o n s i d e r e d too wide, and I r e s e r v e a n y opinion on
them. The remaining case is Owens v. Liverpool Corporation (3),
in which the defendants’ traincar collided with a hearse
damaged it and caused the coffin to be overturned, and
mourners were held entitled to recover damages for mental
shock, although there was no apprehension, or actual sight
of injury to a human being. While each case must depend
on its own circumstances, I have difficulty in seeing that there
was any relationship of duty between the Parties m that case.
I am, therefore, of opinion th at the appellant has failed to
establish th at, at the time of the collision, the cyclist owe
any duty to her, and th at the appeal fails. I, accordingly,
move th at the appeal be dismissed th a t the judgment
appealed from be affirmed, and th a t the appellant pay the
respondent’s costs of the appeal.
L o rd R u s s e l l o f K illo w e n (read by L o rd T h a n k e rto n ) .
My Lords, the foundation of the appellant's claim is fault or
negligence alleged against John Young, an allegation whic
postulates a breach by him of some duty owed by him to hen
Therefore, the first essential for the appellant to establis
i s the e x i s t e n c e of a du ty owed to her by John Young
of which he committed a breach. As between John
Young and the driver of the motor-car, John Young was
admittedly negligent, in that he was i n breach of he
duty which he owed to him of not driving, while passing the
stationary tram car, at such a speed as would prevent lum from
(t) [1925] «
(7\ Ibid. »sf>.
B. 141.
(3 ) [*939 ] « K -
394 -
A . C.
^ :IVY COUNCIL.
1 01
pulling up in time to avoid a collision with any vehicle which H. L. (Sc.)
might come across the front of the tramcar from Colinton Road
1942
into Glenlockhart Road, but it by no means follows that
H ay o r
John Young owed any duty to the appellant. The facts B o u r h i l l
v.
relevant to this question seem to me to be these : The appellant
Y oung.
was not in any way physically involved in the collision. She
K u »m II
had been a passenger in the tramcar which had come from the Lo(o rdK illow
en .
direction of the city and had stopped some fifteen or sixteen
yards short of the point of collision. She was standingintheroad
on the off-side of the tramcar (which was at rest), with her back
to the driver s platform. The front part of the tramcar was
between her and the colliding vehicles. She was frightened
by the noise of the collision, but she had no reasonable fear of
immediate bodily injury to herself.
In considering whether a person owes to another a duty a
breach of which will render him liable to that other in damages
for negligence, it is material to consider what the defendant
ought to have contemplated as a reasonable man. This
consideration may play a double role. It is relevant in cases
of admitted negligence (where the duty and breach are admitted)
to the question of remoteness of damage, i.e., to the question
of compensation not to culpability, but it is also relevant in
testing the existence of a duty as the foundation of the alleged
negligence, i.e., to the question of culpability not to com­
pensation. It will be sufficient in this connexion to cite two
passages from well known judgments. The first is from the
judgment of Brett M.R. in Heaven v. Pender (1) : " Whenever
"one person is by circumstances placed in such a position with
"regard to another that every one of ordinary sense who did
” think would at once recognize that if he did not use ordinary
"care and skill in his own conduct with regard to those circum" stances he would cause danger of injury to the person or
"property of the other, a duty arises to use ordinary care and
"skill to avoid such danger." The second is from the speech
of Lord Atkin in Donoghue v. Stevenson (2) : “ You must take
"reasonable care to avoid acts or omissions which you can
"reasonably foresee would be likely to injure your neighbour.
" Who, then, in law is my neighbour ? The answer seems to be
“ —persons who are so closely and directly affected by m y act
"that I ought reasonably to have them iu contemplation as
“ being so affected when I am directing my mind to the acts
“ or omissions which are called in question.” A man is not
(1) (1883) 11 Q. B. D. 503, 509.
(2) [193*] A. C. 562, 580.
_
HOUSE OF LORDS
102
H . L . ( S c .)
194*
H ay or
U o u k h il l
v.
Y oung.
I.mil K u m II
ul Killuwcu.
I
[1943]
liable for negligence in the air. The liability only anses
"where there is a duty to take care and where failure in that
“ duty has caused d am a ge” : see per Lord Macmillan m
Donogkve v. Stevenson (i). In m y opinion, such a duty only
a r i s e s towards those individuals of whom it may be reasonably
anticipated that they will be affected by the act which
constitutes the alleged breach.
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 Colinton at the
speed at which he was travelling ? I think not. His road was
clear of pedestrians. The appellant was not within his vision,
but was standing behind the solid barrier of the tramcar.
His speed in no way endangered her. In these circumstances
I am unable to see how he could reasonably anticipate that,
if he came into collision with a vehicle coming across the
tramcar into Glenlockhart Road, the resultant noise would
cause physical injury by shock to a person standing behind
the tramcar. In m y opinion, he owed no duty to the appellant,
and was, therefore, not guilty of any negligence in relation to
hCThe duty of the driver of a motor vehicle, in a highway has
often been stated in general terms which, if literally interpreted,
would include persons to whom the driver would obviously
owe no duty at all, as for instance, persons using the highway
but who having passed the vehicle are well on their way in
the opposite direction. I think the true v i e w was correctly
e x p r e s s e d b y Lord Jamieson in the present case when he said ( 2 ) :
" 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 b y the omission to take such
"care " The appellant was not, in m y opinion, so placed,
or (to use the language of Lord Mackay (3) ) she has failed
"to bring herself into any relationship to the cyclist which
“ infers a duty of care in driving owetl by him towards her.
On this ground the interlocutor appealed against should be
affirmed, and the appeal dismissed.
Mv Lords, we heard a lengthy argument addressed to the
questions whether Ilambrook v. Stokes Brothers (4) was ngh y
(1} f i 9 3 * l A.. C . 5 6 2 , 6 1 8 .
S
s. c. , 4 .
{3) I b i d . 4 2 2 *
u> i w s i ■
A. C.
^
; PRIVY COUNCIL.
decided, and, if so, whether the decision was in accordance with
the law of Scotland as expounded in the numerous Scottish
decisions cited to us. In the view which I have taken of the
present case it is unnecessary to express a final view upon these
questions. I will only say that, as at present advised, I see
no reason why the laws of the two countries should differ in
this respect, and I prefer the dissenting judgment of Sargant L.J.
to the decision of the majority in Ilambrook v. Stokes
Brothers (1). It was said by counsel for the appellant that it
was impossible to affirm the interlocutor under appeal without
disapproving of the decision in Ilambrook v. Stokes Brothers (1).
I do not agree, for the simple reason that in that case the
negligence, which was the basis of the claim, was admitted,
whereas in the present case we are affirming because John
Young was guilty of no negligence in relation to the appellant.
L o r d M a c m il l a n .
My Lords, it is established that the
appellant suffered in her health and in her ability to do her
work by reason of the shock which she sustained when a
motor-cycle ridden by the deceased John Young collided with
a motor-car in her vicinity. The question for decision is
whether the respondent, as representing the late John Young,
can be rendered accountable at law for what the appellant has
suffered.
It is no longer necessary to consider whether the infliction
of what is called mental shock may constitute an actionable
wrong. The crude view that the law should take cognizance
only of physical injury resulting from actual impact has been
discarded, and it is now well recognized that an action will lie
for injury by shock sustained through the medium of the eye
or the ear without direct contact. The distinction between
mental shock and bodily injury was never a scientific one, for
mental shock is presumably in all cases the result of, or at
least accompanied by, some physical disturbance in the
sufferer's system. And a mental shock may have con­
sequences more serious than those resulting from physical
impact. But in the case of mental shock there are elements
of greater subtlety than in the case of an ordinary physical
injury and these elements may give rise to debate as to the
precise scope of legal liability.
Your Lordships have here to deal with a common law
action founded on negligence. The appellant’s plea is that
(1 )
[19*5] * K. B.
141.
103
I I . L. (S c .)
1942
H ay ok
D o u k k il l
v.
Y
oung.
Lord Hi i s k U
o( Ktllqweu.
HOUSE OF LORDS
104
h
l
W 43]
(S c ) she has " sustained loss, injury and damage through the fault
’
"of the said John Y o u n g ” and that she is " en titled to
"reparation therefor out of his estate.” She can recover
Uour.uul damages only if she can show that in relation to her the late
V>
Tolin Young acted negligently. To establish this she must
YouNG show that he owed her a duty of care which he failed to observe.
Lord MiHiuiiun. an(j t^at, as a result of this failure in duty on his part, she
suffered is she did. As was said by Lord Kinnear: " A man
"cannot be charged with negligence if he has no obligation to
"exercise diligence” : K em p & Dougall v. Darngavil Coal
Co L d (i) quoted by Lord Thankerton in Donoghue v.
Stevenson (2). In dealing with a case of alleged negligence
it is thus necessary to ascertain, first, what in the circumstances
was the duty of the person alleged to be in fault, and, second,
to whom that duty was owed.
The late John Young was riding a motor bicycle in an
Edinburgh street. W hat duty then was incumbent on him ?
It cannot be better or more succinctly put than it was by
Lord Jamieson in the Second Division in the present case (3),
when he said that “ 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.” Proper care connotes avoidance of
excessive speed, keeping a good look-out, observing traffic
rules and signals and so on. Then, to whom is the duty owed ?
Again I quote and accept Lord Jamieson’s words:
'lo
" persons so placed that they may reasonably be expected to
"be injured by the omission to take such care.
l l i e duty to
take care is the duty to avoid doing or omitting 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.
There is no absolute standard of what is reasonable and
probable. It must ciepend on circumstances and must always
be a question of degree. In the present instance the late
John Young was clearly negligent in a question with the
occupants of the motor-car with which his cycle collided.
He was driving at an excessive speed in a public thoroughfare
and he ought to have foreseen that he might consequently
collide with any vehicle which he might meet in his course,
for such an occurrence may reasonably and probably be
(0 1909 S. C. 1314. *319.
(2) [1932] A. C. 562, 602.
(3) *?4 * s - c - 395. 4 *9 .
A. 0.
COUNCIL.
105
expected to ensue from driving at a high speed in a street. H. L. (Sc.)
But can it be said that he ought further to have foreseen that
•94*
his excessive speed, involving the possibility of collision with
H ay or
another vehicle, might cause injury by shock to the appellant ? liOUHMlLI.
The appellant was not within his line of vision, for she was on
Y oung.
the other side of a tramcar which was standing between him
and her when he passed and it was not until he had proceeded />rd Macmillan,
some distance beyond her that he collided with the motor-car.
The appellant did not see the accident and she expressly
admits that her " terror did not involve any element of
“ reasonable fear of immediate bodily injury to herself.”
She was not so placed that there was any reasonable likelihood
of her being affected by the cyclist’s careless driving. In
these circumstances I am of opinion with the majority of
the learned judges of the Second Division that the late John
Young wa* 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.
He was, therefore, not guilty of negligence in a question with
the appellant.
That is sufficient for the disposal of the case and absolves
me from considering the question whether injury through
mental shock is actionable, only when, in the words of
Kennedy J., the shock arises from a reasonable fear of
immediate personal injury to oneself (Dulieu v. While <5Sons (1)), which was admittedly not the case in the present
instance. It also absolves me from considering whether, if
the late John Young neglected any duty which he owed to
the appellant— which, in my opinion, he did not— the injury
of which she complains was too remote to entitle her to
damages. I shall observe only that the view expressed by
Kennedy J. has in Scotland the support of a substantial body
of authority, although it was not accepted by the Court of
Appeal in England in Hambrook v. Stokes Brothers (2), not­
withstanding a powerful dissent by Sargant L.J. This House
has not yet been called upon to pronounce on the question
either as a matter of Scots law or as a matter of English
law, and I reserve iny opinion on it. The decision in Owens v.
Liverpool Corporation (3), if it is the logical consequence of Ila m ­
brook’s case (2), shows how far-reaching is the principle involved.
(1) [1901] 2 K. B . 669, 682.
(2) [ 1 9 2 5 ] * K . B . 141.
(3) [1939] 1 K. B . 394.
HOUSE OF L O R D S ^
106
[1943]
On the second point it was argued that once an act is
properly characterized as negligent, that is to say, as a breach
H ay' or
a
care owed
a Particular person, then the party
jtouRiiiLL at fault is liable to that person for everything that directly
V.
follows from the negligent act whether or not it could have been
Young.
foreseen as a natural and probable result of the negligent act.
I.oh I MacxuilUo.
For this In re Polentis and Furness, Withy & Co., Ld. (i) was
cited. Whether the law there laid down is consonant with
the law of England it will be for this House to pronounce
when the occasion arises. As at present advised, I doubt if
it is the law of Scotland, and I could cite ample authority to
the contrary, but, again, this is not a point which I deem it
: u \\ x-vuy
.v.fcuss v.:.\v. 1 aiu. •iccc;dL:vdy, tor a& m uag
the decision of the Second Division of the Court of Session and
dismissing the appeal.
H. L. (Sc.)
19^2
L o r d W r ig h t . My Lords, that damage by mental shock
may give a cause of action is now well established and is not
disputed in this case, but as Phillimore J. pointed out in his
admirable judgment in Dulieu v. White & Sons (2), the real
difficulty in questions of this kind is to decide whether there
has been a wrongful act or breach of duty on the part of the
defendant vis-i-vis the plaintiff. That being the prior
question, if it is answered against the plaintiff the matter is
concluded. I shall, therefore, consider that issue in the first
place.
The appellant, according to the finding of the Lord
Ordinary, suffered substantial damage, and suffered it owing
to the conduct of the cyclist, but the infliction of damage on
a plaintiff does not in itself give a cause of action. Damage
due to the legitimate exercise of a right is not actionable, even
if the actor contemplates the damage. It is damnum absque
injuria. The damage must be attributable to the breach by
the defendant of some duty owing to the plaintiff. Where
there is no immediate physical action by the defendant on
the plaintiff, but the action operates at a distance, or is not
direct, or is what is called nervous sh o c k , difficulties arise in
ascertaining if there has been a breach of duty. Some cases
are comparatively simple. Thus, in Smith v. London and
South Western R y. Co. (3), Blackburn J. makes some
observations, obvious enough but not to be forgotten : “ If
(1) [1921] 3 K. B. 560(2) [1901] 2 1C. B. 669, 685.
(3 ) (i8 7 °) l - r - 6 c - p - M. 22.
PRIVY COUNCIL.
107
“ the negligence were once established, it would be no answer
H. U (Sc.)
that it did much more damage than was expected. If a man
1942
.. :!re* a gun across a road where he may reasonably anticipate
that persons will be passing, and hits someone, he is guilty H a y o r
Ho u h iu u .
v.
.. °f ncK*1Kence. and liable for the injury he lias c a u s e d ; but
Y oung.
..
. . fires ,n his own wood, where he cannot reasonably
^ anticipate that anyone will be, he is not liable to anyone Lord Wright.
^whom he shoots, which shows that what a person m ay
reasonably anticipate is important in considering whether
• h“ lias„been negligent." Much to the same effect Scrutton L T
m the Polemis case (1) said : “ To determine whether an act
is negligent, it is relevant to determine whether any reason..■“ V;
wcvild r-rcSoc tha; the act would cause damage *
y f he would not, the act is not negligent . . . . Once the
act is negligent, the fact that its exact operation was not
foreseen is immaterial." These simple propositions are as
much a part of the law of Scotland as of England. It would
be, I repeat, a grievous defect if in a branch of law, of modem
development like that of negligence, and one affecting the
ordinary life of the people, there were a divergence in principle
between the two laws, but, having regard to the views on this
point expressed by Lord Mackay and Lord Jamieson, I take
it that they accept the test. Lord Jamieson (2) quotes the
well-known aphorism of Lord Atkin in Donoghue v. Stevenson ft)
a .co ttish case: “ You must take reasonable care to avoid
acts or omissions which you can reasonably foresee would
be likely to injure your neighbour." And "neighbour"
means " persons so closely and directly affected by m y act
that I ought reasonably to have them in contemplation as
^ being so alfected when I am directing m y mind to the acts
or omissions which are called in question." I do not read
Lord Atkin’s language in a similar context in Hambrook v
Stokes Brothers (4) as going beyond what he said in Donoghue v
Stevenson (3).
This genera! concept of reasonable foresight as the criterion
of negligence or breach of duty (strict or otherwise) may be
criticized as too vague, but negligence is a fluid principle,
which has to be applied to the most diverse conditions and
f t ' . 'Un™n llfe- 11 is a concrete, not an abstract, idea.
It has to be fitted to the facts of the particular case. Willcs I.
defined it as absence of care according to the circumstances:
!,9 2 ,ls. c. 395,429.
(*) [,1941
3 rK
' B
' 5 6 0 , 5 7 7 ‘
(4) [I9I5], K B
■ (3) f ,9 ,2 ] A ' C 56z> 5 8 o.
Ii6
HOUSE OF LORDS
H. L. (Sc.)
1941
H ay or
Ho u r m i x
i>.
Y
oung
.
Lmil Wriylii.
O
[1948]
Vaughan v. Taff Vale R y. Co. (1 ).
It is also always
relative to the individual affected. This raises a serious
additional difficulty in the cases where it has to be determined,
not merely whether the act itself is negligent against someone,
but whether it is negligent v is-i-vis the plaintiff. T h i s i s a
crucial point 111 cases of nervous shock. llius, in the prescn
case John Young was certainly negligent in an issue between
himself and the owner of the. car which he ran into but it is
another question whether he was negligent vis-i-v is the
appellant. In such cases terms like
derivative
and
••original" and " p rim a ry " and "secondary
have been
applied to define and distinguish the type of the negligence.
If however, the appellant lias a cause of action it is because
uf a wrong to herself. She cannot build on a wrong to someone
else
lle r interest, which was 111 her own bodily security,
was of a different order from the interest of the owner of the
car That this is so is also illustrated by cases such as have
been called in the United States " rescue
or
search
cases. This type has been recently examined and explained
in the Court of Appeal in Haynes v. Harwood (2 ), where the
plaintiff, a police constable, was injured in stopping runaway
horses in a crowded street in which were many children.
His act was due to his mental reaction, whether instinctive
or deliberate, to the spectacle of others' peril. Maugham L J .
in the Court of Appeal approved the language used by the
judge, Finlay J. 3). when he held that to leave the horses
unattended was a breach of duty not only to any person
injured by being run over (in fact, no one was so injured)
but also to the constable. Finlay J. s words were .
It
•‘ seems to me that if horses run away it must be quite obviously
"contemplated that people are likely to be knocked down
" It must also, I think, be contemplated that persons will
"attem pt to stop the horses and try to prevent injury to life
- o r limb." I may also refer to the admirable judgment of
Cardozo J. in the New York Court of Appeals in^ a g n e r v
I n t e r n a t i o n a l Ry. Co. (4). a " search
case which is to the
same effect. This again shows how the ambit of the persons
affected by negligence or misconduct may extend beyond
persons who are actually subject to physical im p a ct
Ih cn j
may indeed be no one injured in a particular case by actual
impact, but still a wrong may be committed to anyone who
( ,) (i8 6 0 ) 5 H . & N . 67 9 .
(2)
688 .
[1935] « K . B . 1 4 6 . 16 3 .
(3) [ 1934] * K . B y T
U ) O ^ 21)
23* N .
247.
Y . 176.
A . C.
i
'' PRIVY COUNCIL.
suffers nervous shock or is injured in an act of rescue. The H. I.. (Sc.)
man who negligently allows a horse to bolt, or a car to run at
large down a steep street, or a savage beast to escape is com- hay'or
m itting a breach of duty towards every person who comes within nouHiiiLt.
the range of foreseeable danger, whether by impact or shock, Y o u n o
----but, if there is 110 negligence or other default, there can be
no liability for either direct impact or for nervous shock. Lori<Wnel"Thus, if, owing to a latent defect or some mischance for which
no one is liable, a terrifying collision occurs between vehicles
on the road, and the occupants are killed or suffer horrible
injuries, a bystander who suffers shock, whether through
personal fear or merely horror, would have no action. On
somewhat similar principles may be solved the problem of
the old lady at Charing Cross, who suffers shock because she
narrowly escapes being run over. She cannot claim damages
if the driver is driving carefully, whether he hits her or not.
The present case, like many others of this type, may,
however, raise the different question whether the appellant’s
illness was not due to her peculiar susceptibility. She was
eight months gone in pregnancy. Can it be said, apart from
everything else, that it was likely that a person of normal
nervous strength would have been affected in the circum­
stances by illness as the appellant was ? Docs the criterion
of reasonable foresight extend beyond people of ordinary
health or susceptibility, or does it take into account the
peculiar susceptibilities or infirmities of those affected which
the defendant neither knew of nor could reasonably be taken
to have foreseen ? Must the manner of conduct adapt itself
to such special individual peculiarities ? If extreme cases are
taken, the answer appears to be fairly clear, unless, indeed,
there is knowledge of the extraordinary risk. One who suffers
from the terrible tendency to bleed on slight contact, which is
denoted by the term " a bleeder," cannot complain if he mixes
with the crowd and suffers severely, perhaps fatally, from
being merely brushed against. There is no wrong done there.
A blind or deaf man who crosses the traffic 011 a busy street
cannot complain if he is run over by a careful driver who
does not know of and could not be expected to observe and
guard against the man's infirmity. These questions go to
•’culpability, not compensation ” : as Bankes L.J. said in the
Polemis case ( 1 ). No doubt, it has long ago been stated and
often restated that if the wrong is established the wrongdoer
(1 ) [1 9 2 1 ] 3 K. B.
560, 571.
HOUSE OF L0RD3
110
H . L . (S c .)
I'MIk v
OR
H o u k iiill
p.
Y
oung
.
Lord W iight.
<W [1943]
must take the victim as he fmds him. That, however, is only
true as the Polemis case (i) shows, on the condition that the
wrong has been established or admitted. The question
of liability is anterior to the question of the measure of the
consequences which go with the liability. T h a t was the
second point, decided not for the first time but merely
reiterated in the Polemis case (i). It must be understood to be
limited, however, to " direct ” consequences to the particular
interest of the plaintiff which is affected. Ltesbosch (Owners)
v. Edison (Owners) (2) illustrates this limitation.
What is now being considered is the question of liability,
and this, I think, in a question whether there is duty owing to
members of the public who come within the ambit of the act,
must generally depend on a normal standard of susceptibility.
This, it may be said, is somewhat vague. That is true, but
definition involves limitation which it is desirable to avoid
further than is necessary in a principle of law like negligence
which is widely ranging and is still in the stage of development.
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. What danger of particular
infirmity that would include must depend on all the circum­
stances, but generally, I tliink, a reasonably normal condition,
if medical evidence is capable of defining it, would be the
standard. The test of the plaintiff's extraordinary suscepti­
bility if unknown to the defendant, would in effect make him
an insurer. The lawyer likes to draw fixed and definite lines
and is apt to ask where the thing is to stop. I should reply
it should stop where in the particular case the good sense of
the jury or of the judge decides. I should myself be disposed
as at present advised, to say that it should have stopped short
of judgment for the plaintiff in Owens v. Liverpool Corfioralion (3). The particular susceptibility there was to rny
mind beyond any range of normal expectancy or of reasonable
foresight. I cannot, however, forbear referring to a most
important case in the High Court of Australia, Chester v.
Waverley Corporation (4). where the court by a majority held
that no duty was made out. The dissenting judgment o
Evatt J. will demand the consideration of any judge who is
called on to consider these questions.
But when I apply the considerations which I have been
(1 ) r i o i i ] 3 K . B . 5 6 0 , 5 7 1 .
( 3 ) [ ! 939 l 1 K -
S I S
« ) „ , » > 4 . C. I . R ...
A- C.
J -
304 -
A. C.
PRIVY COUNCIL.
\
discussing to the present appeal, I come to the conclusion
that the judgment should be affirmed. The case is peculiar,
as, indeed, though to a varying extent, all these cases are apt
to be. There is no dispute about the facts. Upon these
facts, can it be said that a duty is made out, and breach of
that duty, so that the damage which is found is recoverable ?
I think not. The appellant was completely outside the range
of the collision. She merely heard a noise, which upset her,
without her having any definite idea at all. As she said :
"I just got into a pack of nerves and I did not know whether
“ I was going to get it or not.’’ She saw nothing of the actual
accident, or, indeed, any marks of blood until later. I cannot
accept that John Young could reasonably have foreseen, or,
more correctly, the reasonable hypothetical observer could
reasonably have foreseen, the likelihood that anyone placed as
the apptellant was, could be affected in the manner in which
she was. In m y opinion, John Young was guilty of no breach
of duty to the appellant, and was not in law responsible for
the hurt she sustained. I may add that the issue of duty or
no duty is, indeed, a question for the court, but it depends on
the view taken of the facts. In the present case, both courts
below have taken the view that the appellant has, on the
facts of the case, no redress, and I agree with their view.
This conclusion disposes of the present case and makes it
unnecessary to decide the difficult question which was the
subject of lengthy argument and elaborate citation of
authorities before your Lordships. I have carefully considered
all the authorities cited, and it may well be that some day
this House will have to examine the exact meaning and effect
of what Kennedy J. said in Dulieu v. While & Sons (1).
lie was, he said, inclined to think that there was at least one
limitation : " The shock, where it operates through the mind,
"must be a shock which arises from a reasonable fear of
"immediate personal injury to oneself." That statement, if
meant to lay down a rigid rule of law, has been overruled by
the Court of Appeal in Ilambrook v. Stokes Brothers (2), which
now lays down the English law unless it is set aside by tliis
House. As at present advised, I agree with that decision.
Kennedy J.'s dictum, if intended to lay down a rigid limitation,
is not, I think, in accordance with principle or with cases like
Wilkinson v. Downlon (3). It fmds no support in the judgment
(1 ) [ 1 9 0 1 ] 2 K . B . 6 6 9 , 6 7 5 .
(2 ) [ 1 9 2 5 ] 1 K . B . 1 4 1 .
(3 ) [ 1 8 9 7 ] * Q • B . 5 7 .
Ill
H . L . (S c .)
iq-I*
H
ay or
B o u k iiil l
v.
Y
oung.
Lord Wright.
HOUSE OF LORDS
IT2
H. I- (Sc.)
I'J4H ay or
IK illk lllL L
V.
Y oung.
I,o rd W n g h l.
™
■ 'W
t 1943J
of Phillimore J., who implicitly lays down a wider principle,
t
as I may sim e day have to t a i d e the ^
- J
House I prefer to express here no final opinion. If. indeed,
the Inner House, having to determine a case like Hambrook v.
Stokes Brothers (i), takes a different view, this House may have
t o X f d e between the conflicting views of the t w o ^
courts, because in a m odem and developing branch of law- ke
tl.at of negligence, the law adopted by the two court hould
if possible, be uniform. That, however, is a matter for the
future
Kennedy J / s dictum does indeed give a rough
criterion which may be useful in some cases, but, always
assuming that the wrongful act is established, the da . t
to be proved is physical injury due to nervous shock. Modern
medical science may, perhaps, show ^
th?
is not necessarily associated with any particular mental ideas
The worst nervous shock may for the moment at least p a r a d e
the mind, but I do not pursue these questionings on thi.
occasion. 1 concur in the motion proposed.
L oud P orter (read by L ord W right ). My Lords, this
c-ise raises a question which has been much canvassed during
tiie period beginning with Victorian Rys. Commissioners; v
Coutlas (2) and ending with Haynes v. Harwood (3). The
problem to be determined is whether the driver of a vehicle
who through his negligence causes physical injury to one person
is responsible for any, and (if so) what, consequent emotiona
injury to another, at any rate if that emotion results in physical
illness or perhaps, it may be put more generally b y asking
to whom and for what effects of his negligence a tortfeasor is
“
considering the question it is I think essential to bear
in mind the distinction drawn in In re Polemis and Furness
Withy & Co., Ld. (4). a distinction wluch is perhaps bes
expressed in ihe words of Cliannell B ., taken from Smith^
London and South Western Ry. Co. (5). which are quoted
i»/ • ntnn T T
• " Where there is no direct evidence
^ ^ r ^ t s t ^ h a , a reasonable man might
■•foresee is of importance in considering the quest,on wheth<*
••there is evidence (or the jury ol negligence or not . . . . but
"when it has been once determined that there ,s ev d en ce o(
, K . B. M . .
M [.9 * .]3 K .n .5 6 0 ;
A . C.
PRIVY COUNCIL.
113
" negligence, the person guilty of it is equally liable for its H.L. (Sc.)
“ consequences, whether he could have foreseen them or not.”
,942
For the present I think it immaterial to consider whether the H- r
second proposition is accurate or not. Before any decision on B o u r h i l l
quantum of damage is required it lias first to be determined „ *'•
whether the cyclist was guilty of any negligence towards the
____ "
appellant. “ The law takes no cognizance of carelessness in L°fdPotUr’
“ the abstract. It concerns itself with carelessness only where
"there is a duty to take care and where failure in that duty
"has caused damage *': per Lord Macmillan in Donoghue v.
Stevenson (1 ). It is not enough to say that the cyclist was
guilty of negligence towards some one. Admittedly he was,
and I will assume without deciding that for all damages!
whether expected or unexpected, to that person he was liable!
But was he, therefore, liable for all damages of whatsoever
nature < 0 all other persons affected by his negligence whether
lie could reasonably foresee that he would injure them or not ?
l*or the present purpose I am also prepared to assume
without deciding that all types of injury are included, physical,
mental and emotional, and that once a defender is shown to be
negligent towards a pursuer lie is liable for all such conse­
quences. Does it follow from this assumption that the
defender is guilty of negligence towards all persons on the
highway because conceivably they might in other circumstances
have suffered physical damage, and, among others, towards
those who were never in personal danger themselves or in fear
for their children or even for third persons, but were merely
emotionally disturbed because some person was in fact injured
and because they heard the crash or saw the result of the
accident ?
I 11 Dulieu v. While & Sons (2 ), Kennedy J. thought that
only those in reasonable fear for their own safety could recover,
not, I think, becauso he thought the damage was too remote
but because he thought that unless there was such fear no
legal duty was involved. As he said (3) : “ A has, I conceive,
110 legal duty not to shock B's nerves by the exhibition of
"negligence towards C or towards the property of B or
C . . . . In Smith v. Johnson & Co. (4) a man was killed
^ by the defendants' negligence in the sight of the plaintiff,
"and the. plaintiff became ill, not from the shock produced
by fear of harm to himself, but from the shock of seeing another
(1) fi9 3 *] A. C. 562. 6x8.
(1) [ 1 90 1 ] a K. B. 669.
A. C.
1 9 -1 3 .
(3) [ i 9o i ] 2 K. B. 669, 675.
(4) ( ,8 97) U nrep.
,
r
HOUSE OF LORDS W
U4
H . L . (S c .)
194*
H ay o r
B o u r h ill
v.
Y oung.
L o rd P orter.
[1 9 4 S ]
■•person killed. The court held that this harm w asM oo
“ remote a consequence of the negligence. I should myself,
“ as I have already indicated, have been inclined to go a step
"further, and to hold upon the facts in Smith ^ J oh»son f
.
“ Co (I) that as the defendant neither intended to affect the
“ plaintiff injuriously nor did anything which could reasonably
“ or naturally be expected to affect him i n j u r i o u s l y there was
“ no evidence of any breach of legal duty towards the plaintiff
“ or in regard to him of that absence of care according to the
“ circumstances which Willes J. in Vaughan v T off Vale R y.
"Co (2) gave as a definition of negligence.
So Plnlhmore J.
intUe same case a t e suggesting (J>: " It may be ( do no
“ say that it is so) that a person venturing into the streets
“ takes his chance of terrors. If not fit for the streets at
“ hours of crowded traffic, lie or she should not go there, said
t . \ • “ The difficulty in these cases is to my mind not one as
“ to the remoteness of the damage, but as to the uncertainty
“ of there being any duty.” It is true that he: does also
envisage the possibility of liability for mental shock apart
from fear of personal injury in the remark (5) .
“ there may be cases in which A owes a duty to B not to
“ inflict a mental shock on him or her, and that m such a case.
■ • " a d « s inflict such a shock upon B , . .
.... r, u v ensUes B may have an action for the physical
"damage though the medium through which it has been
" inflicted is the mind.” But his previous remarks show that
he would not necessarily include mental shock due to the
sieht of an accident in the streets.
In Hambrook v. Stokes Brothers (6), in which the Plaintifi
succeeded negligence was admitted, and as Lord Atkin, the
Atkin L J , pointed out, such an admission can only m e a n a n
admission ol negligence toward, the p la in ti.f.b u t,r o n e of,the
lords justices who heard the case confined themselves to
considerations founded on this fact. Bankes L.J. expr^
himself thus (7) : "What a man ought to have anticipated
"is material when considering the extent of his duty. Upon
"the authorities, as they stand, the defendant ought to have
•■antici“ .ed tlmt. if his lorry ran away down t h » narrow
"street, it might terrify some woman to such an extent.
A . C.
rtND PRIVY COUNCIL.
through fear of some immediate bodily injuiy to herself
that she would receive such a mental shock as would injure
her health," and lie then goes on to assert that in his view
no distinction can be drawn between the fear of a mother for
her own safety and her fear for her children. He was careful
to limit the scope of his decision to the facts of the case then
under consideration and to confine his determination to cases
where the claimant was in fear for his or her own personal
safety or that of his or her children. Of Smith v. Johnson
©• Co. ( 1 ) he said ( 2 ) : " I t may well be that the duty of a
(person to take care does not extend to a person in the position
of the plaintiff m Smith v. Johnson & Co. (1 ) or to the person
^indicated as B in Kennedy J.'s illustration, and yet may
extend to a person in the position of the plaintiff’s w ife"
Atkm L.J. said (3) : "Apart from the admission in the
pleaSings I think that the cause of action is complete. The
duty of the owner of a motor-car in a highway is not a duty
to refrain from inflicting a particular kind of injury upon
.. I'10!°
the highway. If so. he would be an insurer.
.. -,b «
USC reasonablc care to avoid injuring those
using the highway. It is thus a duty owed to all wayfarers.
whether they are injured or not
Further, the breach
of duty does not take place necessarily when the vehicle
mstrikes or injures the wayfarer. The negligent act or
omission may precede the act of injury. In this case it was
completed at the top of Dover Street, when the car was left
unattended.
He continued (4) : "In my opinion it is not
necessary to treat this cause of action as based upon a duty
to take reasonable care to avoid administering a shock to
• C r ^ T i 1 * c:u‘se of action. as I have said, appears to
„
t tLd W brncach of the ordinary duty to take reasonable
care to avoid inflicting personal injuries followed by damage
even though the type of damage may be u ncxpectcd-nam cly'
shock. I he question appears to be as to the extent of the
duty and not as to remoteness of damage." Sargant L.J.
differed, and, like Kennedy J., would confine liability to cases
of reasonable fear for personal safety but only because in his
view the injury complained of could not reasonably have been
anticipated, and. therefore, the defendant had broken no duty
wluch he owed to the defendant. He said (5) : “ I should
(1) (1897) Unrep.
( 3) [ 1 9 0 1 ] 2 K . B . 6 8 4 .
(4) Ibid. 685.
(7) Ib id . 1 5 1 .
(2) [1 9 *5 ] I K. B. 141, 1 «o.
(3 ) Ibid. 156.
(4) Ibid. 158.
(5 ) Ibid. 162.
«5
H . L . (S c .)
194*
H ay ok
B o u r h il l
t>.
You N O .
L o rd P or tar.
A . 0.
HOUSE OF LORDS
H. L. (Sc.)
1942
H ay or
D o u r h il l
v.
Y
oung
.
Lord ForlM .
fe«q2KS?SSa
::i“f:s=i".'sr,in— .- th e r e s u lt, th e p la in tiff su c “ c ^ d o l d
tf f l W1S a ls o r e a c h e d b y
C„p„a,ion
A c o n c lu s io n ■
( l ) . in
the Court of Appeal 11
iv ran into a hearse
which the driver of a tram■
^
laintiffs and was
containing the body of a re
caused by the shock of
held liable to them m « J « t o f
^
acCepted
s e e i n g
the accidcnt 11
J^ ^
anticipated that the
the view that the d
b
cause emotional distress
result of his negligcnce might ,b ' *“ “ “ “ '^ t h e r e f o r e , was
,o spectators of .he consequent acc.den t , ' n aRec, ed b y
guilty of ncgligence t o w r * a n y ^ ^ y ^ ^
^
^
feelings induced b y
t
- U
^
,
^
Q, A
r r
r
the character now m q u e s U o n - ^ t
the earlier case all the
that the vital
^
^ justified
,d
of
tQ ^
out
J
o( the ciuty and not the
view in which they were supported
“opmions of
"
Si“ ask m y sd l
present case owed any duty to
the appellant.
In the case o f a civil action there is no
in the abstract. 1 here
towards a person towar ^
"
5
^
h tW as negligence
^ ^b ^
^ ^
defendant
owes the duty
CQntent tQ take the statement of
v.
J PRIVY COUNCIL.
^
(4), as m ^ c a t - g the
"7
extent of the duty. " You must take,” he said, " reasonable care H. L. (Sc.)
" to avoid acts or omissions which you can reasonably foresee
1942
" would be likely to injure your neighbour. Who, then, in law is
H ay 0*
" my neighbour ? The answer seems to be— persons who are B o u r i i i l i .
v.
“ so closely and directly affected by my act that I ought
Young.
“ reasonably to have them in contemplation as being so affected
“ when I am directing my mind to the acts or omissions which I«ord Porter.
"are called in question.” Is the result of this view that all
persons in or near the street down which the negligent driver
is progressing are potential victims of his negligence ? Though
from their position it is quite impossible that any injury
should happen to them and though they have no relatives or
even friends who might be endangered, is a duty of care to
them owed and broken because they might have been but
were not in a spot exposed to the errant driving of the peccant
car ? i l cannot think s o .. The duty is not to the world at
large. It must be tested by asking with reference to each
several com plainant: Was a duty owed to him or her ? If no
one of them was in such a position that direct physical injury
could reasonably be anticipated to them or their relations or
friends normally I think no duty would be owed, and if, in
addition, no shock was reasonably to be anticipated to them
as a result of the defender's negligence, the defender might,
indeed, be guilty of actionable negligence to others but not of
negligence towards them. In the present case the appellant
was never herself in any bodily danger nor reasonably in fear
of danger either for herself or others. She was merely a
person who, as a result of the action, was emotionally disturbed
and rendered physically ill by that emotional disturbance.
The question whether emotional disturbance or shock, which
a defender ought reasonably to have anticipated as likely to
follow from his reckless driving, can ever form the basis of a
claim is not in issue. It is not every emotional disturbance or
every shock which should have been foreseen. The driver of
a car or vehicle, even though careless, is entitled to assume
that the ordinary frequenter of the streets has sufficient
fortitude to endure such incidents as may from time to time
be expected to occur in them, including the noise of a collision
and the sight of injury to others, and is not to be considered
negligent towards one who does not possess the customary
phlegm.
In Humbrooh v. Stokes Brothers (i) the defendant's lorry
(i) [1925] * K. B. 1^1,
ii8
HOUSE OF LOKUS
\ ^ [ 1943]
H. L. (Sc.) was left unattended and improperly braked at the top of a
steep and narrow street with the engine running, with the
I9-J2
result that it started off by itself and ran violently down the
H ay or
hill, putting the plaintiff in fear for the safety of her children
B o u u h il l
v.
whom she had just left and thereby causing a serious illness
Young.
and ultimately her death. In such circumstances it might
Lord I'orUr.
well be held that the negligence complained of was a potential
danger to all those in the way, and that the careless driver
should have foreseen the likelihood of actual or apprehended
injury to anyone in the street down which the lorry might
run and the possibility of illness being produced in a mother
from fear that the nin-away car would injure her children.
The position of the respondent in the present case is more
favourable. The rider of the cycle had not left it to career at
its own will. He was always in control, and his negligence
was not to all those in the highway but only to anyone turning
or intending to turn in front of him into a side road. The
appellant was not such a person and the only allegation of
negligence which I can find in the condescendence is not
towards her but, as I understand it, towards traffic proceeding
across or at any rate down the road towards the cyclist. So
far as the appellant is concerned she complains of nothing
but the disturbance caused by an accident to the cyclist
himself and in her claim confines her allegation to a general
averment against him of negligence resulting in a collision
with a motor-car. She in no way connects that negligence
with herself except by the assertion that she sustained a very
severe shock to her nervous system and by an amendment
assented to in the Inner House expressly repudiates any fear
of personal injury. The Lord Ordinary, if I understand him
aright, was nevertheless prepared to treat the case on the basis
that the appellant had been put in fear of bodily injury to
herself. "A t the best for her,” he said (i), “ it can be said
"that the shock arose from a fear of immediate bodily injury
**to herself, but only from a fear which had no rational basis,
"or in other words, an unreasoned fear, and, as the whole
“ facts disclose, an unreasonable fear.” In your Lordships'
House the appellant's representatives preferred to rest their
case on the terms of the amended plea and confined their
arguments to considerations based on an averment that the
appellant was not put in fear of injury to herself or others
but was only emotionally disturbed and rendered physically
(i) iq,| i S. C. 3<i.s, -)of»
A. 0.
—
PRI VY COUNCIL.
II9
il by the crash and possibly by the sight of the injured man
H. L. (Sc.)
Hus limited contention was. no doubt, prudently adopted
•94*
since, although the Lord Ordinary had found that any fear of
H ay or
personal injury was unreasoned and unreasonable he had
B o u r h il l
made no similar finding as to fear engendered by the crash or
i».
Y oung.
sight. In order, however, to establish a duty towards herself
the appellant must still show that the cyclist should reasonably Lord Porter.
have foreseen emotional injury to her as a result of his nci/l.Wnt
driving, and, as I have indicated. I do not think she has done
If I am right in thinking that the appellant has established
no duty towards herself in the cyclist and no breach of any
duty, she must fail unless it can be said that there is some
principle in the law of Scotland, which is not to be found™
W?
UndCr Which she can recover- 1 should be
loth to think that there is any difference between the principles
adop ed m the two systems, nor can I find in the cases quoted
any decision or even dicta wliich would w an ant a decision in
favour of the appellant in the present instance. Taking the
cases ,n the order in which they were quoted the claim in
Cooper v Caledonian Ry. Co. (i) was based on an allegation
of fear of personal physical injury and even in that case the
allegation was only held to be relevant if it appeared that the
fright resulting from the negligent act might reasonably arise
in a mind of average intelligence and strength, i.e.. it must
not be unreasoned and unreasonable. Gilligan v. Robb (2)
contained an averment of negligence and fear of physical
injury. In Ross v. Glasgow Corporation (3). in which a L m c a r
was driven negligently on the wrong line but drawn up slowly
and carefully short of another car. it was held that S t
thereby caused was not naturally or probably caused by the
neghgent act and that the defenders had no duty to anticipate
such a consequence. Brown v. Glasgow Corporation U\
and Currie v. Wardrop (5), both led to considerable divergence
of opinion, and in each the conclusion that a cause of action
existed was reached by a majority of three against two Jn
the former there was an allegation of fear of personal injury
g Y th1CICourt that that ^‘ar was reasonable. In
down by a S *
t
®arM^ c.'walkinK toGether were knocked
down by a neghgent motor driver. The man was killed and
( 0 (*902) 4 F. 88o.
(2) 1910 S. C. 856.
(3 ) *919 S. C. 174.
(4) *922 S. C. 527.
(5) *927 S. C. 538.
HOUSE OF LORDS
[1943]
A. 0.
>D PRIVY COUNCIL.
1 21
120
H. L. (Sc.)
i942
H
a v "o r
UoURHILL
V.
Y
oung.
L ord Porter.
the woman suffered physically from consequent n em m s shock
partly due to the accident to herself and partly to fear for the
safety of her companion. Undoubted y. there: was; m^ that
case a duty to the pursuer (the woman) and a breach of that
duty, and the decision of the majority was due to that fact
coupled with the impossibility of d i s t i n g u . s h i n g b e t w e e n h e
physical injury due to each type of shock. A v . B's Trustees i)
fn which a lodger committed suicide ,n the lo d g in g _ he h i d
hired and both did some matenal damage and administered
a nervous shock to his landladies may be explained as founded
on contract or on the fact that the matenal damage might
have been anticipated. Finally, in Walker v. Pitlochry
Motor Co. (2), the pursuer was held entitled to recover in
respect of the physical consequences of shock occasione
y
the sight of injury caused to a near relative,, shock which
was held might reasonably have beer‘ anti« P ^ ed
of the ncclim-Mit act. To the same effect is the I n s t ) c a s e oi
Bell v. Great Northern R y. Co. of Ireland (3), in which illness
due to reasonable apprehension of personal i n j u r y d u e t o t h e
defendants’ negligence was held to give a cause of action^
These cases are. at any rate, no more fovourablc to ^
appellant’s contention than those decided in England. I n a ll
three countries, no doubt, shock occasioned by deliberate
action affords a valid ground of claim (see W dhinson v
Downton (4) and Janvier v. Sweeney (5)). and so, I think, doe
shock occasioned by reasonable apprehension of injury to
oneself
others, at a n y rate, if those others are closely con­
nected with the claimant. What is reasonable may give rise
to some difference of opinion, but whether iHness due to
shock which might reasonably have been anticipated as
t o o f injury to others can or cannot form the basis
of a successful claim need not now be considered. No
exceptionally loud notae or particularly
is alleged or any circumstance suggesting that the eye 1st
shoulcl have anticipated he would cause a shock to the
ground that there never was any duty owed by the
cyclist to the appellant or breach of such a duty, I should
dismiss the appeal. In so deciding. I believe I am following
fhe r e a s o n i n g L
conclusion of the Lord Ordinary as well as
^ O n 1t h e
(1) 13 Sc. L. T. 830.
(2 ) 1930 s - c - 56 5(3) 2 6 I.. R. Ir- 428-
(4 ) r«897l * Q; B- 57(5 ) [‘9*9] *
B 3l6>
those of the majority in the Inner House, with whose opinions H. L. (Sc.)
1 aKree*
,94,
A ppeal dismissed.
H — QR
B o u r iiill
Solicitors for a p p ella n t: Botterell & Roche, for Boyd,
Jameson <5- Young, W'.S.. Edinburgh.
Solicitors for respondent: Berrymans, for Dove, Lockhart &
Smart, S.S.C., Edinburgh.
Y6uno
■—
[HOUSE OF LORDS.]
D I G B Y ................................................................... A p p e l l a n t ;
h.
AND
> 9 4*
GENERAL ACCIDENT F IR E AND L IFE I „
ASSURANCE CORPORATION. LIMITED j KESP0NDENTSInsurance (Motor)— Third-party liability— Policy issued by respondents
to cover policyholder— Extension “ to indemnify in like manner any
“ person whilst driving
on the order or with the permission
11of the policyholder" — Extended cover “ subject to the terms,
“ exceptions and conditions of this policy in so far as they can apply "
— Collision — Damages recovered by policyholder against authorized
driver for petsonal injuries— Claim by authorized driver to be
indemnified under policy.
B y s. 2 (1.) of a policy of insurance the respondents agreed to
indemnify tlie policyholder against all sums which the policy­
holder should "become legally liable to pay in respect of any
“ claim by any person," including passengers in the motor-car
described in the schedule to the policy, for loss of life or accidental
bodily injury caused by, through, or in connexion with the
motor-car. By s. 2 (3.) of the policy: “ The insurance under
“ this section ’’ [third-party liability] “ shall also extend to
“ indemnify in like manner any person whilst driving . . . . on
“ the order or with the permission of the policyholder, provided
“ . . . . that such person shall, as though he were the policy“ holder, observe, fulfil and be subject to the terms, exceptions
“ and conditions of this policy in so far as they can apply." The
policyholder, while being driven in her motor-car by the
appellant, her chauffeur, was injured in a collision between it and
another vehicle, and she was awarded damages for negligence
against the appellant:—
Held (Viscount Simon L.C. and Viscount Maugham dissenting),
•Present:
Atkin,Lo r d W
V
S i m o n L.C., V i s c o u n t
and L o r d P o r t e r ,
iscount
right
L.
M
augham,
Lo rd
!I'
^ / 6.
M ay 25, 1951.]
L ’pool A s s iz e s ]
L L O Y D ’S . L I S T L A W . R E P O R T S .
Dooley v. Cam'mell Laird & Co., Ltd., and Another.
It comes back, in my view, in the end, to
the question: Is tie capital from which the
income in question is derived employed and
risked in.the business?
I f so, the result
contended by the Crown follows, for the
reasons which I have given. ’ In my view
both upon first principles and upon
authority, the answer to that question must
be in the affirmative, and for those reasons
I propose to allow the appeal, with costs.
The S o l ic it o r -G e n e r a l : Would your
Lordship be good enough to order it to be
remitted to the Commissioners, to find in
accordance with your ruling?
• Mr. Justice Wtnx-P arry : Yes.
271
[1951] V ol . l
LITERPOOL A SSIZ E S.
Thursday, Feb. 22, 1951.
DOOLEY v. C A M M E L L L A IR D & CO
LTD., AND M E R S E Y IN S U L A T IO N
CO M PA N Y , LTD.
Before M r. Ju stic e
D onovan.
N egligence—J oint tortfeasors—Breach of
Shipbuilding Regulations, 19S1, by
~ occupiers of yard—Common law negli­
gence of sub-contractors—Contribution
-— Remoteness of damage — Nervovs
shock-— Ship being fitted out in first
>
defendants’ shipbuilding yard—Insula, tion work on board being carried out by
■ • second defendants — Plaintiff crane
driver i n employ jof first defendants—
Crane and driver (plaintiff) loaned by
first defendants to second defendants—
Defect in sling supplied by second
defendants, resulting in slingload of
■; repairing materials being precipitated
into ship's hold i n which men were
working—No physical injuries in fact
caused to workmen by fall and no risk
of physical impact upon plaintiff—
Claim brought by plaintiff in respect of
nervous shock thereby sustained—
, Alleged failure by first defendants to
take "'Precautions against injury from
falling materials ” as required by Ship­
building Regulations — Regulations
re-enacted by Factories Act, 19ST—
Risk of bodily in ju ry to persons
employed "—D uty of second defendants
towards plaintiff—E xtent of duty of
care — Foreseeable danger — Bodily
injury to persons not actually within
risk of physical impact — Measure
of dama-ges — Third-party indemnity
proceedings brought by first defendants
against second defendants—Right of
first defendants to contribution—Ship­
building Regulations, 1SS1, Regulations
$ 3 , SC— Low Reform ( M arried Women
and Tortfeasors) Act, 1SS5, Sect. 6—
Factories Act, 1SS7, Sect. 60.
Held, that first defendants were
in breach of their statutory duty under
the Shipbuilding Regulations in that
they failed to comply with the
regulations requiring them to take
“ precautions against injury from
falling materials ” ; that second defen­
L L O Y D ’S L I S T L A W
272
[ 1951]
V o l.
1]
REPO RTS.
Dooley v. Cammell Laird & Co., Ltd., and Another.
' [M ay 25, 1951.
[L p o o l
A s siz e s
:rv
in permitting the use of a defective Bling ,
in their shipvard and/or in permitting the ' - •
sling to be overloaded. 'Cammell Laird
k Co. then brought third-party proceedings
against the Mersey Insulation Company, •rV£-;
claiming that if they (Cammell Laird) were
liable, they were entitled to indemnity by "
the Mersey Insulation Company; and " -£ /■
subsequently the MeTsey Insulation Com- ,-^Aspany were joined as defendants in the
plaintiff's action.
•
-Held, farther, in the thirdpa rty proceedings, that first and second
The plaintiff's case was that on Jan. 3, *y-defendants were joint tortfeasors and
1948, certain materials (including timber
that first defendants
would
be
and drums of paint and bags of bolts and
indemnified by second defendants in
the like) were being lowered into No. 2 hold .
v
respect of three-quarters of plaintiff’s
of the Ceramic in a sling attached to the,
claim and three-quarters of the costs.
fall of a crane. The crane was being
v..
driven by the plaintiff in the course of his
.
The following cases were referred to :— * employment and he well knew that fellow
workmen of his were working below.
Dulieu v. White & Sons, [1901] 2 K.B. 669;
During such lowering the sling carried
Hambrook v. Stokes Brothers, [1925] 1 K.B.
away and the materials fell out of sight of
141;
the plaintiff and dislodged certain scaffold­
Harvey v. Royal Mail Lines, Ltd., and
ing, a/nd with the scaffolding crashed into
Great Western Railway Company, (1941)
the’hold below. As a result, the plaintiff ,
82 Ll.L.Rep. 77Sn.;
was suddenly put into a state of apprehenHay (or Bourhill) v. Young, [1943] A.C. 92;
sion and acute anxiety, and thereby
Kininmonth v. William France, Fenwick & suffered severe nervous shock.
.
Co., Ltd., and Railway Executive, (1949)
Plaintiff
alleged
that
the
sole
cause
of
the
82 Ll.L.Rep. 768;
occurrence was the breach of statutory duty
Owens v. Liverpool Corporation, [1939]
and/or negligence of the first defendants ^
_
■1 K.B. 394.
and/or the negligence of the second defendants, thejx servants or agents.
This was an action for damages for
As regards the first defendants, plaintiff
personal injuries brought by Mr. Samuel
alleged that they were in breach of their
Doolev. a crane driver, against his
duty under the Shipbuilding Regulations, (
employers, Messrs. Cammell Laird & Co.,
1931, in that, (a) contrary to Regulation 33,
Ltd. (first defendants) and against the
no adequate precautions were taken as
Mersey Insulation Company, Ltd. (second
therein required when the materials were
defendants). In January, 1948, the steam­
being lowered, and the sling was caused or
ship Ceramic was being fitted out at
permitted to be overloaded and/or to be
Cammell Laird’s shipbuilding yard at
used for a load beyond its strength;
Birkenhead, and at the request of the
(b) contrary to Regulation 36, the rope of
Mersey Insulation Company, who were
the sling was not of suitable quality and/or
engage«d in certain work on the ship,
was not free from patent defect, and was
Cammell Lairt} loaned one of their travel­
insufficiently strong for the load and/or
ling cranes to the Mersey Insulation
was old and/or perished and/or worn.
Company for the purpose of lowering
Plaintiff also alleged that the first defen­
certain insulating materials into No. 2
dants were negligent in failing to take
hold o f the ship, the plaintiff being
sufficient or any steps to provide a safe
ia charge of the crane. In the course of
system and/or safe equipment for the
lowering a sling-load of materials, the rope
lowering, in that they caused or per­
broke and the contents fell into the hold.
mitted the sfing to be overloaded and/or
No one was injured as a result, but plain­
to be used for a load beyond its
tiff alleged that he suffered a severe nervous
strength
and/or
provided
for
the
shock thereby, and he claimed damages
against his employers, Cammell Laird & lowering a sling which was old and/or
perished and/or worn and/or failed to
Co., alleging that they were negligent
inspect the sling before use adequately or
and/or in breach of their statutory duty
at all and/or caused or permitted the
under the Shipbuilding Regulations, 1931,
dants were under a duty of care towards
plaintiff, who was within the range oj
foreseeable danger of physical impact
or shock, and that they were in breach
of that du ty in supplying a defective
sling; and that accordingly plaintiff
was entitled to damages against both
defendants in respect of the nervous
shock proved to have been sustained.
M ay 25, 1951.]
SEIZES
(
L aird
pany,
>were
'&&1' ?
L ’pool A s s i z e s ]
L L O Y D S L IST LA W R E PO R T S.
Dooley v. Cammell Laird & Co., Ltd., and Another.
plain tiff to be concerned as crane driver in
the low ering o f such & load by such a sling.
As regards the second defendants, the
p lain tiff alleged th at the slin g was their
p roperty and the m a te ria ls were being
lowered for their purposes, and they
a n d /o r their servants or agents were n eg li­
gent in and about the lo w erin g in that they
caused or perm itted the s lin g to be over­
loaded a n d /o r p u t the same to use without
adequate or any in sp ectio n a n d /o r when
the same w as old a n d /o r perished a n d /o r
worn a n d /o r used the sam e for a load
beyond its strength . a n d /o r caused the
plain tiff as crane driver to be concerned
in the low ering o f such a slin g.
The first d efendants denied negligence
a n d /o r breach o f sta tu to r y duty.
They
said that the slin g was n o t their'property,
nor were the m ateria ls being lowered for
any purpose o f theirs, nor were they carry­
ing on . any process set o u t in* either
R egulation 33 or R eg u la tio n 36, nor did
either o f such R e g u la tio n s in ure for the
benefit of the plaintiff.
Wt
d o A
o
These defendants
further said th a t i f the p la in tiff sustained
the alleged or any in ju ries or suffered the
alleged or any dam age, such in ju ries or
damages were not the resu lt either proximately or a t all o f the alleged or any breach
o f statu tory d u ty or n egligen ce on their
p art and were too remote. A lternatively,
these defendants sa id th a t i f such in ju ries
damages were not too remote, then such
in ju ries.an d dam age were solely caused by
the negligence o f the second defendants.
The second d efen d a n ts also denied n eg li­
gence. A lternatively,, they sa id that if the
p lain tiff su stained in ju ries or suffered loss
or damage as alleged, they owed no duty
to the p la in tif f in respect o f the slin g
a n d /o r in respect o f the alleged occurrence,
in th a t they or their servants or agents
could not reasonably have foreseen the
likelihood th a t the p la in tiff, placed as he
was in the 'cab o f the crane high above
the quayside, could be affected or injured as
was alleged by the c a r ry in g aw ay o f the
slin g a n d /o r fa ll o f the m aterials or
scaffolding. They furth er contended that
such in ju ries were not eith er p roxim ately
or at all the result o f the alleged or any
negligence on their p a rt and were too
remote.
'
273
•: [1951] V ol . l
J. A. Behn, Tw yford & Reece, o f Liverpool)
appeared for the p la in tiff; Mr. H . I.
Nelson, K .C ., and Mr. R. H . Forrest ( in ­
structed by Messrs. Laces & Co., o f L iv er­
pool) represented the first- d e fe n d a n ts; Mr.
S. Scholefield Allen, K .C ., and Mr. J. S.
Watson (instructed by Messrs. A. W.
Mawer <fc Co., o f L iverpool) represented
the second defendants.
JU DGM ENT.
DONOVAN:
■
The plaintiff,
who is 66 years old, w as a t the time of the’
accident a crane driver employed by
Messrs. Cammell L aird <fc Co. a t their
works at Birkenhead.
Cammell Laird, as
I w ill hereafter refer to them, are the w’ellknown shipbuilders and are the first
defendants in th is case.
The second
defendants, the Mersey In su la tion Com­
pany, L td ., whom I w ill call Mersey
Insulation, carry on business which con­
sists ( in te r alia) o f in su la tin g sh ip ’s holds.
On Jan. 3, 194S, the steamship Ceramic,
h aving been launched, w as fitting out in
Cammell L a ir d ’s sh ip b u ild in g yard at
Birkenhead, and Mersey In su la tio n on this
day and in the course o f their business
wanted
to
lower
certain
in su la tin g
m aterials in to N o. 2 hold o f the s h ip .. I t
was necessary to hoist m aterial from the
quay and deposit it in the sh ip ’s hold, and
for this purpose a crane was required.
Withr- the consent o f Cammell Laird.
Mersey In su la tio n used one o f Cammell
Laird s tra v e llin g cranes for the purpose.
The container in to w hich the m aterials
were loaded belonged, however, to Mersey
Insulation.
I t consisted o f w hat is called
a canvas and a m a n ila rope sling. The
canvas is a container w ith rope all round
its edges and a loop a t each end, of which
there are presum ably four.
To li f t the
canvas, a piece o f rope called a snotter is
p u t through the loops aforesaid and then
attached to the hook o f the crane.
When
the crane begins to operate the load is thus
lifted and transported as required.
Hr.
Justice
The further facts a n d argum ents are
sufficiently set ou t in h is L ordship’s
judgment.
An employee o f Mersey In su la tio n loaded
the canvas slin g w ith its first load under
the direction o f one P aw ley, a foreman
labourer em ployed by Mersev Insulation.
According to Paw ley, the foad weighed
32 cwt. The crane driver w as the plaintiff.
Presently P a w ley gave the p la in tiff the
signal to hoist, and w hat happened next
was thus described by the plaintiff.
He
sa id :
S ir N oel B. G oldie, K .C ., and Mr.
Glyn B u rrell (instructed by Messrs.
I hoisted the load h igh enough to clear
the ship, and I w ent over the ship u n til
J.
274
[1951] V ol . 1]
L L O Y D ’S L I S T L A W R E P O R T S . '
Dooley v. Cammell Laird & Co., Ltd., and Another.
the load was over N o. 2 hold.
I knew
there were people w o rk in g in the hold. I
could not see the hatch o f the hold and
therefore waited for & sig n a l to lower.
N o one was on the deck to give me the
signal, so I continued to w a it for instruc­
tions. While w a itin g I w as looking near
the load, and I saw the snotter w as weak
and apparently g o in g to break; so I
started to come off the ship and over the
water between the sh ip ’s side and the
quay, so that if the load broke aw ay it
w o u li fall into the w a te r ; but before I
could do this the snotter broke and the
load fell into the hold.
I could not tell
if the load struck a n y th in g , but I heard
a thud.
I felt wretched, and I decided
to stay on the crane in case I was wanted
to hoist any in ju red men.
Then I saw
P aw ley wave me aw ay, and tellin g me to
move my crane. There were two broken
b its of snotter still attached to the hook
of the crane.
I lowered them to the
quay.
Brennan came along, he was the
assistant foreman of Cammell Laird, and
he threw the broken rope in to the basin.
E ventually I came down the steps o f the
crane and on to the quay.
The plaintiff now alleges that he was
injured by this occurrence.
The injuries
he says he suffered were an attack of
sciatica and nervdus shock. These, he said,
have permanently in ca p a cita ted him from
further employment as a crane driver, and
he claims damages a g a in st both defendants.
Such a claim m ight, at first sigfit, appear
extrav a g a n t; but the m edical evidence
leaves me in no d ou b t t h a t the plain tiff did
suSer a nervous shock as a result of his
aforesaid m ishap, and the consequences
have been serious.
I w ill say something
about the sciatica later on.
A gain st Cammell L aird , who len t their
crane to Mersey In su la tio n , the p la in tiS
bases his claim on alleged breaches of the
S h ip bu ild in g R eg u la tio n s, 1931 ([1931]
S.R. cc 0 . No. 133).
A g a in st M e rse y
In sulation he alleges negligen ce at common
law.
I deal first w ith the a llega tio n aga in st
Cammell Laird.
I t is adm itted th a t the
place where the accident occurred is a sh ip ­
b u ild in g yard, and th a t Cammell Laird are
the “ occupiers ” thereof w ith in the m ean­
in g of the S h ip b u ild in g R egulations.
U nder the h eading “ D u tie s ” the R eg u la ­
tio n s provide th a t it shall be the duty of the
occupier to comply w ith P a r ts I to \ I I I of
the R egulations.
In P a r t IV , under the
h eading “ P recau tions a g a in st In ju ry from
[M a y 2 5 , 1951. \
[ L ’p o o l A s s iz e s
F a llin g M a teria ls,’’ R eg u lation 33 en a cts as
fo llo w s:
When any staging has to be d ism a n tled
and also in all cases where m a te r ia ls or
articles liave to be raised to o r lowered
from a height, adequate p recau tio n s shall
be taken to ensure the sa fe ty o f all
persons employed.
R egulation 36 (a) s a y s :
•' N o rope shall be used in h o is tin g or
lowering unless— (i) it is o f suitable
quality and free from p atent defect.
So that even if a rope be free from p atent
defect the regulation is not co m p lied with
unless the rope be also o f suitable q u a lity .
I t is alleged by the p lain tiff th a t Cammell
Laird on the occasion’ of this a ccid en t were
in breach of both these regulations, and on
the face o f it there would seem to be no
answer to this a lle g a tio n ; for the d u ty to
observe the reg u la tio n s in rela tio n to a
particular piece of plant, as, for exam ple,
i<crane, or a device such as the can vas hoist,
is not avoided because the crane is lent to
some bther person not the occupier of the
yard.
U nder R egu lation 33, therefore, Cammell
Laird were bound, where m a teria ls had to
be raised to or lowered from a heigh t, to
take adequate precautions to ensure the
safety of all persons em ployed. One such
precaution w ould obviously be to see that
all ropes which take the strain o f the load,
when hoisted, were sound.
I find th a t no
such adequate precautions were taken in
the present case by Cammell L aird or by
anyone on their behalf.
Under R egu la tio n 36 (a) (i) the d uty of
Cammell L aird w as to see th a t no rope was
used in the h o istin g of th is load unless it
was of suitable q uality .
Quite clearly a
rope of unsuitable q u a lity w as used.
The defence of Cammell L a ird is as
follows. A s regards R eg u la tio n 33, i t is
submitted on their behalf th a t no precau­
tions were necessary because no men were
working in the hold in question directly
underneath the hatch opening, b ut the
regulation in question requires precautions
to be taken to ensure the safety of all
persons employed.
Even though no su™
person m ay have been w o rk in g directly
under the hatch op en in g a t the time, there
were some workmen w ork in g in the hold.
Was there no risk th a t one or more o f them
m ight move about and so come under that
opening?
F urther, there was scaffolding
on the inside o f the hatch open ing, some
part o f which w as struck by the fa llin g
M ay 25, 1951.]
L ’p o o l A s s i z e s ]
I
ess it
r!v a
:s as
i t is
recauwere
rectly
t the
jtion s
if all
i such
rectlv
there
hold,
r them
r th a t
aiding
some
ailing
275
Dooley v. Cammell Laird <& Co., Ltd., apd Another.________ [1951] Y ol. l
load. ' W as there no risk t h a t p a r t of a
fa llin g load m ig h t be diverted by h ittin g
this obstruction, an d so cause in ju r y to
someone in the bottom of the hold, though
n ot d irectly u n d e r the hatch opening? ■ I
th in k such a risk e x is te d ; and I find the
a rg u m e n t of Cammell L a ir d on R eg ula­
tion 33 too th in , I am a fra id , fo r
acceptance.
s as
: .y
LLO Y D S L IS T L A W R E P O R T S.
A s regards R eg u lation 36 the argum ent
in defence, as I understood it, runs thus.
I t is agreed th a t the p la in tiS is a person
in the class protected by R egu la tio n 36.
B u t to succeed in the present action he m ust
show also th at he was inju red by some act
a g a in st which R eg u la tio n 36 w as intended
to protect him.
R eg u la tio n 36 was
intended to p rotect persons employed
a g a in st articles fa llin g on them, but no
article could fall on D ooley 90 ft. up in his
crane.
Therefore he cannot com plain of a
breach of R eg u la tio n 36.
In con sid erin g this argum ent it is
m ateria l to notice, in the first place, th at
although P a r t IV o f the R egu lations, in
which R eg u la tio n 36 appears, is headed
“ P re cau tions a g a in st I n ju r y from F a llin g
M a te ria ls,” no lim ita tio n can be spelled
out of these words which would exclude
D ooley from the scope of the R egu lations
contained in P a r t IV . The reason is th a t
R eg u la tio n s 3S, 39 and 40, which are in the
same part, clearly cover him, as reference
to them w ill show.
I n the second place, the language of the
section a u th o riz in g the m a k in g of these
regu lation s is such th a t, in my view, they
were clearly made fo r the protection (in te r
alia) of a crane d r iv e r such as Dooley,
n o tw ith s ta n d in g t h a t while in his crane no
a rticle could fall on him. The R egulations
were made u n d e r the a u th o rity of Sect. 79
of the F a c to ry an d W orkshop Act, 1901.
T h a t Act was repealed by Sect. 159 (1) of
the F a cto ries Act. 1937, with, however, the
follow ing paoviso:
P ro v id e d t h a t any . . . reg u latio n . .
made . . . u n d e r any enactm ent repealed
by this A ct which is in force a t the com­
mencement of th is Act shall continue in
fo r c e a n d shall have eSect as though it
had been m ade o r given u n d e r this Act.
The eSect of this is t h a t R egulation 36
m ust now be regarded as made un der the
F actories Act, 1937, a n d Sect. 60 of th a t
Act provides as follows:
(1) Where the Secretary of S tate is
satisfied t h a t any m a n u facture, m achin­
ery, p la n t, process, or description of
m anual labour, used in factories is of
such a n a tu re as to cause risk of bodily
in ju ry to persons employed in connection
therewith, or any class of those persons,
he may, subject to the provisions^ of this
Act, make such special regulations as
ap p e a r to him to be reasonably pra c tic ­
able and to meet the necessity of the case.
Regulation 36 is therefore made as a
protection a g a in st the risk of bodily in ju ry
an d is made in favour of persons employed
in connection w ith a process, and “ process"
will in my view c e rtainly include the
loading of m a terials on to a ship by means
of a crane. Dooley was obviously a person
employed “ in connection with ” such a
process.
No suggestion is made th a t the
words “ bodily in ju r y ” in Sect. 60 afore­
said exclude in ju r y to nerves, which after
all are a p a r t of the body.
I can see no
reason, therefore, fo r saying th a t Dooley
cannot claim protection under R egula­
tion 36. H e can adm ittedly claim it if for
any reason he has to descend the hold of a
ship, and he can adm ittedly claim it as
soon as he descends from the crane and on
to the quay : but, i t is argued, he climbs out
of the reg u latio n as he climbs up to his
crane. I f this were the eSect of the regu­
lation there would be no more to be said,
b ut as a m a tte r of construction such is not,
in my opinion, th a t eSect, an d I reject the
argument.
I have n o t thought it necessary to deal in
detail w ith the case o f K ininm onth v.
W illiam France, Fen w ick k Co., Ltd.,
and the R a ilw a y E xecutive, (1949) 82 Ll.L.
Rep. 768, nor w ith the case o f H arvey v.
R oyal M ail Lines, L td., and Great Western
R ailw ay Company, (1941) 82 Ll.L.Rep. 77Sn.
Those cases were referred to as authority for
the prin ciple— n ot here in dispu te that
persons employed in the relevant processes
alone can claim the benefit of regulations
such as the S h ip b u ild in g R egulations. I
think Dooley was so employed.
I conclude, -therefore, th a t the p la in tiS is
entitled to succeed a g a in st Cammell L aird
in respect of th e ir aforesaid breaches of the
regulations, fo r such breaches were one
cause of his in ju ry .
I tu rn now to the case of Mersey In s u la ­
tion, whose negligence, according to the
p laintiS , was another cause of his injury.
Here tie’ folloiring questions arise :
(1)
Were Mersey In su la tio n u n d e r a duty
tow ards Dooley to take reasonable care to
avoid acts an d omissions which they could
276
[1951] V o l . 1]
L L O Y D 'S L I S T L A W B E P O B T S .
Dooley v. Cammell Laird &. Co., L,td., and Another.
reasonably foresee would be likely to in ju re
him 1
(2) I f so, was there a breach of t h a t duty
on the occasion in question?
(3) I f so, did such breach .result in in ju ry
to Dooley?
(4) W h a t should the dam ages, if any, be ?
As to the first question, the plaintiff con­
tends t h a t Mersey In s u la tio n owed him a
duty to use a rope sound enough to prevent
the sling from b re a k in g as i t did. Mersey
Insulatio n deny this.
They agree th a t
such a d u ty is owed to persons working
down a hold upon whom a collapsed load
m ight fall, b u t n o t to the pla in tiS , who,
they say, could n o t be affected by such an
accident, working, as he was, 90 ft. above
the gro un d in his crane.
Upon the au th o ritie s the answer to the
question seems to me to depend upon
whether Mersey In s u la tio n ought reason­
ably to have had Dooley in contemplation
when dire c tin g th e ir m in d s to the conse­
quences of a b re ak in g rope.
In other
words, ou gh t Mersey I n s u l a t i o a reasonably
to have expected t h a t Dooley would be
affected by such consequenoes ?
Lord M acm illan p u ts the m a tte r in this
way in H a y (or B o u rh ill) v. Young, [1943]
A.C. 92, a t p. 104:
• The d u ty to take care is the d uty to
avoid doing or o m ittin g to do a n y th in g
the doing or o m ittin g to do which may
have as its reasonable a n d probable conse­
quence in ju r y to others, a n d the d u ty is
owed to those to whom in ju r y m ay reason­
ably and probably be a n tic ip a te d if the
d uty is n o t observed.
I n the present case, M r. Scholefield Allen,
on behalf of Mersey In s u la tio n , denies th a t
any such duty was owed to the p la i n t if f ;
for, he says, the p la in tiff suffered merely
nervous shock, a n d the d u ty to take care
to avoid inflicting nervous shock is owed
only to a person who, in the circumstances
obtaining, 'may suffer nervous shock
through some physical im p a c t upon him ­
self, his wife or child, o r through the
reasonable fear of such im pact. The p la in ­
tiff in this case was n o t such a person. The
prin cip le upon which th is suggested lim ita ­
tion of duty rests is n o t easy to discern. I t
was first suggested by M r. J u s tic e Kennedy
in D ulieu v. W hite k Sons, [1901] 2 K.B.
669. b ut was expressly negatived by a
m a jo rity of the C o u rt of A p p eal in H am brook v. Stokes Brothers, [1925] 1 K.B. 141.
Mr. Scholefield Allen keeps open the
[M a y 25, 1951.
~
^ r~J^pr.
. [ L ’p o o l A
s s iz e s
argum ent t h a t the la tte r case was wrongly ^
decided. H e goes f u r th e r a n d says i t is in 'I
conflict with the later decision of the House »
of Lords in H a y (or B o urh ill) v. Young,
sup.
I do not th in k i t is. I a t h a t case, which
I will henceforth call H a y ’s case, for short,
Lord W rig ht indicates clearly th a t the ■
am bit of persons affected by negligence may
extend beyond those a ctually subject to
physical im pact. Thus, on p. 105 of the
report, he s a y s :
*
. This again shows how the a m b it of tfle
persons affected by negligence or miscon•- duct may extend beyond persons who are
actually* subject to physical impact.
There may indeed be no one in ju re d in
a p a r tic u la r case by a ctual impact, but
still a w rong may be committed to anyone
who suffers nervous shock or is in ju re d in
an act of rescue. -The m an who negligently allows a horse to bolt, or a car to
r u a a t large down' a steep street, or a
savage beast to escape is com m itting a
. breadi of d u ty tow ards every person who
comes w ithin the range of foreseeable
danger, whether by im p a c t or shock, but,
i f there is no negligence or other default,
there can be no lia b ility for either direct
im pact or for nervous shock.
Ss&Tv
Moreover, i t is in te re stin g to observe t h a t
’
in H a y ’s case, tu p ., i t was a d m itted th a t
the p laintiff's te rr o r d id a o t involve any ‘-f-ii-f-..
element of reasonable fe a r of immediate -JrfeC
bodily in j u r y to herself. I f this were the '• —
decisive consideration, as is now contended,
how obvious a sh ort c u t i t would have pro.
vided to a decision in H a y ’s case, yet no
such short c u t was taken, a n d if i t existed
i t certainly would n o t have been missed. A t
p. 117 of tbe report, L o rd P o r te r s a y s :
Was a d u ty owed to him or her ? I f no
one of them was in such a position th a t
d ire c t physical in ju r y could reasonably
be a n tic ip a te d t o them or th e ir relations
or friends n o rm a lly I th in k no duty
would be owed, a n a if, in a d ditio n , no
V.K
shock was reasonably to be a n tic ip a te d to
• i',‘. .
them as a re su lt of th e defen d er’s negli‘
gence, the defender m ight, indeed, be
>-’>•
guilty of actionable negligence to others .
b ut not of negligence to w a rd s them.
O n this passage Mersey In su latio n
strongly r e l y ; b u t I re a d i t as m eaning
,
w hat in fa c t i t says, namely, t h a t there is
no duty to a person unless physical i n j u r y
_
to him or his re la tio n s o r frie n d s is reason"a-j
ably to be expected, or unless shock was
<.-4
.• .
May 25, 1 9 5 1 .]
L L O Y D 'S L I S T L A W R E P O R T S
Dooley v. Cammell Laird
SIZES
L ’p o o l A s s i z e s ]
is m
reasonably to be expected to him as a result
of the d efen dan t’s negligence.
lo u se
L ord P o r te r does no t go on to lim it the
shock for which an action can be_ brought,
to shock occasioned by fear of bodily in ju r y
to oneself or relations or f r ie n d s ; a n d even
if he had , the lim ita tio n would not
adversely affect the presen t plaintiff, for I
suppose I may reasonably in fer t h a t his
fellow workmen down the hold were his
friends.
p
Dung,
fi
which
short,
z the
s maj
ct to
f the
t, b ut
.nvone 'HJ&flJ;
red
neghneg I?
car to ' t e j - S
, or a
"ing a
n -who
;eeable -5A-.
k, but, '
efault,
direct
£
re th a t
d that
ve any
mediate
ere the
I-
vt
vei-
h
jc;
1)0
-i
■ W
ys^ ^
I f no
jn that
sonab’v
-lations
d duty
ion, no
ated to
5 neglie«d, be
j others
m.
u lation
meaning
there is
i in ju ry
reason.->ck was
& Co., Ltd., and Another.
£
Lord R ussell of K illow en in dicated in
H a y ’s case, svp., that, as a t present advised,
he preferred the d isse n tin g ju d gm ent of
Lord Justice S a r g a a t in Hambrook v.
Stokes Brothers, t v p . , ; but none of the other
members of the House of Lords who heard
H a y ’s case d isapproved of Hambrook v.
Stokes Brothers.
The case of Owens v. Liverpool Corpora­
tion, [1939] 1 K .B . 3 9 4 , w as also referred
to in argument. The headnote to th a t case
reads t h u s :
A funeral procession w as going along
Scotland Road, Liverpool, when a tramcar was so n eg lig en tly driven by a servant
of the defen dan ts th a t it v io len tly col­
lided with the hearse, dam aged the hearse
and caused the coffin to be over-turned,
with the result that the mourners at the
funeral, who were relatives of the dead
man, suffered severe m ental Bhock: —
Held, t h a t the m ourners were en titled
to recover damages for m ental shock in
an action brought by them for negligence
again st the d efen d a n ts, although there
w as no apprehension, or actual sight, of
in ju ry to a hum an being.
The p la in tiff n a tu ra lly relied upon this
decision. The defendants rep ly th a t three
o f the five Law Lords who later decided
H a y ’s case d isapproved o f the decision.
They were Lord Thankerton. Lord W right
and Lord Porter.
B u t this disapproval
was n ot voiced because i t was thought that
nervous shock, w ith o u t apprehension^ of
physical in ju ry to oneself, gave no rig h t
o f action.
I t was because those learned
Law Lords th o u gh t th a t the first con d ition
of lia b ility , nam ely, a d uty owed to the
injured person, was n o t present in th a t
case. The mourners who were shocked were
in a carriage behind the hearse which was
involved in the collision. A nd indeed there
is very little discussion in the report of
Owens v. Liverpool C orporation, tup., on the
question whether a d uty w as owed to the
plaintiffs in th a t case.
The discussion
seems to have centred upon whether the
[ 1 9 5 1 ] "V ol.
1
D eputy Judge in the Liverpool C ourt of
Passage was rig h t in sa y in g th a t nervous
shock divorced from any apprehension or
sight of in ju ry to a hum an being could not
sound in damages. The grounds on whic.n
this case was criticized as aforesaid^ would
not therefore en title me t o dism iss thf
present action.
The
problem
accordingly
remains
whether in ju ry to D ooley, whether by
im pact or shock, ought reasonably to nave
been expected as a consequence of pro­
vid in g a weak rope to the_ sling.
I f you
load a sling and hoist it, u sin g a weak rope,
the rope may break and the contents o f the
sling be p recip itated on to the deck or
down the hold of the vessel being loaded.
And if men are w orking on the deck or
down in the hold, i t is obvious that they
may get severely in ju red and possibly
killed in consequence.
"Furthermore, i f the driver o f the orane
concerned fears th a t t i e load m ay have
fallen upon some o f h is fellow workmen,
and that fear is not baseless or extravagant,
then it is, I think, a consequence reasonably
to have been foreseen th a t he m ay himseif
suffer a nervous shock. ‘ . , 1.
■ I therefore think there was a duty upon
Mersey In su la tion towards D ooley to use a
sound rope for the purpose of hoisting the
sling. A ccordingly I answer the first ques­
tion in the affirmative.
T h tfn ext question is whether there was a
breach of such duty on the occasion in ques­
tion. I answer th a t also in the affirmative,
for, on the evidence, the rope was clearly
unsound for the purpose for which it was
used. I further find th a t no adequate pre­
cautions were taken to test the rope before
i t was used.
The third question is whether such breach
resulted in in ju ry to the p la in tiS .
I t is
clear to me on the medical evidence that
Dooley suffered a nervous shock on this
occasion, which nervous shock I find was
due to fear that some o f his f e l l o w workmen
may bave been inju red through the fall of
the load, which fear w as not unreasonable
in the circumstances.
The damage he
suffered was not too remote, and I answer
the third question also in the affirmative.
I now come to the question of damages,
and here I m ust go back for a moment to
the actual accident and state the following
further facts. The p la in tiff said that he
had p ain in his back and down his rip.1?*
leg after seeing the accident, and while
[1951] V o l . 1 ]
~ D o o ley v. Cammell Laird & Co., n u . , nuu
crane, it was nearly pulled into the dock>
still in the c r a n e ; b u t this pain w as felt
bv a m oving ship w ith which the fa ll of ■the
a fter an in te rv a l -which I find was at least
crane was, by inadvertence, still connected.;
ten m inutes. The p a in was acute, and 1
The m edicarevidence concurred in the oon; ;
took him forty-five m inu tes to do the im eenelusion that the p la in tig had neurasthenia;
m inute journey to his house from the vara.
before the accident, and the two doctor? w
When he g o t home he was seen by nis
called on his behalf said that the accident j.
doctor," D r. W illia m s, who diagnosed
has made it worse. There is no suggestion >
sciatica and gave him a certificate, saying
on anyone’s p a r t that the man is malinger-.;
he was suffering from sciatica, an an
ing.
D r. McAusland saad th a t he is a ^
probability caused by shock. Dr. W illiam s
perm anently broken _ up old man, and
m aintain ed th is o p in io n when called as a
having seen the p lain tiff m the box I m jself
■witness in the case on behalf of the plaintifi.
would certainly not disagree, as far “ I
D r. M cA usland, also called for the p la in ­
am competent to judge.
-*
tiS , said th a t sc ia tica could not be caused
My findings on this p oint are as followSj |
bv m ental shock a lo n e; there would also
( 1 ) The p la in tiS sufiered from neuras^
have to be some physical spasm ; all sorts
thenia before the accident.
of thin gs m ay have caused the p l a i n t m s
( 2 ) The
attack
of
sciatica,
before';
sciatica, such as physical tension resu lting
described, m ade his neurasthenia worse,
from the n ervou s shock of the accident
but the evidence did n ot establish th a t this /
which was t i e view Dr._ M cAusland formed
sciatica was due to th e accident.
— or a jerk w hile clim bing up to his crane,
or exposure to cold, and so on.
w e are
( 3 ) The nervous shock suSered b y ':tbe.
all in the realms o f speculation, he saJd,
plaintiff as a result of the accident also,
“ when t r y in g to .fix the real cause of this
made his neurasthenia worse and bas^
sciatica.”
brought the p la in tiS prem aturely .to-his^.
D r. Coope. called for the defendants, was
present state.
certain that'th e scia tica was not caused by
On these findings I m ust make some^
shock from the accident.
The plaintaff,
a pportionm ent o f the special damages^
when exam in ed by him, had no
ankle
which, assum ing the man’s present condi­
ierk ” and th is established th a t the sciatic
tion was entirely due to the accident, are
nerve was dam aged.
I n his view, this
agreed at the figure of £1133. I award a
dam age caused the sciatica, and w hat
third, namely, £377 13s. 4d. A s general
caused the d am age was either a disk lesion
damages, ta k in g in to account p a in ana
in the sp in e or inflam m ation of the nerve
sufiering and dim inished capacity ofor^
through a chill.
work, I award on the basis of the above^
In th is sta te - of the evidence, it is
findings the sum of £500. I a cc o rd in g ,
eive the p la in t ig jud gm ent a g a in st both
im possible for me to be satisfied th a t the
d efendants for the aggregate sum -of
sciatica was attrib u ta b le in any way to the
accident. The im portance of the m atter is
£877 13s. 4d., with costs.
•;
not so much t h a t tJais sciatica is being
advanced as an item o f suffering or
A rgum ent was then heard in the
which ought to be compensated, but that it
partv proceedings, in which Cammell L
may have contributed towards the PlaP"
S)“ gbt to be indemnified by Mersey I n s « £ 3 & g
t if f s present sta te of neurasthenia.
ln e
tio n a g a in st p la in tiff’s claim.
sciatica itse lf soon cleared up, but the
im p orta n t question is w hat mental effect,
Mr. S c h o l e f i e l d Auxs said th a t in vie*
of his L ordship’s findings it was impossible
if any. i t le ft behind.
to contend th a t first defendants were not
D r Coope savs th a t it has contributed
entitled to contribution. B u t he. subm
to the p la in tig 's neurasthenia.
He goes
that first defendants were not en titled to
further and sa vs th a t th at neurasthenia has
indem nity.
They had been g u ilty o M
nothing to do with the accident. The man.
breach of duty. This wasj their yard
he savs. is a
nervous type, and his neuras­
the man who lifted t i e load was their man- ^
thenia ' can
be attribu ted sim ply to his
and i f he lifted t i e load there m u s tb e »
sciatica and
absence from work.
dutv cast upon him to see thfrt
a pparatus th a t he used w as an efn _ ^
I t is here
desirable to recall that the
p la in tiS drove h is crane under a e n a l
apparatus.
"P'
bombardment in the last war, and had _
Mr. J u stice D o n o v a n : They have t o P asomewhat a la r m in g experience later on. m
for breaking the law and it is only a que
1 9 4 6 , when, w hile he was in the cabin of his
M ay 25, 1 9 5 1 .]
L pool Assizes]
conenia
■'CtOrs
ident
-snon
nger-
?ul
before
worse,
it this
v the
i also
i has
to his
th ird ! L a ird
Insulan view
•ossible
re n o t
.m itted
i to full
• of a
rd and
r man,
j e some
at the
ifficient
to pay
a ques-
—%-r:
L L O Y D ;S L I S T L A W B E P O B T S .
D00]ey v. Cammell Laird & Co., Ltd., and Another.
tion of whether they should be indemnified
by you.
• ■ [ '• -■ - •
• ••
Mr. S c h o l e f i e l d "Al l e n : I n p a rt.
I
agree th a t y ou r L o rd sh ip has found th a t I
am guilty of negligeilce in re g a rd to the
plain tiS , b u t he also has fa ile d in his duty,
and Cammell L a ir d have failed in their
duty in respect of e x a m in a tio n of the rope.
Your Lordship has found t h a t two regula­
tions have been broken by them. I t would
be farcical to say, “ A lthough they are
und er a d u ty if they do n o t carry it out,
it will be p u t on someone else who happens
to be using the a p p a r a t u s .”
T h a t is an
easy way o u t in every case.
No one is
going to say t h a t although a shipbuilder
under these re g u la tio n s has a duty p u t
upon him for the p rotection of workmen,
legally he need n o t look to his sta tu to ry
duties, b ut can j u s t lean back, because when
he goes to C o u rt the J u d g e will say, “ A fter
all. it was the sub-contractors who did it,
although i t is tru e you neglected your duty
and took no steps—y o u r m an was working
a crane when he lifted th is load and he did
not see it was ov erloaded.”
There was
a suggestion t h a t i t was overloaded. • He
says t h a t he lifted the load a n d could feel
it was overloaded. W hy d id he not p u t it
back on the gro u n d a g a in ? H e said th a t
there was too much in the sling and th a t
th a t was one reason why i t broke. He said
th a t he felt i t was overloaded. My ju n io r
points out m any re g u la tio n s which affect
cranes.
Am I going to be affected by all
the other re g u la tio n s in respect of the test­
ing of cranes 1
Mr. Justice D o n o v a n : I take it, no, you
are not the occupier.
Mr. S c h o l e f i e l d A l l e n : No, but if it is
to be said, if an accident happens,
“ Because you d id not test the crane,
although th e sh ip b u ild e r is obviously in
breach of s ta tu to r y d u ty a n d has been so
found, he can ignore the regulations
because he can alw ays rely upon the sub­
contractor or the b o rro w e r,” th a t would
make a farce of these regulations.
Mr. Justice D o n o v a n : You have to
remember here t h a t you yourself supplied
the actual sling.
Mr. S c h o l e f i e l d A l l e n : T h a t may be.
Mr. Justice D o n o v a n : I t is not an
o rd in a ry case of ship b u ild in g .
He lends
you tbe crane, b u t you use tbe piece of
a p p a ra tu s which was in fact defective.
Mr. S c h o l e f i e l d A l i e n : T h a t was for his
convenience as much as mine.
W hat is
279
>
[ m i ] You 1
suggested here is t h a t the sling was over­
loaded.
- M r. Justice D o n o v a n : No, th a t the rope
was weak.
Mr. S c h o l e f i e l d A l l e n : A n d overloaded.
Mr. Justice D o n o v a n : I have not found
that. I found th a t the rope was too weak.
Mr. S c h o l e f i e l d A l l e n : In another case
it may have been the fall of the crane th a t
broke.’ Am I, because I have borrowed it,
to pay because I am in fa c t u sing it? In
mv submission here, unless a shipbuilder is
going to evade all liability an d all respon­
sibility and all care, some burden ought to
be placed upon him, otherwise these regu la­
tions, or m any of them, can be ignored by
the shipbuilder, a n d certainly ignored by
him when a n y th in g has happened within
the y ard which is being done by a sub­
contractor.
I t does so happen t h a t m\
clients have some money. H ut th in k of the
position of the p la in tiS if I happened to
be not the Mersey In su la tio n Company but
Jo h n Jones, who ru n s a little contracting
a n d joinery y a r d in. Birkenhead an d is
asked to go a n d do one little job, an d I
borrow a crane to dum p my little load on
a ship. I am n ot insured an d I have not
any money. I t is a little u n f a ir in those
circumstances. The d u ty u n d e r the reg u la­
tions cannot be delegated to anyone.
It
was their duty, i t rested squarely on them
and they can no t shelter under me and say,
“ After1'a ll, you ough t to pay the whole
lot.” I t would be bad from a public policy
point of view to allow -them, every time the
f a u lt is th a t of a sub-contractor, to come
along an d say, “ 100 per cent, in d e m n ity :
it does not m a tte r if we have broken the
regulations o r n o t ca rrie d o ut our duty.
The duty is squarely upon us, b u t we can
a t any tim e come along if an accident
happens an d argu e t h a t a fte r all it was
really the sub-contractor’s fau lt. We know
the burden is cast upon us, b u t we left it to
■them, and a f te r all they d id it a n d so they
ought to pay 100 per cent.” I personally
do not find th a t a very attra c tiv e argum ent
an d I hope yo ur L ordship does not find it
so, and I suggest th a t liab ility should be
split, and sp lit in two.
Mr. Justice D o n o v a n : W h at do you saj
about contribution, M r. Fo rrest?
Mr, F o r r e s t : A s regards whether it
should be 100 p er cent, or not, my friend
has p u t u p an a rg u m e n t th a t has been put
up equally unsuccessfully, I hope, in a
number of previous cases, and it has been
2 8 0 _________________ L L O Y D ’S L I S T L A W .R E P O R T S .
[1953] to L . ] j
Poole)’ v. Cammell Laird & Co., Ltd., aDd Another. -I
held quite often recently t h a t there may
well be cases where there is no moral blame
of any sort on the person on whom the duty
is cast by the regulations. I am not sure
th a t I understood one p o in t of my f rie n d ’s
a rg um ent p roperly.
H e appeared to be
ta lk in g of the position of a p la in tiS who is
suing one d e fe n d a n t who is a rich man, who
is responsible u n d e r the regulations, and
the other defendant, a man of straw, is the
person who is negligent.
That cannot
possibly affect the p la in tiS in any way.
Mr. Justice D o x o v a j t : The po in t is th a t
if you have got a rich defendant, the
occupier of the sh ip b u ild in g y ard says, " I
do n ot c a r e ; i t does not m a tte r if I break
the re g u lation s; if I do, the other fellow
will pay lOOper cent.” , but if he is a poor
man the position is different.
Mr. F o p . r e s t : T h a t is an argum ent which
is try in g to im p o rt the test of reasonable­
ness as to whether one complies with the
regulations or n o t ; and as regards these
regulations, there is no suggestion th a t
reasonableness of action is a defence.
Otherwise, in my submission, Cammell
L a ird would n o t have been liable in any
way, because the evidence was quite clear,
and i t was adm itted by my frie n d ’s wit­
nesses an d by the p la in tiS ,' th a t Cammell
L a ird were not in any way m orally to blame
for this. They had no p a r t in the proceed­
ings, and there was no suggestion that they
ever in fact had an o p p o rtu n ity of prevent­
ing my co-defendant from p u ttin g his
defective sling on to the end of th a t crane,
no suggestion whatever.
There are two cases to which I would
refer your Lordship. T o u r L ordship is
probably fa m ilia r with the first one, W hitby
v. B u r t B oulton & H ayw ard. Ltd.,
an d A nother, [1947] 2 All E.R. 324.
T h a t was a
case where the first
defendants were the occupiers of a factory
a n d they engaged independent contractors
to r e p a ir damage done in the factory caused
by enemy action d u r in g the war. C o rru ­
gated iron sheets were required for p a r t
of the work, and the occupiers authorized
the contractors to take down and use sheets
p u t up as a war-time measure und er a glass
skylight in the roof of the factory.
The
sheets were n ailed on to defective* timber,
an d in removing one of them the timbers
collapsed and the p la in tiS . employed by the
second defendants, fell 20 ft. <to'the floor,
thereby su sta in in g in ju rie s in respect of
which he claimed damages from both defen­
dants. J u d g m e n t was given for the p la in ­
tiS.
I n th a t case, Mr. Justice Denning,
[M a y 25, 1951..
[ L ’pool A ssizes
as he then was, held th a t the con tracto r had
failed in his duty tow ards his workmen and
had been negligent as regards his workmen,
a n d then he w ent on to hold t h a t the
lia b ility
un d e r
the
F a c to rie s
Act
was on the factory owner, even although
he had had no op p o rtu n ity of ta k in g any
step tow ards it. Then he w ent on to say
th a t th a t was pre-eminently a case under
which the r ig h t und er the Law Reform
(M a rrie d Women and Tortfeasors) Act,
1935, should be exercised, and did so.
Sub-s. (1) (c) of Sect. 6 of the A ct says:
Any to rtfeasor liable in respect of th a t
damage may recover co ntribution from
'. a n y other tortfeaso r who is, or would if
sued have been, liable in respect of the
same damage, whether as a jo i n t to r t ­
feasor or otherwise, so, however, t h a t no
person shall be entitled to recover c o n tri­
bution un der this section from an y person
entitled to be indemnified by him in
respect of the liability in respect of which
• the contribution is sought.
:
Sub-s. (2) says: '
' '
•• ■* ••
I n any proceedings for contribu tio n
u n d e r this section the am o u n t of the
contrib ution
recoverable
from
any
person shall be such as may be found
by the C o u rt to be ju s t a n d equitable
h a v in g regard to the ex ten t of t h a t p e r ­
son’s responsibility for the d a m a g e ; and
the Court shall have power to exem pt any
person from liability to make c o ntribu ­
tion, oi*-to direct t h a t the contribution
to be recovered from any person shall
am ou nt to a complete indem nity.
The operative words, in my submission,
are “ having regard to the ex ten t of th a t
person’s responsibility fo r the dam age.”
The responsibility for the damage here rests
f a ir ly and squarely, in my submission, on
the shoulders of the Mersey In su la tio n , who
used th a t defective piece of rope. T h a t had
no th ing a t all to do with Cammell L a ird .
The other case I would refer yo ur L o rd ­
ship to has very recently been before the
C o u rt of Appeal, and is an even stro n g e r
case probably from my p o in t of view. I t
is L arge v. W illiam Thornton, which is not
yet reported, having been d ealt with only
ju s t over a month ago. There two builders
were_ o p e ra tin g in one large office b u ild in g
in Liverpool, and i t was a jra n g e d between
the foremen t h a t the duty of g u a r d in g the
holes would be c arried o u t in fa c t by one
of those firms, although a s ta tu to r y duty
lay on both of them.
They each had a
sta tu to ry duty as re g a jd s th e ir own work-
M a y '2 5 , I 9 5 l ' j
L ’p o o l A s s i z e s ]
' ' L L Q Y D ;S ~ L I S T L A W R E P O R T S .
■ .Dooley v. Cammell Laird
men to g u a r d the holes.
A workman
employed by the second contractor, who
had n o t agreed to do the g u a rd in g , was
inju red .
Nevertheless,
although : he
recovered damages a g a in s t both contractors
his employer was given a complete
indem nity a g a in s t the oth er contractor,
whose foreman said, “ Yes, I will p u t the
rails u p .” T h a t w ent to ap peal, and the
C ourt of A ppeal refused to d isturb th a t
finding in any way a n d sa id t h a t there were
a num ber of cases where an indem nity was
an obvious thin g, a n d they could see no
real blame a tta c h in g to the actual
em ployer; a n d I would sub m it t h a t n o
m oral’ blame attach es to Cammell L aird.
They were n o t responsible fo r the damage
in the sense t h a t i t was a n y th in g which
they did t h a t cause>d the -damage to the
plaintiff, a n d in those circumstances i t is
pre-em inently a case in which I should be
held blameless.
I t m ig h t help as re g a rd s t h a t p o in t if I
were to deal w ith the oth e r p o in t my friend
took a t the b e g in n in g of his argum ent, th a t
if he went to the C o u r t of A ppeal and
succeeded in 6aying he was n o t liable to
the plaintiff, t h a t would autom atically
u n d e r t h a t a r g u m e n t p re v e n t his having
to make any c o n trib u tio n tow ards me. The
answer to th a t, I th in k , shows very clearly
th a t he o u g h t to in f a c t ind e m n ify me now
an d h ereafter.
I f m y co-defendant is
found no t liable to the p la in tiff i t can only
be on the g ro u n d s n o t t h a t he was n o t care­
less, n o t t h a t he was n o t negligent in
general, b u t on the gro u n d s t h a t he did not
owe any d u ty to w a rd s the plaintiff. T h a t
would be an e n tire ly different m a tte r from
his being able to sa y t h a t he owed no duty
tow ards Cammell L a ir d , a n d the borrowing
of my crane b rin g s him in to a relationship
with me which casts u po n him a d u ty n ot to
do Cammell L a i r d dam age.
F o r example,
if instead of fa llin g a p p a r e n tly harmlessly
into the hold t h a t slin g of m a terials had
gone th ro ug h th e bottom o f the ship and
sunk the ship Cam m ell L a ir d were b u ild ­
ing, my frie n d w ould obviously have had
to pay fo r the ra is in g a n d r e p a irin g of
th a t sfiip. I f he h a d d am aged my m aterials
he would have h a d to p a y for t h a t ; if he
had d am a g e d the crane he would have had
to pay.
The mere f a c t t h a t the actual
damage oaused is som ething different from
w hat he expected m ig h t have been caused
does n o t in my submission p re v e n t him
being liable to me fo r t h a t damage. Quite
a p a r t from a n y question of contribution
and a p a r t altogeth er from the Law Reform
2S1_
& Co., Ltd., and Another._______ [ 1 9 5 1 ]
V o l. 1
(M arried Women an d Tortfeasors) Act, I
have a good cause of action a g a in st my
co-defenaant w hether he be liable to the
p laintiff or not.
Mr. Justice D o n o v a n : I am not try in g
th a t, am I ?
. Mr. F o e b e s t : N o, b u t your Lordship has
found th a t he is a tortfeaso r with me ; i t is
n o t necessary t h a t it should be join t.
I
would ask here fo r a complete indem nity as
regards those damages and costs th a t I have
to pay to the plaintiff, and I would also
ask for ju d g m e n t in the th ird -p a rty
proceedings.
JUDGMENT
(on t h i r d - p a r t y
proceedings),
I have now to
d eal with the th ir d - p a r ty proceedings
brought by Cammell L a ird against Mersey
In su la tio n , a n d deal w ith them on the basis
th a t my existing findings in the m ain action
are right. On t h a t footing, i t is claimed
by Cammell L a ir d th a t they should have a
complete in dem nity a g a in st damages and
costs which they have to pav, on the basis
of mv jud gm ent, to the plaintiff. E a rlie r
i t wa’s said t h a t t h a t claim would be rested
both in c o n tra c t a n d und er the Law Reform
A ct of 1935. P e rh a p s I had better state,
for the purposes of the record, t h a t the
claim in c o n tra c t is abandoned. I n answer
to the claim for co ntribu tio n under the Ac:
of 1935, Mr. Scholefield Allen, on behalf of
Mersey In su la tio n , says t h i s : I t is true
th a t the breach of s ta tu to ry duty is a tort,
and i t is tru e t h a t his clients have been
found guilty of com m itting a tort, but, he
adds, “ 1 am n o t liable for contribution
because Cammell L a i r d ’s t o r t was com­
m itted by b re a k in g sta tu to ry regulations
a n d my to r t was com mitted by breaking the
common law. T h a t being so, I am n o t a
jo in t tortfeaso r w ith Cammell L a ir d for
the purposes of co ntribu tio n under the Act
of 1935.”
No a u th o rity h a s been quoted to me to
show t h a t the distinction in question
makes any difference a n d therefore I go to
the Act of P a r lia m e n t to see whether any­
th in g in i t su p p o rts the argum ent. I find
no such s u p p o r t in the relevant section,
which is Sect. 6, a n d in p a r tic u la r
sub-s. (1) (c) thereof.
Looking a t the m a tte r a p a r t from
a u th o rity a n d law, a n d in the lig h t of
common sense, if t h a t be permissible, all
the a rgu m ent really come? to is t h i s : “ My
co-defendant is g u ilty of to rt, the same
k in d of t o r t t h a t I was guilty of. He is
Mr. J u s t i c e
DONOVAN:
282
[1951] V ol . 1]
L L O Y D ’S £ I S T L A W R E P O R T S .
D00]e y y- Cammell Laird
g u ilty because he broke one rule, and I am
g u ilty because I have broken an oth er.”
Why that should make any difference to the
question o f contribution, I can n ot see.
W hat I have to decide i s the question which
is posed for me under S e c t 6 (2) o f the Act,
namely, w hat contribution ought Campbell
Laird to pay, h a v in g regard to the accident,
and their re sp on sib ility for this accident,
and to what is ju s t and equitable in the
circum stances?
W ell, it was Mersey
In su la tio n ’s rope th a t broke.
W hat
Cammell L aird did was to provide the
crane and the m an, an d Mersey In su la tion
provided the canvas sling. Quite obviously
it was Mersey I n s u la tio n ’s duty to see that
the rope was a sound one. However, it can
equally be said, “ So was it Cammell
L a ir d ’s d u ty .” They had a duty under the
regulations to see th a t the rope was sound,
and therefore i f they g ot a com plete
in dem n ity from Mersey In su la tio n , w hat
would be the p o sitio n ? The p o sition would
& Co., Ltd., and Another.
[M a y 2 ? ’ S l 7
[ L ’pool A s s i z « 1 : I f f ?
be th a t an unsuitable canvas slin g and r o p e ^ ' * $ *
was allowed to be used by Cammell Laird 0 * -*
no adequate precautions were taken by
them for the safety o f persons on whom the
load m ay have fa llen , an d i f indemnified &:•"-?
they would escape scot free d esp ite that
clear breach o f the regulations.
':z«Uas
'<
I do not think th a t th a t is rig h t either,
^
But I think the m ajor p a rt o f the respon- J&i sib ility in this case was th a t o f Mersey
In su la tio n ; and the declaration I propose
to make, in the th ird-p arty proceedings, is
■'
that Cammell L aird are en titled to be
indemnified a g a in st three-quarters o f the ^ i
p la in tiff’s claim a n d three-quarters o f the
costs o f the a c t io n ; and that they ou ght to ’i* . r'
have
the
costs
of
the
----- VlT
third-party
proceedings.
•• x
i •
A stay o f execution for 21 days was
granted.
...
H
;W
queen ’ s ben ch d iv isio n .
1 Q.B.
420
QUEEN’S TraN CH DIVISION.
{
: ( . A.
1953
, lcl;e0N
».
lioKsoN.
.xburgh j .
foundation for a broad proposition that whenever a county court
*8 faced with an issue of adultery, then if there is a matrimoniul
CaU8e pending the court ‘3 absolutely debarred from adjudicating
upon that issue. It seems to me that there is nothing in Knott
v. Knotl '* to suggest a broad proposition of that kind. On the
other hand, it would generally be convenient that the decision
of such nn issue in the county court should be postponed until
after its decision in the High Court, but usually not uncondition­
ally.
In almost every case it would bo proper to require some
term as a condition of granting the adjournment. In this case
it is plain that the county court judge was prepared to adjourn
both cases, though I am only really concerning myself with the
first. He was prepared to adjourn the cases on certain terms.
Mr. Campbell submitted that when (as was undoubtedly the case)
the husband refused to accept the terms which were being
suggested, and which plainly had the approval of the county
court judge (if he wus not even doing more than that, namely,
insisting upon them), the county court judge ought to have mudo
nn order that the ease be adjourned on certain terms. For my
own part, I cannot see how he could possibly have done that.
The question of adjournment had to bo decided then and there.
He was either to go on with the case or he was not.
As far as I know he hud no power to make an order in invitum
upon the husband to pay 80s. a week during the pendency of
the divorce proceedings. All that he could do was what lie
seems to have done, namely, to say: ‘‘ You, the husband, want
an adjournment. I will give you an adjournment if you will
"accept certain term s” ; and then if the husband says: " I
"w ill not accept those terms,” I, for my port, cannot see what
he could have possibly done except go on with the case, which
is what he did.
Je n k in s
L.J.
I agree, and have nothing to add.
Appeals dismissed.
Solicitors: Gibson £ Weldon, for Thomas Magnay, Gateshead;
Isadore Goldman, for Crule <t Sons, Newcastle-upon-Tyne.
KINO
anp
A n o th e r
v.
PHILLIPS.
1063
[1951 K. 1228.]
Jan. 33;
Feb. 16.
Negligence— Shock— Injury to child— Negligence of driver of motor- Singleton,
Deoolug in d
vehicle— Liability to mother for shock—K-xtent of duty— ltemotenesi liixlftou
L.JJ,
of damage— Area of potential danger.
A taxicab drivor backed his taxicab into a small boy on a
tricycle. The damage to the boy and his tricycle was slight, but bis
mother heard him scream and, looking out of an upstairs window
some 70 to 80 yards away, saw the tricycle under the taxicab but
could not soe the boy. Ho eventually ran home, but liis mother
had suffered nervous shock, an injury for which she 'claimed
damaged. McNair J. held that the defendant was under no
liubility to tile mother. Oil appeal: —
Held, that^tlio dofonduut hod not, by his servant the driver,
done a legal wrong to tlio mother, for, on the facts as found, and
applying the test laid down in liourhill v. Young [1043] A.C. 02;
[1042] 2 All K it. 306, no ‘‘ hypothetical reasonable observer”
could reasonably or probably havo anticipated that injury either
physical or nervous could liuve been caused to hor by tho backing
of the tuxi without duo uttcntioii as to wlicro it wns going, mid,
accordingly, the drivor owed no duty to tho plaintiff and wus not
negligent towards hor.
I’er Donning L.J. If (as ho considered) the duty owed by tho
driver to ovoryono in the vicinity was to drive with reasonable care,
his liability for a broach of that duty deponded on whether the
damage sustained could bo said to be too remote; but if the duty
was to uBe reasonable care to avoid injury •which ho could reasonably
foresee, tlio extent of the duty varied in rogard to the different
kind of injilrioa likely to be occasioned, and that involved recogni­
tion of two torts, the infliction of physical injury and of emotional
injury. In Uambrook v. Stokes Brothers [1025] 1 K.B. 141; 41
T.L.lt. 125, as here, a duty of caro was owod by the defendant to
tho plaintiff, though in neither case was she in any personal
danger and was at some distance from the vehiclo, but, on the facts
here, tho damago was too renioto to be r e a s o n a b l y foreseeable.
liourhill v. Young [1043] A.C. 02; [1042 ] 2 All K.R. 306
followed.
Ilambrook v. Stokes Brothers [1025] 1 K.H. 141; 41 T.L.K.
125 distinguished.
Decision of McNair J. [1052] W.N. 303; [1052 ] 2 T.L.R. 277;
[1052] 2 All E.lt. 450 affirmed.
B. A. B .
1J [1035] P. 168.
C. A.
A ppeal from McNair J.
Tho following statement of facts is taken substantially from
the judgment of S i n g l e t o n L .J . :—On August 2, 1951, a small
boy, Michael Charles King, was on his tricycle in Birstall Hoad,
q u e e n ’s d e n c u d i v i s i o n .
1953
K in o
o.
P
h il l ip s .
[1953]
Totlenliuin, about the point where Birstall Hoad joins Greenfield
lloud. A taxicub, owned by the defendnnt, Phillips, and driven
by his servant, called ut a house in Greenfield Hoad, und, having
picked up the fure, was bucking into Birslall lload so thut it
might return towards Seven Sisters Road, when the driver heard
a call, Appurently tho taxicub had struck the boy’s tricycle.
The boy was slightly hurt and the tricycle wns damaged. The
boy gathered himself together and ran buck towards his homo in
Birstall Hoad. lie brought an action through his mother against
the defendant claiming damages for personal injuries. His
injuries being very slight, McNair J. assessed tho damages to
which lie was entitled at £5, together with £10 in respect of the
tricycle. [An appeal as to tho amount of dumuges to which ho
was entitled was dismissed.]
The hoy’s mother, Mrs. Kathleen Clara King, also brought an
uction. She wus ut an upstairs window in No. 12, Birstall Hoad,
about six houses up on the right-hund side of the roud from
Greenfield Hoad und ubout 70 or 80 yards uway from the site of
the accident. She heard a scream, looked down the road, and
saw tho tuxicab bucking on to the trieycle and tho tricycle under
the taxicub, but Blie could not see the boy. She ran downstairs
and into the road, and then she met the boy running towards
her, and look him inside. As u result of what she hud heurd and
seen, she suffered trembling fits, und became distressed and
tearful. She consulted her doctor on August 17 and continued
to uttend him until November. MeNuir J. wus satisfied that her
condition as spoken to by her doctor was directly euused by what
she heard und saw at tho time of the accident; and, subject to
liubility, he ussesHed the damages in her case at the sum of £ 100.
McNuir J. decided, however, thut there wus no liability on
the defendant in respect of the mother’s claim, and on that he
gave judgment for tho defendant. The plaintiff mother appealed.
F. G. Paterson for the plaintiff mother. The defendant's
servant, tho taxicab driver, wns under u duty to everyone in tho
vicinity to drive with reasonable euro and, if he failed in that
duty, he wus liable to unyono who sustained injury, whether
physical or emotional, as u result of his negligence. It is clear
from Ilambrook v. Stokes Brothers 1 that injury by shock to
u mother who is put in fear for tho safety of her children is
actionable.
1 [1025] 1 K .B . M l ; (10*25) 41 T . I i .I t . 125.
1 Q.B.
•
q u e e n ’s
....
b e n c ii
d iv is io n .
431
[ S i n u l k t o n L.J.
But in Ilambrook v. Stokes Brothers 1 the
mother wus u wuyfurer oven though she may liuve been soino
1953
distance from the scene of the uccident. Here the mother looked
Kino
out of u window 70 to 80 yards uwuy.]
».
P
hillips
.
Tho driver wus in breach of tho duty he owed and, applying
In re Polcmis and Furness, Withy <C Co. Ld.,* he was liable for
all the direct consequences of his negligence whether they could
roasonubly have been foreseeu or not. [Counsel referred also to
Chester v. Wavcrleij Corporation.s] But if that is wrong it is
submitted that, in a neighbourhood of this sort, the taxicab driver
should have foreseen that a Binall child pluying in the street on
his trieycle alone was not likely to be fur from home, and if ho
wus injured his mother was probably near at liund and might
suffer from shock. The hypothetical reasonable taxicab driver
sitting liolkNiully in his cab would or ought to have foreseen the
injury. It wus natural thut the mother should be shocked and
she was in fact injured by shock.
In Bourhill v. Young * the court found, on the other hand,
that the possibility of injury to the fisli-wifo standing on the
pavement was not foreseeable, Tliero was no direct connexion
between her and the accident; she merely lieurd u noise but could
not see what was happening. In the present case tho mother saw
the trieycle under the cab, liuving hoard her little boy scream.
Here she was within the scope of tho accident.
[ S i n g l e t o n L.J.
In Ilambrook v. Stokes Brothers • it was
said that, in considering the duty owed, tlio court should bear
in mind tho likelihood of injury to someone if the duty was not
observed, but Unit if negligence was proved the negligent person
was responsible for all the damage which uctually (lowed from
his or her negligence. That was not, apparently, the approach in
Bourhill v. Young,* or the court might have said that as tho
cyclist had been negligent ho wus liablo for ull tho damage flowing
naturally from his acts, and as it was found as a fact that tho
fish-wife had sustained injury resulting from tho shock she
rccoived, ought he not, on the principle in Ilambrook v. Stokes
Brothers , T to have been liuble?]
Bourhill v. Young * is distinguishable from Ilambrook v.
Blokes Brothers* both on the facts and the questions involved.
*
125.
*
s
*
[1925] 1 K .B . 141; 41 T . I j .R .
[1921] 3 K .B . 5G0.
<10*10) 02 O .I j .B . 1.
110411] A .C. 0 2 ; [1042]
K.n. :t%.
2 All
*
•
»
*
•
[1925]
( 1 0 ia ]
[1025]
[10IMJ
[1025J
1 K .B . 141.
A.C. 02.
1 K .B . 141.
A.C. 02.
1 K .B . 141.
432
queen' s
1953
K
in o
o.
P
h il l ip s .
bbncu d iv isio n .
9 [1953]
^
Ilambrook v. Stokes Brothers * was commented on in Bourhill
v. Young,10 but the comments were obiter and the case was
not overruled. This cuse is covered by Ilambrook v. Stokes
Brothers 11 and is a much stronger case, for in that case the
mother was further away from the accident and did not actually
see it.
[Counsel referred also to Owens v. Liverpool Corporation.**]
Norman Wiggins for the defendant. The defendant owed no
duty to the plaintiff for, on the principle of Bourhill v. Young,13
she was outside the range of the reasonable anticipation of the
tuxicab driver. As the driver owed no duty to her he wns not
negligent towurds her, though admittedly he wus negligent
towards the child. [Counsel roferred to Lord Wright’s comments
on Owens v. Liverpool Corporation w in Bourhill V. Yow»»^.15]
It wus beyond the runge of reasonable anticipation that somebody
should suffer in this purticulur way.
[ S i n o l e t o n L.J.
But in llam-brook v, Stokes Brothers **
Atkin L.J. said that if the driver wus negligent and dumage
resulted he was responsible whether tho damage wus thut which
he might have expected or not, subject only to tho question of
remoteness, Thut statement seems to conflict with Bourhill v.
Young,17 yet Ilambrook v. Stokes Brothers ** was said not to be
overruled by thut case, and indeed Lord Wright said *• that it
" now luys down the law.” ]
In thut pussn^o Lord Wright was referring to Dulieu v. R.
White <E Sons ” nnd not to Ilambrook v. Stokes Brothers.**
Ilambrook v. Stokes Brothers 11 is distinguishuble from Bourhill
v. Young ” becuuso negligence towurds the mother was udmitted
in the pleudings in Hainbrook v. Stokes Brothers,” so that there
could bo no question of whether uny duty wus owed to her; the
only question w h s whether tho damugo she suffered was too
remote. In Bourhill v. Young,2* on tho other hund, the question
at issue was whether there was a duty owed or not. In Ilambrook
v. Stokes Brothers ** the pluintiffwus a wayfarer und she muy
•
>•
•»
>*
2 40;
»»
»«
**
>»
>'
[1925]
[1943]
[1925]
11939]
[ 1911HJ
119131
(19.19]
[1913]
[19*Ar. |
(1 9 1 3 1
1 K .B . 141.
A.C. 92.
1 K .B . 141.
1 K .B . 394; 65 T .L .K .
4 All I i.It. 727.
A.O. 92.
1 I t . 11. 394.
A.O. 92. 110.
1 K .B . 141, 157.
A.C. 92.
»• [1925] 1 K .B . M l .
»• [1913] A .C. 92, 111.
[1901] 2 K .B . 009, 675;
17 T .T j .K . 655.
»• 11939] 1 K .B . 391.
»» [1943] A.C. 92.
»» [1939] 1 K .B . 394.
»« (1913] A.C. 92.
« [ 1939] 1 K .B . 394.
(1901)
1 Q.B.
queen' s
have been in some fear for her own personal safety. The 6udden
descent of a runuway lorry is a mueh more terrifying thing than
the slow, though negligent, backing of a tuxieub. In the present
cuse tho plaintiff wus upstuirs and tho driver could not bo expected
to foroseo thut she might be within sight if sho looked out of the
window.
The application of the test stated in Bourhill v. Young ”
depends on tho good sense of tho judge as to whether in fact tho
defendunt can he said to owe a duty to tho pluintiff. On tho
fuels us found by McNair J. tho present ease is not a marginal
one. The plaintiff was a long wuy from the scene of the aecidcnt;
she was upstuirs and no reasonable hypothetical driver could
have foreseen thut she would be shocked if ho backed his tuxicab
negligently; she was outside the area of potential dunger. There­
fore, lie owekl her no duty und though, as in Bourhill v. Young,1*
the driver was admittedly negligent, ho was not negligent vis-ii-vis
the plaintiff. The test is, first, whether there is a duty, secondly,
whether there is negligenee, and, finully, whether the dainugo
which is complained of is the direet result of that negligenee,
Here there wns no duty and no negligence.
Paterson replied.
Cur. adv. vult.
l''ebruury 10. S i n g l e t o n L.J., huving stated tho facts substuntiully us set out above, continued:—It is clear that a person
who sustains duinago from nervous shock has a right of action
uguinst the person whoso negligence cuused the shock. An allega­
tion of negligence postulates a broach by the defendant of a duly
owed by him to the pluinliff. In the civil law there is no such
thing as negligence ut large; liubility only arises where there is a
duty to take care and where failure in that duty has caused
damage.
McNair J. delivered u considered judgment in fuvour of tho
defendant. In so deciding ho followed the House of Lords in
Bourhill v. Young,' in which it was held: “ (1) that the duty
“ of the motor eyclist on the public road to other persons
'* using it was to drive with such reasonable cure as would avoid
” the risk of injury (including injury by shock although no direct
“ impact oeeurrcd) to b u c I i persons as ho could reasonably foresee
“ might bo injured by his failure to exercise that earo; (2) that tho
” appellant was not within tho area of potential danger arising as
*• [1913] A.C. 92.
433
bench d iv is io n .
» [1913] A.C. 92.
1953
K ino
p.
P hillips .
•
484
q u e e n ’s
C. A.
1953
Kmo
v.
P
h iu jf b
.
Sin gleton L .J .
BENCn DIVISION.
o
[1 9 5 3 ]
th e result of hit) negligenee, and, accordingly, he owed no duty
to her und wns not guilty of negligeneo in relation to h e r .”
I do not see th a t McNair J . could com c to any other conclusion,
having regard to what was said in th u t cuse. T he view of each
of the Law Lords wus th a t, on the facts, no duty was owed to
the appellant by the motor-cyclist who collided w ith u inotor-van.
A t tho tim e of the collision tho appellant was on th e offside
of a trunicur which the inolor-cyclist hud passed on its nearside.
T he point of impact was som e 45 to 50 feet beyond h er und the
tram cu r was between her nnd th e vehicles which cam e into
collision. I t was d e a r th a t the m otor-cyclist was ut funlt and
th u t, in relation to the driver of the motor-cur, he wus guilty of
negligencc, but it was held th a t he owed no d u ty to th e appellant,
and th at, consequently, vis-ii-vis h er ho wus n o t negligent.
The te st wus p u t by Lord llussell of Killowen in this way *:
“ Can it be suid th a t Jolm Young could reasonably have anti“ cipated th a t a person, situated as was th e appellant, would bo
“ affected by his proceeding towards Colinton a t the speed a t which
" he was travelling? ” Lord Mucmillun said *: " H u t can it be
“ suid th a t he ought fu rther to have foreseen th a t his oxccssive
" speod, involving the possibility of collision with a n o th e r vehicle,
“ m ight cause injury to the app ellu n t? ” H e wus of opinion
th a t Jo h n Young was under no d u ty to tho appellunt to foresee
th a t his ncgligence in driving a t an excessive speed, and con­
sequently colliding with a m otor-car, m ig ht resu lt in injury to
her, for such a result could not reasonably and probably have
been a n tic ip a te d ; th us he was not guilty of ncgligenco in relation
to the appellant. Lord W r i g h t 4 said th a t the a p pellant was
com pletely outside tho range of the collision, und a d d e d : ‘‘ I
" cann o t accept th a t Jo h n Young could reasonably have foreseen,
“ or, more correctly, the reusonnblc hypothetical observer could
“ reasonably have foreseen, the likelihood th a t anyono placed as
“ th e appellant was, could be alTcctcd in th e m an n er in which
“ she w a s ." Lord P o rter said 4 ; " In order, however, to establish
" a duly towards herself, th e ap p ellan t m u st slill show th a t the
■' cyclist should reasonably have foreseen emotional injury to her
" as u result of his negligent driving, and, as I have indicated,
" I do not think she has done s o ."
The appellant in liourhill v. Youmj' was not very far from
the sccnc of the accident, and one would luivo thought that
* [1913] A.C. 92, 102.
* I b id . 105.
« lltiil. 111.
» Ib id . 119.
• [1943] A.C. 02.
1 Q.B.
4S5
QUCTON’ s liKNCU DIVISION.
tho motor-cyclist owed her a duty, nnd would have been respon­
sible to her in damages, if, us tho result of the collision with
tho motor-car, there had been an explosion which caused bodily
injury to her, but Lord Thunkerton suid T: “ At the time of the
“ collision with tho motor-car he was well past tho tramcar, and
“ the appellunt was not within the range of his vision, let alone
" that the trnmcnr obstructed any view of her. The risk of the
“ bicycle rieoehetting and hitting the appellant, or of flying gluss
“ hitting her, in her position at the time, was so remote, in my
“ opinion, that tho cyclist could not reasonably be held bound
“ to have contemplated it.” Lord Thunkcrton wns, of course,
dealing with a claim in rcspect of nervous shock, and his observa­
tion on this point must be limited to the case with which he was
dealing. As I have said, tho view of all their Lordships in that
case was that the motor-cyclist owed no duty to the appellant,
and that consequently he was not guilty of any ncgligence in
relation to hor, so that she could not recover damages for the
shock which she hud sustained.
[Plis Lordship referred to tho facts of the present ease and
continued:] If there wus no duty owed to the uppcllunt in
liourhill v. Young,1 I cannot sec how there was any owed by
the defendant to the mother on the facts of this ease. In
liourhill v. YoungT Lord Russell of Killoweu • and Lord
Macmillan ’ adopted tho words of Lord Jainiesou 10: “ No doubt
“ tho duty of a driver is to use proper cure not to cause injury to
" persons on tho highway or in premises adjoining the highway,
" but it appears to me that his duty is limited to persons bo placed
“ that they may reasonably bo expected to be injured by the
“ omission to take such care.” And Lord Macmillan added:
" Tho duty to take care is the duty to avoid doing or omitting to
“ do anything the doing or omitting to do which inuy liavo as its
“ reasonable and probable eonsequencc injury to others, and the
“ duty is owed to those to whom injury may reasonably and
" probubly be anticipated if tho duty is not observed."
Can it be said that the driver (or any driver in tho world) could
reasonably or probably anticipate that injury—cither physical or
from shock—would he caused to the mother, who was in No. 12
liirslall Hoad, when he caused his taxicab to move backwards a
short distance along Greenfield Itoad without looking to see if
anyone was immediately behind? There can surely be only one
* [1943] A.C. 92, 98, 99.
• Ib id . 103.
» Ib id . 104.
>« 1911 S .C . 395, 429.
C. A.
1953
K in o
».
P
u i u .i p b .
Singleton L .J .
436
QUEEN’S B ENCn DIVISION.
C. A.
1953
K in o
I ’h ii.i.ifs .
S in g le to n L .J .
[1953]
answer to that question. The driver owed a duty to the boy, but
he knew nothing of the mother; she was not on the highway; he
could not know thut she was ut the window, nor was there any
reusou why he should anticipute that she would see his cab at
all; he wus not intending to go into Iiirstull Hoad except for the
purpose of turning. I cannot see thut the fuct that she saw the
tricycle under the cab distinguishes this case from Bourhill v.
Young.11
It would uppear that the judgment of the Court of Appeal in
Owens v. Liverpool Corporation 13 was not looked upon favourably
in Iiourhill v. Young (see per Lord Thankerton'*), though I
confess thut I should huve thought that, if the driver of a trumcur negligently drove his tramcur against a bourse and overturned
tho colliu therein, ho would be under a duty towards those in a
coach iinmcdiutcly following tho hearse. Lord Wright said 14:
” Tho luwyer likes to draw fixed und definite lines und to ask
” where the thing is to stop. I should reply that it should stop
" where in the particular cuse the good sense of the jury or the
** judge decides. I should myself be disposed, as at present
” advised, to say that it should have stopped short of judgment
“ for the plaintiff in Owens v. Liverpool Corporation.” '* Lord
Wright was there considering a case in which the Deputy Presiding
Judge had found tho facts in favour of the plaintiffs, but had held,
following curlier uuthority, Unit tho plaintiffs could not recover
as they themselves were not in danger of personal injury, and
on this the Court of Appeul held thut he was wrong and thut
tho pluintilTs were entitled to judgment. Counsel for the cor­
poration in Owens v. Liverpool Corporation IJ had advanced the
argument that no duty was owed by the tramcar driver to the
passengers in tho couch, but this point wus not considered in the
judgment of the court, which was given by MacKinnon L .J .1*
Tho decision of this court in Hambrook v. Stokes Brothers IT
was not directly overruled by the House of LordB in Bourhill
v. Young'*) indeed it could not be, for in Hambrook v.
Stokes Brothers '* there was an udmission of negligence which
presupposed the existence of a duty towards the plaintiff. Atkin
L.J., howover, considered that case apart from the question of
pleading, and his judgment,20 if I may humbly say so, commends
11
>»
2 40 ;
'»
14
•»
[1913] A.C. 92.
119:19] 1 K .ll. 394; 55 T . L . I t .
[1938] 4 All K .R . 727.
[1943J A.C. 92, 100.
I b id . 110.
i k.t».
394.
i* I b id . 397.
[1925] 1 K .B . 141;
T . I j .H . 125.
>• [1943] A .C . 02.
i» [1025] 1 K .B . 141.
ibid. ir>2 .
(1925) 41
1 Q.B.
437
QUEEN’S BKNC1I DIVISION.
itself to mo. He, however, was considering a case which on its
facts is far removed from the present. In thut ease the mother,
who died from tho shock some time Inter, was on the highway
—a narrow roud—not fur from the scene of an accident to one of
her children.
Tho decision of the House of Lords in Bourhill v. Young 11
shows thut tho test in such cases is whether the driver could
rousonubly lnive foreseen uny damage to the pluintiff; unless
ho could, it wus suid, no duty was owed to her, mid consequently
there wus no negligencc vis-u-vis the plaintiff. I find it difficult
to draw u distinction between durnugc from physical injury and
dumugc from shock; priina facie, one would think thut, if a driver
should reasouubly liuve foreseen either, and dumuge resulted
from tho one or from the other, the plaintiff would be entitled to
succeed.* It is, however, unnecessary to consider this somewhat
academic point for the purposes of this appeal for, on the finding
of McNair J., no reasonable driver (or hypothetical bystander)
would have anticipated damage of any kind to the plaintiff. That
is a finding of fact with which this court ought not to interfere.
Moreover, it is in accord with common sense. McNair J., towards
the end of his judgment, suid: “ The mother, in my judgment,
” wus wholly outside tlio area or range of reasonable unticipution,
“ and if I am asked where the lino is to be drawn, I should
“ humbly reply in tho lunguago of Lord Wright,” used admittedly
“ in a slightly different context, thut it should be drawn * where
“ ‘ in tlio particular case tho good sense of the jury or judge
" ‘ decides.' It seems to me to be contrary to common sense to
'* say that a taxicab driver ought reasonably to have contemplated
“ that, if ho bucked his taxi without looking where he was going,
" he might cause injury by shock, or any other injury, to a woman
" in u house some 70 or 80 yards away up a side street.” There
is indeed a sense of remoteness in this case.
In my opinion the appeal should be dismissed.
D e n n i n g L.J.
In this case a tuxicab driver negligently
backed his cub without looking where he was going and run into
a small boy on a tricyclo. His mother, who was in her home 70
or 80 yards away, heard him scrcam and, looking out of the
window, saw his peril. She suffered nervous shock, and the
question is whether she can recover damages on that account.
Mr. Paterson put the case on her behalf quite simply. His
[1913] A.C. 92.
”
[1913] A.C. 92, 110.
C. A.
1953
K
P
.
in o
0
h il l ip s .
Singleton L .J .
438
q u e e n ’s
C. A.
1953
K in o
t>.
P
h il l ip s .
Denning L .J .
bench
d iv is io n .
[1 1 ^3 ]
first proposition was that the taxicab driver was under a duty to
drive his cub with reusonable care, and that he owed that duty
to everyone in the vicinity, not only to people in physical danger,
but also to those in emotional danger—particularly to a mother
who was put in fear for her children's safety. For this proposi­
tion he relied on Hambrook v. Stokes Brothers,™ Ilis next
proposition was thut the taxicab driver by his negligence was in
breach of that duty and wus liable for all the direct consequences
of the brcaeli, whether they could reasonably have been foreseen
or not. For this proposition he relied on In re Polemis and
Furness, W ithy i£ Co. L d .“
If the two eases on which Mr. Paterson relied stood alone,
they would bo sufficient to warrant a decision in favour of the
mother; but they have to be read in the light of the case of the
Edinburgh fish-wife, Bourhill v. Young.is In that ease the
ncgligence of a motor-cyclist brought about a collision which
so upset a fish-wifo (who was standing nearby) that she suffered
a miscarriage. She was held not entitled to recover. It seems to
me that each member of the IIouBe of Lords based his decision
on the ground that the motor-cyclist could not reasonably have
been expccted to have foreseen that the fish-wife would suffer
injury by emotional shock. The test applied waB not foresee­
ability of physical injury, but foreseeability of emotional shock.
It would, I suppose, be open to this court to apply that test
uncritically in the present case, and for us to ask ourselves simply
whether the taxicub driver could reasonably have foreseen that
the mother might suffer nervous shock. But I do not think that
we can quite do that. We have to try to reconcile Bourhill
v. Young ” with Hambrook v. Stokes BrothersJ* particularly
in regard to the duty of the driver. In Ilambrook v. Stokes
Brothers,** the ease of the runaway lorry, Atkin L.J. held that,
apart from the admissions in the pleadings, the lorry driver was
in breach of his duly to the mother, although she was not herself
in any personal danger; whereus in Bourhill v. Young11 the
House of Lords held that the motor-cyclist was guilty of no
breach of duty to the fish-wife.
I am not sure that the whole difficulty does not arise because
of tho different senses iu which we spcuk of the duty of care.
Take the cusc of the fish-wife. Although the House of Lords
held thut the motor-cyclist was under no duty to her, thut must
” [1025] 1 K .B . 141.
»« [ lU -'lj 3 K .D . 560.
” [ 1*J43] A.C. 92.
»• [1025] 1 K .B . 141.
[1043] A .C . 92.
1 Q.B.
430
EN'rf BENCH DIVISION.
mean that lie owed her no duty in regard to emotional shock. It
cannot mcun that lie did not owe her a duty in regard to physical
injuries if it hud so happened that she hud suffered any. In that
regard he was clearly under n duty to her to drive with reasonable
cure. Suppose, for instance, that his negligencc hud caused her
to be physically injured in some way or other. This was
admittedly improbable, but it was not altogether outside the
realms of possibility. She was standing at u point where she
might conceivably have been struck. The excessive speed of the
motor-cyclist existed before tho impact. Ho was not to know
wliut vehicles would appear in his path. He might have collided
with some other negligent ear coming in some other direction,
mid us u result of the collision one or other of the vehicles might
have been flung back on to her. One can never tell how vehicles
will finisli up after an accident. The risk of her being struck
might be remote, but no matter how remote it was, and no
matter how much it was outside the eontemplntion of the cyclist,
nevertheless if the fish-wifc had uctually been struck as a result
of his negligence, or of the ncgligence of him and others, she
would have a cause of action in damages against him.
So also with the eusc of the funeral procession, 0u>cns v.
Liverpool Corporation.J* The mourners were not actually struck,
but they were well within tho area where they might luvvo been.
H their own carriage had been going a little faster it might have
become itself involved in the accident by having to pull up
suddenly or to swerve, with tho consequent physical injury to
the mourners, in which ease they would clearly have hud n cause
of action for damuges.
Wliut is the reusoning which admits a cause of notion for
negligence if the injured person is aetuully struck, but declines it
if he only suffers from shock? I ennnot 6ee why the duty of a
driver should differ according to tho nature of the injury. I
should liuve thought that every driver wns under a plain duty
which he owed to everyone in the vicinity. He ought to drive
with reusonuble enre. If he drives negligently with the result that
u hystunder is injured, then his brcueli of duty is the same, no
mutter whether the injury is a wound or is emotionul shock.
Only tho duinnge is different. The bystunder may be so close as
to bo put in feur for himself, or he inay be just a little way off
and be shocked by fear for the sufety of others. In either case
he lins been injured by the driver’s ncgligence. If you view the
*• [1930] 1 K .U . 394.
C. A.
1953
K in o
o.
P
h il l ip s .
Deoniug L J .
4-JO
q u e e n ’s
C. A.
1063
K in o
V.
P
h il l ip s .
D enning L .J .
b e n c ii d iv isio n .
[1953]
duty of cnrc in this way, nnd yet refuse to nllow a bystnnder to
recover for shock, it is not because there wns no duty owed to
him, nor because it was not cnuscd by the negligenee of the
driver, but simply because it was too remote to be admitted ns
u head of damage.
A different result is reached by viewing the driver's duty
differently. Iusteud of Buying simply that his duty is to drive
with reasonable cure, you say thut his duty is to avoid i n j u r y
wliieh he cun reasonubly foresee, or, rather, to use reusonuble
cure to uvoid it. Then you draw u distinction between physieul
injury uud einotionul injury, und impose u different duty on him
in regard to each kind of injury, with tho inevitable result thut
you ure driven to say there are two different torts—one tort when
lie cun foresee physical injury, and another tort when he can
foresee cinotionul injury. I do not think thut that is right.
There is one wrong only, the wrong of negligence. I know that
damage to person und duinuge to property nro for historical
reasons rcgnrdcd as different torts; but tlint docs not apply to
physical injury und einotionul injury. Lord Wright clearly
trcuted impact und shock as one cause of uetion when he said in
Bourhill v. Y o u n j” : “ The man who negligently allows u
“ horse to bolt, or u car to run at large down a steep street, or
“ a savage beast to escape is committing a breach of duty
“ towurds every person who comes within the reach of foreseeable
" danger, whether by impact or shock.”
The true principle, as 1 see it, is th is: Every driver can and
should foresee that, if he drives negligently, ho may injure some­
body in the vicinity in some way or other; and ho must be
responsible for all tho injuries which ho does in fact cause by
his negligence to anyone in tho vicinity, whether they are wounds
or shocks, unless they are too remote in law to bo recovered. If
he docs by his negligencc in fact cause injury by shock, then he
should be liable for it unless he is exempted on the ground of
remoteness. This principle is the same as that stated by Sir
Frederick Pollock in his book on Torts, 13th ed., p. 451 (or 15th
ed., p. .‘131): ‘‘ Everyone is bound to exercise due care towards
" his neighbours in his acts and conduct, or rather omits or falls
“ short of it at his peril; the peril, nninely, of being liable to
‘‘ make good xvhatever harm may bo a proved consequence of
“ the default." If this principle is correct, the only conse­
quences for which lie is excused are those which are too remote.
« [1943] A.C. 02, 109.
1 Q.B.
q u e e n ’s
bench
Howsoever that may be, whether tho exemption for shock
be based on want of duty or on remoteness, there ean be no
doubt since Bourhill v. Young 30 that the test of liability for
shock is foreseeability of injury by shock. But tliis test is by no
means easy to apply. The test is not what the negligent party
himself could reasonably have foreseen, for he rarely has time to
foresee anything. The test is wlint a " hypothetical reasonable
“ observer eoukl reasonably have foreseen ” : seo Bourhill v.
Young,11 per Lord Wright. But where must this hypothetical
observer he situate? In the driver’s seat, or in an observation
post on high ? It is obvious that much must depend on his
powers of observation and the scope of his imagination. One
judge may credit him with more foresight than another. One
judge may think that he should have foreseen the shock. Another
may hot. In both Hambrook v. Stokes Brothers a* and Chester
v. Waverley Corporation 33 the judges were divided in opinion on
the question whether the shock to the mother could reasonably
have been foreseen. Some cases seem plain enough. A wife or
mother who suffers shock on being told of an accident to a loved
one cannot recover damages from the negligent party on that
account. Nor can a bystander who suffers shock by witnessing an
accident from a safe distance: Smith v. Johnson (unreported),
cited in Wilkinson v. Downton 3*; Bourhill v. Young,33 per Lord
Porter. But if tho bystander is a mother who suffers from shock
by hearing or seeing, with her own unaided senses, that her child
is in peril, then she may be able to recover from the negligent
party, oven though she was in no personal danger herself:
Ilambrook v. Stokes Brothers.3* Lord Wright said that ho
agreed with that decision. So do I.
This brings mo to the real question: Is the present case
covered by Ilambrook v. Stokes Brothers a* or not? I think that
wo should follow Ilambrook v. Stokes Brothers a* so far as to
hold that there was a duty of care owed by the taxi driver not
only to the boy, but also to his mother. In that case the negli­
gence took place 300 yards from the place where tlio mother was
standing. In this case it was only 70 or 80 yards. In that case
the mother was not herself in any personal danger. Nor was she
here. In that case she suffered shock by fear for the safety of
ag [1913] A.C. 92.
a* ll.iJ. 111.
a= (1025] 1 K.B. 141.
aa (loao) 0 2 C.Ii.H. 1 .
441
d iv isio n .
“ [1897] 2 Q.B. 57.
a» [1013] A.C. 02, 117.
a‘ [10U5] 1 K.B. 141.
C. A.
1053
K in o
*.
P
h il l ip s .
Deottlog L.J.
I
•
q u een ’ s
412
C. A.
1053
K in o
v.
Pniixirs.
D tn n ln n L .J .
ben cu
d iv isio n .
o
[1 9 5 3 ]
her children from what she suw and heard. So did she here.
In llnil case (he mother was in (.lie street., and in this ense at the
window of Iho house. I do not think that innkes any difference.
Nevertheless, I think that the shock in this ense is too remote
to he a head of dainugc. It seems to me that the slow backing
of the taxicub was very different from the terrifying descent of
the runaway lorry. The tiixicub driver cannot reasonably be
oxpeeted to have foreseen thut his bucking would terrify a mother
70 yards nwny, xvherens tho lorry driver ought to have foreseen
that u runaway lorry might seriously shock the mother of children
in the danger area.
I may mention that soino years ago, shortly aftor Bourhill
v. Youmj 3> was reported, I tried n cuse at tho Manchester
Assizes where a woman, cutting a loaf of bread, found u
dirty tingcr-stull in it. She suffered shock from the sight of it,
und cluimed damages from the linker. She did not make the
contract with the buker, but he cleurly wus under a duty of care
to her which he had broken. I held that she could not recover
for the shock, because it could uot reasonably have been fore­
seen. That case shows the difficulty of drawing the line. If she
had eaten the loaf and been poisoned, she could have recovered
damages, but because she was only shocked by sight, she could
not. Where is the lino to be drawn? Only where " in tho
“ particular caso the good sense of tlio judge decides.” That is
how Lord Wright put it in Bourhill v. Young,3T and I do not
think we can get any nearer thun that.
I agree that the uppcul should be dismissed.
II odson L.J. The appellunt’s claim is for shock sustained
owing to the negligenco of the respondent, a taxicub driver, who
ran into and injured her infant son who was playing in the street
some little way from her house.
The appellant, while in the house, heard a scream which she
identified us that of her soil. She snw the tuxicab backing on to a
tricycle and saw the tricycle under the taxicab, but could not see
the boy. She ran down the roud, the boy run towards her and
she took him indoors. McNair .1. found that the negligence of
the defendant cuuscd the injury to the boy, and the mother’s
shock was cuuscd by what she suw and heard, but dismissed her
claim on the ground that tho driver could not reasonably have
anticipated lliut to buck his tuxicub in the way he did, admittedly
»» [191.11 A.C. 0-2.
1 Q.B.
q u e e n ’s
bench
d iv is io n .'
443
negligently vis-4-vis the small boy, would cause injury to his
C. A.
mother in her home 70 or 80 yards away.
1953
The law in shock cases where no direct contact is involved
Kwo
was considered by the House of Lords in Bourhill v. Young.,T
v.
It is clear that the action will lie for injury by shock when­ P h o u m .
ever a person is placed in reasonable fear of immediate injury Hodioa L.J.
to himself, provided that the defendant could reasonably have
foreseen tho risk und ought to have guarded aguinst it. As
Lord Russell suids': " In considering whether a porson owes to
" another a duty a broach of which will render him liable to that
" other in durnages for negligence, it is material to consider what
“ tho dofendant ought to have contemplated as a reasonable
" rnun.” The difficulty lies in applying the law and in deter­
mining the range of the action. On the authorities it is at least
dqubtful whether it can extend to unintentional acts causing
shock where there is no feur of personal injury to the plaintiff.
Speaking, if 1 follow him correctly, of the rango of the action,
Lord Wright in Bourhill v. Young ” was not prepared to impose
any exact limit upon it, Buying thut it should be where in the
purticulur case the good sense of the judge
or juryshould dccido.
As McNair J., in the case now under uppeul, directed him­
self in accordunco with the speeches in Bourhill v. Young,3’
and arrived at the conclusion that the injury to the boy’s mother
was outsido the range of the reasonable anticipation of tho taxicab
driver, I think thut an appollate court should hesitate long before
disturbing his conclusion.
The appellant contends that, since she has proved the
negligent driving of the defendant and injury by shock to have
been euused thereby, the ease is on all fours with and, indeed,
stronger than Hambrook v. Stokes Brothers,*" in which the
Court of Appeul, by a mujority, found that a husband was
entitled to recover in an action under the Fatul Accidents Acts
where the death of his wife was caused by shock brought about
by feur for her child’s safety. That case, it is said, was not
overruled by Bourhill v. Young,*' and, accordingly, McNair J.
was wrong in directing himself by the speeches delivered in the
lTouso of Lords with regard to the earlier decision.
This criticism is, I think, ill-founded. In Bourhill v.
Young 41 their Lordships had to deal with a case in which no
breach of duty was admitted, while in Ilambrook v. Stokes
” HO13] A.C. 92.
u f 19-13} A.C. 92, 101.
’* (19131 A.C. IIJ.
*• [1925} 1 K.D. Ml.
“ [ l'J-13J A.C. 92.
444
q u e e n ’s
C. A.
1953
K ino
V.
P h il l ip s.
H od io n L .J .
bench
d iv isio n .
[1953]
B rothers42 there was an admission of negligence, so that the
question of breach of duty did not arise.
It seems to me that, in the absence of the admission, Lord
Thunkerton would not have approved tho decision in Hambrooh
v. Stokes Brothers.41 He quoted a passuge from Atkin L .J .’s
judgment4’ : " ' I agree that in the present case the plaintiff
must show a breach of duty to her, but this she shows by
" ' the ncgligence of tho defendants in the care of their lorry.
" * I um clearly of opinion that the breach of duty to her is
"'adm itted in the pleadings,'" and continued: " B u t there
" are ccrtuin obiter dicta on the question of duty, which might
" bo considered too wide, and I reserve any opinion on them."
Lord llusscll of Killowen preferred the dissenting judgment of
iSargant L.J.; Lord Macmillan reserved his opinion upon the
ease; Lord Wright said that, as at present advised, he agreed
with the decision; and Lord Porter oxpressed no dissent,
emphasizing that all the Lords Justices wero careful to point
out that the vital problem was the extent of the duty and not
the remoteness of damage, a view with which he agreed.
In theso circumstances, although I think that it is difficult
to draw a valid distinction on the facts between this case and
Ilambrook v. Stokes Brothers,*1 I think that McNair J. was
entitled to treat the decision of the majority of the Court of
Appeal in the way in which he did, for the reasons which he
gave and for those which can be extracted from the speeches to
which I have referred in Bourhill v. Young.**
I agree that the appeal should be dismissed.
1 Q .B .
q u e e n ’s
bench
445
d iv isio n .
CAMPBELL v. THOMPSON
and
A n o th e r.
[1950 C. No. 1848.]
Practice and Procedure— Parlies— Members' club—Tort— Negligence—
Two members “ sued on their own behalf and on behalf of all the
"other members of the” club— lltpresenlalion order— " Common
" interest ”— Order restricted to members of club at date of tort—
It.S.C., Ord. 16, r. 0.
4
The plaintiff, a former employee of an unincorporated member*'
club, in an action for damages for personal injuries sustained in a
fall on tlio club premises, sued two members of the club, the honorary
assistant secretary and the chairman of the house committee, "on
“ their own behalf and on behalf of all the other members of the ”
club. She alleged negligence and breach of duty by the defendants as her employers and as occupiers of the premises. On an
application for a representation order under ll.S.C ., Ord. 16,
r. 0 : —
Held, that, as all the members of the club had, both ns employers
mid as technical occupiers of the club premises, the same common
interest in resisting the plaintiff's claim, and as the two defendant!)
were persons who could fairly be taken as representing the body of
the club meniberB, a representation order might be made. The only
members, however, who could properly be sued in the proceedings
were those persons who were members of the club at the time of the
plaintiff's fall, and the order to be made must, therefore, be restricted
to such persons.
Mercantile Marine Service Association v. Toms [1016] 2 K.B.
243, considered.
A c t io n .
Appeal as to damages for infant plaintiff
dismissed.
Appeal on claim of mother dismissed.
Solicitors: Darracolts; Alfred E. Johnson.
E. D.
4* [1925] 1 K.B. Ml.
L10(3] A.C. 92, 100; [1925] 1
K.B. I ll, 156.
45
44 [1925] 1 K.B. 111.
4» [1913] A.C. 92.
In June, 1949, the plaintiff was employed as a cleaner by the
City Livery Club, an unincorporated members’ club.
She
brought an action for dainuges for personal injuries sustained on
June 29, 1949, when, she alleged, whilst in the course of her
employment descending stairs leading from the ground floor to
the basement of the club premises, she slipped on some grease
and fell to the bottom of the stairs. The two defendants appear- .
ing on the record were the assistant honorary secrelury and the
chairman of the house committee, both members of the club,
whose names were supplied by those acting on behalf of the club
in answer to an inquiry by the pluintifT's solicitors as to whom
she could sue. By her writ the plaintiff sued the defendants
" on their own behalf and on behulf of all the other members of
" the City Livery Club,” and by her statement of claim Bhe
■illcgcd thut at ull material times the defendants were the
1903
Mar. 3, 4.
Piiclur J.
'Kov. 6, 1964
T H E W E E K L Y L A W BEPOBTS
[1964] 1 W X . E .
jo the original account, monthly debits were entered in respect
0{ interest charged on the amounts outstanding by way of over­
d ra f t. If all the sums that Taiwo paid into the bank had been
paid into this account this would have produced a reduction of the
principal debt and a consequent reduction of the interest. Since
this course was not followed the position of the respondent was
prejudiced and the amount for which he became liable on his
guarantee was increased.
Taiwo as principal debtor was bound under clause 6 of the
guarantee to accept a copy of these accounts of the principal
contained in the bank’s books of account as conclusive evidence
against him of the amount for the time being due to the bank.
He submitted to judgment for the full amount stated in the
'original account as being due from him to the bank. B y clause 7
of the guarantee the judgment obtained against Taiwo was binding
aDd conclusive against the respondent. On this footing the bank
would be entitled to judgment for the full amount of £10,023
14s. 3d. as claimed and not for the lesser sum of £9,610 14s. 4d.
swarded by the trial judge. The bank is now content to accept
the lesser sum as representing an approximation of the amount
which would be due if the various accounts had in truth been
operated as one. They were not operated as one and the question
is whether the respondent has been substantially prejudiced by
the way in which the accounts were in fact operated. Their Lord­
ships are of opinion that by acting as it did, outside the terms
of the guarantee, the bank increased the burden on the respondent
as guarantor and that the respondent’s guarantee was discharged
whichever construction of the document is adopted.
- They have accordingly humbly advised Her Majesty that the
appeal be dismissed.
.1
0.
*
1317
P. C.
1964
K a tio k a l
B a ss of
K ig e e ia
L td .
».
AWOLES I.
. .
Solicitors : A L. Bryden <&Williams.
[corR T OF APPEAL.]
* BOAR DM AN a n d
(K E E L
A n o th e r
and
v. SANDERSON a n d A n o t h e r
BLOCK
T h ird P a r t? .)
C. A.
1961
Feb. 7.
[1959 B.D. No. 599.]
Ormerod,
Berlin u d
Dacckveru
Negligence— Duty of care to who m — Shock— Injury to child— Negligence L.JJ.
of driver of motor vehicle— Child's father knmcn to driver to be
within earshot — Liability to father for shock— Whether father
within area of contemplated danger.
On August 19, 1955, the defendant aud the two plaintiffs, who
were an in fa n t and his father, went together to a garage belonging
to the third party to collect the defendant’s car. The defendant,
[Reported by Miss A. F. R i c k e t t s , Bamster-at-Law.]
1318
[1964] 1 W.L.R.
C. A.
1961
Boakduas
r.
S a k e e e s o .v
(K e e l a n d
B l o ck
T h ir d
P a e t t ).
T H E W E E K L Y L A W REPORTS
^o v '?"C lS &
in backing the car out of the garage, negligently injured the
then aged eight. The father, who to the defendant’s knowledge y
within earshot, heard the in fa n t’s screams and ran to his assi
ance. The father suffered nervous shock, and the trial jndPv
awarded him £75 damages for th a t injury against the defendant"
~
On appeal by defendant:—
•
Held, (1) th a t where a plaintiff suffered an injury bv shock
resulting from an accident involving the defendant and a thin? '& ■ '
person, the liability of the defendant did not depend upon whethei
or not the accident was witnessed by the plaintiff.
H ay ( or Bourhill) v. Young [1943] A.C. 92; [1942] 2 AM E
396, H.L. considered.
(2) T hat a duty of care was owed to the near relatives of - V?. :v
come to the assistance of the infant, was liable in damages for the
shock caused to him.
.j
jg
Decision of Salmon J . affirmed.
...
A
ppeal
Assizes-
from Salmon
.
J.
?•
sitting at Newcastle-upon-Tyne ;-i': *
••• i ^ s i x 1
The following statement of facts is taken substantially from
the judgment of Ormerod L .J.
_ ..
^
The third party, Eichard Percival, Keith Keel and .^enry”1'^ ' ^
George Block, trading as a firm, were the owners of garage~fe^
premises in the Newcastle area which consisted of a series 'fif ^ ~
petrol pumps and the garage. Behind the petrol pumps there
was a garage with two entrances, where the servicing was done^:J^&?.
In front of the garage entrances was a fairly large courtyard :j0£rsloping gradually down to the way out to the road. On August^^*'
18, 1955, the defendant, John Sanderson, garaged his car_fit the
premises. H e went to fetch it the next day because he was taking^
the two plaintiffs (an eight year old boy and his father)
holiday to Blackpool.
"
.
__
All three went together to the garage. The car was standing
just inside the garage with its back part pointing outwards through
the doorway. The defendant was told that the garage bill must
be paid before the car could be released. He asked the father [ _
to go to the office and pay what was owing and the father w ent
through the other entrance leading to the garage office to do
leaving the infant in the courtyard. Meanwhile the defendan
began to back the car out of the garage. The garage entrance wM
twelve feet wide and the car, about five or six feet wide,
much nearer to the right hand side of the garage doorway asitj?;; ' "
was driven out.
••••••'$&§•
Keel was on duty in the office, and realising that the car_\
was being backed out he went to direct the defendant.
evidence was that he went behind the defendant’s car, and that
his attention was concentrated on the defendant’s off-side
was nearest to the pillar of the doonvay. His object was
to prevent the car from coming into collision with the
and thereby doing damage either to the pillar, or to the car,
•;'-S
-AW REPORTS
Nov.
>'ov. 6, 1964
6,
age, negligently injured the infiJt*.
o to the defendant’s knowledge
t’s screams and ran to his assist. '
vous shock, and t ie trial judge''
Jiat injury against the defendant:"
- ■- '■tiT tljr i
.miff suffered an injury by shock'
firing the defendant and a third
dant did not depend upon whether
by the plaintiff.
-=*■ •
-1943] A.C. 92; [1942] 2 All Z . £ ?
owed to the near relatives of any
were known to be within earshot
e, and accordingly, the defendant,
ithin earshot and was certain to
int, was liable in damages for the
Newcastle-upon-Tyne
ets is taken substantially from
'
. ?Lr»
•cival, Keith Keel and Henry
i, were the owners of garage '
which consisted of a series of
behind the petrol pumps there
where the servicing was done,
was a fairly large courtyard >
7 out to the road. On August
nderson, garaged his car at the
next day because he was taking
<
old boy and his father) on a ■
garage. The car was standing
pa 'jointing outwards through
^.-'■'that the garaee bill must
ek ^ ^ d . H e asked the father
va*^ ^ in g and the father went
to the garage office to do that, .
d. Meanwhile the defendant
-age. The garage entrance was
3ut five or six feet wide, was
e of the garage doorway as it
e, and realising that the car
3 direct the defendant. The
the defendant’s car. and that
the defendant’s off-side which
oorway. His object was firs^
into collision with the pillsr>
o the pillar, or to the car, or
THE W EEKLY LAW REPORTS
[1964] 1 W .L.R.
both, and secondly, to prevent the car from coming into collision
Tvith any other cars that might have been in the courtyard, which
would have happened if, in backing the car out of the garage,
the defendant had turned too much to his off-side. The defen­
dant’s evidence was that he was looking over his right shoulder,
that he was watching Keel and paying attention to his directions
and acting accordingly. The proper course to adopt in backing
out was to come straight backwards then to lock slightly to the
on-side so that the rear end would turn slightly to the right; and
that was what the defendant did.
In the meantime the infant apparently had spent some
time watching the cars by the pumps being filled with petrol.
In a corner of the wall separating the two parts of the
courtyard there was an air compressor for pumping tyres, and
tbe infant played with it until he was eventually chased away
from it by the garage attendant. It was not in dispute that as
tbe defendant backed his car out of the garage and either turned,
or was about to turn, slightly to the right to get on to the course
that he wanted, the infant was standing very close to the near­
side door of the car, and as the attention of the defendant was on
the off-side, the near-side front wheel ran over the infant’s foot
and caused the injuries of which he complained. He screamed and
tried to free his foot by kicking with his free foot on the near-side
door of the car. The father, who was paying the defendant’s
garage fees at the office, heard the scream, rushed out to the
yard and saw the infant with his foot caught or trapped under
tbe near-side front wheel. The father helped to release the infant
and later showed symptoms of shock.
The infant and his father brought an action against the defen­
dant and against the garage proprietors as third parties. The
iniant was awarded damages of £1,250, and the father £75. The
third parties were discharged from the suit, Keel being held not
to have been negligent in guiding the defendant out of the garage.
Tbe defendant appealed. The case is reported only on the question
of the defendant’s liability to the father.
J . Harvey Robson for the plaintiffs, the infant and his father.
John D. B. Richardson for the defendant.
J . Chadicin for the third party.
L .J. considered the facts, upheld the decision of
J. that there had been no negligence on the part
oi Keel, held that although there was no gross negligence
°n the part of the defendant, and although the case was
°ne very near the borderline, it was not a case in which the court
s.'iould interfere, and. accordingly, accepted the findings of
Sajmon J. that the defendant had acted negligently and was liable
•o damages to the infant plaintiff. His Lordship continued: The
judge found that, because of the circumstances of this accident,
father suffered from shock. It is not put very high; it is not
O
rmerod
S a lm o n
C. A.
1961
B oardkak
c.
Sakdeesox
( E e e l axd
Block
Tbikd
Pastt).
1320
[1964] 1 W.L.B.
T H E W E E K L Y L A W BEPOBTS
Kov. 6,
put as more than slight shock, and the judge has awardeddamages the sum of £ 7 5 , again, I think, an indication that
1961
did not regard the shock to the father as being a very
BoASDJiAV
matter. However, the position taken by the judge who tried
V.
S a jc d e b s o n
case is set out in his judgment in which he savs, having ’’dealTS^"''
(K e e l and
first of all with the general circumstances of the c a s e i j j y ^ ^ ^
B lo c x
Thzbj>
“ follows in those circumstances that there must b e _judgment
P a b ti).
" for the infant plaintiS against the defendant, and I think judg?^fi.V
Ormerod L.J. " ment also for the father. The father’s claim is by no means
" very grave claim, but he did suffer a considerable shock w h e n ^ .^ f
“ he saw this boy of his with his leg injured and that did cause”1
“ him some slight illness. . . . . I do not propose to deiiverjjan.
"elaborate judgment on the law applicable to this case, but'
“ seems to me this case is distinguishable from King v.
“ That was a case of a taxi driver negligently backing a taxi cab ' I f
" and running into a child on a tricycle. It so happened that_tbe’':v'7
" child’s mother lived 70 or 80 yards away and heard s c r e a m s ,'. /
“ looked out of her window, and was extremely shocked, jln ^ y-;,/
“ that case, the majority of the court took the view that the claim ?»> •;;
“ was not maintainable because the driver could not reasonably
“ foresee that if he drove negligently and injured the .child the"’^ ’
“ mother would be immediately upon the scene of the accident; ~~
“ it was quite by chance and unknown to the driver that__she V.
“ happened to live 70 or 80 yards away. In this case the defen'-.
“ dant did know that the father was only a few yards away and^ ^
“ therefore, the defendant could reasonably have foreseen, if
" were negligent and as a result of that negligence he did injuijj'-“-‘ >
" to the infant, that the father would be immediately upon £h§V scene and might be shocked as, indeed, he was shocked.
W hat are the circumstances which the judge clearly
mind when he was considering this portion of tfee case? ■ It.m\lB< ^ ;..l
be remembered that the defendant and the father were
According to the evidence which was before the court they were _
very old and close friends. They had gone to this garage together, ...
the defendant, the father and his son, then a small boy ,«ight •
years of age, a fact which was known to the defendant.
father, at the request of the defendant, had' gone to the office._r.v
That again the defendant knew. H e knew also, or he c o u l d have
known had he taken the trouble to look, that the mfant did not ^ *
go to the office with his father, but that he was playing about, **
small boys will, in the courtyard. He knew also that if,, by
careless driving or his breach of duty, he did injury to the infants
the father was well within earshot of the infant’s screams bd
could very easily run out to his assistance if necessary; and,
course, that is exactly what happened.
[His Lordship referred to the finding of the judge that the
defendant had been negligent, and to the evidence relating
accident summarised above and continued:] The father,
C. A.
1
[1953] 1 Q.B. 429; [1953] 2 W.L.B. 526; [1953] 1 All E.B. 617,
POSTS
Not.
?VcT. 6, 1964
judge has a w a r d e d ^
an indication that h^jjp
as being a v e . V g
the judge who tneJ'tKei‘^ ^ 1'
a he says, having ideait"f^^
aces of the c a s e ^ ^ g ^ M
-ere must be . ju d g m e n i'^ ^
id ant, and I thini
claim is by no means *a*^;5
.•onsiderable shock wh?n:f ' ^
■*. fid &nd tliSv did c&us@
t propose t o . d e i i T e ^ ^ f ^
•bie to this case, buflt'Tfsp
1 from King v. Phillipt^ '
en?’" hacking a taxi cab %
>I' . happened thatj&e’
■vaj^^fcd heard screams,ex ta m ely shocked. *-,In
• .■
: the view that the claim >.
er could not reasonably*
:d injured the child the
a scene of the accident;' ■
to the driver that she
In this case the defenv a few yards away_and^
b:y have foreseen, 'if -he
negligence he didinjury
s immediately upon thg’& f^
, he was s h o c k e d .^ ilfi^ ^ S
he judge clearly hadjn
Dn of the case? It
the father were friends.'
for* ~\e court they were
2 to'^nis garage together,'
t h ^ ^ small boy eight
to ^ J I defendant. - The,
had gone to the office..^
w also, or he could have
that the infant did not
he was playing about, as .
mew also that if, by his
did injury to the infant,
be infant’s screams and
ce if necessary; and, of
g of the judge that the
evidence relating to the
ued: 1 The father, -who
j
.953] 1 All E.B. 617. C-A--^* ■_
*93*
T H E W E E K L Y L A W BEPOBTS
1321
[1964] 1 W.L.B.
close by, heard the screams, which he recognised as the
infant’s screams. H e knew that the infant was playing in the
r T3rd and he knew that there were cars being moved in the yard
j-d, Daturally, his first instinct was to run to the assistance of
the infant whose screams he heard. That he did, and he was met
t-r the spectacle of the infant with his foot trapped. Is it sur­
prising, in those circumstances, that the father some days later
developed symptoms of shock of which we have heard?
. M r . Richardson, on behalf of the defendant submitted that
this case must be considered on a similar basis with H ay (or
Bourhill) v. Young,1 one of the leading cases on this question of
injury by shock. In that case the plaintiS, who was a fish wife
h a d i n g fish from a tramcar into her basket, did not see the
a cciden t happen and only saw the resuits of it when she was
moved by the noise to go and see what had happened. In the
present case, too, the father did not see the accident but was
only moved to see what had happened when he heard the infant
s cream . Mr. Richardson has endeavoured to submit that the line
of distinction must be drawn somewhere and that must depend
on whether the accident was witnessed by the plaintiff, and that
if. :n this case, the father did not witness the accident he cannot
succeed. There has been no authority produced to the court to
bear out that submission and, for my part, I must say I find it
ci5cu!t to understand why the line should be drawn in that arbi*
trary fashion. It may be that, in some cases, that is a proper line
to d r a w , as in Hay (•or Bourhill) v. Young,1 and it may be that, in
that case, as in many others, the proposed plaintiff does not come
Kithin the area of contemplated danger. On the other hand,
clearly the facts in these cases are infinitely variable and it would
be difficult, if not impossible, to draw any line of distinction and
s&y in one case the plaintiff should succeeif and in another case
he should not.
In this particular case it does appear that all the necessary
factors are present which should entitle the judge to come to the
*iew that the father should succeed. The defendant knew that
me infant was in the yard and that any carelessness in
Living on his part might result in injury to the infant
in fact, it did. H e knew that the father was within earshot
and he knew also that the father was in such a position that if
h e a rd a scream from the infant he was bound to run out,
hum an nature being what it is, to see what was happening to the
--fast; and that is, in fact, what happened. In those circumw-ances it appears to me that the judge was right in coming to
:&e conclusion which he did.
^Ve have been referred to portions of the speeches of Lord
bright and Lord Porter in H ay (or Bourhill) v. Young,1 and, if I
a &7 say so with the greatest possible respect to the learned Law
~ jrds, those speeches do not appear to take this case very much
•urther, but I would like to draw attention to a portion of the
1 [1943] A.C. 92; [1942] 2 All E.B. 396, H .L.
C. A.
1961
B oa&s u a v
e.
S akdeesos
(K e e l av d
B lo c k
T htbd
P a b tt).
Orm erod L .J.
• v - ; . i. i
P
:>i -i
,i .if.
:j
■%
1
’ ’■ r i ’ j
•
M
" r > 4•
* .
I
! i f
[1964] 1 W.L.B.
1322
c . A.
1961
BOABDlUJf
V.
S a k d k rso k
(K e e l a n d
B l ock
T hibb
P a b tt).
Ormerod L.J.
ii
if i
T H E W E E K L Y L A W EEPOBTS
V t'Y , 6.
Not. V
speech of Lord Wright*: " T h is general concept of reasonable,
" foresight as the criterion of negligence or breach of duty (strTcl
“ or otherwise) may be criticised as too vague, but negligencTe'^g'^.
" a fluid principle, which has to be applied to the most diverse'-^
“ conditions and problems of human life. It is a concrete’*'
" an abstract, idea. It has to be fitted to the facts of the'
" particular case.”
■'
;
v I think I need say no more than that if the facts of this "ufv
particular case are fitted to the concept of negligence, it is clear V- ",
that a duty was owed by the defendant not only to the infant
“
but'also to the near relatives of the infant who were, as he knenv, ^ ’1
on the premises, within earshot, and likely to come upon'the
'
scene if any injury or ill befell the infant.
..
In the circumstances, it appears to me to be clear that the
father is entitled to succeed and I, for one, would be extremely
reluctant to disturb the findings of the judge in this matter. ^ It
follows from what I have said that I would dismiss this appeal'on
both grounds.
L
. 'tV Je
.
D
e v l in
L .J.
I agree.
'
D a n c k w e r t s L .J.
I also agree. I am unable to differ from
the conclusion reached by the judge on the principal issue of
negligence; and as regards the damages awarded to the father
of the infant for the shock experienced by him, it seems
to me that the case satisfies the relevant test, being that of
reasonable foreseeability discussed by the House of Lords in Hay
.
(or Bourhill) v. Young* and by the Privy Council in O v e r s e a s ^
Tanhship (U .K .) Ltd. v. Moris Dock and Engineering C o T X t ^ ^
-\\i
<!■■
Appeal dismissed with eosls.' . ,
Solicitors: Smith (f Hudson for Waller <t Houseman, Newcastle-upon-Tyne; White <t Co. jor Field, Cunningham i Co.;
Manchester; Newburn, Walker, Cato <£ Co. for TPatson, Burton^
Booth £ Robinson, Newcastle-upon-Tyne.
_ ~
. . .’
.TTiZU.
a [1943] A.C. 92, 107.
« [1943] A.C. 92.
u
ii
u
U !
U i
ii
* [1961] A.C. 386; [1961] ^
W .L.B . 126; [1961] 1 All E.B. 404,
P.C.
-i at
— 2i
1964
THE W
[PEOE
*CO
Husband and Wife — Dive
petition on file— Secon
Whether a nullify—J v
for filing second petit
1957, S o . 619), t . 3 (2)
ment) Buies, 1961 (S.J
Void or Voidable—Pleadi.
leave to file second pef
o f second petition i m
Buies, 1957, t. 2.
I n 1945 the husbanc"
a reconciliation betww
ceeded w ith although i
filed a second petition
of a judge, there alrea
w ith rule 3 (2) of the
by rule 2 of the M at
The su it was undefenc
leave to proceed w ith t
w ith the rules a t th e i
Held, th a t the fai
by rule 3 (2) of the H
filing of th e petition
jurisdiction to set as
which should have bee
be given retrospective!
could be h ea rd forth*
Lloyd v. Great TT
23 T .L .R . 570, C.A. *
U n d e fe n d e d p e titio :
The parties were m
husband filed a petitio:
but the parties later be
proceeded with althoug.
the wife left the husb
second petition for dr
husband did not obtai.
second petition in scco:
Causes Eules, 1957, an
appeared in the second
not intend to defend th
proceedings. On June
1 Matrimonial Causes B
r• 3 (2) as a m e n d e d b y V
Causes (A m en d m e n t) Bu
r. 2: ” Except w ith le
" judge a petition shall nc
[Reported by
■912
11967] 1 W.L.R.
.TH E WEEKLY LAW REPORTS
J uly 14, 1967
that, no doubt, was tbe intention of the chairman. Under the
Road Traffic Act. 1962. the court must disqualify for a period;
granted that it must be a period certain, this court is quite satis­
Reg.
fied, and indeed courts throughout the country have been acting
. v.
Tundeon this basis for years, that disqualification for life is for a period
Olarinde
LordpTsxe* oertain. There is nothing whatever in this appeal, and it is
CJ.
dismissed.
’VJ -r
............................. - •
Appeal dismissed.
Solicitor: Registrar of Criminal Appeals.
[ q u e e n ’s
1967
April 24,
23.26;
M a y 12
Waller J.
b e n c h d iv is io n ]
* C H A D W IC K v. B R IT ISH R A ILW A Y S B O A R D
Negligence—Duty of core to whom?—Shock—Railway accident—
. - Negligence of defendants—Injury by shock to rescuer—Whether
recovery of damages limited to cases of fear for one s own safety
or that of one’s children—Whether foreseeability of injury by
shock necessary.
,
Negligence—Duty of care to whom?—Rescuer—Railway accident
Rescuer sustaining injury by shock—Whether duty of care owed
■ to rescuer—Whether risk run by rescuer need be of kind run by
persons rescued.
"
;
At 6 p.m. on December 4, 1957, a serious railway accident
caused by the defendants’ negligence, in which 90 persons were
killed, took place at Lewisham. Tbe plaintiff’s late husband
immediately weot to the scene of the accident and helped in the
• rescue activities until six o’clock the following morning. As a
result of his experiences that night, he became psychoneurotic.
In an action by the plaintiff (suing as administratrix of the
estate of her late husband who had died in 1962 from causes
unconnected with the accident) for damages for personal injuries,
in which the defendants denied liability to the plaintiff s
husband:—
Held, (1) that damages were recoverable for injury by shock
even where the injured person’s shock was not caused by fear
for his own safety or for that of his children (post, p. 9 20 b , c).
Dulieu v. White <4 Sons [19Q1] 2 K.B. 669; 17 T.L.R. 555;
Hambrook V. Stokes Brothers [1925] 1 K.B. 141; 41 T.L.R. 125,
C.A.; and Bourhill v. Young [1943] A.C. 92; [1942] 2 All E.R. 396,
H.L.(Sc.) considered.
(2) That foreseeability of injury by shock was a necessary
element of liability for such injury (post, p. 9 20 e - g ); and that in
the circumstances injury by shock was foreseeable.
Dictum of Denning L.J. in King v. Phillips [1953] I Q.B. 429,
441; [1953] 2 W.L.R. 526; [1953] 1 All E.R. 617, C.A. applied.
(3) That the defendants, having by their negligence put
[R ep orted by M a rcel B er lin s , E s q .]
:D
-
J u ly
14,
Ml
T H E W E E K L Y L A W REPORTS
913
[1967] 1 WX.R.
1967
passengers in peril, could reasonably have fo r e e e n th a tso ^ o n e
would attempt to rescue those passengers, and would suSer ^ )Ury
in the process; accordingly they owed a duty to such rescuer
?JA
C h a d w ic k
y.
British
Railways
•st
(P°Test' o f1Morris LJ. in Baker v. T. E. Hopkins &S o n Ltd.
[1959] 1 W.L.R. 966, 972; [1959] 3 All E.R. 225 applied.
(4) That the fact that the risk run by the rescuer was not of th
same kind as that run by the persons b e i n g - ^ 2“°)
deprive the rescuer of his remedy (post, pp. 921f h- 9 2 - j ).
(5) That tbe plaintiff's husband was not of such extra
y
susceptibility that he ought not to have been m the contemplauon
of the reasonable man; and that, accordingly, the plainUH
claim succeeded (post, p. 922 f- h).
I?
A
t e.
i ir
r
l:c
c t io n .
•
. .
•• .
Board
,
The plaintiff, Mrs. EUen Chadwick, as the administratrix ot
the estate of her late husband, Henry Chadwick, brought an
action for damages for personal injuries alleged to have been
sustained by him as the result of his rescue activities at tbe scene
of a serious railway accident which took place at Lewis
about 6 p.m. on December 4, 1957, in which 90 persons were
killThe accident occurred about 200 yards from Mr. Chadwick’s
home, and. on being informed of it, he immediately went to help.
He remained at the scene until six o’clock the following morning.
There was evidence that because of his small stature he was able
to render assistance by crawling into the wreckage to ^ m i s t e
injections to injured persons and
to aid persons to extricate
I?
1‘
■ir
,£-:
x-
themselves from the wreckage.
• ,' '
on
Before the accident he was a c h e e r f u l, busy man
a successful window-cleaning business and with m a n y .spare-ume
civities. After the accident, and, allegedly as a r e s v d toi
experiences at the scene, he became P ^ hoDf ^
^
spend six months in a mental hospital, h is h e a
Oreviously
he no longer took the interest in life which he
had
prevw y
taken, and was unable to work. He died m 1962 o f causes
-G
unconnected with the accident
_
caused by
The defendants admitted that the a c c ^ Dt waf
y
their negligence, but denied liability to Mr. Chadwick.
The facts are more fully stated in the judgmen
K
1
H
r
s
f
t
r
a
r
s
s
/
s
s
—
The following cases, in addition to th ost
judgment, were cited in argument: V tie s r , v •
w < f e r v.
Commission': Smith V. Leech Brain &■ Co. V i - .
Eisovitch
H o m es V . H t w o o d - . R oe V . M tm ster o f B e a m m a
mtn. MOAffl 1
» [1963] 2 Q.B. 650; n | 63l 3
W.L.R. 374; [1963] 2 All E.R. 860,
C As [1962] 2 Q.B. 405;_U96?L„2
* n%01 2 Q.B. <30;
W.l I . 169; 11960] t All 5^ R^ .^ R;
« [1935] 1 K-B. 146; 51
100 C.A.
[1967] 1 W.L.R.
914
1967
Chadwick
v.
British
Railways
Board
,THE WEEKLY LAW REPORTS
J u ly
14, 1.967
Woolley V. Minister of Health *; Doughty V. Turner Manufacturing
Co. Ltd.1; Boardman V. Sanderson T; Haley V. London Electricity
Board*-, The Gusty and the Daniel M ' \ Pugh V. The London,
Brighton and South Coast Railway C o.10', In re Polemis and Fur­
ness Withy & Co. L id > x and Warren v. Scrottons Ltd.™
s
Cur. adv. vult.
.. May 12. W aller J. This action is brought by the plaintiff
as personal representative.of her late husband for damages for
personal injuries which she says were caused by the Lewisham
train disaster on December 4, 1957. The cause of action, if there
is one, therefore arose nearly ten years ago. Mr. Griffiths, on
behalf of the plaintiff, has frankly said that be can give no satis­
factory explanation for the delay, but also has said that the letter
before action was written on December 19, 1958. The difficulties
of trying a case long after the event are increased in this instance
by the fact that the original plaintiff died on December 20, 1962,
his private practitioner, who would have been an important
witness, has died, the doctor who attended him at hospital has
died and the consulting psychiatrist who attended him has retired
from practice. Such delay in bringing proceedings to court with­
out any satisfactory explanation may cause 'injustice to the
plaintiff, it undoubtedly creates the impression of great prejudice
to the defendants and it makes the task of the tribunal very
difficult. The reasons for the delay I will consider at a later stage.
Meanwhile I must do my best to arrive at a conclusion about the
facts.
' The defendants have been extremely co-operative and as a
result I have had a number of contemporary documents in the
form of hospital case notes from the two hospitals attended by
the late Mr. Chadwick and, in spite of the delay, I am left in
no doubt about Mr. Chadwick’s medical history and the diagnosis
of his condition.
The description of the events o f December 4, 1957, and of
the deceased’s, Mr. Chadwick’s, part in those events cannot be
supported by contemporary documents and the court must there­
fore rely on the recollection of witnesses going back nine and
a half years. As I shall indicate, however, those events were of
so calamitous a nature that the recollections of those involved are
probably more reliable than one would usually expect after nine
and a half years.
On December 4, 1957, just before six o ’clock in the evening.
8 [1954] 2 Q.B. 6 6 : [1954] 1
W.L.R. 128; [1954] 2 W.L.R. 915;
[1954] 2 All E.R. 131, C.A.
4 [1964] 1 Q.B. 518; [1964] 2
W.L.R. 240; [1964]- 1 All E.R. 98,
C.A.
» [1964] 1 W.L.R. 1317, C A .
« [1965] A.C. 778; [1964] 3
W.L.R. 479; [1964] 3 All E.R. 185,
H.L.(E.).
• [1940] P. 159; 56 T.L.R. 785.
>• [1896] 2 Q.B. 248; 12 T.L.R.
447 C A
“ [1921] 3 K.B. 560; 37 T.L.R.
940 C A
“ [1962] 1 Lloyd’s Rep. 497.
J u ly
14, 1967
TH
there occurred at Le
bad weather conditic
90 persons were ki!
200 yards from the s
to the scene to do v
night. The plaintiffs
was a cheerful, busy
and with many sparf
of the shock of his
neurotic, he no longe
and he was unable tc
claimed for the she
The defendants, wh
caused by their nee
determine the fact'
involved.
Mr. and Mrs. Ch
They had lived then
a window cleaner e
He was a public-sp
drives, he was a gcv«
of the local Chamb<
about six o’clock in
at Lewisham some I
in poor visibility a n
train and 90 persons
* Mr. Chadwick w
immediately ran ou:
not see him again i
came in, covered wit
a small golliwog bro
after. He went out
the morning. He wa:
not go to bed and
brooch belonged to
in the accident.
Mrs. Taylor, whc
sustained dislocated
severely lacerated le
trapped up to tbe w;
there was a young g;
his hands taking his
H
on top and a youni
Mrs. Taylor was afr
of her. Then, she
and gave comfort to
side, he told Mrs.
a light was produced
on a girder and saw
I PORTS
July 14, 1957
J u ly
v. Turner Manufacturing
’ey v. London Electricity
Pugh v. The London, 'Ip J
; In re Polemis and FurScrottons L td .11
.• - j
Cur. adv. vult.
brought by the plaintiff
:usband for damages for
caused by the Lewisham J | j | 3
; cause of action, if there j f j r ’'
s ago. Mr. Griffiths, o n i> £
hat he can give no satis- 3|M £
0 ’
said that the letter
1 ^ 5 8 . The difficulties
ln c^ R :d in this instance
i 0 ^D ecem ber 20, 1962,
.ave been an important ;r0 H
ded him at hospital has J|§f i
attended him has retired
roceedings to court withcause injustice to the
■ession of great prejudice
isk of the tribunal very
consider at a later stage,
p i
at a conclusion about the
■ ■
y co-operative and as a
porary documents in the
vo hospitals attended by ^P the^delay, I am left in
hi* J and the diagnosis
2c e ^ « r 4, 1957, and of {•,
t M e events cannot be £v ^
nd the court must there- *P
ts going back nine and
er, those events were of
3ns of those involved are
asually expect after nine : o ’clock in the evening.
-55] A.C. 778; [1964] 3
479; [1964] 3 All E.R. 185,
40] P. 159; 56 T.L.R. 785.
96] 2 Q.B. 248; 12 T.L.R.
V.
21] 3 K.B. 560; 37 T.L.R.
62] 1 Lloyd’s Rep. 497.
&
i
<
i
'G
H
14, 1967
T H E W E E K L Y L A W REPORTS
[1967] 1 W.L.R.
there occurred at Lewisham a very serious railway accident. In
b3d weather conditions two trains collided, as a result of which
90 persons were killed. Mr. and Mrs. Chadwick lived about
200 yards from the scene of the accident and Mr. Chadwick went
to the scene to do what he could to help. He worked there all
night. The plaintiffs case is that whereas before the accident he
was a cheerful, busy man carrying on a window-cleaning business
and with many spare-time activities, after t i e accident, by reason
of the shock of his experiences that night, he became psychoneurotic, he no longer took the interest in life which he had taken
and he was unable to work for a considerable time. Damages are
claimed for the shock he sustained and for the consequences.
Tbe defendants, whilst admitting that the train collision was
caused by their negligence, deny liability and I must therefore
determine the facts before dealing with the difficult issues
involved.
. Mr. and Mrs. Chadwick lived at 161, Albyn Road, Lewisham.
They had lived there since December, 1945. Mr. Chadwick was
a window cleaner and carried on a window-cleaning business.
He was a public-spirited person who used to help with whist
drives, he was a governor of three local schools and was a member
of the local Chamber of Commerce. On December 4, 1957, at
about six o’clock in the evening, there was a railway accident
at Lewisham some 200 yards from the Chadwick’s house, when
in poor visibility a moving train ran into the back of a stationary
train and 90 persons were killed.
. ; ■
-I
Mr. Chadwick was told of the accident by his wife and he
immediately ran out of the house to help. Mrs. Chadwick did
not see him again until three o’clock in the morning, when he
came in, covered with mud, with blood^on his hands and clutching
a small golliwog brooch, which he gave to Mrs. Chadwick to look
after. He went out again and did not return until six o’clock in
the morning. He was in a mess with blood and the like. He would
not go to bed and he was upset and shaking. The golliwog
brooch belonged to a small boy aged three who had been killed
in the accident.
Mrs. Taylor, who was a passenger in one of the trains and who
sustained dislocated hips, a fractured pelvis, a fractured thigh and
severely lacerated legs, gave evidence and described how she was
trapped up to the waist as a result of this accident. She said that
there was a young girl beside her and a man suspended above her,
his hands taking his weight. There was another railway carriage
on top and a young girl hanging out of the window screaming.
Mrs. Taylor was afraid that the other carriage would come on top
of her. Then, she said, Mr. Chadwick came; he was cheerful
and gave comfort to Mrs. Taylor. After going round to the other
side, he told Mrs. Taylor that her legs were broken, and then
a light was produced and Mrs. Taylor saw above her a girl impaled
on a girder and saw that her own left leg was, as she said, mangled
915
1967
Chadwick
v.
British
Railways
Board
W * u fl J.
[1967] 1 W.L.R.
T H E W E E K L Y L A W REPORTS
JULY 14, 1967
M
and scarlet with blood. In another phrase, she described herself
as being on a sea of bodies, including a man underneath her who
was dead, and she also described how there was a hand sticking
out which caught hold of Mr. Chadwick’s jaw as he went past.
Mr. Chadwick was a fairly small man and the doctor who was
attending at that particular part of the accident used Mr. Chadwick
to crawl into the wreckage where he, the doctor, was too big to
go and he got Mr. Chadwick to give an injection to Mrs. Taylor.
In spite of the great time difficulty, I am quite satisfied that
Mrs. Taylor was giving an accurate account and that the scene
of this catastrophe was such as would not normally be seen.
During the time that Mrs. Taylor saw him, she described Mr.
Chadwick as a most courageous man, very cheerful and encour­
aging, who allayed the fears of those around Mrs. Taylor.
Mr. Chadwick, before the accident, had been running a
successful window-cleaning business together with his wife. They
had started that business in 1945. He took an interest in social
and charitable activities and was, as one witness said, “ a hard­
working little man.” He had a happy disposition and got on
extremely well with people.
.
.
.
After the accident, he started sleeping badly, waking up in
the night and talking of the little boy he had seen. Mrs. Chadwick
found he was not sleeping and about Christmas-dme, that is to
say, four or five weeks after the accident, he stopped working.
He was shaking. Mrs. Mills, another witness, whom Mr. Chadwick •_E
••
had helped with whist drives, also described how she saw him
change. She first noticed him shaking about five weeks after the
accident and there is no doubt that a marked change was noticed
within a few weeks of the accident.
Mr. Chadwick consulted his doctor, who prescribed tablets,
but eventually in May, 1957, he went to the Miller General Hospi­
tal. As I have already indicated, the doctor who attended him
there has retired and is not available but the whole of the hospital
notes have been made an exhibit in this case. H e was treated for
a gastric ulcer, the history showing that he was saying that he
had lost weight since the Lewisham train disaster, and eventually
on July 27, 1958, he had an operation for this ulcer.
By October 2 Dr. Grace was describing his condition as
anxiety neurosis, mentioning the Lewisham train disaster and
'noting that “ the effects of the incident have been considerable as
regards his psychological state.” The notes show that by Novem­
ber and December Mr. Chadwick was being difficult and was to H
some extent losing the sympathy of Dr. Grace. On December 23,
1958, Dr. Grace wrote to the Belmont Hospital, asking them to
take Mr. Chadwick in, and he wrote as follow s:
“ I should be very glad if you could take this patient into
Belmont. He has developed an anxiety tension state and
I think a few hysterical features have cropped up recently.
He has been to this hospital in the past for gastric trouble and
in July of this year he had a partial gastrectomy performed.
J uly 14, 1967
For a w
develops
well. A t
Lewisha:
where he
in that tl
He was
newspapt
ment of
him this
although
He has t.
1957). C
tated by
urgent t.
I would
so that, at tt
a firm conch
his experien*
Mr. Chadwic
On Janua
D
Hospital as
and that can
hospital note
Belmont Hos
was feeling n
Dr. Conv
said in a me
wick’s nervo
at the time c
would not I
. a sheet of i
completely c
put in evide;
The onh
from Dr. Ke
West Regioi
Dr. Kendall
case notes i
Hospital an*
court. His c
condition w«
I accept
was a man
H when he wa
no such svrr
down under
who would
and that th
to be called
proportions,
aster. I alsc
REPORTS
J uly
14, 1967
JULY
hrase, she described herself
IK'
: a man underneath her who
XTv there was a hand sucking w
vick’s Jaw as he went past, S B
in and tie doctor who was
?!
accident used Mr. Chadwick &
— - T.
, the doctor,was too big to
v?
}'r B
an injection to Mrs. Taylor.
:y, I am quite satisfied that
account and that the scene
uld not normally be seen,
aw him, she described Mr. ■9?
. ft'.
, very' cheerful and encouxaround Mrs. Tavlor.
ieni. had been running a -5 - 1
0£
\ t with his wife. They
an interest in social
oiS W ’itness said, “ a hard­
l y disposition and got on
D
eping badly, waking up in
le had seen. Mrs. Chadwick
: Christmas-time, that is to
-ident, he stopped working,
itness, whom Mr. Chadwick
escribed how she saw him
: about five weeks after the
marked change was noticed
or, who prescribed tablets,
o the Miller General Hospi; doctor who attended him
ut- ""i whole of the hospital
is
He was treated for
ba^ ^ e was saying that be
ai^Pfsaster, and eventually
for this ulcer,
escribing his condition as
visham train disaster and
have been considerable as
lotes show that by Novembeing difficult and was to
. Grace. On December 23,
: Hospital, asking them to
5 follows:
:ould take this patient into
anxiety tension state and
have cropped up recently,
past for gastric trouble and
al gastrectomy performed.
H
14, 1967
THE WEEKLY LAW REPORTS
[1967] 1 W.L.R.
For a while he was well after this, but since the recent
development of anxiety, his tummy appears to be upset as
well. About a year ago he did a lot of rescue work at the
Lewisham railway accident, which took place quite near to
where he lives. This appears to have upset him quite a lot,
in that the sight of the injured and dead affected him greatly.
He was written up to some extent, I believe, in the local
newspapers, but there has not been any public acknowledg­
ment of his rescue work. People and friends keep on telling
him this should have been done. He has been sleeping badly,
although it is better now with tablets, and he is still off work.
He has not worked since the Lewisham accident (December 4,
1957). Obviously, the operation on his stomach was precipi­
tated by anxiety developing from his experiences. I feel it is
urgent that he should go into hospital for treatment, and
I would be glad if you could take him at an early date,”
so that, at that stage, Dr. Grace, while obviously not coming to
a firm conclusion, was asserting that the anxiety developed from
his experiences and that that was the condition from which
Mr. Chadwick had been suffering.
On January 8, 1959, Mr. Chadwick was admitted to Belmont
Hospital as an in-patient. The diagnosis was anxiety neurosis
and that can be seen from the case summary which is part of the
hospital notes of the Belmont Hospital, and he remained in the
Belmont Hospital until July 27, 1959, when he was discharged; he
was feeling much better, according to the notes.
Dr. Conway, Mr. Chadwick’s own doctor, who is now dead,
said in a memorandum dated December 18, 1959, that Mr. Chad­
wick’s nervous oondition was “ directly due to his rescue work
at the time of the [Lewisham train disaster].” This memorandum
would not be of much evidential value by itself; it is simply
a sheet of paper with that information written on it, but it is
completely consistent with the ojher documents which have been
put in evidence. .
The only other oral evidence on the medical question came
from Dr. Kendall, who is a consultant in neurology to the South
West Regional Hospital Board, including the Belmont Hospital.
Dr. Kendall never saw Mr. Chadwick but he had seen all the
case notes from the Miller General Hospital and the Belmont
Hospital and he heard the witnesses who gave evidence in this
court. His opinion was that the train disaster and Mr. Chadwick’s
condition were cause and effect.
I accept the evidence of Dr. Kendall. I find that Mr. Chadwick
was a man who had suffered psychoneurotic symptoms in 1941
when he was 28 years old; that for the next 16 years he suffered
no such symptoms; that although he was a man who might break
down under stress, having regard to his age, he was not someone
who would be likely to relapse under the ordinary stresses of life
and that this illness was a major stress reaction, or what used
to be called a catastrophic neurosis, due to stress of quite unusual
proportions, namely, his experiences in the Lewisham train dis­
aster. I also accept Dr. Kendall’s evidence that this is something
917
1967
Chid wick
v.
British
Railways
Board
W/OLE* J.
[1967] 1 W.L.R.
918
1967
Chadwick
v.
British
R a i lw a y s
Board
W a n fa
J.
THE WEEKLY LAW REPORTS
J uly 14, 1967
which is known to result from major catastrophes such
earthquakes, fires, floods and major accidents or disasters. •
Furthermore, although there was clearly an element of per­
sonal danger in what Mr. Chadwick was doing, I think I must
deal with this case on the basis that it was the horror of the whole
experience which caused his reaction. This case raises a number
of unusual issues and I am greatly indebted to both Mr. Tudor
Evans and Mr. Hugh Griffiths for the helpful arguments which
they have addressed to the court. In order to determine whether -%.■ ■ t i.
or not the defendants are liable to the plaintiff for damages in this
:V • •
case, there are five questions, the answers to which have been
the subject of argument. These are: (1) Are damages recoverable
for injury by shock where the injured man’s shock is not caused
I 'C
by fear for his own safety or the safety of his children? (2) Is fore­
seeability of injury by shock a necessary ingredient? (3) Did the
defendants owe a duty to Mr. Chadwick, who was not their
servant but had come to their aid? (4) Would the fact that the risk
"*r
run by the rescuer was not precisely that run by the passenger
deprive the rescuer of his remedy? (5) Was Mr. Chadwick of such D ;
extraordinary susceptibility that he ought not to have been in the
contemplation of the reasonable man?
Dealing with the first one, are damages recoverable for injury
n
by shock where the injured man’s shock is not caused by fear for
his own safety or for the safety of his children? The earliest
authority to which I wish to refer is Dulieu v. White & Sons.1 EThat was a point of law decided on the pleadings. The plaintiff
had sustained a shock when the defendants’ van was driven into ' M : .
the bar in which the plaintiff was serving. The decision was that
of a Divisional Court consisting of Kennedy and Phillimore'JJ.
- ■'i'1 ■
and the court held that the action would lie. The reasoning of the
two judgments was on different lines *and Kennedy J., but not
Phillimore J., was inclined to think that the shock must be one
arising from a reasonable fear of immediate personal injury to
oneself, and he said *:
¥
tf t'L *i
“ It is not, however, to be taken that in my view every
nervous shock occasioned by negligence and producing
physical injury to the sufferer gives a cause of action. There
is, I am inclined to think, at least one limitation. The shock,
where it operates through the mind, must be a shock which
arises from a reasonable fear of immediate personal injury to
oneself. A has, I conceive, no legal duty not to shock B.’s
nerves by the exhibition of negligence toward C, or towards
the property of B or C. The limitation was applied by
Wright and Bruce JJ. in the unreported case of Smith v.
Johnson & Co.,3 referred to by Wright J. at the close of his
judgment in Wilkinson v. Downton.* In Smith v. Johnson
& Co.,1 a man was killed by the defendant’s negligence in the
sight of the plaintiff, and the plaintiff became ifi, not from
the shock produced by fear of harm to himself, but from the
1 [1901] 2 K.B. 669; 17 T.L.R.
555.
* Ibid. 675.
G
H
H
* Unreported.
* [1897] 2 Q.B. 57, 61.
* Unreported.
tt
DRTS
•JULY 14, 1967
J u l y 14, 1967
catastrophes such as
nts or disasters,
ly an element of perdoing, I think I must
rhe horror of the whole
s case raises a number
ed to both Mr. Tudor
-Ipful arguments which
r to determine whether
miff for damages in this
rs to which have been
re damages recoverable
n’s shock is not caused
lis children? (2) Is forein' lient? (3) Did the
:k,^M^o was not their
fact that the risk
t run by the passenger
s Mr. Chadwick of such
not to have been in the
-
3
_ Iin my view every
ligence and producing
. cause of action. There
e limitation. The shock,
must be a shock which
-diate personal injury to
duty not to shock B.’s
e toward C, or towards
iiation was applied by
orted case of Smith v.
ht J. at the close of his
4 In Smith v. Johnson
ndant’s negligence in the
i f became ill, not from
to himself, but from the
'eported.
’ 7] 2 Q.B. 57, 61.
•eported.
F
millan sa id 11:
* •
''r “ It is no loneer necessary to consider whether the infliction
of what is called mental shock may constitute an actionable
wrong. The crude view that tihe law should take cognjs£°£*
only of physical injury resulting from_ actual impact has been
discarded and it is now well recognised that an action will
i }e for injury by shock sustained through the medium of the
. Se «
K
r
without direct contact. T ic d istn ction t a t w « n
o 'ssETsir^ r j x a s M i s
precise scope of legal liability.
H
H
919
. shock of seeing another .person killed. The court held that _ 1967
this harm was too remote a consequence of the negligence.
Chadwick
v.
‘
I should myself, as I have already indicated, have been
British
- inclined to go a step further, and to hold upon the facts in
R a i lw a y s
Board
Smith v. Johnson & Co? that, as the defendant neither
intended to affect the plaintiff injuriously nor did anything W a l l e r J.
which could reasonably or naturally be expected to affect
him injuriously, there was no evidence of any breach of
legal duty towards the plaintiff or in regard to him of that
- absence of care according to the circumstances which Willes J.
-in Vaughan v. Taff Vale Railway Company gave as a
definition of negligence."
g
D
tt
[1967] 1 W.L.R.
So it does seem, however, that Kennedy J.’s limitation is made
following Smith v. Johnson & Co.* because the defendant did not
do “ anything which could reasonably or naturally be expected to
affect [the plaintiff] injuriously” In other words, he was impos­
ing the limitation which he did impose on the grounds of
unforeseeability.
Then came Hambrook v. Stokes Brothers* in which the
majority of the Court of Appeal did not apply Kennedy J.’s dictum
to a case of injury by shock where the shock arose out of a
mother’s fear of injury to her children.
I next consider the case of Bourhill v. Y ou ng: the well-known
case of the Edinburgh fishwife. Except in the speech of Lord Rus­
sell of Killowen,10 there is no disapproval of the' majority of the
Court of Appeal in Hambrook v. Stokes B r o t h e r s Lord Mac­
C
s recoverable for injury
3 not caused by fear for
children? The earliest
lieu v. White & Sons.1
pleadings. The plaintiff
ts’ van was driven into
. The decision was that
:edy and Phillimore JJ.
ie. The reasoning of the
id Kennedy J., but not
the_shock must be one
ii£ ^j>ersonal injury to
THE WEEKLY LAW REPORTS
With the exception of the speech of Lx>rd Russell of Killowen »
there arc no observations placing any particular limitation on the
kind of shock for which damages will be recoverable. I do not
see any objection in principle to damages being recoverable for
shock caused other than by fear for one’s own safety or for the
* Unreported.
•'(i8 6 0 ) 5 H. & N. 679, 688.
» Unreported.
.. T , „
» [1925] 1 K.B. 141; 41 T.L.R.
125, C.A.
• [1943] A.C. 92; [1942] 2 All
E.R. 396. H.L.(Sc.l.
10 [1943
A C . 92, 100.
ii [1925 1 K.B. 141.
i* [1943 A.C. 92, 103.
i t Ibid. 100.
[1967] 1 W.L.R.
920
1967
Chadwick
v.
British
Railways
Board
WjUU-E*
■i -!
J.
T H E W E E K L Y L A W REPORTS
J u ly
14, 1967 j
safety of one’s children. One only too frequently comes across -A ?{
the case of a man with a trivial industrial injury which sub­
sequently produces genuine neurotic symptoms not due to fear
but due to other causes. It would seem anomalous if serious
mental illness accompanied by a trivial injury would entitle a
man to compensation but if there were no trivial injury it would
•not. I should also mention Owens v. Liverpool Corporation “
which was a case where the plaintiff recovered damages for shock
not due to fear for personal safety or for the safety of children.
There is nothing in this decision which is inconsistent with the
view I have expressed and, although some disapproval of the
decision was expressed by some of their lordships in Bourhill v.
Young,15 in my opinion there is nothing in this disapproval :c
inconsistent with the view I have formed. In my opinion, there­
fore. provided that the necessary requisites of liability are there,
shock, other than fear for oneself or children, causing injury, may
be the subject of a claim for damages.
The second question I have to consider is whether foresee­
ability of injury by shock is necessary. The House of Lords in
Bourhill V . Young 11 considered a number of matters in deciding
whether or not the defendant owed a duty to the plaintiff and, in
deciding that the plaintiff was outside the area of contemplation^,
one of the matters considered, particularly by Lord Wright,
was the foreseeability of injury by shock. In King v. Phillips,
Denning L.J. said,1* in the passage which was later quoted with
approval by Viscount Simonds in Overseas Tankship {U.K.) Ltd.
V. Morts Dock & Engineering Co. Ltd. (The Wagon Mound),
that “ there can be no doubt since Bourhill v. Y o u n g 50 that the
test for liability for shock is foreseeability of injury by shock.
I therefore must ask myself whether injury by shock was foresee­
able in this case. The scene described by Mrs. Taylor was the
kind of thing to be expected if trains collided as these did and it
was one which could, in my view, properly be called gruesome.
In my opinion, if the defendants had asked themselves the hypo­
thetical question “ If we run one train into another at Lewisham
in such circumstances that a large number of people^ are killed,
may some persons who are physically unhurt suffer injury from
shock? ” I think that the answer must have been “ Yes.”
^ The third question i s : did the defendants owe a duty to the
plaintiff, who was not their servant but who had come to their
aid? The test i s : what ought the defendants to have foreseen?
In Baker v. T. E. Hopkins & Son L t d : 1 the Court of Appeal were
considering the circumstances in which defendants owe a duty to
rescuers. Morris L.J. said this ” :
l* [1939] 1 K.B. 394: 55 T.L.R.
246; [1938] 4 All E.R. 727, C.A.
» 1943] A.C. 92.
»« bid. 107.
” 19531 1 Q.B. 429: [1953] 2
W.L.R. 526; [1953] 1 All E.R. 617,
C.A.
*• [1953] 1 Q.B. 429, 441.
>• [1961] A.C. 388,
W.L.R. 126; [1961] 1
P.C.
[1943] A.C. 92.
» [1959] 1 W.L.R.
All E.R. 225.
** [1959] 1 W.L.R.
426; [1961] 2
All E.R. 404,
966; [1959] 3
966, 972.
J u ly
14, 1967
“ The f
that the dc
ployees. th;
to be in p<
foreseen, a
ably forese
them from
his life. I j
Stevenson :
or omissic
likely to
persons “'t
that I ou;
being so <
or omissic
is said th
their sen.-,
it ought
brave act
In the el
national ,
cry of di.
ignore th
conseque:
effect wit!
that impe
wrong ah
In the pre:
passengers. A
All of that cc
foreseen that
injury in the
duty to Mr. C
The fourt'
1 rescuer was :
rescuer of bis
In my opinic
manner of re
I have just
party,s* wher
i
different fror
also see B ra
of rescue mt
I have alre:
shock was !
be said that
3
defendants s
injury. In h
dent faapper
Lords held t
** [1932] A
494.
(1921) ::
M [1924] 1
J uly
14, 1967
i frequently comes across
ustrial injury which sub*
mptoms not due to fear
em anomalous if serious
al injury would entitle a
no trivial injury it would
Liverpool Corporation w
overed damages for shock
"or the safety of children,
i is inconsistent with the
some disapproval of the
r lordships in Bourhill v.
hing in this disapproval
d. In my opinion, thereites of liability are there,
dr "causing injury', may
Ju l y 14. 1967
•
g
i' B
\
i
I
i.
q
i
sider is whether foreseeThe House of Lords in D
■er of matters in deciding
ty to the plaintiff and, in
:e area of contemplation,
larly by Lord Wright,1*
k. In King v. Phillips,17
:h was later quoted with
E
eas Tankship (U.K.) Ltd.
(The Wagon Mound),1*
hill v. Young 39 that the
ity of injury by shock.”
ry by shock was foreseeby Mrs. Taylor was the
F
lided as these did and it
erlv-he called gruesome.
.ea. ,lmselves the hvpo:t
other at Lewisham
people are killed,
nhurt suffer injury from
•e been “ Yes.”
!ants owe a duty to the
who had come to their
iants to have foreseen?
ie Court of Appeal were
Pendants owe a duty to H
»
G
R
1] A.C. 388, 426; [1961] 2
26; [1941] 1 AU E.R. 404,
3] A.C. 92.
1 W.L.R. 966; [1959] 3
225.
9] 1 W.L.R. 966, 972.
THE WEEKLY LAW REPORTS
i
*
1
WX.R.
“ The first stage in the proof of the claim involves proof
that the defendant company was negligent towards their em­
ployees, the second that such negligence caused such employees
to be in peril, the third that this could reasonably have been
foreseen, and the fourth that it could also have been reason­
ably foreseen that someone would be likely to seek to rescue
them from their peril and might either suffer injury or lose
his life. In the classic words of Lord Atkin in Donoghue v.
Stevenson!S: ‘ You must take reasonable care to avoid acts
or omissions which you can reasonably foresee would be
likely to injure your neighbour.’ Neighbours are those
persons ‘ who are so closely and directly affected by my act
that I ought reasonably to have them in contemplation as
being so affected when I am directing my mind to the acts
or omissions which are called in question.’ So in this case it
is said that, if the company negligently caused or permitted
their servants to be placed in dire peril in a gas-filled well
it ought reasonably to have been contemplated that some
brave and stalwart man would attempt to save their lives.
In the eloquent words of Cardozo J. in Wagner v. Inter­
national Railway C o m p a n y ‘ Danger invites rescue. The
cry of distress is the summons to relief. The law does not
ignore these reactions of the mind in tracing conduct to its
consequences. It recognises them as normal. It places their
effect within the range of the natural and probable. The wrong
that imperils life is a wrong to the imperilled victim; it is a
wrong also to his rescuer.’ ”
In the present case, the defendants were negligent towards their
passengers. As a result, passengers were injured and put in peril.
All of that could reasonably have been foreseen. It could also be
foreseen that somebody might try to rescue passengers and suffer
injury in the process, and in my opinion the defendants owed a
duty to Mr. Chadwick, who was within the area of contemplation.
The fourth question i s : would the fact that the risk run by the
rescuer was not precisely that ru* by the passenger deprive the
rescuer of his remedy? This is a point taken by Mr. Tudor Evans.
In my opinion, once the possibility of rescue occurs, the precise
manner of rescue is immaterial. See, for example, the case which
I have just mentioned, Wagner v. International Railway Com ­
p a n y where the rescuer was doing something which was quite
different from that which was involved by those in the train, and
also see Brandon v. Osborne Garrett & Co. Ltd.ts The very fact
of rescue must, in my view, involve unexpected things happening.
I have already indicated, however, that in my view injury by
shock was foreseeable from this accident and therefore it can
be said that the risk was not different. It is not necessary that the
defendants should be able to foresee every step which leads to the
injury. In Hughes v. Lord Advocate,!* the way in which the acci­
dent happened was said to be unforeseeable, but the House of
Lords held that as the danger was foreseeable the defendants were
[1932] A.C. 562, 580; 48 T.L.R.
494.
*« (1921) 232 N.Y.Rep. 176, 180.
** [1924] 1 K.B. 548.
9]
[1967]
« [1963] A.C. 837;
W.L.R. 779; [1963] 1 AU
H.L.(Sc.).
.R. '705,
921
1967
Chadwick
v.
British
Railways
Board
W aLLEX J.
[1967] 1 W.L.R.
922
1967
!!
Chadwick
v.
British
Railways
Board
VV/U-LE* J.
TH E WEEKLY LAW REPORTS
J uly
July 14, 1967.
was one f o r '
tive is, entit
to damages ;
This illne
ment for aj
Chadwick w;
had been be:
with the acc
of this illnes
sickness ben
the misery a
diminished i
hospital, I v
total of £1,5.'
liable, although the steps by which the danger occurred were
unforeseeable. I am inclined to think in this case that if the defen­
dants had thought about it, they ought to have foreseen the
possibility of a rescuer suffering from shock, but in my view it
is sufficient to say that shock was foreseeable and . that rescue
was foreseeable.
- 'v
The fifth question i s : was Mr. Chadwick of such extraordinary
susceptibility that he ought not to have been in the contemplation
of the reasonable man? Lord Wright in Bourhill v. Y o u n g said:
- . “ What is now being considered is the question of liability,
' and this, I think, in a question whether there is duty owing
to members of the public who come within the ambit'of the
act, must generally depend on a normal standard of suscepti­
bility. This, it may be said, is somewhat vague. That is true,
but definition involves limitation which it is desirable to
avoid further than is necessary in a principle of law like : i --•;
negligence, which is widely ranging and is still in the stage of . J r.'* .. ‘t
development. It is here, as elsewhere, a question of what
the hypothetical reasonable man, viewing the position, I sup­
?v "■
pose ex post facto, would say it was proper to foresee. What
danger of particular infirmity that would include must depend d :
on all the circumstances, but generally, I think, a reasonably
normal condition, if medical evidence is capable of defining
it, would be the standard. The test of the plaintiffs extra­
ordinary susceptibility, if unknown to the defendant, would
.in effect make him an insurer. The lawyer likes to draw
fixed and definite lines and is apt to ask where the thing is_
to stop. I should reply it should stop where in the particular
case the good sense of the jury or of the judge decides.”
*
.
I
f'
!
'-i
And Lord Wright went on to rule out of contemplation a pregnant.
fishwife who was “ completely outside the range of the collision.”
Modern medicine recognises mental illness in a variety of
forms. As I mentioned earlier, neurosis of one kind or another,
is a frequent visitor to the courts in claims for damages for per- ’
sonal injuries. The community is not formed of normal citizens,,
with all those who are less susceptible or more susceptible to.
stress to be regarded as extraordinary. There is an infinite variety
of creatures, all with varying susceptibilities. Mr. Chadwick was
a man who had lived a normal, busy life in the community with
no mental illness for 16 years. He was, said Dr. Kendall, not
likely to relapse under the ordinary stresses o f life. Indeed, the
evidence showed that during those 16 years he had on one occasion
been attacked by a gang of youths with bicycle chains, without
any mental illness or injury resulting. This illness, according to
Dr. Kendall, is a sufficiently common accompaniment of catas­
B
trophes to be given a name. In my opinion, there was nothing
in Mr. Chadwick’s personality to put him outside the ambit of
contemplation. I have come to the conclusion, therefore, that the
defendants were in breach of the duty they owed to Mr. Chadwick
and that the illness which he suffered as a result of that breach
« [1943] A.C. 92, 110.
Ibid. 111.
14, 1967
Solicitors
«•
Equity—Cor
advanta.
public i
Unconsi
Patent—Cor.
Confide
scious i
public c
H
The
it. For
a view
negotiathe de:
native t
that th:
the net
which
suggest
and the
said he
On
EPORTS
Ju l y 14, 1967
J uly 14, 1967
ick of such extraordinary
>een in the contemplation
lour hill v. Y o u n g !7 said :
Judgment for the
£1,535 3s. 6d.
plaintiff
Chadwick
v. ----
British
Railways
. Board
W
aller
J.
for
Solicitors: James & Charles Dodd; M. H. B. Gilmour.
D.
contemplation a pregnant.
range of the collision.” **.
illness in a variety of
of one kind or another
ms for damages for perrmed of normal citizens,
or more susceptible to
ier | an infinite variety
lies,; -Mr. Chadwick was
e community with
Dr. Kendall, not
;ses of life. Indeed, the
s he had on one occasion
bicycle chains, without
his illness, according to
ccompaniment of catasH
nion, there was nothing
m outside the ambit of
jsion, therefore, that the
owed to Mr. Chadwick
a result of that breach
[ court
. > SEAGER
V.
f
i
of appeal ]
COPYDEX LTD.
.
C. A.
. •
1967
[1963 S. No. 301'7]
, '
'
Equity—Confidence—Confidential Information by inventor—Unfair
advantage—Use without consent of donor—Information partly
public and partly private — Disclosure of features of device —
Unconscious use of information—Damages.
Patent—Confidential information—Invention of patented device—
Confidential disclosure of features of similar device—Uncon­
scious use of information without consent—Information partly
public and partly private—Duty of confidence—Damages.
*
. ill.
W.L.R.
was one for which he was, or in this case his personal representa. tive is, entitled to recover. Mrs. Chadwick is therefore entitled
;to damages against the defendants. •
- •
This illness started in early 1958 and required hospital treat­
ment for approximately six months in 1959. Thereafter Mr.
Chadwick was able to work but was never the same man as he
had been before the accident. He died from causes unconnected
with the accident in December. 1962. He lost wages as a result
of this illness and giving credit for his earnings and for half the
sickness benefit Che total comes to £935 3s. 6d. In addition, for
the misery and discomfort for what must have been the greatly
diminished pleasure in life and for bis periods of treatment in
hospital, I would assess the general damages at £600, making a
total of £1,535 3s. 6d. for which the plaintiff is entitled to recover.
e danger oocurred were
"his case that if the defenht lo have foreseen the
hock, but in my view it
iseeable and that rescue
s the question of liability,
:-ther there is duty owing
: within the ambit'of the
mal standard of susceptiwhat vague. That is true,
which it is desirable to
a principle of law like
and is still in the stage of
er
• question of what
-w ^ f e h e position, I supp ^ P r to foresee. What
?u!d include must depend
:lv, I think, a reasonably
is capable of defining
: of the plaintiff’s extrato the defendant, would
ie lawyer likes to draw
o ask where the thing is
p where in the particular
the judge decides."
THE WEEKLY LAW REPORTS
H
The plaintiff invented a carpet grip and took out a patent for
it. For more than a year he negotiated with the defendants with
a view to their marketing the grip, but nothing came of the
negotiations. During the negotiations, the plaintiff disclosed to
the defendants the features of the grip and suggested an alter­
native grip with a tang and strong-point. The defendants realised
that this information was given to them in confidence. When
the negotiations had ended, the defendants made a carpet grip
which did not infringe the plaintiff’s patent but embodied his
suggestion of an alternative grip with a tang and strong-point;
and they gave this alternative grip the same name as the plaintiff
‘ said he had mentioned to them during the negotiations.
On the plaintiff’s claim, inter alia, for an injunction and an
March 13,
14.15;
April 18
Lo r d
D enning
M.R..
Sa l m o n
and
W
inn
LJJ.
Uca:» J.
PuMiason v. l'iiiniiigley Internal Drainage lid.
^
P
H eld, dismissing the
>at the plaintiff was entitled
to recover damages l o r U . c o g n i s a b l e psychiatric illness
caused by the shock of witnessing the accident resulting trom
the defendant’s breach of duty. In the exceptional circum­
stances the judge's award could not be said to be wholly
A
authority to encroach, usually with compensation to be p a iW p o W ^ ic
rights of the individual. In my judgment, the drainage boards arc given
such a power by section 40 of the Act of 1961.
. ■
Accordingly. I answer the two questions left to me. question (a) having
been withdrawn by conscnt, as follows: (b) Yes; (c) Yes.
Order that drainage board to have
costs of the preliminary issues.
Certificate under section 12 of the
Allministration of Justice Act, 1969,
granted.
B
err°iVr curiam. Damages are not awarded for the grief or
sorrow caused by a person’s death; nor for worry about the
children, or for the financial strain or stress, or the dilliculues
of adjusting to a new life (post, pp. 42 h , 44 h - d ) .
Decision of O ’Connor J. affirmed.
The following cases are referred to in the judgments:
Schneider v . FMovitch [1960] 2 Q.B. 430; [I9 6 0 ] 2 W .LJt. 169; [1960]
1 All E.R. 169.
Solicitors: Kenneth Drown, Baker, Baker; Newbald Kay & Sons, York.
S. S.
llinz v. Merry (C.A.)
2 Q.«.
*01
Tregoning V. Hill, The Times, March 2,1965.
C
c
N o additional cases were cited in argument.
p p e a l from O’Connor J.
. . .
The defendant. Anthony Paul Berry, appealed against the decision of
O’Connor J. on4Junc 4. 1969. awarding the plaintiff, Evelyn Frances Hinz,
„ widow, inter alia. £4.000 damages on her personal claim for damages
D arising out of the death of her husband. Charles Hinz. on April 19. 1964.
The grounds of appeal were that the judge’s assessment of damages
was wrong in principle in that it was wholly excessive in the circumstances.
The facts are fully stated in the judgments.
A
[ court
of
appeal]
D
HINZ v. BERRY
[1967 H. N o. 95]
1970
Jan. 16
Lord Denning M.R.. Lord Pearson and Sir Gordon Willmer
Personal injuries— N ervous shock— W ife seeing h iu b a n d
fatally i n j u r e d ~ R esulting depression — /• actor aQecttng
D am ages—
£
Negligence— D uty o f care to whom?—Shock— Death o f husband
N S ^ N e g lig e n c i o f driver
Resuliing nervous shock.
of
c a r -W ife
seeing
a c a d e n t-
In April. 1964. the plaintiff drove out for the day with her
husband, their four children and four foster-children in
p
Dormobile van. On their way back they stopped in a lay-by
to h ive a picnic tea. The plaintiff crossed the road with one
child to pick bluebells. A car, driven by the defendant, which
w a s o u t P o f control, came along and crashed into, the van
where the husband was making tea. 'Hearing the crash, the
nlaimill turned round and saw the disaster. Her husband
was lying by the van so seriously i n j u r e d that he died a few
h o u r s later. Most of the children suffered injuries.
q
Prior to the accident the plaintiff had been haPPy *
robust' a remarkable woman of great courage and ability
who was extremely fond o f children. The shock o f witnessing
the traitedv caused her to suirer prolonged m o r b i d depression.
On toe plaintiff’s claim o n behalf of herself and her
children under the Fatal Accidents Acts and for the personal
injuries which she had sustained, O'Connor J; awar(l**l the
plaintiff £15,107 under the Fatal Accidents AOs and £4.000 jj
damages in respect o f her personal claim for damages for
nervous^sho ^ ^
(he (ie femiant on the ground that the sum
George Carman for the appellant defendant. This is a tragic case; a
E family tragedy. But the award of £4,000 damages for nervous shock is
too high. The correct principles were stated by Pauli J. in Schneider v.
Eisovitch [1960] 2 Q.B. 430, 440-442. In Treguning v. Hill. 'Die Times,
March 2. 1965. Pauli J. awarded £750 damages for the fact that seeing
her husband suffer injuries from which he died within a week added to the
plaintiff’s depressed state of mind.
_
There are five causes of the plaintiff’s depressed state in the present
F ease: the plaintiff’s grief and sorrow; her anxiety about the children; the
financial strain causal by the death of her husband; the difficulty of ad­
justing to a new life; and the shock of witnessing the accident. Damages
can only be recovered for the actual shock caused by seeing the accident,
the last of the live causes.
There are four distinguishing features in the present case: ( 1) there
0 was no physical injury caused to the plaintiff; (2) she suffered no injury
of a permanent character; (3) she suffered no incapacity suflicient to render
in-treatment necessary; (4) she had had no reduction in earning capacity
and no wage loss which has not been catered for. Sympalhy for the
plaintiff should not be allowed to inflate the damages.
Kenneth Jupp Q.C.. Ksyr Ijewis and F. J. M. Murr-Johnson for the
u plaintiff respondent. O’Connor J. saw the plaintiff, who gave evidence in
H the witness-box. as did her doctor. Dr. Melville, who knew her before the
accident which he said had changed her “ from being a happy person
to a person who is almost permanently miserable.” and the consultant
llinz v. Berry (C.A.)
psychiatrist. Dr. Mcllroy. Damages for nervous shock arc
assess [Reference was made to Kemp & Kemp. I he Quantum of Damages.
3rd ed (1967) vol. 1. p. 650.] T h e judge applied the right principles. He
found on the evidence that the plaintiffs state of morbid depression was
due to her being present at the scene of the accidcnt. The court should
not interfere with his award.
Carman replied.
L ord D in n in g M.R. It happened on April 19. 1964. It w w • blue^ "
time in Kent. Mr. and Mrs. Hinz had been married some 10 years, and
Z
had four children, all aged nine and under The youngest was on *
Mrs Hinz was a remarkable woman. In addition to her own four, she
was foster-mother to four other children. To add to it. she was two months
pregnant with her fifth child.
T«nhriHo/On this day they drove out in a Bedford Dormob.le van from Tonbridge
to Canvey Island. They took all eight children with them. As they were
coming back they turned into a lay-by at Thurnham to have a picnic tea.
l'he husband. Mr. Hinz, was at the back of the Dormobile making the
tea. Mrs. Hinz had taken Stephanie, her third child, aged three, across
the road to pick bluebells on the opposite side. There came along a Jaguar
car driven by Mr. Berry, out of control. A tyre had burst. The Jaguar
rushed into this lay-by and crashed into Mr. Hinz and the children M .
Hinz was frightfully injured and died a little later. Nearly all the clnldren
were hurt. Blood was streaming from their heads. Mrs. Hinz. hearing
the crash, turned round and saw this disaster. She ran across the road
and did all she could. Her husband|Was beyond recall. But the children
rCC<An action has been brought on her behalf and on behalf of the cl“,dre"
for damages against Mr. Berry, the defendant. The injuries to he children
have been settled by various sums being paid. The pecuniary loss to Mrs.
Ute W refs “ of the loss of her hu.ba.ul has been found by (he judge to
be some £15,000; but there remains the question of the damages pay
her for her nervous sh ock -th e shock which she sulTered by seeing her
husband lying in the road dying, and the children strewn about.
The law at one time said that there could not be damages for nervous
shock- but for these last 25 years, it has been settled that damages can be
given for nervous shock caused by the sight of an accident, at any rate o
a close relative Very few of these cases have come before the courts to
the “l u n t of damages. O'Connor J. fixed the damages a he sum
of £4.000 for nervous shock. The defendant appeals, saying that the sum
>S TwouW like to pay at once a tribute to the insurance company for ‘he
considerate and fair way in which they have dealt with the case. In English
law no damages are awarded for grief or sorrow caused by a person s deatk
No damages are to be given for the worry about the children, or for the
financial strain or stress, or the difficulties of adjusting to a new life.
Damages are. however, recoverable for nervous shock. 0[- l0 Pu‘ ‘l “J
medical terms, for any recognisable psychiatric illness caused by the breach
of dulv bv live defendant.
i y.u.
There are only two cases in
c quantum of damages for navous
A shock has been considered. O n ^ , .n eid ers. E,sovitch 11960] 2 Q.B.
430. The other, Trcf>oning v. Hill, The Times. March 2. 1965. B
tliey do not help us here. Somehow or other the court has to draw
a line between sorrow and grief for which damages are not recover­
able. and nervous shock and psychiatric illness for which damages are
recoverable. The way to do this is to estimate how much Mrs. Hinz would
o have sulTered if. for instance, her husband had been killed in an accident
when she was 50 miles away: and compare it with what she is; now. having
suffered all the shock due to being present at the accident. The evidence
shows that she suffered much more by being present. I will consider first
the grief and sorrow if she had not been present at the accident,
ln e
consultant psychiatrist from the hospital in Maidstone said:
“ It is common knowledge that there is a ‘ mourning period ' for all
C
of us. and that normally time dispels this. In the average person it
might be a year, but in a predisposed person it can be greatly
prolonged. . .
Mrs. Hinz was not predisposed at all. She was a woman of great capacity,
level-headed, hard working, happily married. She would have got over
the loss of her husband in. say. a year.
D
Consider next her condition, as it is. due to being present at the
accident. Two years after the accident, the consultant psychiatrist said:
“ There is no medical doubt at all that she is sulfering from a morbid
depression: she is now officially ill." He went on to give some of the
symptoms. She said to him: “ It does not seem worth going on I
feel I cannot cope at all. I get so dreadfully irritable with the children
E
too. It is wrong but I feel like killing him/* that is, the posthumous
child. The consultant went on: “ She feels exhausted, has frequent
suicidal ruminations and at the same time is covered with guilt at
being like this.” The posthumous baby “ now saddens her even
more because it cries ‘ Dad, Dad,’ ’’ and one of the elder children
persists in saying “ You have not got a Dad ” ; and then the other
fatherless children join in the chorus.” The consultant concluded.
^
“ In other circumstances I would probably have brought her into
hospital, at least for a rest, but possibly for electrical treatment and
it may come to that yet.”
°
At the trial five years after the accident, she frequently broke down
when giving her evidence. She brought the children to court. They were
very well turned out. The judge summed up the matter in this way:
“ l a m satisfied that she was of so robust a character that she would
have stood up to that situation, that she would have been hurt, sorrow­
ful, in mourning. Yes; but in a state of morbid depression. No."
He awarded her £4,000 on this head. There is no suggestion that he
misdirected himself. We can only interfere if it is a wholly erroneous
H estimate. I do not think it is erroneous. I would dismiss the appeal.
L ord P harson . This is a case of considerable importance, because
I think it is the first case in which the problem of assessing damages of
2 Q.B.
Lord Pearson
1,11,1 v*
<C A ->
^
O
.
119701
this kind lias come to the Court of Appeal. I would like to point out at
the outsetthaMiiis is an exceptional case. The circumstances of the acci­
dent as witnessed by the plaintiff were of an
tracic character and it is easy to believe that she suffered an extremely
L T ^ S f r o n . witnessing it. She has been since theacc«iem . o r .
he savs 1 think rightly, that these five causes have all been operating from
5?e S
o he accident until now. The lirst factor was her own inevitable
r n n e r w to took cxtra work in addition to his normal work She may
well have been in considerable financial dilhculty rhc
^ e n q u ite
the need for adjusting herself to a new life, which may well have been quite
unusually Severe in this case. Now. all those .^ur factor are no^compensatable, that is to say they are not proper!subjects to Ibe * 1cen
S ' t h a U s ’ the shock of witnessing the
accident Tliat is the only factor which is compensatable in the sense that
IhSveexplained. It is not disputed that this factor is a proper subject
for compensation The only problem is one of assessment. Is the figure
which ha?been awarded in respect of it a figure which is within the leasw j
M e r T J V this factor had been merely one out of f.veand they had
all been more or less equal in their effect and there had been no special
consequences attributable to this one. I would have thought the figure
T a S w S much too high. But the
£
hac been held—and there is evidence in support— that this tactor 01 e
Haitt?v sa ss= « 5 ?3 S
t e n and “
is'inT
W ere is a reeo y sa b le
psychiatric illness. The finding of Hie judge, as 1: understand t o l^ sm c n
I will read th e relevan t p assa ge in a m o m en t— is tnat rnis is a spu -ia
consequence which h a s t e , .
d'S n S ! having said that. 1 will read the relevant passages from the j u j s *
infliyment because I think he has stated the principle correctly, and
onlv problem is whether the estimate which lie has made on the basis of
the principle can be regarded as within the proper range or not. He said.
.» . <1
»1%r»f l^r hiiMnnH
j llliiz v. Berry (C./V.)
Lord Peanou
in 1964 wouW m any event have been a very serious blow; so too
would be the injury to her children. She plainly relied on the love
and affection of her husband quite apart from his capacity as bread­
winner. It must have caused a very serious upset to her. The injury
to her children and their loss of a father and psychiatric disturbance
would again undoubtedly have preyed upon her mind, but 1 am satis­
fied that she was of so robust a character that she would have stood
up to that situation; that she would have been hurt, sorrowful, in
mourning, yes. but in a state of morbid depression, no. and it seems
to me that she is entitled to be compensated effectively for the extreme
mental anguish which she has suffered during the last live years as a
result of being present at the scene of this disaster.”
And then, in a slightly later passage:
“ I do not think it correct to approach this case on the basis that her
present troubles arc permanent or anything like that. Unfortunately
—and this is not the defendant’s fault, and I do not cast any blame
on the plaintiff’s advisers— bringing this case to decision has taken
a Very long time. To some extent that must have operated on Mrs.
Hinz’s mind. No one suggests that she is other than a genuine woman,
but it seems to me that after this case is decided, when damages have
been assessed and money is available, her depression will subside.
Basically she must remain of a strong character, and effectively I
approach the problem, doing the best I can, of awarding her compensation for what, as I have already said, is the intense suffering
which she has borne for the last five years ahd for some further time.
**
Well, I am not sure that that last sentence is quite rightly expressed.
It should not be for the whole of the mental anguish and suffering which
she has been enduring during the last five or six years. It should be only
for that additional element which has been contributed by the shock of
witnessing the accident, and which would not have occurred if she had not
suffered that shock. It is a difficult distinction to draw, but I think the
judge has laid a proper foundation and has found a right ground of
decision, namely, that where there is an extra element which has been added
by the shock of witnessing the accident, that is a proper subject of com­
pensation. On his findings in this case that that element in itself was the
sole cause of the added morbidity, the recognisable psychiatric element
in her present condition, that is a proper ground for a substantial sum of
money to be awarded.
As to the sum itself, it has seemed to me since the beginning of the
ease and I still feel it is a high figure. I myself would have been inclined
to award some lower figure; but it is well recognised that in cases of this
kind different minds can take different views as to the proper figure, and
if the figure awarded is within the reasonable range, then it is not right for
the Court of Appeal to interfere. Indeed, it has been said that the Court
of Appeal ought not to interfere on the ground only that the figure is too
high unless it appears to be a wholly erroneous estimate of what .the
should be; and although I feel it is high, I am not able to say it
46
Lord Pearson
Iliiiz v. Berry (C.A.)
/
.
2
[1970]
is a wholly erroneous estimate, and for that ret^ro l\r o u ld dismiss the
appeal.
S ir G ordon W illmur . I have reachcd the same conclusion. I would
like to emphasise once again that this is a very exceptional case, and I hope
that that circumstance will be borne in mind should there be occasion in
future to refer to what has been decided in the present case. I also regard
it as an extremely difficult ease. However, the mcdical evidence is cxceptionally strong to show that the stale of depression and anguish to which
this plaintiff has been reduccd over the past five years goes far beyond
what one would ordinarily expcct in the case of a lady deprived of her
husband as the result of an accident. To my mind the evidence is con­
clusive to show that the reason for the additional suffering of the plaintiff
is to be found in the fact that she was herself a personal witness of the
tragedy. It is important to bear in mind that what has resulted is described
by the psychiatrist who gave evidence as a “ recognisable psychiatric ill­
ness.” 1 think it is clear on the evidence that that illness is attributable,
and really wholly attributable, to the nervous shock resulting from the
actual witnessing of the accident. The judge found—and the medical
evidence was amply sufficient to support him—that but for this the plaintiff
“ was of so robust a character that she would have stood up to that
situation; that she would have been hurt, sorrowful, in mourning, yes, but
in a state of morbid depression, no.” It is for that state of morbid de­
pression. an illness brought about by the nervous shock, that she is entitled
to be compensated.
It seems to me that it is quite impossible to find any fault whatsoever
with the manner in which the judge directed himself as to the principles
to be applied. There has. however, during the argument been some suggestion that, having correctly directed himself on the law, the judge very
quickly forgot what he had himself said, and, no doubt quite unconsciously,
allowed his natural sympathy for the plaintiff to run away with him. with
the result that lie awarded an inflated figure. I do not accept that criticism.
I agree with my Lord that the sum at which the judge arrived was a high
figure; but in this case we are in an area where the damages seem to me to
be even more than usually at large. It is practically impossible to find
any signposts on the road; there is no tariff or pattern of awards irf this
class of case; and this makes it very difficult for any one judge to criticise
another judge’s estimate of what the damages ought to be. I find myself
quite unable to say that in this rather fluid state of affairs the sum at which
the judge in the present case arrived was such as could fairly be described
as a “ wholly erroneous estimate.” High as his award was. I think that
no sufficient reason has been shown for interfering with it, and, accordingly,
I agree that the appeal should be dismissed.
A
Q.B.
BELSF1ELD COURT CONSTRUCTION CO. LTD. v. PYWELL
1969
g
C
D
E
July 28
Arbitration— A w ard— E rror on face— Item isation o f claim and
counterclaim by arbitrator in award— M athem atical error
apparent only if award com pared with pleadings— Whether
B
pleadings available to be referred to by the court— W hether
pleadings fo rm in g special category o f case— W hether pleadings
incorporated into award— W hether error on face o f award.
C
[)
E
p
p
G
Q
Solicitors; Gregory. Rowcliffe & Co. for John Gorna & Co., Man- jj
Chester: Waterhouse & Co. for /•'. B. Jevons, Riley & Pope. Tonbridge,
H
Appeal dismissed with costs.
No interest allowed on damages not yet paid.
A dispute arose between the claimant builders and the
respondent house-owner which was referred to arbitration.
The builders claimed in respect o f work done and for extras,
and the owner counterclaimed on account o f defects and
delay. The arbitrator mads an award in which he set out
and made lindings against each o f the itemised details o f the
claim and counterclaim and, in the result, he ordered that
the builders pay to the owner £302 and costs. The builders
sought to set aside the award on the ground that, when com­
pared with the issues raised in their points o f claim and in the
‘ owner’s points o f defence, it was bad on the face o f it in that
it contained statements o f mathematical error. It was agreed
that there was no error on the face of the award unless the
pleadings could be looked at and the two compared. At the
hearing o f the motion lo set aside the builders argued that
the pleadings were available for comparison on the grounds
(1) that pleadings fell into a special category and, whether or
not referred to in an award, were always available for the
court to look at; (2) that they were so referred to by the
arbitrator in his award as to be incorporated in it: —
i f eld, dismissing the motion (1) that pleadings were not
documents of such a specialised nature in relation to an
arbitration that they could, where it was alleged that there
was an error on the face of the award, always be looked at
by the court (post, p. 53d ).
(2) That, although the courts were reluctant to set aside an
arbitrator's award, an exception did exist if there was an error
on the face of the award itself or in some other document
provided that the document was incorporated into it (post,
p. 5ln-i>); that, in the absence o f any special category for
pleadings, the question o f their incorporation had to be
approached in the same strict way that the courts had
approached the incorporation of contracts and particular
clause in contracts (post, pp. 5()ii— 5 1 a ) ; that any document
would only be regarded as having been impliedly incorporated
into an award if it was so referred to by the arbitrator that he
invited the reading of it; but that the itemisation in the pre­
sent award of items under claim and counterclaim was simply
a convenient method o f indicating the matters in respect of
which the arbitrator was making an award, and was not a
reference by him to the pleadings so as to incorporate them
into it (post, pp. 5 lo — 52n). Accordingly, the pleadings
were not to be looked at and there was no error on the face
o f the award.
Dicta o f Lord Russell o f Killowen in F. R . A bsalom Ltd.
v. Great Western (L on don ) Garden Village Society Ltd. [1933J
Willis J.
C A R L I N ». H E L I C A L U A R L T D .
154
C A R L IN V. H E L IC A L U A R L T D .
N O T T IN G H A M A S S IZ E S
Rees J.
CARLIN v. HELICAL BAR LTD.
June 26, 1970
Damages - Personal injuries - Assessment - Nervous shock and personality change
- Man crushed by crane being operated by plaintiff in course o f employment Liability for accident admitted by plaintiffs employers - Effect on plaintiff Loss o f amenities and depressive illness - Appropriate sum to be awarded as
general damages.
The plaintiff, now aged 62, was operating an overhead crane in the course o f his
employment wiili ihe defendant when a man was crushed againsi a sieel stanchion
by one o f ihe supporting legs o f ihe crane while ii was in moiion and under ihe con­
trol o f ihe plaintiff. The man died as a result o f his injuries. As a result o f witnessing
the accident ihe plaintiff suffered from nervous shock and a personality change and
had been unable lo return to full lime work. In an action for damages for persona
injuries againsi the defendants, the judge accepted evidence ihat ihe plaintiff would
never be able to return to full lime woik; that his relationship with his wife had
deteriorated and that he had become irritable and depressed, suffered from headaches,
dizziness and nightmares and had generally lost interest in life. The defendants ad­
mitted liability for the accident and lhat they were under a duty to compensate Hie
plaintiff, but there was a dispute as to quantum o f damage.
Held, that in addition to £875 agreed special damages there should be judgment
for the plaintiff for £1,250 in respeci o f loss o f future earnings and also £1,750
general damages to compensate him for ihe misery and loss o f amenities he had
undergone and which he would suffer in future as a result o f ihe nervous and
depressive illness caused by his witnessing the accident.
Hinz v. Berry II970J 2 Q.B.40 applied.
ACTION.
The facts are fully stated in the judgment.
L.S. SHIELDS Q.C. for the plaintiff.
C. FAWCETT for the defendants.
REES J. This is a claim for damages for what has been called in pre­
vious eases nervous shock, caused to the plaintiff, Irederick Carlin, in
the course o f his employment with the defendants, Helical Bar Ltd. On
January 30, 1970, the plaintiff was operating an overhead crane at the
defendant’s factory premises at Sutton-in-Ashfield in Nottinghamshire.
155
While he was so engaged, a man was crushed against a steel stanchion
by one o f the supporting legs o f the overhead crane while it was in
motion and under, the control o f the plaintiff. As a result o f the in­
juries the man died. The defendants concede that the injury and death
o f this man was caused by negligence and breach o f statutory duty for
which they arc responsible.
In view o f the effect o f this accident upon the plaintiff, it is important
that I should repeat what has been clear from the outset, that no-one
suggests that the plaintiff is in any degree whatsoever to blame for this
accident.
In the pleadings and in the initial stages o f the case the defendants
denied liability to compensate the plaintiff for the nervous shock and
the depressive state from wliich he has suffered as a result o f seeing the
injured man and o f realising that the overhead crane under his control
had brought about the death o f a fellow workman. This defence would
have required the examination o f the so-called “ nervous shock" cases,
to the advantage and interest o f lawyers and o f academic persons but
not that o f the plaintiff. After the mid-day adjournment yesterday
^counsel for the defendants stated that his clients now wished to admit
liability to compensate the plaintiff for the injury which he has sus­
tained. This humane and sensible decision will undoubtedly have brought
about a good deal o f relief to the plaintiff and his family.
My sole, but by no means easy, task is therefore to assess the damages
to be awarded to the plaintiff, who will be 62 years o f age in October,
1970. Up to January 30, 1970, he had an impressive work record. After
leaving school lie had worked for a substantial part o f 18 years under­
ground in the coal mining industry; for 10 years after that he had been
employed as foreman fitter for a t'irm o f constructional engineers, inclu­
ding working on heights. There followed a period o f five years during
which he worked for three years as a maintenance fitter and for two
years as a crane inspector. From about 1958 up to the date o f the
accident he had been employed by the defendants, chiefly as a crane
driver. Save for a very brief period before starting work with the
defendants, the plaintiff had always been in work and had worked
overtime when available. He did, however, suffer from bronchitis as a
result o f which, in the last 10 years, he has been o ff work for an average
o f about six weeks in each year, and this state o f affairs will continue.
His earnings while at work were £ 2 0 per week.
In spite o f the shock and distress caused by the accident the plaintiff
completed the day's work and did one further day's work. Thereafter
he was o f f work altogether for about three-and-a-half months until May
13, 1969. He then worked as a fitter's mate in the defendants' employ­
ment part o f the time up to July 1, 1969, and then had two weeks'
holiday. Up to the end o f October, 1969, he did some periods of work,
but since January, 1970, he has only done nine days’ work. While he
worked as a fitter’s mate he was paid by the defendants at his pre­
accident rate. After all proper deductions the special damages to date
have been agreed at £875.
o
#
156
C A R L I N v. H E L I C A L B A R L T D .
: I now turn to the question o f damages to be awarded for future loss
Of earnings. Allowing for a deduction o f six weeks o f f work as a result
Cft bronchitis, the annual sum at £ 2 0 per week would be £ 9 2 0 without
ajiy other deductions whatever. Having considered the whole o f the
eyidence, including that relating to the plaintiffs bronchitic condition,
lifind that he would liave retired at the age o f 65 years, so that the
maximum working life which falls to be considered is one o f about
three-and-a-half years.
On this part o f the case it is necessary to arrive at a fair estimate o f
the plaintiff’s prospccts o f finding and keeping employment in the future.
His general practitioner, Dr. Beattie, (though obviously considering that
the prognosis o f the plaintiffs prospects o f employment in the future
should mainly rest with the consultant psychiatrist) did say that it was
quite possible that the plaintiff would not work again simply because* he
was not fit for it. The consultant psychiatrist, Dr. Douglas, considered
that the plaintiff was chronically ill and he could only hope fo r a cycle
o f improvements and relapses, and it was more likely than not that he
would be unable to hold a job down regularly. Both doctors agreed that
it was in the plaintiffs best interests to find and to keep regular em ploy­
ment, and also that after this litigation was over some improvement
for a period is to be expected. Neither was optimistic about the prospects
o f the plaintiff returning to work. The plaintiff himself said he wanted
to get his cards from the defendants and cease to attempt work in
surroundings wliich have such grievous memories for him, and then to
try to find suitable work elsewhere. Upon the whole o f the material be­
fore me, I find tliat the best estimate that can be made is that it is
probable that the plaintiff will not work again, but that there is a chance
o f which account must be taken and a small deduction made when assess­
ing future loss o f earnings that he may find suitable employment which is
likely to be irregular and at about half his pre-accident rate. In my judg­
ment the evidence does not justify any more precise assessment o f his
future earning capacity. A deduction must also be made in respect o f one
half o f the value o f any rights in respect o f industrial injury benefits which
probably will accrue to the plaint it 1 for the remainder o f the five years
period ending in January, 1974. For this purpose, the court must assess
thp value o f these rights by making the best estimate that it can. I was
told at the bar that at the present time one half o f the benefits amounts
to about £275 per annum. In addition, the usual deductions must be
made in respect o f the fact that the plaintiff will receive an immediate
lump sum payment in respect o f the risks o f illness and death arising
from extraneous causes. Taking the whole matter into account, I think
a proper sum to allow for loss o f future earnings is one o f £ 1,250.
Finally I come to the difficult question o f general damages. I must
attempt to discover and to award a reasonable sum to compensate the
plaintiff for the misery and loss o f amenities he has undergone and will
in the future suffer as a result o f the nervous and depressive illness caused
by witnessing the accident. I approach this aspect o f the case with the
advantage o f having read the decision o f the Court o f Appeal in the recent
C A R L IN v. H E L IC A L B A R LTD.
157
case o f H im v. Berry 11970] 2 Q.B. 40. In that case the Court o f
Appeal were reviewing a decision o f a trial judge’s award o f £ 4,000
damages to a widow who had witnessed a tragic accident in which her
husband had been killed, and a number o f her children had been gravely
injured. Lord Denning M.R. said this at p. 1075:
“ In English law no damages are awarded for grief or sorrow caused
by a person’s death. No damages are to be given for the worry about
the children, or for the financial strain or stress, or the difficulties o f
adjusting to a new life. Damages are however recoverable for nervous
shock, or, to put it in medical terms, for any recognisable psychiatric
illness caused by the breach o f duty by the defendant."
Sir Gordon Willmer says, at p. 1078:
“ I agree with Lord Pearson that the sum at which the learned judge
arrived was a high figure; but in this case we are in an area where the
damages seem to me to be even more than usually at large. It is
practically impossible to find any signposts on the road; there is no
tariff or pattern o f awards in this class o f case; and this makes it
very difficult for any one judge to criticise another judge's estimate
4 o f what the damages ought to be” .
The facts in relation to the plaintiffs psychiatric illness briefly stated
are as follows. Dr. Douglas in his report dated August 26, 1969, des­
cribes the plaintiff's symptoms thus. The plaintiffs complaints were:
“ 1.1 have no interest in anything since the accident. 2 . 1 get
depressed, but I don't cry so much now. 3 . 1 have been so depressed
that I thought o f killing myself. There is a gun up the stairs and my
wife has followed me. I am not so depressed now and I would not
harm myself. 4 .1 am very irritable and particularly unpleasant to my
wife. 5 . 1 have bouts o f dizziness. 6 . 1 have headaches on the top o f
my head which move round to the back. 7 . 1 feel as if things are
closing in around me. I have lost my sexual drive and I get buzzing
in my left ear”.
Dr. Douglas' diagnosis was that the plaintiff was suffering from a trau­
matic neurosis due to the experience he underwent in the accident on
January 30, 1969. His prognosis at that time was in these terms:
"I cannot see him returning to his former job as crane driver in
view o f the fact that he is 60 years o f age and he himself is quite
determined that he could never have the nerve to handle a crane
because he would be afraid tliat somebody might be involved in an
accident. I would feel that after settlement o f any claim he may
have there might be some lessening o f his symptoms and I think
early settlement is essential if his present neurosis is not to become
a chronic condition. Me may recover from tliis depression, but as I
have already stated I feel it unlikely that he will return to his former
trade as crane driver. Finally, I think it should be pointed out that
this man has always had a good work record, has been a responsible
individual and that he is not in any way exaggerating his illness”.
Dr. Douglas examined the plaintiff again on March 23, 1970, when he
described the plaintiffs condition thus:
158
CA HL1N v. H E L I C A L UAH LT D .
C A R L I N ». H E L I C A L U A R LT D .
‘T h ere is no change in Mr. Carlin’s psychiatric state since my last
i; report dated August 26, 1969. Me continues to feel depressed, lacking
in energy, does not want to get up in the morning; there is marked
loss o f libido, he still experiences nightmares when he shouts and
runs about the bedroom. Me still coinplains about being irritable and
; nasty with his wife and he is now almost confined to his house, not
wanting to leave it because he feels so afraid. Me lias not been at his
job for the last four weeks, and as I saw him yesterday, he is
. simply not fit for work”.
His diagnosis was in these terms:
"This man is suffering from a post-accident neurosis with depress­
ion the main symptom. There is no alteration in his psychiatric state
since he was last seen in August’’.
The prognosis was this:
“ It is essential for this man’s well-being that any suggestion o f
compensation may be settled as soon as possible. As I suggested be­
fore, with his present neurosis which may well become chronic, and
his age, it is not going to be easy to get lum to return to crane driving.
It is possible he could do light work o f a non-exacting nature’’.
The plaintiff himself gave evidence in some detail about liis m ode o f life
since the accident. He said he spent lus day just “ mooching” about. He
did not take an interest any longer in his hobby o f watching football or
even assisting his wife in the household chores. He summed up his situ­
ation in these words: “ I just surrender and don’t feel I can cop e” . Both
his wife and Dr. Beattie, who has known the plaintiff since 19SS, des­
cribed the change which has taken place in his character and personality.
Dr. Beattie said that prior to January, 1969, the plaintiff “was not only
a determined and forthright man, but he could be aggressive to the
point o f rudeness” , whereas now, “the plaintiff is withdrawn, hyperanxious, depressed, and his whole character is withdrawn”. Me has had
suicidal thoughts and presents a picture o f symptoms normally associated
with an anxiety state and depression.
Dr. Beattie's conclusion is expressed in these words: “ I think he will
improve when these proceedings are over, but I think for a very, very
long time any stress will produce a deterioration” . Mrs. Carlin says this
Of her husband since the accident:
“ He has a terrible temper. The accident has made a difference in
all ways. He is not interested in anything. He wakes up in the middle
:: o f the night with nightmares. He cries, and I luivc never known him
do that before. He sits about and looks into space. I have to keep
pushing him. He forgets everything".
This kind o f case presents an unusually difficult problem lor any
tribunal called upon to assess general damages. Having regard to the
whole o f the circumstances, I think a fair sum to award for general
damages is one o f £1,750. Accordingly, there will be judgment for the
plaintiff for a total sum o f £ 8 7 5 , plus £ 1 ,25 0 , plus £ 1 ,7 5 0 , which I
make a total o f £3,875. There will be interest at 3 per cent on the
special damages o f £875 from the date o f the accident which amounts
0
•
to £39 7s. 6d; and interest at 6 per cent on the general damages o f
£ 1 ,7 5 0 from the date o f the issue o f the writ.
There will be judgment accordingly for the plaintiff with costs.
Solicitors for the plaintiff - W.H. Thompson.
Solicitors for the defendants - Blount, Petre & Co.,
Reported by Robin Purcluts Esq., Darrister-at-Law.
159
298
All England Law Reports
[1 9 82 ] 2 All ER
McLoughlin v O'Brian and others
a
HOLSE OF LORDS
LORD W1LBERFORCE. LORD EDMI ND-DAVIES. LORD RUSSELL OF KILLOWEN. LORD SCARV.AN AND
LORD BRIDGE OF HARWICH
J 5, I 6 FEBRl ARY, 6 MAY I 9$ 1
Sexigence - Duty io take care - Foreseeable harm - Duty to take eare to avoid injury to persons b
who might foreseeablv suffer injury from want ct care - Driver oj motor vehicle - Duty to other
road users and owners of property - Servous shook - Plaintiff suffering nervous shock on hearing
that family involved in road accident - Plaintiff at home at time oj accident - U hether duty oj
care owed to plaintiffhy driver causing accident.
Damages —Personal injury —Servous shock —Plaintijj s family killed or badly injured in ’oaii^ ^
accident caused by defendant's negligence - Plaintiff at home at time of accident - PlainV.jj
informed of accident and going to hospital - Plaintiff suffering nervous shock as a u'suli \Vhether defendant owing duty of care to plaintiff - Whether plaintiff's mjuiy ieasonul\\
foreseeable - Whether as matter of policy court would not impose duty of care or, defendant to
plaintiff.
d
Damages - Personal injury - Servous shock —Public policy — Whether public policy requiring
legal limitations on recovery of damages for nervous shock.
The plaintiff’s husband and three children were involved in a road accident caused by the
negligence of the defendants. One of the plaintiff's children was killed and her husband g
and other two children w ere severely injured. At the time of the accident the plaintiff
was at home two miles awav, She was told of the accident by a motorist who had been
at the scene of the accident and was taken to hospital where she saw the injured members
of her family and the extent of their injuries and shock and heard that her daughter had^
been killed. As a results of hearing, and seeing the results of, the accident the plaintifi
suffered severe and persisting nervous shock. The plaintiff claimed damages against the ^
defendants for the nervous shock, distress and injury to her health caused by the
defendants’ negligence. The judge dismissed her claim on the ground that her injury
was not reasonably foreseeable. On appeal, the Court of Appeal held that the plaintiff
was not entitled to claim against the defendants either because as a matter of policy a
duty of care was not to be imposed on a negligent defendant beyond that owed to persons
in close proximity, both in time and place, to an accident, even though the injuries
received by the plaintiff might be reasonably foreseeable as being a consequence of the
defendants’ negligence, or because the duty of care owed by a driver of a motor vehicle
was limited to persons on or near the road. The plaintiff appealed to the House of Lords.
H eld - The test of liability for damages for nervous shock was reasonable foreseeability
of the plaintiff being injured by nervous shock as a result of the defendant’s negligence,
Applying that test, the plaintiff was entitled to recover damages from the defendants
because even though the plaintiff was not at or near the scene of the accident at the time
or shortly afterwards the nervous shock suffered by her was a reasonably foreseeable
consequence of the defendant’s negligence. The appeal would accordingly be allowed
(see p 301 j , p 302 a b and h to p 303 a, p 305 e to g, p 3 0 6 / g, p 309 g, p 310 a d e,
p 311 f g , p 313 be and p 320 hj, post).
j
Dictum of Denning LJ in King v Phillips [1953] 1 All ER at 623 approved.
Dictum of Bankes LJ in Hamhrock v Stokes Bros [1924] All ER Rep at 113 and of Lord
Wright in Hay (or Bourhill) v loung [1942] 2 All ER at 405-406 applied.
Dillon v Legg (1968; 68 C 2d 728 considered.
Chester v Waver ley Municipal Council (1939) 62 CLR 1 not followed.
Per Lord Russell, Lord Scarman and Lord Bridge (Lord Edmund-Davies not con-
HL
McLoughlin v O'Brian
299
rurring). In the area of nervous shock caused by negligence on the highway, the sole test
a of liability is reasonable foreseeability without any legal limitation in terms of space,
time, distance, the nature of the injuries sustained or the relationship of the plaintiff to
the victim (although those are factors to be considered), since (per Lord Bridge) there are
no policy considerations sufficient to justify limiting the liability of negligent tortfeasors
by some narrower criterion than that of reasonable foreseeability. If (per Lord Scarman)
public policy requires such a limitation, the policy issue where to draw the line is not
justiciable but a matter for legislation (see p 310 b to h, p 3 11 r to g. p 3 17 ft p 319 / t o
j and p 320 e tog, post).
Per Lord \ \ ilberforce. The application of the reasonable foreseeability test in nervous
shock claims ought to be limited, in terms of proximity, so that what is foreseeable is
circumscribed by the proximity of the tie or relationship between the plaintiff and the
injured person, the proximity of the plaintiff to the accident both in time and place, and
£ the proximity of communication of the accident to the plaintiff through sight or hearing
of ihe event or its immediaie aftermath (see p 303 d t o / a n d p 3 0 4 / to p 305 e, post).
Decision of the Court of Appeal [1981] 1 All ER 809 reversed.
Notes
For liability for nervous shock, see 34 Halsbury's Laws (4th edn) para S, and for cases on
(j the subject, see 17 Digest (Reissue) 145-147,377-391.
For remoteness of damage, see 12 Halsbury’s Laws (4th edn) para 1 127, and for cases
on the subject, see 36(1) Digest (Reissue) 63-65, 306-307, 227-236, 1232-1236.
Cases referred to in opinions
Abram~ik v Brenner (1967) 65 DLR (2d) 651, 17 Digest (Reissue) 152, *253.
e Anns v M m m London Borough[ 1977] 2 All ER 492, [ 197S] AC 72S, [1977] 2 WLR 1024,
HL, 1(1) Digest (Reissue) 12S, 721.
Bell v Great \orthern Rly Co of Ireland (1S90) 26 LR Ir 42S, 36(1) Digest (Reissue) 310,
*255S.
Benson v Lee [1972] VR 879, 17 Digest (Reissue) 151, *277.
Bcardman v Sanderson [ 1964] 1 WLR 1317, CA, 17 Digest (Reissue) 145, 3 7S.
f British Rlys Board v Herrington [1972] 1 All ER 749, [1972] AC S77, [1972] 2 WLR 537,
HL, 36(1) Digest (Reissue) 121, 466.
Byrne v Great Southern and Western Rly Co o f Ireland (18S4) unreported, cited in 26 LR Ir
at 428, 36(1) Digest (Reissue) 310, *233 7.
Chadwick v British Transport Commission [1967] 2 All ER 945, [1967] 1 WLR 912, 17
Digest (Reissue) 147, 390.
g
Chester v Waverley Municipal Council (1939) 62 CLR 1, 36( 1) Digest (Reissue) 33, * 103.
Dillon v Legg (1968) 68 C 2d 728, Cal SC.
Donoghue (or M ‘Mister) v Stevenson [1932] AC 562, [1932] All ER Rep 1, HL, 36(1) Digest
(Reissue) 144, 362.
Dulieu v U-'fcite 6 - Sots [ 1901] 2 KB 669, [1900-3] All ER Rep 353, DC, 17 Digest (Reissue)
146, 3S3.
h Fender v Mildmay [ 1937] 3 All ER 402, [193S] AC i.H L , 12 Digest (Reissue) 325, 2332.
Hambrook y Stokes Bros [192.5] 1 KB 141, [1924] All ER Rep 110, CA, i7Digest (Reissue)
>4 5 , 3 7 7 Hay (or Bourhill) v young [1942] 2 All ER 396, [1943] AC 92, HL; ajfg 1941 SC 395, 17
Digest (Reissue) 146,35 s.
Haynes v Harwood [1935] 1 KB 146, [1934] All ER Rep 103, CA, 36(1) Digest (Reissue)
/
*45. 933Hedley Byrne & Co Ltd v Heller e~ Partners Ltd [1963] 2 All ER 575, [1964] AC 465, [1963]
3 WLR 101, HL, 36(1) Digest (Reissue) 24, S4.
Hin- v Berry [1970] 1 All ER 1074, [1970] 2 QB 40, [1970] 2 WLR 684, CA, 17 Digest
(Reissue) 147, 391.
Home Office v Dorset Yacht Co Ltd [1970] 2 All ER294, [1970] AC1004, [1970] 2 WLR
1140, HL, 36(1) Digest (Reissue) 27, 93.
300
All England Law Reports
[19 8 2 ] 2 All ER
Jansen v Driefontein Consolidated Mines Ltd [1902] AC 484, [1900-3] All ER Rep 426, HL,
12 Digest (Reissue) 296, 2 132.
g
King v Phillips [1953] > All ER 617. [1953] 1 QB 429. [>953] 2 ^'L R 526, CA, 17 Digest
(Reissue) 147, 3 5 o.
Lambert v L o w [19S0] 1 All ER 978, [1980] 2 WLR 299, CA; rvsd in part [1981] 1 All ER
1185, [1981] 2 WLR 71 3, HL.
Marshall v Lionel Enterprises Inc (1971) 25 DLR (3d) 141, i7Digest (Reissue) 152, *2 $4.
McKew v Holland d~ Hannen crCubitis (Scotland, Ltd [ 1969] 3 All ER 1621, HL, 17 Digest
(Reissue) 115, 1S
.Morgans v Launchbury [1972] 2 All ER 606, [1973] AC 127, [197:] 2 WLR 1217, HL.
36(1) Digest (Reissue) 173, 643,
Sova Mink Ltd v Trans-Canada Airlines [1951] 2 DLR 241, 36(1) Digest (Reissue) 47, * ’cS.
Overseas Tankship (UK) Ltd v Moris Dock and Engineering Co Ltd, The Wagor, Mound (So 1)
[1961] 1 All ER 404, [1961] AC 388, [1961] 2 WLR 126, DC, 36(1) Digest (Reissue) 63, c
227,
Rondel v Worsley [ 1967] 3 All ER 903, [1969] 1 AC 191, [1967] 3 WLR 1666.HL, 3 Digest
(Reissue) 786, 45.77,
Smith v Johnson cr Co (1897) unreported, cited in [>897] 2 QB at 61, DC, 36(1) Digest
(Reissue) 308, 1241.
Victorian Rlys Comrs v Coulias (iSSS) 13 App Cas 222, PC, 36(1) Digest (Reissue) 30S,
123 0.
Wagner v International Rlys Co (1911) 232 NY Rep 176.
A ppeal
The plaintiff, Rosina McLoughlin, appealed against the judgment of the Court of Appeal
(Stephenson, Cumming-Bruce and Griffiths LJJ) ([1981] 1 All ER 809, [1981] QB 599) g
given on 16 December 1980 dismissing her appeal against the judgm ent of Boreham J
on 11 December 1978 whereby the judge dismissed her claim against the defendants,
Thomas Alan O’Brian, A E Docker & Sons Ltd, Raymond Sygrove and Ernest Doe Si Sons
Ltd, the respondents to the appeal, for damages for shock, distress and injury to her
health. The facts are set out in the opinion of Lord Wilberforce,
f
Michael Ogden QC and Jonathan Haworth for the appellant,
Michael Turner QC and John Leighton Williams for the respondents.
Their Lordships took time for consideration.
6 May, The following opinions were delivered.
g
L O R D W I L B E R F O R C E . My Lords, this appeal arises from a very serious and tragic
road accident which occurred on 19 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 fr
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.
j
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 scapulae and
bruising and abrasions; Kathleen suffered concussion, fracture o f the right clavicle,
bruising, abrasions and shock; Gillian was so seriously injured that she died almost
immediately.
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
HL
McLoughlin v O'Brian (Lord Wilberforce)
301
.George was dying, and that he did not know the whereabouts of her husband or the
. a condition o f 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 m ud and oil. He saw the appellant and started sobbing. The appellant
b was ^ e n 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. F in a ll y , 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,
c
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. Siumerous
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
d
keen caused or contributed to by shock, as distinct from grief or sorrow, and that the
appellant was a person of reasonable fortitude.
On these facts, or assumed facts, the trial judge, Boreham J, gave judgm ent for the
respondents holding, in a most careful judgm ent 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,
e
On appeal by the appellant, the judgm ent o f Boreham J was upheld, but not on the
same ground see [1081] 1 All ER 809, [1981] QB 599)- Stephenson LJ took the view that
the possibility of injury to the appellant by nervous shock wus 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 LJ held that
injury by nervous shock to the appellant was ‘readily foreseeable’ but that the respondents
f owed no duty of care to the appellant. The duty was limited to those on the road
nearby. Cumming-Bruce LJ 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, ie one who was not present at the scene of grievous injuries to her family
but who comes on those injuries at an interval o f time and space, can recover damages for
nervous shock.
g
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 o f 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, o f external
h e^ents on the mind. There may thus be produced what is as identifiable an illness as any
tuat 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 onlv case which has
reached this House (Hay (or Bourhill) v loung [1942] 2 All ER 396, [1943'] AC 92) a claim
for damages in respect o f ‘nervous shock’ was rejected on its facts, the House gave dear
/ recognition to the legitimacy, in principle, o f 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.
W hile 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 & Sens [1901] 2 KB 669, [1900-3] All
ER Rep 353, though taken up by Sargant LJ in Hambrock v Stokes Bros [1925] 1 KB 141,
302
All England Law Reports
[1982] 2 All ER
[1924] All ER Rep 110, 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. 1 think a
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 (196S,: 29 ALR 3d 1316,
2. A plaintiff mav 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 Bros [1925] 1 KB 141, [1924] All ER Rep 110, Boardman v Sanderson £
[1964] 1 WLR 1317, Hm~ v Berrv[i97o] 1 All ER 1074, [>97°] * QB 40, including foster
children (where liability was assumed), and see King v Phillips [ i 9 5 3 ] > All ER 617, [19 5 3 ]
1 QB 419).
,
,
,, ,
. .
,
3. Subject to the next paragraph, there is no English case in which a plaintin 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 Bros an express distinction was c
made between shock caused by w hat the mother saw with her own e^es 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 on its
immediate aftermath. In Boardman v Sanderson the father was within earshot of the
accident to his child and likely to come on the scene; he did so and suffered damage from
what he then saw. In Marshall v Lionel Enterprises (197 0 - 5 DLR (3d; 141 thewifecame
immediatelv on the badlv injured body of her husband. And in Benson v Lee [1972] \ R
879 a situation existed with some similarity to the present case. The mother was in her
home 100 vards a wav, 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.
e
5. A remedv on account of nervous shock has been given to a man who came on a
serious accident involving people immediately thereafter and acted as a rescuer of those
involved (C hadw k v British Transport Commission [ 19 ^ 7 ] 2 All ER 9 45 , [>967] 1 " LR
91 2). ‘Shock’ was caused neither bv fear for himself nor by fear or horror on account of
a near relative. The principle o f‘rescuer’ cases was not challenged by the respondents and
ought, in mv opinion, to be accepted. But we have to consider whether, and how far, it f
can be applied to such cases as the present.
Throughout these developments, as can be seen, the courts have proceeded in the
traditional manner of the common law from case to case, on 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 g
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). 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 principle 4 in the interests of justice, /j
If one continues to follow the process of logical progression, it is hard to see why the
present plaintiff also should not succeed. She was not present at the accident, but she
came very soon after on its aftermath. If, from a distance of some 100 yards (cf Benson '
Lee), she had found her family by the roadside, she would have come within principle 4
above. Can it make any difference that she comes on them in an ambulance, or, as here,
in a nearby hospital, when, as the evidence shows, they were in the same condition, j
covered with oil and mud, and distraught with pain ? If Mr Chadwick can recover when,
acting in accordance with normal and irresistible human instinct, and indeed moral
compulsion, he goes to the scene of an accident, may not a mother recover if, acting
under the same motives, she goes to where her family can be found?
I could agree that a line can be drawn above her case with less hardship than would
have been apparent in Boardman’s and Hint’s cases, but so to draw it would not appeal to
most people's sense of justice. To allow her claim may be, I think it is, on the margin of
HL
fr
C
(/
e
f
g
h
/
McLoughlin v O'Brian (Lord Wilberforce)
303
what the process of logical progression would allow. But where the facts are strong and
exceptional, and, as I think, fairly analogous, her case ought, prima facie, to be assimilated
to those which have passed the test.
To argue from one factual situation to another and to decide by analogy is a natural
tendency o f the human and legal mind. But the lawyer still has to inquire whether, in
so doing, he has crossed some critical line behind which he ought to stop. That is said to
be the present case. The reasoning by which the Lords Justices decided not to grant relief
to the plaintiff is instructive. Both Stephenson and Griffiths LJJ accepted that the 'shock'
to the plaintiff was foreseeable; but from this, at least in presentation, they diverge.
Stephenson LJ considered that the defendants owed a duty of care to the plaintiff but
that for reasons of policy the law should stop short of giving her damages; it should limit
relief to those on or near the highway at or near the time of the accident caused by the
defendants’ negligence. He was influenced by the fact that the courts of this country,
and of other common law jurisdictions, had stopped at this point: it was indicated by the
barrier of commercial sense and practical convenience. Griffiths LJ took the view that,
although the injury to the plaintiff was foreseeable, there was no duty of care. The duty
of care of drivers of motor vehicles was, according to decided cases, limited to persons and
owners o f property on the road or near to it who might be directly affected. The line
should be drawn at this point. It was not even in the interest o f those suffering from
shock as a class to extend the scope of the defendants’ liability: to do so would quite likely
delay their recovery by immersing them in the anxiety of litigation.
I am deeply impressed by both of these arguments, which I have only briefly
summarised. Though differing in expression, in the end, in m y opinion, the two
presentations rest on a common principle, namely that, at the margin, the boundaries of
a m an ’s responsibility for acts of negligence have to be fixed as a matter of policy,
Whatever is the correct jurisprudential analysis, it does not make any essential difference
whether one savs, with Stephenson LJ, that there is a duty but, as a matter of policy, the
consequences of breach of it ought to be limited at a certain point, or whether, with
Griffiths LJ, one says that the fact that consequences may be foreseeable does not
automatically impose a duty of care, does not do so in fact where policy indicates the
contrary. This is an approach which one can see very clearly from the way in which Lord
Atkin stated the neighbour principle in Donoghue v Stevenson [1932] AC 462 at 580,
t* 93 2] All ER Rep 1 at 11 :‘. . . persons who are so closely and directly affected by my act
that I ought reasonably to have them in contemplation as being so affected . . . ’
This is saying that foreseeability must be accompanied and limited by the law’s
judgm ent as to persons who ought, according to its standards o f value or justice, to have
been in contemplation. Foreseeability, which involves a hypothetical person, looking
with hindsight at an event which has occurred, is a formula adopted by English law, not
merely for defining, but also for limiting the persons to whom duty may be owed, and
the consequences for which an actor may be held responsible. It is not merely an issue
of fact to be left to be found as such. When it is said to result in a duty of care being owed
to a person or a class, the statement that there is a ‘duty o f care’ denotes a conclusion into
the forming o f which considerations of policy have entered. That foreseeability does not
of itself, and automatically, lead to a duty of care is, I think, clear. I gave some examples
in Anns v Merlon London Borough [1977] 2 All ER 492 at 498, [1978] AC 728 at 752, Anns
itselt being one. I may add what Lord Reid said in McKVu- v Holland ir Hannen ir Cubitts
'Scotland: Ltd [1969] 3 All ER 1621 at 1623:‘A defender is not liable for a consequence of
a kind which is not foreseeable. But it does not follow that he is liable for every
consequence which a reasonable man could foresee.’
We must then consider the policy arguments. In doing so we must bear in mind that
cases o f ‘nervous shock’and the possibility of claiming damages for it are not necessarily
confined to those arising out of accidents in public roads. To state, therefore, a rule that
recoverable damages must be confined to persons on or near the highway is to state not
a principle in itselt but only an example of a more general rule that recoverable damages
must be confined to those within sight and sound of an event caused by negligence or,
at least, to those in close, or very close, proximity to such a situation.
The policy arguments against a wider extension can be stated under four heads. First,
304 ~
All England Law Reports________[19 8 2 ] 2 All ER
it mav be said that such extension may lead to a proliferation of claims, and possibly
fraudulent claims, to the establishment of an industry of lawyers and psychiatrists w ho a
will formulate a claim for nervous shock damages, including what in America is called
the customary miscarriage, for all, or many, road accidents and industrial accidents.
Second, it may be claimed that an extension of liability would be un.air to defendants,
as imposing damages out of proportion to the negligent conduct complained of. In so tar
as such defendants are insured, a large additional burden will be placed on insurers, ond
ultimately on the class of persons insured: road users or employers. Third, to extend
liability bevond the most direct and plain cases would greatly increase evidentiary
difficulties and tend to lengthen litigation. Fourth, it may be said (and the Coun o:
Appeal agreed w ith this; that an extension of the scope o f liability ought only to be made
by the legislature, after careful research. This is the course w hich has been taken in ew
South Wales and the Australian Capital Territory.
The whole argument has been well summed up by Dean Prosser in The Law cj Tcits c
(4th edn, 1971) P -56:
'The reluctance o f courts to enter this zone even where the mental injur\ is
clearly foreseeable, and the frequent mention of the difficulties o f proof, the *au*it\
of fraud and the problem of finding a place to stop and draw the line, suggest that
here it is the nature of the interest invaded.and the type of damages w hich is the real ^
obstacle.'
Since he wrote, the type o f damage has, in this country at least, become more familiar
and less deterrent to recovery. And some of the arguments are susceptible of answer.
Fraudulent claims can be contained by the courts, which, also, can cope with evidentian
difficulties. The scarcity o f cases which have occurred in the past, and the modest sums
recovered, giv e some indication that fears of a flood of litigation may be exaggerated,
experience in other fields suggests that such fears usually are. If som e increase does
occur, that may only reveal the existence of a genuine social need; that legislation has
been found necessary in Australia may indicate the same thing.
^
But, these discounts accepted, there remains, in my opinion, just because shock in us
nature is capable of affecting so wide a range of people, a real need for the law to pla^e
some limitation on the extent of admissible claims. It is necessary to consider three
elements inherent in any claim: the class of persons whose claims should be recognised,
the proximity of such persons to the accident; and the means by which the shock is
caused. As regards the class of persons, the possible range is between the closest of tami \
ties, of parent and child, or husband and wife, and the ordinary bystander. Existing lav.
recognises the claims of the first; it denies that of the second, either on the basis that sue
persons must be assumed to be possessed of fortitude sufficient to enable them to endure
the calamities of modern life or that defendants cannot be expected to compensate the
world at large. In my opinion, these positions are justifiable, and since the present case
falls within the first class it is strictly unnecessary to say more. I think, however, that it
should follow that other cases involving less close relationships must be very caret ull\
scrutinised. I cannot say that they should never be admitted. The closer the tie (not
merely in relationship, but in care) the greater the claim for consideration. The claim,
in any case, has to be judged in the light o f the other factors, such as proximity to the
scene in tim e and place, and the nature of the accident.
As regards proximity to the accident, it is obvious that this must be close in bot time
and space. It is after all, the fact and consequence of the defendant s negligence that must
be proved to have caused the 'nervous shock’. Experience has shown that to insist on
direct and immediate sight or hearing would be impractical and unjust and that under
what may be called the ‘aftermath’ doctrine, one who, from close proximity comes ye
soon on the scene, should not be excluded. In my opinion, the result in Benson '
[1972] VR 879 w as correct and indeed inescapable. It was based, soundly, on irec
perception of some of the events which go 10 make up the accident as an entire event, an
this includes . . . the immediate aftermath’. The High Court of Australia s
decision in Chester v Waverley Municipal Council (19 3 9 ) 62 CLR 1, where a child s
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McLoughlin v O'Brian (Lord Wilberforce)
305
was found floating in a trench after a prolonged search, may perhaps be placed on th?
other side of a recognisable line (Evatt J in a powerful dissent placed it on the same side),
but in addition, I find the conclusion o f Lush J in Benson v Lee to reflect developments in
the law.
Finally, and by way of reinforcement of'afterm ath’ cases, I would accept, by analogy
with ‘rescue’ situations, that a person of whom it could be said that one could expect
nothing else than that he or she would come immediately to the scene (normally a parent
or a spouse) could be regarded as being within the scope of foresight and duty. Where
there is not immediate presence, account must be taken of the possibility of alterations
in the circumstances, for which the defendant should not be responsible.
Subject only to these qualifications, I think that a strict test of proximity by sight or
hearing should be applied by the courts.
Lastly, as regards communication, there is no case in which the law has compensated
shock brought about by communication by a third party. In Hambrook v Stokes Bros
[1925]
1 KB 141, [19-4] All ER Rep 110, indeed, it was said" that liability would not arise
in such a case, and this is surely right. It was so decided in Abram^ik v Brenner {1967) 65
DLR (id) 651. The shock must come through sight or hearing of the event or of its
immediate aftermath. Whether some equivalent of sight or hearing, eg through
simultaneous television, would suffice may have to be considered.
d
My Lords, I believe that these indications, imperfectly sketched, and certainly to be
applied with common sense to individual situations in their entirety, represent either the
existing law, or the existing law with only such circumstantial extension as the common
law process may legitimately make. They do not introduce a new principle. Nor do I see
any reason why the law should retreat behind the lines already drawn. I find on this
appeal that the appellant’s case falls within the boundaries of the law so drawn. I would
g allow her appeal.
f
L O R D E D M U N D - D A V IE S . My Lords, I am for allowing this appeal. The facts
giving rise to it have been related in detail by m y noble and learned friend, Lord
Wilberforce, and both he and my noble and learned friend Lord Bridge have spaciously
reviewed the case law relating to the recovery o f damages for personal injury resulting
from nervous shock. My own observations can, in the circumstances, be substantially
briefer than I had originally planned.
It is common ground in the appeal that, the appellant’s claim being based on shock,
. . there can be no doubt since Hay (or Bourhill) v. Young ([1942] 2 All ER 396, [1943] AC
92 that the test of liability. . . is foreseeability of injury by shock’(per Denning LJ in King
v Phillips [1953] 1 All ER 617 at 623, [1953] 1 QB 429 at 441). But this was not always
the law, and great confusion arose in the cases from applying to claims based on shock
restrictions hedging negligence actions based on the infliction of physical injuries. In the
same year as that in which King v Phillips was decided, Goodhart perceptively asked why
it was considered that the area of possible physical injury should be relevant to a case
based on the unlawful infliction of shock, and continued (16 MLR, p 22):
‘A woman standing at the window of a second-floor room is just as likely to
receive a shock when witnessing an accident as she would be if she were standing on
the pavement. To say that the careless driver of a motor-car could not reasonably
foresee such a self-evident fact is to hide the truth behind a fiction which must
disappear as soon as we examine it. The driver obviously cannot foresee that the
woman at the window will receive a physical injury, but it does not follow from this
that he cannot foresee that she will receive a shock. As the cause o f action is based
on shock it is only foresight of shock which is relevant.’
Indeed, in King v Phillips itself Denning LJ expressly held that the fact that the plaintiff
was in an upstairs room 80 yards away from the scene of the accident was immaterial.
It is true that, as Goodhart observed, in most cases the foresight concerning emotional
injury and that concerning physical injury are identical, the shock following the physical
injury, and the result was that, in the early development of this branch of the law, the
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[1982] 2 All ER
courts tended to assume that this must be so in all cases. But in fact, as Goodhart
laconically put it, ‘The area of risk of physical injury may extend to only X yards, while
the area of risk of emotional injury may extend to Y yards’. That error still persists is
indicated by the holding of Stephenson LJ in the instant case that the ambit of duty of
care owed by a motorist is restricted to persons ‘on or near the highway at or near the
time of the accident’ (see [1981] 1 All ER 809 at 820, [1981] QB 599 at 614), and by
Griffiths LJ to those ‘on the road or near to it who may be directly affected by the bad
driving. It is not owed to those who are nowhere near the scene’ (see [ 1981 ] 1 All ER 809
at 827, [ i° 8 i] Q B 599 at 623). The most striking feature in the present case is that such
limits on the duty of care were imposed notwithstanding the unanimous conclusion of
the Court o f Appeal that it was reasonably foreseeable (and even ‘readily’ so in the
judgm ent of Griffiths LJ) that injury by shock could be caused to a person in the position
of the appellant.
Similar restrictions were unsuccessfully sought to be imposed in H awes v Harwood
[1935] > KB 146, [1934] All ER Rep 103, the plaintiff having been inside a police station
when he first saw the bolting horses and therefore out of sight and seemingly out of
danger. And they were again rejected in Chadwick v British Transport Commission [1967]
2 All ER 945, [1967] 1 WLR 912, where the plaintiff was in his home 200 yards away
when the Lewisham railway accident occurred. Griffiths LJ expressed himself as ‘quite
unable to include in the category of rescuers to whom a duty [of care] is owed a relative
visiting victims in hospital’ (see [1981] 1 All ER 809 at 827, [1981 ]QB 599 at 623). I do
not share the difficulty, and in my respectful judgm ent none exists. I am here content
to repeat once more the noble words of CardozoJ in Wagner v International Rlys 0 ( 1 9 2 1 )
232 NY Rep 176 at 1S0:
‘Danger invites rescue. The cry of distress is the summons to relief. The law does
not ignore these reactions of the mind in tracing conduct to its consequences. It
recognises them as normal. It places their effect within the range of the natural and
probable. The wrong that imperils life is a wrong to the imperilled victim; it is
wrong also to his rescuer.’
Was not the action of the appellant in visiting her family in hospital immediately she
heard of the accident basically indistinguishable from that of a ‘rescuer’, being intent on
comforting the injured? And was not her action 'natural and probable’ in the
circumstances? I regard the questions as capable only of affirmative answers, and,
indeed, Stephenson LJ so answered them.
I
turn to consider the sole basis on which the Court of Appeal dismissed the claim, that
of public policy. They did so on the ground of what, for short, may be called the
‘floodgates’ argument. Griffiths LJ presented it in the following way ([1981] 1 All ER
809 at 823, [1 9 8 O Q B 599 at 617):
‘If the [appellant’s] argument is right it will certainly have far-reaching
consequences, for it will not only apply to road traffic accidents. Whenever anybody
is injured it is foreseeable that the relatives will be told and will visit them in
hospital, and it is further foreseeable that in cases of grave injury and death some of
those relatives are likely to have a severe reaction causing illness. O f course, the
closer the relationship the more readily it is foreseeable that they may be so affected,
but if we just confine our consideration to parents and children and husbands and
wives, it is clear that the potential liability of the tortfeasor is vastly increased if he
has to compensate the relatives as well as the immediate victims of his carelessness.’
He continued ([1981] 1 All ER 809 at 827, [1981] QB 599 at 623):
‘Every system of law must set some bounds to the consequences for which a
wrongdoer must make reparation. If the burden is too great it cannot and will not
be met, the law will fall into disrepute, and it will be a disservice to those victims
who might reasonably have expected compensation. In any state of society it is
ultimately a question of policy to decide the limits of liability.’
HL
McLoughlin v O'Brian (Lord Edmund-Davies)
307
Stephenson LJ expressed the same view by citing his own observation when giving the
judgment of the Court of Appeal in Lambert v Lewis [1980] 1 All ER 978 at 1006, [1980]
* 2 WLR 299 at 331 that'There comes a point where the logical extension of the boundaries
of duty and damage is halted by the barrier of commercial sense and practical
convenience’.
. ,
My Lords, the experiences of a long life in the law have made me very familiar with
this 'floodgates' argument. I do not, of course, suggest that it can invariably be dismissed
as lacking cogency; on the contrary, it has to be weighed carefully, but I have often seen
it disproved by later events. It was urged w hen abolition of the doctrine of common
employment was being canvassed, and it raised its head again when the abolition of
contributory negligence as a total bar to a claim in negligence was being urged. And,
even before my time, on the basis of conjecture later shown to be ill-founded it provided
a fatal stumbling-block to the plaintiff’s claim in the 'shock’ case of \ icron'an RlysCcmrs
\-Coultas(\88S) 13 App Cas 222, where Sir Richard Couch sounded the ‘floodgates alarm
C in stirring words which are quoted in the speech of my noble and learned friend Lord
My Lords, for such reasons as those developed in the speech of my noble and learned
friend Lord Wilberforce and which it would serve no purpose for me to repeat in less
felicitous words of mv own, I remain unconvinced that the number and area of claims
. in ‘shock’ cases would” be substantially increased or enlarged were the respondents here
held liable. It is a question which Kennedy J answered in Dulieu v White <r Sens [ ' 9 0 1 ]
2 KB 669 at 681, [1900-3] All ER Rep‘353 at 360 in the following terms, which
commend themselves strongly to me:
e
‘I should be sorrv to adopt a rule which would bar all such claims on grounds of
policy alone, and in order to prevent the possible success of unrighteous or
groundless actions. Such a course involves the denial of redress in meritorious cases,
and it necessarily implies a certain amount of distrust, which I do not share, in the
capacity of legal tribunals to get at the truth in this class of claim.’
My Lords, in the present case two totally different points arising from the speeches of
two of your Lordships call for further attention. Both relate to the Court of Appeal s
/ invoking public policy. Unless I have completely misunderstood my noble and learned
friend Lord Bridge, he doubts that any regard should have been had to such a
consideration, and seemingly considered the Court of Appeal went wrong in paying any
attention to it. The sole test of liability, I read him as saying, is the reasonable
foreseeability of injury to the plaintiff through nervous shock resulting from the
defendant’s conceded default. And, such foreseeability having been established to their
unanimous satisfaction, it followed that in law no other course was open to the Court of
Appeal than to allow this appeal. I have respectfully to say that I cannot accept this
approach, It is true that no decision was cited to your Lordships in which the contrary
has been held, but that is not to say that reasonable foreseeability is the only test of the
validity of a claim brought in negligence. If it is surmounted, the defendant would
probably be hard put to escape liability.
/)
Lord Wright found it difficult to conceive that any new head of public policy could be
discovered (see Fender v Mildmay [1937] 3 All ER 402 at 427, [1938] AC 1 at 41). and,
were Lord Halsbury LC sound in denying that any court could invent a new head of
policy (seeJansen v Driefontein Consolidated Mines [1902] AC 484 at 491, [1900-3] All ER
Rep 426 at 429), I should have been in the happy position of accepting the standpoint
adopted by mv noble and learned friend Lord Bridge. But, as I shall later indicate, the
j more recent view which has found favour in your Lordships’ House is that public policy
is not immutable. Accordingly, whilst I would have strongly preferred indicating with
clarity where the limit of liability should be drawn in such cases as the present, in my
judgm ent the possibility of a wholly new type of policy being raised renders the
attainment of such finality unfortunately unattainable.
As I think, all we can say is that any invocation of public policy calls for the closest
scrutiny, and the defendant might well fail to discharge the burden of making it good,
308
All England Law Reports
[1 9 8 2 ] 2 All ER
as indeed, happened in Rondel v W’orsley [ i 067] 3 All ER 9 9 3 ’ [>9 6 9 ] ■ AC 191. But that
is not to say that success for the defendant would be unthinkable, for, in the words of g
MacDonald" 1 in Seva Mink Ltd v Trans-Canada Airlines [ 19 5 1] 1 DLR 241 at 254;
. . there is always a large element of judicial policy and social expediency
involved in the determination of the duty-problem, however it may be obscured by
the use of traditional formulae.’
I accordingly hold, as Griffiths LJ did, that 'The test of foreseeability is not a universal £
touchstone to determine the extent of liability for the consequences ot wrongdoing .’see
[1981] 1 All ER S09 at S23 [ io S ijQ B 599 a! 618). Authority for that proposition is both
ample in quantitv and exalted in status. My noble and learned friend Lord \\ ilberforce
has already quoted in this context the observation of Lord Reid in McJv'ew v Holland &
Hannen & Cubit:s (Scotland) Ltd [1969] 3 All ER 1621 at 1623, and referred to his own
treatment of the topic in Anns v Merton London Borough [ 1977] 2 All ER 492 at 49S, [197S] q
AC 728 at 752. where further citations are furnished. To add yet another, let me
conclude by recalling that in Hedley Byrne cr Co Ltd v Heller & Partners Ltd [1963] 2 All
ER 575 at 615, [1964] AC 465 at 536 L o rd Pearce observed:
'How wide the sphere of the duty of care in negligence is to be laid depends
ultimately on the courts’ assessment of the demands of society for protection from
the carelessness of others.’ (My emphasis.)
0
I finally turn to consider the following passage in the speech of my noble and learned
friend Lord Scarman:
‘Policv considerations will have to be weighed; but the objective of the judges is
the formulation of principle. And, if principle inexorably requires a decision which
entails a degree of policy risk, the court’s function is to adjudicate according to e
principle, leaving policy curtailment to the judgment of Parliament. . . If principle
leads to results which are thought to be socially unacceptable, Parliament can
legislate to draw a line or map out a new path.’
And at a later stage my noble and learned friend adds:
‘Why then should not the courts draw the line, as the Court of Appeal manfully ^
tried to do in this case? Simply, because the policy issue where to draw the line ;s
not justiciable.’
My understanding of these words is that my noble and learned friend shares (though
for a different reason) the conclusion of my noble and learned friend Lord Bridge that,
in adverting to public policy, the Court of Appeal here embarked on a sleeveless errand, g
for public policy has no relevance to liability at law. In my judgment, the proposition
that ‘. . . the policy issue . . . is not justiciable’ is as novel as it is startling. So novel is it in
relation to this appeal that it was never mentioned during the hearing before your
Lordships. And it is startling because in my respectful judgment it runs counter to wellestablished and wholly acceptable law.
I restrict myself to recent decisions of your Lordships’ House. In Rondel v W’orsley fj
[1967] 3 All ER 993, [1969] 1 AC 191 their Lordships unanimously held that public
policy required that a barrister should be im mune from an action for negligence in
respect of his conduct and management of a case in court and the work preliminary
thereto, Lord Reid saying ([1967] 3 All ER 993 at 998, [1969] > AC 191 at 228):
‘Is it in the public interest that barristers and advocates should be protected .
against such actions? Like so many questions which raise the public interest, a
decision one way will cause hardships to individuals while a decision the other way
will involve disadvantage to the public interest. . . So the issue appears to me to be
whether the abolition of the rule would probably be attended by such disadvantage
to the public interest as to make its retention clearly justifiable.’
In Home Office v Dorset Yacht Co [1970] 2 All ER 294, [1970] AC 1004 your Lordships
HL
s
McLoughlin v O'Brian (Lord Edmund-Davies)
309
House was called on to decide whether the English law of civil wrongs should be
extended to impose legal liability for loss caused by conduct of a kind which had not
hitherto been recognised by the courts as entailing liability. In expressing the view that
it did, Lord Diplock said ([1970] 2 All ER 294 at 324, [1970] AC 1004 at 1058):
.. . I agree with Lord E)enning MR that what we are concerned with in this
appeal ’ is . . . at bottom a matter of public policy which we, as judges, must
resolve".’
And in British Rlys Board v Herrington [1972] 1 All ER 749 at 756-757, [1972] AC 877
at So-, dealing with an occupier’s duty to trespassing children, Lord Reid said:
Legal principles cannot solve the problem. How far occupiers are to be required
by law to take steps to safeguard such children must be a matter of public policy.’
C
N.'.v l-orck' 'y1accordance with such a line of authorities, I hold that public policy issues
are justiciable. Their invocation calls for close scrutiny, and the conclusion may be that
its nature and existence have not been established with the clarity and cogency required
before recognition can be granted to any legal doctrine and before any litigant can
properl) be deprived of what would otherwise be his manifest legal rights. Or the
conclusion may be that adoption of the public policy relied on would involve the
introduction of new legal principles so fundamental that they are best left to the
legislature: see, for example. Morgans v Launchbury[\i?7i] 2 Al! ER 606 esp at 61 5, [1973]
AC 127 esp at 142. per Lord Pearson. And ‘Public policy is not immutable’ (per Lord
Reid m Rondel v Worsley [1967] 3All ER 993 at 998, [1969] 1 AC 199 at 227). Indeed,
\\ inheld described it as necessarily variable’, and wisely added ((1928) 42 Harv LR at 93):
This variability . . . is a stone in the edifice of the doctrine, and not a missile to be
flung at it. Public policy would be almost useless without it. The march of
civilization and the difficulty o f ascertaining public policy at any given time make
it essential. . . How is public policy evidenced? If it is so variable, if it depends on
the welfare of the community at any given time, how are the courts to ascertain
it? Some judges have thought this difficulty so great that they have urged that it
would be solved much better bv the legislature and have considered it to be the
main reason why the courts should leave public policy alone . . . This admonition
is a wise one and judges are not likely to forget it. But the better view seems to be
that the difficulty o f discovering what public policy is at any given moment
certainly does not absolve the bench from the duty of doing so. The judges are
bound to take notice of it and o f the changes which it undergoes, and it is immaterial
that the question may be one of ethics rather than of law.'
In the present case the Court of Appeal did just that, and in my judgment they were
right in doing so. But they concluded that public policy required them to dismiss what
t e\ clearly regarded as an otherwise irrefragable claim. In so concluding, I respectfully
hold that they were wrong, and I would accordingly allow the appeal.
LORD RUSSELL OF K ILLO W EN . My Lords, I make two comments at the
outset. First, we are not concerned with any problem that might have been posed had
the accident been not wholly attributable to the negligence of the defendants, but partly
attributable to negligent driving by the injured son of the plaintiff. Second, the plaintiff
is to be regarded as of normal disposition or phlegm; we are therefore not concerned to
^ investigate the applicability of the ‘thin skull’ cases to this type of case.
/
The facts in this case, and the physical illness suffered by the plaintiff as a result of
mental trauma caused to her by what she learned, heard and saw at the hospital have
een set out in the speech o f my noble and learned friend Lord Wilberforce and I do not
repeat them.
All members of the Court of Appeal concluded that that which happened to the
P aintiffwas reasonably foreseeable by the defendants as a consequence of their negligence
on the road. (In some cases, and at all levels, a reasonable bystander seems to be introduced
h
310
All England Law Reports
[1982] 2 All ER
as a relevant mind; I do not understand why; reasonable foreseeability must sureh be
something to be attributed to the person guilty of negligence.)
g
But, if the effect on this wife and mother of the results of the negligence is considered
to have been reasonablv foreseeable, I do not see the justification for not finding the
defendants liable in damages therefor. I would not shrink from regarding in an
appropriate case policy as something which may feature in a judicial decision. But in this
case what policy should inhibit a decision in favour of liability to the plaintiff? Negligent
driving on the highway is only one form of negligence which may cause wounding or
death and thus induce a relevant mental trauma in a person such as the plaintiff. There
seems to be no policy requirement that the damage to the plaintiff should be on or
adjacent to the highway. In the last analysis any policy consideration seems to be rooted
in a fear of floodgates opening, the tacit question: what next? I am not impressed by that
fear, certainly not sufficiently to deprive this plaintiff of just compensation for the
reasonablv foreseeable damage done to her. I do not consider that such deprivation is c
justified bv trying to answer in advance the question posed, What next ? by a consideration
of relationships of plaintiff to the sufferers or deceased, or other circumstances; to
attempt in advance solutions, or even guidelines, in hypothetical cases may well, it seems
to me, in this field, do more harm than good.
I also would allow this appeal.
d
L O R D SC A R M A N . My Lords, I have had the advantage of reading in draft the speech
of my noble and learned friend Lord Bridge. It cannot be strengthened or improved by
any words of mine. I accept his approach to the law and the conclusion he reaches. But
I also share the anxieties of the Court of Appeal. I differ, however, from the Court of
Appeal in that I am persuaded that in this branch of the law it is not for the courts but
for the legislature to set limits, if any be needed, to the law’s development.
g
The appeal raises directly a question as to the balance in our law between the functions
of judge and legislature. The common law, which in a constitutional context includes
judicially developed equity, covers everything which is not covered by statute. It knows
no gaps: there can be no casus omissus. The function of the court is to decide the case
before it, even though the decision may require the extension or adaptation of a principle
or in some cases the creation of new law to meeLthe justice of the case. But, whatever the f
court decides to do, it starts from a baseline of existing principle and seeks a solution
consistent with or analogous to a principle or principles already recognised.
The distinguishing feature of the common law is this judicial development and
formulation o f principle. Policy considerations will have to be weighed; but the
objective o f rhe judges is the formulation o f principle. And, if principle inexorably
requires a decision which entails a degree o f policy risk, the court s function is to g
adjudicate according to principle, leaving policy curtailment to the judgm ent of
Parliament. Here lies the true role of the two law-making institutions in our
constitution. By concentrating on principle the judges can keep the common law alive,
flexible and consistent, and can keep the legal system clear of policy problems which
neither they, nor the forensic process which it is their duty to operate, are equipped to
resolve. If principle leads to results which are thought to be socially unacceptable, h
Parliament can legislate to draw a line or map out a new path.
The real risk to the common law is not its movement to cover new situations and new
knowledge but lest it should stand still, halted by a conservative judicial approach. If
that should happen, and since the 1966 practice direction of the House (see Sole [1966]
3 All ER 7 7 , [1966] 1 WLR 1 2 3 4 )it has becom e less likely, there would be a danger of the
law becoming irrelevant to the consideration, and inept in its treatment, of modern j
social problems. Justice would be defeated. The common law has, however, avoided
this catastrophe by the flexibility given it by generations of judges. Flexibility carries
with it, o f course, certain risks, notably a degree of uncertainty in the law and the
'floodgates' risk which so impressed the Court of Appeal in the present case.
The importance to be attached to certainty and the size of the 'floodgates’ risk vary
from one branch of the law to another. What is required of the law in its approach to a
McLoughlin v O'Brian (Lord Scarman)
HL
311
commercial transaction will be very different from the
o f ton io u s liability for personal injuries. In some branches o f the law, notably that no
»
u X
Z l l ' L L
“ ^
S
^
^
the
forcertainty can obstruct the law's pursut, ofyusttee. » i
t i o
n
.
Certainty could have K e n a c h ie v e d bv leaving
the law as it was left by f t r t - Klys Cemrs ,• C « i m I , SSI) 13
,(]
holding the line drawn in .9 0 . by Dulieu v White 6- Sow [ . 9 o»] » KB 669, [>900 3] AM
h ER Rep 353 or today by confining the law to what was regarded by Lo"d ° eT " g ,
b in H i n v Berry [ 1970] .All ER >o-4 at , 075. [> 97o] 2 QB 4 = a, 4* as settled law nam ely
that 'd'amages can be given for nervous shock caused by the sight o an acci e
” But at each landmark stage co m m o n law principle, w h en considered in ^ e co^ “ ' ° f
developing medical science^ has beckoned the judges on And now, as has been made
„ d e a r bv Evatt 1, dissenting in Chester v W aver ley Municipal Council 11939, 6 - 1CLR > ' n J c
C High Court of Australia, by T obriner J. giving the m a j o r i t y jud gm en t ,n the a h f o r n an
case of Dillon v Legg (1968) 68 C 2d 728, an d by m y noble and learned friend n ' h i s c s e
c o m m o n law prfnciple requires the judges to follow the logic o f the reasonaHy
foreseeable test’ so as, in circumstances w here it is appropriate, to apply it untram m elle
by spatial Physical or temporal limits. Space, time, distance, the nature o f the injuries
d sustained and'the relationship of the plaintiff to the im mediate v i c t i m ^ ‘He
factors to be weighed, but not legal limitations, w hen the test of reasonable forese
15 Bme ia a m b v no means sure that the result is socially desirable. The A g a t e s ’
arg u m en t m av be exaggerated. T im e alone will tell; but 1 foresee social and jinan£ ,al
nroMems ifdamages for nervous shock’ should be made available to persons other than
parents and children w ho w ithout seeing or hearing the accident, or b e i n g e
6 im m ediate aftermath, suffer nervous shock in consequence of it._ There: is. I th in k a
powerful case for legislation such as has been enacted in New South Wales an
e
AUW^v th e ^ s h o u l^ n m the courts draw the line, as the Court of Appeal manfully tried
to do I this case? Simply, because the policy issue
^ h J
» n
1
friend Lord Bridge, while putting on record my view that there
legislation.
L O R D B R ID G E OF H A R W I C H . Mv Lords, I gratefully adopt the account given by
S
S
i d
friend Lord Wilberforce of the facts giving nse to < - p p e a
This is onlv the second case ever to reach your Lordships H o u s e concerning me
liability of a tortfeasor who has negligently killed or physically i n j u r e d A to pa> damage
to B for a psychiatric illness resulting from As death or injury. The previous case w
1 am left after being taken in a rg u m e n t through all the relevant English authorities, a
n u m b e r 'o f C o m m o n w ea 11h authorities and o'n e important decision o f * e S u p rm ie
Court o f California, is that this whole area o f English law stands in urgen
The basic difficulty o f the subject arises from the fact that the crucial answers to
questions which it raises lie in the difficult field o f psychiatric medic^ e; J he
f law gives no damages for the em otional distress which any normal person exper ences
when som eone he foves is killed or injured. Anxiety and depre«,on «
emotions. Yet an anxiety neurosis or a react, ve depression ma> be recognisable
D s v c h i a t ri c illnesses, w ith or w ith o u t psychosomatic symptoms. So, the
X
t
p lain ,iff cla im in g dam ages o f the k in d in question m ust surm ount , s t o h
that he is suffering not merely grief, distress or any other normal em otion but a positi e
is
hete no. in issue. A plaintiff m ust then est.bhsh the necessary
es®
312
All England Law Reports '
,£"fsf§ 8 2 ] 2 All ER
chain of causation in fact between his psychiatric illness and the death or injury of one
or more third parties negligently caused by the defendant. Here again, this is not in
dispute in the instant case. But, when causation in fact is in issue, it must no doubt be
determined by the judge on the basis of the evidence o f psychiatrists. Then, here comes
the all important question. Given the fact of the plaintiff’s psychiatric illness cased by
the defendant’s negligence in killing or physically injuring another, was the chain of
causation from the one event to the other, considered ex post facto in the light of all that
has happened, 'reasonably foreseeable’ by the ‘reasonable m an’? A m om ent’s thought
will show that the answer to that question depends on what knowledge is to be attributed
to the hypothetical reasonable man of the operation of cause and effect in medicine.
There are at least two theoretically possible approaches. The first is that the judge should
receive the evidence of psychiatrists as to the degree of probability that the particular
cause would produce the particular effect, and apply to that the appropriate legal test of
reasonable foreseeability as the criterion of the defendant’s duty of care. The second is
that the judge, relying on his own opinion of the operation of cause and effect in
psychiatric medicine, as fairly representative of that of the educated layman, should treat
himself as the reasonable man and form his own view from the primary facts whether
the proven chain of cause and effect was reasonably foreseeable. In principle, I think
there is much to be said for the first approach. Foreseeability, in any given set of
circumstances, is ultimately a question of fact. If a claim in negligence depends on
whether some defect in a complicated piece of machinery was foreseeably a cause of
injury, I apprehend that the judge will decide that question on the basis of the expert
evidence of engineers. But the authorities give no support to this approach in relation to
the foreseeability of psychiatric illness. The judges, in all the decisions we have been
referred to, have assumed that it lay within their own competence to determine whether
the plaintiff’s ‘nervous shock’ (as lawyers quaintly persist in calling it) was in any given
circumstances a sufficiently foreseeable consequence of the defendant’s act or omission
relied on as negligent to bring the plaintiff within the scope of those to whom the
defendant owed a duty of care. To depart from this practice and treat the question of
foreseeable causation in this field, and hence the scope of the defendant’s duty, as a
question of fact to be determined in the light of the expen evidence adduced in each case
would, no doubt, be too large an innovation in the law to be regarded as properly within
the corr., -jtence, even since the liberating 1966 practice direction (see .Vote [1966] 3 All
ER 77. [ 1966] 1 WLR 1234), of your Lordships’ House. Moreover, psychiatric medicine
is far from being an exact science. The opinions of its practitioners may differ widely.
Clearly it is desirable in this, as in any other, field that the law should achieve such a
measure of certainty as is consistent with the demands of justice. It would seem that the
consensus of informed judicial opinion is probably the best yardstick available to
determine whether, in any given circumstances, the emotional trauma resulting from
the death or injury o f chird parties, or indeed the threat of such death or injury, ex
hypothesi attributable to the defendant’s negligence, was a foreseeable cause in law, as
well as the actual cause in fact, of the plaintiff's psychiatric or psychosomatic illness. But
the word I would emphasise in the foregoing sentence is 'informed’. For too long earlier
generations of judges have regarded psychiatry and psychiatrists with suspicion, if not
hostility. Now, I venture to hope, that attitude has quite disappeared. No judge who has
spent any length of time trying personal injury claims in recent years would doubt that
physical injuries can give rise not only to organic but also to psychiatric disorders. The
sufferings of the patient from the latter are no less real and frequently no less painful and
disabling than from the former. Likewise, I would suppose that the legal profession well
understands that an acute emotional trauma, like a physical trauma, can well cause a
psychiatric illness in a wide range of circumstances and in a wide range of individuals
whom it would be wrong to regard as having any abnormal psychological make-up. It
is in comparatively recent times that these insights have come to be generally accepted
by the judiciary. It is only by giving effect to these insights in the developing law of
HL
McLoughlin v O'Brian (Lord Bridge)
313
negligence that we can do justice to an important, though no doubt small, class of
plaintiffs whose genuine psychiatric illnesses are caused by negligent defendants.
My Lords, in the instant case I cannot help thinking that the learned trial judge’s
conclusion that the appellant’s illness was not the foreseeable consequence of the
respondents negligence was one to which, understandably, he felt himself driven by the
authorities. Free of authority, and applying the ordinary criterion of reasonable
foreseeability to the facts, with an eye ‘enlightened by progressive awareness of mental
illness (the language of Stephenson LJ (see [1981] 1 All ER 809 at 8 19, [ 1 9 8 il OB 509 at
612.,. any judge must 1 would think, share the view of all three members of the Court
2
1^' .
J u_nderstand a11 your Lordships agree, that, in the words of
Griffiths LJ, it was readily foreseeable that a significant number of mothers exposed to
such an experience might break down under the shock of the event and suffer illAess' (see
[19S 1] 1 All ER 809 at 822, [1981] QB 599 at 617).
The question then, for your Lordships’ decision is w hether the law, as a matter of
policy, draws a line which exempts from liability a defendant whose negligent act or
omission was actually and foreseeably the cause of the plaintiffs psychiatric illness and,
it so, w here that line is tobe drawn. In thus formulating the question, I do not, of course
T - -#r j
nt gllgIe" t as Prejudging the question whether the defendant owes the
plaintiff a duty but I do use the word ‘foreseeably’ as connoting the normally accepted
criterion o f such a duty.
"
y
St
rah
Before attempting to answer the question, it is instructive to consider the historical
development of the subject as illustrated by the authorities, and to note, in particular
three features of that development. First, it will be seen that successive attempts have
been made to draw a line beyond which liability should not extend, each of which has in
due course had to be abandoned. Second, the ostensible justification for drawing the line
e has been related to the current criterion of a defendants duty o f care, which, however
expressed in earlier judgments, we should now describe as that of reasonable
foreseeability. But, third, in so far as policy considerations can be seen to have influenced
li& i
7
■
«
;
wn„H K
V
10 have sP r u n 8 from tl* fear that to cross the chosen line
would be to open the floodgates to claims without limit and largely without merit
Perhaps the most vivid illustration of all three features is in the verv first case in the
series, the decision of the Privy Council in Victorian Rlvs Comrs v Coultas (1888) 13 App
ai w - ^ ' K
r T f
a P reS n a n t !a d >'-was a passenger in a b u g g y w h ic h was neg lig ently
llowed b y th e d e f e n d a n ts ’ g a te k e e p e r to cross the railway line w h e n a train was
’. Y-v w n .
***r ,v
T - ThcJ?u8ffl\':r0? « d Just in time, ahead of the train, but only narrowlyescaped collision. The plaintiff was so alarmed that she suffered what was described as
e\ere nervous shock . She fainted, and subsequently miscarried. She succeeded in her
c aim for damages in the courts below. Delivering the judgm ent of the Privy Council,
allowing the appeal, Sir Richard Couch said (at 225-226):
'According to the evidence of the female plaintiff her fright was caused by seeing
the train approaching, and thinking they were going to be killed. Damages arising
from mere sudden terror unaccompanied by an actual physical injury but
occasioning a nervous or mental shock, cannot under such circumstances', their
.0
PS think, be considered a consequence which, in the ordinary course of
things, would flow from the negligence of the gate-keeper. If it were held that they
can it appears to their Lordships that it would be extending the liability for
neg lgence much beyond what that liability has hitherto been held to be Not onlv
in such a case as the present, but in every case where an accident caused bv
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
ot alleged physical injuries of determining w hether they were caused by the
neghgent act would be greatly increased, and a wide field'opened for imaginary
ft
Kir. • *
m t5 ?
>Z I* ? ■J
im
* ! » •
I
f
**
314
All England Law Reports
[1 982] 2 All ER
T wo Irish courts declined to follow this decision; Bell v Great Not tnei n R h Co of Ireland
(i 890) 26 LR Ir 42S, following Byrne v Crcat Southern and \\ estern Rly Co of Ireland (1884) g
unreported. The next English case followed the Irish courts lead. This was Dulieu v
White 6~ Sons [1901] 2 KB 669. [1900-3] All ER Rep 353 - The case was argued on a
preliminary point of law. The plaintiff, again a pregnant lady, pleaded that she had
suffered nervous shock when the defendants’ horse-drawn van was negligent]) drhen
into the public house where she was behind the bar. Kennedy J gave the leading
judgm ent of the Divisional Court in the plaintiff's favour. It is worth quoting the £
passage which is central to his decision, if only to show how far we have travelled in the
last eightv vears in the judicial approach to the kind of medical question presently under
consideration. He said ([ 1001] 2 KB 669 at 677, [ 1900-3] All ER Rep 353 al 3 5 8;‘For mv ow n part, I should not like to assume it to be scientifically true that a
nervous shock which causes serious bodily illness is not actually accompanied by
physical injury, although it may be impossible, or at least difficult, to detea the
injury at the time in the living subject. I should not be surprised if the surgeon or
the physiologist told us that nervous shock is or may be in itself an injuiious
affection of the phvsical organism. Let it be assumed, however, that the physical
injury follows the shock, but that the jury are satisfied upon proper and sufficient
medical evidence that it follows the shock as its direct and natural effect, is there an\
legal reason for saving that the damage is less proximate in the legal sense than
damage which arises contemporaneously?’
But earlier in his judgment Kennedy J had drawn a new line of limitation when he
said ([1901] 2 KB 669 at 675; cf [1900-3] All ER Rep 353 at 3 5 7 .:: The shock, where it
operates through the mind, must be a shock which arises from a reasonable fear of
immediate personal injury to oneself.’ He supported this by reference to an earlier case g
(Smith v Johnson & Co {1898) unreported), where the unsuccessful plaintiff suffered from
the shock o f seeing another person killed and said of such a case:
'I should m vself. . . have been inclined to go a step further, and to hold . . . that,
as the defendant neither intended to affect the plaintiff injuriously nor did anything
which could reasonably or naturally be expected to affect him injuriously, there was ^
no evidence of any breach of legal duty towards the plaintiff. . .
The next landmark is Hambrook v Stokes Bros [1925] > KB 141, [1924] All ER Rep
110. This was the case which turned on whether ‘nervous shock caused to a mother by
fear for her children, who had just disappeared round a corner going up a hill when a
runaway lorry appeared round the corner going downhill, and when, as it turned out,
one o f her children was injured, gave a cause of action against the driver w h o s e negligence g
allowed the lorry to run down the hill. The court by a majority held that it did. The
leading judgm ent of Bankes LJ sought to demonstrate the absurdity of maintaining the
boundary o f a defendant’s liability for ‘nervous shock’ on the line drawn by Kenned) J,
saying ([1925] 1 KB 141 at 151, [1924] All ER Rep 110 at 113):
‘Assume two mothers crossing the street at the same time when this lorr) comes
thundering down, each holding a small child by the hand. One mother is
courageous and devoted to her child. She is terrified, but thinks only of the damage
to the child, and not at all about herself. The other woman is timid and lacking in
the motherly instinct. She also is terrified, but thinks only of the damage to herself
and not at all about her child. The health of both mothers is seriously affected by
the mental shock occasioned by the fright. Can any real distinction be drawn
between the two cases? Will the law recognise a cause ofaction in the case of the less
deserving mother, and none in the case o f the more deserving one? Does the law
say that the defendant ought reasonably ro have anticipated the non-natural feeling
o f the timid mother, and not the natural feeling of the courageous mother? I think
.
McLoughlin v O'Brian (Lord Bridge)
Sareant LJ, in his dissenting judgment, nevertheless sought to uphold the distinction
essentiallv on the basis that ‘nervous shock’ caused to a plaintiff by fear o f injury to
himself occasioned by a ‘near miss’ is indistinguishable, so far as the defendant s duty is
--oncerned, from injury by direct impact, whereas ‘nervous shock’ caused by the tear or
sight of injury to another is beyond the defendant’s anticipation and hence beyond the
ranee of his dutv.
When one comes to the decision of your Lordships' House in Hay [or Bourhill) v Young
ri042] 2 All ER 396, [1943] AC 91 it is important to bear in mind, as the speeches
delivered show, that the difference of judicial opinion in Hambrook v Stokes Bros remame
unresolved, and indeed that their Lordships did not purport to resolve it. Furthermore,
on the facts of that case, the result was surely a foregone conclusion. The pursuer was
alighting from a tram when she heard, but did not see, the impact of a collision between
a motor cvclist (on whose negligence in driving too fast her claim was based) and a car.
The motor cvclist, a stranger to the pursuer, was killed. There is nothing in the report
to indicate that she ever saw the body, but after the body had been removed she saw the
blood left on the road. In these circumstances I cannot suppose that any judge toda)
would dissent from the view that ‘nervous shock’ to the pursuer was not reasonably
foreseeable. Nor would anyone, I think, quarrel with the following passage from the
speech of Lord Porter as expressing a view of the law as acceptable in 1982 as it was in
/ 1942 ([1942] 2 All E R 396 a t 409, [ 1943 ] AC 92 a t 11 7) :
§>
i
T h e question whether emotional disturbance or shock, which a defender ought
reasonablv to have anticipated as likely to follow from his reckless driving, can e\er
form the basis of a claim is not in issue. It is not every emotional disturbance or
everv shock which should have been foreseen. The driver of a car or vehicle even
though careless is entitled to assume that the ordinary frequenter of the streets as
sufficient fortitude to endure such incidents as may from time to time be expected
to occur in them, including the noise of a collision and the sight of injury to others,
and is not to be considered negligent towards one who does not possess the
customary phlegm.’
& e
I
o
315
On the difference of opinion in Hambrook v Stokes Bros Lord Russell in terms exPr“ se^
{ a preference for the dissenting view of Sargant LJ. Lord Thankerton and Lor
Macmillan, although not saying so in terms, appear by necessary implication to support
h
the s a m e view bv confining a driver’s duty of care to those in the area of potentia
£
physical danger w'hich may arise from the manner of his driving. Lord Porters speech
t
is neutral. Lord Wright expressed provisional agreement with the majority decision in
f
Hambrook v Stokes Bros. His speech also contained the following and, as I think, tar%
g sighted passage ([1942] 2 All ER 396 at 405-406, [1943] AC 92 at 110).
If
fe
1
‘What is now being considered is the question of liability, and this, I think, in a
question w hether there is a duty owing to members of the public who c om e within
the ambit o f the act, must generally depend on a normal standar o
susceptibility. This, it may be said, is somewhat vague. That is true; but definition
involves limitation, which it is desirable to avoid further than is necessary m a
principle of law like negligence, which is widely ranging and is still in the stage o
development. 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. What danger of particular infirmity that would include must depen
the circumstances; but generally, I think, a reasonably normal condition, if medical
evidence is capable o f defining it, would be the standard. The test of the P ™ ™ " *
extraordinary susceptibility, if unknown to the defendant, would in effect make he
defendant an insurer. The lawyer likes to draw fixed and definite lines and is apt to
ask where the thing is to stop. I should reply it should stop where in the particular
case the good sense of the jury, or of the judge, decides .. I cannot, ° * e' •
forbear referring to a most important case in the High Court of Australia, Chester .
316
All England Law Reports
[19 8 2 ] 2 All ER
Weverley Municipal Council ((1939) 62 CLR 1), where the court by a_majority held
that no duty was made out. The dissenting judgment of E v a t t , J ., will demand the ^
consideration of any judge who is called upon to consider these questions.
I shall return later to the judgment of Evatt J to which Lord \ \ right there refersI need not consider in detail the subsequent English Court of Appeal decisions in King
vPhiIiirj[i953] 1 All ER 617, [>9 5 3 ] >QB 419. Boardman v Sander.™ [1964] 1 WLR 1317
and Hin^ v Berry [ 1970] 1 All ER 1074, [1970] 2 QB 40. In King v Phillips [1953]> All ER
617 at 623, [1953] 1 QB 4 2 9 at 441, Denning LJ said: ‘. . . there can be no doubt since Hay
(or Bcurhill; v. Young that the test of liability for shock is foreseeability of injury by shock.
This observation was cited with approval in Oversea Tankship (I K) Ltd v Morts Do:k
and Engineering Co Ltd The Wagon Mound (So 1)[196'] 1 All ER 404 at 41 5, [1961] AC
3 S8 at 426. I would add, however, that King v Phillips, a case in which the plaintiff failed,
would, as I think, clearly be decided differently today. By 1970 it was dear that no one
could any longer contend for the limitation of liability for ‘nervous shock to those w ho
were themselves put in danger by the defendant’s negligence, so much so that in Hin^ v
Bfrrv a mother who witnessed from one side of the road a terrible accident to her family
picnicking on the other side of the road recovered damages for her resulting psvchiatric
illness without dispute on the issue of liability, and the case reached the Court of Appeal
on the issue of quantum of damages only. Lord Denning MR said ([i 970] 1 All ER 10,4
at 1 0 7 5 , [1970] 2 QB 40 at 42):
T h e law at one time said that there could not be damages for nervous shock; but
for these last 25 years, it has been settled that damages can be given for nervous
shock caused by the sight of an accident, at any rate to a close relative.
The only other important English decision is Chadwick v British Transport Commission
[1967] 2 All ER 945, [1967] 1 WLR 912. The plaintiff’s husband lived 200 yards from
the scene of the terrible Lewisham railway accident in 1957 in which 90 people were
killed. On hearing of the accident in the evening he went at once to the scene and
assisted in the rescue work through the night until early next morning. As a result of his
experiences of the night he developed an acute anxiety neurosis for which he required
hospital treatment as an in-patient for over six months. After his death from unrelated
causes his wife, as administratrix of his estate, recovered damages for his ps>chiatric
illness. This was a decision of Waller J. It was not challenged on appeal and no one, I
believe, has ever doubted that it was rightly decided.
I should mention two Commonwealth decisions of first instance. In Benson \ Lee
[1972] VR 879 Lush J, in the Supreme Court of Victoria, held that a m other who did not
witness, but was told of, an accident to her son too yards from her home, went to the
scene and accompanied the child in an ambulance to hospital where he died, was entitled
to damages for ‘nervous shock’ notwithstanding evidence that she was prone to mental
illness from stress. In Marshal v Lionel Enterprises Inc (19T1) 25 DLR (3d) 141 Haines J, in
the Ontario High Court, held that a wife who found her husband seriously injured
shortly after an accident caused by defective machinery was not, as a matter of law,
disentitled to damages for the ‘nervous shock' which she claimed to have suffered as a
result. On the other hand in Abram~ik v Brenner (i 967) 65 DLR (2d) 651 the Saskatchewan
Court of Appeal held that a mother who suffered ‘nervous shock on being informed b\
her husband that two of her children had been killed in a road accident was not entitled
to recover.
.
.
Chester v Waverley Municipal Council (1939) 62 CLR 1, referred to by Lord \ \ right in
the passage quoted above, was a decision of the High Court of Australia. The plaintiffs
seven-vear-old son having been out to play, failed to return home when expected. A
search was mounted which continued for some hours. Eventually, in the presence of the
plaintiff, his mother, the child’s dead body was recovered from a flooded trench which
the defendant authority had left inadequately fenced. The plaintiff claimed damages for
‘nervous shock’. The majority of the court (Latham CJ, Rich and Starke JJ) rejected the
e
f
g
fi
j
HL
McLoughlin v O'Brian (Lord Bridge)
317
claim. The decision was based squarely on the ground that, the plaintiff’s injury not
a being a foreseeable consequence of the defendant’s omission to fence the trench, they
owed her no duty. But the judgm ent of Latham CJ contains an interesting example of
th e ‘floodgates’ argument. He said (at 7-8):
D
But in this case the plaintiff must establish a duty owed by the defendant to
herself and a breach of that duty. The duty which it is suggested the defendant
owed to the plaintiff was a duty not to injure her child so as to cause her a nervous
shock when she saw, not the happening of the injury, but the result of the injury,
namely, the dead body of the child. It is rather difficult to state the limit of the
alleged duty. If a duty of the character suggested^exists at all it is not really said that
it should be confined to mothers of children who are injured. It must extend to
some w ider class but to what class? There appears to be no reason why it should
not extend to other relatives or to all other persons, whether they are relatives or
not. If this is the true principle of law, then a person who is guilty of negligence
with the result that A is injured will be liable in damages to B, C, D and any other
persons who receive a nervous shock fas distinguished from passing fright or distress)
at any time upon perceiving the results of the negligence, whether in disfigurement
of person, physical injury, or death.’
(j
In a powerful dissenting judgment, which I find wholly convincing, Evatt J drew a
\ i\ id picture of the mother s agony of mind as the search continued, culminating in the
gruesome discovery in her presence of the child s drowned body. I cannot for a moment
doubt the correctness of his conclusion that the mother's mental illness was the
reasonably foreseeable consequence of the defendant’s negligence. This was a case from
New South Wales and I cannot help wondering whether it was not the manifest injustice
g ot the result which led, a few years later, to the intervention of the New South Wales
legislature, to enable the parent, husband or wife of a person ‘killed, injured or put in
peril by another s negligence to recover damages for ‘mental or nervous shock'
irrespective of any spatial or temporal relationship to the accident in which the death,
injury or peril occurred.
My Lords, looking back I think it is possible to discern that there onlv ever were two
f dear lines o f limitation of a defendant's liability for 'nervous shock’ for which any
rational justification could be advanced, in the light both of the state of the law of
negligence and the state of medical science as judicially understood, at the time when
those limitations were propounded. In 18S8 it was, no doubt, perfectly sensible to say:
Damages arising from mere sudden terror unaccompanied by anv actual physical
injury, but occasioning a nervous or mental shock, cannot
. be considered a
consequence which, in the ordinary course of things, would flow from . . .
negligence.’
See \ ictorian Rlys Ccmrs v Coultas 13 App Cas 222 at 225.) Here the test, whether of duty
or of remoteness, can be recognised as a relatively distant ancestor of the modern
criterion of reasonable foreseeability. Again, in 1901 it was, I would suppose, equally
h sensible to limit a defendant s liability for ‘nervous shock’ which could ‘reasonably or
naturally be expected' to be such as was suffered by a plaintiff who was himself phvsicallv
endangered by the defendant's negligence (see Dulieu v White & Sens [1901] 2 KB 669 at
rr
^ Ll^0 0 -^
^ ^ eP 353 at 357 ). But once that line of limitation has been
crossed, as it was by the majority in Hambrock v Stokes Bros, there can be no logical reason
1 ^ SIeVe[
limiting the defendant s duty to persons in physical proximirv to the place
r ? ”e .
accident, caused by the defendant's negligence, occurred. Much of the
contusion in the authorities since Hay (or Bcurhill) v Young, including, if I mav sav so, the
J gments of the courts below in the instant case, has arisen, as it seems to me, from the
j f . e r e S - accor^ec^ notwithstanding the acceptance of the Hambrock principle, to
V3 ° .
^Lordships in Hay (or Bcurhill) v young which only make sense if understood
on the 1‘mited principle of liability propounded by Kennedy J in Dulieu v White
318
All England Law Reports
[1982] 2 All ER
Sens, and adopted in the dissenting judgment of Sargant LJ in Hamtrrock v Stokes Bros.
My Lords, before returning to the policy question, it is, i think, highly instructive to (
consider the decision of the Supreme Court of California in Dillon v Legg (1968) 68 C 2d
728. Before this decision the law of California, and evidently of other states of the Union,
had adhered to the English position before Hcmhrook v Stokes Bros that damages for
nervous shock could only be recovered if resulting from the plaintiff s apprehension of
danger to himself, and, indeed, this view had been affirmed by the Californian Supreme
Court only five years earlier. The majority in Dillon v Legg adopted a contrary view in
refusing a motion to dismiss a mother’s claim for damages for emotional trauma caused
by seeing her infant daughter killed by a car as she crossed the road.
In delivering the majority judgment of the court, TobrinerJ said (at 740-741):
‘Since the chief element in determining whether defendant owes a duty or an
obligation to plaintiff is the foreseeability of the risk, that factor will be of prime
concern in every case. Because it is inherently intertwined with foreseeability such
duty or obligation must necessarily be adjudicated only upon a case-by-case basis.
We cannot now predetermine defendant's obligation in every situation by a fixed
categorv; no immutable rule can establish the extent of that obligation for every
circumstance of the future. We can, however, define guidelines which will aid in
the resolution of such an issue as the instant one. We note, first, that we deal here
with a case in which plaintiff suffered a shock which resulted in physical injury and
we confine our ruling to that case. In determining, in such a case, whether
defendant should reasonably foresee the injury to plaintiff, or, in other terminology,
whether defendant owes plaintiff a duty of due care, the courts will take into
account such factors as the following: (i) Whether plaintiff was located near the
scene of the accident as contrasted with one who was a distance away from it. (2)
Whether the shock resulted from a direct emotional impact upon plaintiff from the
sensory and contemporaneous observance of the accident, as contrasted with
learning of the accident from others after its occurrence. (3) Whether plaintiff and
the victim were closely related, as contrasted with an absence of any relationship or
the presence of only a distant relationship. The evaluation of these factors will
indicate the degree of the defendant’s foreseeability: obviously defendant is more
likely to foresee that a mother who observes an accident affecting her child will
suffer harm than to foretell that a stranger witness will do so. Similarly, the degree
of foreseeability of the third person’s injury is far greater in the case of his
contemporaneous observance of the accident than that in which he subsequently
learns of it. The defendant is more likely to foresee that shock to the nearby,
witnessing mother will cause physical harm than to anticipate that someone distant
from the accident will suffer more than a temporary emotional reaction. All these
elements, of course, shade into each other; the fixing of obligation, intimately tied
into the facts, depends upon each case. In light of these factors the court will
determine whether the accident and harm was reasonably foreseeable. Such
reasonable foreseeability does not turn on whether the particular plaintiff as an
individual would have in actuality foreseen the exact accident and loss; it
contemplates that courts, on a case-to-case basis, analyzing all the circumstances, will
decide what the ordinary man under such circumstances should reasonably have
foreseen. The courts thus mark out the areas of liability, excluding the remote and
unexpected. In the instant case, the presence of all the above factors indicates that
plaintiff has alleged a sufficient prima facie case. Surely the negligent driver who
causes the death of a young child may reasonably expect that the mother will not be
far distant and will upon witnessing the accident suffer emotional trauma. As Dean
Prosser has stated: “when a child is endangered, it is not beyond contemplation that
its mother will be somewhere in the vicinity, and will suffer serious shock.”
(Prosser, The Law of Tons (3rd edn, 1964) p 353. See also 2 Harper & James, The
Law of Torts (1956) p 1039.) We are not now called upon to decide whether, in the
HL
McLoughlin v 0 ‘Brian (Lord Bridge)
319
absence or reduced weight of some of the above factors, we would conclude that the
accident and injury were not reasonably foreseeable and that therefore defendant
owed no duty of due care to plaintiff. In future cases the courts will draw lines of
demarcation upon facts more subtle than the compelling one alleged in the
complaint before us.’
b
C
d
e
9
,
The leading minority judgm ent castigated the majority for embarking on a first
excursion into the 'fantastic realm of infinite liability", a colourful variant of the familiar
"floodgates'argument.
In approaching the question whether the law should, as a matter of policv, define the
criterion of liability in negligence for causing psychiatric illness by reference to some test
other than that of reasonable foreseeability it is well to remember that we are concerned
only with the question of liability of a defendant who is, ex hypothesi, guilty of fault in
causing the death, injury or danger which has in turn triggered the psychiatric illness.
A policy which is to be relied on to narrow the scope of the negligent tortfeasor’s duty
must be justified by cogent and readily intelligible considerations, and must be capable
of defining the appropriate limits of liability by reference to factors which are not purely
arbitrary. A number of policy considerations which have been suggested as satisfying
these requirements appear to me, with respect, to be wholly insufficient. I can see no
ground whatever for suggesting that to make the defendant liable for reasonably
toreseeable psychiatric illness caused by his negligence would be to impose a crushing
burden on him out of proportion to his moral responsibility. However liberally the
criterion of reasonable foreseeability is interpreted, both the number of successful claims
in this field and the quantum of damages they will attract are likely to be moderate. I
cannot accept as relevant the well-known phenomenon that litigation may delay recovery
from a psychiatric illness. If this were a valid policy consideration, it would lead to the
conclusion that psychiatric illness should be excluded altogether from the heads of
damage which the law will recognise. It cannot justify limiting the cases in which
damages will be awarded for psychiatric illness by reference to the circumstances of its
causation. To attempt to draw a line at the furthest point which any of the decided cases
happen to have reached, and to say that it is for the legislature, not the courts, to extend
the limits of liability any further, would be, to my mind, an unwarranted abdication of
the court's function o f developing and adapting principles of the common law ro
changing conditions, in a particular corner of the common law which exemplifies, par
excellence, the important and indeed necessary part which that function has to play. In
the end I believe that the policy question depends on weighing against each other two
conflicting considerations. On the one hand, if the criterion of liability is to be reasonable
foreseeability simpliciter, this must, precisely because questions of causation in psychiatric
medicine give rise to difficulty and uncertainty, introduce an element of uncertainty into
the law and open the way to a number of arguable claims which a more precisely fixed
criterion of liability would exclude. I accept that the element of uncertainty is an
important factor. I believe that the 'floodgates' argument, however, is, as it always has
been, greatly exaggerated. On the other hand, it seems to me inescapable that any
attempt to define the limit of liability by requiring, in addition to reasonable
foreseeability, that the plaintiff claiming damages for psychiatric illness should have
witnessed the relevant accident, should have been present at or near the place where it
happened, should have come on its aftermath and thus have some direct perception of it,
as opposed to merely learning of it after the event, should be related in some particular
degree to the accident victim— to draw a line by reference to any of these criteria must
impose a largely arbitrary limit of liability, I accept, of course, the importance of the
factors indicated in the guidelines suggested bv Tobriner J in Dilhn v Legg as bearing on
the degree of foreseeability of the plaintiff's psychiatric illness. But let me give two
examples to illustrate what injustice would be wrought by any such hard and fast lines
of policy as have been suggested. First, consider the plaintiff who learned after the event
of the relevant accident. Take the case of a mother who knows that her husband and
All England. Law Reports
320
[1982] 2 All ER
children are staving in a certain hotel. She reads in her morning newspaper that it has
been the scene of a disastrous fire. She sees in the paper a photograph of unidentihaDL a
victims trapped on the top floor waving for help from the windows. She learns sho, tl>
afterwards that all her familv have perished. She suffers an acute psychiatric illness.
That her illness in these circumstances was a reasonablv foreseeable conse^ ^ e °
;
events resulting from the fire is undeniable, 'iet, is the law to den) her damages as
against a defendant whose negligence was responsible for the fire simply on ' ^ ^ o u n .
that an important link in the chain of causation of her psychiatric illness.was supplied b> b
her imagination of the agonies of mind and body in w hich her famil) d ,
b l direcT perception of the event? Second, consider the plaintiff who is unrelated to the
victims of the relevant accident. If rigidly applied, an exclusion of liability to him.would
have defeated the plaintiff’s claim in Chadwick v British Transport Commission. The Court
of Appeal treated that case as in a special category because Mr Chadwick v_as a rescuer.
Now, the special duty owed to a rescuer w h o voluntarily pla.es himself i p» l ■ c
danger to save others is well understood, and is illustrated by Havnes v Harwood L. o , 3 J ,
KB 146, [1934] All ER Rep 103, the case of the constable injured in stopping a runawa)
horse in a crowded street. But, in relation to the psychiatric consequences of w itnessing
such terrible carnage as must have r e s u l t e d from the Lewisham tr a in .^ “ S t e r , d
find it difficult to distinguish in principle the position of a rescuer like Mr Chad* Kk.
from a mere spectator, as, for example, an uninjured or only slightly injured passenger a
in the train, who took no pan in the rescue operations but was present at the scene a.ter
the accident for some time, perforce observing the rescue operations while he waited for
tr3My Lords J ha ve no^doubt that this is an area of the law of negligence where we should
resist the temptation to trv vet once more to freeze the law in a rigid posture which
would deny justice to some who, in the application of the classic principles of negligence e
d e rS e d from Donahue v Srevroon [,932] AC 562, [>9 3 >] All ER Rep ., ought to succeed,
in the interests of certainty, where the v e r y subject matter^is uncertain
com.nuoaso
developing, or in the interests of saving defendants and their insurers from the burden
S o m e t i m e s to resist doubtful claims. I find myself in complete agreement with
Tobriner J that the defendant’s duty must depend on reasonable foreseeabilm and
■must necessarilv be adjudicated only upon a case-by-case basis. We cannot now 1
predetermine defendant’s obligation in every situation by a fixed category. no
immutable rule can establish the extent of that obligation f o r every circumstance of
the future.’
To put the matter in another way. if asked where the thing is to stop I ^ ° u ld a m w e r
in an adaptation of the language of Lord Wright and Stephenson LJ. \.h e r e in, the
particular case the good sense of the judge, enlightened by progressive awareness of
m l nregretnS t m y ^ b l e and learned friend Lord Edmund-Dayies, who criticise:imy
conclusion that in this area of the law there are no policy
justify limiting the liability of negligent tortfeasors by reference to ^ m e n a r r ^ e r
criterion than that of reasonable foreseeability, stops short of:indicating 1us we* uhere
the limit of liability should be drawn or the nature of the policy c o n s i d e r a t i o n s (other
t h a n t h e ‘floodgates’ argument, w h ic h I understand he rejects) which ew o u
1
justify such a limit.
My Lords, I would accordingly allow the appeal.
Appeal allowed.
Solicitors: Vinters, Cambridge (for the appellant); Hextall, Erski.e cr Co (for the
respondents).
Mary Rose Plummer
Barrister.
hiehf of,her profession that she should comply when;^^^appear*;;
ing'in'Court' w iththeN otes "for puidance'of the BarjCouricil;.
(ii) at all material"times' she had a'pnyate^w^drq^of Rothes"!:
and shoes which w e r e aniply sufficient to keep'her^clothed and
shod in'comforfa’nd Recency'';tiii) the preseh'ation^of. warmth
and decVncy'was not a Consideration which crossedjier mind^
when she bought the disputed itemsf and (iv) she.’bought..them,;*
only because she would not have been permittedI toappear in
Court if she did not wear them when in
& I t was held (LorH Diplock^ Lord Keith of Kinkel, Lord .
Ro'skill and Lord Birminghan\; Lord Elwyn-Jones‘,:’dissenting) *.
that".the disbursement 'on ithe" items""concerned Jwere'^riot
deductible. In the case of clothing, the" individual was'wearing''
it for his own purpose of cover"and comibrt'concurrently with^
wearing it to' have the appearance which the job required, It^
made' no ‘difference' if Jhe taxpayer chose to keep' clothing '
exclusively for wear at work. TTie expenditure had 2 purposes
inextricably intermingled and not severable by an'y’ apportionrr * which the Court could undertake, (H illyerv Leeke (1976)
•3 v , r. •*
5
C 90, applied.^’”'
Limitation bf Action: Extension of Period
Cornish vKeariey & Tonge Ltd
Q ueen's Bench Division, May 2 0 ,1 9 8 3
19767 and thejjenod .gf'ljmit^pnlexpired on'January J ,
iS»79.jBut in its discretionjthe Court/ acting under s 3 3 o fth e ^
Act'would allowtheaction to prpceed because 0) sJthough the^;
deiay^viewed
a^.long one,'the /
reasons Tor it. were^easonable^ones;'$i) although there^was.
some deduction of cogency^of evidence, it was not of .a very
high':flegrVeV':Oii^both '^C^and ,jys"Iadviserj^acted perfectly^
promptly and reasonably;'andj)v)jt was^nbtlinfeasonable for
hirnto have 'acte^ais'he did in not taking legal advice, untUJune^
ibar*VKArCnffortv iT‘Mptrnri'oHtan* Police District Receiver
Negligence:.Nervous Shock
Gaitv'British Railways Board
Queeri's Bench Division, May 20, 1983
G, a train driver employee! by British Rail, was driving a train^
at“ about 65 m p h /H e rounded a .bend. Visibility "was[con-^.
’a derably*^tnc^.><^ e r e ’'‘was^6^'peeH*Iirmt'.fa'J[pr^^He2
suddenly saw^2 men7who were"ateo ndlwaymen,:s.UuiHing'ln •
front' o f -him ’on nheTtrack ' only T30. y»ds^*away.\It ;was/i
impossible f o f him to jtojj^H e ^thought that they^had bwn^;
killed, but’t hey^ot^tof^4ie^aiyjmJtim e.*Subs^uen^y;^rdt|.
a pain in his heart and a diagnosis .of myocardial infarction j.
He broughran “actioii[against the Board claiming damages^
C Was employed 'as the ’manager, o f a small department in a'for
negiigence~pri the ground that_thein c ide ntcau sed^him to,
wholesale butchery owned by K Xtd. Ini'July. 197j5,_he and 2 ;
suffer
nervous4shock^and :that .‘such Jhjury.'was reasonably ,
other Employees were .manoeuvring a largeJpiece^f JbeefV'
' t U o f K a V\on o r» rp -# > Y ic h n a n i l t weighing' 250 lBs~tolryand get it on to a hoolc. Unfprtunately^
the beef fell 6n C- He felt pains from“time to time^ b i^ itw a s^
--no'Cuntil.December j .7 3 9 8 11 that. he issue^ a _ ^ 't> ^ m s r K v W I t' was lQ d fTudor Evan? J) that there would be judgments,
Ltd 'claiming damagesTor negligence.
forjG. The defendants owed)um_a_duty.to take reaspnablec^’e^
i ’The Limitation Act 1980, s 14 stated:^(1) in se'ctipivn
j
i o F t ^ x p o s e ' h m ^ ^ j u ^ ^ n i j c t Vo u s
of ihisjAct (which fixesvjai time limit of 3 ^ears. .fi^icSons
i*' • •
liable
for jncreased damage caused by the "pre-existing disease; A ' ,
respect o f personal injuries] references to a person’s date of £
r •'
knowledge are references to the date on which he first had , and were responsible in damages' for the coronary attack faid^.
k- 'wledge’ o f the foUowing facts: (a) that the injury in ques; ^ its consequences. j[Oyerseai Tankship (UK) L td y Morts Dock t
L was significant
(2) For the purposes o f this section an and Engineering Co L td 11961 ] LAU ER 404, &nd Jason^^
injury is significant if the person whose date of knowledge is in"
on would reasonably have "considered it ^sufficientlys to justify :his .'instituting proceedings -against a Pension: Flat Feet
Qciendant who did not dispute liability and was able to satisfy
Austin v Secretary of S ta te for Social Services
a judgment.” . X- ' - 5 / - / > .
’v ' : • "-i
Q ueenV B ench DivisionrJuly 2 2 ,1 9 8 3
j.--;
Section 33 of the Act stated; “(1) If it appears to the Court
A served in the Army from 1939 to 1948. He claimed that the
that it would be equitable to allow an action to proceed having
regard to the degree to which (a) tfre provisions o f s 11 . of. condition o f pes planus bilateral (ie both his feet were fiat) was
attributable to such service, and that he was entitled to a
this Act prejudice the plaintiff . . . and (b) any decision o f the
pension in respect of it The Secretary of State dismissed the
Court under this subsection would prejudice the defendant. . .
claim on the ground that the condition had been aggravated by
the Court may direct that those provisions shall not apply to
service but was not attributable to it. The Pensions Appeal
the action . . . (3) In acting under this section the Court shall
Tribunal dismissed A’s appeal. He now further appealed, -u
have regard to all the circumstances of the case and in par­
Evidence was given that in 19 4 1 a block of concrete fell on
ticular to (a) the length of, and the reasons for, the delay on the
his left foot during an air attack. Insofar as his right foot was
part o f the plaintiff; (b) the extent to which having regard to
concerned, A suggested that the condition was due to (i)
the delay, the evidence adduced or likely to be'adduced by the
spraining his ankle in a motor accident; (ii) spraining his ankle
plaintiff or the defendant is likely to be less cogent than if the
playing hockey; and (iii) spraining his ankle when he jumped
action had been brought within the time allowed by s 11 . . . (d)
off a wall. '
’
"•
- • •_
■- y ■ "
the extent to which the plaintiff acted promptly and reason­
It was held (Neill J) that the case would be remitted for re­
ably once he knew whether or not the act or omission of the
hearing before a differently constituted Tribunal for (i) as to the
defendant, to which the injury was attributable, might be
left fo o t, there was plainly evidence before the Tribunal which
capable at that time o f giving rise to an action for damages; (e)
would
have entitled them to come to the conclusion that the
the steps, if any, taken by the plaintiff to obtain medical, legal
or other expert advice and the nature of any such advice he injury caused the pes planus; and (ii) as to the right foot, the
matter required further investigation and should not be allowed
may have received.
to stand as it was.
It was held (Hirst J) that the date of knowledge was January
«
NEW LAW JOURNAL September 30, 1983
Law Report February 4 1986
Damages awarded
to train driver
after accident
Wigg v British Railways
Board
Before Mr Justice Tucker
[Judgment given January 3 1J
A train driver was entitled to
succeed in his claim for
damages for shock and trauma
suffered when he came upon
the body of a person very soon
after it had been struck down
by a door on the train he was
driving as it pulled away from
a station and the driver had
descended from his cab to
search for the victim.
It was reasonably foreseeable
by the defendants that the
driver would behave as he did,
that there was a risk he might
suffer nervous shock as a
consequence, and that they
were in breach of the duty of
care they owed him,
Mr Justice Tucker so held in
the Queen's Bench Division
when he found that the
plaintiff suffered nervous shock
as a consequence of his
experience immediately after
the accident, and awarded him
damages of £4,000 plus interest
and agreed special damages,
and costs, against his employ­
ers, the British Railways Board,
after
an accident on the
evening of December 16, 1981,
at Thorpe Bay Station, Essex,
in which the victim had died.
Mr Allan Gore for the
plaintiff; Mr F.J-M. MarrJohnson for the board.
MR JUSTICE TUCKER
said that the plaintiff had been
employed by the defendants for
32 years, 20 as a train driver.
On the day of the accident he
started the train from the
platform after he had received
the signal from his guard that it
was safe to move off.
The train was brought to a
halt by the emergency brakes
after it had travelled about 2'h
carriage lengths. The victim
was attempting to board the
train as it moved off, the
carriage door was open and,
sincc he held on to the door
handle, he was dragged along
the platform until he fell
between it and the train.
■ The plaintiff searched the
track and found the victim
whom he unwittingly believed
was alive; he began to speak to
him to comfort him until help
arrived. He remained at the
edge o f the platform for at least
witness, began to tremble from
shock.
The guard should have seen
the open carriage door, was
negligent in causing the train to
start and his negligence caused
the accident for which the
defendants were vicariously
liable.
«
His Lordship derived from
SfcLoughlin v O Brian (19831 1
AC 410) the principles, inter
alia, that a claim for nervous
shock caused by negligence
could succeed if the plaintiff
satisfied the strict test of
proximity by sight or hearing:
that cases should not be judged
by policy considerations but on
their own merits; that, -tSe'
fundamental question in each
case was one of reasonable
foreseeability; where the plain­
tiff came upon a serious
accident involving numerous
people and acted as a rescuer of
those involved; that the plain­
tiff was assumed to be a person
of normal disposition and
phelgm (see per Lord Bridge of
Harwich at pp441 D-F and 443
A-E).
The defendants conceded it
was foreseeable a driver would
get out of his cab. would help
to search for the body, might
come across it. and. in the
present case, might come upon
the consequences of the ac­
cident very soon.
But they claimed it was not
foreseeable that train drivers of
reasonable firmness would
have suffered nervous shock,
and added that the plaintiff
had had two previous experi­
ences of death on the track in
1979 and 1980.
His Lordship found that the
plaintiff had done more than
the ordinary disinterested by­
stander would do; he searched
for and found the victim, he
remained near him and offered
words of comfort; if he had
remained alive, as the plaintiff
believed he was. his presence
would have been of great
support to him.
The plaintiff could be de­
scribed as a rescuer in the
circumstances but in any event,
that was unnecessary since the
nervous shock suffered was
reasonably foreseeable.
Solicitors: R obin T h o m p » n
& P a r tn e r v Ilfo r d . M r M ic h a e l
CA
,
Attia v British Gas pic
455
Attia v British Gas pic
COURT OF APPEAL, CIVIL DIVISION
DILLON, WOOLF AND BINGHAM LJJ
5 , 2 6 JUNE I 987
b
Damages - Personal injury - Psychiatric damage - Servous shock caused by damage to property
- Plaintiff suffering nervous shock caused by seeing her house on fire - Fire caused by defendants'
negligence - Whether defendants liablefor plaintiffs psychiatric damage.
Practice - Preliminary point of law - Question of far-reaching legal principle - Assumed facts insuitability of procedure.
c The plaintiff engaged the defendants to install central heating in her house. While the
defendants were carrying out the work the plaintiff returned home one afternoon to see
smoke pouring from the loft of the house. She telephoned the fire brigade but by the
time they arrived the whole house was on fire and by the time the fire was brought
under control over four hours later the house and contents were extensively damaged.
The defendants admitted liability for the fire and sealed the plaintiff’s claim for damage
d to the house and contents. The plaintiff also claimed damages for nervous shock and
psychological reaction caused by seeing her house on fire. The defendants disputed that
claim and when the plaintiff issued a writ the question whether the plaintiff’s claim gave
rise to cause of action sounding in damages was tried as a preliminary issue. The
defendants contended (i) that damages for nervous shock could only be recovered, as a
matter o f law and public policy, if the shock was caused by fear of death or injur)- to a
e person closely related to the plaintiff and could not be recovered if the shock was caused
merely by damage to property and (ii) that the plaintiff’s nervous shock was not
reasonably foreseeable as being a direct consequence of the defendants’ negligence. The
judge gave judgment for the defendants and the plaintiff appealed.
Held - Damages for nervous shock or psychiatric damage resulting from witnessing the
( consequences of the defendant’s negligence were not limited to psychiatric damage
caused by witnessing a personal injury but could be recovered where the plaintiff
witnessed the destruction of property, such as his home and possessions, as a result of the
delendant’s negligence, eg in starting a fire, provided the plaintiff proved psychiatric
damage and not merely grief, sorrow or emotional distress and provided that his
• psychiatric damage was reasonably foreseeable. Whether the plaintiff’s psychiatric
g damage was a reasonably foreseeable consequence of the defendants’ negligence was a
question of fact to be decided at the trial. The plaintiff’s appeal would therefore be
allowed (see p 458 c to f h j, p 459 a b, p 461/10 p 462 a, p 463 g, p 464 g to j and p 465 a
to c, post).
Hay (or Bourhill) v Vcwngf 1942] 2 All ER 396 and McLoughlin v O ’Brian [1982] 2 All ER
29S considered.
h
Per curiam. Questions of far-reaching legal principle, such as the conditions in which
damages can or cannot be recovered as matter of public policy, are not suitable to be
determined as preliminary issues on assumed facts (see p 457 h, p 462 a b h to p 463 a,
post).
Per Bingham LJ. ‘Nervous shock’ is a misleading and inaccurate term; it is preferable
. to use the term ‘psychiatric damage’ as comprehending all relevant forms of mental
1 illness, neurosis and personality change (see p 462 d, post).
Notes
For liability for nervous shock, see 34 Halsbury’s Laws (4th edn) para 8, and for cases on
the subject, see 17 Digest (Reissue) 145-147, 377-391.
For the trial of preliminary points of law, see 37 Halsbury’s Laws (4th edn) para 4S4,
and for cases on the subject, see 37 Digest (Reissue) 86-90 3377-3393.
456
All England Law Reports
[1987] 3 All ER
Cases referred to in judgm ents
Denegkue (cr SYAhster' v Stevenser. [i?32j AC 562, [ i 9 3 -] AH ER Rep i.H L.
Dorset Yacht Cc Lid v Heme Office [1970] 2 All ER 294. [>97o] AC ioc-4 . J ? 7 o j 2 ^ LR
1140, HL.
Max [or Bturnill. v
T1042] 2 All ER 306. [) 043] AC 02, HL.
Herm II, The.. Kcutes v C C-arnifew Ltd [1967] 3 All ER 6S6. [1060] i AC 350. 11967] 3
WLR 14? i.HL.
laensck v Ceffc\ ’ 19S4 54 ALR 417, Aust HC.
"King v Phillips’^ 1053] 1 All E R 617. [>9 5 3 ] 1 QB 4^9- [>? 53 J 2 ^ L R 526. CA.
McLcughlin v 0 ’Brian [10S2] 2 All ER 298. [19S3] > AC 41c. l : 9 ^-J - " LR 9S2. HL.
Overseas Tcnksk:p 'IK Ltd v M ens Deck and Engineering Ce Ltd, The Wagen Mei,nd \Se 1:
[ 1061 ] 1 All ER 4c-4. [> 9 <?>] AC 3SS. [ 1961] 2 WLR 126, PC.
Owens v Liverpee] Cerp [193S] 4 All ER 727. [>9 3 9 j 1 KB 39 4 - CA.
Appeal
.
,
..
The plaintiff. Madiha Attia. appealed against the decision ot Sir Dougias Frank QL. sitting
as a deputv judee of the High Court on 19 December i pS6. by which he gave judgment
for the defendants. British Gas pic. on the trial of a preliminary issue, namely: ‘Can the
plaintiff recover damages for nervous shock caused by witnessing her^ home and
possessions damaged and/or destroyed by a fire caused by the defendants negligence
while installing central heating in the plaintiff’s home? The facts are set out in the
judgment of Dillon LJ.
David Tucker for the plaintiff.
Janet Turner for the defendants.
Cur adv vull
i6June. The following judgments were delivered.
This is an appeal by the plaintiff in the action against a decision o 1 S:r ■
Douglas Frank QC, sitting as a deputy judge of the High Court in the Queen s Bench
Division, which was given on 19 December 19S6 by way of the determination ot a
preliminary issue in the action.
^
As to the facts, in the summer of 19S1 the plaintiff, lived (as I apprehend she still does,
at n Leaver Gardens. Greenford, Middlesex and the defendants, British Gas, were
engaged to install central heating there. When she was returning home at about 4 pm
on 1 July 19S1 she saw smoke coming from the loft of the house. She telephoned ^ ^ r e
brigade but, bv the time the firemen arrived, the whole house was on fire and it took the
firemen over four hours to get the fire under control. Obviously the house and its
contents were extensively damaged.
The defendants admit that the fire was caused by their negligence, i e by the carelessness
of their emplovees who were working at the house, and we were told that the plaintin s
claims for damage to the house itself and its contents have been settled. In this action the
plaintiff’s only claim is for a different type of damage, namely damages for nervous
shock; bv this is meant that, although she did not suffer any physical injury, the plaintin.
as the result of seeing her home and its contents ablaze, has suffered a psychiatric or
mental illness, the effects of which are set out in some detail in her statement of claim.
The defendants dispute this claim of the plaintiffs, but in order to save costs, especial!)
as the plaintiff has legal aid, the parties agreed, and the master ordered, that the f o llo w in g
question should be set down for determination as a preliminary issue, namely:
D I L L O N LJ.
'Can the plaintiff recover damages for nervous shock caused by witnessing her
home and possessions damaged and/or destroyed by a fire caused by the d e f e n d a n ts
negligence while installing central heating in the plaintiff’s home?’
CA
Attia v British Gas pic (Dillon LJ)
457
For the purpose of this preliminary issue, the facts alleged in the statement of claim
are to be assumed to be true; in particular it is to be assumed that the plaintiff has suffered
a psychiatric illness which was caused by the shock of seeing her home and its contents
ablaze. Causation does not therefore have to be considered on the preliminary issue,
a though it w ill have to be considered at the trial if the preliminary issue is not answered
in the negative, as the defendants would wish. The defendants say on the preliminary
issue that the plaintiff cannot succeed in this action for either of two reasons, namelv
( i ; that it was not reasonably foreseeable that the plaintiff might suffer anv psvchiatric
illness as a result of the defendants’ negligence in starting the fire or (2) that, even if it
was reasonably foreseeable that the plaintiff might suffer psychiatric illness, damases for
nervous shock can, as a matter of law and public policy, only be recovered if the^shock
was caused by the death or injury of a person, or by fear of the death or injury of a person,
normally a person closely related to the plaintiff, and cannot be recovered il'i’t was merely
C caused by injury to property.
The preliminary issue w as raised to test these two contentions of the defendants. The
depun judge decided in favour of the defendants on the first contention and therefore
uismissed the action. The plaintiff now appeals.
The law as to nervous shock’ has recemlv been considered very carefullv and helpfullv
by the House of Lords in SkLoughlin v O'Brian [19S2] 2 All ER 298. [10S3I 1 AC 410 and
° b>'the Hi? h Coun o f Australia mjaensch v Coffey {1984} 54 ALR 417. In SULoughlin v
0 Brian M9S2] 2 All ER 29S at 3 11, [19S3] 1 AC 410 at 43 1 Lord Bridge said:
a
e
The common law gives no damages tor the emotional distress which a n v normal
person experiences when someone he loves is killed or injured. Anxiety and
depression are normal human emotions. Vet an anxiety neurosis or a reactive
depression n:ay be recognisable psychiatric illnesses, with or without psychosomatic
symptoms. So, the first hurdle which a plaintiff claiming damages of" the kind in
question must surmount is to establish that he is suffering, not merely grief, distress
or any other normal emotion, but a positive psychiatric illness.’
The piaintift accepts this statement ot the law, and accordingly it is claimed that what
she has suffered, as described in the statement o f claim, amounts to a positive psvchiatric
illness. \\ here exactly the line is to be draw n betw een p o s s ib ly extravagant grief, distress
or other normal emotion and a positive psychiatric illness may perhaps be difficult to
discern in w hat may for all I know be a matter of degree; but that is a matter for the trial
and does not arise on the preliminary issue.
In the next place it is to be assumed that the plaintiff is of a normal disposition or
g toughness, possessing, as it has been put in the cases, ‘the customary phlegm’. Whatever
the position may be at the trial, on this preliminary issue we are not concerned with the
possibility of it being shown that she has suffered psychiatric illness because, although
the defendants did not know and she herselt may not have known, she was particularly
or abnormally’ susceptible to some form of psvchiatric illness.
A third point which emerges trom the cases cited is that damage for ‘nervous shock’,
h I® *or psvchiatric illness occasioned by shock, is regarded as a separate head of damage,
distinct, tor example, from damage for personal injury. The law has developed step by
step and is still developing. In those circumstances I would be particularly reluctant to
ay dow n any general rule as to the conditions in w hich such damages can or cannot be
recovered as a matter of public policy. For that reason the procedure of a preliminary
issue on assumed facts, somewhat briefly stated, has disadvantages w here what is under
j consideration is how the law should develop in a matter ot some general importance.
That said, however, as appears from the speeches in McLoughlin v O'Brian and the
judgments in Jaensch v Coffey, a great deal of the difficulty which has been felt over the
exelopment of the law as to damages tor 'nervous shock’ has arisen in relation to what,
in the terminology ot the tort of negligence, is described as the question of proximity.
How tar is it right that the law should allow a claim for damages against a w rongdoer,
where the w rong done by the wrongdoer was primarily a w rong done to someone other
^
l i )
than the claimant, and the claimant is a person of whom, at the relevant time, the
wrongdoer had no knowledge and who may then have been far away from the scene ol g
the wroncdoer's act? This difficuhv is particularly concerned with whether the
wrongdoer owed anv duty of care to the claimant. But that difficulty does not arise in
the present case because in the present case there is no problem of proximity. The
defendants knew about the plaintiff and unquestionably owed a duty ot care to her not
10 start a fire in her house. If her claims for damage to the house and contents had not
been settled, she would have brought the one action against the defendants in which she b
would have pleaded the negligence of the defendants in starting the fire and would have
gone on to assert that, bv reason thereof, she had suffered and was sufiering damage and
loss, which would be put under two headings, namely (1} damage to the house and
contents and \z-- damage for nervous shock, t h e issues at the trial, assuming the tacts
pleaded, including the psvchiatric illness, were proved, would have been ,a causation
and ;b. foreseeabilitv of the damage as a question of remoteness. 1 can see no good reason c
whv. in such a context, the law should have refused to allow her damages for nervous
shock’ if she could get over the hurdles of causation and foreseeability as an aspect ot
remoteness. It cannot make anv diiierence that in the event her claim for damage to the
house and contents has been settled; the duty was none the less there.
1 am not therefore prepared to hold that the fact that the shock which caused the
plaintiff's assumed psvchiatric illness was caused by damage to property must preclude
her from recovering damages for 'nervous shock’ even it it was r e a s o n a b ly foreseeable
that she might suffer psvchiatric illness as a consequence of the defendants negligence in
causing the fire in her house.
Are the defendants right, then, in asserting a priori that it was not reasonably
foreseeable rhat the plaintiff might suffer any psychiatric illness as a result of their g
negligence in starting the fire? It is not necessary that any particular psychiatric illness
should have been foreseen.
Whether it was reasonablv foreseeable to the reasonable man, whether a reasonable
onlooker, or, in the context of the present case, a reasonable gas fitter employed by the
defendants to work in the plaintiff's house, is to be decided, not on the evidence ot
psvehiatrists as to the degree of probability that the particular cause would produce the ^
particular effect in a person of normal disposition or customary phlegm, but bv the
judge. reiving on his own opinion of the operation of cause and ettect in psychiatric
medicine, treating himself as the reasonable man. and forming his own view from the
primarv facts as to whether the chain of cause and effect was reasonably foreseeable .see
.McLoughlin vO'Briiar: [19S2] 2 All ER 29S at 312, [ 1083] 1 A C 410 at 432 per Lord Bridge .
The good sense of the judge is, it would seem, to be enlightened by progressive awareness g
of mental illness ([19S2] 2 All ER 298 at 320, [1983] 1 AC 410 at 443 per Lord Bridge '.
One consequence of this approach is, however, that the view of the courts as to what is
reasonably foreseeable is, in this field, likely to lag behind informed medical opinion.
Another consequence is that a view which finds favour with the courts at one time mav
well be considered unacceptable and out of date a few years later when progressive
awareness has progressed further.
, ^
The question which the deputy judge asked himself in the present case was whether it
was readilv foreseeable by the defendants that the ordinary householder exposed to the
experience undergone by the plaintiff might break down under the shock of the e v e n t
and suffer psychiatric illness as opposed to grief and sorrow at losing one s home. It
‘reasonably’ is substituted for ’readily’, as the judge probably intended. I would for mv ^
part indorse that as a correct direction. It is not, however, a test of probability as o p p o se d /
to possibility.
Was the damage, in the way of pyschiatric illness from shock, although of a d ifferen t
kind from the damage to the house itself and contents most obviously f o r e s e e a b l e , none
the less itself foreseeable? Would the reasonable man, endowed with a p p r o p r i a te ! )
progressive awareness of mental illness, have regarded the danger of psychiatric illness
from shock as so fantastic or far-fetched that he would have paid no attention to it or
H
CA
a
c
Attia v British Gas pic (Dillon LJ)
459
would he ha\e thought that it was something rhat the plaintiff might suffer from seeing
her house and its contents in flames?
That, if the house caught fire from the defendants' workmen's fault, the plaintiff
would see and hear it burning was foreseeable. Bur how much she saw and heard, and
how extensive was the damage to or destruction of the house and contents by the fire we
are left to guess at on this preliminary issue. We are asked to say, in effect, that psvchiatric
illness caused by the shock can never, as a matter of fact rather than law, be a foreseeable
consequence when a woman sees her home and its contents burning down. I am not
prepared to make any such general a priori ruling on such scanty material. Whether the
plaintiff s assumed illness caused by the shock was or was not a foreseeable consequence
of the defendants negligence must depend on the actual evidence given at the trial.
Accordingly, I would allow this appeal, set aside the order of the deputv judge and
leave this action to proceed to trial.
It follows that the a ttem p t to decide this action on a prelim inary issue has, in m y
j u d g m e n t, failed. But, in view o f the expense and delays of litigation at the present time
and o f the difficult position o f a defendant w ho is not legally aided when sued by a
legally-aided plaintiff, I would not for m y part criticise the parties’ advisers at all for
m a king the attempt.
T^ere ^ave nou been a series o f decisions by courts of the highest authority
both in this country and in the Commonwealth dealing with the problems created by
aaions for damages where the plaintiff is seeking to recover compensation for psvchiatric
■“ " - d u e to what has been colloquially called 'nervous shock’. On this appeal counsel
on both sides relied on two of these decisions, namely the decision of the House of Lords
e in \kLcughlin vO Brian [19S2] 2 All ER ;oS, [1983] AC 410 and the decision of the High
Court of Australia in Jaensch v Coffey '19S4) 54 ALR 417. However, the circumstances
giving rise to the preliminary issue with which this appeal is concerned differ from the
circumstances of those two decisions in two significant respects.
f
The first difference is that in those tw o decisions the plaintiff was contending that she
suffered her injuries because she had learnt that m em bers o f her family had been
involved in a serious accident as a result o f which they had either been killed or seriously
injured while in this case no one had suffered any personal injurv. The plaintiff alleges
that her injury was caused in consequence o f her seeing her home, o f which she was
proud, on fire, a fire which continued to b u rn for over four hours before the fire was
brought und er control by the fire brigade.
The second difference is that in both o f the earlier decisions the plaintiff had not
g witnessed the accident which caused the injuries to their respective families and the
judgments therefore focused on the question as to whether the plaintiffs were owed a
ut\ of care by the defendants, it being contended by both defendants that it could not
be foreseen that their acts could injure the plaintiffs. However, in this case undoubtedly
the defendants owed a duty of care to the plaintiff in respect of the damage which was
caused to her home and indeed she has been compensated for this damage. Furthermore,
it the plaintiff, who entered the house to telephone the fire brigade, had been physically
injured, as could have happened, then in relation to that physical injury the defendant's
would have owed her a duty of care and she would be entitled to be compensated by
them for that injury. The problem raised by the preliminary issue is therefore whether
the damage actually alleged to have been suffered by the plaintiff is too remote and is not
whether there was a breach of a duty of care. The distinction between the two situations
was discussed in eloquent terms bv Denning LJ in King v Phillips [1953] 1 All ER 617 at
" - 6 - 3 - [ i 9 5 3 ] 1 QB 419 at 439:
W hat is the reasoning which admits a cause of action for negligence if the injured
person is actually struck, but declines it if he only suffers from shock? I cannot see
why the duty of a driver should differ according to the nature of the injury. I should
have thought that every driver was under a plain duty which he owed to everyone
All England Law Reports
460
[1 9 87] 3 All ER
%
in the vicinity. He ought to drive with reasonable care. If he drives negligentlv with
the result that a bystander is injured, then his breach o f duty is the same_, no matter &
whether the injufv is a w ound or is emotional shock. Only the dam ageis; d r t e ent
The bystander may be so dose as to be put in fear for h i m s e l f o r h e m a ) b e JUs^a
little wav off and be shocked by fear for the safety of others. In e i t h e r ca e he: has
been injured bv the driver's negligence. If you view the duty of care in this *a>.
and vet refuse to allow a bvstander to recover for shock, it is not because there was
no duty owed to h im , nor because it was not caused by the negligcncc ot the d m er i
but simplv because it is too rem ote to be admitted as a head o f damage. A different
result i« reached bv viewing the driver’s duty differently. Instead o f saying sim P.v
that his dutv is to drive with reasonable care, you say that his duty is to ax oiu injut>
which he can reasonably foresee, or, rather, to use reasonable care to avoid it. Tnen
you draw a distinction between physical injury and emotional injury, anc im p se a
different dutv on h im in regard to each kind o f injury, with the inevitable resuh .
that vou are driven to say there are two different torts, one tort w hen h « n fo. e e
physical injury, another tort when he can foresee emotional injurv. 1 do not think
K t is right. There is one wrong only, the w rong o f negligence. I know.that d amage
to person and damage to property are for historical reasons regarded as ditlere...
tons, but that does not apply to physical injury and emotional ’W ^ o r d
clearly treated impact and shock as one cause o f action when he said in h -v
£ %
v. Voung ([194,] 2 All ER 405. [> 9 4 3 ] AC 9 > at 109}: The m an who
negligently allows a horse to bolt, or a car to run at large dow n a s.eep street, or a
savage beast to escape is co m m ittin g a breach o f duty towards every person wh
comes within the range o f foreseeable danger, w hether by impact or s h o J ^ The
true principle, as I see it, is this. Every driver can and should foresee that . ‘h e d n v e
negligently, he m av injure somebody in the vicinity in some wav or other, and he
must be responsible for all the injuries which he does in fact cause by
n^en^e
to anvone in the vicinity, w hether they are wounds or shocks, unless thev are tco
remote in law to be recovered. If he does by his negligence in tact cause i n j u r y
shock, then he should be liable for it unless he is exem pted on the g r o u n . 0!
{
remoteness.’
The position must be the same if, instead o f causing a traffic accident, what
considered is causing a fire at someone’s home. Later in the same ju d g m e n t 1D en™ fr U
went on to say that "whether the issue was one of duty o f care or re m o te n e s so fd a ^ a g e .
‘since Hay 'or BourMI; v. young the test o f liability for shock is foreseeabilitv o f in ,u p b>
shock* this d ictum Was expressly indorsed by Viscount Simonds v v h e n g:v in g t h e
ju dg m en t of the House of Lords in Overseas Tankship (I K) L td r AionsDA h a n d E n ^ 1
Co Ltd, The Wagon Mound [So 1) [1 9 6 .] > All ER 404 at 41 5 . [« 9 6 i] AC 3S a . 4-C.
However notw ithstanding the fact that the test both in the case of breach of d u n and
remoteness is foreseeabilitv, it is helpful to identify the true nature o f the
&
t:considering the two reasons relied on by the defendants for s a y i n g that it is possible 0
S
preliminary issue to decide that the plaintiff cannot succeed ,n her action J b g . h P
reasons are f f* that the defendants could not reasonably foresee that, as a r e s u lt of the.,
•3*1:
being responsible for starting the fire, the plaintiff would s u f f e r S iaIric
(2' that in anv event as a m atter of policy the law does not allow damages fo p .
tajrn - .0 ^ re c o v e r e d in the a b in c e of personal injury either .0 the pb.nt.ff or .
5, alr
J-» •j-fer-in
helpfullv analysed virtually a!) the authorities on recovering damages for nerv ous : •
with regard to thetes, of foreseeability referred to the present
that staled bv Lord Retd in Tie Hero. II, k r f e , v C C j u r m to M i .!*._] 3. All E*
rio 6 o i i ^C'350. In that case Lord Reid was considering foreseeabihtv in the rontex
remoteness of damage. He said ([1967] 3 All E R 6 S 6 a t 6 9 1 , [■ 96?] 1 AC 350 at aS5;.
S3
CA
g
Attia v British Gas pic (Woolf LJ)
461
The defendant will be liable for any type of damage which is reasonably
foreseeable as liable to happen even in the most unusual case, unless the risk is so
small that a reasonable man would in the whole circumstances feel justified in
neglecting i t . .
In the same case a similar approach was adopted by Lord Upjohn, who said ([1967] 3
All ER 6S6 at 715—7 16, [1969] 1 AC 350 at 422):
b
_ The test in tort, as now developed in the authorities, is that the tortfeasor is liable
ior any damage which he can reasonably foresee may happen as a result of the
breach however unlikely it may be, unless it can be brushed aside as far fetched.’
In deciding the preliminary issue in favour of the defendants Sir Douglas Frank (before
whom the issue was argued, as it was before this court, on the basis that it raised a
c question of duty of care) said:
g
It is widely recognised that the burning of one’s home can be a frightening
experience and can give rise to a sense of grief and sorrow at the loss of all that is
embodied in the word home and of ones possessions. It can result in great
inconvenience and sometimes hardship. Nevertheless, the loss of possessions from
various causes happens to a large proportion of the population. A burglary can not
°nl> result in the loss of valued and irreplaceable possessions but to some people it is
a traumatic and frightening experience. Nevertheless, in mv judgment the ordinary
householder endures such incidents and the shock of them without suffering mental
illness. I think that the same applies to nervous shock caused bv a fire, albek in one’s
own house, uniess the fire caused injury which in turn trisgered off the nervous
shock. T haus where I w ould draw the line. In my judgment, therefore, it was not
reasonably foreseeable that the plaint i tt would suffer mental illness as a result of the
defendants’ negligence and this action fails.’
Especially if the question of foreseeability is approached in the manner indicated by
Lord Reid, as I consider it should be, the deputy judge was not entitled to come to this
conclusion. I can conceive of circumstances where it”would be readily foreseeable that
intense distress would be caused to an ‘ordinary householder’ who saw her home being
ucstroyed by fire particularly if the process w as as protracted as it appears to have been on
t .e basis of the facts set out in the statement of claim, which for the purpose of the
determination of the issue have to be assumed to be true. Such distress could well be of
t e order of the acute emotional trauma [which], like a physical trauma, can well cause
a psychiatric illness in a wide range of circumstances and in a wide range of individuals’
9 see Lord Bridge in McLaughlin v O'brian [19S2] 2 All ER 29S at 312, [19S3] 1 AC 410 at
->33 *
It appears from the passage which I have quoted that the deputy judge came to his
^•ecis;on in favour of the defendants not only on the basis of foreseeabilitv but also as a
matter ot policy in accordance with the second ground relied on bv the defendants. With
^ regard to this part of SirDouglas Frank's judgment, differing views were taken bv the
■‘•ernDers of the House of Lords in Mc'L’ng!n':>! v O’Brian and bv the members of the High
Court of Australia in Jaensch v Ccjfey on the question w hether, if the injury was
-seeable, haoility could be excluded as a matter ot policy. Fortunately, for the purposes
this appeal I do not consider that it is necessary to resolve this divergence of opinion,
'e n assuming that the test is not confined to being one of foreseeabilitv, I cannot
j '•onceive that, it' the injury w hich the plaintiff alleges that she suffered was a foreseeable
>-or,sequeni.e of the defendants negligence, there could be anv overriding policy reason
j°r preventing her recovering damages. As I have already pointed out, she could well
•ave sustained phvsica! injuries as well as the psychiatric injuries ol w hich she complains
* rjien .
been entitled to damages and in my view there can be no reason of
fOluv tor distinguishing between the two tvpes of injury.
462
All England Law Reports
[1 987] 3 All ER
In a g r e e m e n t t h e r e f o r e w i t h t h e j u d g m e n t s o f D i l l o n a n d B i n g h a m L . U - J £ a v e
h a d t h f a d v a n t a g e o f s e e i n g in d r a f t . 1 w o u l d allow t h i s a p p e a . I w ^ o u l d a i s o n o t d e u r
e
f i n a llv t h e p r e l i m i n a r y issue in f a v o u r o f t h e p l a i n t . f l o n t h e l a , . s b c t o . e t h i . c o u r t
D i l l o n a n d B i n e h a m L 1J. 1 c o n s i d e r t h a t it is p r e f e r a b l e t h a t a n ls s u e ^ ^ ^ h e‘ r e l e v a n t
o n l v b e d e t e r m i n e d a f t e r t h e c o u r t h a s h a d a n o p p o r t u n n y o f e x p l o r " g a1^
^ e an
fa c ts as t o lia bility T h e s t a t e m e n t o f c l a i m w h i c h c o n t a i n s t h e o n K fa c ts b e t a e t h i . c o u r t
o n l v i n d t a n e s in o u t l i n e t h e c i r c u m s t a n c e s i n w h i c h t h e p l a i n t i f f s u s t a m d h e r m j u n e ,
W h i l e t h e facts w h i c h a r e b e f o r e t h i s c o u r t d o n o t -disclose a s i t u a t i o n w h e r e a _ a m a t t e r
o f la w t h e p l a i n t i f f c a n n o t s u c c e e d , w h e t h e r s h e is e n n t l e d t o s u c c e e a s h o u l d o n .v b e
i#>
,
i
f i n a llv d e t e r m i n e d a f t e r a trial,
B IN G H A M L! T h e p l a i n t i f f ’s c l a i m p l e a d e d in t h i s a c t i o n is a s i m p l e o n e . S h e a lle g e s
E
S
^ e i n s t a l l i n g c e n t r a l h e a t i n g in h e r h o u s e a n d t h a t a f i - o c c u r r e d
< * ? * « * » for nervous shock. Judges have in recen, vear,
re s ti v e at t h e u se o f t h i s m i s l e a d i n g a n d i n a c c u r a t e e x p r e s s i o n a n d 1 s h a .i u s . theLfee " e .
e x p r e s s i o n ' p s y c h i a t r i c d a m a g e ’, i n t e n d i n g t o c o m p r e h e n u w it in it a re e\' a
‘
m e n t a l illness n e u r o s i s a n d p e r s o n a l i t y c h a n g e . B u t t h e t r a m o f e v e n t s tail o f w h i c h n u s
H
«
a<ed^ w i t h w h i c h t h i s a c t i o n , li k e its p r e d e c e s s o r s , is c o n c e r n e d r e m a i n
u n c h a n g e d : careless c o n d u c t o n t h e p a r t o f t h e d e f e n d a n t c a u s i n g a c t u a l orf a p p « h c n a e u
i n j u r v t o th e p l a i n t i f f o r a p e r s o n o t h e r t h a n t h e d e f e n d a n t ; t h e ^ t t e r i n g ; o^ ac
or em o tio nal tra u m a bv the p la im itt o n w itn essin g^o r a p p r e h e n d in g th a t in ju ,.
w i t n e s s i n g its a f t e r m a t h : p s v c h i a t r i c d a m a g e s u t f e r e a b \ [ h e p . a i n i . i l .
T h e r e is h o w e v e r o n e r e s p e c t in w h i c h t h i s case d it te rs f r o m all t h e d e e d e d cases, o.
v l i w j w ! Ccry [, ? 3S] 4 All ER 7 ^ . [. 93 9 ] 1 KB 394 would aPPearto
b* an exception although the plaintiff suffered injury in that her home and presun.ab.
h^er possessions were burned and damaged, it is not said that she was at;my
for her o w n personal safety or that of anyone else, nor is it said th at p h y s i c a l i n j £
;
opposed to the psvchiatric damage of which she complains, w a s s u f f e r b\ -m one. I
S s n o diubt this'singular feature of the case which led the part.es to agree to the trial o.
a
preliminary issue:
‘Can the plaintiff recover damages for nervous shock caused by ' ^ tnes^
home and possessions damaged and/or destroyed b\ a fire cause \
negligence while installing central heating in the plaintiff s h o m e .
rt .
f
an^
The parties are not to be criticised for adopting a procedure which they con^>emiously
believed would save costs and time. But it would, 1 think, have been better if the aa.on
had proceeded to trial, at any rate on liability, perhaps leaving the assess.ng of darna^
if anv. to a later date. For 1 think .hat there are, within the issue set dow r.for trial,
distinct questions. One isa question of far-reaching legal principle: is a claim, fordamag
for psvchiatric damage suffered by one who has witnessed the d“ truc" ° n
J^ iiv
in the absence of anv actual or apprehended physical injury, one t a.
• .
fail as a matter of law ? m the light of such illustrious F ^ e d e n ts as R m r l u t O L ■■
unsuitable for d o m i n a t i o n on ;in effect) demurrer But
feature to which 1shall return, namely a pre-exist.ng relanonsJ
* * k5nc. 1
as contractors and the plaintiff as occupant of a house in w
. , <■ r n
would be happier deciding even this legal question against a background
t:
f,
&
I
4:
I I
*»■
CA
Attia v British Gas pic (Bingham LJ)
463
proven, rather than outline and assumed, facts. The second question is much more
g limited. It is whether on the facts pleaded it was reasonably foreseeable by the defendants
that careless performance of their work might cause psychiatric damage to the plaintiff.
This is a question of fact w hich, for reasons 1 shall give, cannot in my view be fairly
decided at this stage.
The question of principle
As Lord Russell pointed out in Hiiv (or Bcurhill) v Yeung [1942] 2 All ER 396 at 401,
[1943] AC 92 at io i, what the defendant ought to have contemplated as a reasonable
man is relevant both to testing the existence of a duty as the foundation of alleged
negligence and to the question of remoteness of damage. The leading cases on psychiatric
damage have very largely concentrated on examining what was reasonably foreseeable
by the defendant in order to determine whether the careless defendant owed a duty of
C care to the particular plaintiff at all. This is understandable and perhaps inevitable. A
defendant, how ever careless, cannot owe a duty of care towards the whole world. It is
accordingly necessary to apply the tests of proximity and foreseeability derived from
Lord Atkin’s classic statement in Dcnoghue v Stevenson in order to define the class to whom
the defendant owes a duty and decide whether the plaintiff falls within it. This is a
particularly necessary exercise in the psychiatric damage cases, where the defendant will
® ordinarily have no awareness of the plaintiff as an individual before the act of carelessness
occurs. Unless, therefore, it can be shown that the plaintiff is a person who is so closely
and directly affected by the defendant’s act that he ought reasonably to have him or her
in contemplation as being so affected when he directs his mind to the acts or omissions
which are called in question, the plaintiff cannot surmount the first hurdle which
confronts any plaintiff in negligence, that of establishing a duty of care.
e
In this case the problem is somewhat different. Since the defendants were working in
the house where the plaintiff lived, it must have been obvious to them that she would be
so closely and directly affected by their performance of their work that they ought
reasonably to have had her in contemplation as being so affected when thev carried out
the work. It is not, I think, contested that the defendants owed her a duty to take
^ reasonable care to carry out the work so as to avoid damaging her home and property.
But it is said that the defendants owed her no duty to take reasonable care to carry out
the work so as to avoid causing her psychiatric damage. This analytical approach cannot,
I think, be said to be wrong, but it seems to me to be preferable, where a duty of care
undeniably exists, to treat the question as one of remoteness and ask whether the
plaintiff’s psychiatric damage is too remote to be recoverable because it was not reasonably
— foreseeable as a consequence of the defendants’ careless conduct. The test of reasonable
foreseeability is. as I understand it, the same in both contexts, and the result should be
the same on either approach. So the question in any case such as this, applying the
ordinary test of remoteness in tort, is whether the defendant should reasonably have
contemplated psychiatric damage to the plaintiff as a real, even if unlikelv, result of
careless conduct on his part.
/j
McL.’Hgfiiin v O'Brian [1982] 2 All ER 29S, [1983] AC 410 is the most recent House of
Lords authority on psychiatric damage and the ratio of that decision is of course binding
upon us. All members of the House were agreed that for the plaintiff in that case to
succeed it was necessary for her to show that the psvchiatric damage which she in fact
suffered was a reasonably foreseeable result of the defendant’s careless driving. A minority
ot the House Lord Scarman and Lord Bridge} held that that, if causation was established.
j was all that the plaintiff need show and that it was not for the courts on policy grounds
to limit a right to recover for reasonablv foreseeable psvchiatric damage caused by the
defendant. Lord Wilberforce and Lord Edmund-Davies. although agreeing ir. the result,
rejected the contention that reasonable foreseeability was the sole test of liability for the
consequences of w rongdoing. It w as. they held, proper for the courts to limit on grounds
of policy, w ithin the larger class of those to whom psychiatric damage was reasonably
b
464
All England Law Reports________ [1987] 3 All ER
foreseeable, the class of those to whom a duty of care should be held to be owed, or
Russell accepted policy as something which might in an appropriate case feature in a g
iudicia! decision, but saw no policy requirement to restrict the plaintifl s.right to recov cr
on the facts of that case. The majority ratio of this decision is, theretore. if 1 have correa y
understood their Lordships’speeches, that reasonable f o r e s e e a b i l i t y of psychiatric damage
to the plaintiff is a necessary condition of a successful claim, but that even w e.e
reasonable foreseeability of such damage is shown a right to recover may be denied on
grounds of policy.
.
Whether the psychiatric damage suffered by this plaintiff as a result of the carelessness
of the defendants w as reasonably foreseeable is not something which can be aeddeu as a
question of law. In considering the present question of principle reasonable foresee0b^;.\
must for the present be assumed in the plaintiff's favour. So the question is whether,
assuming everything else in the plaintiff’s favour, this court should hoid this claim to Dc
bad in law because the mental or emotional trauma which precipitated the p.amti s
psvchiatric damage was caused by her witnessing the destruction of her home anu
property rather than apprehending or witnessing personal injury or the consequences oi
personal injury.
,
It is submitted, 1 think rightly, that this claim breaks new ground. No analogous da.m
has ever, to my knowledge, been upheld or even advanced. If, therefore, it were proper
to erect a doctrinal boundary stone at the point which the onward march oi recoroeu
decisions has so far reached, we should answer the question of principle in the negative
and dismiss the plaintiff's action, as the deputy judge did. But 1 should for my j>art erect
the boundary stone with a strong presentiment that it would not be long betore a case
would arise so compelling on its facts as to cause the stone to be moved to a new and
more distant resting place. The suggested boundary line is not, moreover, one that g
commends itself to me as either fair or convenient. Examples which arose in argument
illustrate the point. Suppose, for example, that a scholars lifes work of research or
composition were destroyed before his eyes as a result of a defendant s careless conduct,
causing the scholar to suffer reasonably foreseeable psychiatric damage. Or suppose t a.
a householder returned home to find that his most cherished possessions had ceen
destroyed through the carelessness of an intruder in starting a fire or leaving a tap j
running, causing reasonably foreseeable psychiatric damage to the owner. 1 do not thin,
a legal principle which forbade recovery in these circumstances could be supported. The
onlv policy argument relied on as justifying or requiring such a restriction was the need
to prevent a proliferation of claims, the familiar floodgates argument. This is not
argument to be automatically discounted. But nor is it, I think, an argument which can
claim a very impressive record of success. All depends on one’s judgment of the like y g
result of a particular extension of the law. I do not myself think that refusal by this court
to lav down the legal principle for which the defendants contend, or (put positively; our
acceptance that a claim such as the plaintiff’s may in principle succeed, will lead to a
flood of claims or actions, let alone a flood of successful claims or actions. Insist ence t at
psvchiatric damage must be reasonably foreseeable, coupled with dear recognition t at a
plaintiff must prove psychiatric damage as I have defined it, and not merely grief, sorrow /j
or emotional distress, will in mv view enable the good sense of the judge to ensure
(adopting Lord Wright’s language in Hav (or Bcurhill) v Yeung [1042] 2 All ER 396 at 4 0 5 406, [1943] AC 92 at 110) that the thing stops at the appropriate point. H i s g o o d sense
p r o v i d e s a better, because more flexible, mechanism of control than a necessarily arbitrary
I would therefore answer this broad question of principle in favour of the plaintiff.
The questicn offact
,
We were asked to determine, assuming the truth of the facts pleaded, " hei.
psychiatric damage to the plaintiff was reasonably foreseeable bv the defendants, i m
might fairly have been done in McLoughlitt v O’Brian, where the plaintiff was the mot e -
/
CA
Attia v British Gas pic (Bingham LJ)
465
or in Jaensch v Cofje\ (1984) 54 ALR 417, where the plaintiff was the wife, of the alleged
g tortfeasors immediate victim, although in each of those cases there was a full trial. But
one must be \ery cautious in determining questions of fact on assumed facts, and the
risk of doing so unfairly to one side or the other is increased w here, as here, the parties
were by no means strangers to each other before the careless act occurred. In deciding
what the defendants should reasonably have foreseen I would wish to have a much fuller
picture than pleadings can give of the plaintiff’s personality and circumstances as
b manifested to, and known by. the defendants. I therefore decline to answer this question
because I do not think it is fairly answerable on existing materials at this stage.
I am accordingly of opinion that this appeal should be allowed. The case should be
remitted to a judge for trial of all live issues related to reasonable foreseeabilitv, causation
and damage on the footing that, if the plaintiff succeeds on all these issues, her claim mav
in principle be upheld. \\ hether the parties wish to defer the assessment of damages, if
C any, is a question for them.
Appeal allowed. Leave to appeal to the House c f Lords refused.
Solicitors. Fremont cr Co (for the plaintiff); P H Deacon, Staines 'for the defendants;.
d
e
\ ivian Horvath
Barrister.
Business Computers International Ltd v
Registrar of Companies and others
CHANCERY DIVISION
SCOTTj
iS. 10 JUNE 1 9 8 /
f
.
Segiigence - Duty to take care - Litigation - Conduct of litigation - Defendant serving windingcompany - Petition served at wrong address - Company wound up without
awing,of'winding-up proceedings - Company subsequently incurring costs' in setting aside order
arc* siijjering damage to reputation - Company claiming damages for defendant's negligence in
ser\ing petition at wrong address - Whether defendant owing duty o f care to company in relation
9 “' ie”vk’e °J Fetiticn ~ Whether litigant owing dutx of care to another litigant in conduct of
natation.
6
J
T..e second defendant, which claimed to be the assignee of a debt owed bv the plaintiff
iompan\.presented a petition to wind up the plaintiff companv based on its failure to
payjhe alleged debt. The petition was duly advertised but served at the wrong address,
so *,,at tne piaintin company was unaware of it. The petition came before the Companies
urnr- and a winding-up order was made. When the plaintiff discovered that the winding“•:J3r er
. ke?n rnade, it applied to have it set aside. The plaintiff then claimed
'-plages agamst, inter alios, the second defendant for negligence in serving the petition
v-.nej lnTurrei:t f c'^ ress anc^ subsequently advertising a petition which had net been dulv
plaintiff alleged that the second defendant, as petitioner, owed it a dutv to
in"1 V
>reaSOr-a^ e Care t0 ensure t^lat t ^le registered office of the plaintiff was correctlv stated
| e petition, that the matters in the petition were properlv verified and that the
. ::non was properly served at the plaintiff’s registered office. The plaintiff claimed
^ mages, including costs of over £8,000 incurred in having the winding-up order set
dev^’ exP
iturf
over £90,000 in promoting its existing name or alternatively
-sing, promoting and publicising another trading name by reason of having to
AH Engiane L*v»-fttoo'H S M arch’ 9&0
568
All England Law Reports
[1990] 1 All ER
Caparo Industries pic v Dickman and others
•
HOL'SE Or LORDS
LORD BRIDGE OF HARWICH. LORD ROSKILL. LORD ACKNER. LORD OLIVER OF AVLMERTON AND
LORD j.AVNCEY OF TLLL1CHETTLE
I 6, 20. i j . i t . -S NOVEMBER lo g o , 8 FEBRUARY 10QC
b
Stgligence - Information or advice - Knowledge that third partv might re'.v on information Auditor - Preparation of company's accounts - Dutx to shareholder - Duty to potential investor
- Plaintiffs owning shares in public company - Plaintiffs making successful take-over bid for
company ;r. reliance on audited accounts of company - Accounts showing profit instead of loss Whether reasonably foreseeable that shareholders and potential investors migr.t rely on auditor's
report wher. dealing in company's shares - Whether sufficient proximity between auditor and C
shareholders or potential investors - Whether auditor owing duty of care to shareholders or
potential investors to carry out audit with reasonable care and skill
The respondents owned shares in a public companv, F pic, whose accounts for the vesr
ended 3 i March 19S4 showed profits far short of the predicted figure which resulted in
a dramatic drop in the quoted share price. After receipt of the audited accounts for the d
year ended 31 March 1984 the respondents purchased more shares in F pic and later that
year made a successful take-over bid for the company. Following the take-over, the
respondents brought an action against the auditors of the company, alleging that the
accounts of F pic were inaccurate and misleading in that thev showed a pre-tax profit of
some £ i ' - m for the year ended 31 March 19S4 when in fact there had been a loss of over
£400,000, that the auditors had been negligent in auditing the accounts, that the e
respondents had purchased further shares and made their take-overbid in reliance on the
audited accounts, and that the auditors owed them a duty of care either as potential
bidders for F pic because they ought to have foreseen that the 19S4 results made F pic
vulnerable to a take-over bid or as an existing shareholder of F pic interested in buving
more shares. On the trial of a prelfminary issue whether the auditors owed a dutv of care .
to the respondents, the judge held that the auditors did not. The respondents appealed to
the Court of Appeal, which allowed their appeal in part on the ground that the auditors
owed the respondents a duty of care as shareholders but not as potential investors. The
auditors appealed to the House of Lords and the respondents cross-appealed against the
Court of Appeal’s decision that they could not claim as potential investors.
H eld - (1 >The three criteria for the imposition of a duty of care were foreseeabilitv of ^
damage, proximity of relationship and the reasonableness or otherwise of imposing a
duty. In determining whether there was a relationship of proximity between the parties
the court, guided by situations in which the existence, scope and limits of a duty of care
had previously been held to exist rather than by a single general principle, would
determine whether the particular damage suffered was the kind of damage which the ft
defendant was under a duty to prevent and whether there were circumstances from
which the court could pragmatically conclude that a duty of care existed 'see p 573 h to
p 574 c. p 581 b c ej to p 5S2 a h, p 584; to p 3S5 a e to p 5S6 a, p 387 a b. p 500 e tog and
p 602 a d ft o h , post/, dictum of Brennan J in Sutherland Shire Council v Heyman .1985; 60
ALR 1 at 43-44 adopted.
(2) Where a statement put into more or less general circulation might foreseeable be j
relied on by strangers for any one o f a variety of different purposes which the maker of
the statement had no specific reason to anticipate there was no relationship of proximitv
between the maker of the statement and any person relying on it unless it was shown
that the maker knew that his statement would be communicated to the person reiving
on it, either as an individual or as a member of an identifiable class, specificalh in
connection with a particular transaction or a transaction of a particular kind and that that
!
All EnQ'ind Ltvt R tp o m
HL
9 March "990
Caparo Industries pic v Dickman
569
person w ould be v e r y likely i o rely on it for the purpose of deciding whether t o enter
a ~ into that transact ion see p 576 c to h, p 5S1 e. p 5 8 2 /to h. p 5 »7 /g , p 5 »? Mog. ? 592 j,
p 503 c d and p 007 b c. post;; Cann v Willson (iSSS) 39 Ch D 30. dictum ot Denning LJ
in Candler v Crane Christmas & Co [1051] 1 All E R 426 at 435-456, Medley Byrne ir Co Lid
v Heller cr Partners Ltd [ 1963] 2 All E R 57 5 and Smith v Eric S Bush (a firm':, Harris v U'vrf
Forest DC [:98c] ; All E R 5 ' i considered.
(}) The auditor of a public companv's accounts owed no duty of care to a member of
b ft the public at large who relied on the accounts to buy shares in the company because the
court would not deduce a relationship of proximity between the auditor and a member
of the public when to do so would give rise to unlimited liability on the pan of the
auditor. Furthermore, an auditor owed no duty of csre to an individual shareholder in
the companv who wished to buy more shares in the company, since an individual
shareholder was in no better position than a member of the public at large and the
c C auditor’s statutory dutv to prepare accounts was owed to the body of shareholders as a
whole, the purpose for which accounts were prepared and audited being to enable the
shareholders as a bodv to exercise informed control of the company and not to enable
i
individual shareholders to buy shares with a view to profit. It followed that the auditors
■'
did not owe a duty of care to the respondents either as shareholders or as potential
!
investors in the companv. The appeal would therefore be allowed and the cross-appeal
d dismissed see p 578 hf. p 579 i>tod, p 5SC d tof j to p 581 a d e, p 5S2 d e », p 596 c to ej,
> p 601/ to j and p 607 f to p 60S a d e. post); dictum of Richmond P in Scot: Group Ltd v
•
McFarlane [1078] 1 N'ZLR 553 at 566-567 adopted ;.-1.1 SaudiBanque v da rk Pixiey 'a firm)
\
[1989] 3 Ail ER 361 approved; dictum of Woolf J in JEB Fasteners Ltd v Marks Bloom crCo
!
(aJSrm, [19S 1] 3 All ER 2S9 at 296-297 disapproved.
Decision of the Court of Appeal F19S9I 1 All ER 79S reversed.
e
®i
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r
‘
Notes
^
For auditors’ duties and auditors’ reports, see 7(1) Halsbury’s Laws {4th ean paras 905,
912-914, and for cases on the subject, see 9 Digest Reissue' 601-607, JS? S~ j6 i 4 For negligence in relation to statements by professional men. see 34 Halsbury’s Laws
(4th edn. para 53, and for cases on the subject, see 36' 1) Digest -Reissue} 4 9 -5 0 -
Cases referred to in opinions
.
*
Al SaudiBanque v Clark Pixiey (a/rm )[ 1989] 3 All E R 361. [1990] 2 W L R 344.
.Anns v Merton London Borough [1977] 2 All E R 492, [1978] AC 728. [1977] 2 \\ L R 1024,
HL.
Caltex Oil [Australia: Pty Ltd v Dredge Willemstad (19~6) 136 CLR 529, Aust HC.
Candler v Crane Christmas & Co [195 i] 1 All ER 426. [195 1] 2 KB 164. CA.
Candlewood Savigation Corp Ltd v Mitsui OSK Lines Ltd, The Mineral Transporter, The Ibaraki
Maru [ i oS5] 2 All ER 93 5, [ 10S6] AC i, [ 198 5] 3 ^'LR 3 S 1, PC
Ciirm v Willson (1888) 39 Ch D 39.
Cattle vStockton Waterworks Co (187>)LR 10 QB 453. [1874-80] All ER Rep 220.
fy Clavton v Woodman c* Son >Buildersj Ltd [1962] 2 All ER 33, [1962] 2 QB 533, [1962] !
WLR 565, CA.
Courteen Seed Co v Hong Kong and Shanghai Banking Corp (1927) 245 N Y 377 , NY Ct of
Apps.
Donoghue ;or M'Alister) vStevmswi [1932] AC 562. [1932] All ER Rep 1, HL.
Elliott Steam Tug Co Ltd v Skipping Controller [1922] 1 KB 127, CA.
j Glan~er v Shepard ,1922) 233 NY 236, NY Ct of Apps.
Grant v Australian Knitting Mills Ltd [1036] AC 85, [1935] All ER Rep 209. PC
Hcdlex B\rnecrCc Ltd v Heller cr Partners Ltd [1963] 2 All ER 575. [1964] AC 465. [1963]
3 WLR 101, HL.
Hill \- Chief Constable of West Yorkshire [1988] 2 All ER 238, [ipSS]2 WLR 1 0 4 9 . HL.
Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294, [ i 9 7 o] AC 1004, [>97o] 2 \\ LR
1140. HL.
Al: England Law ReocKH
570
9 March 1990
All England L a w Reports
j
[ 1 9 9 0 ] 1 All ER
JEB Fasteners Ltd v Marks Bloom cr Co -'afirm; [ipS I j 3 All ER 2S9: ajfd [1963] 1 All ER
5S3, CA.
Junior Books Ltd v Yeitchi Co L t d 982’; 3 All ER 2c 1. [1983! 1 AC 52c. [19S2; 3 WLR 4 7 7 hl.
’
'
Kingston Cotton Mil! Co, Re [ 1696] 1 Ch 6. CA.
Le Lievre v Gouid [1693] 1 QB 491. CA.
Leigh cr Sillavan Ltd v Aliakmon Shipping Co Lid, The Ahukmcn [ifS 6 j 2 All ER 145, [1986]
AC 785. [1966] 2 WLR 902, HL.
McLoughlin v 0 ‘Brian [19S2] 2 All ER 29S, [1983] 1 AC 410, [19S2]2 WLR 9S2. HL.
Ministry of Housing and Local Government v Sharp T197c] 1 All ER .’ 009, [197c] 2 QB 223,
[1970] 2 WLR Sc2, CA.
'
Mutual Life and Ciri^er.'s Assurance Co Ltd v Evart [ 1971 ] 1 All ER 15c, [1971] AC 7 93 .
[1971] 2 WLR 23, PC.
Overseas Tankship il'K) Ltd v .Merrs Dock and Engineering Co Ltd, The Wagon Mound [1961]
1 All ER 404. [1961] AC 386. [ 1961 ’ 2 WLR 126. PC.
Peabody Donation Fund {Governors; v Sir Lindsay Parkinson cr Co Ltd [1984] 3 All ER 529,
[1985] AC 210, [1984] 3 WLR 953, HL.
Perl :J>) Exporters'. Ltd vCamden London BC [1963] 3 All ER 161, [1984] QB 342. [1963] 3
WLR 769. CA.
‘
Pfeifer (Jekn; Pty Ltd vCannay ' icS 1) 14S CLR 21S, Ausr HC.
Rondel v \Vors/fv[i9c7] 3 All ER 993. [ 1969] 1 AC 191. E1967} 3 WLR 1660, HL.
Ross v Caunters ‘a firm'; [ 1979] 3 Ail ER 5S0. [ 1980] Ch 2 9 7 - [ ■ 9 7 9 J 3 WLR 605.
Rowling v Takarc Properties Lid '1 o$8] 1 All ER 163, [i9»S] AC 4 7 3 , [1968] 2 WLR 4.' S,
PC.
|
Scott Group Ltd v McFarlane [3 97 57 1 NZLR 553. NZ CA: afTg [1973] 1 NZLR 3S2, NZ
SC.
"
Smith v Eric S Busk [a firm), Harris v Wvre Forest DC [1989] 2 All ER 514, [1969] 2 WLR
790, HL.
I
Smith v Littlevoods Organisation Ltd Chief Constable, Fife Constabulary, third party) [19S7] 1
All ER 710. [1087] AC 241, [19S7] 2WLR 4S0. HL.
Sutherland Shire Council v Heyman (1965) 60 ALR 1, Aust H C
Twcmax Ltd v Dickson McFarlane cr Robinson 1982 SC 113, Outer House; rvsd by consent
1984 SLT 424, Inner House.
Ultramares Ccrp v Touche (1931) 255 NY 170, NY Ct of Apps.
Kun-veu vA-G o f Hong Kong [1987] 2 All ER 705, [1988] AC 175 - [>987] 3 WLR 776,
PC.
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9
A ppeal
The third defendants, Touche Ross S: Co (a firm}, the auditors of Fidelity pic, appealed
with leave of the Court of Appeal against the decision of that court (Bingham and Taylor
LJJ, O’Connor LJ dissenting) ([1989] 1 All ER 798- [1989] QB 653) on 29 July 1988 and
the order dated 5 August 1988 allowing in part an appeal by the plaintiff, Caparo
Industries pic (Caparo), against the order dated 15 December 1987 made by Sir Neil ^
Lawson ([198S] BCLC 387), sitting as a judge of the High Court in the Queen's Bench
Division in chambers, whereby, on the hearing of a preliminary issue in an action
brought bv Caparo against the first and second defendants, Steven Graham Dickman and
Robert Anthony Dickman (directors of Fidelity pic), and the auditors, claiming damages
against the first'and second defendants for fraud and against the auditors for negligence, .
the judge held that the auditors did not owe a duty of care to Caparo either as potential J
investors or as shareholders in the company in respect of the audit of the company’s
accounts for the year ended 31 March 1984/The Court of Appeal held that the auditors
owed a dutv to Caparo as shareholders but not as potential investors in the company.
Caparo cross-appealed against the dismissal by the Court of Appeal of their claim that the
Aj: E n g l a n d l a * R e o o rt*
HL
a
S M arch 1990
Caparo Industries pic v Dickman (Lord Bridge)
571
auditors owed them a duty of care as potential investors. The facts are set out in the
opinion of Lord Bridge.
Peter Gcidstr.::h QC and Stephen Moricrty for the auditors.
Vi&vun! Bledistee QC, Michael Brmdle and Craig Orr for Caparo.
Their Lordships took time for consideration.
b
S Februarv. The following opinions were delivered.
LORD BRIDGE OF HARWICH. My Lords, the appellants are a well-known firm of
chartered accountants. At all times material to this appeal, they were the auditors of a
public limited company. Fidelity pic 'Fidelity), which carried on business as manufacturers
' C and vendors of electrical equipment of various kinds and whose shares were quoted on
the London Stock Exchange. On 22 May 1084 the directors of Fidelity announced the
results for the year ended 31 March 1964. These revealed that profits for the year fell
well short of the figure which had been predicted, and this resulted in a dramatic drop in
; the quoted price of the shares which had stood at u s p per share on 1 March ; 0S4 and
■! which, by the beginning of June 1984, had fallen to 6jp. Fidelity’s accounts for the year
: d to 31 March 19S4 had been audited by the appellants and had been approved by the
•; directors on the day before the results were announced. On 12 June 1084 they were
! issued to the shareholders, with notice of the annual general meeting, which took place
] on 4 July 1984 and at which the auditors’report was read and the accounts were adopted.
[
Following the announcement of the results, the respondents Caparo Industries pic
| fCaparo; began to purchase shares of Fidelity in the market. On 8 June 1984 they
" e purchased : 00,000 shares but they were not registered as members of Fidelity until after
12 June 19S4 when the accounts were sent to shareholders although they had been
registered in respect of at least some of the shares which they purchased by the date of
the annua! general meeting, which they did not attend. On 12 June 19S4 they purchased
a further 5c.000 shares, and by 6 July 19S4 they had increased their holding in Fidelity
to 20-cr. of the issued capital. On 4 September 19S4 they made a bid for the remainder
at i2op per share, that offer being*mcreased to i2 jp per share on 24 September 1984.
The offer was declared unconditional on 23 October 1084, and two days later Caparo
announced that it had acquired 91-8* of the issued shares and proposed to acquire the
balance compulsorily, which it subsequently did.
The action in which this appeal arises is one in which Caparo alleges that the purchases
of shares which took place after 12 June 19S4 and the subsequent bid were all made in
* reliance on the accounts and that those accounts were inaccurate and misleading in a
number of respects and, in particular, in overvaluing stock and underproviding for after­
sales credits, with the result that an apparent pre-tax profit of some f i-jm should in fact
have been shown as a loss of over £400,000. Had the true facts been known, it is alleged.
Caparo would not have made a bid at the price paid or indeed at all. Caparo accordingly
commenced proceedings on 24 July 1985 against two of the persons who were directors
at the material time, claiming that the overvaluations were made fraudulently, and
against the appellants ;rhe auditors), claiming that they were negligent in certifying, as
they did, that the accounts showed a true and fair view of Fidelity’s position at the date
to which thev related. The substance of the allegation against the auditors is contained in
para 16 of the statement of claim which is in the following terms:
/
'Touche Ross, as auditors of Fidelity carrying out their functions as auditors and
certifiers of the accounts in April and May 19S4, owed a duty of care to investors
and potential investors, and in particular to Caparo, in respect of the audit and
certification of the accounts. In support of that duty of care Caparo will rely upon
the following matters:— (1) Touche Ross knew or ought to have known (a, that in
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e a r l y March ; 9B4 a press release had been issued stating that profits for the financial
year wouls tall significantly shon of f z . z m ,b; that Fidelity's share price fei; from
i 4 3 p per share on 1st March 1084 to " p per share on 2nd April 1084 c -hat
Fidelity required financial assistance. 2) Touche Ross therefore ought 10 h av e
foreseen that Fidelity was vulnerable to a take-over bid and that persons such as
Caparo might well rely on the accounts for the purpose of deciding whether to rake
over Fidelity and might well suffer loss if the accounts were inaccurate.’
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On 6 July '.05- Sir Neil Lawson, sitting as a judge of the High Court in the Queen's ^
Bench Division in chambers, made an order for the trial of a preliminary issue, as follows: t
\ . . whether on the facts set out in paragraphs 4 and 6 and in sub-paragraphs ;
and '2, of paragraph 16 of the Statement of Claim herein, the Third Defendants,
Touche Ross S: Co., owed a duty of care to the Plaintiffs. Caparo Industries pic. a as
potential investors in Fidelity PIC; or
as shareholders in Fidelity PIC from 5 la.ne
10S4 and or from 12 June 10S4; in respect of the audit of the accounts of Fideiitv
PIC for the year ended 31 March ; 064 published on 12 June : 0S4.’
Paragraphs 4 and 6 ot the statement ot claim are those paragraphs in which are se: out
the purchases of shares by Caparo to which I have referred and in which it is claimed that
the purchases made after 12 June 1984 were made in reliance on the information
contained in the accounts. There is, however, one correction to be made. Paraerarh 4
alleges that the accounts were issued on i2 ju n e 1984'to shareholders, including Caparo’
but it is now accepted that at that date Caparo, although a purchaser of shares, had not
been registered as a shareholder in Fidelity's register of members.
On the trial ot this preliminary issue Sir Neil Lawson, sitting as a judge of the Queen's
Bench Division, held i) that the auditors owed no dutv at common law to Caparo as
investors and ii) that, whilst auditors might owe statutorv duties to shareholders as a
class, there was no common law duty to individual shareholders such as would enable an
individual shareholder to recover damages for loss sustained by him in acting in reliance
on the audited accounts see [ 198S; BCLC 3S- ;.
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Caparo appealed to the Court of Apgeal, which, by a majority ;0 ’Connor LJ dissentine;
allowed the appeal holding that, whilst there was no relationship between an auditor and
a potential investor sufficiently proximate to give rise to a duty of care at common ’aw,
there was such a relationship with individual shareholders, so that an individual
shareholder who suffered loss by acting in reliance on negligently prepared accounts,
whether by selling or retaining his shares or by purchasing additional shares, was entitled
to recover in tort fsee [1989] 1 All ER 79S. [19S9] QEr653). From that decision the
auditors now appeal to your Lordships’ House with the leave of the Court of Appeal, and
Caparo cross-appeal against the rejection by the Court of Appeal of their claim that the
auditors owed them a duty of care as potential investors.
In determining the existence and scope of the duty of care which one person mav owe
to another in the infinitely varied circumstances of human relationships there has for
long been a tension between two different approaches. Traditionally the law finds the
existence of the duty in different specific situations each exhibiting its own particular
characteristics. In this way the law has identified a wide variety of duty situations, all
falling within the ambit of the tort of negligence, but sufficiently distinct to reauire
separate definition of the essential ingredients by which the existence of the dutv is to be
recognised. Commenting on the outcome of this traditional approach. Lord Atkin, in his
seminal speech in Dcncghue v Stevenscn [1932] AC 562 at 579-5S0. [1932] All ER Rep 1
at 11, observed:
T h e result is that the Courts have been engaged upon an elaborate classification
of duties as they exist in respect of property, whether real or personal, with further
divisions as to ownership, occupation or control, and distinctions based on the
particular relations of the one side or the other, whether manufacterer, salesman or
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landlord, customer, tenant, stranger, and so on. In this way it can be ascertained at
anv rime whether the law recognizes a duty, but only where the case can oe re,erred
to some particular species which has been examined and classified. And vet the: .m y
which is common to all the cases where liability is established must logica..y be
based upon some element common to the cases where it is tound to exist.
It is this last sentence which signifies the introduction of the more modern approach ot
seeking a single genera! principle which may be applies in all circumstances to deie. .„ine
she existence of a duty of care. Vet Lord Atkin himseif sounds the appropriate note of
caution by adding:
T o seek a complete loeical definition of the general principle is probably to go
bevond the function of the judge, for the more ge.neral the definition the more
likely it is to omit essentials or to introduce non-essentials.
Lord Reid gave a laree impetus to the modern approach in HomeCjfice v Do-set Yacht Co
I_w'[!0;c]2 All ER 2*04 at - 97 , 1 >9ro] AC i o n at io2tf-ic2-. where hessiu.
ie
f f
‘In later vears there has been a steady trend towards regarding the law ot
negligence as depending on principle so that, when a new point emerges, one should
ack not whether it is covered bv authority but whether recognised principles apply
to it. Daurinu v Stemsen may be regarded as a milestone, and the we:i-*nown
passaee in Lord Atkin's speech shouid 1 think be regarded as a statement ot pnnupie.
ft i« not to be treated as if it were a statutory denr.ition. It will require q u alificatio n
in new circumstances. But 1 think that the time hasjrome when we can ana should
say that it ought to apply unless there is some justification or valid explanation tor
its exclusion.’
The most comprehensive attempt to articulate a single general principle is reached in
the well-known passage from the speech of Lord \\ ilbertorce in Anns v .\,erton London
Borough ' i 977] 2 All ER 492 at 49 S. j. 197 $j AC , 2 S a t , } j —.5 - .
T hroueh the trilogv of cases in this House. Donahue v Stn-oum [ i 9 3 =] AC 562.
[1032] All ER Rep 1, MedlexByrne cr Co Lia v Heiier v Partners lid
a AH ER
5 - 7 r , o 6 4 j AC 465. and Mome Oftce r Dorset YaAt Co Ltd ■ 1970] 2 Al ER 294.
[io -o ] AC 1004, the position has now been reached that in order to establish that a
dutv of care arises in a particular situation, it is not necessary to bring 'he facts ot
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 wrongdoer and the person who has suffered
damaee there is a sufficient relationship of proximity or neighbourhood such _that,
in the'reasonable contemplation of the former, carelessness on his pan may be likelv
to cause damaee to the latter, in which case a prima facie duty ot care arises.
Secondly, if the first question is answered affirmatively, it is necessan to consider
whether, there are anv considerations which ought to negative, or to reduce or limit
the scope of the dutv or the class of person to whom it is owed or the damages to
which a breach of it may give rise (see the Dorset Yunt case L197c] 2 All ER 294 at
207—29S, [ 1970] AC 1004 st 1027 per Lord Reidy.
But since .4 nw's case a series o f decisions of the Privy Counci1 and of your Lordships
House, notablv in judgments and speeches delivered by Lord Keith, haye emphasised he
inability of anv single general principle to provide a practical test which canbeapphed
to every situation to determine whether a duty of a r e is owed and ifso.'vhat is its scope,
see Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1984] 3 A» ER 5*9 « 533 534 . [1 9 8 5 ] AC 210 at 239-241. Yuen Kun-ytru v A-G ofMong Aong [ i 9S/] 2 AH ER , 05
7 0 9 - 7 12. [ 1 9 8 8 ] A C 1 7 5 * 190-194, Scwhngv Takaro Properties Ltd [19 86 ] 1 AHI ER 1 3
at 172 [ 1 9 8 8 ] A C 4 7 3 « 501 and Htli v Che] Constable of V>est )orkshire[i 9 $i] 2 All ER
238 at 241. [1089] A C 53 at 60. What emerges is that, in addition to the foreseeabilit) of
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damage, necessary ingredients in any situation giving rise to a dutv of care are that there
shouid exist between the party owing the duty and the party to whom it is owed a
relationship characterised by the law as one of'proximity' or neighbourhood’ and that
the situation should be one in which the court considers'it fair, just and reasonable that
the law should impose a duty of a given scope on the one panv tor the benefit of the
other. But it is implicit in the passages referred to that the concepts of proximitv and
tairncss embodied in ihese additional ingredients are not susceptible of any such precise
definition as would be necessary to give them utility as practical tests, but amount in
effect to little more than convenient labels to attach to the features of different specific
situations which, on a detailed examination o f all the circumstances, the law recognises
pragmatically as giving rise to a duty of care o f a given scope. Whilst recognising, of
course the importance ot the underlying general principles common to the whole field
ot negligence, I think the law has now moved in rhe direction o f attaching greater
significance to the more traditional categorisation of distinct and recognisable situations
as guides to the existence, the scope and the limits of the varied duties“of care which the
law imposes. We must now. I think, recognise the wisdom of rhe words of Brennan I in
the High Court ot Australia in Sutherland Shire Council v Hreman : j oS5; 60 ALR 1 at
4 4 , where he said:
'
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It is pre.e.able in m\ \iew, that the law should develop novel categories of
negligence incrementally and by analogy with established categories, rather than bv
a mass:\e extension of a prima tacie duty of care restrained onlv bv indefinable
considerations which ought to negative, or to reduce or limit the scope of the dutv
or the class ot person to whom it is owed”.’
One of the most important_distinctions always to be observed lies in the law's essentially 1
ditterent approach to the different kinds of damage which one panv mav have suffered (
in consequence of the acts or omissions of another. It is one thing to owe a dutv of care
to avoiu causing injury to the person or property of others. It is auite another'to avoid
causing others to suffer purely economic loss. A graphic illustration of the distinction is
embodied in the proposition that—
In case ot a wrong done to a chattel the common law does not recognize a person f
whose on! v rights are a contractual right to have the use or services of the chattel for
purposes ot making profits or gains without possession of or propertv in the chattel.
Such a person cannot claim for injury done to his contractual rig h t. ’.
(See Elliott Slecm Tug Cc Ltd v Shipping Controller [1922] 1 KB 117 at 139 per Scrutton L!'..
The proposition derives from Cattle v Stocktcn Waterworks Co ; )S75‘ LR 10 QB 453,
[ 1874-80] All ER Rep 220. It has recently been reaffirmed in Candlewood \a\igation Corp
Ltd v Mitsui OSK Lines Ltd, The Mineral Transporter, The WarakiMaru [19S5] 2 All F.R 935.
[ 1p86] AC 1 and Leigh & Sillavan Ltd v Aliakmon Shipping Co Ltd, The Aliakmon [ 1ps6] 2 All
ER 145, [1986] AC 7S5. In the former case Lord Fraser, delivering the judgment of the
Privy Council, said ([1985] 2 All ER 935 at 945, [1986] AC 1 at 25
Their Lordships consider that some limit or control mechanism has to be imposed
on the liability of a wrongdoer towards those who have suffered economic damage
in consequence of his negligence. The need for such a limit has been repeatedly
asserted in the cases, from Cattle's case to Cahex [stt Caltex Oil !AustraliaPrv Ltd v
Dredge U illemstad '1976) 136 CLR 529), and their Lordships are not aware that a
view to the contrary has ever been judiciallv expressed.’
The damage which may be caused by the negligently spoken or written word will
normally be confined to economic loss sustained by those who rely on the accuracy of
the information or advice they receive as a basis for action. The question what, if anv
duty is owed by the maker of a statement to exercise due care to ensure its accuracy arises
t'pically in relation to statements made by a person in the exercise of his calling or
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profession. In advising ihe ciien: who employs him the protessional man ow es a cuiy to
exercise ihai standard'of skill and care appropriate to his professional status ana will be_
liable both in contract and in tort tor all losses which his client may sutler by reason ot
ar.v breach of that dutv. But the possibility of any duty of care being owed to third
‘
' man was in no contracrua! relationship was for long
parties with whom the protesionai
v a l ia n t a t t e m p t to c o r r e c t t h e e r r o r . B u t it w a s n o t u n t i l t h e d e c is io n ot th i s H o u s e in
Hedlex B v rn f c~ Co Ltd v Heller P artners L id [ 1 0 6 3 ’ - All E R 5 7 5 .1 .1 9 6 4 ] A C 4 6 ; t h a t t h e
law was once more set on the right path.
Consistentlv with the traditional approach it is to these authorities and to subsequent
decisions directly relevant to this relatively narrow corner of the field that we shouid_
look to determine the essential characteristics of a situation giving rise, independently ot
anv contractual or fiduciarv relationship, to a duty 0! care owed by one party to another
to ensure that the accuracv ot anv statement wnich the one party maKes and on which
the other panv mav foreseeablv rely to his economic detriment.
In Car.n v W ill sen ; i S S S ) 3 9 C h ' D 3 9 m o r t g a g e e s a d v a n c e d m o n e y in re lia n c e o n a
v a l u a t i o n o f t h e m o r t g a g e d p r o p e n y s u p p l i e d t o t h e m b y a v a l u e r e m p l o y e . ^ by th e
m o rtg a g o r. O n th e m o rtg a g o r's d efault, th e p ro p e rty , h a v in g b ee n neg lig en tly
u n d e r v a l u e d , p r o v e d i n s u f f i c i e n t to c o v e r t h e m o r t g a g e lo a n . T h e m o r t g a g e e s r e c o v e r e d
t h e i r loss f r o m th e v a l u e r . In h i s j u d g m e n t C h i t r y j said a t 4 2 - 4 3 :
‘In t h i s case t h e d o c u m e n t c a lle d a v a l u a t i o n w a s s e n t b y t h e D e f e n d a n t s d ir e c t to
r h e a g e n t s o f t h e P l a i n t i f f f o r t h e p u r p o s e o f i n d u c i n g t h e P l a i n t i f f a n d h is c o - tr u s te e
valuation,"
In Candler v Crane Christmas
Cc Lid [195:] t All E R 426. l 595 1_
:^ e
plaintiff invested monev in a limited company m reliance on accounts 01 the company
prepared by the companv's accountants at the^equest ot the managing director, w nicn
were shown to the plaintifl and discussed with him by the accountants ;n the knowledge
that he was interested as a potential investor in the company. The accounts were
inaccurate and misleading and the plaintiff, having invested in the company in reliance
on them, lost his monev. Denning LJ, in his dissenting judgment, held the plaintiff
entitled to recover damages for the accountants' negligence.
9
In the H edlex B \r n e case [ 1963] 2 All E R 575- [> 964] AC 465 bankers were asKed about
the financial stability of a customer ot the bank. They gave a favourable reference, albeit
with a disclaimer of responsibility. The circumstances or the inquiry made it clear to the
bankers that the party on whose behalf the inquiry was made wanted to know if they
could safely extend credit to the bank’s customer in a substantial sum. Acting on the
reference given, the plaintiffs extended credit to the bank s customer who in due course
defaulted. Although the House held that the bankers were protected by the disclaimer
of responsibility, the case provided the opportunity to review the law. which led to the
reinstatement of C ann v W illson, the overruling of' the majority decision in the Candler
case and the approbation of the dissenting judgment of Denning LJ in that case._
The most recent decision of the House, which is very much in point, is that ot the two
appeals heard together of Smith v Eric 5 Biisk (a firm ), H arris v U \ r e Forest DC „;pS 9 ] 2 All
E R 5:4, [19S0] 2 W L R 790. The plaintiffs in both cases were house purchasers who
purchased in reliance on valuations of the properties made by surveyors acting for and
on the instructions of the mortgagees proposing to advance money to the plaintiffs to
enable them to effect their purchases. In both cases the surveyors fees were paid by the
plaintiffs and in both cases it turned out that the inspections and valuations had been
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negligently carried out and '.hat ihe proper!) was seriously defective so that the plaintiffs
suffered financial loss, in Smith's case the mortgagees were a building society, the
surveyors who carried out the inspection and valuation were a firm employed by the
building society, and their report was shown to the plaintiff. In Hurra's case the
mortgagees w ere the local authority who employed a member of their own staff to carry
out the inspection and valuation. His report was not shown to the plaintiff, but the
plaintiff rightly assumed from the local authority's offer of a mortgage loan that the
property had been professionally valued as worth at least the amount of the loan. In both
cases the terms agreed between the plaintiff and the mortgagee purported to exclude any
liability on the part of the mortgages or ihe surveyor for the accuracy of the mortgage
valuation. The House held that in both cases the surveyor making the inspection and
valuation ow ed a duty of care to the plaintiff house purchaser and that the contractual
clauses purporting to exclude liability were struck down by ss 2.2; and j 1(3; of the Unfair
Contract Terms Act 1077.
The salient feature of all these cases is that the defendant giving advice or information
was fully aware of the nature of the transaction w hich the plaintiff had in contemplation,
knew that the advice or information would be communicated to him directly or
indirectly and knew that it was verv like! v that the plaintiff would rely on that advice or
information in deciding whether or r.ot to eng2ge in the transaction in contemplation.
In these circumstances the defendant couid clearly be expected, subject always to the
effect of any disclaimer of responsibility, specifically to anticipate that the plaintiff would
rely on the advice or information given bv the defendant for the very purpose for which
he did in the event relv on it. So also the plaintiff, subject again to the effect of any
disclaimer, would in that situation reasonably suppose that he was entitled to rely on the
advice or information communicated to him for the very purpose for which he required
it. The situation is entirely different where a statement is put into more or less general
circulation and mav foreseeablv be relied on bv strangers to the maker of the statement
for any one of a varietv of different purposes which the maker of the statement has no
specific reason to anticipate. To hoid the maker of the statement to be under a duty of
care in respect of the accuracy of the statement^o all and sundry for any purpose for
which they may choose to re!v on it is not only to subject him, in the classic words of
Cardozo CJ, to 'liability in an indeterminate amount for an indeterminate time to an
indeterminate class’ [see Ultramares Corp v Touche (1931) 155 NY 170 at 1791, it is also to
confer on the world at large a quite unwarranted entitlement to appropriate for their
own purposes the benefit of the expert knowledge or professional expertise attributed to
the maker of the statement. Hence, looking only at the circumstances of these decided
cases where a duty o f care in respect of negligent statements has been held to exist. I
should expect to find that the ‘limit or control mechanism . . . imposed on the liability of
a wrongdoer towards those w ho have suffered economic damage in consequence of his
negligence’ see the Candlewood case [1965] 2 All ER 935 at 045, [19S6] AC 1 at 25 rested
on the necessity to prove, in this category of the tort of negligence, as an essential
ingredient of the ‘proximity" between the plaintiff and the defendant, that the defendant
knew' that his statement w ould be communicated to the plaintiff, either as an individual
or as a member of an identifiable class, specifically in connection w ith a particular
transaction or transactions of a particular kind ^eg in a prospectus inviting investment;
and that the plaintiff would be very likely to rely on it for the purpose of deciding
whether or not to enter on that transaction or on a transaction ot that kind.
I find this expectation fully supported by the dissenting judgm ent of Denning LJ in
Candler v Crane Christmas & Co [1051] 1 All ER 426 at 433-436, [1051 j 2 KB 164 at 170184 in the following passages:
‘Let me now be constructive and suggest the circumstances in which I say that a
duty to use care in making a statement does exist apart from a contract in that
behalf. First, w hat persons are under such duty? My answer is those persons such as
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accountants, surveyors, valuers and analysis, whose profession and occupation it is
to examine books, accounts, and other things, and to make reports on which other
people— other than their clients— rely in the ordinary course of business . . .
Secondly, to whom do these professional people owe this dutv? I will take
accountants, but the same reasoning applies to the others. Thev owe ;he dutv, of
course, to their employer or client; and also, I think, to anv third person ;o whom
they themselves show the accounts, or to whom thev know their empiover is going
to show the accounts so as to induce him to invest monev or take some other action
on them. I do not think, however, the duty can be extended still further so as to
include strangers of w hom they have heard nothing and to whom their empiover
without their know ledge may choose to show their accounts. Once the accountants
have landed their accounts to their employer, they are not, as a rule, responsible for
what he does with them without their knowledge or consent . . . The test of
proximity ;n these cases is: Did the accountants know that the accounts were
required for submission to the plaintiff and use bv him? . . . Third! v to what
transactions does the duty of care extend? It extends, I think, onlv to those
transactions for which the accountants knew their accounts were required. For
instance, in the present case it extends to the original investment of f o c c which
the plainntl made in reliance on the accounts, because [the accountants! knew that
the accounts were required for his guidance in making that investment; but it does
not extend to the subsequent £2.20 which he invested after he had been two months
with the company. This distinction, that the duty onlv extends to the v ery
transaction in mind at the rime, is implicit in the decided cases. . . It wil! be noticed
would be going too tar to make an accountant liable to any person in the land who
chooses to rely on the accounts in matters of business, for that would expose him. in
the words ot C a r o o z o . C.J., in I'tramares Corpn. v. Touche O . 1 9 3 1 ; 2 5 5 NY 373 at
179 /. to "liability in an indeterminate amount for an indeterminate time to an
indeterminate class.” Whether he would be lifeble if he prepared his accounts for the
guidance of a specific class of persons in a specific class of transactions, I do not sav. I
should have thought he might be. just as the analyst and lift inspector would" be
liable in the instances I have given earlier. It is, perhaps, worth mentioning that
Parliament has intervened to make the professional man liable for negligent repons
given tor the purposes of a prospectus: see s. 40 and s. 43 of the Companies Act,
1048. That is an instance of liability for repons made for the guidance of a specific
class ot persons— investors in a specific class of transactions— applying for shares.
That enactment does not help one way or the other to show what result the common
law would have reached in the absence of such provisions, but it does show what
result it ought to reach. My conclusion is that a duty to use care in statement is
recognised by English law, and that its recognition does not create anv dangerous
precedent when it is remembered that it is limited in respect of the persons by
whom and to w hom it is owed and the transactions to which it applies.’
It seems to me that this masterly analysis, if I mav say so with respect, requires little, if
any, amplification or modification in the light of later authority and is particularly apt to
point the way to the right conclusion in the present appeal.
1.
Some of the speeches in the Medley Byrne case derive a duty of care in relation to
J negligent statements from a voluntary assumption of responsibility on the part of the
maker of the statements. In his speech in Smith v Eric S Bush [19S9] ; All ER 514 at 534,
[1989] 1 WLR 70c at Si 3 Lord Griffiths emphatically rejected the view that this was the
true ground ot liability and concluded:
‘The phrase "assumption of responsibility" can only have anv real meaning if it is
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understood as referring :o the circumstances in which the law will deem the maker
of the statement to have assumed responsibility to the person who acts on the
advice.'
I do not think that in the context ot the present appeal anything turns on the difference
between these two approaches.
These considerations amply justify the conclusion that auditors of a public company's
accounts owe no dutv of care to members of the public at large who rel’v or. the accounts
in deciding to buy shares in the company. If a duty of care"were ow ed so widely, it is
difficult to see any reason why it should not equally extend to all who relv on the
accounts in relation to other dealings with a company as lenders or merchants extending
credit to the company. A claim that such a duty was’owed bv auditors to a bank lending
to a company was emphatically and convincingly rejected by Millert j in M Saudi San sue
t Clark Pixiey :a firm, 11 psoj 3 All ER 3 6 1ope] 2 WLR 344, The onlv support for an
unlimited duty of care owed bv auditors for the accuracv of their accounts to all who
may foreseeably rely on them is to be found in some jurisdictions in the United States of
America, where there are striking differences in the law in different states. In this
jurisdiction I have no doubt that the creation of such an unlimited dutv would be a
legislative step which it would be tor Parliament, not the courts, to take.
The main submissions for Caparo are that the necessary nexus of proximitv between
it and the auditors giving rise to a duty of care stems from (i; the pleaded circumstances
indicating the vulnerability of Fidelity to a take-over bid and from the consequent
probability that another company, such as Caparo. would rely on the audited accounts in
deciding to launch a take-over bid or 'z; the circumstance’ that Caparo was aireadv a
shareholder in Fidelity when it decided to launch its take-over bid’in reliance on the
accounts. In relation to the first of these two submissions. Caparo applied, in the course
of the hearing, for leave to amend para i6 'i: of the statement of claim bv addins the
words 'or alternatively that it was highly probable that such persons would relv on the
accounts for that purpose’.
The case which giv es most assistance to Caparo in support of this submission is S.v::
Group L:d v McFarlane [io-S] 1 NZLR 553. The audited consolidated accounts of a New
Zealand public company and its subsidiaries overstated the assets of rhe group because of
an admitted accounting error. Under the relevant New Zealand legislation "its accounts
were, as in England, accessible to the pubifc The circumstances of rhe groups affairs
were such as to make it highly probable that it would attract a take-over bid. The
plaintiffs made such a bid successfully and when the accounting error was discovered
claimed from the auditors in respect of the shortfall in the assets. QuilliamJ held that
the auditors owed the plaintiffs no duty of care ,;see [ i p r s j 1 NZLR 582:. The majority
of the New Zealand Court of Appeal ;\Voodhouse and Cooke jj; heid that the duty of care
arose from the probability that the company would attract a take-over bid and the bidder
would rely on the audited accounts, although Cooke J held that the shortfall in the assets
below that erroneously shown in the accounts did not amount to a loss recoverable in
tort. Richmond P held that no duty of care was owed. He said [ 1 9 7 s 1 1 NZLR
a:
566 ) :
‘
'
‘All the speeches in Hedley Byrne seem to me to recognise the need for a “special’'
relationship: a relationship which can properly be treated as giving rise to a special
duty to use care in statement. The question in any given case is w hether the nature
o f the relationship is such that one party can fairly be held to have assumed a
responsibility to the other as regards the reliability of the advice or information. 1
do not think that such a relationship should be found to exist unless, at least, the
maker of the statement was, or ought to have been, aware that his advice or
information would in fact be made available to and be relied on bv a particular
person or class of persons for the purposes of a particular transaction or type of
i
Al! Engiantf Law Reporu S March 1&SK)
Caparo Industries pic v Dickman (Lord Bridge)
,b
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579
transaction. I would especially emphasise that to my mind it does not seem
reasonable to attribute an assumption of responsibility uniess the maker of the
statement ought in all the circumstances, both in preparing himself for what he said
and in saying it. to have directed his mind, and to have been able to direct his mind,
to some particular and specific purpose ‘or which he was aware that his advice or
iniormation would be relied on. In many situations that purpose will be obvious.
But the annual accounts of a company can be relied on in all sorts of wavs and for
many purposes.’
I agree with this reasoning, which seems to me to be entirely in line with the principles
to be derived trom the authorities to which I have earlier referred and not to require
modification in any respect which is relevant for press.it purposes by reference to
anything said in this House in Smith v Eric S Bush. I should in anv event be extremely
Ic reluctant to hold that the question whether or not an auditor owes a dutv o f care to an
investor buving shares ;n a public company depenjs on the degree of probability that
the shares will prove attractive either en bloc to a take-over bidder or piecemeal to
individual investors. It would be equally wrong, in mv opinion, to hold an auditor under
a duty ot care to anyone who might lend money to a companv bv reason onlv that it was
foreseeable as hignlv probable that the company would borrow money at some time in
1 id the year following publication of its audited accounts and that lenders might relv on
those accounts in deciding ro lend. I am content :o assume the high probability of a take­
over bid in reliance on the accounts which the proposed amendment of the statement of
claim would assert but I do not think it assists Caparo"s case.
The only other English authority to which I need refer in this context is IE3 Fasteners
Ltdv Marks Blxm & Cc 'a firm- [ipS i] 3 All ER 219, a decision at first instance of Woolf J.
t e This was another case v. here the plaintiffs, who had made a successful takeover bid for a
i
company in reliance on audited accounts which had been negligently prepared, sued the
accountants for damages. Woolf J heid that the auditors owed the plaintiffs a dutv of care
in the preparation of the accounts 'at 296-20-;. He relied on both Anns’* case '1 0 7 - 1 z
All ER 402, [197S] AC 7-3 and Scctt Grvuy Ltd v AU'Fariane [1975] t NZLR 553*in
reaching the conclusion that the duty could be derived from foreseeability alone. For the
reasons already indicated, I do not agree with this. It mav well be, however, that the
particular facts in theJES case were sufficient^ establish a basis on which the necessary’
ingredient of proximity to found a duty of care couid be derived from the actual
knowledge on the pan of the auditors of the specific purpose for which the plaintiffs
intended to use the accounts.
The position of auditors in relation to the shareholders of a public limited liability
9 company arising from the relevant provisions of the Companies Act 1085 is accurately
summarised in the judgment of Bingham LJ in the Court of Appeal ([1980] 1 All ER -08
at 804, [1980] QB 653 at 680-681}:
ft h
The members, or shareholders, of the companv are its owners. But they are too
numerous, and in most cases too unskilled, to undertake the dav-to-dav management
of that which they own. So responsibility for day-to-day‘management of the
company is delegated to directors. The shareholders, despite'their overall powers of
control, are in most companies for most of the time investors and little more. But it
would, of course, be unsatisfactory and open to abuse if the shareholders received no
repon on the financial stewardship of their investment save from those to whom
the stewardship had been entrusted. So provision is made for the company in
8eneral meeting to appoint an auditor \Companies Act 1985, s 384) whose dutv is to
investigate and form an opinion on the adequacy of the company's accounting
records and returns and the correspondence between the company's accounting
records and returns and its accounts (s 237). The auditor has then to report to the
company’s members (among other things) whether in his opinion the company’s
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accounts give a true and fair view of the company's financial position s 23c . !n
carrving out his investigation and in forming his opinion the auditor necessarily (
w orks verv closelv with the directors and officers o f the company. He receives his
remuneration from the company. He naturally, and rightly, regards the company
as his client. But he is employed by the company to exercise his professional skill
and judgment for the purpose of giving the shareholders an independent report on
the reliabilitv of the company's accounts and thus on their inv estment. Vaughan
Williams J said in Rf Kingston Cotton Mii; Cc [1
1 Ch 6 at 11: "No doubt he is ,
acting antagonisticaliv to the directors in the sense that he is appointed by the
shareholders to be a check upon them,'' The auditor's report must be read before
the companv in general meeting and must be open to inspection by any member of
the companv 's;4 i). !i is attached to and forms part of the company's accounts
(s s i j S ' j ; and 239;. A copv of the company's accounts including the auditor’s
report , must be sent to everv member s :4c;. Any member of the company, even c
if not entitled to have a copv of the accounts sent to him, is entitled to be furnished
with a copy of the company's last accounts on demand and without charge s 116
No doubt these provisions establish a relationship between the auditors and the
shareholders of a companv on which the shareholder is entitled to rely for the protection
of his interest. But the crucial question concerns the extent of the shareholder's interest
which the auditor has a duty to protect. The shareholders of a company have a collective
interest in the companv’s proper management and in so far as a negligent failure of rhe
auditor to report accuratelv on the state of rhe company’s finances deprives the
shareholders of the opportunity to exercise their powers in general meeting to call the
directors to book and to ensure that errors in management are corrected, the shareholders
ought to be entitled to a remedy. But in practice no problem arises in this regard since
the interest of the shareholders in the proper management of the company's affairs is
indistinguishable from the interest of the company itself and any loss suffered by the
shareholders, eg bv the negligent failure of the auditor to discover and expose a
misappropriation of funds bv a director of the company, will be recouped by a claim
against the auditor in the name of the company, not by individual shareholders.
I find it difficult to visualise a situation arisin^in the real world in which the individual
shareholder could claim to have sustained a loss in respect of his existing shareholding
referable to the negligence of the auditor which could not be recouped by the company.
But on this pan of the case your Lordships were much pressed with the argument that
such a loss might occur bv a negligent undervaluation of the company’s assets in the
auditor’s repon relied on by the individual shareholder in deciding to sell his shares at an
undervalue. The argument then runs thus. The shareholder, qua shareholder, is entitled
to rely on the auditor’s repon as the basis of his investment decision to sell his existing
shareholding. If he sells at an undervalue he is entitled to recover the loss from the
auditor. There can be no distinction in law between the shareholder’s investment decision
to sell the shares he has or to buy additional shares. It follows, therefore, that the scope of
the duty of care owed to him by the auditor extends to cover any loss sustained
consequent on the purchase of additional shares in reliance on the auditor's negligent
repon.
I believe this argument to be fallacious. Assuming without deciding that a claim by a
shareholder to recover a loss suffered by selling his shares at an undervalue attributable
to an undervaluation of the companv’s assets in the auditor's repon could be sustained at
all, it would not be bv reason of anv reliance by the shareholder on the auditor’s repon in
deciding to sell: the loss would be referable to the depreciatory effect of the repon on the
market value of the shares before ever the decision of the shareholder to sell was taken.
A claim to recoup a loss alleged to flow from the purchase of overvalued shares, on the
other hand, can onlv be sustained on the basis of the purchaser's reliance on the repon.
The specious equation of'investment decisions’ to sell or to buy as giving rise to parallel
<
e
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England la * Repons 9M a’Chl990
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Caparo Industries pic v Dickman (Lord Bridge)________ 581
claims thus appears to me to be untenable. Moreover, the loss in the case ot the sale
would be of a loss of part ot the value oi the shareholders existing holding, which,
assuming a dutv of care owed to individual shareholders, it might sensibly lie within the
scope of the auditor's dutv to protect. A loss, on the other hand, resulting trom the
purchase of additional shares would result from a wholly independent transaction having
no connection with the existing shareholding.
I believe it is this last distinction which isot critical importance and which demonstrates
the unsoundness of the conclusion reached by the majority of the Court or Appeal. It is
never sufficient to ask simplv whether A owes B a duty ot care. It is always necessary to
determine the scope of the dutv bv reterence to the kind of Carnage from whscn A must
take care to save B harmless:
T he question is alwavs whether the defendant was under a duty to avoid or
prevent that damage, but the actual nature ot the damage sutierec :s relevant to the
existence and extent of any duty to avoid or present it.’
:See Sutherland Shire Council v Herman i c i ^ 60 ALR i at 4S per Brennan J.)
Assuming for the purpose of the argument that the relationship between the auditor
of a companv and individual shareholders ;s ot sufficient proximity to give rise to a duty
J of care. I do not understand how the scope ot that duty can possibly extend beyond the
■.d protection of anv individual shareholder from losses in the value of the shares which he
■ holds. As a purchaser of additional shares in reliance on the auditor s report, he stands in
• no different position from any other investing member ot the public to whom the
! auditor owes no duty.
i
I would allow the appeal and dismiss the cross-appeal.
!
j
i
® e LO RD ROSKILL. My Lords. I have had the advantage of reading in draft the speeches
prepared by three of vour Lordships. I agree with them and would allow the appeal and
dismiss the cross-appeal for the reasons there given. I only add some observations of my
own out of respect for the two Lords Justices trom whom your Lordships are dinering
and because of the importance of this case in relation to the vexed question of the extent
1 , of liability of professional men, especially accountants, for putting into circulation
allegedly incorrect statements whether oral or in writing which are claimed to have been
negligently made or prepared and which have been acted on by a third party to that
party's detriment.
That liability for such negligence if established can exist has been made dear ever since
the decision of this House in Medley Byrne cr Co Ltd v Heller & Partners Ltd [1963] 2 All
1
ER 575, [1964] AC 465 in which the well-known dissenting judgment of Denning LJ in
^ Candler v Crane Christmas cr Co [1951] 1 All ER 426, [1951] 1 ^B 164 was held to have
stated the law correctly. Thenceforth it was dear that such a duty of care could be owed
by a professional man to third parties in cases where there was no contractual relationship
between them, a view of the law long denied as the result ot a succession of late nineteenth
century cases of which this House then took the opportunity of disapproving.
]
But subsequent attempts to define both the duty and its scope have created more
problems than the decisions have solved. My noble and learned friends have traced the
evolution of the decisions from A nnj v Merton London Borough [1977] 2 All ER 4 9 -* [ 197S]
AC 72S until and including the most recent decisions of your Lordships House in Smith
v Eric S Bush \aJ7rm), Harris v W'yre Forest DC [ 1969] - All ER 514 , [19S9] ~ W LR 790- 1
agree with v o u r Lordships that it has now to be accepted that there is no simple formula
j or touchstone to which recourse can be had in order to provide in every case a ready
answer to the questions whether, given certain facts, the law will or will not impose
liability for negligence or, in cases where such liability can be shown to exist, determine
the extent of that liability. Phrases such as 'foreseeability, proximity, neighbourhood ,
just and reasonable’, ‘fairness’, ‘voluntary acceptance of risk or voluntary assumption of
responsibility' will be found used from time to time in the different cases. But, as your
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Lordships have said, such phrases are not precise definitions. At best thev are but labels
or phrases descriptive ol the very different factual situations which can exist in particular
cases and v.hich must be carefully examined in each case before it can be pragmatically
determined whether a duty of care exists and, if so, what is the scope and extent of that
duty. If this conclusion involves a return to the traditional categorisation of cases as
pointing to the existence and scope ot any duty of care, as my noble and learned friend
Lord B, idge, suggests, I think this is infinitely preferable to recourse to somewhat wide
generalisations which leave their practical application matters of difficulty and
uncertainty. This conclusion finds strong support from the judgment of Brennan J in
the High Court of Australia in the passage cited bv mv noble and learned friends 'see
Sutherland Shire Ccuncilv Reyman (log 5 . 6c ALR 1 at 4 3 - 4 4 ! .
My Lords. 1 confess that like Lord Griffiths in Smith v Eric S Busk [ 1 9 8 9 1 2 All ER 5 14
at 534 , [19S9] 2 WLR 790 at 813, I find considerable difficulty in phrases such as
voluntary assumption of responsibility’ unless they are to be explained as meaning no <
more than the existence of circumstances in which the law will impose a liability on a
person making the allegedly negligent statement to the person to whom that statement
is made, in which case the phrase does no: help to determine in whst circumstances the
law will impose that liability or, indeed, its scope. The submission that there is a virtually
unlimited and unrestricted duty o f care in relation to the performance o f an auditor’s
statutory duty to certify a company’s accounts, a duty extending to anyone who mav use (
those accounts for any purpose such as investing in the companv or lending the company
money, seems to me untenable. No doubt it can be said to be foreseeable that those
accounts may find their way into the hands ot persons who mav use them for such
purposes or, indeed, other purposes and lose money as a result. But to impose a liability
in those circumstances is to hold, contrary to all the recent authorities, that foreseeability
alone is sufficient, and to ignore the statutory dutv which enioins the preparation of and 1
certification of those accounts.
I think that before the existence and scope ot any liability can be determined, it is
necessary' first to determine for what purposes and ir. what circumstances the information
in question is to be given. If a would-be investor or predator commissions a report which
he will use, and which the maker of the report knows he wifi use, as a basis for his
decision whether or not to invest or whether or not to make a bid. it mav not be difficult
to conclude that if the repon is negligently prepared and as a result a decision is taken in
reliance on it and financial losses then follow, a liability will be imposed on the maker of
that repon. But I venture to echo the caution expressed by m y noble and learned friend
Lord Oliver that, because different cases may display cenain common features, thev are
necessarily all cases in which the same consequences regarding liability or the scope of
liability will fo llo w . Moreover, there may be cases in which the circumstances in w hich ^
the report was commissioned justify the inclusion of and reliance on a disclaimer such as
succeeded in the Medley Byrne case but by reason of subsequent statutory provisions failed
in Smith v Erie S Bush.
Mv Lords, it is for these reasons, in addition to those given bv mv noble and learned
^
friends, that, as already stated. I would allow this appeal and dismiss the cross-appeal.
L O R D A C K N E R . My Lords, I have had the advantage o f reading the speeches of Lord
I f ’ !ror'“ Koskill, Lord Oliver and Lord Jauncey and for the reasons they give I. too,
would allow this appeal and dismiss the cross-appeal.
L O R D O L IV E R OF A Y L M E R T O N . My Lords, this appeal, having come to this /
House on a pre.iminary point, involves the making of a number of assumptions of fact
which might or might not be substantiated at the trial of the action. To begin with, it is
to be assumed against the appellants -the auditors that they showed a lack of reasonable
care in certifying that the accounts of Fidelity pic for the year ended 31 March 19S4 gave
a true and fair view of Fidelity s position. It is also to be assumed that, when they certified
A ll
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Caparo Industries pic v Dickman (Lord Oliver)
583
ihe accounts, the auditors knew or would, if thev had thought about it. have known that
j Fidelitv was vulnerable ;o take-over bids, that a potential bidder would be likelv 10 relv
on the accuracy ot" the accounts in making his bid and that investors in the market
een e r a l l v . whether or not already members ot" Fideiitv, would also be likely to or might
well relv on the accounts in deciding to purchase shares in that company.
Vour Lordships are not. however, either required or entitled to make anv assumption
that the purpose of the certification was anvthing other than that of fulfilling the
£» statutorv d u t y of carrying out the annual audit with a view to the circulation of the
accounts to persons who were either registered shareholders or debenture-holders of
Fidelirv and the subsequent laying of the accounts before rhe annual genera! meeting of
that company.
Thus, if and so far as the purpose for which the audit was carried out is a relevant
consideration in determining rhe extent of any genera! duty in tor; ou ed by the auditors
C to persons other than the company which is their immediate employer, that purpose was
simplv rhat of fulfilling the statutorv requirements of rhe Companies Act 19S5. That, in
turn, raises the question, and it is one which lies at the threshold of the inquiry on which
your Lordships are invited to embark, of what is the purpose behind the legislative
requirement for the carrying out of an annual audit and rhe circulation of the accounts.
For whose protection were these provisions enacted and what object were they intended
d to achieve?
My Lords, rhe primarv purpose of the statutory requirement rhat a company’s accounts
shall be audited annuallv is almcsr self-evident. The structure of the corporate trading
entity, at least in the case of public companies whose shares are dealt with on an
authorised stock exchange, involves the concept of a more or less widely distributed
holding of shares rendering the personal involvement of each individual shareholder in
® the day-to-day management of the enterprise impracticable, with the result that
management is necessarily separated from ownership. The management is confided to a
board of directors which operates in a fiduciary capacity and is answerable to and
removable by the shareholders who can act. if they act at all. only collectively and onlv
through the medium of a general meeting. Hence rhe legislative provisions requiring
yr the board annually to give an account of its stewardship to a general meeting of the
shareholders. This is the only occasion in each year on which the general body of
shareholders is given the opportunity to cor.sfder, to criticise and to comment on the
conduct by the board of the company’s affairs, to vote on the directors' recommendation
as to dividends, to approve or disapprove the directors' remuneration and. if thought
desirable, to remove and replace all or any of the directors. It is the auditors’ function to
_ ensure, so far as possible, that the financial information as to the company's affairs
prepared by the directors accurately reflects the company's position in order, first, to
protect rhe company itself from the consequences of undetected errors or, possibly,
wrongdoing by, for instance, declaring dividends out of capital) and, second, to provide
shareholders with reliable intelligence for the purpose of enabling them to scrutinise the
conduct 0) the company’s affairs and to exercise their collective powers to reward or
f] control or remove those to whom that conduct has been confided.
The requirement of the appointment of auditors and annual audit of rhe accounts,
now contained in ss 235 to 246 of the Companies Act 19S 5. was first introduced by the
Companies Act 1879 in relation to companies carrying on the business of banking and
was extended to companies generally by the Companies Act 1900, Section 23 of that Act
required the auditors to make a report to the shareholders on the company's balance
j sheet laid before the company in general meeting, stating whether the balance sheet
exhibited a true and correct view of the state of the company’s affairs. By the same
section, the report was required to be read before the company in general meeting.
Section 19 of the Companies Act 19c" substituted a new s 23, which, whilst repeating
the requirement that the auditors’ report should be read before the companv in general
• meeting, added a requirement that it should be open to inspection by anv shareholder.
AJ! Engiand I* * Rep&ns 9M »rcr*990
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who was entitled, on payment of the fee. to be furnished with a copy ot the balance sheet
and report. The new section also mace it an offence for any otncer of the compam to e
panv to issuing, circulating or publishing any cop}' ot the balance sheet which -id not
either append or contain a reference to the auditors' report. The matter was earned one
stage funher bv s 13c of the Companies Act 19:9 consolidating provisions contained in ?
ss 39 and i 1 of the Companies A« 192s; w hich required the annual balance sheet an- :
auditors' repon of a public company to be sent not less than seven u a \ s belore t e -ate ot 5
the meeting to everv member of the company entitled to receive notice of the meeting i
and entitled anv member of the company and any debenture holder to be .urmsned on
demand and without charge with a copy of the last balance sheet an - the audirors repon. j
Finallv, for relevant purposes, s 15S of the Companies Act 194S required the accounts 1
and report to be sent to every member ot the company and to everv debenture ho er |
not less than 21 days before the the general meeting before which the accounts were to |
be laid.
_
.
...
, .
*!
Thus the historv of the legislation is one ot an increasing availability ot information
regarding the financial affairs of the company to those having an interest in its prog, ess
and stability. It cannot fairlv be said that the purpose of making such information
available is solely to assist those interested in attending general meetings ot the company
to an informed supervision and appraisal ot the stewardship of the company s d i r e c t o r s ,
for the requirement to supply audited accounts to, for instance preference shareholders
having no right to vote at general meetings and to debenture holders, cannot easily be
attributed to anv such purpose. Nevertheless. 1 do not, for my part, discern in 1 e
legislation anv departure from what appears to me to be the original, central and PJlrnaO'
purpose of these provisions, that is to say the informed exercise bv those interest m t e
property of the companv, whether as proprietors of shares in the company or as the
holders of rights secured by a debenture trust deed, of such powers as are vested in them
bv virtue of their respective proprietary interests.
_
_
’ It is argued on behalf of the respondents Caparo that there is to De discerne- in tne
legislation an additional or wider commercial purpose, namely that of enabling those to
whom the accounts are addressed and circulated to make informed investment decisions,
for instance bv determining whether to dispos/of their shares in the market or w e‘ner
to applv anv funds which they are individually able to command in seeking to purchase
the shares of other shareholders. O f course, the provision of any information about the
business and affairs of a trading companv, whether it be contained in annual_ accounts or
obtained from other sources, is capable of serving such a purpose just as it is capable ot
serving as the basis for the giving ot financial advice to others, for a rm in g at a mar -et
price, for determining whether to extend credit to the company, or for the writing ot
financial articles in the press. Indeed, it is readily foreseeable by anyone who gives the
matter anv thought that it might w-eil be relied on to a greater or less extent for all or an)
of such purposes. It is, of course, equally foreseeable that potential investors having no
proprietary interest in the company, might well avail themselves of the information
contained "in a company's accounts published in the newspapers or culleu irom an
inspection of the documents to be nled annually with the registrar of companies .which
includes the audited accounts; in determining whether or not to acquire shares in the
companv. I find it difficult to believe, however, that the legislature, in enacting provisions
ciearlv aimed primarily at the protection of the company and its informed c o n t r o l d \ the
body of its proprietors, can have been inspired also by consideration for the public at
large and investors in the market in particular.
The question is, I think, one of some importance when one comes to consider the
existence of that essential relationship between the auditors and Caparo to which, in any
discussion of the ingredients of the tort of negligence, there is accorded the description
•proximity', for it is now clear from a series of decisions in this House that, at least so tar
as concerns the law of the United Kingdom, the duty of care in tort depends not soleiv
on the existence of the essential ingredient of the foreseeability of damage to the plainnn
Al- England Law Reporu § March 1990
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Caparo Industries pic v Dickman (Lord Oliver)
585
I but on its coincidence with a further ingredient to which has been attached the label
* ta proximity’ and which was described bv Lord Atkin in the course ot his speech in
Jt . Donoghue v Stevenson [1932] AC 562 at j S i . [ i 9 3 - j Al' ER Rep 1 at 12 as—
'such close and direct relations that the act complained of directly affects a person
whom the person alleged to be bound to take care would know would be directly
affected by his careless act.'
j
'
1
g
n
Lb It must be remembered, however, that Lord Atkin was using these words :n the context
:
'
s :
r ,
ic
;
of loss caused by phvsical damage where the existence ot the nexus between the careless
defendant and the injured plaintiff can rarely give rise to any iimcuhy. To adopt the
words of Bingham LJ in the instant case {[i 9S9] 1 All ER 7?S at soS. j p S ? ] QB 653 at
6S6j :
'It is enough that the plaintiff chances to be out of the whole world: the person
with whom the defendant collided or who purchased the offending ginger beer.'
s ;
The extension of the concept of negligence since the decision of this House in Medley
1 i Byrne cr Co Ltd v Heller or Partners Ltd [1963] 2 All ER 57;. [1964] AC 465 to cover cases
f
of pure economic loss not resulting from ph ysical damage has given rise to a considerable
,
and as yet unsolved difficulty of definition. The opportunities for the infliction of
> 1d pecuniary loss from the imperfect performance of everyday tasks on the proper
:
performance of which people rely for regulating their affairs are illimitable and the
•• | effects are far reaching. A defective bottle of ginger beer may injure a single consumer
' j but the damage stops there. A single statement may be repeated endlessly with or
j without the permission of its author and may be relied on in a different way by many
I different people. Thus the postulate of a simple duty to avoid any harm rhat is. with
hindsight, reasonably capable of being foreseen becomes untenable without the
J imposition of some intelligible limits to keep the Isw of negligence within the bounds of
j common sense and practicality. Those limits have been found by the requirement of
j what has been calleda ‘relationship of proximity’between plaintiff and defendant and by
the imposition of a further requirement that the attachment of liability for harm which
j j has occurred be ‘just and reasonable’. But, although the cases in which the courts have
imposed or withheld liabilirv are capable of an approximate categorisation, one looks in
vain for some common denominator by which the existence of the essential relationship
can be tested. Indeed, it is difficult to resist a conclusion that what have been treated as
three separate requirements are, at least in most cases, in fact merely facets of the same
thing, for in some cases the degree of foreseeability is such that it is from that alone that
_ the requisite proximity can be deduced, whilst in others the absence of that essential
relationship can most rationally be attributed simply to the court's view that it would
not be fair and reasonable to hold the defendant responsible. ‘Proximity’ is, no doubt, a
convenient expression so long as it is realised that it is no more than a label which
embraces not a definable concept but merely a description of circumstances from which,
pragmatically, the courts conclude that a duty of care exists,
ft /j
There are, of course, cases where, in any ordinary meaning of the words, a relationship
of proximity 'in the literal sense o f ‘closeness’) exists but where rhe law. whilst recognising
the fact of the relationship, nevertheless denies a remedy to the injured party on the
ground of public policy. Rondel v Worley [196/] 3 All ER 993. [1969] 1 AC 191 was such
a case, as was Mill v Chief Constable o f West Yorkshire [10SS] 2 All ER 238. [1989] AC 53, so
far as concerns the alternative grout'd of that decision. But such cases do nothing to assist
j j in the identification of those features from which the law will deduce the essential
relationship on which liability depends and, for mv pan, 1 think that it has to be
recognised that to search for any single formula which will serve as a general test of
liability is to pursue a will-o’-the wisp. The fact is that once one discards, as it is now clear
that one must, the concept of foreseeability of harm as the single exclusive test, even a
prima facie test, of the existence of the duty of care, the attempt to state some general
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principle which will determine liability in an infinite variety of circumstances serves not
to c.aruy the law but merely to bedevil its development in a wav which corresponds wnh
practicality and common sense. In Sutherland Shire Council v Heyrr.jr. 10S5; 6c ALR : at
43-44 Brennan J, in the course 0; a penetrating analysis, observed:
Ot course, if loreseeariiiry ot injury to another were the exhaustive criterion of a
prima tacie duty to act to prevent the occurrence of that injury, it would be essentia!
to introduce some kins ot restrictive qualification— perhaps a qualification of the
kind state- in the second stage of the general proposition in Anns. I am unable to
accept that approach. It is preterable. in my view, that the law should dev elop novel
categories of negligence incrementally and by analogy with established categories,
rathej than by a massive extension of a prima facie duty of care restrained only by
indefinable"considerations which ought to negative, or'to reduce or limit the scope
of the duty or the class ot person to whom it is owed”.’
The same approach is. I think, reflected in that passage in the speech of Lord Devlin in
the Hedley Byrne case > 6 3 ] ; All ER 575 at 607-608. [1964] AC 465 at 524-525 in
w hich he considered the impact ot Donoghue v Stevenson on the facts of that case and in
which he analysed and described the method bv which the law develops:
‘In his celebrated speech in that case L o r d A t k i n did two things. He stated what
he described as a general conception
032] AC 562 at 5S0, [193:] All ER Rep 1 at
i i ; and from that conception he formulated a specific proposition of law {'19321
AC 562 at 5 PPm.J932 ] A l l ER Rep 1 at 20,. In between he gave a wamine
AC 562.at 584, [1931] All ER Rep 1 at 13) “against the danger of stating propositions
of law in wider terms than is necessary,Jest essential factors be omitted in a wider
survey and the inherent adaptability of English law be undulv restricted,” What
L o r d A t k i n callec a general conception of relations giving rise to a duty of care” is
now often referred to as me principle ot proximity. You must take reasonable care
to avoiu acts or omissions w hich you can reasonably foresee w ould be likelv to injure
your neighbour. In the eyes of the law your neighbour is a person who is*so closelv
and uirectly affected by your act that you ought reasonably to have him in
contemplation as being so anected when you are directing your mind to the acts or
omissions which are called ;n question , . , Now it is not in my opinion a sensible
application of w'nat L o r d A t k i n was saying for a judge to be invited on the facts of
anv particular case to say whether or not there was “proximity” between the plaintiff
and the defendant. That w-ould be a misuse of a general conception and it is not rhe
way in which English law- develops. What L o r d A t k i n did w-as to use his general
conception to open up a category of cases giving rise to a special dutv. It was already
clear that the law recognised the existence of such a dutv in the cat’egorv of articles
that were dangerous in themselves. What Donoghue v. Stevenson did mav be described
either as the widening of ar. old category- or as the creation of a new and similar one.
The general conception can be used to produce other categories in the same w-av.
An existing category- grow s as instances of its application multiply, until the time
comes when the cell divides . . . In my opinion the appellants in their argument
tried to press Doncgkue v. Stevenson too hard. They asked w-hether the principle of
proximity should not apply as well to words as to deeds, I think that it should, but
as it is only a general conception it does not get them very far. Then they take the
specific proposition laid down by Donoghue v. Stevenson and" trv to apply it lireraih to
a certificate ora bankers reference. That will not do, fora general conception cannot
be applied to pieces of paper in the same way as to articles of commerce, or to writers /
in the same way as to manufacturers. An inquiry into the possibilities of intermediate
examination of a certificate w ill not be fruitful. The real value of Donoghue v.
Stevenson to the argument in this case is that it show-s how- the law can be developed
tosoive particular problems. Is the relationship between the parties in this case such
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cases it is not easy to divorce foreseeability simplicirer and the proximity which riow< j
from the virtual inevitability of damage if the advice is toilowed. Again, economi; ios: ;
may be inflicted on a third parry as a result of the act of the recipient ot the advice or
information carried our in reliance on it as. for instance, rhe testator in Rcss v Cauna-s c
jirm) [ l ?79j 3 All ER 5S0. [ i?Sc*Ch :?* or the purchaser in .Ministry ofF.msing end Ic:sl
Government v Sharp [197c] 1 All ER 1009. [1970] 1 QB :i 3 . both cases w hich give rss tc
certain difficulties of analysis ;. For present purposes, however, it is necessary to consider
only those cases of economic damage suffered directly by a recipient of the statement or
advice as a result of his personally having acred in reliance on it.
In his dissenting judgment in Candler v Crane Chris:mas i r Co [1951] 1 All ER j i c a;
43 3 - 43 5 . [ i 9 5 ij 1 KB"i64 at 179-1 S i Denning LI suggested three conditions for rhe
creation of a duty of care in tort in such cases. First, the advice must be given by one
whose profession ir is to give advice on which others rely in the ordinary course o:
business, such as accountants, surveyors, valuers and rhe like. Second, it must be k.nowr.
to the adviser that rhe advice would be communicated to the plaintiff ir. order to induce
him to adopt a particular course of action. Third, rhe advice musr be relied on ‘or rhe
purpose of the particular transaction for which it w as known to the adviser that rhe
advice was required. It is plain, however, from other passages in his judgment, rhat
Denning LJ did not consider these conditions as necessarily exhaustive criteria 01 rhe
existence of a duty and the speeches in this House in the Hedley Byrne case r : 9 6 3 ]: A';
ER 575. [19^4] AC 465, where his judgment was approved, indicate a number or
directions in which such criteria are to be extended. To begin with. Lord Reid wouic not
have confined liability to statements made or advice given in the exercise of a profession
involving the giving of such advice but would have extended it to—
‘all those relationships where it is plain that the parry seeking information or
advice was trusting the other to exercise such a degree of care as rhe circumstances!
required, where it was reasonable for him to do that, and where the other gave rhe
information or advice when he knew or ought to have known that the inquirer was
relying on him.’
(See [1963] 2 All ER 575 at 5S3, [1964] AC 465 at 4S6!;
Lord Morris, with whom Lord Hodson agreed, w hilst initially referring to persons
‘possessed of a special skill’ nevertheless went on to state the conditions in which a duty
of care might arise in very much wider terms ([1963: 2 All ER 575 aI 5 ? 4 . [ 196^1 AC
465 at 502-503):
‘Furthermore, if in a sphere in which a person is so placed that others could
reasonably relv on his judgment or his skill or on his ability to make careful inquiry,
a person takes it on himself to give information or advice to, or allows his
information or advice to be passed on to, another person who, as he knows or should
know, will place reliance on it, then a duty of care will arise.’
None the less, the subsequent decision of the Privy Council in Mutual Life ana Ci:i~ens'
Assurance Co Ltd v Evart [1971] 1 All ER 150, [1971] AC 79 3 . from which Lord Reic and
Lord Morris dissented, would have confined the duty of care to where the advice relied
on was given in the course of a business or profession involving the giving of advice of
the kind in question. For present purposes, it is unnecessary to attempt a resolution of
the difference of opinion arising from the Mutual Life case, since there is no question here
but that the certifying of the accounts was something done in the course of the ordinary
business of the auditors.
1
Leaving this on one side, how ever, it is not easy to cull from the speeches in the Hedley
Byrne case any clear attempt to define or classify the circumstances which give rise to the
relationship of proximitv on which the action depends and, indeed, Lord Hodson
expressly stated (and I respectfullv agree; that he did not think it possible to catalogue the
special features which must be found to exist before the duty of care will arise in the
£
i
f
R
ot
;h
at *
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HL
9 March 1890
Caparo Industries pic v Dickman (Lord Oliver)
587
that it can be brought within a category giving rise to a special duty' As always in
English law the first step in such an inquiry is to see how far the authorities have
£one. for new categories in the law do not spring into existence overnight.'
Perhaps, therefore, the most that can be attempted is a broad categorisation of the
decided cases according to the type of situation in which liability has beer, established in
the past in order to found an argument by analogy. Thus, for instance, cases can be
classified according to w hether what is complained of is the failure to prevent the
infliction of damage by the act of the third party such as Home Op:e v Dorse: Yack Co Ltd
-‘1
r , o -0- 2 /ill ER 294,'"] 97c j AC ic c 4, P Peri Exporters Lid v Camden London 3C
3
sAll ER lo i, [1984] QB 341. Sir.i:'r, v Lutlewoods Organxation Lid [Chief Constable. Fife
v ’ Consiabularx, third parr: [jcS r] 1 A!! ER 710.[1987] AC
and. indeed. Anns v Merton
e
London Borough r 197 r j i All ER 492. 1 :975] AC "25 itself;, in failure to perform properly
. a statutory dutv claimed to have been imposed for the protection of the plaintiff either as
•j C a member of a class or as a member of the public such as Arm's case, Ministry of Housing
1 • and Local Government v Sharp [ 1 9 7 ^ 1 All ER lo o p . [197s] 2 QB
Yuen Kun-yeuv A-G
■j i ofHong Kong [19S7] 2 All ER 715. , : 9 ^-j AC 175. °r in the making by the defendant of
: some statement or advice which has been communicated, directly or indirectly, to the
| plaintiff and on which he has relied. Such categories are not. ot course, exhaustive.
1 L Sometimes thev overlap as in the Anns case, and there are cases which do not readily fit
t 1 intoeasilv definable categories 'such as Ross vCauniers [af.rm:[:o-o'i 3 All ER 5Sc.[ioSc]
] ; Ch 207;. "Nevertheless, if is, I think, permissible to regard negligent statements or advice
]
as a separate cateeorv displaying common features ‘rom which it is possible to find at
: : least guidelines bv w:hich"a test tor the existence of the relationship which is essential to
ground liability can be deduced.
” The damage’which may be occasioned by the spoken or written word is not inherent.
It lies alwavs in the reliance bv somebody on the accuracy ot that which the word
: communicates and the loss or damage consequential on that person having adopted a
; course of action on the faith of it. In general, it may be said that when any serious
i statement, whether it takes the form of a statement of tact or of advice, is published or
j communicated, it is foreseeable that the person who reads or receives it is likely to accept
I f it as accurate and to act accordingly. It is equally foreseeable that it it is inaccurate ;n a
|
material particular the recipient who acts ob it may sutler a detriment which, if the
j statement had been accurate, he would not have undergone. But it is now clear that mere
foreseeability is not of itself sufficient to ground liability unless by reason of the
circumstances it itself constitutes also the element of proximity as in the case ot direct
phvsical damage; or unless it is accompanied by other circumstances from which that
g element mav be deduced. One must, however, be careful about seeking to find any
general principle which will serve as a touchstone for all cases, for even within the
limited categorv of w hat, for the sake of convenience. I may refer to as ‘the negligent^
statement cases’’, circumstances may differ infinitely and. in a swiftly developing field ot
law. there can be no necessary assumption that those features which have served in one
case to create the relationship between the plaintiff and the defendant on which liability
p h depends will necessarilv be determinative of liability in the different circumstances of
another case. There are’, for instance, at least four and possibly more situations in which
damage or loss mav arise from reliance on the spoken or written word and it must not be
assumed that because thev displav common features of reliance and foreseeability they
are necessarilv in all respects ar.alagous. To begin with, reliance on a careless statement
, _ may give rise to direct phvsical iniurv w hich may be caused either to the person who acts
PJ on the faith of the statement or to a third person. One has only to consider, for instance,
j
the chemist’s assistant who mislabels a dangerous medicine, a medical man who gives
!
negligent telephonic advice to a parent with regard the treatment of a sick child or an
architect who negligently instructs a bricklayer to remove the keystone of an archway (as
in Clavtcn v Woodman cr Son 'Builders} Ltd [1062] 2 All ER 33- [ 1962] 2 QB 533 )' 1° such
3 ■
i
ie (
0 .
England L»*
HL
9 March *990
Caparo Industries pic v Dickman (Lord Oliver)
given case see *i?63’ 1 All ER 575 at 6c 1. [ i ?6d.! AC 4 r ; at 514. Lord Devlin is to the
same effect see [ipc-j 2 All ER 5*5 at 611. [1964] AC 465 at 53c'. The nearest that one
gets to the establishment of a criterion tor the creation ot a suty in the case of a negligent
statement is the emphasis to be found in all the speeches on 'the voluntary assumption of
responsibility’bv the defendant. This is a convenient phrase but it is clear that it was not
intended to be a test for the existence ot the duty for. on analysis, it means no more than
that the act of the defendant in making the statement_or tendering the advice was
voluntary and that the law attributes to it an assumption ot responsibility if the statement
or advice is inaccurate and is acted on. It tells us nothing aoout the circumstances trom
which such attribution arises.
The point that is, as it seems to me, significant in the present context, is the unanimous
approval in this House of the judgment of Denning LJ in Candler s case L> 9 5 1] 1 All ER
416 at 434. [1951 j 2 KB 164 at 1S1, in which he expressed the test of proximity in these
words: 'Did the accountants know that the accounts were required for submission to the
plaintiff and use bv him?' In so far as this might be said to imply that the plaintiff must
be specifically identified as the ultimate recipient and that the precise purpose for v. hich
the accounts were required must be known to the defendant before the necessary
relationship can be created, Denning LJ's formulation was expanded in the Hediey Bvrne
case, where it is clear that, but for an etlective disclaimer, liability would have attached.
? The respondents there were not aware of the actual identity of the advertising firm for
. which the credit reference was required nor ot its precise purpose, save that it was
required in anticipation of the placing of advertising contracts. Furthermore, it is clear
that ‘knowledge' on the part ot the respondents embraced not omy actual know leage but
such knowledge as would be attributed to a reasonable person placed as the respondents
were placed. What can be deduced from the Hediey B\rne case, therefore, is that the
^ necessarv relationship between the maker of a statement or giver ot advice ..the au\iser;
and the recipient who acts in reliance on it >he advisee; may typically be heid to exist
' w here' 1; the advice is required for a purpose, whether particularly specified or generally
described, which is made known, either actually or inferentiallv, to the adviser at the
time when the advice is given, (2) the adviser knows, either actually or inferential!)’, that
t his advice will be communicated to the advisee, either specifically or as a member of an
ascertainable class, in order that it should be used by the advisee tor that purpose, >.3 > *s
known, either actually or inferentially, that the advice so communicated is likely to be
acted on bv the advisee for that purpose without independent inquiry and (4) it is so
. acted on by the advisee to his detriment. That is not, of course, to suggest that these
■ conditions are either conclusive or exclusive, but merely that the actual decision in the
L case does not warrant any broader propositions.
F
Those propositions are, 1 think, in accord with the two United States authorities u hich
j were referred to in the course of the speeches in the Hedley Byrne decision. In Glan^er v
{ Shepard 1922} 233 NY 236, where a public weigher negligently certified an overweight
j so that the purchaser of the goods paid too much for them, the identity of the recipient
of the certificate was known, the purpose of the certificate was known, and the certificate
1 was issued for the verv purpose ol enabling the price ot the goods to be ascertained and
with the knowledge that it would be acted on by the recipient tor that purpose. In
Vltramares Ccrp v Touche .193 J 255 NY’ 1~3. on the other hand, a case much nearer to
the present, the action failed. There auditors, although aware generally that the certified
I accounts of the company would be shown to others by the company as the basis of
j financial dealings generally ‘according to the needs of the occasion, were unaware of the
j company’s specific purpose of obtaining financial help from the plaintiff.
•
The most recent authority on negligent misstatement in this House, the two appeals
j in Smirk v Eric S Bush 'a firm) and Harris v W \ t ? Forest DC [ 1989] 2 All ER 51 4 , 11989]*
I WLR 790 which were heard together, do not, 1 think, justify any broader proposition
j than that already set out, save that they make it dear that the absence 01 a positive
j intention that the advice shall be acted on by anyone other than the immediate recipient,
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indeed an expressed intension that it should not be acted on bv anvone else, cannot
prevail against actual or presumed knowledge that it is in fact likely to be relied on in a
particular transaction without independent verification. Both appeals were concerned
with surveyors’ certificates issued to mortgagees in connection with the proposed
purchases for which the mortgagees were contemplating making advances. In each case
there was an express disclaimer of responsibility, but in each case it was known to the
surveyor that the substance of the repon fin the sense of what was imponant to a
purchaser,, that is to say whether or not any repairs to the propenv were considered
essential, would be made known by the mongagee to the purchaser, the plaintiff in the
action, and would be likely to be acted on by him in entering into a contract to purchase
the property. In so far as the case was concerned with the effects of the disclaimer, it does
not require consideration in the present context, but there are important passages in the
speeches in this House bearing on the questions which arise on this appeal'and indicative
of the features which, in that case, led their Lordships to conclude that the necessarv
relationship of proximity existed between the survevors and the purchasers of the
respective properties. Lord Tempieman deduced the relationship from a combination of
factors. He said ([1989] 2 All ER 514 at 522-523. [19S9] 2 WLR -90 at 799-830 <:
‘I agree that, by obtaining and disclosing a valuation, a mortgagee does not assume
responsibility to the purchaser for that valuation. But in my opinion the valuer
assumes responsibility to both mortgagee and purchaser by agreeing to carrv out a
valuation for mongage purposes knowing that the valuation fee has been paid bv
the purchaser and knowing :hat the valuation will probably be relied on bv the
purchaser in order to decide whether or not to enter into a contract to purchase the
house . . . In general, I am of the opinion that in the absence of a disclaimer of
liability rhe valuer who values a house for the purpose of a moneage, knowine that
the mortgagee will rely and the mortgagor will probably rely on the valuation,
knowing that the purchaser mongagor has in effect paid for the valuation, is under
a duty to exercise reasonable skill and care and rhat durv is owed ro both parties to
the mongage for which the valuation is made.’
Lord Griffiths rejected the ‘voluntary assumption of responsibility’as a helpful formula
for testing the existence of a dutv of care, observing that the phrase—
can only have any real meaning if it is understood as referring to the circumstances
in which the law will deem the maker of the statement to have assumed
responsibility to the person who acts on the advice.’
(See[i9S9j 2 All ER 514 at 534.£ 19S9] 2 WLR 790 at S13.)
He continued {[1989] 2 All ER 514 at 534, 536, [19S9] 2 WLR 790 at Si 3-816}:
‘The essential distinction between the present case and the situarion being
considered in the Hedley Byrne case and in the two earlier cases is that in those cases
the advice was being given with the intention of persuading the recipient to act on
it. In the present case the purpose of providing the report is to advise the mongagee
but it is given in circumstances in which it is highly probable that the purchaser
will in fact act on its contents, although that was not the primary purpose of the
report. I have had considerable doubts whether it is wise to increase the scope of the
duty for negligent advice beyond the person directly intended bv the giver of the
advice to act on it to those whom he knows may do so . . . I therefore return to the
question in what circumstances should the law deem those who give advice to have
assumed responsibility to the person who acts on the advice or, in other words, in
whar circumstances should a duty of care be owed by the adviser to those who aa
on his advice? I would answer: only if it is foreseeable that if the advice is negligent
the recipient is likely to suffer damage, that there is a sufficiently proximate
relationship between the panies and that it is just and reasonable to" impose the
HI
C aparo Industries pic v Dickman (lo rfl Oliver)
5S1
3;abil*:v. Ir. the case o f a surv eyor valuing a small house for « b u ild ing society or
local authority, the application o f these : h r f r c n te n * lead* jo th e conclusion tr.a: he
o w e a duty of a r e 10 ihe purchaser. If rhe valuation is negligent and u relied on
damage ir. the form o f economic loss tc rhe purchaser ts obviously foreseeable. The
necessar\ proximity arises frorr. ihe su rv e y o rs k n o w jr d g r tnai the overw h elm in g
probability :s that rhe purchaser will rel) or. his valuation, t h t evidence was that
surveyor* k n e u rha: approxim ately c c f ; or purchasers die so. a n £ rhe fact that the
su n e v o r oni\ obtains the u o r k because the purchase: is willing tc pa) h » Jet. It is
iusi and reasonable that the d u ;y should b t im posed for the advice is g ^ e r i r «
professional as oppose; to a soctai context and itabust) io* preach o. the outs u ii. be
lim ited both as io its tx te n : and a m o u n t. T h t extent of tne liability is iim ite s tc the
purchaser cf rhe h o u s e : I w ould no: extend u 10 subsequent purchasers. The am o un t
of the liability cannot be >er\ great because r. relates tc s modes: house. Tr.er? is nc
question here of creating a haoihr) o f ind ete rm in ate a m o un t tc an indeterm inate
class. 1 would Certain!) wish tc stress, rhat in casts w here the advice has not been
giver, for tr.r specific purpose o f the recipient a n i n g on it. it should o n h be :n cases
when rhe adviser knows that there rs « n igh degree o f probability ;ha: some other
idenrinsbif person wil: act on ihe a jv ic e m at a o u t) ot care snoui* o t im pose-. It
would impose an intolerable b u rd en or, those w ho gtve advice in a proiessiona, or
commercial context if they were to o u e a duty not only to those tc w h o m the) give
the advice but 10 anv o ther person w h o m ie n ; choose tc act on it.
Finally, m relation to t h e 5 *n:rr appeal. L o r d ja u n c e y observed
i All ER $ u at
[i ? e f * c WLR ” ? c at t i l -t
'The four critical facts are th at the surveyors k n e u from :he outset i thar the
report u c u .d be shew n 10 Mrs Sm ith. 2 that Mrs Smitr. w o u .c probably re:y on
the valuation contained th ere in in deciding w h e the r 10 b u \ the house u itn o u t
obrainm e an independent valuation. 5 that if. ir. these circumstances. the v a /ja n o n
was. ha\Tr.£ regard to the actual condition o f the house. e*cessi\e Mrs Sm:tr. w oui«
be likeS to suner loss a nd a tha: she had paid t c the bu ild ing society a sum to
defray the surveyors' fee. Ir. the light of this know ledge the surveyors coujc have
declined tc act for the building society, but / h e y chose tc proceec. Ir these
circumstances thev m u st be raker, not only tc have assum ed contractual obligations
towards the building society but ieiicrua! obligation* towards Mrs S m ith. whereby
they became under a d u t\ towards her to c a m out thetr w ork witr. reasonable care
anc skill. Ir is critical to this conclusion thar the surveyor? k n e u that Mrs Smith
wouid be Hkelv to relv on the valuation w ith o u t obtaining in dep en d en t advice. In
both C s n d lr r C r a w 'C k n sm e s cr Ce 1 : 9 5 0 » All ER ^26.
~ KB 164 and
HtUr- Svrnf cr Cc t i J v H e llr & Parmer* h d j c t e y ; All ER 5* 5AC 465
th t p rovider of the in form atio n was the obvious a n d most easii) available, if no: tne
only available, source o f th at inform ation. It w ou ld not be difEculi thererore to
1 likelv to r e h on it. In
J
information, t o ’wii ind ep end ent valuers to w h o m he can resort, in addition to the
value: acting for the m on g ag e e . I w o uld not therefore conclude that the m ere .act
tha: a morreaeee's valuer knows that his valuation will be sh o w n to ar. intending
m o n e a e o r of Itself imposes on h im a d u n of care to the m ortg ago r. Knowledge,
acrua! or implied, of the m o n g a g t r 's likely reliance on the valuation m ust be
brought hom e to h im . Such know ledge m a t ’be f ri rh reaiiJy im p lie d in relation to
• potential m ortgagor seeking to enter the lower e nd or rhe h o using m ark et but non
consra: tha: such readv implication w o u ld arise in the case o f a purchase 0! an
expensive property w h e the r residential or comm ercial.'
I
■j j y gg'-wy •••
AC|r»9i»ft0L.«*> R#&eT»
5S2
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[1 9 9 0 } 1 A li£ R
Thus Smttn •- £ru* 5 busn. a lthough establishing b evond doubt chat the law rr.av attribute
an assum ption ot responsibility quite regardless o f the expressed intention* o f the adviser,
provide* nc support ?'o: the proposition :ha: the relationship of proxim ity u tc- be
extended beyond circumstances in which advice is tendered for the purpose of th t
particular transaction or :vp* of transaction a n d the adviser k n ow s or ought tc know that
it wil: be retied or. by a particular person or class o f persons in connection with :ha:
transaction. The ju d g m e n t ot M ilieu J in the recent case of A. Sand. Bancuc v Clark P:xlr.
■:cnrm
: ^j; £R _ a p i U ‘LR -± i decided after the decisior. of the Court
oi Appeal i r : h t instant case contains ar. ar.aivjis of t h t d e n s e r o f this House ir. 5m::r v
£ n r 5 Busr. and concludes a n c i agree th at i: established a m o re strtngem test of the
requirem ents for proximity th.ar. that which had b e e r a rrise d bv the Court of Aureal ir.
the instan: case. Miilert I gives whai I find a h elrfu : ar.alvsis o f rha: case and of the
features which distinguished i: from the H td ir.
case a nd fro m the instant case a;
370.:
'In each ot the case.4 considered bv the House o f Lords. therefore, there was a
t n p a r tttt transaction in which the valuation couid realisticaliv be regarded as
provided by the valuer to the purchaser. In each of the cast: the valuation was giver
to the m ortgagee with the in tentio n o f b e in g acted or. bv h :m ir.a sr*ecinc transaction
k no w n tc the valuer, \:z the m a k in g ot a m ortgage o n e r ir. connection with a
specific transaction o ’ house purchase, a n d in the know ledge that the vaiuatior or
the gist o f rhe valuation would be c o m m u n ica te d to the purchaser and would ir. all
probability be relies or. by h im in decid in g w h e th e r to eo ahead with th t verv
transaction Jor whicn :ne m ortgage o n e r was sough:. This was s m u c h m o re
restricted context ir. which :c found a d u t y c f care th an * « • present ir. t h t Cavarc
case. lor there was ir. contem plation n o : oniv a particular a nd identified recipient of
t h t in iorm a no n to w hom the d efendant knew that i: would be co m m u nicated bu:
a particular anc know n purpose tor w h ich h t could foresee that it would be relied
on. )r. k i d . r , Byrm-and the cases w hich followed it. the statem ent w as m ade directlv
tc the plaintiff with the intention that the plair.tin should act on ir. Tb tJB E F & zn ers
case JZE r&sienr: i: c v M ark: Biorrr. y C c c f.- m j c
$ All £R~i&o car, be
supp orted only on the basis that the statem ent was tm pliediv confirm ed d:rec*.iv to
the plaintiff without any such inte n tio n, bu: w ith a particular transaction in
contem plation, a n d it was foreseeable th at the piam:irT w ou ld relv on it in that
transaction. In Caparc it was m ad e to th e plaintiff w itho u t a nv such intention and
w ithout an\ particular transaction in c o ntem platio n , b u ; it was foreseeable tha: the
p l a i n t if m ight rely or. it in some u n k n o w n fu ture transaction. In 5 w rr v £ r c 5 Bus*
it was m ad e tc a th ir c party w ith the in te n tio n that he should a n on it in s know n
and co m em pla te d tra n sac h o n .b u ; in rhe k n ow ledge rha: i: w ou ld be com m unicated
to the p laintiff a n a w o ulc alm ost certainly be relied on bv h im in connection with a
transaction w itho ut w hich ;he tnansacrion o f th e th ir d p a o could not proceed.'
My Lordj. nc decision o f this House has gone f u n n e r th an frr.j.*?; v £ n r 5 Bush, but \ our
Lordship* ar? asked by Capari tc widen t h t area o f resp on sibih ^ even bevond the limits
to which i: was extended by the Court o f Appeal in this case a n c to f.nd a’relationship of
proxim ity between the adviser and th ird parties tc w hose atten tion the advice rr.av ;o m e
in circumstances in w hich the reliance said tc have given rise to th e loss is strictly
unrelated either to the intended recipient or to the purpose for w h ich the advice was
required. My Lords. \ discern no-pressing reason o f policy w h ich w ou ld require such an
extension a nd th e rt seems tc m e to be pow erful rea&omagainsr it. As Lord Reid observed
in the course o f his speech :n rhe H edir Byrne ^ase *2©6j* : Al! ER s*« ar 5 6 1 .'1 0 6 4 ' AC
46$ at 463. words can be broadcast w tth .or w itho ut the consent or foresighi of* the
speaner or w riter; and in his speech in the sam e cast Lord Pearce drew attentio n to the
necessity lor the imposition of so m t discernible lim its to liabilitv in such cases. He said
1 All £R 5*5 a: 6 : 3 - 6 4 . *2964' AC 465 at 5 ; j . :
Afi England l»wfi«©ort* 9 March ^990
HL
Caparo Industries pic v Dickman (Lord Oliver)
593
'The reason for some divergence between the law of negligence in word and that
of negligence in act is dear. "Negligence in word creates problems different from
those of neglieence in act. Words are more volatile than deeds. They travel fast and
far afield. Thev are used without being expended and take enect in combination
with innumerable facts and other words. Vet they are dangerous and can cause vast
financial damage. How far they are relied on unchecked . . . must in many cases be
a matter of doubt and difficulty. If the mere hearing or reading of words were held
to create proximitv, there might be no limit to the persons to whom the speaker or
writer could be liable.'
As 1 have aireadv mentioned, it is almost always foreseeable that someone, somewhere
and in some circumstances, mav choose to alter his position on the taith ot the accuracy
of a statement or report which comes to his attention and it is always foreseeable that a
report, even a confidential report, may come to be communicated to persons other than
the original or intended recipient. To a p p l y as a test of liability only the foreseeability of
possible damage without some further control would be to create a liability wholly
indefinite in area, duration and amount and would open up a limitless vista of uninsurable
risk for the professional man.
On the basis of the pleaded case, as amended, it has to be assumed that the auditors, as
experienced accountants, were aware or should have been aware that Fidelity’s results
made it vulnerable to take-over bids and that they knew or ought to have known that a
potential bidder might well relv on the published accounts in determining whether to
acquire shares in the market and to make a bid. It is not. however, suggested that the
auditors, in certifying the accounts, or Parliament, in providing for such certification,
did so for the purpose of assisting those who might be minded to profit from dealings in
the companv’s shares. Caparo. whilst accepting that it is no part of the purpose of the
preparation, certification and publication ot the accounts of a public company to provide
information for the guidance of predators in the market, nevertheless^ argue that the
auditors' knowledge that predators might well rely on the accounts for this purpose
sufficient! v establishes between them and potential bidders that relationship ot proximity
which founds liabilitv. On the face of it. this submission appears to equate proximity
with mere f o re s e e a b ilitv and to re!v on the very misinterpretation of the ettect of the
decision of this House in Anus’s case [1977] 2 All ER 492. [ i 9 “ S] AC 72S which was
decisive!v rejected in Peabody Donation Fund v Sir Lindsay Parkinson 6~ Co Ltd [ 19S4] 3 All
ER 529, [19S5] AC 210 and in Vufn Kun-yeu v ,4-G of fior.g Kong [19S7J 2 All ER 705,
[198S] AC 175. Your Lordships have been referred, however, to three authorities, one
r from New Zealand and two from the United Kingdom, which do undoubtedly support
Caparo's contention.
In Scot: Group Ltd v McFarlane[1978] 1 NZLR 553 the defendants were the auditors of
a companv which had been successfully taken over in reliance on certified consolidated
accounts in which, as a result of double-counting, the assets were overstated. It was
admitted that the failure of the defendants to discover the discrepancy was due to
I negligence. In the Supreme Court of New Zealand Quilliam J dismissed the plaintiffs
claim on the ground that the defendants, though careless, owed them no duty of care ;see
[>975] 1 NZLR 582). An appeal to the Court of Appeal failed but the court was divided
as to the reasons. Richmond P held that the appeal failed for the same reason as that
stated bv the trial judge. WoodhouseJ would have allowed the appeal. Cooke J, on the
other hand, whilst concurring with WoodhouseJ that the defendants did in fact owe a
dutv of care to the plaintiffs, held that the appeal failed because the plaintiffs had failed
to show anv recoverable loss.
The more restrictive view was expressed by Richmond P in the following terms
'.[>978] 1 NZLR 553 at 566-567):
The question in anv given case is whether the nature of the relationship is such
All England I t * R#p0rt« 9 M*rch 1990
5 9 4 ____________
All England Law Reports
[1990] 1 All ER
that one parry can fairly be held 10 have assumed a responsibility to the other as
regards the reliability of the advice or information. I do not think that such a
relationship should be found ro exist unless, at least, the maker of the statement
was. or ought ro have been, aware that his advice or information would in fact be
made available to and be relied on by a particular person or class of persons for the
purposes of a particular transaction or type of transaction. ! would especially
emphasise that to my mind it does not seem reasonable to attribute an assumption
ot responsibility unless the maker of the statement ought in all the circumstances,
both in preparing himself lor what he said and in saving it, to have directed his
mind, and to have been able to direct his mind, to some particular and specific
purpose tor which he was aware that his advice or information w-ould be retied on.
In many situations that purpose will be obvious. But the annual accounts of a
company can be relied on in all sorts of ways and for many purposes. It would be
going too lar to treat accountants as assuming a responsibility towards ail persons
dealing with the company or its members, in reliance to some greater or lesser
degree or. the accuracy of the accounts, merely because it was reasonably foreseeable,
in a general way, that a transaction of the kind in which the plaintiff"happened to
become involved might indeed take place. The relationship between the parties
would. I think, be too general and not sufficiently “special" to come within the
principles underlying the decision in Hedley Byrne. As 1 have said, I believe it to be
essential to the existence of a “special relationship” that the maker of the siatement
was or should have been aware that his advice was required for use in a specific tvpe
of contemplated transaction. This requirement has not alwavs required emphasis in
the course of judicial discussion as to the nature of a special relationship. Probably
this is because in most cases the purpose for which the information was reauired
was, on the facts, quite obvious. But certainly this particular point was made \ e n ­
dear indeed in Lord Denning’s judgment in Candler v Crane, Christmas c- Cc. 1
would think that it must almost inevitably follow, once the maker of the statement
is aware of a specific purpose for which his information will be used, that he will
also have in direct contemplation a specific person or class of persons, even thoueh
unidentified by name.’
The New Zealand Companies Act 1955 contained provisfcns relating to the auditor's
report which is similar in substance to those contained in the United Kingdom legislation
but with this variation, that the ‘true and fair view’ which group accounts are certified to
give are qualified by the words ‘so far as concerns members of the companv’. In relation
to these provisions, Richmond P observed at 56S;;
The provisions of the Act to which I have just referred are aimed essentially at
the protection of the members of the company and of course the auditors, whose
contract of employment is with the company itself, are under a contractual dutv of
care to the company. These provisions do not encourage me to take the view that
there is any reason why the auditors of a public company should thereby come
under a common law duty of care to third persons dealing with the companv or its
members on the faith of their audit certificate, such liability being in some way
based on a much wider principle than would apply, for example, in the case of
auditors certifying the accounts of a private company. Like Quilliam J, 1 can also see
no reason to differentiate between auditors as such and a firm of chartered
accountants employed to prepare the accounts of the company. The only point
which has given me some concern, so far as the statutory provisions are concerned,
is the requirement of s 133(1) whereby a copy of the balance sheet and auditor’s
report is required to be annexed to the annual return and thus becomes available to
the public under s 9 ( 1) of the Act. But on reflection, this only means that the auditor
of the accounts of a public company knows that the accounts and his report will
become available to the public generally and, consequently, may be relied on bv one
Ai: England law Repons 9 March *990
ER
HL
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Caparo Industries pic v Dickman (Lord Oliver)
595
or more members of the public. to some greater or lesser degree, as the basis of some
business transaction. It is nor suggested, however, that the Companies. Ac: imposes
any statutory duty of care as between auditors and members of the public who relv
on the accounts. In the case of a company whose shares are listed on the stock
exchange the auditor will also know that under the stock exchange rules a copv of
the accounts must be made available. He knows, too. that shareholders will receive
copies of the accounts and that the company itself mav w ell make copies available
to business institutions and individuals for various purposes. In the end all these
matters merely add up to the fact that the auditor of a public com par. v will
necessarily have in his contemplation the possibility that the accounts mav be relied
on in all sorts of ways by persons other than the companv and its members. This, as
I have said, is not sufficient to bring about a “special relationship’'.'
Both Woodhouse and Cooke JJ. who favoured a wider view of respor.sibilitv, based
themselves on an interpretation of the speech of Lord Wilberforce in Anns’s case [: 0 - 7 ] ;
Ail ER
at 49$. [107S] AC
at 75 • —“5- which required, as the first stage of the
two-stage inquiry to which he there referred, no more than a consideration o f V h e t h e r
harm was foreseeable, thus equating t h e ‘proximate relationship’ as comprehending
foresight and nothing more. This is made quite dear from th e following passaee in the
judgment of WoodhouseJ'at 5-4;:
‘In this regard it will be noticed that although the first part of the inauirv outlined
by Lord Wilbertorce is to ask whether "there is a sufficient relationshipofproximitv”
in order to decide whether there is a prima facie dutv of care, he would test the
sufficiency of proximity simply by the reasonable contemplation of likelv harm.
And, with respect, I do not think there is anv need for or anv sound reason in favour
ot a more restrictive approach. The issue has been made increasinglv complex bv
the successive and varying formulas that have been used in an effort to coniine the
general area of responsibility, in particular for negligent words or in respect of
purely economic losses. At this initial stage at least it should be possible to r e m o v e
some degree of uncertainty—in my opinion it is done bv the comprehensible and
straightforward test of foreseeability.' #.
WoodhouseJ again emphasised foreseeability as the relevant test for the creation of
the relationship of proximity where he said (at 575;-:
‘Although an audit is undertaken on behalf of the members of a public companv
it must be within the reasonable contemplation of any auditor that confidence in it's
ability to handle its commercial arrangements would depend upon the authenticity
of its accounts—a confidence that would disappear if reliance could not be put upon
the audit report. So I think that when auditors deliberatelv undertake to provide
their formal report upon the accounts of a public companv thev must be taken to
have accepted not merely a direct responsibility to the shareholders but a further
duty to those persons whom they can reasonably foresee will need to use and relv
upon them when dealing with the company or its members in significant matters
affecting the company assets and business. An example, no doubt, would be the
banker asked to make substantial advances on the securitv of the companv
undertaking. On the other hand, there would seem to be formidable difficulties for
a plaintiff who attempted to prove that an auditor should have foreseen the
plaintiff’s likely reliance upon some newspaper or a stock exchange reference to a
company s accounts. However, it is sufficient for present purposes to restrict
consideration to a takeover offer related, as so frequently is the position, to the value
of shareholders’ funds. In such a situation the need to rely upon audited accounts is,
I think, quite obvious. As a matter of commercial reality I think the auditor and
offeror are in a relationship of close proximity.’
All E ^ g i a n c L * * R e o o n s
596
9 M a r c h ^ .990
All England Law Reports________[1990] 1 All ER
Cooke I was to the same effect. He adopted at 5 S 3 a s the first step of Lord
Wilberforce's two-stage approach, the formuianon which equates the relationship ot 3
proximitv with foreseeabilitv, although at an earlier stage ot his judgment he seemed to
be disposed to regard the essential relationship as arising no; simply from the foreseeability
that a member ot the public might rely on the accounts as a basis ot some transaction
but, for a reason which I coniess 3 do not tully uncerstand. trom the foreseeability that
some member of the public might rely on the accounts tor the making ot a take-o\er
bid. He said at 5S 1'..:
^
"The learned judge in the Supreme Court was disposed to regard the requirement
of niing audited accounts, which are available tor public inspection, as not imposed
by Parliament for the purpose of enabling people to deal confidently in reliance on
the accuracv of the accounts. He thought it much more likeiy that^the purpose was
to enable a proper supervision to be exercised over the activities of companies, and ^
to enable those concerned to ensure r'nat tht companies were not trading illegally or
dishonestlv. With respect, I am unable to agree with him on that point. The
starutorv requirements regarding the filing ot financial information stem. I thinK.,
from the view that those dealing with or investing in a limited liability company have
a legitimate interest in being ailorded reasonaDle access to relevant information, anu
that this interest has to be balanced against the wish for confidentiality naturally (
entertained bv familv companies ana the like which do not appeal to the public for
funds. . . I would agree, though, that the provisions are probably not aimed, or at
least not primarilv, at protecting purchasers ot shares in the market. Cooke J s
emphasis.)
)
Thus the majority of the Court of Appeal favoured a more extensive view_of the
circumstances from which the essential relationship between plaintiff and aefenuanr
may be interred in a negligent statement case than had yet emerged from any decision
in the United Kingdom.
_
Now, of course, any decision of the Court of Appeal ot New Zealand is entitled to the
very greatest respect, but it has to be observed that the majority view was based on an
interpretation of Lord Wilberforce’s observations in Anws case which has since been
severely qualified by subsequent decisions of this House.
The Scon Group case has, however, since been referred to and accepted in two cases
decided in the United Kingdom. InJEB Fasteners Ltd v Marks 3 loom & Cc ,,12
[iobi j
3 All ER 1S9 the plaintiffs, who had acquired the shares of the company as a result of a
take-over, claimed damages againsr the company’s auditors who, it was claimed, had
been negligent in certifying the accounts. Woolf J dismissed the claim on the ground
that the plaintiffs failed to show the causative connection between reliance on the
erroneous accounts and the take-over and his decision was subsequently affirmed by the
Court of Appeal ;see [1065] 1 All ER 5S3)- In the course of his judgment, however.
Woolf J made the following observations with regard to the auditors liability ([198 Jj 3
All ER 1S9 at 106-197;:
‘Without laving down anv principle which is intended to be of general application.
on the basis of the authorities which I have cited, the appropriate test for establisnir.g
whether a duty of care exists appears in this case to be whether the defendants kne^
or reasonably should have foreseen at the time the accounts were audited that a
person might relv on those accounts for the purpose of deciding w hether or not to
take over the companv and therefore could sutler loss if the accounts w ere inaccurate.
Such an approach does place a limitation on those entitled to contend that there has
been a breach of dutv owed to them. First of all, they must have relied on the
accounts and, second, thev must have done so in circumstances where the auditors
either knew that they would or ought to have known that they might. If the
situation is one where it would not be reasonable for the accounts to be relied on,
s>:
597
Caparo Industries pic v Dickman (Lord Oliver)
HL
.u-n in ^he absence of express knowledge, the auditor would be under no .utx.
TriV^’a -es a li~.it on the circumstances ir. which the audited accounts .an be .eiied
on and the period for which they can be relied on. The l o n g e r rhe peno- wmcn
.
■
rk, accour’s being relied or., trom tne aate on which the auui™
eave H'ceriificate. the mo‘re difficult it will be to establish that the auditor ought to
have foreseen that his certificate would, in those circumstances, be r e l i - o . .
S3
•
,'
ib
-
t
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S
l
" v w S ™
-Nc-mned anv intention of lavine down a general principle, it is
» d Cooke JJ. W f e * * * Lord W ilber,o,«,
« i-
b.
%
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* t not :>.,I" e ^ e
-he'factual difficulties likely to be encountered :n estaousning
loreseeaDi.u,
■
.
ijance essential to the cause of action was separate^
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.
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cirelied
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« * . O m tim . ofih«ofc*rv*ion.
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^ ^ i s s ^ a s s g S S S
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were made in the faith of the company s audited accounts * hich hau been
-
S M m ^ a u d it^ T h e l^ ^ O rd in a n ^ S tw ^ ^ h a ^ ^ ^ ^ ^ ^ ^ h ^ iw iw iO T ^ p p M n n g
)
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» » « . » * < I In *
negligent statement case and followed the guidance of the
New Zealand Coun of Appeal in the Scott Group case, save that !>e
g sensible d is t i n c ti o n b e tw e e n t h e case of the corporate pursuer,
controlling interest, and that of the individual
implication, reiected the suggestion that a potential i er i .
*
ncj t},e
special position as compared with other investors such as to create b ^ n h im a n d ih e
auditors carrving out their statutory duties, a special relationship * hich does.rot aroe
the case of an investor concerned to acquire only a minority
And this, u nh
h respect, must be correct, for there can be no logical u.stinction a
£
^
. j.
investor is likely to acquire many shares or only a few Such ^ n n . n o n as t h e r e l i e s
onlv in the scale o f the potential loss whicn m a\
e iti e o g
- ateW be said
magnitude of the investment. Indeed, as he pointed out it cc>uld
that the smaller the investment the greater the likelihood of
i n v est iea t ion.
. auditedaccountsasthebasisforhisaction without ma -inganvi
p
‘
defenders
I In the result, the Lord Ordinary held that the knowledge to b.: imputed t ct he defender
that rhe’-e would or might well be potential investors m the market h
,
interested * p J r c h t L / e . i . t i n g
« b r i b i n g '° ’ " T
in,lt,e„ced bv th e K c o r a t s ™ .ttffieien, to c r e a t e b e i . 't o i th e m » d » c h
relationship of proximity which gave rise to an enforceable duty of care.
J
41! Engtanc law Repons S March '990
59 8
All England Law Reports
[1990] 1 All ER
This case, thereiore, falls into the same category as the other rwo cases. All three were
based on the view of Lord Wilberforce's exposition in the Anns case which would result
in foreseeability and proximity being treated as synonymous, a view which this House
(and, indeed. Lord W ilbertorce himself in McLcughlin v O ’Brien [jo S il - All ER 2cS.
t 3 3j i .-.C 410.! has now decisively rejected. That, of course, does not conclude the
question, tor it would still be open to your Lordships to find in the circumstances of this
case that a special relationship existed between rhe auditor conductingan annual audit in
pursuance ot his statutory duty and every potential investor in the market or, indeed,
any other person who might do business with the company without relying solelv on
the foreseeability of potential damage to such person. Just as, for instance."in Smith v Eric
S Bush j 9 s o ] i All ER 514, [;cSp] 2 WLR -oc one of the factors giving rise to the
relationship in that case was the circumstance rr.ar the plaintiff was rhe person who paid
for the report on which the reliance was placed, so here it might be said that a special
relarionsnip was to be found in the narure and extent of the starutorv duties which the
auditor is called on to fulfil.
For my pan. however, 1 can see nothing in the statutory duties of a companv's auditor
to suggest that they were intended by Parliament to protect rhe interests of investors in
the market and 1 see no reason in policy or in principle why it should be either desirable
or appropriate that the ambit of rhe special relationship required to give rise to liabilirv
in cases such as the present should be extended beyond those limits which are deducibl'e
from the Hedley Byrne case and Smith v Erie S Bush, Those limits appear to me to be
correctly and admirably stated in rhe passages from the judgment of Richmond P in the
Scot: Group case to which 1 have already referred. In particular. 1 see no reason whv anv
special relationship should be held to arise simply from the circumstance that the affairs
of the company are such as to render it susceptible ro the attention of predators in the
market who may be interested in acquiring all or the majority of the shares rather than
merely a parcel of shares by wav of addition roa portfolio. It follows that 1would dismiss
Caparo's cross-appeal.
l^rurn, therefore, to the question raised by rhe auditors’ appeal. The Court of Appeal,
whilst rejecting unanimously Caparo’s contention that the auditors owed them a dutv of
care simply as potential investors in the market, nevertheless by a majority allowed rheir
claim that a similar duty was owed to them in rheir capacity as shareholders from the
date when they first became registered in respect of shares which thev had purchased.
Now it cannot be nor is it claimed that this event created for the auditors anv new or
greater risk of harm in relation to a certification which had already taken place'; nor can
it be Claimed that it brought about some change in the quality or extent of Caparo's
reliance on the 'ex hvpothesi; inaccurate information which they had previouslv received
and digested. The only difference in their position before registration and their position
afterwards was that, as registered shareholders, they now had rhe statutory right to
receive the accounts on which they had alrtadv relied in acquiring their original shares
and to receive notice ot and attend the annual general meeting of Fidelity at which the
accounts were 10 be read and, if thought fit. appro\ed and passed. This change of position
seems, on the fare of it, less than momentous and in fact they did not trouble to appoint
a representative to attend the meeting on their behalf. If a distinction is to be found at
all, therefore, it can only be that the nature and purpose of the statutory provisions
governing rhe appointment and duties of auditors and the certification and”publication
to shareholders and others of the accounts have rhe effect of creating, between the
auditors and individual shareholders, as potential investors in that capacity, that special
relationship of proximity which is required to give rise to the duty "of care and which
does not exist between the auditors and the investing public generaiiv.
Now if it be right, as, for my part, 1 believe that it is and as the Court of Appeal has
held, that no relationship of proximity and thus no duty of care exists between auditors
and the investing public generally in relation to the statutory audit ;l sav nothing, of
course, about a case where accounts are audited specifically for the purpose of submission
4Ji £*g.*r*c I*** R©ppn* S March 1990
HL
Caparo Industries pic v Dickman (Lord Oiiver)________ 599
to a noteniial investor;, the attribution o f such a duty arising from the receipt of exactly
the same information bv a person who happens to be the registered holder of a share in
the companv whose accounts are in question produces entirely capricious results.
O'Connor L], in his dissenting ju d gm ent [ ’. 9 S 9 ] 1 All ER “ 9 8 at 8 3 s . [ 1 9 8 9 ^ QB 6 5 3 at
7 1 5 . instanced the case o f a shareholder who, having purchased further shares at an
0\ ervalue on the basis o f the accounts, shows the accounts to a friend who has no existing
shareholding but proceeds to make a similar purchase. Each receives exactly the same
information; each relies on it in exactly the same way and tor the same purpose; and the
loss sustained in both cases is identical" and is equally foreseeable. Vet liability is said to
exist in the one case but not in the other. One has indeed only to consider the
circumstances o f the instant case which must ultimately result in drawing a distinction
between the loss sustained as a result of the initial purchase o f shares (irrecoverable'; and
that sustained as a result o f purchases made after the first registration (recoverable;
"although aii purchases were made in reliance on exactly the same information.
So unreasonable a distinction must call in question the analysis which leads to it. The
maioritv in the Court o f Appeal deduced the relationship from what Bingham LJ
described as 'the degree o f closeness between the parties’ .see [ 1o 5 o] > All ER 79$ at Sc-,
[ 1 0 8 0 ] QB 6 5 3 at 6 8 4 ; . It was pointed out that although the auditors are appointed and
paid bv the companv that is the result of the vote of the shareholders in general meeting
and their rem uneration is paid out of funds which might otherwise be a\ailablc for
distribution to shareholders bv wav of dividend. Their duty is to report to the shareholders
w hether the accounts give a true and tair view o f the company s financial position and
their report is sent to each shareholder as an identifiable individual. Thus, it was said, the
relationship, although not a contractual one, was very ciose to being contractual and was
.'moreover one in which a lack ot care would be likely directly to affect the very person
whose interest the auditor is engaged to protect, should that person choose to rely on the
accounts for the purpose of making or disposing of an investment. My Lords, of course I
see the force of this, but, as I have already suggested, 'proxim ity’ sn cases such as this is an
expression used not necessarilv as indicating literally ‘closeness in a physical or
- metaphorical sense but merelv as a convenient label to describe circumstances frorn
■ which the law will attribute a duty ot care. It has to be borne in m ind that the duty ot
care is inseparable from the damage which the plaintiff claims to have suffered from its
breach. It is not a dutv to take care in the abstract but a d u ty to avoid causing to the
• particular plaintiff damage of the particular kind which he has in fact sustained. I cannot
! improve on the analvsis which is to be found in the ju d g m e n t o f Brennan J in the High
Court of Australia in Sutherland Shire Council v Heyman (10S5) 60 ALR 1, to which I have
alreadv referred. After citing the speech of Viscount Simonds in Overseas Tankship \L K)
Ltd v .Mortj Dock and Engineering Co Ltd, The Wagon Mound [1961] 1 All ER 404 at 414415. [1961] AC 3S8 at 425, where he observed that it was vain to isolate the liability from
its context and to sav that B is or is not liable and then to ask for what damage he is liable.
BrennanJ continued (at 4S):
1
I
•
'The corollarv is that a postulated duty of care must be stated in reference to the
kind of damage that a plaintiff has suffered and in reference to the plaintitt or a class
of which the plaintiff is a m e m ber. I venture to repeat w h a t ! said in John Pfeiijer P:y
Ltd v C a im a v ; 1981) 148 CLR 21S at 241-241): “His duty o f care is a thing written
on the wind unless damage is caused by the breach o f that duty; there is no
actionable negligence unless duty, breach and consequential damage coincide----For the purposes o f determ ining liability in a given case, each element can be
defined onlv in terms of the others.” It is impermissible to postulate a dutyjaf care
to avoid one kind of damage— sav, personal injury— and, finding the delendant
guilty of failing to discharge that duty, to hold h im liable for the damage actually
suffered that is of another and independent kind— say. economic loss. Not only may
■
the respective duties differ in what is required to discharge th e m ; the duties ma\ be
'J
AJ5£ngi#nc L*w R*poto S March *990
600
All England Law Reports
[1990] 1 All ER
owed to different persons or classes of persons. That is not to say that a plaintiff who
suffers damage of some kind will succeed or fail in an action to recover damasej
according to his classification of the damage he suffered. The question is ahvavs
whether the defendant was under a duty to avoid or prevent that damage, but the
actual nature of the damage suffered is relevant to the existence and extent of anv!
duty to avoid or prevent it.'
' j
In seeking to ascertain whether there should be imposed on the adviser a dutv to avoid |
the occurrence of the kind of damage which the advisee claims to have suffered it is no:. I
I think, sufficient to ask simpiy whether there existed a 'closeness' between them in the j
sense that the advisee had a legs’ entitlement to receive the information on the basis of)
which he has acted or in the sense that the information was intended to serve his interest!
or to protect him. One must. 1 think, go further and ask, in what capacity was his interest
to be served and from what was he intended to be protected? A companv's annua!
accounts are capable of being utilised for a number of purposes and if one thinks about it
it is entirely foreseeable that they may be so emploved. But msr.v of such purposes have
absolutely no connection with the recipient's status or capacitv. whether as a shareholder,
voting or non-voting, or as a debenture-holder. Before it can be conciuded that the dutv
is imposed to protect the recipient against harm which he suffers bv reason of the'
particular use that he chooses to make of the information which he receives, one must, 1
think, first ascertain the purpose for which the information is required to be given.
Indeed, the paradigmatic Dencgkue vStnenscn case of a manufactured article requires, as
an essential ingredient of liability, that the article has been used by the consumer in the
manner in which it was intended to be used (see Grant v Australian Knitting Mills Ltd
[1936] AC S5 at 104, [1935] All ER Rep 200 at 217 and junior Bocks Ltd v Vfitdii Cc Ltd
[1082] 3 All ER 201 at 216. 2:S, ' 1 9 8 3 ] 1 AC 52c at 340, 55;:. I entirely follow that if
the conclusion is reached that the very purpose of providing the information is to serve
as the basis for making investment decisions or giving investment advice, it is not
difficult then to conclude also that the duty imposed on the adviser extends to protecting
the recipient against loss occasioned by an unfortunate investment decision which is
based on carelessly inaccurate information, fiingham LJ did. indeed, conclude that the
provision of guidance for the making of investment decisions was one of the purposes to
be discerned in the statutory provisions. He observed {[19S9]) All ER 79S at S05. [1969'
QB 653 at 681—682}!
. I think these provisions also reflect a wider and more commercial intention.
The growth and development of limited liability companies over a relatively verv
short period have been phenomenal. Their proliferation and expansion have
depended on their acceptance by the investing public as an advantageous and on
the whole) reliable medium of investment. The statutory requirements that
companies account to their members and that auditors express an independent
opinion to shareholders on the truth and accuracy of company accounts are in mv
view designed ;in part at least', to fortify confidence in the holding of shares as a
medium of investment by enabling shareholders to make informed investment
decisions. These are obvious reasons, both economic and social, why this end should
be regarded as desirable.’
How far he regarded this as an essential feature of the relationship of proximity which
he held to exist between the auditors and Caparo as shareholders is not. however, entirely
clear, for he attributed the same intention to the legislature in relation to investors
generally. He said:
’The publication of accounts must limit, if it cannot eliminate, the scope for
rumour-inspired speculation and thus promote an informed and orderlv market. It
enables prospective investors, like shareholders, to make informed decisions. For
such prospective investors the independent opinion of the auditor has the same
significance as for existing shareholders.’
i
Al;Engl*nCL»*r Reports
HL
9 M « r O i 199 0
Caparo Industries pic v Dickman (Lord Oliver)
601
of the
As i have already indicated, i am not, for my part, abie to share this
i
es ^ in!en;i0n of the legislature. i do not believe and i see no grounds for believing that. in
vs F enacting the statutorv provisions. Parliament had in mind the provision of information
-a of
nf purchasers ot*
c h a r t s norr H
^H ^nr nr es in
h e market,
m a r k e r , uwhether
h e r h e r :they
h e v be
he
tor the assistance
of shares
debentures
in tthe
le
already the holders of shares or other securities or persons having no previous proprietary
interest in the companv. It is unnecessary to decide the point on this appeal, but I can see
more force in the contention that one purpose of providing the statutory information
id
b mieht be to enable the recipient to exercise whatever rights he has in relation to his
proprietary interest bv virtue of which he receives it, by way, for instance, of disposing
le
of that interest. I can. how ever, see no ground for supposing that the legislature was
intending to foster a market for the existing holders of shares or debentures by providing
information for the purpose of enabling them to acquire such securities from other
holders who might be minded to sell.
S
I
al !
For mv pan."I think that the position as regards the auditor’s statutory duty was
i t p co rre ctly "summarised by O'Connor LJ in his dissenting judgm ent when he said (TioSo^
■e ’
i i All ER r?S at S30. [i?So] QE 6; j at 7 1 4 ;:
{
T he statutorv dutv owed bv auditors to shareholders is, 1 think, a duty owed to
:v
them as a bodv] I appreciate that it is difficult to see how the overstatement of the
le
accounts can cause damage to the shareholders as a body: it will be the underlying
I
reasons for the overstatement which cause damage, for example sraudulent
i.
abstraction of assets bv directors or servants, but such loss is recoverable by the
is
companv. I am anxious to limit the present case to deciding whether the statutory
le
dutv operates to protect the individual shareholder as a potential buyer ot lurther
■d
shares. If I am wrong in thinking that under the [Companies Act 1985] no duty is
:d
owed to shareholders as individuals, then I think that the duty must be confined to
if
transactions in which the shareholder can only participate because he is a shareholder.
’e
The statute imposes a duty to shareholders as a class and the duty should nor extend
)t
to an individual save as a member ot the class in respect ot some class activity.
g
Buying shares in a company is not such an activity.’
is
e
In mv judgment, accordingly, the purpose for which the auditors’ certificate is made
o if
and published is that of providing those entitled to receive the report with information
to enable them to exercise in conjunction those powers which their respective proprietary
interests confer on them and not for the purposes of individual speculation with a view
to profit. The same considerations as limit the existence of a duty of care also, in my
judgment, limit the scope of the duty and I agree with O ’Connor LJ that the duty of care
is one owed to the shareholders as a body and not to individual shareholders.
To widen the scope of the dutv to include loss caused to an individual by reliance on
the accounts for a purpose for which they were not supplied and were not intended
would be to extend it bevond the limits which are so far deducible from the decisions of
this House. It is not, as I think, an extension which either logic requires or policy dictates
and I, for my pan, am not prepared to follow the majority of the Court of Appeal in
making it. In relation to the purchase of shares of other shareholders in a company,
whether in the open market or as a result of an offer made to all or a majority of the
existing shareholders, I can see no sensible distinction, so far as a duty of care is concerned,
between a potential purchaser who is, vis-a-vis the company, a total outsider and one who
is already the holder of one or more shares. I accordingly agree with what has alreadyfallen from mv noble and learned friend Lord Bridge, and I, too, would allow the appeal
and dismiss the cross-appeal.
10
>y|
Jl
u
L O R D J A U N C E Y O F T U L L I C H E T T L E . My Lords, it no longer requires a detailed
citation of authority to vouch the well-established proposition that a negligent statement
may, in certain circumstances, render the maker thereof liable for economic loss
occasioned thereby to another. It is sufficient to mention Cann v W'iilscn (18SS) 39 Ch D
39 . the dissenting judgment of Denning LJ in Candler v Crane Christmas & Co [1951 j 1
All Engijne La* Reoons S M«rcfi ’ 990
602
All England Law Reports
[1990] 1 All ER
All ER 426. [; 95 T 2 KB i 64 and ;wo cases in this House. Hedler Byrne c~ Co l:d v Heller
er Partners Ltd f 1p c ; ' 2 All ER 5-5. [j 964] AC 465 and Smith, v Eric 5 Bush a n n n H a - r j
v U vrf Fcresi DC [19S9] 2 All ER 514, [i?So] 2 WLR -90. Whether iiabiiitv exists in
any particular case w ill depend on whether the maker ot" the statement owes a dutv of
care to the person who has suffered loss. In this connection I cannot do better than quote
the words of Lord Keith in Peabcdv Donation Fund v Sir Lindscx Parhnsor. cr C r Ltd' : 9 5 4 '
3 All ER 52? at 534. [; 9S5] AC 21c at 240-241:
T he true question in each case is whether the particular defendant owed to the
particular plaintiff a durv of care having the scope which is contended for. and
whether he was in breach of that duty with consequent loss to the plaint is. A
relationship of proximity ir. Lord Atkin's sense must exist before anv dutv of care
can arise, but the scope of the duty must depend on all the circumstances of the case
. . . So in determining whether or not a dutv of care of particular scope was
incumbent or, a defendant it is material to take into consideration whether it is iust
and reasonable that it should be so.'
The relationship of proximity to which Lord Keith referred is not one which is created
solely by the toreseeability of harm resulting from carelessness in the statement, but is
one in which some further ingredient importing proximity is present. Thus in r.ill v
Chief Constable of Wes: Yorkshire j ° S S ] 2 All ER 23S at 241, [t oi pj AC 53 at 61 Lord
Keith said:
‘It has been said almost too frequently to require repetition that foreseeability of
likely harm is not in itself a sufficient test of liability in negligence. Some further
ingredient is invariably needed to establish the requisite proximity of relationship
between the plaintiff and defendant, and all the circumstances of the case must be
carefully considered and analysed in order to ascertain whether such an ingredient
is present.'
Once foreseeability of likely harm from a careless statement has been established, it
becomes necessary to examine the circumstances in and the purposes for which the
statement was made in order to determine whether there are also present the further
ingredients necessary to establish the requisite proximity of relationship between the
maker of the statement and the person who has acted on it. As Bingham LJ observed in
the present case, the concept of proximity is somewhat elusive, extending as it does
beyond mere physical proximity 'see [19S9] 1 All ER 79S at S02. [19S9] QB 653 at 6- S).
It might be described as the circumstances in which the law considers it proper that a
duty of care should be imposed on one person towards another. If in any given
circumstances a relationship of proximity is found to exist, consideration must still be
given to the scope of the duty which arises therefrom. In the case of phvsical proximitv.
few problems will arise, but where there exists a duty of care in relation to the making
of statements, written or oral, problems may arise if those statements are capable of being
used for more than one purpose. It is not disputed in the present case that economic loss
to the plaintiff as a shareholder was foreseeable by the auditors as a result of anv failure
on their part to exercise reasonable care in the conduct of the audit. What is disputed is
w-hether the auditors owed any duty to individual shareholders, and if so. what was the
scope of that duty.
Before examining the circumstances in this case which may be relevant to the existence
of a relationship of proximity, it is helpful to look in a little more detail at the four cases
dealing with negligent statements to which I have already referred. In Cann v Willson
(18S8) 39 Ch D 39 valuers instructed by an intending mortgagor sent the valuation to
solicitors acting foran intending mortgagee know ing that it was hoped therebv to induce
the mortgagee to make a loan. ChittyJ held that in the circumstances the valuers owed a
duty of care to the mortgagee. In Candler v Crane Christmas cr Co [1951] 1 All ER 426,
[ 1 9 5 1 ] 2 KB 164 the accountants were aware that the accounts were to be shown bv their
?
I 4!; Eog,«nd!.»v> R eports
R_
—
hl
j
S
:9 9 0
603
C aparo Industries pic v Dickman (Lord J a u n c e y )
-------------------------------------------------- --
—
—
—
er errHover to the plaintiff who was a potential investor, and indeed their clerk discussed
ris i those accounts with him. Denning LI in suggesting the circumstances in which a duty
' n to use care in a statement bv professional persons would exist apart from contract, posed
three questions. First, what persons are under such duty: Second, to whom do those
‘Ie -irofessional people owe this duty! And third, to what transactions does the duty of care
extend! In relation to the second question, he said ([195 0 1 All ER 426 at 434. [195 0 2
KB 164 at 1So—1Si;:
1e
1(^
re
se
^
st
;d
d f
^
:r
P
‘] will take accountants, but the same reasoning applies to the others. They owe
the dutv, of course, to their employer or client, and also, I think, to any third person
to whom thev themselves show the accounts, or to whom they know their employer
is going to show the accounts so as to induce him to invest money or rake some
other action on them. I do not think, however, the duty can be extended si:!! further
so as to include strangers of w hom they have heard nothing and to whom their
emplover without their knowledge may choose to show their accounts. Once the
accountants have handed their accounts to their employer, they are not. as a rule.
responsible for what he does with them without their knowledge or consent . . .
Excluding such cases as those, however, there are some cases—o f which the present
is one—where the accountants k n o w all the time, even before they present their
accounts, that their employer requires the accounts to show to a third person so as
to induce him to act on them, and then they themselves, or the;r employers, present
the accounts to him for the purpose. In such cases I am ol opinion that the
accountants owe a dutv of care to the third person. The test of proximity in these
cases is: Did the accountants know that the accounts were required tor su&rrsission
to the plaintiff and use by him?’
In relation to the third question, he said ([1951] 1 All ER 426 at 4 3 5 . [ ; 9 5 >J 2 KB 164 at
182-184):
’r
e
'[The dutv of care] extends. I think, only to those transactions for which the
accountants knew their accounts were required. For instance, in the present case it
extends to the original investment of £2.000 which the plaintiff made in reliance
on the accounts, because the defendants knew that the accounts were required for
his guidance in making that investment, but it does not extend to the subsequent
£200 which he invested after he had been two months with the company. This
distinction, that the duty onlv extends to the very transaction in mind at the time,
is implicit in the decided cases. . . It will be noticed that I have confined the duty to
cases where the accountant prepares his accounts and makes his report for the
guidance of the verv person in the very transaction in question. That is sufficient
for the decision of this case. I can well understand that it would be going too far to
make an accountant liable to a n v person in the land who chooses to re!v on the
accounts in matters of business, for that would expose him, in the words of C a r d o z o ,
C.J., in I'hramares Corpn. v. Tmche (1931) 255 NY 170, to “. . . liability in an
indeterminate amount for an indeterminate time to an indeterminate class.”
Whether he would be liable if he prepared his accounts for the guidance of a specific
class of persons in a specific class of transactions, I do not say.’
:e
:s
■”
0
c
a
5,
ir
Denning LJ clearly considered that the scope of any duty of care was limited to the
precise transaction for which the accountants knew that the accounts were to be used. In
the Hedley B\rne case [1963] 2 All ER 575, [1964] AC 465 a company’s bankers were
1 asked by the plaintiffs' bankers whether the company 'would be good for an advertising
contract of £8,000 to £9,000’. The company’s bankers answered the question in the
affirmative but, 'without responsibility on the part of the bank’, W hen the company
failed, the plaintiffs sought to recover damages from the bankers for negligence in
making the statement. The action failed because of the express disclaimer of responsibility,
but this House, after detailed re v i e w of authority, held that a negligent statement, oral or
I
All E n ^ n c Le* fieDOts 9M#rch1S90
604
All England Law Reports
[ 1S90] 1 All EF,
written. could give rise 10 an action for damages for economic loss apart from an’,
contractual or fiduciary relationship subsisting betw een the parties. In the context of :h::
case. Medley Byrne is perhaps most important for its approval of the dissenting judemer.:
ol Denning LI in Candler v Crane Christmas <r Co. After setting out ;he facts in Candler :
case. Lord Reid said j 963] 2 All ER 575 at 5 S3, [1 0 6 4] AC 4 0 5 at 4S7 :
This seems to me to be a typical case of agreeing to assume a responsibility: jh t
accountants! knew why the plaintiff wanted to see the accounts and w hy their
employers, the company, wanted them to be shown to him. and agreed to shov
them to him without even a suggestion that he should not rely on them.’
Lord Reid is again there emphasising the fact that the maker of the statement w i
aware of the purpose for which the accounts w-ere required 10 be seen. Finallv. in Smith
Eric S Bin):
2 All ER 514. [19S0] 2 WLR 790 the plaintiff applied for a morteaet
to a buiiding society which in pursuance of its statutory duty under the Building Societie:
Act 1062 instructed independent surveyors to prepare a written report as to the value 0:
the house in question. The plaintiff paid to the building society a fee in respect ot ihij
report, and subsequently a copy thereof was provided to her. Without obtaining ar.
independent valuation, the plaintiff bought the house which later turned out to be
structurally defective. The surveyor was found to have been negligent in failing tc
discover the detect. This House held that, notw ithstanding the presence of an exclusior.
clause in his report, he was thereby in breach of a duty of care owed to the plaintiff. It is
clear trom the speeches which were delivered that the facts w hich created the proximate
relationship betw een the surveyor and the plaintiff were that the former knew that tht
valuation had been paid for by the plaintiff and would be shown to and probabiv relied
on by her in deciding whether or not to buy the house. Thus, Lord Templeman said
2 Ail ER 514 at 522-523, [1980] 2 WLR 79c at 799 :
‘I agree that, by obtaining and disclosing a valuation, a mortgagee does not assume
responsibility to the purchaser for that valuation. But in my opinion the value:
assumes responsibility to both mortgagee and purchaser by agreeing to carry out s
valuation for mortgage purposes knowing that the valuation fee has been paid by
the purchaser and knowing that the valuation will probabW be relied on by the
purchaser in order to decide whether or not to enter into a contract to purchase the
house.’
Lord Tempieman undoubtedly considered that one of the necessary ingredients of the
relationship of proximity was the fact that the valuer knew of the particular transaction
for the purposes of which reliance would probably be placed on his report.
Lord Griffiths, after setting out three criteria for the imposition of a dutv of care on an
adviser, namely foreseeability of damage, proximity of relationship and reasonableness,
continued ([1989] 2 All ER 514 at 536, [19S9] 2 WLR 79c at S16I:
T he necessary proximity arises from the surveyor's knowledge that the
overwhelming probability is that the purchaser will rely on his valuation, the
evidence was that surveyors knew that approximately 00% of purchasers did so. and
the fact that the surveyor only obtains the work because the purchaser is w illing to
pay his fee. It is just and reasonable that the duty should be imposed for the advice
is given in a professional as opposed to a social context and liability for breach of the
duty will be limited both as to its extent and amount. The extent of the liability is
limited to the purchaser of the house: I would not extend it to subsequent
purchasers.’
Here Lord Griffiths is limiting the existence and scope of the duty of care to the very
person and the very transaction which were in the contemplation of the surveyor at the
material time.
I Al :.g n n e l_i» Repons
R HL
5 W«tch 1990
Caparo industries pic v Dickman (Lord Jauncey)
605
My Lords, in each or these cases w here a duty of care has been heid to exis... the
nv
s;a;frnent
in question has. to rhe knowledge of its rr.aker. been made available to rhe
nisj
:m: nlain'tifl"for a particular purpose on which he has relied, ir. the present case, rhe auditors,
Tj! bv accenting office, came under a statutory duty to make their report to the members of
the companv. The crucial issue is the purpose tor which rhe report was made. To quote
the words of Denning LJ in Cdndler's case [ 105 j ] t All ER426 ar 43 5- [ 1? 5 ' :
64 ar
he. 1S3, whar was the ‘verv transaction’ for which ir was provided? To answer this question
eir; it":s necessarv to look at the relevant provisions of Pt Vll of the Companies Ac: i ?Sj.
)\v!
Section 221 requires everv company to cause account-.ng records to be kept w hich
should be sufficient to show and explain the company s transactions, and shouid be such
••as* as a to disclose with reasonable accuracy the financial position ot the company at the
time, and b; to enable the directors to ensure that any profit and loss account complies
fi
with the requirements of rhe Act. If a company's business involves dealing in goods, the
accounting records are required to contain statements of stock at rhe end of each financial
i e s(
\ear and all statements of stocktaking from which such statements of stock derive.
Section 227 requires that rhe directors, by sub-s t , prepare a profit and loss account for
h is.
i
an ‘ the financial year in respect of each accounting reference period of the company and. by
be 1 sub-s .'3). prepare a balance sheet as at rhe last day ot the nnanctal \ear. Section 2-S .2. is
t° j in the following terms:
on?
The balance sheet shall give a true and fair view of the state ot attains of the
li sj
companv as at rhe end ot the nnancial year: anc the profit and loss account shall g:\ e
at e:
a true and fair view ot rhe profit or loss 01 the company tor the financial \ ear.
he;
led * in terms of s 235'1'X. the directors are required to prepare a report ‘containing a fair
review of the development ot the business of the company and its subsidiaries during the
lid
financial vear and of their position at the end of it’, and giving particulars of. inter alia,
changes in asset values, directors' shareholdings and other interests and contributions for
■ne political and charitable purposes. Section 236 makes provision tor an aucitors report,
ier inter alia, in the following terms:
ta
'(1) A companv's auditors shall make a report to itsjnembers on rhe accounts
by
examined by them, and on everv balance sheet and profit and loss account, and on
he
all group accounts, copies ot which are to be laid before the company in general
:he
meeting during the auditors’ tenure of office.
{2) The auditors’ report shall state— [a) whether :n the auditors opinion the
balance sheet and profit and loss account and ’if it is a holding company submitting
:he
group accounts': the group accounts have been properly prepared in accordance with
on
this Act; and ;t>) without prejudice to the foregoing, whether in their opinion a true
and fair view is given— fi) in the balance sheet, ot the state of the company s affairs
an
at the end of the financial vear. :,ii) in the profit and loss account if not tramed as a
:ss,
consolidated account), of the company s profit or loss tor the financial year. . .
the
:he
nd
; to
ice
:he
; is
snt
Section 237 V: defines auditors’ duties as follows:
‘It is the dutv of the company's auditors, in preparing their report, to carry out
such investigations as will enable them to form an opinion as to the follow ing
matters— [a, whether proper accounting records have been kept by the company
and proper returns adequate tor their audit have been received from branches not
visited bv them, (b) whether rhe company’s balance sheet and (if not consolidated)
its profit and loss account are in agreement with the accounting records and returns.
Section 141 provides, inter alia:
try
the
'(1) In respect of each financial year of a company the directors shall lay before
the companv in general meeting copies of the accounts of the company for that
vear.
Aft EftQ im dls* R»&or»
6 06
S Marcn *9&0
All England Law Reports
[1990] 1 All ER
(2) The auditors' report shall be read before the company in general meeting, anc
be open to the inspection of any member of the companv.
(3) In respect ot each financial year the directors— a, shall deliver to the registrar
of companies a copy of the accounts for the year..
\
I
The accounts of a company are denned by s 23? to include, inter alia, the companv’;
profit and loss account and balance sheet, and the directors' and auditors’ reports. Ir
terms ot s 240, a copy of the company's accounts must be sent to every member not lex
than 21 days beiore the date o! the meeting referred to in s 2 j r i':. Finally, s 245 impose;
penalties on directors whose defective accounts are laid before the company or delivered
to the registrar of companies.
Three matters emerge from the statutory provisions, name’v: '1; that the responsibility
for the preparation ot accounts giving a true and fair view of the companv s financial
state is placed fairly and squarely on the shoulders of the directors: '2; that the role of th:
auditors is to provide an independent report to the members on the proper preparatior,
of the balance sheet and profit and loss account, and as to whether those documents givt
a true and tair view respectively of the state of the company's affairs at the end of the
financial year and of the company's profit and loss for that vear. Their role is thus pureh
investigative rather than creative: 3' that the companv’saccounts* including the auditors
report, will be furnished to all members of the company as weii as to debenture holder,
and any other persons entitled to receive notice of genera! meeting. The accounts will. 0:
course, also be available to any member of the public who chooses to examine the
company file in the office of rhe registrar of companies.
So much for the circumstances in which company accounts reach the members,
circumstances which render it inev itable that auditors will be aware that their report;
will be seen and relied on by the members. However, that does not answer tht
fundamental question ot the purpose, and hence the very transactions, for which the
annual accounts ot a company are prepared and distributed to its members. Counsel for
the auditors submitted that the principal purpose was to provide an account of the
stewardship of the directors to the shareholders as a body, and pot to provide individual
investors, whether shareholders or members of the public, with comparative information.
Counsel for Caparo, on the other hand, argued that the purpose was to enable shareholders
to make such individual decisions as they wished in relation to the companv, including
decisions as to investment, they already being investors, and decisions as to voting in
general meetings.
In the Court of Appeal Bingham LJ concluded that the auditors had voluntarily
assumed direct responsibility to individual shareholders to whom they owed a duty to
exercise reasonable care in carrying out their audit see [ 1pSoj 1 All ER 70S at S07-S11.
[1989] QB 653 at 685-600;. He further concluded that such dutv was owed to a
shareholder m respect of any loss sustained by him in selling, retaining, or buying shares
in the company. Bingham LJ referred to the approval by Cardozo CJ in L'lrrumurfs Ccrp
v Touche .'1931; 255 NY 170 at 185 of an earlier statement of Pound] in Csurteen Seed Cc
vHcngKcmg and Shanghai Banking Ccrp ' 102 7; 245 \Y 377 at 3S1; that—
‘negligent words are not actionable unless they are uttered directly, with
knowledge or notice that they will be acted on. to one to whom the speaker is bound
by some relation of duty, arising out of public calling, contract or otherwise, to act
with care if he acts at all.’
He then said:
‘This formulation would not exclude the finding of a sufficiently proximate
relationship in the present case if the words “will be acted on” are replaced, as in
English law I think they should be, by “may be acted on".'
Taylor LJ said '[1980] 1 All ER 708 at Si 1, [1989^ QB 653 at 703;:
j E n g in e
HL
R«*>r“
s
‘ S90
Caparo Industries pic v Dickman (Lord Jauncey)
607
.. once proximitv to the shareholder is established, the auditor oughtprima
fade to be liable for any loss suffered in foreseeable reliance on the report. . .
In mv view these observations go too far. Possibility of reliance on a statement for an
unsp ecified purpose will not impose a duty of care on the maker to the add es
. •
;s required. In
v Eric S Busk it was probable, if not highlv probable, that the P0,er>‘:
purchaser would relv on the valuers report. This probable reliance was an essem.al
fnredient in establishing proximity. Had it merely been a possibiiin that the p u r , . „
' would relv on the report I verv much doubt whether this House wouL have deeded .ha
rve valuer owed a dutv of care to the purchaser. Furthermore, reliance, even if Pr0- a- * '
therebv e a a b l is h in e proximitv. does not establish a dutv ot care of unlimited s.o
Regard must be had to rhe transaction or transactions tor the purpose ot » hich the
statement was made. It is loss arising from such transaction or transactions rathe, .han
•a n v l o s s ’ to which the aurv of care extends.
.
.
, „ c_
I do not understand that either Bing'nam LJ or Taylor LJ, in reaching the:. conclLSio- [0 arv material exrent on the purpose for which accounts of a companv, ,n,..uu...g
totnwnbers or consequentially on the transactionsfor
which the members were expected to use them. O'Connor LJ, in a dissenting judgment
' considered that the statutory duty owed by auditors to shareholders» as ow e , to .hem
/ a bodv and not as individuals.
1
Mv Lords. Pt Vll of the Companies Act 19S5 provides that .he amounts o f a . o m a
for each financial vear shall be laid before the c o m p a n v s general meeting th-t s to sav
: be’V e 'he members in general meeting. Copies of the accounts must be sent to „he
I members at least 21 da vs in advance, and it is obvious that tue reason for this is to enabie
' the members to prepare themselves for attendance at and participation in the meeting.
* • w « * * f * * ■ ? « * " » T S S n or
stewa'dshin of
the companv durine the preceding5 year,
eleaion
iiinccyiiiH*!'
.- . to vote tor or against
__ or
Stevva US..1 o.
p - JjLnnrove the appointment or reappointment ot
re-election of directors, to approve or disapprove the appointm ent or; reaP P ° £ “ ; ‘
auditors and to take other decisions affecting the companv as a . - n o i e or t ^ m e . e a
members of a particular class o f shareholders. There is nothing in Pt MI w h „ h surges s
that the accounts are prepared and sent to m e m b e rtfo r any purpose other tha.. 1 w a . i e
them to exercise class rights in general meeting. I :t herefore co n du ce t h a : the piirposk of
annual accounts, so far as m em bers are concerned, is to enab.e them
the past
management of the company, to exercise their voting ngnts, if »
.
d
influence future polio- and management. Advice to individual sharenolders ,rrela^ on
to present or future investment in the company is no part ot the starutorj purpose: 0
preparation and distribution o f the accounts It follows that l am in agreement j r t t h e
views of O ’C o nnor LJ as to the nature of the statutory duty owed bv auduors to
* I h h e K ^ t o r v accounts are prepared and distributed for certain limited' P ^ “ ' / arj
there nevertheless be imposed on auditors an additional c om m on law dutv 'o m d v .u a l
shareholders w ho choose to use them for another purpose w ithout the p n o knowpledge
of the auditors? The answer m ust be No. Use for that other p u r p o s e u o u l d no longer be
use for the 'verv transaction’ which D enning LJ in Candler s u s e [1951] •
nf^.are
435 r i e s P a K B 164 a! 163 regarded as determinative ot the scope of anv dutv ot ca .
Only where the auditor was aware that the individual shareholder was hkely tc’ re !_ ° nr
the accounts for a particular purpose such as his present or uture inve .
lending to the com pany would a duty of care arise. Such a situation does not obtain in
the present case.
, _
,
,
The C o un o f Appeal u n a n i m o u s l v rejected a submission by Caparo that an auditor
owed a d u t v to a potential investor who held no shares. In this House it was argued that
the relationship of the unwelcome bidder in a potential takeover situation was neany as
proximate to the auditor as was the relationship of a shareholder to w hom the report was
directed. Since 1 have concluded that the auditor owed no duty to an individual
AI; England l a * R*&on* SM*fch1950
608
All England Law Reports
[1990] 1 All ER
shareholder, it follows that this argument must also fail. The fact that a companv mav ar
a time when the auditor is preparing his report be vulnerable to a take-over bid cannon
per se create a relationship of proximity between the auditor and the ultimate successful!
bidder. Sot only is the auditor under no statutory duty to such a bidder but he wiil have’*
reason at the material time to know neither of his identirv nor of the terms of his bid. Ir,
this context the recent case of Al Saudi Banque v Clark Fix lex (a firm., [ i 9S9] 3 All ER 361,
[ 199o] 2 WLR 344 is in point. There .Vlillett j held that the auditors of a companv owed
no duty ot care to a bank which lent money to the company, regardless of whether the
bank was an existing creditor or a potential one, because no sufficient proximirv 0:
relationship existed in either case between the auditor and the bank. I have no doubt rha:
this case was correctly decided and J would only add that rhat I am in entire agreemen;
with the careful process of reasoning whereby the judge reached his decision.
It only remains to mention Twomax Ltd v Dickson McFarlane cr Robinson 1952 SC 113.
to which your Lordships were referred. The Lord Ordinary Stewart) held that auditors
owed a duty of care to potential investors who were not shareholders bv applvine the tes:
of whether the detenders knew or reasonably should have foreseen at the Time the
accounts were audited that a person might rely on those accounts for the purpose of
deciding whether or not to take over the company, and therefore would suffer loss if the
accounts were inaccurate. There were in that case no such findings in facr as woulc
support the existence of a relationship of proximiry between rhe auditor and the
unknown potential investor. I therefore consider that the reasoning of the Lord Ordinary
was unsound and that the decision cannot be supported.
For the foregoing reasons, I would allow rhe appeal and dismiss the cross-appeal.
Appeal aliened; cross-appeal dismissed.
Solicitors: Freskfe'ids 'for the auditors)
Leighton for Caparo:.
Mary Rose Plummer
Barrister.
Re Goodwin
CHANCERY DIVISION
HOFFMANN J
1 7 , 2 0 , 2 2 , 2 4 NOVEMBER
loSo
Contempt of court - Refusal tc disclose source of information - Journalist - Disclosure r.ecessarx
in interests 01 justice - Interests of justice - Journalist receding confidential information about
company from unidentified source - Information probably derived from business plan stolen from
company - Company wishing tc bring proceedings against source - Identification of source Possibility that journalist could identify source - Whether ‘in interests of justice' for identity of
source tc be revealed - Whetherjournalist obliged tc reveal identity of source - Contempt of Court
Act j 9 l j , s j o .
The plaintiff, a privately owned company, prepared a draft business plan for the purposes
o f negotiating a substantial bank loan to raise additional working capital. A copv of the
draft plan was stolen from the plaintiff or its accountants and rhe next day an unidentified
source telephoned the respondent journalist and gave him inform ation about the
company, including the a m ount of the projected loan and the plaintiff’s forecast results.
There was a strong inference that the inform ation had been obtained from the stolen
business plan. The respondent thought he m ight use the inform ation to w rite an article
about the plaintiff in the magazine on which he was employed and telephoned the
^debenture will not. What is the position with an ingu? <jently created
' security over particular items which ranks equall^PnM he debenture?
Because it is uncommon to have to determine conflicts between two
security interests held by one chargee over particular property, it is
. worth remembering that the rights under the respective charges would
be similar if, for example, Griffiths had assigned its interest under the
. deed of charge to a third party. The equally ranking security interest
created by the deed of charge prevents the receivers from reducing to the
fund under the debenture so much of the book debts as was bound to be
paid towards satisfaction of the security interest under the deed of
charge. It would only be the balance of the book debts which the
• receivers were entitled to reduce to that fund, from which the
Commissioner would be entitled to be paid his debt in priority to other
debts. Nicholson J regarded securities ranking in priority to, or equally
1 with, the security under which the receiver is appointed, as standing in
a similar situation for the purposes of s221p. Waters v Widdows,
(Supreme Court of Victoria, 30 September 1983, in the course of
publication).
'. °
Where there are several equally ranking security interests over an item
^ ! o f property which is insufficient to satisfy them all, there are principles
L ^ which determine the allocation of the available sum between them.
. ; ^'Although the possibility of the securities ranking equally was mentioned
in argument there were no submissions about the practical consequences
which would follow. If this court had finally to decide the proportion of
the proceeds of the book debts in respect of which the Commissioner was
entitled to his statutory priority, I would consider it necessary to list the
^ appeal for further argument and perhaps further inquiries would be
v needed. However, as mine is a minority view on this question, that will
not be necessary.
' " ' I agree that the appeal in respect of the remuneration and expenses of
M the receivers fails for the reasons given by Murray J which I have had the
*’• advantage of reading in draft.
, I would allow the appeal in part, as indicated above.
■
r
’•**‘
B J EGAN
** .•
r '
ti
»■
V
5
>
HIGH COURT OF AUSTRALIA
G ibus CJ, M u r p h y , B r e n n a n , D e a n u and D a w s o n JJ
23, 24 August 1983, 20 August 1984 — Adelaide
10
15
25
30
35
40
v
ir.
JAENSCH v COFFEY
Negligence — Nervous shock — Duty of carc — Husband injured in traffic
accident and taken to hospital — Wife’s psychiatric illness resulting from what
she saw and heard there — Whether negligent driver owed wife a duly of care —
Predisposition to illness — Whether answer to claim.
The respondent’s husband was seriously injured one evening when his
motorcycIc collided with a vehicle negligently driven by the uUfimttne. He was
taken to hospital where the respondent saw him in severe pain before and
between his undergoing a series of emergency operations. She was called back
to the hospital next morning and stayed with him in the intensive carc unit much
of the day. When she left she thought he was going to die. These experiences
caused her to develop severe anxiety and depression, for which she successfully
sued the appellant in the Supreme Court of South Australia. On appeal to the
High Court of Australia:—
.
, .■ .
Held, per curiam, dismissing the appeal:—
(i) In the circumstances the respondent owed a duty of carc to the appellant
in respect of the psychiatric injury which she sustained and was liable for
negligence occasioning nervous shock.
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1971]ALR 253;
McLoughlin v O'Brian [1983] 1 AC 410, considered.
Chester v Waverley Corporation (1939) 62 CLR 1, not followed. .
Bourhill v Young [1943] AC 92; The Wagon Mound (No I) [1961 ] AC 388;
Anns v Merton London Borough Council [1978] AC 728; Wyong Shire
Council v Shirt (1980) 29 ALR 217; 146 CLR 40, referred to.
Per Gibbs CJ: The respondent was a “neighbour” of the appellant within Lord
Atkin’s principle; it was foreseeable that a person in her position would suffer
nervous shock, and there was no reason of policy why her claim should not
succeed.
•
Per Brennan J: It is not desirable to create new criteria of limitation upon the
scopc of the cause of action in negligence causing psychiatric illness. In cach ease
where causation is established, the question of fact is whether it was reasonably
foreseeable by the defendant that his conduct might bring about a phenomenon
the sudden perception of which by the plaintiff or by a class of which the plaintiff
is a member might induce a psychiatric illness, assuming the plaintiff or the
members of that class to be of a normal standard of susceptibility.
Per Deane J: A duty of care to avoid psychiatric injury unassociated with
conventional physical injury will not arise unless risk of injury in that particular
form was reasonably foreseeable, nor unless it was sustained as a result of the
death, injury or peril of someone other than the person whose carelessness is
alleged to have caused the injury. Both these criteria were satisfied in the present
case.
' '
AUSTRALIAN LAW REPORTS
A
HC ol A
£
Per Deane J (Dawson J agreeing): The events which causcd nervous shock to
the respondent were part of the aftermath of the accidcnt resulting from the
defendant's negligcnce. and the fact that they were a combination of her own
observations and what she was told by others did not preclude the recovery of
damages.
(ii)
Given the finding of the trial judge that the respondent was a person of
normal fortitude, the fact that she had an exceptional predisposition to anxiety
and depression was no answer to her claim.
Wafts v Rake (1960) 108 CLR 158, applied.
Appeal
j
■*
: This was an appeal to the High Court of Australia from a decision of
the Full Court of the Supreme Court of South Australia. The facts
appear in the reasons for judgment of Brennan and Deane JJ.
J W Von Doussa Q C and M G Steele, for the appellant.
D M Quick and C A Kerin, for the respondent.
.
Cur. adv. vult.
Gibbs CJ. I have had the advantage of reading the judgment prepared
by my brother Deane J. I agree with his conclusion and, in general, with
his reasons. I can therefore express my own views quite shortly
The respondent developed a psychiatric illness, characterized by
anxiety and depression, because of what she saw and heard at the
hospital to which her husband was admitted with serious injuries causcd
by the negligent driving of the appellant. Before the law had reached its
present stage of development, the respondent would have had no right
to recover damages from the appellant. She was not herself physically
injured in the collision, and was not within the area of potential danger
arising as a result of the appellant’s negligence. She did not secorh ca r
the accident, or its aftermath at the scene of the collision. The shock and
fear (apparently well founded) that her husband might die, which caused
her psychiatric illness, were causcd partly by what she saw, and partly by
what she was told, at the hospital on the night of the accidcnt and on the
following day. As the law relating to damages for what is somewhat
crudely called “nervous shock” has limped on with cautious steps, to use
the metaphor suggested by Windeyer J in Mount Isa Mines Ltd v Pusey
[19711 ALR 253; 125 CLR 383 at 395 and 403, the old and ‘Rational
limitations on the right to recover damages for an injury of th.s k.nd have
one by one been removed. Finally, in McLoughlm v O Brian [1983] 1
AC 410 the House of Lords, taking one short step onward from Benson
v Lee [ 1*9721 VR 879 (and see Gannon v Gray [1973] Qd R 411) has held
that a plaintiff was entitled to rccovcr damages for nervous shock from
a defendant whose negligent driving had causcd a road accident in which
the plaintiffs daughter was killed and her husband and other children
w ere injured, notwithstanding that the plaintiff had been twe.mites from
the scene of the accident when it occurred and did not hear of the
64 ALR
41Z
JAENSCH v COFFEY <Git>bs CJ)
419
accident until about two hours later, and did not see its tonsequcnces
until she then went to the hospital. It was submitted on behalf of the
appellant that we should not follow this decision. With all respect,
however, the decision is part of the logical progression of the
5 development of the law already evidenced in the earlier authorities and
was correct in principle.
The first question for decision in cases such as McLoughlin v O ’Brian
and the present is whether the plaintiff was owed a duty of carc, and it
was not in contest in either case that, if the defendant did owe the
10 plaintiff a duty to drive his vehicle with reasonable carc, he failed to fulfil
that duty. The submission on behalf of the respondent in the present case
was that in order to succeed she had to establish no more than that the
appellant could have reasonably foreseen that his act of negligent driving
might cause some sort of psychiatric illness to persons of a class of which
15 she was one. In other words, it was submitted that foreseeability is the
only test of the existence of the duty. There is high authority in support
of that view. In The Wagon Mound (No 1) (1961] AC 388 at 426, their
Lordships endorsed the statement of the law made by Lord Denning in
King v Phillips [1953] 1 QB 429 at 441: “there can be no doubt since
20 Bourhill v Young [[1943] AC 92] that the test of liability for shock is
foreseeability of injury by shock’ . There are also some decisions of this
court in which it appears to have been suggested that foreseeability is the
sole criterion of liability for negligence. In those cases, however, the
question whether a duty of carc existed went without saying, because the
25 existence of a duty in cases of that kind was well established: by earlier
authority, and the remarks of the judges were directed only to the
question whether the conduct of the defendant satisfied the requisite
' standard of carc and not to the question whether a duty of care existed.
F oreseeab ility is relevant to the three different questions that may arise
30 in an action for negligence — whether there was a duty o f carc; if so,
whether the defendant was negligent; and whether the defendant was
liable for the kind of damage that resulted from the negligence — and
this sometimes tends to lead to confusion.
The statement of basic principle by Lord Atkin in Donoghue v
35 Stevenson [1932] AC 562 at 580, docs not make liability for negligence
depend solely on a failure to take reasonable carc to avoid acts or
omissions which it can reasonably be foreseen will be likely to injure
someone. The duty is owed, not to the world, but to one’s neighbour, ic
to “persons who arc so closely and directly affected by my act that I
40 ought reasonably to have them in contemplation as being so affcctcd
when I am directing my mind to the acts or omissions which arc callcd
in question”. The principle, which is one of proximity as well as of
foreseeability, was stated in the following words by Lord Wilbcrforce in
Anns v Merton London Borough [1978] AC 728 at 751-2: “First one has
45 to ask whether, as between the alleged wrongdoer and the person who
has suffered damage there is a sufficient relationship of proximity or
neighbourhood such that, in the reasonable contemplation of the
'
former, carclcssncss on his part may be likely to cause damage to the
latter — in which ease a prima facie duty of carc arises.”
uire some
However, the particular circumstances of the case ma
qualification to be placed on the principle and accordingly Lord
Wilberforce stated (at p 752) a second question, namely, whether there
arc any considerations which ought to negative, or to reduce or limit he
scope of the duty or the class of person to whom it is owed or the
damages to which a breach of it may give rise”. B ^ c w w j i n
substance accepted by Mason J in Wyong Shire Council v Shirt (1980) 29
ALR 217 at 218; 146 CLR 40 at 44. Many examples could be given of
cases in which foreseeability, although necessary to establish the
existence of a duty of care, is not sufficient for that purpose. One such
case is that of damages for negligent words which cause financial loss.
The law, which at first did not allow recovery in such a ease, now permits
recovery, but by no means in every case where the loss was foreseeable,
the principle, the limits of which arc not yet fully defined, is complex and
detailed: see Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC
465 and L Shaddock & Associates Pty Ltd v Parramatta City Council
(1981) 36 ALR 385; 55 A U R 713. Another case is that where the
damage caused by some negligent physical act is sollely
• "
Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad (1976) 11
ALR 227- 136 CLR 529, although the members of this court gave
different reasons why the plaintiff in that case should recover all
recognized that the fact that the loss was for c s c c a b lc w a s n o t enough o
make it recoverable: see (136 CLR) at pp 555, 573-4 590, 604 606. In
S t a r Books U d v V'Uchi U d [1983) 1 AC 520 where the House of
U r * dealt with the same question, all of their Ll>rdsh'!“
importance of proximity in deciding it: see at pp 533,535 539, M5 , : ,
A UV.rd example is that of the advocate who cannot be sued for
negligence in the conduct of a trial, although the c° nsc^ 7 iQ % ? i AC
neElieence are readily foreseeable: see Rondel v Worsley [1969] 1 AC
191 and Saif AH v Sydney Mitchell & Co [1980] AC 198. In all these cases
policy has played a part in shaping the rule. In Dorset Yacht Co v Home
% fice [1970] AC 1004, Lord Diplock (at p 1060) gives other examples
of acts or omissions which give rise to no legal liability, although the loss
or damage which those acts or omissions causcd was readily foreseeable
Notwithstanding the statement in The Wagon Mound (No 1) to which
I have referred, and to other expressions of a similar opinion which may
be found in the authorities, I respectfully agree with Jhc obsenjat.on o
Lord Wilberforce in McLoughhn v O Brian [1983] 1 AC at 420) th
“foreseeability does not of itself, and automatically, lead to a duty of
Cajn McLoughlin v O ’Brian, although all of their Lordships agreed in
the result there was a difference of opinion as to the part played by
H i S in the formuUlion of the rule governing the recovery-of damages
for nervous shock.IWith all respect I consider that the view of Lord
Wilh<*rforce is realistic and correct. He said (at p 420) that
“foreseeability must be accompanied and limited by the law's judgment
as to persons who ought, according to its standards of value or justice,
.Z ha« S
in contemplation". In forming its judgment on sud, a
mauer the court is not at large, or free to indulge its own individual
notions, I n B iu st be guided by existing legal principles and by analogies
that may ^ ^ r a w n from decided cases. On the other hand„.the court is
not necessarily constrained to follow earlier decisions when they appear
to be out of accord with contemporary principles. For example, the
5 decision in Chester v Waverley Corporation (1939) 62 CLR 1, which
cannot be justified either on the ground that shock in that case was not
reasonably foreseeable or on the ground that the requisite proximity was
lacking, should no longer be followed.
Lord Wilbcrforcc pointed out in McLoughlin v O'Brian, (at p 422)
10 that in deciding on the limits that should be placed upon the extent of
admissible claims for nervous shock it is necessary to consider three
elements: “the class of persons whose claims should be recognised; the
proximity [in time and space] of such persons to the accident; and the
means by which the shock is caused". I would agree that these are the
15 relevant elements, and 1 incline to think that the first is of the greatest
importance. Where the relationship between the person killed or
physically injured and the person who suffers nervous shock is close and
intimate, not only is there the requisite proximity in that respect, but it
is readily defensible on grounds of policy to allow recovery. There are
20 cases which persons who do not stand in any such relationship have been *
held entitled to recover, including the case of rescuers (Chadwick v
British Railways Board [1967] 1 WLR 912) and that of fellow employees
(Mount Isa Mines Ltd v Pusey, supra), but they do not now Jail for
consideration. I would with respect reserve my opinion as to the,
25 correctness of some of Lord Wilberforce’s comments on the other
elements and in particular on his statements that there must be fia close
proximity in space as well as in time (see p 422) and that “the shock must
come through sight or hearing of the event or of its immediate
aftermath” (see at p 423). The law must continue to proceed in this area
30 step by cautious step.
In the present case there was a very close relationship, both legal and
actual, between the respondent and her husband. She was notified of the
accident, and went to the hospital, as soon as practicable on the evening
when it occurred. She personally perceived the aftermath of the
35 accidcnt, although not at the scene but at the hospital. The fact that, in
addition, she was informed by those on duty at the hospital of her
husband’s condition cannot, in my opinion, defeat her claim. She was,
in my opinion, a “neighbour” of the appellant within Lord Atkin’s
principle; it was foreseeable that a person in her position would suffer
40 nervous shock, and there is no reason of policy why her claim should not
succeed.
A final question arises. The respondent had, before her marriage, led
an unhappy and deprived life and had suffered much abuse during her
childhood. In consequence she had an exceptional predisposition to
45 anxiety and depression. However, the learned trial judge held that her
predisposition was controlled and that she was a person of normal
fortitude. It may be assumed (without deciding) that injury for nervous
shock is not recoverable unless an ordinary person of normal fortitude
in the position of the plaintiff would have suffered some shock. The '
uospnai and saw what was happening to Allan until a doctor advised her
AUSTRALIAN LAW REPORTS
^
,
HC of A
findings of the learned trial judge make it right to infer that this has been
established in the present case. In those circumstances the fact that the
respondent was predisposed to shock is no answer to her claim. There
is no reason why the principle of such cases as Watts v Rake (1960) 108
CLR 158 should not apply: see also Mount Isa Mines Ltd v Pusey (125
CLR) at 405-6; Benson v Lee ([1972] VR) at 881; and Gannon v Gray
([1973] Qd R) at 414.
I agree that the appeal should be dismissed.
,r Murphy J. Where a person suffers personal injury through the
defendant’s negligence, and the spouse of that person, who was not a
witness to the occurrence of the injury, suffers damage as a result of
shock causcd by learning of or witnessing the person s injuries or
treatment, should the defendant be liable for the damage to the spouse?
The general development of the law, both common law and statute,
suggests liability (see Storm v Geeves [1965] Tas SR 252; Mount Isa
Mines Ltd v Pusey [1971] ALR 253; 125 CLR 383; Benson v Lee [1972]
VR 879 and McLoughlin v O'Brian [1983] AC 410). In Caltex Oil
(Australia) Pty Ltd v The Dredge "Willemstad'' (1976) 11 ALR 227; 136
CLR 529 at 606, 1 observed that persons causing damage by breach of
duty should be liable for all the loss unless there arc acceptable reasons
of public policy for limiting recovery. In South Australia the old
common law rule that damages arc not recoverable for nervous shock
(Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222)
has been superseded (see Wrongs Act 1936-1975 (SA) s 28).
In New South Wales, die Law Reform (Miscellaneous Provisions) Act
1944 extends liability to cover injury arising from nervous or mental
shock causcd to other persons where a person is killed, injured or put in
peril, but limits it to members of the person’s family and further limits
it, except in the case of a parent or spouse, to cases where the person is
killed, injured or put in peril within the sight or hearing of the family
member. Similar laws apply in the Australian Capital Territory and the
Northern Territory. There is no such limitation in South Australia. If
there were, the plaintiff would be able to recover in these circumstances.
The court should not adopt a view of public policy more restrictive of
recovery than has been adopted by those Australian legislatures which
have dealt with the subject.
Abnormal predisposition to shock or nervous injury
The accident to her husband was only a contributing factor to the
condition for which the plaintiff seeks damages. Mrs Coffey was already
in an extremely vulnerable state because of circumstances having
nothing to do with the defendant. It is not a rational distribution of social
costs to place the whole burden on the defendant, which really means on
his insurers and therefore on the motoring public. Nevertheless, if
liability extends to “normal” persons, it must also extend to predisposed
persons, who at least should be able to recover where a “normal” person
would have recovered and to the same extent. Should their recovery be
limited to the damage which would have been suffered by a person not
54 ALR 4 3 ^
JAENSCH v COFFEY (Murphy J)
423
predisposed, or should recovery be for all the damage suffered? Or
should liability arise only where a person not predisposed would have
suffered injury, but the damages not be limited to what such a person
would have suffered, but extent to what the plaintiff suffered?
5
10
15
20
25
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Implications o f welfare State on personal injury law
Early negligence law evolved when there was practically no social
welfare, but in Australia it should now be developed consistently with
the existence of a fairly comprehensive national mcdical and hospital
scheme and social security benefits. Federal social welfare legislation
provides for invalid pensions and various benefits for those unemployed
or sick. Mcdical and hospital costs, at least to the extent that they might
be payable or rccovcrablc under the national schcmc, should not
continue to be a head of damages in personal injury claims. Alteration
of the common law to allow for orders for those costs as they arise (as
occurs in some jurisdictions) may be an advancc on the present system,
which requires estimation at the trial of all those costs. In an efficient
system, operating against the background of a National Health fSchcmc,
they should not be claimable (either at common law or under statutory
compensation schemes).
!
A coherent system to deal with assistance to personal injuriy victims
will not be advanced by a proliferation of further remedies under
schemes which aim at providing for mcdical and hospital costs which
would otherwise be covered under the National Health Schcpie, and
which displace, in whole or part, provisions for invalid pensions and
other national social security benefits. Regrettably this case of aftermath
nervous shock falls to be determined as if those social welfare laws and
the national health scheme did not ex ist., ,,. .. .
In the absence of legislation limiting recovery, I am not satisfied that
there arc acceptable reasons of public policy for limiting recovery here.
The appeal should be dismissed.
Brennan J. Mrs Coffey had had an unhappy life until she met and
married her husband, Allan. It was a happy marriage, and a baby was
born to them in February 1979, a few months before Allan's accidcnt.
He was a policeman in Adelaide. In the early evening of 2 June 1979 he
was on duty riding his motorcycle when he collided with a motor vehicle
driven by Mr Jacnsch. Mr Jacnsch’s careless driving was the sole cause
of the collision. Allan was seriously injured. He was taken by ambulance
to the Royal Adelaide Hospital. Two police officers brought the news to
Mrs Coffey. She was at home, away from the scene of the accident. The
policc brought her to the hospital where she saw Allan in the casualty
section in severe pain. She waited while Allan was taken to the operating
theatre. As he was being wheeled back from the theatre “his hip popped
out again”. He was taken back to the theatre. After he emerged again,
he complained repeatedly of pain in his stomach. Again he was taken to
the theatre and a tear in his liver was found. Mrs Coffey did not know
why he had been taken to the theatre on this occasion. She stayed at the
hospital and saw what was happening to Allan until a doctor adyised her
to go home to sleep. He told her that Allan was “pretty w . She went
to stay with friends. At 5.30 am a doctor rang. He said: “Allan is in
intensive care now. We don’t know how he is going to be but we will
keep in contact.” At 8.30 am she had a call from the intensive care unit.
She was told that there had been a change for the worse and she was
asked to get up to the hospital as quickly as possible. When she arrived
at the hospital, a doctor told her that Allan had kidney problems and
that his liver was damaged. She stayed much of the day. She saw Allan
with “all these tubes coming out of him". She said she was “scared that
he was going to die and that all my security had been washed down the OT
drain and I was just so scared and so resentful to the other person that ,
causcd the accidcnt”. Bollen J, who said that she “needed the security
of a safe and affectionatcj-clationship”, believed that statement. When
Mrs Coffey left the hospital that evening, she thought Allan was going
to die. She first realized that Allan would survive three to four weeks v;!
after the accidcnt.
After her experience at the hospital, Mrs Coffey suffered severe
anxiety and depression. Her psychiatric condition causcd gynaecological
problems and a hysterectomy was later performed. Bollcn J found “that
the things which she saw and heard on the night of 2nd/3rd June 1979 and
during 3rd June after she had gone to the hospital in response to a
telephone call at about 8.30 am causcd her psychiatric illness — anxiety
and depression”. Although Mrs Coffey’s early life had predisposed her ■,
to anxiety and depression, his Honour found that she “was a person of
normal fortitude”. His Honour also found that “the wrong-doer could 2S
foresee that a wife, hearing of the accident, would go to hospital, wait
at the end of the telephone and suffer mental shock at what she saw and \
heard". These findings were made in an action in the Supreme Court of
South Australia brought by Mrs Coffey against Mr Jacnsch. She
recovered a judgment for $37,563.16 damages in negligcnce for nervous... 0£
shock and damages for loss of consortium and interest. Judgment was
entered for a total amount of $48,003.16. An appeal was brought to the
Full Court of the Supreme Court, but the award of general damages for
nervous shock was left undisturbed. The appellant, Mr Jacnsch, appeals
to this court, contending that he owed no duty of carc to Mrs Coffey and »•'
that he is not liable in damages for negligcncc occasioning nervous
shock.
A century ago psychiatric illness, without more, was not a form of
harm or damage for which damages for negligence could be recovered:
Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222. But
at least for the last half-century “neurasthenic breakdown amounting to
psychiatric illness" has been held to be "without more . . . a form of
harm or damage sufficient for the purpose of any action on the case in
which damage is the gist of the action, . . . supposing that the other
ingredients of the cause of action arc present”: per Dixon J in Bunyan
v Jordan (1937) 57 CLR 1 at 16. The term “nervous shock” has been used
to describe that form of damage, although the term may not be an
accurate medical description of the range of psychiatric illnesses which
it is intended to cover — “any recognizable psychiatric illness” was the ’
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description'llsed by Lord Denning MR in Hinz v Berry [1^70] 2 QB 40
at 42, and citcd by Windeycr J in Mount Isa Mines Ltd v Pusey [1971]
ALR 253; 125 CLR 383 at 394, and that description nuist be right.
Compensation is awarded for the disability from which the plaintiff
suffers, not for its conformity with a label of dubious mcdical
acceptability. The term “nervous shock” is useful nevertheless as a term
of art to indicate the aetiology of a psychiatric illness for which damages
arc recoverable in an action on the case when the other elements of the
cause of action arc present. Thus Walsh J in Pusey's case (CLR at p 414)
referred to ‘all forms of mental or psychological disorder which are
capable o f resulting from shock" (emphasis added). It will be necessary
to consider presently the aetiology of nervous shock, but first the other
elements of the cause of action should be mentioned.
A plaintiff must prove that a psychiatric illness for which damages are
claimed has been causcd by the defendant’s act or omission: Chapman
v Hearse (1961) 106 CLR 112 at 122. Reasonable foreseeability of the
damage is insufficient if the chain of causation is interrupted. A
defendant is not liable if a novus actus intervenes between the
defendant’s conduct and the damage complained of: M cKew v Holland
& Hannen & Cubitts [1969] 3 All ER 1621 at 1623.
A plaintiff must also prove that an act or omission which causcd the
plaintiffs psychiatric illness was done or omitted in breach of a duty of
care owed by the defendant to the plaintiff. Where the psychiatric illness
is causcd by perceiving the consequences of the defendant’s carelessness
— typically a physical injury inflicted on another — it is not sufficient for
the plaintiff to prove that the defendant has failed in his duty of care to
that other. He must prove that the defendant’s carelessness was in
breach of a duty owed to the plaintiff. The respective duties o f care owed
to the plaintiff and to the other person and the causes of action arising
from their breach arc independent one of the other. It is now settled law
that the duty owed to one is not to be regarded as secondary to or
derived from the duty owed to the other: see per Lord Wright in Hay or
Bourhill v Young [1943] AC 92 at 108 and Scala v Mammolitti (1965) 114
CLR 153 at 159.
7
Reasonable foreseeability determines the existence of the duty of care
and the measure of damages recoverable for its breach. In Bourhill v
Young, Lord Russell of Killowcn said (at p 101): “In considering
whether a person owes to another a duty a breach o f which will render
him liable to that other in damages for negligcncc, it is material to
consider what the defendant ought to have contemplated as a reasonable
man. This consideration may play a double role. It is relevant in cases
of admitted negligcnce (where the duty and breach arc admitted) to the
question of remoteness of damage, ic to the question of compensation
not to culpability, but it is also relevant in testing the existence of a duty
as the foundation of the alleged negligcncc, ic to the question of
culpability not to compensation.”
Referring to this passage of his Lordship’s speech, the Judicial
Committee in Overseas Tankship (UK) Ltd v Moris Dock & Engineering
Co L td (The Wagon Mound) (No 1) [1961] AC 388 said, at 426jt “We
AUSTRALIAN LAW REPORTS
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HC of A
hare com e back to the plain common sense stated by Lord Russell of
Kiilowen in Bourhill v Young [1943] AC 92 at 101. As Denning U said
in King v Phillips [1953] 1 QB 429 at 441: ‘there can be no doubt since
Bourhill v Young that the test of liability for shock is foreseeability of
injury by shock'.”
• In Mount Isa Mines Ltd v Pusey, supra, the criterion of reasonable
foreseeability was applied in determining the existence of a duty owed
to a plaintiff who had suffered a psychiatric illness as the result of going
to the aid of fellow employees who had sustained gruesome burning
injuries: see per Barwick CJ (125 CLR) at 389-90; McTiernan J at 391;
Menzies J at 392; Windeyer J at 395,397,402 and Walsh J at 413-5. The
criterion of reasonable foreseeability is not a narrow test. In Chapman
v Hearse this court said (106 CLR) at 120-1: “. . . one thing is certain and
that is that in order to establish the prior existence of a duty of care with
respect to a plaintiff subsequently injured as the result of a sequence of
events following a defendant’s carelessness it is not necessary for the
plaintiff to show that the precise manner in which his injuries were
sustained was reasonably foreseeable; it is sufficient if it appears that
injury to a class of persons of which he was one might reasonably have
been foreseen as a consequence. As far as we can see the test has never
been authoritatively stated in terms other than those which would permit
of its general application and it would be quite artificial to make
responsibility depend upon, or to deny liability by reference to, the
capacity of a reasonable man to foresee damage of a precise and
particular character or upon his capacity to foresee the precise events
leading to the damage complained of.”
' It follows that a defendant whose carelessness has caused damage to
a plaintiff and who could reasonably have foreseen that his carelessness
was liable to cause some damage “can only escape liability if the damage
can be regarded as differing in kind from what was foreseeable” (per
Lord Reid in Hughes v Lord Advocate [1963] AC 837 at 845). Prior to
The Wagon Mount (No 1), the formulation of the test of foreseeability
was influenced by the judgments in Re Polemis and Furness, Withy & Co
[1921] 3 KB 560 so that it was often expressed in terms of what the
defendant ought to anticipate as the reasonable and probable
consequences of his conduct. For example, in Thompson v Bankstown
Corporation (1953) 87 CLR 619, Dixon CJ and Williams J said, at 630:
“In a passage in his opinion in Bourhill v Young [1943] AC 92 at 104,
Lord Macmillan says: 'The duty to take care is the duty to avoid doing
or omitting 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.’ This passage was cited and used
as the test by Lord Thankerton and by Lord Macmillan himself in
Glasgow Corporation v Muir [1943] AC 448 at 454, 457. Lord
Macmillan’s phrase ‘the duty is owed to those to whom injury may
reasonably and probably be anticipated if the duty is not observed’, has,
as the opinions in the two cases seem to show, no meaning very different
from Lord Atkin’s description in M ’Alister (or Donoghue) v Stevenson
54ALR 417
JAENSCH v COFFEY (Brennan J)
[1932] AC 562 at 580, viz ‘persons who are so closely and directly
affected by my act that I ought reasonably to have them in contemplation
as being so affected when I am directing my mind to the acts or omissions
which arc called in question’."
Then, in Chapman v Hearse (106 CLR) at p 120, this court left open
the question whether foreseeability is restricted to foreseeability of those
consequences which, after the event, can be characterized as
“reasonable and probable”. Now it has been held by the House of Lords
(Hughes v Lord Advocate); the Judicial Committee (The Wagon Mound
(No 2); Overseas Tankship (UK) Ltd v Miller Steamship Co Pty [1967]
AC 617) and by this court ( Wyong Shire Council v Shirt (1980) 29; ALR
217; 146 CLR 40) that the test of foreseeability is not so restricted*. The
present rule in negligence is stated by Lord Reid in C Czarnikow L td v
Koufos [1969] 1 AC 350 at 385-6: “The defendant will be liable for any
type of damage which is reasonably foreseeable as liable to happeri even
in the most unusual case, unless the risk is so small that a reasonable man
would in the whole circumstances feel justified in neglecting it."
As Mason J pointed out in Shirt’s case (ALR) at 219; (CLR) at 45, his
Lordship must be understood to be using the expression “liable to
happen” so as to include an event which may be described as a very
improbable result. Nowadays it is neither possible nor necessary to
embrace the judgments in Re Polemis (as Evatt J did in Chester v
Waverley Corporation (1939) 62 CLR 1 at 29) in order to uphold the*
recovery of damages for nervous shock which, though a foreseeable:
consequence, is not a natural and probable consequence of thedefendant’s careless conduct. •
.•Applying Lord Reid’s statement of the principle to cases where aplaintiff seeks damages for negligence occasioning nervous shock, it is
not necessary for a plaintiff to prove that a reasonable man in the
defendant’s position could foresee that any particular psychiatric illness
might be caused by his conduct; it suffices that he could have foreseen
that his conduct might cause some recognized psychiatric illness induced
by shock. In Mount Isa Mines L td v Pusey, Walsh J said (125 CLR) at
p 414: “. . . for the purposes of the present case the statement in The
'Wagon Mound’ (No I) [1961] AC at 426, that the test of liability for
shock is foreseeability of injury by shock may be accepted. It treats
‘injury by shock’ as a distinct kind of injury. Its acceptance means that
all forms of mental or psychological disorder which are capable of
resulting from shock are to be regarded as being, for the purposes of the
foreseeability test of liability, damage of the same kind. If, therefore,
some form of mental illness or neurosis was foreseeable, as Skerman J
found, and in my view properly found, the respondent satisfied the
requirements of that test. He proved that the damage which he suffered
was of a kind which was foreseeable.” It is not necessary that the precise
events leading to the administration of the shock should be foreseeable.
It is sufficient that shock and a psychiatric illness induccd by it are
reasonably foreseeable.
.
When a duty of care is found to exist, owed either to a plaintiff or to
a class of persons of whom he is one, the plaintiff must prove its breach.
'This calls for an assessment of the act or omission by which tf l|ilaintiffs
damage was caused. That assessment is made by reference to the
standard of the notional reasonable man, as Mason J explained in Shin's
case (ALR) at p 221; (CLR) at pp 47-8: “In deciding whether there has
been a breach of the duty of care the tribunal of fact must first ask itself
whether a reasonable man in the defendant’s position would have
foreseen that his conduct involved a risk of injury to the plaintiff or to
a class of persons including the plaintiff. If the answer be in the
affirmative, it is then for the tribunal of fact to determine what a>
reasonable man would do by way of response to the risk. The perception
of the reasonable man’s response calls for a consideration of the
magnitude of the risk and the degree of the probability of its occurrence,
along with the expense, difficulty and inconvenience of taking alleviating
action and any other conflicting responsibilities which the defendant may
have. It is only when these matters are balanced out that the tribunal o f
fact can confidently assert what is the standard of response to be ascribed
to the reasonable man placed in the defendant’s position.” ■
When a plaintiff suffers a psychiatric illness induced by his perception
of the physical consequences of the defendant’s breach of a duty of care
owed to a third person, he is not likely to have difficulty in proving the
defendant’s breach of any relevant duty of care owed to him. Thus, in
Mount Isa Mines Ltd v Pusey Walsh J said (125 CLR) at p 411: “Therecan be no remaining question as to the existence of a relevant duty or as
to the breach of it if, in addition to the findings that there was a breach
of a duty owed by the appellant to Kuskopf and Docherty [the two
servants of the defendant who had suffered burning injuries] and that'
this was a cause of the injuries to them, two further propositions were
established, namely, (1) that it was foreseeable that if injury was thus;
caused to those servants or either of them other persons in the building’
such as the respondent might go to investigate and to render assistance,'
and (2) that it was foreseeable that such a person going to the scene
might suffer an injury of the kind for which the respondent sued and
which he proved to have been caused, in fact, by the incident in
question.” It is not necessary here to consider the ease where the plaintiff
suffers nervous shock caused by his perception of the physical
consequences to a third person of the defendant’s conduct and the third
person is owed no relevant duty of carc.
A broadening of the test of foreseeability and a readier judicial
acceptance of the foreseeability of shock-induced psychiatric illness have
combined to expand the scope of a defendant’s liability beyond what is
was thought to be half a century ago. Liability for negligence occasioning
nervous shock has not been readily accepted, perhaps because the courts
found evidence of psychiatric illness and of its aetiology to be too vague
to warrant a finding of a causal relationship between psychiatric illness
and careless conduct. Curial wariness of vague notions is, as Sir Owen
Dixon said, perhaps the “reason that scorn of the law is more widespread
among psychiatrists than anatomists” (Jesting Pilate (1965) p 18). The
courts have insisted on proof of a demonstrable and readily-appreciable
cause of psychiatric illness — the cause itself being a result of the
•>
cf
CU
5S
^
CC
‘
*
dcfcndantVR.areless conduct — before damages for negligence
occasioning psychiatric illness are awarded. A plaintiff may recover only
if the psychiatric illness is the result of physical injury negligently
inflicted on him by the defendant or if it is induced by “shock".
5 Psychiatric illness causcd in other ways attracts no damages, though it is
reasonably foreseeable that psychiatric illness might be a conscqucnce of
the defendant’s carelessness. The spouse who has been worn dywn by
caring for a tortiously injured husband or wife and who puffers
psychiatric illness as a result goes without compensation; a parent made
10 distraught by the wayward conduct of a brain-damaged child and who
suffers psychiatric illness as a result has no claim against the toiftfeasor
liable to the child.
The foreseeability of shock-induced psychiatric illness has gained a
more ready acceptance by Australian courts during the last half-century.
15 The change in approach is manifest when Chester v Waverley
Corporation is compared with Mount Isa Mines Ltd v> Pu sey. In Chester
v Waverley Corporation, a mother suffered “severe nervous shock”
when, in her presence and sight, the dead body of her seven year old son
was found in and taken from a water-filled trench which the defendant
20 corporation had dug in a road and had carelessly failed to fence. Her
action failed. In Mount Isa Mines L td v Pusey, the trial judge found that
the defendant employer ought to have foreseen the possibility of an
employee suffering an injury within the broad category of psychiatric
illness when going to the rescue of other employees in the same building
25 who suffered gruesome burning injuries as the result of negligence onYthc parts of both the employer and the injured employees. There the
award of damages was upheld. In both cases this court’s decision turned
upon whether, on the facts of the cases, the causing of the plaintiffs
psychiatric illness by shock was reasonably foreseeable by the defendant
30 (see, in Chester’s case, Latham CJ (62 CLR) at p 10; Rich J at p 11;
Starke J at pp 13-4 and Evatt J at p 29; in Pusey’s case (125 CLR) at
pp 389-90, 391, 395 — where Windcycr J uses the phrase “set off by
shock” — and pp 402, 414).
A similar change is to be seen in the approach of English courts,
35 although a criterion of reasonable foreseeability has been accepted
throughout. In Bourhill v Young the plaintiffs action failed because
their Lordships were of the opinion that, in the circumstances, the
defendant could not reasonably have foreseen that the collision would
put persons in the plaintiffs position in danger of suffering injury by
40 shock (see per Lord Thankcrton (|I943| AC) at p 99; Lord RuSscll of
Killowcn at p 102; Lord Macmillan at p 105; and Lord Wright at p 111;
Lord Porter at p 119 speaks of foresight of “emotional injury
. as a
result of . . . negligent driving” although he had referred (at p 117) to
the reasonable anticipation of “emotional disturbance or shock"). The
45 plaintiffs claim was rejected on the facts, as Lord Wilberforce
acknowledged in McLoughlin v O ’Brian (1983] 1 AC 410 at 418. In
McLoughlin v O ’Brian the House of Lords accepted that it was
reasonably foreseeable that the plaintiff, whose husband and children
were injured in a motor car accident — one child was injured fatally —
ytu gfrt suffer psychiatric illness caused by shock |flB<eeing them
grievously injured in hospital shortly after the accidcnt. m e fact that the
plaintiffs in Pusey's case and in McLoughlin v O'Brian succeeded, no
doubt reflects the broadening of the legal criterion of reasonable
foreseeability and the contemporary acccptance of the foreseeability of
shock-induced psychiatric illness. The success of the plaintiffs in those
eases is a salutary reminder that questions of law and questions of fact
must be kept within their proper areas of discourse and that it is a fallacy
to limit the scope of a cause of action by too ready a rejection of the
sufficiency of the evidence tendered in proof of an element of that cause
of action.
In cases of negligence occasioning nervous shock, as in cases of
negligence occasioning physical injury, the “essential factor in
determining liability is whether the damage is of such a kind as the
reasonable man should have foreseen" ( The Wagon Mound (No I)
[1961] AC 388 at 426). The distinction in principle between the two
classes of cases, however, depends on the kind of damage that the
reasonable man should foresee. Where a plaintiff is entitled to damages
for negligence occasioning nervous shock, some recognizable psychiatric
illness induced by shock must be reasonably foreseeable.
> The notion of psychiatric illness induced by shock is a compound, not
a simple, idea. Its elements are, on the one hand, psychiatric illness and,
on the other, shock which causes it. Liability in negligence for nervous
shock depends upon the reasonable foreseeability of both elements and
of the causal relationship between them. It is not surprising that Lord
Macmillan noted in Bourhill v Young [1943] AC 92 at 103, that: “. . . in
the case of mental shock there are elements of greater subtlety than in
the case of an ordinary physical injury and these elements may give rise
to debate as to the precise scope of legal liability." I understand “shock”
in this context to mean the sudden sensory perception — that is, by
seeing, hearing or touching — of a person, thing or event, which is so
distressing that the perception of the phenomenon affronts or insults the
plaintiffs mind and causes a recognizable psychiatric illness. A
psychiatric illness induced by mere knowledge of a distressing fact is not
compensable; perception by the plaintiff of the distressing phenomenon
is essential. If mere knowledge of a distressing phenomenon sufficed, the
bearers of sad tidings, able to foresee the depressing effect of what they
have to impart, might be held liable as tortfeasors.
The capacity of a phenomenon to cause a person who perceives it to
suffer a psychiatric illness depends in part upon the distressing aspects of
the phenomenon which are manifest to be perceived by anybody and in
part upon any special significance which the phenomenon may have for
the person who perceives it. Thus a runaway lorry rushing around a bend
has a special significance for a mother who knows her children to be
there; she is more likely than another bystander to be shocked by the
sight of the runaway lorry:tsee HambrookvStok.es Bros [1925] 1 KB 141.
Of course a psychiatric illness may be induced by shock when a
distressing phenomenon is perceived by a plaintiff for whom it has no
special significance. Thus in Dulieu v White & Sons [1901] 2 KB 669,,
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where i^ras hcld that a plaintiff could recover for ‘‘a severe shock” if she
proved that it was causcd by the negligent driving of a pair-horse van into
her husband’s public house where she was behind the bar, it was not
thought necessary that the plaintiff should allege and prove tha,t she was
more susceptible than other occupants of the public house to thje sight of
the entry of the pair-horse van. No doubt it is true to say that the more
distressing and dramatic an event, the more likely it is to cause shock to
those who perceive it. The scene of a road accident where an injured
victim is to be seen is usually more distressing and dramatic, more
inherently shocking, than the scene in a hospital ward where the victim
is recovering from his injuries. There is, however, no legal principle
which precludes a plaintiff from relying on phenomena other than the
scene of an accident or, as in Hambrook v Stokes Bros, the scene of a
potential accident. A temporal extension beyond the actual occurrence
of an accident was accepted by Lush J in Benson v Lee [1972] VR 879,
who allowed a claim based upon “direct perception of some of the events’
which go to make up the accident as an entire event, and this includes
. . . the immediate aftermath . . . " (at p 880). But I know of no principle
which precludes a plaintiff from relying on any phenomenon which is a
reasonably foreseeable result of the defendant’s carelessness. It is a
question of fact whether it is reasonably foreseeable that the sudden '
perception of that phenomenon might induce psychiatric illness.
■ ’’ *
Nowadays it is accepted by the community and by the courts that the i
sudden perception of a distressing phenomenon might induce psychiatric
illness in some people, although the mechanics of the causal relationship
involved is not fully understood even by those in whose field of expertise
that subject lies. It is not surprising that there is great scope for.
differences of opinion as to the foreseeability of the inducing of a :
psychiatric illness by the sudden perception of a distressing
phenomenon. Moreover, it is generally recognized that what will induce
a psychiatric illness in one person may leave another unaffected. Some
people are naturally more robust — or less sensitive — than others. Yet
reasonable foreseeability is an objective criterion of duty, and a general
standard of susceptibility must be postulated. At least to that extent it is
possible to confine consideration of the question whether it is reasonably
foreseeable that the perception of a particular phenomenon might
induce in the plaintiff a psychiatric illness. Some general guidelines
apply. The first guideline is this: the question “whether there' is duty
owing to members of the public who come within the ambit of'the act,
must generally depend on a normal standard of susceptibility" (per Lord
Wright in Bourhill v Young ([1943] AC) at p 110). Unless a plaintiffs
extraordinary susceptibility to psychiatric illness induced by shock is
known to the defendant, the existence of a duty of care owed to the
plaintiff is to be determined upon the assumption that he is of a normal
standard of susceptibility. Secondly, if it is reasonably foreseeable that
the phenomenon might be perceived by a person or class o f persons for
whom it has a special significance — for example, the parent o f a child
injured in a road accident who comes upon the scene — the question
whether it is reasonably foreseeable that the perception o f the
phenomenon by that person or a member of that clflfcnight induce a
psychiatric illness must be decided in the light o O h e heightened
susceptibility which the special significance of the phenomenon would be
expected to produce.
Plaintiffs who have been present at the scene of an accident have
recovered, especially where the injured third person is a spouse, child or
sibling of the plaintiff: see Dulieu v While & Sons, supra, where the
plaintiff was shocked by the event itself; Storm v Geeves [19651 Tas SR
252, where the victim's brother and sister were at the scene; and Hinz
v Berry [1970] 2 QB 40, where Mrs Hinz looked immediately at the scene
ol disaster when a car ran into her husband and children, injuring them
all and fatally injuring her husband. Rescuers have recovered when they
come to the scene of an accident to render assistance to the injured, for
it was foreseeable that they would come to the scene and their arrival
t ere was treated as being a result of the defendant's careless conduct:
Sd C-,
Isa Mines Ltd v Pusey> sup™, and Chadwick v British
Radways Board [1967] 1 WLR 912. The law treats a rescuer’s response
to the victim’s injury as the natural and probable consequence of the
conductwhich causes the injury: “The cry of distress is the summons to
relief. The law docs not ignore these reactions of the mind in tracing
conduct to its consequences’’ (per Cardozo J in Wagner v International
y. ^ (1921) 232 NY 176 at 180). Similarly, parents who have been
quickly summoned to the scene of a child's accident have recovered: for
example, the mothers in Storm v Geeves and Benson v Lee, and a father
in Boardman v Sanderson (Keel and Block, Third Party) [1964] 1 WLR
1317. If rescuers’ and parents’ responses arc so commonplace and
expected that their attendance at the scene may properly be found to be
the reasonably foreseeable result of inflicting an injury on the original
. victim, the response of one spouse in coming immediately to the other
spouse in his or her distress must be similarly regarded. There is no
difference in principle between the compassionate and immediate
response of a rescuer, a parent or a spouse to a victim’s cry of distress.
Tne defendant s infliction of injury upon the victim is the summons to
the rescuer, parent or spouse to attend the victim, and that attendance
can properly be found to be the result, and the reasonably foreseeable
result, of the defendant’s conduct. The range of foreseeability in the case
of rescuers is well stated by Evatt J in the second of the "subsidiary
principles” set out in Chester v Waverley Corporation (62 CLR at 44):
The secondary duty is cast upon A because a reasonable person in his
position would have foreseen the probability of injury being sustained
(a) by those who are already present at or in the immediate vicinity of
the scene of the actual or apprehended casualty, and (b) by those who
will also be brought to the scene for the purpose cither of preventing the
casualty altogether, or of minimizing its injurious consequences, or in
the course of a search to discover and rescue or aid any person who is
feared on reasonable grounds to have been injured in the casualty."
It would be an exceptional case if it could be found that the attendance
of other persons at the scene of an accident is the result of the
defendant’s negligence. However foreseeable it may be that passers-by
will sto ^ ffr that morbid curiosity will bring others to the scene, it is
difficult to envisage a case where their attendance at the scene and their
perception of it could fairly be regarded as the result of the defendant's
conduct. Unless their attendance at and perception of the scene is shown
to be a result, and a reasonably foreseeable result, of the defendant’s
conduct, they arc not entitled to recover damages for psychiatric illness
induced by sudden perception of it. That is, however, a question of fact.
When the scene of an accident is left behind, and the perception of
some later phenomenon induces a psychiatric illness in a plaintiff, the
factual difficulties in the way of establishing ncgligcncc occasioning
nervous shock arc greatly increased though the principles are
unchanged. The occurrence or existence of the later phenomenon, its
sudden perception by the plaintiff and the inducing of the plaintiffs
psychiatric illness must be proved to be the results, and the reasonably
foreseeable results, of the defendant’s conduct. But the separation in
time and distance of the later phenomenon from the immediate
consequences of the defendant’s conduct may make it difficult to prove
the elements of causation and reasonable foreseeability as they apply in
cases of nervous shock. The cry of distress which summons a rescuer,
spouse or parent to the scene of an accidcnt may lose some of its urgency
as time passes after the initial injury; later visits by a spouse or parent
to the injured person in hospital may not be so distressing as to inducc
psychiatric illness in a spouse or parent of a normal standard of
susceptibility — especially if the injured person’s condition and
treatment proceed without dramatic fluctuations. It may not be
reasonably foreseeable that the perception of the injured spouse or child
in hospital might inducc a psychiatric illness. Of course, what is too
remote to be treated as a conscqucncc in one case may be clearly within
the chain of causation in another; what is not reasonably foreseeable in
one case may be reasonably foreseeable in another.
These ore all questions of fact, but they arc questions of impression
and degree which cannot be directly proved by evidence of what is too
remote and what is not, of what is reasonably foreseeable and what is
not. They arc matters of judgment for the jury or, where there is, no jury,
for the judge. Hence Lord Wright, in Bourhill »■ Young, in answer to the
question where the thing is to stop, replied ([194.1] AC at p 110) that “it
should stop where in the particular case the good sense of the j^ry or of
the judge decides".
The stopping point is not to be defined as a proposition of law| nor are
new principles to be invented to stop the thing going too far. In
McLoughlin v O'Brian, the House of Lords was much exercised by the
scope of the cause of action, some of their Lordships asserting thpt limits
should be placed judicially upon it (see per Lord Wilberforce ([1983] 1
AC) at p421; Lord Edmund-Davies at pp 426-8). Others of their
Lordships denied the propriety o f curtailing a cause of action to satisfy
judicial policy (see per Lord Scarman at p 430; Lord Bridge of Harwich
at PP 5 ^ ' ^ ’ w^**e L °rd Russell of Killowen did not deny that notions
of judicial policy could be relevant in an appropriate case but found that
the facts of the case did not raise any issue of judicial policy (at p 429).
my opinion, the exigencies of proof of the elem entJ^lthe cause of
action impose the appropriate limits upon the scopc of the remedy.
Those limits are likely to be at once more flexible and more stringent
than limits imposed by legal rules which might be devised to give effcct
to a judicial policy of restraining the remedy within what arc thought to
be acceptable bounds. •
In McLoughlin v O ’Brian (at p 422) Lord Wilberforce thought that
the existing law recognizes the claims of parent and child or husband and
wife but denies the claims of the ordinary bystander. His Lordship
suggested that cases “involving less close relationships” should be
carefully scrutinized and the claim judged in the light of other factors.
The criteria of causation and reasonable foreseeability based on normal
standards of susceptibility are more easily satisfied in the case of parent
and child or husband and wife. Those criteria also furnish the framework
of principle within which the courts determine whether a particular claim
by a bystander or by a plaintiff in “a less close relationship” with a
physically injured victim is to be allowed. In Australia, the categories of
claimants are not closed. In the present case, it is unnecessary to do more
than recall what Windeyer J said in Pusey's case (125 CLR at p 404):
“There seems to be no sound ground of policy, and there ccrtainly is no
sound reason in logic, for putting some persons who suffer mental
damage from seeing or hearing the happening of an accident in a
different category from others who suffer similar damage in the same
way from the same occurrence. The supposed rule that only relatives can
be heard to complain is apparently a transposition of what was originally
a humane and ameliorating exception to the general denial that damages
could be had for nervous shock. Close relatives were put in an
exceptional class.'. V . What began as an exception in favour of relatives
to a doctrine now largely abandoned has now been seen as a restriction,
seemingly illogical, of the class of persons who can today have damages
for mental ills causcd by careless conduct.”
1 In McLoughlin v O ’Brian, Lord Wilberforce acknowledged that,
although close proximity to the accident in time and space is necessary,
a plaintiff might recover when he comes from nearby and very soon upon
the scene. I would regard those considerations to be relevant to the
finding of facts, but not to be principles limiting liability. The question
whether a plaintiff comes to the scene of an accident as rescuer (and may
recover) or out of mere curiosity (so that he may properly be regarded
as the author of his own shock) can be decided by reference to the
currently accepted principles. Persons “of whom it could be said that one
could expect nothing else than that he or she would come immediately
to the scene — normally a parent or a spouse” (persons whom Lord
Wilberforce would hold to (be entitled to recover) are accommodated
within those principles. I do not find it desirable as a matter of policy or
permissible as a technique of judicial development of the law to create
new criteria of limitation upon the scope of the cause of action in
negligence causing psychiatric illness. The thing will stop where good
sense in the finding of facts .stops it. In each case where causation is
established, the question of fact is whether it was reasonably foreseeable
by the d^B ) Jant that his conduct might bring about a phenomenon the
sudden j^rccption of which by the plaintiff or by a class of which the
plaintiff is a member might inducc a psychiatric illness, assuming the
plaintiff or the members of that class to be of a normal standard of
5 susceptibility. Of course, the room for judgment is manifest as it always
is in the evaluation of facts, but that provides no warrant for introducing
new criteria to limit liability. I would agree, with respect with
Burbury CJ who said in Storm v Geeves ([1965] Tas SR) at pp 261-2: “It
can now 1 think be taken to be clear that the limits of liability for injury
10 by nervous shock arc to be determined only by a proper judicial
application of the general test of reasonable foreseeability of that kind
of injury in all the circumstances of the particular case.”
If authority established that there arc restrictive criteria of liability in
addition to causation and reasonable foreseeability, the scope of the
15 cause of action would have lo be more narrowly stated. In McLoughlin.
v O ’Brian Lord Wilbcrforcc said ([1983] 1 AC) at p 420, that
“foreseeability docs not of itself, and automatically, lead to a duty of
care”. And Lord Edmund-Davics said that he could not accept the
approach that reasonable foreseeability is the sole test of liability. He
20 added (at p 426): “It is true that no decision was cited to your Lordships,
in which the contrary has been held, but that is not to say that reasonable
foreseeability is the only test of the validity of a claim brought in,
negligence.”
Both of their Lordships referred to what Lord Reid had said in M cKew
25 v Holland & Hannen A Cubitts [1969] 3 All ER 1621, and to what Lord
Wilbcrforcc had said in Anns v Merton London Borough [1978] AC 728.
at 752. Lord Reid’s speech, however, was not concerned with reasonable,
foreseeability as the criterion of a duty of care; he was pointing out, as
this court pointed out in Chapman v Hearse (1961) 106 CLR 112, that
30 liability in negligence docs not extend to consequences that are not
causcd, in the eye of the law, by the defendant’s act or omission. The
context makes that clear ([1969] 3 All ER at p 1623): “His unreasonable!
conduct is novus actus interveniens. The chain of causation has been
broken and what follows must be regarded as causcd by his own conduct
35 and not by the defender’s fault or the disability causcd by it. O r one may
say that unreasonable conduct of the pursuer and what follows from it
is not the natural and probable result of the original fault of the defender
or of the ensuing disability. 1 do not think that foreseeability copies into
this. A defender is not liable for a consequence of a kind which is not
40 foreseeable. But it docs not follow that he is liable for every consequence
which a reasonable man could foresee. What can be foreseen depends
almost entirely on the facts of the case, and it is often easy to foresee
unreasonable conduct or some other novus actus interveniens as being
quite likely.”
.
45
Lord Wilbcrforce’s speech in A n n s, however, was concerned with the
criterion of reasonable foreseeability in torts which have developed from
the general conception expressed by Lord Atkin in Donoghue v
Stevenson [1932] AC 562. In Anns, Lord Wilbcrforce said ([1978] A C at
pp 751-2): "Through the trilogy of cases in this House — Donoghue v!
tevensort [1932] AC 562; Hedley Byrne & Co L td ^ ^ rd ler & 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 ncccssary 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 wrongdoer and the person who has suffered damage there is a
sufficient relationship of proximity or neighbourhood such that, in the
reasonable contemplation of the former, carelessness on his part may be
likely to cause damage to the latter — in which case a prima facie duty
of care arises. Secondly, if the first question is answered affirmatively,
it is ncccssary to consider whether there arc any considerations which
ought to negative, or to reduce or limit the scope of the duty or the class
of person to whom it is owed or the damages to which a breach of it may
give rise: see Dorset Yacht case [1970] AC 1004, per Lord Reid at
p 1027. Examples of this arc Hedley Byrne's case [1964] AC 465 where
the class of potential relied upon the correctness of statements made,
and Weller & Co v Foot and Mouth Disease Research Institute [1966] 1
OB 569; and (I cite these merely as illustrations, without discussion)
cases about ‘economic loss’ where, a duty having been held to exist, the
nature of the recoverable damages was limited: see SCM (United
Kingdom) Ltd v W J Whittall & Son Ltd [1971] 1 QB 337 and Spartan
Steel <£ Alloys L td v Martin & Co (Contractors) Ltd [1973] OB 27.”
The “sufficient relationship of proximity or neighbourhood" to which
his Lordship refers in the first stage of the approach is Lord Atkin’s
well-known neighbour principle, as Lord Devlin explained in Hedley
Byrne ([1964] AC) at p 524: “What Lord Atkin called [[1932] AC 562|
at p 580] a ‘general conception of relations giving rise to a duty of care’
is now often referred to as the principle of proximity. You must take
reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour. In the eyes of the law
your neighbour is a person who is so closely and directly affected by your
act that you ought reasonably to have him in contemplation as being so
affected when you arc directing your mind to the acts or omissions which
are called in question.”
The second stage of the approach is derived from cases all of which,
except for Dorset Yacht, arc cases of economic loss. In Dorset Yacht, in
the passage of Lord Reid’s speech to which Lord Wilbcrforcc refers, his
Lordship distinguished negligence causing economic loss from
negligence causing property damage: “causing economic loss is a
different matter". It is erroneous, of course, to treat all cases of
negligence causing economic loss as a sub-species of a general tort of
negligence the elements of which arc common to all torts involving
negligence. Lord Atkin’s general conception of relations giving rise to a
duty of care has informed the development of various branches of the
law but the elements of the several categories of negligence are not
identical. In truth, as Lord Reid observed, “where negligence is involved
the tendency has been to apply principles analogous to those stated by
Lordf^Lin” in Donoghue v Stevenson (emphasis added). The evolution
of new categories of negligence was explained by Lord Deylin in H edley
Byrne (at pp 524-5): “What Lord Atkin did was to use his general
conception to open up a category of eases giving rise to a special duty.
5 It was already dear that the law rccogniscd the cxistcncc of such a duty
in the category of articles that were dangerous in themselves. What
Donoghue v Stevenson [1932] AC 562 did may be described either as the
widening of an old category or as the creation of a new and similar one.
The general conccption can be used to producc other categories in the
10 same way. An existing category grows as instances of its application
multiply until the time comcs when the ccll divides."
As new categories of negligence grow out of the general conception,
they arc found to contain one or more different elements from other
categories grown from the common stock. When negligent
15 misrepresentation causing economic loss was rccognizcd as a category o f ,
negligence in Hedley Byrne, reasonable foreseeability of economic loss
was held not to be enough to establish a duty of care: a further special
relationship between the parties was required. When the category of
negligent conduct causing economic loss was rccognizcd in Caltex Oil
20 (Australia) Pty Ltd v The Dredge "Willemstad" (1976) 11 ALR 227; 136
CLR 529, reasonable foreseeability that a particular person would be
likely to suffer economic loss as a consequcncc of negligence wasi
required. What will sufficc to establish a duty of carc in one category of«
negligence is not necessarily enough in another. Lord Atkin’s general
25 conccption of relations giving rise to a duty of care, the neighbourprinciple, cannot be taken as a universal statement of the criterion of
duties of carc in the several categories of ncgligencc where different
kinds of damage arc in issue. In Dorset Yacht, Lord Diplock, after citing;
the well-known passage from Lord Atkin’s spccch, cautioned againsti
30 treating Lord Atkin’s general conccption as a universal proposition
([1970] AC at p 1060):—
“Used as a guide to characteristics which will be found to exist in*
conduct and relationships which give rise to a legal duty of carc this
aphorism marks a milestone in the modern development of the law of
35 negligence. But misused as a universal it is manifestly false';
“The branch of English law which deals with civil wrongs abounds
with instances of acts and, more particularly, of omissions which give rise
to no legal liability in the doer or omitter for loss or damage sustained
by others as a consequence of the act or omission, however reasonably
40 or probably that loss or damage might have been anticipated.”
In Anns, Lord Wilberforcc’s approach “in two stages” to the
establishing of a duty of carc takes, as its first stage, Lord Atkin’s general
conccption; the second stage takes those further elements which are
appropriate to the particular category of ncgligcnce and which confine
45 the duty of carc within narrower limits than those which would be
defined by an unqualified application of the neighbour principle. And
so, in Shirt’s case, where an ambiguous sign misled a water skier about,
the depth of water in part of a lake and the water skier suffered personal'
injury by falling in the shallows. Mason J thought it appropriate to adopts
ihe two stage approach, saying (29 ALR at p 218; 146^ P R at p 44):
“According to Lord Atkin’s statement of principle in Donoghue v
Stevenson [1932] AC 562 at 580, as it has been refined in later decisions,
prima facie a duty of care arises on the part of a defendant to a plaintiff
when there exists betweenithem a sufficient relationship of proximity,
such that a reasonable man in the defendant’s position would foresee
that carelessness on his part may be likely to cause damage to the
plaintiff (Home Office v Dorset Yacht Co Ltd [1970] AC 1004 at 1027,
1034, 1054, 1060; Anns v Merton London Borough Council [1978] AC
728 at 751-2). It has not been suggested that there were present in the
instant case any considerations which negated the duty.”
A similar approach to the general conception as the first of two stages
was taken by Lord Roskill in Junior Books Ltd v Veitchi Co Ltd [1983]
1 AC 520 at 545-7. If proximity is understood as no more than the
neighbour principle, the question in the present case is whether there are
any considerations which, on moving to Lord Wilberforcc s second
stage, negate the duty of care which would arise by application of the
criterion of reasonable foreseeability. There are none. In Caltex Oil
Stephen J said (11 ALR at p 259; 136 CLR at p 572): “Reasonable
foreseeability on its own, while no doubt providing adequate limitation
of liability in the general run of duty situations in negligence, has been
recognized as inadequate in certain specific duty situations; for instance
in nervous shock the recognized test, that of reasonable foreseeability of
injury by nervous shock, introduces a further control in that the precise
kind of damage suffered must have been foreseeable.” Apart from the
elements of nervous shock, which distinguish this category of negligence
from other categories of negligence causing personal injury, no special
element restricting the cause of action has been hitherto admitted in this
court. The limitations suggested by Lord Wilberforcc in McLoughlin v
O'Brian, supra, in my respectful opinion, arc appropriately taken into
account by the general principles of causation and reasonable
foreseeability. There are no other elements which might preclude a duty
of care arising where the kind of damage caused by a defendant s
conduct is shock-induced psychiatric illness and that kind of damage is
reasonably foreseeable. I would regard the contrary view expressed in
Pratt & Goldsmith v Pratt [1975] VR 378 at 386, as erroneous.
It remains to apply these principles to the facts as found in the present
case. Mrs Coffey’s psychiatric illness was causcd by seeing her husband
in the Royal Adelaide Hospital some time after the accident, not by
seeing him on the roadway immediately after the accident. No special
principle governs the cases where the relevant phenomenon is set in a
hospital rather than on a roadway, nor is there a special principle
applicable when the relevant phenomenon is perceived hours rather than
minutes after the careless act or omission produced its first
consequences. Allan’s movement by ambulance to the hospital and the
lapse of time before Mrs Coffey saw him might have provided an
opportunity for other people to intervene so that his appearance in the
hospital would not fairly be' regarded as the result of the defendant s
carelessness or the reasonably foreseeable result of it. But Allan was
taken fr o d fc e scene of the accident directly to a hospital for treatment
of his injuries, Mrs Coffey was quickly summoned to him there, and
nothing untoward was shown to have intervened to exacerbate Allan s
distressing appearance. In those circumstances, there is no reason why
the resolution of the case should be governed by considerations different
from those which would apply if she had been summoned to the scene
of the accident. Liability cannot rationally be made to depend upon a
race between a spouse and an ambulance; it must depend upon what the
spouse perceives, its effect upon her, and whether her perceptions an^
their effect arc the reasonably foreseeable results of the defendant s
careless conduct. It was certain that Allan would have to be taken to
hospital and treated there for his injuries. His treatment is not shown tp
be out of the ordinary for the injuries he sustained. Mrs Coffey s
presence at the hospital was the result of the defendant’s inflictionot
injuries on her husband. It was reasonably foreseeable that Mrs Coffey
would be at the hospital to observe Allan and what happened to him that
night On the assumption that Mrs Coffey was of a normal standard of
susceptibility (“of normal fortitude", as Bollen J put it), was it
reasonably foreseeable that what she might see and hear that night
would be such an affront or insult to her mind that she might suffer a
psychiatric illness? Bollen J answered that question in Mrs Coffey s
favour. It is a question of fact and, although an affirmative answer to that
question was not beyond argument, the answer given by Bollen J makes
good sense and I do not think it should be disturbed.
I
T h e appeal should be dism issed.
Deane J. It is an incident of human society that action or inaction by
one person may have a direct or indirect effect on another. Unless there
be more involved than mere cause and effect, however, the conjmon law
remains indifferent. A person’s action or inaction may be a cause ot
another’s injury or discomfort; unless there be some particular
relationship, personal or proprietary right or other added element, the
common law imposes no liability to make payment of compensation or
other damages. In a society where material success, commonly measured
in comparative terms, is accepted as a legitimate objective andi the
preservation of individual freedom of action or speech is acknowledged
as a legitimate goal, the law must be so restrained if it is to be attuned
to social standards and reality. IX material success were to be
accompanied by legal liability to all who have suffered emotional chagrin
or physical or material damage as a consequence or along the way, it
would be largely self-destructive. In that regard, the common law has
neither recognized fault in the conduct of the feasting Dives nor
embraced the embarrassing moral perception that he who has failed to
f e e d
t h e
man d y i n g from hunger has truly killed him.
The closest that the common law has come to providing a general
remedy in respect of injurious conduct is the modern law of negligence
with its hypothetical “neighbour” and associated test of reasonable
foreseeability”. The common law duty to a “neighbour’ has, however,
scant in common with its New Testament equivalent; both pnest and
/Ocvite ensured performance of any common law d l ^ o f care to the
stricken traveller when, by crossing to the other side of the road, they
avoided any risk of throwing up dust in his wounds (cf Dorset Yacht Co
Ltd v Home Office [1970] AC 1004 at 1060). In Donoghue v Stevenson
[1932] AC 562 at 580, the common law duty of carc was defined, for the
purposes of the law of negligence, as the duty to take reasonable carc
when it can be reasonably foreseen that one’s “acts or omissions” arc
likely to injure one’s “neighbour”. A “neighbour” was identified as
being, in the view of the common law, a person who is “so closely and
directly affcctcd by my act that I ought reasonably to have [him or her]
in contemplation as being so affcctcd when I am directing my mind to the
acts or omissions which are called in question” (at p 580). The
significance of the requirement contained in the words “so closely and
directly affected . . . that” is that they constitute a control upon the test
of reasonable foreseeability of injury. Lord Atkin was at pains to stress
(at pp 580-2) that the formulation of a duty of carc merely in the general
terms of reasonable foreseeability would be too wide unless it were
“limited by the notion of proximity” which was embodied in the
restriction of the duty of care to one’s “neighbour”. He traced that
notion of proximity to the judgments of Lord Esher MR and
A L Smith LJ in Le Lievre v Gould [1893] 1 QB 491 at 497, 504, but
added an important explanation or qualification. The references to
“proximity” in Le Lievre v Gould had been couched in terms of physical
proximity. Lord Atkin pointed out that physical proximity was but one
facet of the proximity requirement that constituted an overriding control
of the test of reasonable foreseeability in the law of negligence: the
notion of proximity should “be not confined to mere physical proximity,
but be used, as I think it was intended, to extend to such close and direct
relations that the act complained of directly affects a person” (at p 581
and see per Lord Macmillan, at p 619). ■
>
>. The notions of reasonable foreseeability and of proximity of
relationship which were enunciated in Lord Atkin’s speech in Donoghue
v Stevenson are related. The fact that an act of one person can be
reasonably foreseen as “likely to injure” another is an indication, and,
as will be seen, sometimes an adequate indication, that the requirement
of “proximity” is satisfied. At the same time, the overall proximity of the
relationship between the person or property of the plaintiff and that of
the defendant or between the allegedly negligent act and its effect may
be relevant to the question whether injury to the plaintiff was
reasonably foreseeable. Lord Atkin's “restricted reply” to the common
lawyer’s question “who is my neighbour?” was not, however, couched in
the unqualified terms of reasonable foreseeability which would, in the
context, have served merely to provide a diversionary circuity of
reasoning.
The
“neighbour"
requirement
(“this
ncccssary
qualification”: ([1932] AC) at p 582) was a substantive and independent
one which was deliberately and expressly introduced to limit or control
the test of reasonable foreseeability. As explained and expanded in
terms of “proximity" (“the relation being so elose that the duty arises”
and “io close as to create a duty”: at pp 582 and 599, emphasis added),
j
it differ^^ti nature from the test of reasonable foreseeability in that it
involved both an evaluation of the closencss of the relationship and a
judgment of the legal consequcnccs of that evaluation. The proposition
to be found in the writings of some eminent jurists that Lord Atkin’s
5 “neighbour” or “proximity" requirement was an exercisc in tautology
(see, eg Professor Stone: The Province and Function o f Law (1946),
pp 181-2; Professor Morison: “A Re-examination of the Duty of Carc” ,
Modern Law R eview, vol 11 (1948) 9, at pp 12-13 and 33, and Professor
Winfield: Select Legal Essays (1952), pp 70ff and cf per Windeyer J,
10 Hargrave v Goldman (1963) 110 CLR 40 at 63 and per Mahoney JA,
Minister fo r Environmental Planning v San Sebastian Pty Ltd [1983] 2
NSWLR 268 at 326-7) is, as Professor Morison points out, based on the
premise that Lord Atkin’s overriding requirement of proximity involved
no more than the notion of reasonable foreseeability. As I have
15 indicated, that is a premise which I am quite unable to accept.
The more than 50 years which have passed since the decision in
Donoghue v Stevenson have been marked by an apparent general
ascendancy of the test of reasonable foreseeability in the law of
negligence, at least in cases involving physical damage to person or
20 property. Other restraints and requirements have tended to be eclipsed
or overshadowed. Not without some disagreement (see, eg Caterson v
Commissioner o f Railways (1973) 128 CLR 99 at 101-2), the requirement
that it be reasonably foreseeable that injury was “likely” has been
discarded and reasonable foreseeability of a mere (but “real”) risk of
25 ' injury to another, regardless of its likelihood, has been accepted as the
appropriate foreseeability lest (see C Czarnikow Ltd v Koufos [1969] 1
AC 350 at 385-6, 389; The Wagon Mound (No 2) [1967] 1 AC 617 at
642-3). “Consequently, when we speak of a risk of injuryi<as being
‘foreseeable’ we arc not making any statement as to the probability or
3 0 ” improbability of its occurrence, save that we arc implicitly asserting that
the risk is not one that is far-fetched or fanciful” (per Mason J, Wyong
Shire Council v Shirt (1980) 29 ALR 217 at 221; 146 CLR 40 at 47).
Reasonable foreseeability has also displaced “directness” as the
“effective test” for determining questions of the extent of recoverable
35 damage (The Wagon Mound (No 1) [1961] AC 388 at 426; Mount Isa
Mines Ltd v Pusey (1970) 125 CLR 383 at 397). In the context of the
conclusion in The Wagon Mound (No I) that the damage was not
reasonably foreseeable, more prominence was understandably given in
their Lordships’ reasons to the restrictive effect of the decision, namely,
40 the imposition of the requirement that compensation be limited to
damage which was reasonably foreseeable. The expansive effect of the
decision was, however, of at least equal importance from the viewpoint
of principle in that it removed the requirement of “directness” as an
independent overriding control of recoverable damages for foreseeable
45' injury. Overall, one cannot but be conscious of the emergence of a
common, although mistaken, tendency to see the test of reasonable
foreseeability as a panacca and, what is of more importance for present
purposes, to refer to it as if it were, from the viewpoint of principle, the
sole determinant of the existence of a duty of carc.
AUSTRALIAN LAW REPORTS
HC of A
/ f jiven the circumstanccs of a particular ease, the question whether a
common law duty of carc1exists is a question of law. It is inevitable that,
in cases falling within some closely settled areas of the law of ncgligcnce
such as eases involving ordinary physical injury to an employee in an
accident at his place of work or to one user of a public road involved in
a collision with another, it will have been established in previous cases
that the relationship between the parties necessarily possesses the
requisite degree of proximity. In at least most other cases involving
ordinary physical injury to a person or his property as a consequence of
the direct impact of an act of the other party, it will have been
established in previous cases that if the risk of injury was reasonably
foreseeable, any proximity requirement is satisfied (cf per Jacobs J,
Caltcx Oil (Australia) Ply Ltd v The Dredge "Willemstad” (1976) 11
ALR 227 at 277-8; 136 CLR 529 at 597). The result has been that, in
cases involving direct physical damage to person or property, separate
reference to any notion of proximity has come to be commonly regarded
as either unnecessary or as being appropriately formulated in terms of
being satisfied if the physical injury sustained was of a kind which was
reasonably foreseeable. This approach is unobjectionable provided that
one docs not lose sight of the fact that reasonable foreseeability of injury
was propounded by Lord Atkin in Donoghue v Stevenson as
constituting, on its own, no more than an incomplete determinant of a
common law duty of care in the sense that such a duty of care will not
be owed to a particular plaintiff unless the requirement of proximity in
the relationship between plaintiff and defendant with respect to the
relevant act and injury is satisfied. The fact that, as a practical matter,
any separate requirement of proximity is commonly disregarded in cases
where no issue is raised about it does not establish that it has been
discarded as a matter of principle. All that that fact establishes is that,
in such cases, the requirement of proximity is not a subject of dispute.
Even in such cases, however, one tends to find a deliberate qualification
in more carefully worded judgments of any equation between reasonable
foreseeability and a duty of care. Thus, in Wyong Shire Council v Shirt
(ALR at p 218; CLR at p 44), Mason J, in a judgment with which
Stephen and Aickin JJ expressed full agreement, described the duty of
care which “arises on the part of a defendant to a plaintiff’ when the test
of reasonable foreseeability is satisfied as but a prima facie one. It
would seem clear enough that his Honour’s description of the “duty of
carc” as “prima facie” indicated acceptance of the existence of
requirements or limitations whose operation may preclude the existence
of a duty of care (see his Honour’s judgment in The Dredge “Willemstad"
ease (136 CLR) at pp 590-3 and that of Stephen J at pp 573-6). What can
properly be deduced from Mason J’s remarks is that, to adapt and
qualify words used by Lord Reid in the Dorset Yacht Co case (at p 1027),
the time has come when an equation between reasonable foreseeability
of injury and a duty of care under the law of negligence can be accepted
in cases involving ordinary physical injury unless there be some
justification or valid explanation for its exclusion”. That approach
corresponds generally with that adopted by Lord Wilberforce in the
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oft-cite^assage from his judgment in Anns v Merton London Borough
Council {1978] AC 728 at 751-2. Upon analysis, it reflects airacceptance,
rather than a denial, of the existence of overriding limitations upon the
test of reasonable foreseeability.
It is not and never has been the common law that the reasonable
foreseeability of risk of injury to another automatically means that there
is a duty to take reasonable care with regard to that risk of injury (cf per
du Parcq U , Deyong vShenburn [1946] KB 227 at 233; Edwards v West
Herts Group Hospital Management Committee (1957] 1 WLR 415 at 420,
422’ and per Lord Reid, McKew v Holland and Hannen and Cubitts
(Scotland) Ltd (1969] 3 All ER 1621 at 1623). Reasonable foreseeability
on its own indicates no more than that such a duty of care will exist if,
and to the extent that, it is not precluded or modified by some applicable
overriding requirement or limitation. It is to do little more than to state
a truism to say that the essential function of such requirements or
limitations is to confine the existence of a duty to take reasonable care
to avoid reasonably foreseeable injury to the circumstanccs or classes of
case in which it is the policy of the law to admit it. Such overriding
requirements or limitations shape the frontiers of the common law of
negligence. They may apply to preclude altogether the existence of a
duty of care in particular circumstanccs (see, eg Rondel v Worsley 11969]
1 AC 191) or to limit the contcnt of any duty of care or the class of
persons to whom it is owed (see, eg Hedley Byrne & Co Ltd v Heller and
Partners Ltd [1964] AC 465) or the type of injury to which it extends
(see, eg Best v Samuel Fox A Co Ltd [1952] AC 716 and, generally, the
discussions in the judgments in The Dredge "Willemstad” case and L
Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 36
ALR 385; 55 A U R 713).
. .
One searches in vain in the cases for an authoritative,! statement
abrogating Lord Atkin’s requirement of “proximity” of relationship. To
the contrary, one finds, in cases in the comparatively uncharted areas of
the law of ncgligcncc, repeated reference to proximity as a touchstone
for determining the existence and content of any common law duty of
care to avoid reasonably foreseeable injury of the type sustained (see, eg
The Dredge "Willemstad" (136 CLR) at pp 574-5 and 592-3; Hedley
Byrne v Heller, at pp 524-5; Dorset Yacht Co Ltd v H om e Office, M
pp 1054-5; Scott Group Ltd v McFarlane [1978] 1 NZLR 553 at 574, 584,
Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520 at 533, 539ff and
545-7). The requirement of a relationship of “proximity” in that broad
sense should, in my view, be acccptcd as a continuing general limitation
or control of the test of reasonable foreseeability as the determinant of
a duty of care. The outcomc of the present appeal largely turns upon the
extent to which that requirement operates to preclude a common law
duty of care arising in cases involving injury in the form of nervous shock
sustained by a person by reason of actual or apprehended physical injury
to another. That question must be approachcd in the contcxt of what is
involved in the notion of a relationship of “proximity”.
w h ile use of the term “proximity” has been properly criticized as “apt
to mislead” (see Grant v Australian Knitting Mills Ltd [1936] A C 85 at
), it has been too widespread in judgments of au ^ B ity in the law of
negligence for it to be practicable to avoid it a lto ^ h e r . One must,
however, remain conscious both of the fact that the terms “proximity”
and “relationship of proximity” have been used in such judgments to
convey a variety of different meanings and of the need to distinguish
between: their use to designate no more than a consideration relevant to
whether there was a reasonably foreseeable risk of injury or a breach of
any duty o f care; their use, particularly in modern judgments (see, eg
Anns v Merlon London Borough Council ([1978] AC) at p 751; Wyong
Shire Council v Shirt (29 ALR) at p 218; (146 CLR) at p 44), to refer
merely to the circumstance that there is a reasonable foreseeability of
injury to another; and their use in the broader sense in which Lord Atkin
used them, namely, as designating a separate and general limitation
upon the test of reasonable foreseeability in the form of relationships
which must exist between plaintiff and defendant before a relevant duty
of care will arise. It is in the last-mentioned sense that the terms are
ordinarily used in this judgment.
Lord Atkin did not seek to identify the precise content of the
requirement of the relationship of “proximity” which he identified as a
limitation upon the test of reasonable foreseeability. It was left as a
broad and flexible touchstone of the circumstanccs in which the common
law would admit the existence of a relevant duty of care to avoid
reasonably foreseeable injury to another. It is directed to the
relationship between the parties in so far as it is relevant to the allegedly
negligent act of one person and the resulting injury sustained by the
other. It involves the notion of nearness or closeness and embraces
physical proximity (in the sense of space and time) between the person
or property of the plaintiff and the person or property of the defendant,
circumstantial proximity such as an overriding relationship of employer
and employee or of a professional man and his clicnt and causal
proximity in the sense of the closeness or directness of the relationship
between the particular act or cause of action and the injury sustained (cf
the “signposts or guidelines or relevant considerations” referred to by
Cooke J in Rutherford v Attorney-General [1976] 1 NZLR 403 at 411).
The identity and relative importance of the considerations relevant to an
issue of proximity will obviously vary in different classes of case and the
question whether the relationship is "so” close “that” the common law
should recognize a duty of care in a new area or class of case is, as Lord
Atkin foresaw, likely to be “difficult” of resolution in that it may involve
value judgments on matters of policy and degree.
This does not mean that there is scope for decision in a particular case
by reference to what Jacobs J called (HC Sleigh Ltd v South Australia
(1977) 12 ALR 449 at 472; 136 CLR 475 at 514) “individual predilections
ungovcrned by authority” or that it is a proper or sensible approach to
the requirement of proximity for it to be treated as a question of fact to
be resolved merely by reference to the particular relationship between
a plaintiff and defendant in the circumstances of a particular case. The
requirement of a “relationship of proximity” is a touchstone and a
control of the categories of case in which the common law will admit the
existcflBof a duty of care and, given the general circumstances of a case
in a new or developing area of the law of negligence, .the question
whether the relationship between plaintiff and defendant with reference
to the allegedly negligent act possessed the requisite degree of proximity
5 is a question of law to be resolved by the processes of legal reasoning by
induction and deduction. The identification of the content of the criteria
or rules which reflect that requirement in developing areas of the law
should not, however, be either ostensibly or actually divorced from the
considerations of public policy which underlie and enlighten it. “What
10 Lord Atkin did was to use his general conccption to open up a category
of cases giving rise to a special duty. . . . The general conccption can be
used to producc other categories in the same way. An existing category
grows as instances of its application multiply until the time comes when
the cell divides” (per Lord Devlin, Hedley Byrne v Heller ([1964] AC)
15 at pp 524-5 and see, eg per Nicld J, Sharpe v E T Sweeting & Son Ltd
[1963] 1 WLR 665 at 670-6).
The general framework of common law ncgligcncc was expounded in
Donoghue v Stevenson [1932] AC 562, in the context of a case involving
physical injury in the form of personal illness (gastro-enteritis
20 aggravated by shock). As explained by Lord Atkin, the components of
an action in ncgligcncc in such a case are a duty of carc, determined by
rcfcrcncc to the related tests of reasonable foreseeability and proximity,
breach of that duty of carc and damage. In the context of subsequent
development and refinement, those components can be stateq, in a form
25 appropriate to the circumstanccs of the present case, as being: (i) a
relevant duty owed by the defendant to the plaintiff to take reasonable
care resulting from the combination of: (a) reasonable foreseeability of
a real risk that injury of the kind sustained by the plaintiff would be
sustained either by the plaintiff, as an identified individual, or by a
30 member of a class which included the plaintiff, (b) existence of the
requisite element of proximity in the relationship between the parties
with respect to the relevant act or omission and the injury sustained, and
(c) absence of any statutory provision or other common law rule (eg, that
relating to hazards inherent in a joint illegal enterprise) which operates
35 to preclude the implication of such a duty of carc to the plaintiff in the
circumstanccs of the case; (ii) a breach of that duty of carc in that the
doing of the relevant act or the doing of it in the manner in which it was
done was, in the light of all relevant factors, inconsistent with what a
reasonable man would do by way of response to the foreseeable risk (see
40 Wyong Shire Council v Shirt (ALR) at p 221; (CLR) at pp 47-8; The
Wagon Mound (No 2) ([1967] AC) at pp 641-3 and Schiller v Mulgrave
Shire Council (1972) 129 CLR 116 at 131-2); and (iii) injury (of a kind
which the law recognizes as sounding in damages) which was causcd by
the defendant’s carelessness and which was within the limits of
45 reasonable foreseeability.
This generalized formulation of the ingredients of a cause of action in
negligence is obviously a superficial one and fails to take account of
serious difficulties and uncertainties such as those that arc liable to arise
in the case of a mere omission or in a ease involving multiple or
s u f fe re t^ f c tis e q u e n t upon her husband being involved in a motor vehicle
'"'successive causes of injury or intervening acts (see, < ^ P e discussion in
Hoffmueller v Commonwealth (1981) 54 FLR 48 at 60ff). In confining it
to cases involving physical injury, I have left to another day the question
whether all actions in negligence, including actions involving purely
economic injury (cf Junior Books Ltd; The Dredge “Willemstad case
and L Shaddock & Associates Pty Ltd v Parramatta City Council, supra),
can properly be accommodatcd in that or some other framework
structured on the test of reasonable foreseeability (see Johns Penod
Furniture Pty Ltd v Commonwealth Savings Bank (1980) 24 SASR 224
at 228ff). It may be that, in any such comprehensive framework, the
requisite “proximity” of relationship, under that or some more
appropriate name such as the phrase “the requisite duty relationship
which is used on some occasions in this judgment, should be seen as an
anterior general requirement which must be satisfied before any duty of
carc to avoid reasonably foreseeable injury will arise. The above
formulation is, however, adequate for the purposes of the present case
where the carelessness took the form of a positive act, where any
intervening acts were clearly foreseeable as at least likely (cf Dorset
Yacht Co case, at pp 1027ff) and where the injury sustained was injury
of a type which the courts have, after an initial denial, accepted as
sounding in damages.
_
/1000\ n a
In Victorian Railways Commissioners v Coultas (1888) 13 App <~as
222 it was held by the Judicial Committee of the Privy Council that
liability in negligence did not extend to injury consequent upon nervous
or mental shock which was unaccompanied by “actual physical injury .
That decision must, however, be viewed in the context of the limited
knowledge of mental illness in 1888. It was rejected even by
contemporary authority (see, eg per Pallcs CB, Bell v Gr*at£ or‘tern
Railway Co o f Ireland (1890) 26 LR Ir 428 at 439-42; Sir Frederick
Pollock: Law of Torts, 4th ed (1895), PP 46-47;
v
f189712 QB 57 at 60-61; Dulieu v White & Sons [1901] 2 KB 669 at 676-8,
but cf Mitchell v Rochester Ry Co (1896) 45 NE 354) and has not been
good law for many years. As Windeyer J pointed out in Mount Isa Mines
Ltd v Pusey (125 CLR at p 395), it has “been regularly by-passed by
£ u r ^ £ e , also, Storm v Geeves [1965] Tas SR 252 at 254-6). It is now
the settled law in this country that there is a distinction, for the purposes
of the law of negligence, between mere grief or sorrow which does not
sound in damages and forms of psychoneurosis and mental illness (which
lawyers have imprecisely termed “nervous shock”) which may (see, eg
Bunyan v Jordan (1937) 57 CLR 1 at 16; Chester v Waverley Corporation
(1939) 62 CLR 1 at 8-9,11, 13 and 21 and, generally, Mount Isa Mines
Ltd v Pusey). Any doubt in that regard would, in any event, have been
removed for the purposes of the present case by the provisions of s 28(1)
of the Wrongs Act 1936-1975 (SA) which provides that in any action for
injury to the person, the plaintiff shall not be debarred from recovering
damages merely because the injury complained of arose wholly or in part
from mental or nervous shock.
„ .
• In issue in the present appeal is the liability of the appellant, Mr
'Jaensch, to the respondent, Mrs Coffey, for psychiatric injury which she
accidcnUfcrs Coffey obtained an order for damages from the learned
trial judge (Bollcn J) in the Supreme Court of South Australia. That
order was confirmed on appeal to the Full Court ((1983) 33 SASR 254).
5 The present appeal is from the judgment and orders of the Full Court in
that regard.
. .
The accident in which Mrs Coffey’s husband was injured occurred in
the early evening and involved a collision between a car being driven by
Mr Jacnsch and a motorcycle which Mr Coffey, who was a traffic
10 constable on duty, was riding. It is common ground that the accident was
causcd by the appellant’s negligence. Mr Coffey was severely injured.
Mrs Coffey did not attend the scene of the accident but was taken,
shortly afterwards, to the hospital where she saw her husband in obvious
pain both before and between no less than three occasions when he was
15 taken to the operating theatre that night. Among the injuries sustained
by Mr Coffey was a tear in the liver. When the respondent left the
hospital late on the night of the accident, it was with the knowledge that
her husband was "pretty bad". The following morning, at 5.30 am, the
respondent was informed by telephone that her husband was in intensive
20 carc. At 8.30 am she was advised that he had “had a change for the
worse” and requested to “get up to the hospital as quickly as^possible .
Mr Coffey had acute kidney problems as well as the damaged liver. rne
respondent stayed at the hospital all day not knowing whether her
husband would survive. Mr Coffey’s condition did, however, gradually
25 improve over the following weeks. He was discharged frorti hospital
between six and seven weeks after the accident.
. . .
For a few days Mrs Coffey coped well. Some six days after the
accident however, the first symptoms of an anxiety depressant state
began to emerge. Serious psychiatric illness, involving admission on one
30 occasion to a psychiatric ward at Royal Adelaide Hospital, followed.
Mrs Coffey’s relationship with her husband and their four month s old
child was affcctcd. More than a year later, she experienced internal pain
and uterine bleeding which eventually led to a hysterectomy. This was
diagnosed as being causcd by stress and anxiety. The appellant does not
35 contest the learned trial judge’s finding that the things seen and heard by
Mrs Coffey on the day of the accident, and on the next day, causcd her
psychiatric illness and the later internal pain and bleeding.
The judgments in the courts below contain helpful analyses of the
authorities relating to the question of liability in negligence for
40 shock. Both the learned trial judge and the members of the Full
approached the case in accordance with the ordinary principles of the
law of ncgligcncc and recognized that the primary question for the tnal
judge was to be posed in terms of reasonable foreseeability. They
reached the conclusion that it was reasonably foreseeable by someone in
45 the appellant’s situation that the wife of a person seriously mjured in an
accident caused by his negligent driving might be called to the hospital
and might suffer injury by nervous shock. They held that Mrs Coffey was
prima facie entitled to a verdict against the appellant and that there was
nothing in either principle or the particular facts which altered that
prima facic position. As they frankly acknowlcdgc^Rwcvcr, the path
which led them to their conclusion was obscured by the shadows cast by
a number of previous decisions including the decision of this court in
Chester v Waverlcy Corporation (1939) 62 CLR 1.
In Chester's case, the court held, by majority, that the respondent
local council was not liable in negligence for nervous shock suffered by
a mother as a result of seeing the body of her seven year old son being
recovered from a water-filled trench which the council had excavated in
a public street and negligently failed to fence or otherwise render safe.
The case was decided after cases such as Hambrook v Stokes Bros [1925]
1 KB 141 and Owens v Liverpool Corporation [1939] 1 KB 394 had
recognized that psychiatric illness resulting from shock was an injury
capable of sounding in damages for the purposes of the law of
ncgligcncc. The decision in Chester was expressed to turn on the
question of reasonable foreseeability. It was held by the majority
(Latham CJ, Rich and Starke JJ) that, on the facts of the case, a finding
was not open that harm to the plaintiff of the kind suffered was
reasonably foreseeable: “it cannot be said that such damage (that is,
nervous shock) resulting from a mother seeing the dead body of her child
should be regarded as ‘within the reasonable anticipation of the
defendant’. ‘A reasonable person would not foresee’ that the ncgligcncc
of the defendant towards the child would ‘so affect’ a mother” (per
Latham CJ (at p 10) using phraseology taken from Donoghue v
Stevenson and Re Polemis). Examination of the majority judgments
discloses, however, that Latham CJ and Rich J were openly influenced
in their decision by policy considerations, particularly a “floodgates”
fear of countless actions: see at pp 7-8 (Latham CJ) and p 11 (Rich J:
“the law must fix a point where its remedies stop short of complete
reparation for the world at large, which might appear just to a logician
who neglected all the social consequences which ought to be weighed on
the other side”). While such considerations may well be relevant to an
overriding proximity requirement, they have little bearing on the
question whether a risk of injury was reasonably foreseeable. In the only
dissenting judgment, Evatt J rejected the proposition that it was not
reasonably foreseeable that a mother seeing the body of her drowned
child taken from a water-filled trench might suffer injury in the form of
nervous shock. His Honour adverted, however, to considerations of
public policy (“the risk of too wide an extension of liability in cases
where proof is beset with special difficulties": at p 43) and acccptcd (at
p 44) what can accurately be described as an operative proximity
limitation upon the ordinary test of reasonable foreseeability. The
relevant duty of carc to avoid action which might cause injury by way of
nervous shock to those not subjected to risk of direct physical injury was,
his Honour said, owed only to those already present at or in the
immediate vicinity of the sccne of the actual or apprehended casualty
and those “who will be brought to the scene for the purpose either of
preventing the casualty altogether, or of minimizing its injurious
consequences, or in the course of a search to discover and rescue or aid
any person who is feared on reasonable grounds to have been injured in
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the cd ^ ^ ty ” (emphasis added). In other words, the relevant duty of
carc was seen by Evatt J as being owed only to those who are already in
the vicinity of the accident or who arc brought, and could reasonably
have been foreseen as being likely to be brought, to the scene of the
accidcnt to render comfort, aid or assistance.
The judgments of the majority in Chester’s case have not worn well
with time. The proposition upon which those judgments is based is no
longer, if it ever was, acceptable. It is simply out of accord with medical
knowledge and human experience to deny that it is reasonably
foreseeable that the shock suffered by a mother on seeing the body of
her infant child, whom she was seeking, raised from the bottom of a
water-filled trench might well be such as to cause psychoneurosis or
mental illness. It must now be acccptcd that the conclusion o f Evatt J is,
on the facts in Chester, plainly to be preferred to thal of the majority.
Even if Evatt J’s judgment is acccptcd in its entirety, however, it affords
little comfort to Mrs Coffey in the present case. Evatt J limited the
relevant duty of carc to a duty owed to those who were cifher in the
vicinity of the accidcnt or who subsequently came to the sccne of the
accidcnt. Mrs Coffey did not go to the sccnc of the accidcnt, As would
be expected in a modem city with fast ambulance services, she went to
the hospital to which her injured husband had been taken. Two
questions arise. The first is: docs the fact that Mrs Coffey was not at the
scene of the actual accident have the consequence that the risk of injury
to her was not reasonably foreseeable? The second is: does the
requirement of proximity or some other operative limitation or control
upon the ordinary test of reasonable foreseeability preclude recovery by
Mrs Coffey of damages for the injury which she sustained?
As has been said, both the learned trial judge and the Full Court of
the Supreme Court held that the risk of injury by nervous shock to Mrs
Coffey was reasonably foreseeable. In my view, that finding was correct.
It is reasonably foreseeable that the negligent driving of a vehicle on a
public road is liable to cause physical injury to another user of the road
and mental illness, in the form of nervous shock, to a loving spouse who
is caught up in the immediate consequences of the accident and the
worry and uncertainty of urgent post-accident medical treatment and
surgery. The fact that a husband or wife goes straight to the hospital
where his or her injured spouse is being, or has been, taken rather than
to the actual sccnc of the accidcnt cannot rationally be said to have the
cffcct that the relevant risk of injury by way of nervous shock can no
longer be regarded as having been reasonably foreseeable. For that
matter, it is easy to envisage circumstanccs, such as an injury to the
spinal cord causcd in a bloodless accidcnt, in which the shock sustained
by involvement in the aftermath of the accidcnt on attendance at the
hospital would render insignificant any shock which was or would have
been sustained by prior attendance at the sccnc of the accidcnt. Indeed,
the present would appear to be such a case in that the more serious
injuries sustained by Mr Coffey, namely the injuries to his liver and
kidneys, were only identified after he had been taken to hospital. If the
scope of the duty of carc of a user of the highway is to be limited as
•«-J I
, '
extending only to other users of the highway
persons who
actually attend the scene of an accident, it must be ^ R o m e basis other
than a genuine or realistic consideration of reasonable foreseeability. It
follows that the answer to the first of the above questions is that the fact
that Mrs Coffey sustained nervous shock at the hospital rather than at
the sccne of the accidcnt cannot rationally be seen as having the
consequence that the risk of such injury to her was not reasonably
foreseeable. I turn to the consideration of the second and more difficult
question, namely, whether the requirement of proximity or some other
overriding limitation operates to confine the class of persons to whom a
duty of care in respect of a reasonably foreseeable risk of injury in the
form of nervous shock is owed.
1
. The changes and developments in views about liability for nervous
shock which are to be found in cases during the last hundred years are,
to a large extent, to be explained by reference to increasing knowledge
of the nature of mental injury and illness caused by shock: the law,
“marching with medicine but in the rear and limping a little” has
“cautious step by cautious step” (per Windeyer J, Mount Isa Mines Ltd
v Pusey (125 CLR) at pp 395 and 403) come to accept that mental illness
occasioned by nervous shock is as much a real injury caused to a person
as conventional bodily damage sustained as a result of physical impact.
While one can find, in some reported cases, support for the view that
reasonable foreseeability of injury by nervous shock necessarily gives
rise to a duty of care (see, eg the judgment of Burbury CJ, Storm v
Geeves ([1965] Tas SR) at pp 262ff), the actual attempts to identify
classes of persons to whom that duty can be owed, which one finds in
such cases, indicate the influence of what have been described as
“subterranean” restraints. In most cases, however, one finds the clear
approach that the duty of care in nervous shock cases is restricted by*
external limitations upon the ordinary test of reasonable foreseeability.)
If the relevant cases had merely involved decisions of courts of first'
instance on questions of fact, one could, perhaps, seek to reconcile the
actual decisions with the view that “the only rational and satisfactory test
is one based on reasonable foreseeability” simpliciter by stressing that
cach decision must be viewed “in the circumstances of the particular
case” (see Professor A L Goodhart, “The Shock Cases and Area of
Risk”: Modern Law Review, vol 16 (1953) 14, pp 23-24). The critical
cases were, however, mainly decisions of appellate courts on a question
of law, namely, the question whether the common law rccognizcd a
relevant duty of care in ascertained circumstances. Unless one is to
mutilate reasonable foreseeability to accord with operative but
concealed considerations of policy, it must be acknowledged that the
dccided cases strongly support the view that the requirement of a
relationship of proximity operates to impose particular criteria which
must be satisfied by a plaintiff before a duty of care in respect of a
reasonably foreseeable injury in the form of nervous shock will be held
to have arisen in his or her favour. The requirement docs not so operate
in cases, such as Donoghue v Stevenson itself, where mental injury o r
illness results from, or is associated with, conventional bodily injury/
i
5
01
10
affcctcd person by actual physical impact or ordinary
physical reaction. The lim.ting effect of the requirement is restricted II
cases involving what may conveniently be called “mere psychiatric
injury , that is to say, psychoneurosis and mental illness which is not the
ad£ " ct of ordinary bodily injury to the person affcctcd
The denial by the Privy Council, in Coultas, of any liability in
negligence for mere psychiatric injury was openly based on policy
considerations; m particular, a “floodgates” fear of a multitude of
imaginary claims. Even on the qualities of sang-froid and fortitude (“the
customary phlegm : Hay or Oourhill v Young [1943] AC 92 at 117)
which some later members of the Bench have thought are to be expected
of ordinary members of the public (see, eg per Pennine LJ
t,
t h a t S t 9!5 3 ^ 1 0 8 4 2 9 at 442)’ U could hard‘y bc seriously suggested
that mental injury was not reasonably foreseeable as being liable to bc
sustained by a person in the predicament of the terrified Mrs Coultas as
she sat trapped in a buggy in the path of the oncoming train. The refusal
of the courts in subsequent cases to follow the Privy Council’s decision
did not however, involve rejection of the view that the effect of
applicable overriding limitations upon the test of reasonable
foreseeability was to limit the existence and scope of any duty of care in
SSh* l n.CIjVOUS sho(*- To thc contrary, one finds clear recognition of
C?SC which is 8 cncrally accepted as having
-r
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25
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30
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PSyChia" iC
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D U l7
Waf th,C firSt ° f 3 trio of Prcg™nt women whose
misfortunes have played a significant part in thc development of liability
for negligently causcd nervous shock. Her statement of claim alleged
that she was behind the bar of her husband’s public-house “when the
dWvJ1
,yu ‘r ,SCn?,nt Su° " ^ “gently drove a pair-horse van as to
drive it into the said public-house ’. It was alleged that Mrs Dulieu in
consequence sustained a severe shock, serious illness and gave'
premature birth to an abnormal child. The case came before the Kings
Bench Division (Kennedy and Phillimore JJ) on a point of pleading in
Z - . nat^ C
a dcmurrf • 11 was held that the statement of claim
disclosed a good cause of action. As had thc Privy Council in Coultas
however, Kennedy J made clear his acceptance of an overriding
proximity requirement, based on considerations of public policy on
rlhvi ! • n.?rVr° 1US shock occasioned by negligence and producing
pnysical injury - The requirement enunciated by Kennedy J ([19011 2
KB at p 675) was that thc shock must arise “from a reasonable fear of
immediate personal injury to oneself”. For his part, Phillimorc J found
it unnecessary to admit thc existence o f any general duty of care He
placed particular rcliancc upon thc fact that Mrs Dulicu had been in “her
where she had a right, and on some occasions a duty, to be” (at
p 685) having already commented that it “may bc (I do not say that it
is so) that a person venturing into thc streets takes his chance df terrors”
^ai p 0o4).
f
In the case involving thc second of thc pregnant women (Hambrook
v Stokes Bros [1925] 1 KB 141), the English Court of Appea| (Bankes
AUSTRALIAN LAW REPORTS
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and Atkin U J ; Sargant LJ dissenting) rejected the limitation
propounded by Kennedy J in Dulieu and accepted that liability in
negligence existed even though the shock had been causcd by fear of
injury to Mrs Hambrook’s children rather than by fear of injury to
herself. The duty of carc was not, however, identified by reference to an
unqualified test of reasonable foreseeability. Overriding proximity
criteria were again recognized as requiring to bc satisfied. Bankcs LJ
confined the decision to “cases where thc facts arc indistinguishable in
principle from the facts of the present case” and where thc shock
resulted from what the person who sustained thc injury “either saw or
realized by her own unaided senses, and not from something which
someone told her, and that the shock was due to a reasonable fear of
immediate personal injury either to herself or to her children” (at
p 152). Atkin LJ envisaged the relevant duty of care as being restricted
to one who was in “sight or sound of thc accidcnt” (at p 159).
The third of the unfortunate trio was Mrs Bourhill. She is doomed to
cclebrity in thc pages of the Law Reports, in language thought
acceptable in another era, as thc pregnant “fishwife . Her action failed
because it was held by the House of Lords (Sc) that the injury in thc form
of shock which she sustained was not, as a matter of law, within the limits
of what was reasonably foreseeable. Thc circumstances of the case were
that Mrs Bourhill was in the process of being laden with her fish basket
within some 15 metres of the point of impact of a fatal collision and that,
according to her evidence which had apparently been accepted by the
Lord Ordinary in Scotland, the effect of thc sudden noise of the crash
was that she was reduced to “a pack of nerves” and did not know
whether she was “going to get it or not”. The case was, however,
conducted in the House of Lords ([1943] AC at p 97) on thc basis that
Mrs Bourhill’s injury in the form of nervous shock had not resulted from
any fear of physical injury to herself. Be that as it may, examination of
the speeches in Bourhill v Young discloses thc continued acceptance of
external limitations upon the ordinary test of reasonable foreseeability.
In that regard, three things should be mentioned: (i) the judgments of
a majority of their Lordships confirmed the rejection in Hambrook v
Stokes Bros of any rigid overriding rule restricting liability in ncgligcncc
for pure nervous shock to shock arising from fear for one’s own safety
(see at pp 99,111 and 118 but cf at pp 103, 105); (ii) one finds in thc
judgments an implicit (explicit in thc ease of Lord Porter, at p 119)
acccptance 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 bc satisfied unless injury in that
particular fo rm , as distinct from personal injury generally (cf per
Atkin LJ, Hambrook v Stokes Bros, at pp 157-8 and per Singleton LJ,
King v Phillips, at p 437), was reasonably foreseeable (see King v
Phillips, at p 441; The Wagon Mound (No I), at p 426; Mount Isa Mines
Ltd v Pusey, at p 402); and (iii) thc judgments support the view that, at
least in the case of mere nervous shock sustained as a result of an
accident on the highway, there is an operative proximity requirement
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restricting any relevant duty of care to a duty to persons within the area
within which physical injury might have been sustained: “persons on the
highway or in premises adjoining the highway” (per Lord Russell of
Killowcn (at p 102) and Lord MacMillan (at p 104) both quoting Lord
Jamieson in the Scottish Court of Session [1941] SC 395 at 429; and see
also per Lord Thankerton and per Lord Porter at pp 98-9 and p 117
respectively). Upon analysis, there is a degree of tension between (ii)
and (iii) in that, if the relevant foreseeability requirement in a case
involving mere psychiatric injury is a requirement of reasonable
foreseeability of injury in that form, it is somewhat difficult to see any
rational basis for a proximity requirement limiting liability for such
injury to liability to those within the area of possible physical injury in
thc conventional sense. To thc contrary, an inflexible overriding
limitation in that particular form would plainly bc liable to lead to results
that do not, at least in a contemporary context, lie well either with the
ordinary processes of legal reasoning or with common sense. It seems to
me, with due respect, that that is well illustrated by thc case of King v
Phillips.
In King v Phillips [1953] 1 QB 429, thc English Court of Appeal
upheld a finding of thc trial judge (McNair J) that a taxicab driver who
had negligently backed his vehicle into a small boy riding his tricycle was
not liable in negligence to the child’s mother who, on hearing him
scream, had suffered injury in the form of nervous shock when she
looked out thc window of her home and saw thc tricycle under the cab.
Thc basis of the decision of both McNair J and a majority (Singleton and
Hodson L JJ) of thc Court of Appeal was thc existence of a proximity
requirement which operated to preclude recovery by reason of the fact
that the mother’s observations had been from the window of her home
which was some six houses up a street from the intersection where the
accidcnt occurred where she was not within the area of potential physical
danger. The rationale of a rule which determines thc entitlement of a
mother to recover damages for nervous shock, sustained as a result of
her observation from the window of her home of an accident involving
the possible death of her child according to whether she was herself
within thc area of potential physical danger remains unexplained in the
judgments. Thc judgment of Denning IJ demonstrates that an
acceptable explanation of thc denial of liability in thc particular case is
not to bc found by rcfcrcncc to thc ordinary test of reasonable
foreseeability sim pliciter. His Lordship, in an effort to accommodate
that test to what had been said and dccidcd in Hambrook v Stokes Bros
and Bourhill v Young, was driven to conclude that it was reasonably
foreseeable that a mother would suffer nervous shock on seeing a
runaway lorry enter a street in which she thought her children would be,
whereas it was not foreseeable that a mother would suffer nervous shock
when, on hearing her small boy scrcam, she looked out the window of
her home and saw his tricycle under a car and was unable to see any sign
of him: the basis of thc perceived distinction was, a|parently, the
difference between “the terrifying descent of the runaway lorry” and
“the slow backing of the taxicab" (at p 442).
being so, the function performed by any rule confin^^the existence of
a duty of care to avoid such injury to the case where there has been some
brcach of a duty of care owed to some other person to avoid ordinary
bodily injury is that of an overriding control of thc test of reasonable
foreseeability.
.
The limitations upon the ordinary test of reasonable foreseeability in
eases 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. The other is that, on the present state of thc law, such a duty
of care will not exist unless thc reasonably foreseeable psychiatric injury
was sustained as a result of the death, injury or peril of someone other
than the person whose carelessness is alleged to have caused the injury;
there is no need to consider here whether this limitation should be more
widely stated as excluding such a duty of care unless the carelessness was
in any event wrongful in thc sense that it involved a brcach of the duty
of care owed to the person who suffered or was at risk of physical injury
(cf, for example, a case where a dcfcnce of volenti non fit injuria is
available against that person and sec, generally, Scala v M ammolitti, at
pp 158-9). Both are satisfied in thc present case and it is unnecessary to
determine whether each or cither of them is properly to be seen as part
of the requirement of proximity of relationship or as constituting some
other and spccial controlling rule based on policy considerations. As at
present advised, I am inclined to see them as necessary criteria of the
existence of the requisite proximity of relationship in the sense that, for
policy reasons, the relationship will not bc adjudged as being “so” close
“as” to give rise to a duty of care unless they be satisfied. What is of
critical importance for the purposes of the present appeal is the
identification of the content of any further criteria included in the
general line of demarcation which can, in the light of the cases, properly
be drawn “between what is and is not a sufficient degree of proximity”
in cases of mere psychiatric injury (cf per Stephen J, The Dredge
"Willemstad” (136 CLR) at p 576). I turn to that question of
identification.
, .
.
The decisions involving mere psychiatric injury are obviously not all
reconcilable. Some, such as Chester v Waverley Corporation and King v
Phillips, are best seen as out of accord with preferable authority and as
no longer acccptablc even in relation to their own facts. The three more
rcccnt Australian decisions to which particular reference has been made
Storm v Geeves, Benson v Lee and Pratt and Goldsmith v Pratt
fall
readily into an overall perspective and, with the guidance of what has
been said and decided in other cases and in other jurisdictions, enable
the identification of the area in which the boundary lies between what
will and what will not satisfy the overriding requirement of proximity at
least in cases involving mere psychiatric injury sustained as a result of
carelessness in the use of a public road. The decided eases have been
l a i ^ ^ confined to circumstances where the psychiatric injury resulted
from direct sensory observation at the sccne of the apprehended or
actual injury. Thc successful plaintiffs in eases involving those
circumstanccs have included persons who have suffered psychiatric
5
injury as a result of apprehended physical injury to themselves (see, eg
Bell v Great Northern Railway Co; Dulieu v White) and persons who
have suffered such injury as a result of apprehended or actual physical
injury to a son or daughter (see, eg Hambrook v Stokes Bros; Benson v
Lee), to some other close relative such as a brother (Storrji v G eeves),
10 or to a stranger (Chadwick v British Railways Board (1967] 1 WLR 912).
While thc relationship of thc plaintiff with thc threatened or injured
person (eg that of spouse, parent, relative, rescuer of uninvolved
stranger) may well be of critical importance on thc question whether risk
of mere psychiatric injury was reasonably foreseeable in the particular
■jg case, thc preferable view would seem to be that a person who has
suffered reasonably foreseeable psychiatric injury as the result of
contemporaneous observation at the sccnc of thc accidcnt is within the
area in which thc common law accepts that thc requirement of proximity
is satisfied (cf per Atkin LJ, Hambrook v Stokes Bros ([1925] 1 KB) at
pp 158-9) regardless of his particular relationship with the injured
20 person. There was, as has been seen, at one time strong judicial support
in thc United Kingdom for thc view that thc requirement of proximity .
in a case involving mere psychiatric injury could not bc satisfied unless .
thc plaintiff was within thc “area of physical risk” (sec King v Phillips).
Such a restrictive view is not, in my view, supported by considerations
25 of principle, fairness or policy. It has not been, and should not be;
acccptcd in this country (see Benson v Lee; Storm v Geeves). Indeed, it
has now been emphatically rejected in the United Kingdom (see
McLoughlin v O'Brian). Nor do thc cases support the approach that the
requirement can only be satisfied by a plaintiff who saw or heard the
30 actual accidcnt: both common sense and authority support the
conclusion that the requirement of proximity of relationship may be .
satisfied by a plaintiff who has suffered psychiatric injury as a result of
what he or she saw or heard in thc aftermath of thc accidcnt at the scene .
(Benson v Lee [1972] VR, esp at p 880; Storm v Geeves; Chadwick v
35
British Railways Board).
•>
On thc other hand, it would seem reasonably clear that the requisite
duty relationship will not, on thc present state of thc law, exist in a case
where mere psychiatric injury results from subsequent contact, away
from thc sccnc of thc accidcnt and its aftermath, with a person suffering
from thc effects of the accidcnt. An example of psychiatric injury
40
suffered as a result of such post-accident contact is that which may result
from the contact involved in thc nursing or carc of a close relative during
a period subsequent to immediate post-accident treatment (see, eg
Pratt).
(
'
There arc at least two possible rationales of thc distinction, for the
® purposes of thc requisite duty relationship, between cases where
psychiatric injury was sustained as a result of direct observation at the
sccne of thc accidcnt and its aftermath and cases where the psychiatric
injury was sustained from subsequent contact, away from thc scene of
the accidcnt and its aftermath, with a person suffering from the effects
A U & lh M ll M I V !_/**. I._* v
The reported Australian cases since 1939 when cW er vW averley
Comoratfon was decided have tended to isolate that decision by treating
it as confined to its particular facts. Referen“
decision of this court in Mount Isa Mines Lid v I^
0 ^ ) « 5 CLR
Tu_t wac a rase involving mere nervous shock sustained oy ine
o S n S £ h 7 4 nt?o the aid of I fellow employee who had been hornbly
burned^wheVtesting a switchboard ,n the P ™ ’“ '« “
employed. Thc plaintiff had not seen the accident, b u t w e n t t o t h e sccne
immediately after its occurrence and became , n v * e d t,. ,ts mttnedts, e
He was not related to the injured employee. He was neia to
he entitled to rccover damages from the employer who had negligent y
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issues which had been raised by the notice of appeal, in that
the case was seen by all members of the court as turning on the
S e d issue whether it had been reasonably foreseeable that there was
S D c c if ic
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m
m should be made
w at this stage.
m They are S o r m
specific reference
mvuee
.
supra, Benson v Lee [1972] VR 879 and Pratt and Goldsmith v Pratt
^rflhe^T asm anian case of Storm v Geeves [1965] Tas SR 252,
Burbury CJ awarded damages f
o
r
S
C
35
s
40
s
f
e
s
s
s
*
45
who had
” 0 hJe °d™ ghter some “substantial" period
observing the p liable state oi
g occurrence of thc accident: it
£
^
' i r a
^
S 4 t , rh S ^ t occurred the events that
w crd^nsally connccted with thc mother’s subsequent neurasthenic
condition’’ ([1975] VR at p 382). In the course of their joint judgment,
Adam and Crockctt JJ indicated what they saw as thc tfien established
proximity limitations upon thc ordinary test of reasonable foreseeability
in cases involving mere psychiatric injury causcd by negligent driving of
a vehicle on the highway in terms which lie well with what had been said
by Evatt J in his dissenting judgment in Chester's case (see supra). Their
Honours said (at p 386): “In our view, it is still the law that, while
reasonable foreseeability is essential to any liability for negligence, such
foreseeability by itself does not in all situations impose a dutjr of care. In
the ease of the driver of a vehicle on thc highway, his duty ddes not, sa v e
in exceptional circumstances, extend beyond road users in the
neighbourhood or persons who are themselves on or who have property
adjaccnt to the roadway. Policy and reasons of humanity have extended.
by way of exceptional cases thc primary duty to take care to those
injured in the course of rescue attempts or the like: Chapman v Hearse
(1961) 106 CLR 112; [1962] ALR 379; Chadwick v British Railways
Board [1967] 1 WLR 912; [1967] 2 All ER 945; The Law o f Torts 4th ed
(1971) Fleming p 157. Likewise, these considerations have dictated that
relatives of an accident victim suffering harm by reason of nervous shock
should have a cause of adion if their shock not only is foreseeable by the
tortfeasor, but also thc relative is in sufficient proximity to thc tortfeasor’s •
carelessness. . . . But beyond this thc law has not yet gone nor do we.
think it is for us to attempt to take it” (emphasis added). The statement,
in thc last scntcncc of the above passage, that “beyond this the law has
not yet gone” now requires qualification, at least in so far as the law of
England is concerncd, in the light of thc rcccnt case of McLoughlin v ,
O ’Brian [1983] 1 AC 410, where the plaintiff, whose husband and two!
children had been injured and whose third child had been killed in a road
accidcnt, was unanimously held by thc House of Lords to be entitled to'
recover damages from thc negligent driver for nervous shock sustained,
when she went to thc hospital some two hours after thc accidcnt had
occurred and there learned of her child’s death and saw her husband and
thc two other children, injured and covered in mud and oil. The plaintiff/
had been at her home some two miles from thc sccnc of the accident and
had not been told of it until almost two hours after it had occurrcd.
All of their Lordships in McLoughlin recognized the relevancc, at
least to foreseeability, of what were called "proximity factors” —
presence at thc sccnc, direct observation of thc accident, and a close
relationship with thc victim. There was, however, disagreement between
them on thc question of underlying principle. Lord Scarman and Lord
Bridge of Harwich were of thc view that liability for mere psychiatric
injury falls to be determined by rcfcrcnce to the test <|f reasonable
foreseeability “simpliciter " but refined to require foreseeability of injury
in that particular form. Lord Russell of Killowen confincd his brief
comments largely to the particular facts but appears not to have been
prepared to acccpt any overriding limitation upon the ordinary test of
reasonable foreseeability in nervous shock cases involving negligent use.
of a public road. Lord Wilberforce rejected thc proposition that liability
/alls to be determined by reference to an u n f e t t e r e d ^ of reasonab c
foreseeability and acknowledged the e x i s t e n c c Q f ^ p p i i c ^ i e p r o x i m U y
limitations, based on policy considerations, which amfine tlie class
persons to whom a duty to avoid mere psychiatric injury is owed. He
expressly identified (at p 420) those overriding limitations with Lord
Atkin’s “neighbour principle in Donoghue v Stevenson ” and commente
that that principle was “saying that foreseeability must be accompanied
and limited by the law’s judgment as to persons who ought accordi g o
its standards of value or justicc, to have been in contemplation . Lord
Edmund-Davies stated (at p 426) that he did not accept the approach
that reasonable foreseeability of injury to thc plaintiff through nervous
shock was necessarily the sole test of liability but found it unnecessary
to go beyond deciding that no overriding limitation based upon
considerations of policy operated to exclude liability in the case before
thThe°general approach of Lord Wilberforcc in McLoUg/i/i« namcly
that liability in negligence for mere psychiatric injury does not fall to be
determineefby reference merely to a test of reasonable foreseeability, is
plainly that which accords with the overwhelming weight of prior
authority. In any field of law, however, there may arise the rare
“landmark” case in which a court, usually a fina W 11*®
concludes that the circumstances are such as to entitle and oblige it to
reassess the content of some rule or set of rules in thc context of current
social conditions, standards and demands and to changeorrevcrsethe
direction of the development of the law. In such a case, he jud.c.a
function may be seen to impinge, albeit in a subordinate role in that it
remains subject to being overriden by legislative action, upon the
function of the legislature and it is at least possible that judicial method
and ability are liable to be exposed as wanting. The reassessment of he
content of the particular rule or rules of law in such a case is, none
less, an unavoidable concomitant of the proper pcrform anccofthe
judicial function if the law is not to lose contact with the^social needs
which justify its existence and which ,t exists to serve Even , . s u c h a
case however, the distinction between the judicial and legislative
functions should never be forgotten and any reassessment of the content
of S a m rules should b e ' W o a c h c d with due regard .o ex,s mg
authority and established principle (see, general^, per w ‘n d c y e r J n
Pusev (125 CLR) at p 396 and per Lord Edmund-Davics in McLoughlin
([198311 AC) at pp 426-8). McLoughlin would appear to have been such
a landmark case for the United Kingdom. It is arguable that thc present
£ £ £ seen’1 such a case for Australia. At the least, the present case
reauires in thc light of thc speeches in M cLoughlm, reassessment of the
effect of thc operation of a proximity requirement or other overriding
control to limit liability in negligence for mere psychiatric in ury
sustained by a person as a result of actual or threatened injury to another
111 Despite 3
the Advances in knowledge of mental ‘''"“ scssiiK icth c;
majority decision in Chester v Waverley Corporation (1939) 62 CLR 1U .
much remains unexplained and uncertain even among experts. Expert
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is available to support a number of differing (at least as regards
matters of emphasis) propositions as to the likely ^causes of mere
psychiatric injury consequent upon an accident involving actual or
threatened serious physical injury to another. They include: that the
most important explanation of nervous shock resulting from injury to
another is the existence of a close, constructive and loving relationship
with that person (a “close relative”) and that it is largely immaterial
whether thc close relative is at thc sccne of thc accidcnt or now he or she
learns of it (sec, eg D J Lcibson, “Recovery of Damages for Emotional
Distress Causcd by Physical Injury to Another” , Journal o f Family Law,
vol 15 (1976-77) 163, p 196); that genuine nervous shock can be caused
to a person caught up in a disaster in which neither that person or any
one in a pre-existing relationship With him or her is physically injured or
threatened (see, eg Raphael, Singh and Bradbury, ‘ Disaster: The
Helpers’ Perspective”, Medical Journal o f Australia (1980), 2: pp 445-7),
that there is no ncccssary correlation between psychiatric illness causcd
by nervous shock and thc severity of the “shock” (sec, eg Parker,
“Accident Litigant with Neurotic Systems”, Medical Journal o f Australia
(1977), 2:318, p 320 but cfN T Sidley, “Proximate Cause and Traumatic
Neurosis”, Bulletin o f The American Academy o f Psychiatry and the
Law, vol 11 (1983), p 197, at 200-2). There is continued expert support
for thc Freudian view which emphasized thc importance of the element
of sudden fright or surprise in neurosis following trauma (see
E K Madruga, “Some Legal Aspects of Post-Traumatic Neurosis” in
Obilos, Ballus, Monclus, and Pujo (eds) Biological Psychiatry Today
(1979), p 1549). There is also strong expert support for the proposition
that there is a real — and foreseeable — risk that psychiatric illness may
result from mental stress during thc period consequent upon
bereavement, particularly conjugal bereavement, or during a period of
constant association and care of a badly injured spouse or other close
relative independently of any shock sustained at thc time of the actual
death or injury. While it must now be acccpted that any realistic
assessment of the reasonably foreseeable consequcnccs of an accident
involving actual or threatened serious bodily injury must, in an
appropriate case, include the possibility of injury in thc f|>rm of nervous
shock being sustained by a wide range of persons not physically injured
in the accident, the outer limits of reasonable foreseeability of mere
psychiatric injury cannot be identified in thc abstract jjpr in advance.
Much may depend upon the nature of the negligent act 0 r omission, on
the gravity or apparent gravity of any actual or apprehended injury and
on any expert evidence about the nature and explanation of the
particular psychiatric injury which thc plaintiff has sustained. That being
so it is not possible to define with precision thc practical effect of thc
conscious alteration of the conimon law which would be involved in
acceptance of the proposition that reasonable foreseeability simpliciter
should bc accepted as thc determinant of liability for nervous shock.
What is clear, however, is that that conscious alteration of the law would
be much more far reaching and less discriminating than that effected by
/egislation in those Australian jurisdictions where lc|H ative action was
taken to overcome thc effect of the majority decision in Chester.
Section 4(1) of thc Law Reform (Miscellaneous Provisions) Act 1944
(NSW) provides:—
“The liability of any person in respect of injury causcd after the
commencement of this Act by an act, neglect or default by which any
other person is killed, injured or put in peril, shall extend to include
liability for injury arising wholly or in part from mental or nervous shock
sustained by—
. .
(a) a parent or thc husband or wife of thc person so killed, injured
or put in peril; or
_ .
(b) any other member of thc family of thc person so killed, injured
or put in peril where such person was killed, injured or put in
peril within the sight or hearing of such member of the family.”
Similar legislative provision has been made in the Australian Capital
Territory (Law Reform (Miscellaneous Provisions) Ordinance 1955
(ACT), s 24) and the Northern Territory (Law Reform (Miscellaneous
Provisions) Ordinance 1956 (NT), s 25). Of particular relevance for
present purposes is thc limited scope of thc liability for nervous shock
arising from the death, injury or peril of another which those provisions
were intended to impose or confirm. Except in the case of a parent or
spouse, that liability is limited to a member of the family who was in sight
or hearing of the accident. It does not, in any case, extend to cover
liability in respect of nervous shock sustained as a consequence of the
death, injury or peril of the person whose negligence caused the
accident.
'
• If liability in negligence for nervous shock causcd by the death, injury
or peril of another in a road accident fell to be determined by reference
to an unqualified test of reasonable foreseeability, there would be no
proper basis for excluding liability on the part of the injured person, his
or her estate or his or her compulsory third party insurer for mere
psychiatric injury which was sustained by another as a result of the
self-inflicted death, injury or peril of the negligent person in
circumstances where the risk of such psychiatric injury was reasonably
foreseeable (cf Bourhill v Young's Executor [1941] SC 395 at 399). Nor,
on an unqualified test of reasonable foreseeability, would there be any
rational basis for excluding liability to a close relative or fnend who has
no contact with the accidcnt or its immediate aftermath but who suffers
reasonably foreseeable nervous shock by reason of constant social
contact, as loyal nurse or companion, with the injured victim. It is
conceivable that, if left to develop by analogy and logical necessity on a
case by case basis, the common law in Australia may eventually change
to thc extent that it comes to recognize liability in some or all of such
cases. It has not, however, recognized any such liability up to now.
These are but two examples of types of case in which judicial abrogation
of the operation of a proximity requirement or any other special control
to limit liability for nervous shock would, unless thc law were to revert
to strict and rigid general notions of causation and remoteness of damage
which were discarded in thc wake of the Wagon Mound cases or to thc
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nai^fc' approach to reasonable foreseeability which, apparently, enjoys
some lingering support in at least some United States jurisdictions (see,
eg Dillon v Legg (1968) 29 Am LR (3d) 1316 at 1326: “excluding the
remote and unexpected”; Hathaway v Superior Court o f Fresno County
(1981) 169 Cal Rptr 435; Yandrich v Radic (1981) 433 A (2d) 459),
involve the peremptory imposition of liability where the law, up to now,
has recognized none. What, one is led to ask, is thc pressing demand of
principle or policy which necessitates the unqualified destruction of any
such overriding limitation upon reasonable foreseeability? The answer,
for this country, is that there is none. In so far as principle is concerncd,
both general principle and thc general framework of the law of
negligence allow, as has been seen, room for thc operation of special
overriding rules to exclude, in certain areas, thc implication of a duty of
carc by reference to thc ordinary test of reasonable foreseeability and
recognize the requirement of proximity as a general overriding,
requirement of the law of negligence which may operate, in an
appropriate case, to preclude or confine the prima facie duty to take
reasonable carc to avoid a reasonably foreseeable risk of injury to
another. In so far as policy is concerned, thc arguments for and against
thc removal of any overriding control of thc test of reasonable
foreseeability in cases of mere psychiatric injury are finely balanced and,
as Lord Scarman pointed out in McLoughlin ([1983] 1 A C at pp 430-1),
more appropriate for legislative than judicial consideration. While thc
present case does call for a reassessment of the effect of the operation
of thc requirement of proximity and any other overriding control upon
the test of reasonable foreseeability in cases of mere nervous shock,
neither principle nor considerations of public policy require or justify thc
conclusion that no such requirement or control is operative in such cases.
In that regard, it is relevant to note that Lord Scarman and Lord Bridge
of Harwich appear, in their speeches in M cLoughlin, not to have
excluded completely the possibility that some overriding limitation on
reasonable foreseeability might be appropriate in addition to the general
refinement that, in cases of mere psychiatric injury, risk of. injury in that
particular form must have been reasonably foreseeable. Lord Scarman
(at p 431) confincd his statement that “common law principle requires
thc judges” to apply an “untrammelled” reasonable foreseeability test to
“circumstances where it is appropriate". Lord Bridge (at p 441) appears
to have restricted his acceptance of an unqualified foreseeability test in
cases of mere psychiatric injury to cases where such injury is caused by
thc death, injury or apprehended injury of someone other than the
person whose negligence was responsible for thc accidcnt, that is to say,
of someone who was, in any event, a “negligent tortfeasor”. Once mere
psychiatric injury is accepted as sounding in damages for the purposes of
thc law of negligence and as being, in an appropriate case, reasonably
foreseeable in thc relevant sense, thc duty of carc in respect of a
foreseeable risk of mere psychiatric injury is an independent and
primary duty owed to thc person at risk of such injury (see, per
Barwick CJ and Taylor J, Scala v Mammolitti (1965) 114 CLR 153 at
155-6 and 159, and per Windcycr J, Pusey (125 CLR) at p 408). That
of the accidcnt. One such rationale lies in considt^^ons of physical
proximity, in the sense of space and time, between thc accident and its
immediate aftermath on the one hand and thc injury on the other. The
other lies in considerations of causal proximity in that in the one class of
case the psychiatric injury results from thc impact of matters which
themselves formed part of the accidcnt Snd its aftermath, such as the
actual occurrcncc of death or injury in thc course of it, whereas, in the
other class of ease, thc psychiatric injury has resulted from contact with
more remote consequences such as the subsequent effect of thc accident
upon an injured person. Thc choicc between one or other or a
combination of these two distinct rationales may obviously be of
importance in the more precise identification of any essential criteria of
the existence of the requisite duty relationship. On balance, I have come
to the conclusion that the second, which justifies the line of demarcation
by reference to considerations of causal proximity, is to be preferred as
being the less arbitrary and the better attuned both to legal principle and
considerations of public policy. It has been said in many cases that the
general underlying notion of liability in negligence is "a general public
sentiment of moral wrongdoing for which the offender must pay |s c c ,
eg Donoghue v Stevenson, at p 580; the Dorset Yacht Co case, at p 1038,
The Dredge "Willemstad’’ case, at p 575). A requirement based upon
logical or causal proximity between the act of carelessness and the
resulting injury is plainly better adapted to reflect notions of fairness and
common sense in the context of the need to balance competing and
legitimate social interests and claims than is a requirement based merely
upon mechanical considerations of geographical or temporal proximity.
Two factors arguably militate against including the present case within
the area in which the requisite duty relationship exists. The first factor
is that Mrs Coffey sustained psychiatric injury at the hospital and not at
thc scene of thc collision. The second is that she sustained it as a result
of thc combined cffcct of what she there saw and heard.
It has already been seen that thc requirement of proximity in a case
of mere psychiatric injury is satisfied where injury was sustained as a
result of observation of matters involved in the aftermath of a road
accidcnt at thc actual place of collision. The facts constituting a roa
accidcnt and its aftermath are not, however, necessarily confined to thc
immediate point of impact. They may extend to wherever sound may
carry and to wherever flying debris may land. The aftermath ot an
accidcnt encompasses events at thc sccnc after its occurrence, including
thc extraction and treatment of the injured. In a modern society, the
aftermath also extends to the ambulance taking an injured person to
hospital for treatment and to the hospital itself during the period of
immediate post-accidcnt treatment. It would, in my view, be both
arbitrary and out of accord with common sense to draw the borderline
between liability and no liability according to whether the plaintitt
encountered the aftermath of the accident at the actual sccnc or at the
hospital to which the injured person had been quickly taken. Indeed, as
has been mentioned, in some eases the true impact of the facts of the
accident itself can only occur subsequently at the hospital where they are
known. In the present case, as in M cLoughlm, the aftermath of the
accident extended to the hospital to which the injured person was taken
ar^^r
:rsisted for so long as he remained in thc state produced by the
accidcnt up to and including immediate post-accidenl-treatment. Mrs
Coffey sustained her psychiatric injury by reason of what; she saw and
heard at thc hospital while her husband was under such treatment. Her
5
psychiatric injuries were thc result of thc impact upon her of thc facts of
thc accidcnt itself and its aftermath while she was present at thc
aftermath of thc accidcnt at thc hospital. That being so, she was not, in
my view, precluded from recovering damages for those injuries by
reason of thc fact that she did not attend at thc actual scenc of thc
10 collision. What, then, is thc cffcct of thc fact that her nervous shock was
causcd by what she was told, as well as by what she observed, at the
hospital?
One can point to a number of judicial statements to the effect that a
person “who suffers shock on being told of an accidcnt to a loved one
■J5 cannot recover damages from the negligent party on that account” (per
Denning LJ, King v Phillips (at p 441) and see H am brook v Stokes
B ros, at pp 152 and 159). A requirement that thc plaintiff must have
perceived thc peril or injury by his or her “own unaided senses"
(Hambrook, at p 152) has not, however, enjoyed unqualified support
either in the United Kingdom or Australia (see, eg Schneider v Eisovitch
[1960] 2 OB 430; Andrews v Williams [1967] VR 831) and the question
whether the requirement of proximity precludes recovery in a case
where reasonably foreseeable psychiatric injury is sustained as a
consequence of being told about thc death or accidcnt, remains, in my
view, an open one. It is somewhat difficult to discern an acceptable
25 reason why a rule based on public policy should preclude recovery for
psychiatric injury sustained by a wife and mother who is so devastated
by being told on the telephone that her husband and children have all
just been killed that she is unable to attend at thc scenc while permitting
recovery for the reasonably, but perhaps less readily, foreseeable
30 psychiatric injury sustained by a wife who attends at the sccne of thc
accidcnt or at its aftermath at thc hospital when her husband has suffered
serious but not fatal injuries. It is unnecessary to pursue the question
here, however, since thc authorities plainly indicate that the overriding
limitation upon thc test of reasonable foreseeability docs not preclude
35
recovery in a ease, such as thc present, where thc psychiatric injury was
sustained as a result of thc combined cffcct of what a plaintiff himself or
herself observed and what he or she was told while at the sccnc of the
accidcnt or its aftermath. Thus, in Hambrook v Stokes Bros (at p 159),
Atkin LJ indicated that Mrs Hambrook would bc precluded from
4 Q recovering damages only if it appeared that her psychiatric injury had
been “in no way causcd” by her own observation but “solely [by] the
report of the injury” made to her by a third person and it is apparent that
the plaintiffs psychiatric injuries in cach of Benson v Lee and Storm v
Geeves resulted from thc combined cffcct of thc report of the accident
and their own subsequent observations of its aftermath. Indeed, while
the question was not raised in argument and it is unnecessary to express
a concludcd view upon it, thc position would appear to bc that, provided
that psychiatric injury resulted from what was seen or heard at the scene
of thc accident or its aftermath, the fact that thc injury was subsequently,
and reasonably foresecably, aggravated as a result of being told of the
m
deterioration or death of the person injured
neither preclude
recovery nor require apportionment between different causcs (see, per
Windcycr J, Pusey, at p 407, and note the helpful discussion in the
article by P G Heffey, “The Negligent Infliction of Nervous Shock in
Road and Industrial Accidents" in The Australian Law Journal, vol 48
(1974) 196, pp 204-211). It follows that neither the requirement of
proximity of relationship nor any other control upon the test of
reasonable foreseeability operated, in thc circumstances of the present
case, to preclude the existence of a common law duty of care owed to
Mrs Coffey in respect of the psychiatric injury which she sustained.
• • There remains to be considered a separate submission that the verdict
in Mrs Coffey’s favour should bc set aside on thc ground that thc injury
she sustained, while caused by what she saw and heard at the hospital,
can bc explained only by reference to an abnormal susceptibility on her
part to such injury. This submission was rejected by both the learned
trial judge and thc Full Court. It can bc shortly disposed of for thc reason
that the factual basis for it is not to be found either in thc evidence or
in thc findings of the courts below. By reason of previous events in her
life Mrs Coffey was more than usually dependent on both her husband
and’ thc stability of her marriage, with thc consequence that she was
more than usually predisposed “to neurotic upset, anxiety and
depression”. That dependence and resulting predisposition were not,
however, sufficient to prevent thc finding, which was made, that she was
“a person of normal fortitude” or to warrant a conclusion that the injury
by nervous shock which she sustained was either beyond the limits of
reasonable foreseeability or was other than thc reasonably foreseeable
result of Mr Jacnsch’s breach of thc duty of care which he owed her. The
fact that such injury may have been more likely or more severe in Mrs
Coffey’s case than in the case of a person of a different disposition does
not absolve the defendant of liability in negligence in respect of it (see,
generally, Storm v Geeves, at pp 268-9; Pusey, at pp 390, 406; Benson
v Lee at p 881; Brice v Brown [1984] 1 All ER 997 and note thc
discussion by White J in Donjerkovic v Adelaide Steamship Industries
Pty Ltd (1980) 24 SASR 347 at 358).
..
. It should be stressed, at the risk of undue repetition, that the fact that
the requisite duty relationship in a case of mere psychiatric injury may
be satisfied by a plaintiff who is not a close relative of the injured person
should not be seen as indicating that thc relationship between the
plaintiff and thc injured person will bc unimportant on the prior
question of reasonable foreseeability of injury in that form In many it
not most, cases of mere psychiatric injury, thc major difficulty in the
path of the plaintiff is that of showing that there was, as a matter of law
a reasonable foreseeability of injury in that form to a class of persons of
which he or she was a member. Thc factors which will be relevant on tha
question cannot be precisely identified in the abstract since much will
depend on thc nature of thc particular act or omission or on the gravity
or apparent gravity of thc particular accident and its aftermath. It would,
however require unusual circumstanccs for a finding to be open that
psychiatric injury sustained by a plaintiff by reason of mere umnvolvcd
observation of apprehended or actual injury to a person w ho was not a
close relative came within thc range of reasonable foreseeability in the
s e n s e ^ R thc plaintiff came within the class of person to whom injury
of that kind could reasonably have been foreseen (se* Chapman v
Hearse (1961) 106 CLR 112 at 121). The position may, of course, be
quite different in thc case of a stranger who is actively and foreseeably
5
involved in an accident or its aftermath in a role such as that of a rescuer
(see Chadwick v British Railways Board [1967] 1 WLR 912.
Brief mention should bc made of two other matters. First, what has
been written above in relation to the class of case in which the common
law recognizes a relevant duty of care on the part of a user of a public
10
road to avoid mere psychiatric injury by use of the road for conventional
purposes may prove to bc inapplicable to, or may require modification
in its application to, other situations in which a more or less extensive
duty of carc may bc rccognizcd (cf Mount Isa Mines Ltd v Pusey; Brown
v Mount Barker Soldiers’ Hospital Inc [1934] SASR 128', Wilkinson v
•jg Downton; Bunyan v Jordan). Sccond, there is no provision in thc statute
law of South Australia corresponding to s 4(1) of thc Law Reform
(Miscellaneous Provisions) Act 1944 (NSW) (see supra) and it is
unnecessary to consider the question whether such legislative provisions,
where they arc to bc found, should be construed as being intended to
__ have a limiting, as well as an ameliorating, effect on thc common law (cf
Scala v Mammolitti, at pp 158-60; Pusey, at p 408).
Thc appeal should be dismissed.
Dawson J. The comprehensive examination of thc authorities by both
Brennan and Deane JJ in their judgments makes it possible for me to
25 state my conclusion shortly.
Development of thc law in this country and elsewhere has made it
plain that thc views expressed in Victorian Railways Commissioners v
Coultas (1888) 13 App Cas 222 no longer represent the law and that the
decision of this court in Chester v Waverley Corporation (1939) 62 CLR
30 1 must bc confined to its own facts. It is now clear that dimages are
recoverable in a variety of circumstanccs for mental injury caused by
nervous shock as a result of ncgligcncc. Those circumstances include, in
my view, the circumstances of this case.
The basic test of liability in negligence for nervous shock is whether
35
injury of that kind was reasonably foreseeable in all the circumstances of
the particular case: Overseas Tankship (UK) Ltd v Morts Dock A
Engineering Co Ltd (The Wagon Mound (No I)) [1961] AC 388;
Chapman v Hearse (1961) 106 CLR 112 at 120-1. Whether that is the sole
test or whether there is some other limit upon the recovery of damages
for nervous shock which is based upon conceptions of public policy
referred to by Dcanc J in this case as the proximity test — remains a
matter of controversy: see McLoughlin v O ’Brian [1983] 1 AC 410. But
it is not neccssary, in my view, to settle that controversy for the purpose
of deciding this appeal. It is now established that it is no bar to liability
that the nervous shock is caused not by the plaintiffs fear for his or her
45 own safety but by thc apprehension of some danger or harm to another,
at least where that other is a member of the plaintiffs family: Hambrook
v Stokes Bros [1925] 1 KB 141. Nor is it any longer neccssary that the
plaintiff should bc present at the accident which results in the nervous
shock. It is sufficient if the plaintiff observes the consequences: Storm v
j6 6 _____________________A U S T R A ^ N LAW REPORTS_________________HC of A
Geeves [1965] Tas SR 252; M oufylsa Mines Ltd v Pusey (1970) 125 CLR
383. Moreover, those consequences need not be observed at the scene
of the accident. They may be observed as part of the aftermath and the
aftermath may extend to the journey by ambulance to a hospital and to
thc scene at the hospital itself: Benson v Lee [ 1972] VR 879; McLoughlin
v O ’Brian, supra.
These extensions of the law upon this subject may merely bc in
recognition of the fact that “. . . the limits of liability for injury by
nervous shock are to be determined only by a proper judicial application
of thc general test of reasonable foreseeability of that kind of injury in
all the circumstanccs of the particular case": Storm v G eeves, per
Burbury CJ at pp 261-2. See also McLoughlin v O ’Brian, per Lord
Bridge of Harwich at pp 439-43. Such an approach flows from the
decision in The Wagon Mound (No 1).
On the other hand, there appear to be strictures upon liability for the
infliction of nervous shock which are not readily explicable in terms of
foreseeability and which may be seen to bc thc result of thc application
of policy considerations.
For example, if no action will lie in ncgligcncc against a defendant who
carelessly injures himself and thereby inflicts nervous shock upon thc
plaintiff, there would seem to bc a limit imposed which is outside thc test
of foreseeability. Similarly, the test of foreseeability may bc thought to
have a limited application if, as appears to bc accepted, there is no
liability for shock brought about by communication by a third party and
not by the sight or sound of an accident or its consequences. .
It is the existence of strictures of this kind that lend support to thc view
that, in order to be compensable, nervous shock must not only be
reasonably foreseeable; it must also fall within bounds set as a matter of
policy. See McLoughlin v O ’Brian, per Lord Wilberforce at pp 420-2.
However, as I sec no need in this case to decide between competing
views, I am content to express my agreement that thc events which
caused nervous shock to thc plaintiff were part of the aftermath o f thc
accident resulting from the defendant’s negligence. I agree with thc view
expressed by Deane J that thc fact that those events were a combination
of the plaintiffs own observations and what she was told by others does
not preclude thc recovery of damages. I also agree with Deane J that,
having regard to thc findings of thc trial judge, there is no force in thc
submission that the plaintiffs mental injury can bc explained by
reference to an abnormal susceptibility on her part.
I would dismiss the appeal.
Order
Appeal dismissed with costs.
Solicitors for the appellant: Ward & Partners.
Solicitors for the respondent: Johnston Withers McCusker & Co.
MATTHEW SMITH
BARRISTER-AT-LAW
•
^
In the Marriage of PRINCE
5
FAMILY COURT OF AUSTRALIA
E v a t t CJ, P aw ley a n d F o g a r t y JJ
1 Dccembcr 1983, 23 February 1984 — Melbourne
W
10
15
Family law — Jurisdiction — Accrued jurisdiction — Application I
of property — Proceedings pending in State Supreme Court betw
third party — Determination of non-federal matter likely to mal
husband’s assets — Discretion to refuse to exercise accrued jurlsdk
to stay proceedings before Family Court of Australia — Family I
(Cth) s 79.
20
Family law — Practice and procedure — Staying proceedings —• A|
settlement of property — Proceedings pending in State Supra
Determination of non-federal matter likely to materially affect bus
—
Whether court had accrued jurisdiction — Discretion to
accrued jurisdiction — Family Law Act 1975 (Cth).
*
£*
^
Practice and procedure — Intervention — Grant of leave to interve
be heard — EfTect of — Third party intending to take part in pi
Third party claiming under deed of indemnity with husband —
application for settlement of property — Family Law Act 1975 (C
<. i
25
nr
.3 0
35
'''
Whilst proceedings were pending in respect of an application fo
of property under thc Family Law Act 1975 (Cth) s 79, thc formed
sued by thc appellant in thc Supreme Court of Queensland unt
indemnity for an amount of $9.5 million. Thc appellant and for
sought a stay of thc Family Court of Australia proceedings. 1
further sought leave to intervene or to be heard. The trial judge i
applications. On appeal:—
Held: (i) It was doubtful whether thc connection between thc Fa
Australia proceedings, namely thc claim under s 79 of thc Act
parties to a former marriage, and the non-fcdcral proceedings, nan
against thc husband by thc appellant under thc guarantee, wei
proximate to attract thc accrued jurisdiction principle.
Fencott v Muller (1983) 46 ALR 41; 57 A U R 317. applied.
40
(ii) Even if that view were wrong, thc question whether thc c
assume accrucd jurisdiction was a matter of discretion depend
balance of interests, including thc degree of connection betwcci
disputes. Since thc dispute between thc husband and thc appella
unconnected with thc controversy between thc parties to thc form
a matter o f discretion thc court ought to refuse to assume accrue
(iii) (Evatt CJ dissenting) A stay of proceedings ought to have
so that the husband’s liability under the deed o f indemnity could t
by thc Supreme Court of Queensland before the determin
proceedings under s 79 o f thc Act.
(iv) However, where a third party is granted leave to intervene
be heard on an issue then the intervenor or third party is bound I
determination.