Page V Smith

155
1 A.C.
^mf f*ic!:011;
Sheldon v. R. H. M. Outhwaite Ltd. (H.L.(E.))

v
of Birkenhead
I understand why, because ultimately and with reluctance I have found

myself constrained to conclude that, much as I would wish to reach a
different conclusion, the language of the section does not reasonably admit
of this construction. So I rule out this possibility. That leaves only the
two unattractive alternatives. Forced to make a choice between them,
I prefer the views of my noble and learned friends, Lord Keith of Kinkel
and Lord Browne-Wilkinson. Accordingly, I, too, would allow this appeal.
Appeal allowed with costs in Court of
Appeal and House of Lords.
Solicitors: Norton Rose; Denton Hall; Oswald Hickson Collier.
M. G.
D
[HOUSE OF LORDS]
PAGE
APPELLANT
AND
SMITH
1995
Feb. 13, 14, 15, 16;

May 11
RESPONDENTS
Lord Keith of Kinkel, Lord Ackner,

Lord Jauncey of Tullichettle,
Lord Browne-Wilkinson and
Lord Lloyd of Berwick
NegligenceForeseeability of riskNervous shockPlaintiff directly

involved in road traffic accident and not mere bystanderPlaintiff
vulnerable to recurrent bouts of myalgic encephalomyelitis
Whether foreseeability of injury by nervous shock necessary
While driving along the highway the plaintiff was involved in

a collision with a car driven by the defendant. The plaintiff
suffered no physical injury but three hours after the accident he
felt exhausted and the exhaustion had continued. For 20 years
prior to the accident the plaintiff had suffered from a condition
variously described as myalgic encephalomyelitis, chronic fatigue
syndrome or post viral fatigue syndrome which manifested itself
from time to time with different degrees of severity. The plaintiff
brought an action claiming damages for personal injuries caused
by the defendant's negligence in that as a result of the accident
his condition had become chronic and permanent and that it was
unlikely that he would be able to take full-time employment
again. Otton J. found for the plaintiff and awarded him 162,153
damages. The Court of Appeal allowed an appeal by the
defendant on the ground that the plaintiff's injury was not
156
Page v. Smith (H.L.(E.))
[1996]
reasonably foreseeable. Only one of the members of the Court of

Appeal dealt with the question whether the plaintiff's condition
had been caused by the accident.
On appeal by the plaintiff:
Held, allowing the appeal (Lord Keith of Kinkel and Lord
Jauncey of Tullichettle dissenting), that once it was established
that the defendant was under a duty of care to avoid causing
personal injury to the plaintiff, it mattered not whether the injury
in fact sustained was physical, psychiatric or both; that, applying
that test, it sufficed to ask whether the defendant should have
reasonably foreseen that the plaintiff might suffer personal injury
as a result of the defendant's negligence, so as to bring him within
the ambit of the defendant's duty of care; that it was unnecessary
to ask as a separate question, whether the defendant should
reasonably have foreseen injury by shock; and that it was
irrelevant that the plaintiff did not sustain external physical
injury; but that, on the issue of causation, in the absence of
agreement between the parties, the matter would be remitted to
the Court of Appeal (post, pp. 170c, 180F, 182E-G, 183B-C,
190B-F, 198B-D).
Bourhill v. Young [1943] A.C. 92, H.L.(Sc); King v. Phillips
[1953] 1 Q.B. 429, C.A.; Overseas Tankship (U.K.) Ltd. v. Morts
Dock & Engineering Co. Ltd. (The Wagon Mound) [1961] A.C.
388, P.C. and Alcock v. Chief Constable of South Yorkshire Police
[1992] A.C. 310, H.L.(E.) considered.
Per Lord Ackner, Lord Browne-Wilkinson and Lord Lloyd of
Berwick. In cases of nervous shock it is essential to distinguish
between the primary victim and secondary victims. In claims by
secondary victims the law insists on certain control mechanisms,
in order to limit the number of potential claimants. These control
mechanisms have no place where the plaintiff is the primary
victim (post, pp. 170c, 180F, 197E-F).
Decision of the Court of Appeal [1994] 4 All E.R. 522
reversed.
The following cases are referred to in their Lordships' opinions:

Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310; [1991]
3 W.L.R. 1057; [1991] 3 All E.R. 88, C.A.; [1992] 1 A.C. 310; [1991]
3 W.L.R. 1057; [1991] 4 All E.R. 907, H.L.(E.)
Attia v. British Gas Pic. [1988] Q.B. 304; [1987] 3 W.L.R. 1101; [1987] 3 All
E.R. 455, C.A.
Bourhill v. Young [1943] A.C. 92; [1942] 2 All E.R. 396, H.L.(Sc)
Brice v. Brown [1984] 1 All E.R. 997
Brown v. Glasgow Corporation, 1922 S.C. 527
Chadwick v. British Railways Board [1967] 1 W.L.R. 912; [1967] 2 All E.R.
945
Currie v. War drop, 1927 S.C. 538
Dillon v. Legg (1968) 29 A.L.R. 3d 1316
Donoghue v. Stevenson [1932] A.C. 562, H.L.(Sc)
Dulieu v. White & Sons [1901] 2 K.B. 669, D.C.
Fardon v. Harcourt-Rivington (1932) 146 L.T. 391, H.L.(E.)
Hambrook v. Stokes Brothers [1925] 1 K.B. 141, C.A.
Jaensch v. Coffey (1984) 155 C.L.R. 549
King v. Phillips [1953] 1 Q.B. 429; [1953] 2 W.L.R. 526; [1953] 1 All E.R. 617,
C.A.
McFarlane v. E.E. Caledonia Ltd. [1994] 2 All E.R. 1, C.A.
157
1 A.C.
McLoughlin v. O'Brian [1983] 1 A.C. 410; [1982] 2 W.L.R. 982; [1982] 2 All
E.R. 298, H.L.(E.)
Malcolm v. Broadhurst [1970] 3 All E.R. 508
Mount Isa Mines Ltd. v. Pusey (1970) 125 C.L.R. 383
Nicholls v. Rushton, The Times, 19 June 1992; Court of Appeal (Civil
Division) Transcript No. 401 of 1992, C.A.
Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. (The Wagon
Mound (No. 2)) [1967] 1 A.C. 617; [1966] 3 W.L.R. 498; [1966] 2 All
E.R. 709, P.C.
Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (The
Wagon Mound) [1961] A.C. 388; [1961] 2 W.L.R. 126; [1961] 1 All E.R.
404, P.C.
Polemis and Furness, Withy & Co., In re [1921] 3 K.B. 560, C.A.
Schneider v. Eisovitch [1960] 2 Q.B. 430; [1960] 2 W.L.R. 169; [1960] 1 All
E.R. 169
Victorian Railways Commissioners v. Coultas (1888) 13 App.Cas. 222, P.C.
Wilkinson v. Downton [1897] 2 Q.B. 57
The following additional cases were cited in argument:
Abramzik v. Brenner (1967) 65 D.L.R. (2d) 651
Caparo Industries Pic. v. Dickman [1990] 2 A.C. 605; [1990] 2 W.L.R. 358;
[1990] 1 All E.R. 568, H.L.(E.)
Czarnikow (C.) Ltd. v. Koufos [1969] 1 A.C. 350; [1967] 3 W.L.R. 1491; [1967]
3 All E.R. 686, H.L.(E.)
Dooley v. Cammell Laird & Co. Ltd. [1951] 1 Lloyd's Rep. 271
Hughes v. Lord Advocate [1963] A.C. 837; [1963] 2 W.L.R. 779; [1963] 1 All
E.R. 705, H.L.(Sc)
Marshall v. Lionel Enterprises Inc. (1971) 25 D.L.R. (3d) 141
Nader v. Urban Transit Authority of New South Wales [1985] 2 N.S.W.L.R.
501
Pollard v. Makarchuk (1958) 16 D.L.R. (2d) 225
Smith v. Leech Brain & Co. Ltd. [1962] 2 Q.B. 405; [1962] 2 W.L.R. 148;
[1961] 3 All E.R. 1159
Sutherland Shire Council v. Heyman (1985) 157 C.L.R. 424
Tremain v. Pike [1969] 1 W.L.R. 1556; [1969] 3 All E.R. 1303
"
APPEAL from the Court of Appeal.

This was an appeal by leave dated 25 May 1994 of the House of Lords
(Lord Keith of Kinkel, Lord Browne-Wilkinson and Lord Lloyd of
Berwick) by the plaintiff, Ronald Edgar Page, from the judgment dated
30 March 1994 of the Court of Appeal (Ralph Gibson; Farquharson and
Hoffmann L.JJ.) allowing an appeal by the defendant, Simon Gerald
Toby Smith, from the judgment dated 22 December 1.992 of Otton J. By
that judgment the plaintiff was awarded 162,153 in his claim for damages
in negligence against the defendant for personal injuries arising out of a
minor road traffic accident. The plaintiff sustained no physical injury but
claimed that as a result of being involved in the accident he suffered a
recrudescence of the myalgic encephalomyelitis (or chronic fatigue
syndrome or post viral fatigue syndrome) from which he was already
suffering, and which in consequence of the accident had permanently
disabled him.
The facts are stated in their Lordships' opinions.
158
|1996|
Colin Mackay Q.C. and Jennifer Richards for the plaintiff. The
defendant should compensate the plaintiff for the personal injury he
sustained if it was reasonably foreseeable in the moments before the
accident that the accident would cause him some personal injury. If it is
necessary that the defendant should have to foresee the kind of injury that
the plaintiff sustained and/or the manner in which it was caused, that risk
was itself foreseeable if the relevant test for foreseeability is applied. The
plaintiffs susceptibility to the particular form of injury that he sustained
is irrelevant. Such an approach does not open any floodgates, or create
new categories of negligence.
The present case does not raise the problem of nervous shock sustained
by an onlooker. "Nervous shock" has been used to refer to (i) psychiatric
or mental illness and (ii) the process whereby a sudden and frightening
external event operates through the senses and/or nerves so as to produce
illness whose symptoms may be mental and/or physical. The second
meaning is to be preferred.
"Damage" in the present context means merely personal injury. The
action is a claim for personal injuries. The defence concede that the
plaintiffs symptoms were entirely physical, for the defendant's psychiatric
expert accepted that the plaintiff suffered from no form of psychiatric
illness.
As to the test of foreseeability in negligence, it is the same at all stages,
that is, for determining both culpability and compensation: Overseas
Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (The Wagon
Mound) [1961] A.C. 388, 424-425. The injury complained of must be of a
class or character foreseeable as a possible result of the negligence, but,
otherwise the defendant must take the plaintiff as he finds him: Smith v.
Leech Brain & Co. Ltd. [1962] 2 Q.B. 405, 413, 414. The fact that the
accident was foreseeable but happened in an unpredictable way does not
debar the plaintiff from recovering: Hughes v. Lord Advocate [1963] A.C.
837. Further, there must have been a real risk of the injury complained
of, one which a reasonable man in the defendant's shoes would not brush
aside as far-fetched: Overseas Tankship (U.K.) Ltd. v. Miller Steamship
Co. Pty. (The Wagon Mound (No. 2)) [1967] 1 A.C. 617, 636, 643.
The Court of Appeal [1994] 4 All E.R. 522, 542G, 549J, 551A-B, held
that as distinct from purely physical injury cases, in cases of injury caused
by nervous shock the judgment in relation to foreseeability is made in the
light of hindsight, In other words, the court waits to see how the accident
turned out in ternjis of severity and so forth before assessing what the
alleged tortfeasor could have foreseen. But the notion of retrospective
foresight is a difficult concept and one which is not in accord with
Donoghue v. Stevenson [1932] A.C. 562: seeder Lord Atkin, at p. 580. The
Court of Appeal relied on McLoughlin v. O'Brian [1983] 1 A.C. 410, 420,
432, but the hindsight element is a necessary one in the bystander case
where questions of policy are a relevant consideration. Nervous shock
suffered by rescuers comes into the same category as that suffered by
victims rather than that suffered by bystanders: see Chadwick v. British
Railways Board [1967] 1 W.L.R. 912.
As to the development of reasonable foreseeability in the nervous
shock cases, the first objection to such claims was simply that there was
A.
"
159
1 A.C.
"
"
no direct physical trauma and for that reason alone they should not be
entertained: Victorian Railways Commissioners v. Coultas (1888)
13 App.Cas. 222. That decision had been effectively disapproved by the
time of Dulieu v. White & Sons [1901] 2 K.B. 669, where the Divisional
Court declined to follow it but restricted the class of claimants to those
who had experienced shock arising from a reasonable fear of immediate
personal injury to themselves. These are the only two cases which are
participant cases. All the other cases involve either a rescuer or a
bystander.
In Hambrook v. Stokes Brothers [1925] 1 K.B. 141, the majority of the
Court of Appeal took a further step in that they held that there was no
warrant for distinguishing between fear for oneself and fear for one's
children, but with that exception appear to have followed the reasoning in
Dulieu v. White & Sons. Nevertheless, as questions of remoteness were
involved, policy considerations required the imposition of a restriction to
close relatives who saw or heard the event with their own senses.
The first case in which this House had to consider the consequences of
nervous shock was Bourhill v. Young [1943] A.C. 92. That was a classic
bystander case and has not always been accurately analysed or referred to
in subsequent decisions. In the court below the question had been whether
the pursuer had to show that she suffered injury by shock through fear
for her own safety. The House did not address that issue, but considered
instead the logically prior question whether the pursuer was a foreseeable
victim situated as she was outside the area of potential physical danger
and thus of reasonable contemplation: see pp. 98, 102, 105, 106, 116-117.
King v. Phillips [1953] 1 Q.B. 429 is important. Singleton L.J.'s
observation, at p. 437, after referring to Bourhill v. Young, that it is
difficult to draw a distinction between damages for physical injury and
damage from shock is correct. But Denning L.J.'s statement, at p. 441,
which has often subsequently been cited, that "there can be no doubt since
Bourhill v. Young that the test of liability for shock is foreseeability of
injury by shock," is misleading. To be an accurate statement of the law,
after the word "liability," there should be added the words "in the case of
persons physically remote from the tort." Later cases, especially in other
jurisdictions, have misapplied this passage by applying it to non-bystander
situations.
In McLoughlin v. O'Brian [1983] 1 A.C. 410 the House was considering
the position of a plaintiff arriving at the immediate aftermath of the event
in question. The essential question was whether in addition to foreseeability
a plaintiff had to satisfy the court that there was no policy requirement
barring the claim. Of relevance to the issues in the present case is Lord
Wilberforce's dictum, at p. 422B, that one reason for denying recovery by
the ordinary bystander falling outside the close and caring relationship
category is that he must be assumed to possess fortitude sufficient to
enable him to endure the calamities of modern life. Presumably the
bystander is there being contrasted with the close relative and the primary
victim in each of whose case no such assumption needed to be made or
should be made. Lord Edmund-Davies's helpful analysis (pp. 4 2 3 D - 4 2 4 C )
of the dicta in Bourhill v. Young shows that the requirement of
foreseeability of injury by shock was designed as a liberating step freeing
160
|1996|
claimants from discharging the impossible burden of showing that they

were within the area of risk of foreseeable injury by direct physical
trauma. Lord Bridge of Harwich's statement, at p. 4 3 9 F - G , that dicta in
Bourhill v. Young only make sense if they are understood to have been
based on the assumption that the law was as Dulieu v. White & Sons
[1901] 2 K.B. 669 and Sargant L.J. in Hambrook v. Stokes Brothers [1925]
1 K.B. 141 had stated to be, i.e., that the plaintiff had to fear for his or
her own safety, not for that of others. Once that line was crossed a much
wider potential field of claimants was introduced and care had to be taken
to allow their claims without imposing a duty owed to the whole world or
at least to an unacceptably wide proportion of it. The plaintiff in the
present case is firmly on the Dulieu case side of the line.
The importance of the distinction between the primary or direct victim
of the tort and the secondary or remote victim was emphasised by Lord
Oliver of Aylmerton in Alcock v. Chief Constable of South Yorkshire Police
[1992] 1 A.C. 310, 4 0 6 H ^ 0 8 E . He stressed the importance of distinguishing
those cases where the plaintiff was a primary victim of the tort involved
as a participant in the accident, from cases where he was a passive and
unwilling witness of injury caused to others. He held that there was no
single common test for the circumstances which gave rise to a duty of
care. The former class will have no problem demonstrating proximity but
must still prove damage was reasonably foreseeable. The latter class gives
rise to more complex questions of the type addressed at length in
McLoughlin v. O'Brian and Alcock itself. Lord Oliver pointed out, at
p. 4 1 6 D , that the likelihood of trauma causing psychological illness
diminished in the case of more distant relationships. It would presumably
follow that such a likelihood would increase in the case of the primary
victim whose fear was for his own immediate safety. The treatment of
Dooley v. Cammell Laird & Co. Ltd. [1951] 1 Lloyd's Rep. 271 in Alcock
[1992] 1 A.C. 310, 420, is illuminating. That decision, which on its face
might seem to go against the more modern decisions of the House of
Lords, is correct, albeit as a very special case, because the crane driver
was intimately involved in the accident as the unwitting agent of the
accident and was not a mere observer. In those circumstances the
defendants could readily have foreseen that he would be shocked by
the failure of the rope, whereas if he had merely been watching from the
deck they could not. This lends support to the proposition that shock to
a participant is more readily foreseeable, even where, as in Dooley, he was
(a) unrelated to the potential victims and (b) not personally threatened.
Schneider v. Eisovitch [1960] 2 Q.B. 430 is explicable on the grounds that
the plaintiff was herself directly involved as a victim in the accident in
which her husband was killed: see Alcock [1992] 1 A.C. 310, 408, per Lord
Oliver of Aylmerton.
In McFarlane v. KE. Caledonia Ltd. [1994] 2 All E.R. 1, 10
Stuart-Smith L.J. described three situations in which the plaintiff might be
described as a participant in nervous shock cases. The present plaintiff
comes within the first category, or alternatively, the second category there
stated.
It is plain from Lord Wright's observations in Bourhill v. Young [1943]
A.C. 92, 109-110 that it is expected of an onlooker that he will be
"
"
161
1 A.C.
possessed of ordinary health and fortitude. That is the position to be

found in subsequent cases: see McLoughlin v. O'Brian [1983] 1 A.C. 410,
422D and Alcock v. Chief Constable of South Yorkshire Police [1992]
1 A.C. 310, 403.
Brice v. Brown [1984] 1 All E.R. 997 was described as illuminating by
Hoffmann L.J. [1994] 4 All E.R. 522, 551G who treated it as supporting
the proposition that all those who claim damages for nervous shock were
to be presumed to be of normally robust constitution. On analysis,
however, it seems that Brice was a bystander claim in that although the
mother was in the taxi with her daughter and received injuries herself
which were described as trivial, the cause of the psychiatric condition was
her concern for her daughter, who had what looked at the time to be
serious injury.
In the Australian case of Jaensch v. Coffey (1984) 155 C.L.R. 549, 595,
Deane J. construed Bourhill v. Young as requiring foreseeability of personal
injury in the particular form, namely, nervous shock rather than personal
injury generally. This is an example of the danger warned of by Lord
Bridge of Harwich in McLoughlin v. O'Brian [1983] 1 A.C. 410, 439 of
using Bourhill v. Young as authority for cases other than remote cases.
The dicta on susceptibility in Jaensch v. Coffey were (a) obiter (it having
been held in the lower court that the plaintiff was in fact of normal
fortitude), (b) to be taken as applying to remote claims only, and (c) in
the case of Gibbs C.J., at p. 556, tentative.
As to causation, the question does not arise unless the plaintiff
succeeds on foreseeability.
Julian Priest Q.C. and Andrew Hogarth for the defendant. The limits
on the liability of a defendant for the actual consequences of his actions,
the manner in which those limitations operate and the reasons for limiting
liability are established by decisions of this House and decisions in all the
common law jurisdictions. A finding in favour of the plaintiff on the issues
he raises will necessitate a decision not to follow a number of previous
decisions of this House and of the courts in other common law
jurisdictions.
The first issue raised involves a consideration of how wide the
categories of harm should be when foreseeability is being considered. The
plaintiffs submission, that it is sufficient if some type of injury other than
"nervous shock" is foreseeable to impose liability for pure psychiatric
injury, assumes that courts categorise types of damage very widely. Indeed,
it would be necessary for types of damage to be broadly categorised as
"personal injury" or "physical damage" for the submission to be correct.
That categorisation is not correct. The duty is only to prevent foreseeable
harm, not to prevent harm that is not foreseeable. It is irrelevant when
issues of foreseeability are considered whether some other injury may have
been foreseeable. If one type of damage may be foreseen, it does not cause
a duty to prevent some other type of damage to arise: see Sutherland Shire
Council v. Heyman (1985) 157 C.L.R. 424, 487, per Brennan J. and Caparo
Industries Pic. v. Dickman [1990] 2 A.C. 605, 6 5 1 F - 6 5 2 C , per Lord Oliver
of Aylmerton. The test of foreseeability for "nervous shock" is the
foreseeability of damage by nervous shock. The plaintiffs submission has
A.C. 1996-6
162
[19961
as its logical consequence that the foreseeability of some physical injury is

sufficient to establish that "nervous shock" is foreseeable.
The authorities do not support the plaintiff's submission in the way
the distinction is drawn between a participant and a bystander: see
Chadwick v. British Railways Board [1967] 1 W.L.R. 912, 918, 920D, 922B;
Smith v. Leech Brain & Co. Ltd. [1962] 2 Q.B. 405, 413-415; Hughes v.
Lord Advocate [1963] A.C. 837, 845, 850, 856; Tremain v. Pike [1969]
1 W.L.R. 1556, 1562, 1563. If there is no such distinction in the manner
suggested it is not necessary to invent it: see Marshall v. Lionel Enterprises
Inc. (1971) 25 D.L.R. (3d) 141, 149 and Jaensch v. Coffey, 155 C.L.R.
549, 566, 604. The only distinction between cases involving bystanders and
those involving participants is that in the case of a participant the
necessary degree of proximity does not arise for consideration, as it may
be assumed to exist; a bystander will have to persuade the court that the
necessary degree of proximity exists. The need to establish that the damage
which occurred was foreseeable remains, and tests to determine whether
foreseeability is established are the same in both categories of case: see
Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310,
4 0 7 D - E . That the necessary degree of proximity exists or may be assumed
because a plaintiff is a participant and not a bystander, does not mean
that a duty exists. The plaintiff has to establish that injury was foreseeable
in order to give rise to a duty owed to him: see McLoughlin v. O Brian
[1983] 1 A.C. 410, 420F. It is plain that proximity alone is not sufficient to
give rise to a duty: Alcock v. Chief Constable of South Yorkshire Police
"
[1992] A.C. 310, 396G, 402G, 4 1 0 D , 4 1 9 F - 4 2 0 C .
As to the standard by which foreseeability is to be judged, the duty

owed is to prevent harm to a person of normal sensitivity, not a person of
peculiar susceptibilities: see Bourhill v. Young [1943] A.C. 92, 109, 117;
Jaensch v. Coffey, 155 C.L.R. 549, 555, 556, 568 and Dillon v. Legg (1968)
29 A.L.R. 3d 1316, 1326. As to the eggshell skull cases, the plaintiffs
submissions confuse the question of whether there is a duty of care at all
with the determination of the extent of the liability of a defendant once a
duty and its breach have been established. Foreseeability is used to
determine the existence of a duty to a particular person; the fact that a
person is peculiarly susceptible cannot create a duty where none exists.
But when a duty to prevent a particular type of harm exists, a plaintiff is
entitled to recover damages for all harm of that type he has suffered, even
if the extent of it is considerably greater than might reasonably be foreseen
because of his extreme susceptibility. If the eggshell skull cases are relevant
to the issue of whether a duty of care exists, it follows that they cannot be
reconciled with the cases on the standard by which foreseeability is to be
judged. If the position were otherwise, and they were relevant to the issue
of whether a duty exists, there would be no one to whom a duty was not
owed and foreseeability would include the unforeseeable: see McLoughlin
v. O'Brian [1983] 1 A.C. 410, 4 2 0 F - G ; Dillon v. Legg, 29 A.L.R. 3d 1316,
1325; Bourhill v. Young [1943] A.C. 92, 101, 109-110 and Pollard v.
Makarchuk (1958) 16 D.L.R. (2d) 225, 230.
It is to be inferred that the reason for raising the issue of why
foreseeability is judged retrospectively in cases of nervous shock but
prospectively in cases of physical injury is to support a further argument
163
1 A.C.
to the effect that, if foreseeability of nervous shock is judged prospectively,

it is foreseeable that even the most trivial accident may lead to quite
horrific consequences which may foreseeably result in nervous shock, even
to a person of normal fortitude. It would therefore follow that the
foreseeability test was satisfied in this case, notwithstanding that the
accident did not lead to horrific consequences or, indeed, anything more
than a small bump between two cars. There is authority that suggests that
foreseeability is judged after the event in nervous shock cases: see Alcock
v. Chief Constable of South Yorkshire Police [1992] A.C. 310, 4 0 0 A - B ;
McLoughlin v. O'Brian [1983] A.C. 410, 4 2 0 F - G . However, it is not always
judged retrospectively and on occasions the foreseeability question is
expressed prospectively: see Chadwick v. British Railways Board [1967]
1 W.L.R. 912, 920G.
"
The reason why the test is often expressed retrospectively in nervous

shock cases is probably a combination of the following points, (i) The
question the court asks itself in both physical and psychiatric injury cases
is almost always hypothetical. It can only be asked at all either by
assuming the events which occurred in order to phrase it prospectively, or
retrospectively by stating the facts as they are proved at the trial, (ii) The
court always considers foreseeability retrospectively in cases involving
physical injury as well as in cases of psychiatric injury. It is easier to
express the question posed in prospective terms in the simple factual
situations which usually give rise to physical injury claims than in the
more complex situations which typically give rise to psychiatric injury
claims, (iii) In this class of case the court is considering not only the event
itself but also the consequences of that event in order to consider whether
a duty is owed. Until all the consequences of an event are known, it is
difficult to frame the appropriate hypothetical question to be asked.
(iv) Even if it is possible to phrase the question prospectively, the result
may be less elegant, as demonstrated, perhaps, in Chadwick v. British
Railways Board.
Even if there is a distinction between the manner in which the test is
considered, it is a distinction without difference. The circumstances under
consideration by the court are always the same, the only difference is the
manner in which the question is posed. That some other and different set
of circumstances may have occurred is not relevant to a consideration of
the liability of the defendant for the events which did occur.
The next question is whether the fact that the plaintiff suffered what
might be described as physical symptoms as a consequence of his nervous
shock should result in his nervous shock being categorised as physical
injury for the purpose of the foreseeability test. The physical symptoms of
psychiatric illness have always been treated as part of psychiatric illness:
see McLoughlin v. O'Brian [1983] 1 A.C. 410, 418B. N O doubt symptoms
are just as disabling when they result from psychiatric illness as when they
result from bodily injury. The cause of them is not the same. Many
plaintiffs suffering from nervous shock have some physical symptoms. The
practical consequence of drawing a distinction between those with and
those without physical symptoms would not justify any distinction. It
would (a) lead to very random results, allowing some plaintiffs to succeed
in their claims for damages when other, almost identical, plaintiffs would
164
[1996]
fail in their claim; (b) lead to the courts considering minor elements of the
symptoms of nervous shock, rather than the condition leading to those
symptoms; (c) lead to a court having to consider whether a physical
complaint which results from a psychiatric condition exists as a physical
symptom or not; and (d) end the distinction between nervous shock and
bodily injury as different types of damage in many cases.
The accident was a trivial incident and the consequences alleged were
outside the experience of the medical experts, many of whom specialised
in the treatment of this condition. The Court of Appeal's conclusion that
the injury by shock was not foreseeable, given the test of foreseeability
applied, was both inevitable and correct.
Hogarth following. The Commonwealth and foreign cases are important
for several reasons, (i) All the cases are concerned with the question of
the extent of a person's liability for his acts and the reason for that
restriction, (ii) The Australian cases are especially similar in this area as
they follow The Wagon Mound [1961] A.C. 388 which effectively
incorporates the nervous shock cases, (iii) Two of the cases are
"participant" cases: Mount ha Mines Ltd. v. Pusey (1970) 125 C.L.R. 383
and Pollard v. Makarchuk, 16 D.L.R. (2d) 225. (iv) They all demonstrate
that foreseeability of injury by shock is the sole test for liability in cases
involving injury by shock, (v) The distinction the plaintiff makes between
a bystander and a participant is unsupported by any British authority but
can be said to be not inconsistent with those authorities. They are all
silent on the point in the sense that it is not referred to, either because
there is no difference or because there is but the plaintiff is the first person
to see the distinction. The fact that no such distinction is found elsewhere
in the authorities or in the textbooks suggests that it does not exist.
The plaintiff submits that he does not need to prove that damage by
nervous shock was foreseeable if damage of physical injury was foreseeable.
That position is clearly untenable in view of the decisions in Bourhill v.
Young [1943] A.C. 92; Alcock v. Chief Constable of South Yorkshire Police
[1992] 1 A.C. 310; McLoughlin v. O'Brian [1983] 1 A.C. 410; King v.
Phillips [1953] 1 Q.B. 429 and The Wagon Mound [1961] A.C. 388. The
plaintiff says that the test as stated should be qualified by the words "in
the case of a bystander only, but in the case of a participant it is only
necessary to foresee some personal injury." There can only be three
reasons for drawing such a distinction, (i) It may be based on the fact
that he suffered some blow or bodily injury, (ii) It may be based upon the
fact that the plaintiff was in fear for his own safety, (iii) It may be based
upon the fact that the plaintiff was in the zone of physical danger. This is
in effect a description of the historical limits on liability in cases of
nervous shock. The first category is Victorian Railways Commissioners v.
Coultas, 13 App.Cas. 222, the second is Dulieu v. White & Sons [1901]
2 K.B. 669, and the third has never been a criterion for limiting liability
in the United Kingdom. If it exists at all it was in the short period
between the decisions in Hambrook v. Stokes Brothers [1925] 1 K.B. 141
and Bourhill v. Young [1943] A.C. 92. The first of these rationales does not
assist a plaintiff who has no physical injury. As to the second, the example
given in Hambrook v. Stokes Brothers of the two women crossing the road
"
165
1 A.C.
"
"
demonstrates that it has no logical basis. The third is the only one which
survives as a possibility.
As to the zone of physical danger, if it ever existed as a reason for
denying liability, that restriction was abandoned many years ago. It was
inevitably arbitrary. It did not add anything to the second of the
postulated rationales, and it is difficult to see why it should be used as an
inclusionary or an exclusionary criterion.
The development of the law in other common law jurisdictions follows
the same patterns. The reasons for the progressive abandonment of these
barriers serves to demonstrate the untenability of the putative rationales:
see Dillon v. Legg, 29 A.L.R. 3d 1316.
If there is liability for all the consequences of whatever kind once some
physical damage is foreseeable, there was nothing to be decided in Smith
v. Leech Brain & Co. Ltd. [1962] 2 Q.B. 405, and probably nothing to
decide in Hughes v. Lord Advocate [1963] A.C. 837. Tremain v. Pike [1969]
1 W.L.R. 1556 was wrongly decided. Moreover, Brice v. Brown [1984]
1 All E.R. 997 and Schneider v. Eisovitch [1960] 2 Q.B. 430 were decided on
an unnecessary basis. [Reference was also made to Pollard v. Makarchuk,
16 D.L.R. (2d) 225.] The rule contended for is inconsistent with the
decision in The Wagon Mound [1961] A.C. 388. The Australian cases
demonstrate that The Wagon Mound principle applies without the
unwritten qualification suggested by the plaintiff: see Mount Isa Mines
Ltd. v. Pusey, 125 C.L.R. 383, 392, 394; Jaensch v. Coffey, 155 C.L.R.
549, 555, 568, 604-605 and Sutherland Shire Council v. Heyman, 157
C.L.R. 424, 486, 487. The textbooks demonstrate that the distinction
argued for does not exist: see Mullany and Handford, Tort Liability for
Psychiatric Damage (1993), pp. 64-73, 224-238; Linden, Canadian Tort
Law, 5th ed. (1993), pp. 363-379 and Clerk & Lindsell on Torts, 16th ed.
(1989), pp. 437-443, 577-591.
As to when foreseeability is judged, it is said that foreseeability should
always be judged in advance. But it may be difficult to do so. Why there
should be a distinction between a bystander and a participant is unclear.
One may be able to deduce from the foreign authorities that there are two
reasons for permitting the inclusion of the consequences of the defendant's
acts, (i) The correct rule is exclusionary in that some may be excluded
from compensation for the injuries which they have in fact suffered, its
limits being drawn as a matter of policy. As a matter of policy there is a
willingness to look at the consequences before deciding whether to allow
a remedy, for it would be unjust to permit someone who has created a
gruesome event to escape the consequences. The more gruesome the event
the more likely it is that a court will consider that a remedy is appropriate.
(ii) The essence of the shock is the effect that an event has on the mind,
which leads to physical consequences. In order to see whether that event
is foreseeable, it is necessary to look at the circumstances at the moment
when the event operates on the mind and this is inevitably after the event.
As to the objective test of foreseeability at the breach of duty stage,
the plaintiff submits that the test of foreseeability is whether the
consequences are remote or far-fetched or would not be brushed aside. If
they cannot be then it is said that the claim succeeds. The answer to this
proposition is sixfold, (i) The cases referred to are remoteness cases.
166
[1996]
(ii) In Jaensch v. Coffey, 155 C.L.R. 549 the reference to the remoteness
test in C. Czarnikow Ltd. v. Koufos [1969] 1 A.C. 350 is explained in terms
that once duty is established there are favourable rules permitting recovery
for all damage of the same type, (iii) There is always an objective standard
applied when the existence of a duty is being considered and the cases
referred to are cases dealing with remoteness of damage once duty is
established. Dillon v. Legg, 29 A.L.R. 3d 1316 and Jaensch v. Coffey make
it clear that this objective test is correct when dealing with the existence
of duty. An objective test is necessary or else the term foreseeability is
meaningless in that one must be taken to foresee all damage if it occurs.
(iv) It is possible to view the test of reasonable fortitude as being the
mirror image of the rule that reasonable foreseeability is an objective test.
This helps to explain the existence of the man of reasonable fortitude
when duty is being considered. He is the check of reasonable foreseeability
if an objective criterion is used. It will be seen that all jurisdictions have
accepted this criterion, (v) The old cases labour under the difficulty that
foreseeability was viewed as a criterion not relating to liability but to
damages, (vi) There is no authority which supports a contrary view.
[Reference was made to Abramzik v. Brenner (1967) 65 D.L.R. (2d) 651
and Marshall v. Lionel Enterprises Inc., 25 D.L.R. (3d) 141.]
Mackay Q.C., in reply, referred to Alcock v. Chief Constable of South
Yorkshire Police [1992] 1 A.C. 310; Bourhill v. Young [1943] A.C. 92; King
v. Phillips [1953] 1 Q.B. 429; Nader v. Urban Transit Authority of New
South Wales [1985] 2 N.S.W.L.R. 501; McFarlane v. E.E. Caledonia Ltd.
[1994] 2 All E.R. 1; Mount Isa Mines Ltd. v. Pusey, 125 C.L.R. 383;
Dooley v. Cammell Laird & Co. Ltd. [1951] 1 Lloyd's Rep. 271; Schneider
v. Eisovitch [1960] 2 Q.B. 430 and Jaensch v. Coffey, 155 C.L.R. 549.
"
Their Lordships took time for consideration.

11 May. LORD KEITH OF KINKEL. My Lords, on 24 July 1987 the
plaintiff, Mr. Page, was involved in a motor accident. He was driving his
Volvo car along a road in Bury St. Edmunds when the defendant,
Mr. Smith, driving his Datsun car in the opposite direction, cut across to
enter a side road. A collision occurred. The plaintiff sustained no bodily
injury. Neither did the defendant or his wife and child who were with him
in his car. However, the plaintiff had for a very long time been suffering
from a condition variously described as myalgic encephalomyelitis
("M.E."), or ehronic fatigue syndrome ("C.F.S.") or post-viral fatigue
syndrome ("P.V.F.S."), which had manifested itself from time to time
with different degrees of severity. The plaintiff had suffered a particularly
severe attack in March 1987, apparently as a result of a viral infection,
but his evidence was that he was recovering from it and hoped to be able
to return to his work as a teacher in September 1987. The plaintiff took
proceedings against the defendant claiming damages for personal injuries
caused by the defendant's negligence. His case was that his condition of
what I shall, for convenience, refer to as C.F.S. had as a result of the
accident become chronic and permanent so that he would never be able
to work again. Trial took place before Otton J., who on 22 December
1992 found in the plaintiffs favour and awarded him damages of 162,153.
167
1 A.C.
"
Lord Keith of Kinkel
The defendant appealed, and on 30 March 1994 the Court of Appeal

(Ralph Gibson, Farquharson and Hoffmann L.JJ.) reversed the decision
of Otton J. and entered judgment for the defendant. The plaintiff now
appeals to your Lordships' House.
The question primarily at issue is whether in claims for damages due
to nervous shock it is in all cases incumbent upon the plaintiff to prove
that injury by nervous shock was reasonably foreseeable by the defendant,
or whether it suffices, where the plaintiff was himself involved in an
accident, for him to prove that personal injury of some kind was
reasonably foreseeable as a result of it. The trial judge took the latter view
but the Court of Appeal unanimously took the former. Ralph Gibson L.J.
was in addition of the opinion that the plaintiff had not proved that his
recrudescence of C.F.S. was caused by the accident. The other two
members of the Court of Appeal did not deal with that matter.
It is necessary at the outset to particularise what is meant by "nervous
shock," such as may result in liability for damages. The decided cases
indicate that it means a reaction to an immediate and horrifying impact,
resulting in some recognisable psychiatric illness. There must be some
serious mental disturbance outside the range of normal human experience,
not merely the ordinary emotions of anxiety, grief or fear. As was
observed by Lord Oliver of Aylmerton in Alcock v. Chief Constable of
South Yorkshire Police [1992] 1 A.C. 310, 407, the cases divide broadly
into two categories, those in which the plaintiff was involved as a
participant in the incident which gave rise to the action, and those in
which the plaintiff was a witness to injury caused to others, or to the
immediate aftermath of an accident to others. The first category includes
Dulieu v. White & Sons [1901] 2 K.B. 669, where the plaintiff was terrified
by a cart and horses bursting into the public house where she was
employed, and Schneider v. Eisovitch [1960] 2 Q.B. 430, where the plaintiff
was herself injured in the accident which resulted in the death of her
husband. Cases in the second category include Hambrook v. Stokes
Brothers [1925] 1 K.B. 141, where a mother was terrified by the prospect
of injury to her children from a runaway lorry, and McLoughlin v. O Brian
[1983] 1 A.C. 410, where the plaintiff shortly after a road accident saw her
husband and children badly injured in hospital. Liability for negligence
depends upon proof both that it was reasonably foreseeable that injury
would result from the act or omission called in question and that a
relationship of proximity existed between plaintiff and defendant. Where
the plaintiff is personally involved in a terrifying incident proof of
proximity presents no problem. Where, however, the plaintiff is what may
be described as a secondary victim proximity may be very difficult to
establish. It was held to exist in McLouglin v. O'Brian [1983] 1 A.C. 410
but not in Alcock v. Chief Constable of South Yorkshire Police [1992]
1 A.C. 310. Proximity clearly existed in the present case. Further, it was
clearly reasonably foreseeable that the plaintiff might suffer physical injury
in the accident, though in the event he did not. The question is whether
or not the plaintiff was required to prove that it was reasonably foreseeable
that he would suffer such nervous shock as was capable of leading to
some identifiable illness.
168
Lord Keith of Kinkcl
11996]
The decided cases reveal several observations indicating that this

question is to be answered in the affirmative!
In King v. Phillips [1953] 1 Q.B. 429, 441 Denning L.J. said:
"Howsoever that may be, whether the exemption for shock be based
on want of duty or on remoteness, there can be no doubt since
Bourhill v. Young [1943] A.C. 92 that the test of liability for shock is
foreseeability of injury by shock."
That statement was endorsed by Viscount Simonds in Overseas Tankship
(U.K.) Ltd. v. Moris Dock & Engineering Co. Ltd. (The Wagon Mound)
[1961] A.C. 388, 426.
In Mount Isa Mines Ltd. v. Pusey (1970) 125 C.L.R. 383, 402
Windeyer J. said:
"In what way does one test whether a particular harm is of the
genus that was foreseeable? We have at least one 'fixed and definite
line.' Liability for nervous shock depends on foreseeability of nervous
shock. That, not some other form of harm, must have been a
foreseeable result of the conduct complained of. The particular
pathological condition which the shock produced need not have been
foreseeable. It is enough that it is a 'recognisable psychiatric illness.'"
In Jaensch v. Coffey (1984) 155 C.L.R. 549, 595 Deane J. said,
referring to Bourhill v. Young [1943] A.C. 97:
"one finds in the judgments an implicit (explicit in the case of Lord
Porter, at p. 119) acceptance of a refinement of the ordinary test of
reasonable foreseeability of injury which has subsequently received
general acceptance: in the case of mere psychiatric injury, the
requirement of reasonable foreseeability will not be satisfied unless
injury in that particular form, as distinct from personal injury generally
. . . was reasonably foreseeable." (Deane J.'s emphasis.)
Later, he said, at p. 604:

"The limitations upon the ordinary test of reasonable foreseeability
in cases of mere psychiatric injury are conveniently stated in negative
form. Two of them have already been mentioned. The first of those is
that reasonable foreseeability of risk of personal injury generally will
not suffice to give rise to a duty of care to avoid psychiatric injury
unassociated with conventional physical injury: a duty of care will
not arise unless risk of injury in that particular form was reasonably
foreseeable."
In Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. (The
Wagon Mound (No. 2)) [1967] 1 A.C. 617, 636, Lord Reid stated as a
general proposition applicable to cases based on negligence:
"It has now been established by The Wagon Mound [1961] A.C. 388
and by Hughes v. Lord Advocate [1963] A.C. 837 that in such cases
damages can only be recovered if the injury complained of was not
only caused by the alleged negligence but was also an injury of a class
or character foreseeable as a possible result of it."
That general proposition is valid in principle both as regards persons
directly involved in an accident who claim on grounds of nervous shock
169
1 A.C.
**
"
and as regards those who claim as secondary victims. Reasonable

foreseeability being the test, there is no logical ground for distinguishing
between the two classes of claimants.
A considerable amount of argument ranged over the question whether
in applying the test of reasonable foreseeability in cases of nervous shock
matters fell to be considered prospectively or ex post facto. In Bourhill v.
Young [1943] A.C. 92, 110, Lord Wright said: "It is here, as elsewhere, a
question of what the hypothetical reasonable man, viewing the position,
I suppose ex post facto, would say it was proper to foresee."
In McLoughlin v. O'Brian [1983] 1 A.C. 410 Lord Wilberforce spoke
to similar effect at p. 420, and Lord Bridge of Harwich at p. 432. I think
that what these judges had in mind was that it is necessary to look at the
circumstances as they actually occurred and consider whether the
hypothetical reasonable man, when directing his mind to the act or
omission which is called in question, would have foreseen those
circumstances, including that some person in the position of the plaintiff
might as a result of what happened suffer nervous shock leading to an
identifiable illness. Lord Wilberforce in McLoughlin v. O'Brian, at p. 422,
mentioned that one of the factors in the light of which the claim had to
be judged was the nature of the accident.
Foreseeability of nervous shock is to be judged in the light of what
would be suffered by a person of normal fortitude. In Bourhill v. Young
[1943] A.C. 92, 110, Lord Wright said:
"What is now being considered is the question of liability, and
this, I think, in a question whether there is a duty owing to members
of the public who come within the ambit of the act, must generally
depend on a normal standard of susceptibility."
Lord Porter said much the same thing, at p. 117, and in McLoughlin v.
O'Brian [1983] 1 A.C. 410 Lord Russell of Killowen said, at p. 429: "the
plaintiff is to be regarded as of normal disposition or phlegm: we are
therefore not concerned to investigate the applicability of the 'thin skull'
cases to this type of case."
I turn to apply the foregoing principles to the facts of the present case.
The defendant can be liable only if the hypothetical reasonable man in his
position should have foreseen that the plaintiff, regarded as a person of
normal fortitude, might suffer nervous shock leading to an identifiable
illness. For this purpose the nature of the accident is to be taken into
account. The collision which occurred between the two cars is described
by the trial judge as one of "moderate severity." No one involved sustained
any bodily injury whatever. The plaintiff was able to drive his car home
after the accident, though the damage to the car was such that owing to
its age it was not economic to repair it, so that it was written off. The
trial judge also said that the collision "must have been a frightening
experience for Mr. Page and I have no doubt that he did suffer nervous
shock in the broad sense of the word." These are inferences by the trial
judge from the fact that a collision of moderate severity occurred. The
plaintiff himself gave no evidence to the effect that he was at all frightened
or shaken up. He did, however, give evidence that some three hours after
the accident he began to suffer symptoms indicative of a recrudescence of
170
|1996|
C.F.S. Whether this recrudescence was attributable to the accident is

debatable. Ralph Gibson L.J., after a careful review of the evidence, took
the view that it was not. But assuming that it was, this can only be on
account of the plaintiffs peculiar susceptibility. In my opinion a reasonable
man in the position of the defendant would not have foreseen that an
accident of the nature that he actually brought about might inflict on a
person of normal susceptibility such mental trauma as to result in illness.
There is no question of the plaintiff having been terrified by his experience,
as the plaintiff foreseeably was in Dulieu v. White & Sons [1901] 2 K.B.
669, or having suffered an "acute emotional trauma," to use the expression
of Lord Bridge of Harwich in McLoughlin v. O Brian [1983] 1 A.C. 410,
433.
My Lords, for these reasons I would dismiss this appeal.
C
My Lords, I have had the advantage of reading in
draft the speech of my noble and learned friend, Lord Lloyd of Berwick.
I agree with it and for the reasons he gives I, too, would allow this appeal
and make the order he proposes.
As regards Mr. Mackay's alternative submission, namely, that if it was
necessary to establish foreseeability of injury by nervous shock in a person
of normal fortitude, then the Court of Appeal were wrong to hold that
such injury was not foreseeable, I should like to add the following
observation.
Assuming in favour of the respondent that the circumstances of the
accident were such that (1) the risk of injury by nervous shock was
remote; and (2) such a risk, although a possibility would become an
actuality only in very exceptional circumstances.
Nevertheless, the risk could not be said to be so far-fetched or fantastic
as to be "a mere possibility which would never occur to the mind of a
reasonable man:" per Lord Dunedin in Far don v. Harcourt-Rivington
(1932) 146 L.T. 391, 392. The risk was a real risk in the sense that it was
justifiable not to take steps to eliminate it only if the circumstances were
such that a reasonable man, careful of the safety of his neighbours, would
think it right to neglect it. A reasonable man would only neglect such a
risk if he had some valid reason for doing so, e.g. if it would involve
considerable expense to eliminate the risk. He would weigh the risk against
the difficulty of eliminating it: see The Wagon Mound (No. 2) [1967]
1 A.C. 617, 640-642, per Lord Reid, where for the reasons which have
already been explained, the evidence led was substantially different from
the evidence led in The Wagon Mound. Of course, there was no justification
whatsoever for the respondent suddenly and without warning driving
across the path of the appellant, thereby making what must have been a
frightening collision inevitable.
The risk of injury by nervous shock was clearly foreseeable. A person
of "normal fortitude," whatever that imprecise phrase may mean, could
well have been terrified by the event and the resultant assault on his or
her nervous system could well have caused a post-traumatic neurosis of
one kind or another. That it would have been as serious and as long
lasting, as occurred in this case, is accepted by the respondent to be
nothing to the point.
LORD ACKNER.
171
1 A.C.
"
"
LORD JAUNCEY OF TULLICHETTLE. My Lords, the primary issue in this

appeal is whether in a case of injury resulting solely from nervous shock a
plaintiff must show that injury of such a type was foreseeable or whether
it is sufficient to show that any personal injury was foreseeable. By
nervous shock, I mean such an impact upon the mind or nervous system
as is recognised by modern medical science as capable of causing physical
or psychiatric illness. The ordinary emotions of anxiety, fear, grief or
transient shock are not conditions for which the law gives compensation.
The appellant accepts that in what may be described as bystander cases
where there is no direct impact upon the plaintiff it is necessary to
establish the foreseeability of nervous shock. However he maintains that
in participant cases, where there is direct involvement of the plaintiff in
the negligent act, such foreseeability need not be established. It suffices
that any personal injury may be foreseen. Much stress was laid by the
appellant upon the distinction between participant and bystander and it is
therefore appropriate to consider whether it is supported by principle or
authority. When a plaintiff suffers damage as a result of the negligent act
of another he must establish foreseeability of the general type of damage
before he can succeed. The fact that personal injury is a likely consequence
will not support a claim for pure economic loss. In the normal personal
injury case arising from a factory or road accident the foreseeability of
such injury arising from the negligent act seldom requires to be addressed
since it is self evident from the circumstances. However that is not to say
that the need for it is dispensed with. It is by no means impossible that a
plaintiff could be directly involved in an accident caused by a negligent
act where the circumstances required specific proof that injury was
foreseeable. In Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering
Co. Ltd. (The Wagon Mound) [1961] A.C. 388, 426, the judgment of the
Board contained the following observations:
"Their Lordships conclude this part of the case with some general
observations. They have been concerned primarily to displace the
proposition that unforeseeability is irrelevant if damage is 'direct.' In
doing so they have inevitably insisted that the essential factor in
determining liability is whether the damage is of such a kind as the
reasonable man should have foreseen. This accords with the general
view thus stated by Lord Atkin in Donoghue v. Stevenson [1932] A.C.
562, 580: 'The liability for negligence, whether you style it such or
treat it as in other systems as a species of "culpa," is no doubt based
upon a general public sentiment of moral wrongdoing for which the
offender must pay.' It is a departure from this sovereign principle if
liability is made to depend solely on the damage being the 'direct' or
'natural' consequence of the precedent act. Who knows or can be
assumed to know all the processes of nature?"
If therefore a plaintiff who is directly involved in an accident requires
to establish that the physical injuries sustained by him were the foreseeable
consequences of a negligent act it is not easy to see in principle why such
a plaintiff who suffers merely nervous shock and its consequences should
not require to prove that it was similarly foreseeable. As a matter of
common sense physical injuries are far more likely to result from an
172
Lord Jauncey of Tullichettle
|1996|
impact accident than is nervous shock causing subsequent illness. While it

is not uncommon for a severe physical injury to give rise to some degree
of psychiatric illness it is not the law that such illness is presumed to be a
foreseeable consequence of every physical injury, rather does each case
depend on its own circumstances. If therefore the foreseeability of
psychiatric illness consequent upon physical injury requires to be
established independently of the foreseeability of the physical injury why
should the position be different where there was at the most a risk of
physical injury which never eventuated?
I turn to consider some of the authorities. In Bourhill v. Young [1943]
A.C. 92 an Edinburgh fish wife sought damages from the executor of a
deceased motorcyclist whose negligence caused him to collide with a
motor car on the side of a tramcar opposite to that beside which the
pursuer was standing. She did not, and indeed could not, see the collision
but heard the noise and was frightened thereby although she had no
reasonable fear of injury to herself. This House rejected her claim for
nervous shock and consequential physical injuries on the ground that the
motorcyclist owed her no duty since the reasonable hypothetical observer
could not have foreseen that placed as she was the pursuer could have
been affected by the accident in the manner in which she was. In short it
was not foreseeable that she would suffer nervous shock. This lack of
foreseeability went not to remoteness of damage but to the existence of a
duty as was pointed out by Lord Russell of Killowen in the following
passage, at p. 101:
"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
compensation."
Bourhill v. Young was followed in King v. Phillips [1953] 1 Q.B. 429
where a mother saw a taxi some 70 yards away reverse towards and run
apparently over her small son whom she heard scream. He was in fact
only slightly hurt. Denning L.J., after dismissing the concept of there
being two different torts, namely one where physical injury is foreseeable
and another where emotional injury is foreseeable, concluded that the
only consequences for which a tortfeasor was excused were those which
were too remote. He continued, at p. 441: "Howsoever that may be,
whether the exemption for shock be based on want of duty or on
remoteness, there can be no doubt since Bourhill v. Young [1943] A.C. 92
that the test of liability for shock is foreseeability of injury by shock."
This passage was referred to with approval in the following passage in
the judgment of the Board in The Wagon Mound[\96\] A.C. 388, 426:
"We have come back to the plain common sense stated by Lord
Russell of Killowen in Bourhill v. Young [1943] A.C. 92, 101. As
173
1 A.C.
Denning L.J. said in King v. Phillips [1953] 1 Q.B. 429, 441 'there can
be no doubt since Bourhill v. Young that the test of liability for shock
is foreseeability of injury by shock.' Their Lordships substitute the
word 'fire' for 'shock' and endorse this statement of the law."
The plain common sense stated by Lord Russell of Killowen is to be
found in the passage, at p. 101, to which I have already referred. In
McLoughlin v. O'Brian [1983] 1 A.C. 410, 432, although the appellant
(plaintiff), accepted that the agreed test for liability for shock was the
foreseeability thereof Lord Bridge of Harwich said:
"The judges, in all the decisions we have been referred to, have
assumed that it lay within their own competence to determine whether
the plaintiffs 'nervous shock' (as lawyers quaintly persist in calling
it) was in any given circumstances a sufficiently foreseeable
consequence of the defendant's act of omission relied on as negligent
to bring the plaintiff within the scope of those to whom the defendant
owed a duty of care."
He later stated, at p. 433:
"The question, then, for your Lordships' decision is whether 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, if so,
where that line is to be drawn."
It was argued that Denning L.J. had misunderstood the reasoning in
Bourhill v. Young [1943] A.C. 92 and that his error had been perpetuated
in later cases. I do not consider that this criticism is justified. In both King
v. Phillips [1953] 1 Q.B. 429 and in Bourhill v. Young the only injury relied
upon by the plaintiff was that resulting from nervous shock. The pursuer
failed in Bourhill v. Young because it was held that the motorcyclist could
not reasonably have foreseen that she would suffer nervous shock as a
result of his negligent driving. The factual position in King v. Phillips was
broadly similar and it seems to me that Denning L.J. was doing no more
than recognise that where the only injury complained of results from
nervous shock foreseeability of such shock must be established before a
breach of duty can arise.
My Lords, as is so often the case in the field of negligence valuable
contributions to the discussion are to be found in judgments of the High
Court of Australia and in the context of this appeal I propose to refer to
two. In Mount Isa Mines Ltd v. Pusey, 125 C.L.R. 383 two electricians in
a power house were horribly burnt following an explosion and an electric
arc of intense heat. The plaintiff who was working on a lower floor heard
the noise, immediately went to investigate and helped one of the two
electricians down to an ambulance. He later developed a serious mental
disturbance. The High Court, in holding the defendant liable, accepted
that the test of liability for shock was foreseeability of injury by shock.
Windeyer J., after referring to a passage in the judgment of Dixon J. in
an earlier case in The High Court of Australia said, at p. 395:
"This passage is noteworthy: first, as an anticipation of the presentday rule that a cause of action for nervous shock depends on
174
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foreseeability of harm 'of some such nature' as that which actually

occurred. Secondly, it emphasises that nervous shock cases are not a
new tort: they turn simply on the circumstances in which damages are
recoverable for a particular kind of harm caused by a tort."
He said, at p. 402:
"In what way does one test whether a particular harm is of the
genus that was foreseeable? We have at least one 'fixed and definite
line.' Liability for nervous shock depends on foreseeability of nervous
shock. That, not some other form of harm, must have been a
foreseeable result of the conduct complained of. The particular
pathological condition which the shock produced need not have been
foreseeable. It is enough that it is a 'recognisable psychiatric illness.'"
C
Walsh J. said, at p. 413:
"One must ask also whether or not the finding that 'shock and
some form of mental illness or neurosis' was foreseeable satisfies the
requirements of the principle asserted in The Wagon Mound [1961]
A.C. 388, 426 that 'the essential factor in determining liability is
whether the damage is of such a kind as the reasonable man should
have foreseen.' In the application of this principle there may be
difficulty in some cases in determining whether damage for which an
action is brought and damage which was foreseeable are the same
'kind' of damage. But in the present case there are two reasons which
appear to me to justify the conclusion reached by Skerman J. The
first is that it is not a condition of liability that either the precise
character of the damage or the extent of it should have been foreseen.
It is necessary only that the damage suffered should not be different
in kind from that which was foreseeable: see Hughes v. Lord Advocate
[1963] A.C. 837, 845 and Chapman v. Hearse (1961) 106 C.L.R. 112,
121. The second reason is that in The Wagon Mound [1961] A.C. 388,
426 express approval was given to the statement of Denning L.J. in
King v. Phillips [1953] 1 Q.B. 429, 441 that 'there can be no doubt
since Bourhill v. Young [1943] A.C. 92 that the test of liability for
shock is foreseeability of injury by shock.' Thus injury by shock is
treated as a distinct 'kind' or class of damage for the purposes of the
general principle enunciated in The Wagon Mound [1961] A.C. 388
that liability depends upon the foreseeability of the kind of damage
for which the defendant is sued."
In Jaensch v. Coffey (1984) 155 C.L.R. 549, 566 the High Court held
that it was reasonably foreseeable that a wife who visited her seriously
injured husband in hospital would suffer shock inducing a psychiatric
illness. Brennan J. after a detailed consideration of authorities including
Bourhill v. Young, the two Wagon Mound cases, Mount Isa Mines Ltd. v.
Pusey and McLoughlin v. O'Brian said, at p. 566:
"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 [1961]
175
1 A.C.
r_)
A.C. 388, 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 recognisable psychiatric
illness induced by shock must be reasonably foreseeable."
Deane J. expressed views to a similar effect, at p. 604:
that reasonable foreseeability of risk of personal injury generally will
not suffice to give rise to a duty of care to avoid psychiatric injury
foreseeable."
In the U.S.A. Tobriner J., delivering the judgment of the Supreme
Court of California in Dillon v. Legg (1968) 29 A.L.R. 3d 1316, also refers
to the fact that the law of tort holds a defendant liable only for injuries to
others which to the defendant at the time were reasonably foreseeable,
and he continued later, at pp. 1325-1326:
"This foreseeable risk may be of two types. The first class involves
actual physical impact. A second type of risk applies to the instant
situation. 'In other cases, however, plaintiff is outside the zone of
physical risk (or there is no risk of physical impact at all), but bodily
injury or sickness is brought on by emotional disturbance which in
turn is caused by defendant's conduct. Under general principles
recovery should be had in such a case if defendant should foresee
fright or shock severe enough to cause substantial injury in a person
normally constituted' . . . (2 Harper & James, The Law of Torts
(1956) at 1035-1036)."
It was urged upon your Lordships that all these cases involved
bystanders as opposed to participants and that they were therefore not
relevant to the present appeal where the appellant was directly involved in
the collision. I reject this submission for two reasons. In the first place in
none of the judgments was it suggested that the need to prove foreseeability
of nervous shock was other than a general requirement applicable to all
cases where damages therefor were claimed. Indeed The Wagon Mound
[1961] A.C. 388 was a case of direct damage by fire, comparable to a
participant case, but the judgment nevertheless applied to it the dictum of
Denning L.J. to which I have already referred, in King v. Phillips [1953]
1 Q.B. 429, 441, albeit substituting "fire" for "shock." In the second place
foreseeability of injury is necessary to determine whether a duty is owed
to the victim. Unless such injury can be foreseen the victim is not a
neighbour within the celebrated dictum of Lord Atkin in Donoghue v.
Stevenson [1932] A.C. 562 and cannot recover. A victim therefore has to
establish neighbourhood whether he is a participant in the negligent act or
merely a bystander and there can be justification neither in law nor in
logic for departing from the general principles expressed in Donoghue v.
Stevenson. I have no doubt that the Court of Appeal were correct to
176
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conclude that the appellant could only succeed if he could demonstrate

that nervous shock giving rise to some form of psychiatric illness was a
foreseeable consequence of the respondent's negligence.
The appellant relied strongly on a passage in the speech of Lord Oliver
of Aylmerton in Alcock v. Chief Constable of South Yorkshire Police [1992]
1 A.C. 310, 406. After referring to the fact that compensatable injury may
be caused just as much by a direct assault upon the nervous system as by
direct physical contact with the body Lord Oliver continued, at p. 407:
"Cases in which damages are claimed for directly inflicted injuries of
this nature may present greater difficulties of proof but they are not,
in their essential elements, any different from cases where the damages
claimed arise from direct physical injury and they present no very
difficult problems of analysis where the plaintiff has himself been
directly involved in the accident from which the injury is said to arise.
In such a case he can be properly said to be the primary victim of the
defendant's negligence and the fact that the injury which he sustains
is inflicted through the medium of an assault on the nerves or senses
does not serve to differentiate the case, except possibly in the degree
of evidentiary difficulty, from a case of direct physical injury."
Lord Oliver then went on to remark that cases of "liability for nervous
shock" broadly divided into two categories:
"that is to say, those cases in which the injured plaintiff was involved,
either mediately or immediately, as a participant, and those in which
the plaintiff was no more than the passive and unwilling witness of
injury caused to others. In the context of the instant appeals the cases
of the former type are not particularly helpful, except to the extent
that they yield a number of illuminating dicta, for they illustrate only
a directness of relationship (and thus a duty) which is almost selfevident from a mere recital of the facts."
It was argued that these passages supported the contention that

foreseeability of nervous shock was not necessary in a direct participation
case. I do not agree. Lord Oliver was considering proximity as
determinative of the existence of a duty of care and drawing a distinction
between a victim directly involved in an accident and one who merely
witnessed it. He certainly was not saying that a victim directly involved in
an accident did not require to prove the foreseeability of the nervous
shock from which he suffered as a result thereof.
The appellant argued that if foreseeability of nervous shock was
required to be proved by a participant, the assumption of reasonable
fortitude, which applied in the case of a bystander, did not apply to him
but rather that the respondent tortfeasor must take his victim as he found
him. The rule that a tortfeasor is entitled to assume that his victim is of
normal fortitude is designed to limit the class of bystanders to whom a
duty is owed and is neither relevant nor necessary in the case of
participants. Taking your victim as you find him however is relevant, not
to the existence of a duty owed to him but rather to the question of
damages payable in respect of breach of a duty otherwise established. So
far as the fortitude rule is concerned it is necessary to look at a number
of authorities.
"
177
1 A.C.
Lord Jauncey of I ullichclllc
In Wilkinson v. Downton [1897] 2 Q.B. 57 the defendant informed the

plaintiff that her husband had been smashed up in an accident sustaining
two broken legs. This was quite untrue and apparently intended as a
practical joke. The plaintiff however received a severe shock producing
serious physical consequences. Wright J. after concluding that the
defendant had wilfully done an act calculated to cause physical harm said,
at p. 59:
"One question is whether the-defendant's act was so plainly calculated
to produce some effect of the kind which was produced that an
intention to produce it ought to be imputed to the defendant, regard
being had to the fact that the effect was produced on a person proved
to be in an ordinary state of health and mind. I think that it was."
I take from this passage that the judge thought it appropriate to apply
the foreseeability test in the context of a person of normal susceptibility
to such an act. In Bourhill v. Young [1943] A.C. 92, 110 Lord Wright 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 susceptibility."
A few sentences later he said:

"What danger of particular infirmity that would include must depend
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 extraordinary susceptibility, if
unknown to the defendant, would in effect make him an insurer."
Lord Porter said, at p. 117:
"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 McLoughlin v. O'Brian [1983] 1 A.C. 410, 422 Lord Wilberforce

referred to the assumption that ordinary bystanders be possessed of
fortitude sufficient to enable them to endure the calamities of modern life
and Lord Bridge of Harwich, at p. 436, considered that the above quoted
dictum of Lord Porter in Bourhill v. Young [1943] A.C. 92, 117 was as
acceptable in 1982 as it was in 1942. I consider that it is still acceptable in
1995. In Jaensch v. Coffey, 155 C.L.R. 549, 568 Brennan J. said:
"Moreover, it is generally recognised that what will induce a
psychiatric illness in one person may leave another unaffected. Some
people are naturally more robustor less sensitivethan 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
178
Lord Jauncty of Tullichettle
11996)
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 . . .
at p. 110)."
None of these cases involved participants but the observations of Lord

Wright and Brennan J. were stated in fairly broad terms and were not
specifically confined to bystander cases. That there appear to have been
no similar expressions of opinion in relation to participants is, perhaps,
hardly surprising since cases such as the present where a participant
sustains no immediate physical injuries must be rare. However there do
not appear to be reasons in principle or logic for drawing a distinction
between the two classes of person. To take a simple example suppose A
while slowly reversing his car into a tight parking space inadvertently
bumps the car of B which is stationary, B, who is a woman prone to
hysteria, promptly develops that condition with consequential physical
injury. The circumstances are such that no normal person would have
been in any way mentally or physically affected by the bump. Is B to be
compensated because A should have foreseen that a hysterical woman
might be in the car and thereby sustain a shock from a minor bump?
Common sense would loudly say No and in my view the law should and
does likewise. I am satisfied that in determining whether a tortfeasor
should have foreseen that either a participant or a bystander would suffer
nervous shock as a result of his negligent act the proper test is to assume
that the victim is of reasonable fortitude and susceptibility unless, of
course, the tortfeasor has special knowledge of the victim's unusual
condition.
In applying this test in the present appeal consideration must be given
to the precise circumstances in which foresight is to be exercised. The
appellant maintained that the respondent should have applied his mind to
the position immediately before the impact without regard to the
consequences thereof while the respondent submitted that what had
actually occurred must be taken into account. Support for the respondent's
contention is to be found in Bourhill v. Young [1943] A.C. 92, 110 where
Lord Wright said: "It is here, as elsewhere, a question of what the
hypothetical reasonable man, viewing the position, I suppose ex post
facto, would say it was proper to foresee."
In McLoughlin v. O'Brian [1983] 1 A.C. 410, 420 Lord Wilberforce
after referring to Lord Atkin's celebrated dictum in Donoghue v. Stevenson
continued:
"This is saying 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, 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."
"
179
1 A.C.
Lord Jaunccy of Tullichettle
This statement, following as it did immediately after the reference to

Donoghue v. Stevenson, was clearly intended to apply to foreseeability in
negligence generally and not only to cases involving nervous shock to a
bystander. Lord Bridge of Harwich said, at p. 432:
"Then, here comes the all-important question. Given the fact of the
plaintiffs psychiatric illness caused 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 man'?"
Although Lord Bridge posed the question in the context of psychiatric
illness suffered by a bystander he said nothing to suggest that ex post
facto consideration was peculiar to such a situation.
The appellant's argument was that if the respondent had considered
the matter immediately before impact he should have foreseen that a
serious accident was likely to occur. The difficulty about this argument is
that it appears to ignore reality. The question ceases to be whether it is
foreseeable that a reasonably robust person would have suffered psychiatric
illness as a result of what actually happened and becomes instead whether
it is foreseeable that such a person would have suffered psychiatric illness
as a result of what might have happened but did not in fact do so. In this
context I cannot do better than quote the following words of Windeyer J.
in Mount Isa Mines Ltd. v. Pusey, 125 C.L.R. 383, 401:
"the suggestion that because the plaintiff could have had damages if
he had suffered a different kind of harm he can now have damages
for the harm he actually suffered calls to mind the 'imaginary necktie'
and Professor Goodhart's vigorous comments."
My Lords I have no hesitation in adopting the approach of Lord
Wilberforce in McLoughlin v. O Brian [1983] 1 A.C. 410, 420 and in
concluding that foreseeability whether of danger or of injury likely to be
suffered necessarily involves consideration of events as they have actually
occurred.
Against this background I now turn to consider whether it was
foreseeable that the appellant would have suffered some nervous shock
with consequential physical injury as a result of this accident. In all the
reported cases in which a plaintiff has recovered damages for nervous
shock the causative event has been of a dramatic and horrifying nature.
In Dulieu v. White & Sons [1901] 2 K.B. 669 the plaintiff was assumed to
have reasonable apprehension of immediate bodily hurt when the pairhorse
van was driven into the bar where she was working. In Hambrook v.
Stokes Brothers [1925] 1 K.B. 141 the plaintiff saw a runaway lorry
heading in the direction of her children and then discovered that it had
injured one of them. In Attia v. British Gas Pic. [1988] Q.B. 304 a woman
saw her house and all her possessions therein go up in flames. In
McLoughlin v. O'Brian [1983] 1 A.C. 410 a mother found her injured
husband and children in a terrible state in hospital. In that case Lord
Bridge of Harwich pointed out, at p. 433, that the legal profession well
understood that acute emotional trauma could well cause a psychiatric
illness. In Chadwick v. British Railways Board [1967] 1 W.L.R. 912 a
180
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volunteer rescuer at the scene of the Lewisham railway disaster witnessed

horrific scenes during the course of his heroic work. In Mount Isa Mines
Ltd. v. Pusey, 125 C.L.R. 383 the rescuer was faced with a horrifying sight
of his horribly burnt workmate and in Jaensch v. Coffey, 155 C.L.R. 549
a wife saw her husband after an accident in circumstances in which it was
thought that he would not survive. There can be little doubt that in all
these cases the plaintiff suffered the acute emotional trauma referred to by
Lord Bridge of Harwich in McLoughlin v. O'Brian [1983] 1 A.C. 410, 432.
In marked contrast was Nicholls v. Rushton (unreported), 29 April 1992;
Court of Appeal (Civil Division) Transcript No. 401 of 1992, in which the
plaintiff had been driving a car involved in a collision. As in this appeal
she suffered no physical injury and was able to drive away after the
accident. She sought damages for severe shock and shaking up but her
claim was dismissed by the Court of Appeal.
On no view could it here be suggested that the appellant suffered an
acute emotional trauma. Otton J. found that the collision was one of
moderate severity. However neither the plaintiff nor the occupants of the
other car were injured. The appellant suffered no bruises from his seat
belt and did not suggest that he was at any time in fear for his own safety
or that of the occupants of the other car. He was able to write down the
name and address of the respondent, to telephone his wife quite normally
and then drive home. His car sustained damage which resulted in it being
written off by his insurers but it appears that it was on the ground of
economics due to its age and small value rather than because of the
severity of the damage. This case is accordingly far removed from those
cases in which foreseeability of nervous shock has been established.
A motor car collision in which the only damage is to the vehicles involved
neither of which even leave the road is not an event which could normally
be expected to produce nervous shock with consequential psychiatric
illness to one or more of the occupants. I entirely agree with the views of
Ralph Gibson and Hoffmann L.JJ. in the Court of Appeal [1994] 4 All
E.R. 522, 544G and 552-553, respectively, to the effect that it was not
reasonably foreseeable that the appellant would suffer nervous shock as a
result of this accident. The appeal must therefore be dismissed.
LORD BROWNE-WILKINSON. My Lords, I have had the advantage of
reading in draft the speech prepared by my noble and learned friend, Lord
Lloyd of Berwick. I, too, would allow the appeal for the reasons which he
gives. As your Lordships are not agreed in the result and we are differing
from the conclusions reached by the Court of Appeal, I propose to add a
few words of my own.
In my view this case is bedevilled by the use of the description
"nervous shock" to describe any injury suffered otherwise than by a chain
of demonstrably physical causes. The law has long recognised tangible
physical damage to the body of the plaintiff as a head of damage. Medical
science has now advanced so far that the process whereby an impact
causing direct physical injury to one limb or organ of the body can be
demonstrated to have caused consequential physical damage to another
limb or organ. Lawyers can readily accept that such consequential,
physical damage is the consequence of the original impact. Hence there is
181
1 A.C.
"
Lord Browne-Wilkinson
a willingness to accept that all such tangible physical damage is foreseeable.

Medical science has also demonstrated that there are other injuries the
body can suffer as a consequence of an accident, such injuries not being
demonstrably attributable directly to physical injury to the plaintiff.
Injuries of this type may take two forms. First, physical illness or injury
not brought about by a chain of demonstrable physical events but by
mental or emotional stresses, i.e. by a psychiatric route. Examples are a
heart attack or a miscarriage produced by shock. In this case, the end
product is a physical condition although it has been brought about by a
process which is not demonstrably a physical one but lies in the mental or
nervous system. The second form is psychiatric illness itself which is
brought about by mental or emotional stresses, i.e. by a psychiatric route.
Because medical science has so far been less successful in demonstrating
the nature of psychiatric illness and the processes whereby it is brought
about by the psychiatric route, the courts have been more reluctant to
accept the risk of such illness as being foreseeable. But since the decision
of this House in McLoughlin v. O'Brian [1983] 1 A.C. 410 it has been
established that, in certain circumstances, a defendant can be liable for
illness or injury, whether psychiatric or physical, produced in a plaintiff
by purely psychiatric processes, without any direct physical impact on, or
injury to, the limbs or organs of the plaintiff. That case also establishes
that such a process is, in certain circumstances, to be treated as foreseeable
by a defendant.
It follows that in the present case the fact that the plaintiff suffered no
tangible physical injury is irrelevant to the question whether or not he is
entitled to recover damages for the recrudescence of his illness. On the
judge's findings, the plaintiff suffered injury (the recrudescence of his
illness) by the psychiatric route, i.e. by reason of shock exacerbating his
condition. The question, therefore, is whether a driver of a car should
reasonably foresee that a person involved in an accident may suffer
psychiatric injury of some kind (whether or not accompanied by physical
injury). I have no doubt that he should. It is not physical injury alone
which causes illness or injury: physical or psychiatric illness occurs quite
apart from physical injury. Thus in Dulieu v. White & Sons [1901] 2 K..B.
669 the pregnant plaintiff behind the bar received no physical injury when
the defendant's pairhorse van arrived in the bar from the highway. Her
only allegation was that the nervous shock caused her to give birth
prematurely, i.e. she alleged physical injury by the psychiatric route. It
was held that she was entitled to recover: nobody has since suggested that
the case was not rightly decided.
In Currie v. Wardrop, 1927 S.C. 538 the plaintiff was walking arm in
arm with her fiance when they were both knocked down by a bus. The
fiance was badly injured but the plaintiff suffered no physical injury. She
claimed damages for shock, such shock being in part due to fear for
herself and in part to fear for her fiance. The issue was whether the jury's
award of damages for shock due to her fear for herself "aggravated by
anxiety for the safety of her companion" could stand, the law of Scotland
at that date not allowing damages for shock caused by anxiety for others.
Although the Court of Session was divided on whether the award could
stand, all the members were of one mind that the pursuer was entitled to
182
|1996|
damages for nervous shock caused by her fear for her own safety: see also
Brown v. Glasgow Corporation, 1922 S.C. 527. A consultation paper
(No. 137 of 1995) entitled Liability for Psychiatric Illness issued by the
Law Commission since the conclusion of the argument before your
Lordships contains material showing that psychiatric illness is a frequent
consequence of involvement in a road accident and that participants in a
traumatic event are more likely to suffer such illness than those who
merely witness or hear of it: see particularly paragraphs 3.11 and 3.13.
The law has therefore been established both in England and Scotland
for many years that a plaintiff who is a participant in an accident is
entitled to recover damages for shock even though he or she has not
suffered any tangible physical injury. I can see no good reason to modify
this law. The analogy drawn with the more recent development in the law
permitting a plaintiff, not a participant in an accident, to recover damages
for nervous shock flowing from fear for the safety of others or from the
trauma of witnessing the event does not seem to me to touch on the case.
A non-participant plaintiff is outside the ordinary area within which the
defendant can foresee causing damage. The only method whereby a non
participant plaintiff can establish that the defendant should have foreseen
damage to the plaintiff is by showing that he ought to have foreseen
nervous shock. As Lord Lloyd of Berwick has demonstrated, the law as
laid down in relation to these non-participant claims for nervous shock
damages has not been applied to claims for such damages made by a
plaintiff who was himself involved in the accident. In this connection, it is
noteworthy that in Bourhill v. Young [1943] A.C. 92, 120 Lord Porter,
whilst dismissing the pursuer's claim in that case, referred to Currie v.
Wardrop 1927 S.C. 538 and said "Undoubtedly, there was in that case a
duty to the pursuer (the woman) and a breach of that duty. . ." It is clear
that Lord Porter at least was drawing a distinction between claims for
nervous shock made by a participant in the accident on the one hand and
by a non-participant on the other.
I am therefore of opinion that any driver of a car should reasonably
foresee that, if he drives carelessly, he will be liable to cause injury, either
physical or psychiatric or both, to other users of the highway who become
involved in an accident. Therefore he owes to such persons a duty of care
to avoid such injury. In the present case the defendant could not foresee
the exact type of psychiatric damage in fact suffered by the plaintiff who,
due to his M.E., was "an eggshell personality." But that is of no
significance since the defendant did owe a duty of care to prevent
foreseeable damage, including psychiatric damage. Once such duty of care
is established, the defendant must take the plaintiff as he finds him.
Finally I would endorse Lord Lloyd's remarks about the dangers of
the court seeking to draw hard and fast lines between physical illness and
its causes on the one hand and psychiatric illness and its causes on the
other. Although medical science has not as yet progressed very far in
elucidating the processes whereby psychiatric disorders come about, recent
developments suggest a much closer relationship between physical and
mental processes than had previously been thought. There is a substantial
body of informed medical opinion which attributes some mental illness to
physical causes such as chemical or hormonal imbalance. In the present
"
"
183
1 A.C.
case, for example, although all but one of the distinguished doctors who
gave evidence were agreed that there was indeed an illness (however
mysterious) called M.E. and that the plaintiff suffered from it, they had
differing views as to its causes. One thought M.E. was linked to viral
infection (physical) and stress (psychological): another to neuroendocrine
disturbance (physical) and psychiatric disorder. In cases where distingui
shed doctors take differing views as to the aetiology of an illness it
obviously presents great problems for the court to resolve what was the
cause of the recrudescence of such an illness. For the courts to impose
different criteria for liability depending upon whether the injury is
"physical" or "psychiatric" is likely to lead to a growing complication in
straight forward personal injury cases. In my judgment, the law will be
more effective if it accepts that the result of being involved in a collision
may include both physical and psychiatric damage.
I would therefore allow the appeal and remit the issue of causation (if
not agreed) to the Court of Appeal for its determination.
LORD LLOYD OF BERWICK.
My Lords,
Introduction
This is the fourth occasion on which the House has been called on to
consider "nervous shock." On the three previous occasions, Bourhill v.
Young [1943] A.C. 92, McLoughlin v. O'Brian [1983] 1 A.C. 410 and
Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310, the
plaintiffs were, in each case, outside the range of foreseeable physical
injury. Thus, in Bourhill v. Young [1943] A.C. 92 the plaintiff was "not in
any way physically involved in the collision:" see per Lord Russell of
Killowen, at p. 101. The defendant's motor cycle was already some 45 feet
past the plaintiff when he collided with a motor car, and was killed. The
plaintiff was on the far side of a tramcar, and so shielded from the
physical consequences of the accident. If, therefore, liability was to be
established, it could only be on the basis that the defendant should have
foreseen injury by nervous shock. The plaintiff did, in fact, suffer injury
to her health as a result of the shock which she sustained. But as the
defendant could not reasonably foresee that she would suffer injury by
shock, it was held that she could not recover.
Likewise, in McLoughlin v. O'Brian [1983] 1 A.C. 410, the plaintiff was
at home two miles away when her husband and three children were
involved in a road accident. When she reached the hospital about two
hours later, she heard that her daughter had been killed and saw the
extent of her son's injuries. The shock which she suffered resulted in
psychiatric illness. It was held by this House, reversing the Court of
Appeal and the trial judge, that the plaintiff could recover damages, since
it was reasonably foreseeable that, unlike Mrs. Bourhill, she would suffer
nervous shock as a result of injuries to her family.
Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310
was the case arising out of the disaster at the Hillsborough football
stadium. A number of plaintiffs brought actions for damages for nervous
shock. Two of the plaintiffs were present at the stadium. Others saw the
disaster on television. They all failed either because the relationship
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between the plaintiffs and the victims was not sufficiently close, or because
watching the scene on television did not create the necessary degree of
proximity.
In all these cases the plaintiff was the secondary victim of the
defendant's negligence. He or she was in the position of a spectator or
bystander. In the present case, by contrast, the plaintiff was a participant.
He was himself directly involved in the accident, and well within the range
of foreseeable physical injury. He was the primary victim. This is thus the
first occasion on which your Lordships have had to decide whether, in
such a case, the foreseeability of physical injury is enough to enable the
plaintiff to recover damages for nervous shock.
The factual distinction between primary and secondary victims of an
accident is obvious and of long-standing. It was recognised by
Lord Russell of Killowen in Bourhill v. Young [1943] A.C. 92, when he
pointed out that Mrs. Bourhill was not physically involved in the collision.
In Alcock's case [1992] 1 A.C. 310 Lord Keith of Kinkel said, at p. 396,
that in the type of case which was then before the House, injury by
psychiatric illness "is a secondary sort of injury brought about by the
infliction of physical injury, or the risk of physical injury, upon another
person." In the same case, Lord Oliver of Aylmerton said, at p. 407, of
cases in which damages are claimed for nervous shock:
"Broadly they divide into two categories, that is to say, those cases in
which the injured plaintiff was involved, either mediately, or
immediately, as a participant, and those in which the plaintiff was no
more than the passive and unwilling witness of injury caused to
others."
Later in the same speech, at pp. 410-411, he referred to those who are
involved in an accident as the primary victims, and to those who are not
directly involved, but who suffer from what they see or hear, as the
secondary victims. This is, in my opinion, the most convenient and
appropriate terminology.
Though the distinction between primary and secondary victims is a
factual one, it has, as will be seen, important legal consequences. So the
classification of all nervous shock cases under the same head may be
misleading. In Alcock's case Lord Oliver said, at p. 407:
"It is customary to classify cases in which damages are claimed
for injury occasioned in this way under a single generic label as cases
of 'liability for nervous shock.' This may be convenient but in fact
the label is misleading if and to the extent that it is assumed to lead
to a conclusion that they have more in common than the fact of
similarity of the medium through which the injury is sustainedthat
of an assault upon the nervous system of the plaintiff through
witnessing or taking part in an eventand that they will, on account
of this factor, provide a single common test for the circumstances
which give rise to a duty of care."
**
_,
i_r
It is of cardinal importance in the present case to bear that warning in

mind.
Although the plaintiff was, as I have said, the primary victim, the
peculiarity of the present case is that, by good fortune, he suffered no
185
1 A.C.
broken bones and no bruising; indeed he had no external physical injury

of any kind. But as a direct result of the accident he suffered a
recrudescence of an illness or condition known variously as M.E., C.F.S.
or P.V.F.S., from which he had previously suffered in a mild form on
sporadic occasions, but which, since the accident, has become an illness of
"chronic intensity and permanency."
The facts
The facts, as found by the judge, are that the plaintiff, a schoolteacher
by profession, was driving at approximately 30 miles per hour when
suddenly, without warning, the defendant, coming in the opposition
direction, turned right across the white line. The plaintiff braked hard, but
the two vehicles were so close that he could not avoid a collision. The
impact was severe enough to cause considerable damage to both vehicles.
Nevertheless, the plaintiff was able to drive his car home. The judge said:
"I find on the balance of probabilities that there was a collision of
moderate severity. It must have been a frightening experience for
Mr. Page and I have no doubt that he did suffer nervous shock in the
broad sense of the word."
Three hours later the plaintiff felt exhausted. He took to his bed. The
exhaustion continued. The plaintiff has never fully recovered, and has not
worked since.
The judge heard a great deal of medical evidence over many days as
to whether an illness or condition known as M.E. exists at all, and if so
how it is caused, whether the plaintiff was suffering from the illness before
the accident, and whether and to what extent his present condition is
attributable to the accident.
Having heard all this evidence, the judge made the findings to which
I have already briefly referred. In particular, he found that, despite
scepticism on the part of some of the doctors, and it may be members of
the public, M.E. is a genuine illness. He specifically rejected any suggestion
that the plaintiff is guilty of malingering or hysteria.
The correct approach
Against that factual background, the judge dealt with the law quite
shortly. He referred to Malcolm v. Broadhurst [1970] 3 All E.R. 508, a
decision of Geoffrey Lane J. In that case, a woman suffered head injuries
in a car accident, as a result of which a pre-existing nervous disturbance
was exacerbated. Geoffrey Lane J. said, at p. 511:
"The defendant must take the wife as he finds her and there is no
difference in principle between an egg-shell skull and an egg-shell
personality: Love v. Port of London Authority [1959] 2 Lloyd's
Rep. 541. Exacerbation of her nervous depression was a readily
foreseeable consequence of injuring her. . . . I do not derive any
assistance from the 'nervous shock' cases; they are concerned with the
effect of the sudden traumatic effect of witnessing or hearing of an
accident and their somewhat special rules do not seem to me to be
applicable to the present circumstances."
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Otton J. adopted the same line of reasoning:

"Once it is established that C.F.S. exists and that a relapse or
recrudescence can be triggered by the trauma of an accident and that
nervous shock was suffered by the plaintiff who is actually involved
in the accident, it becomes a foreseeable consequence. The nervous
shock cases relied on by Mr. Priest, in my judgment, have no
relevance. The plaintiff was not a spectator of the accident who
suffered shock from what he witnessed happening to another. He was
directly involved and suffered the shock directly from experiencing
the accident. The remoteness argument, therefore, must be rejected."
Since physical injury to the plaintiff was clearly foreseeable, although it
did not in the event occur, the judge did not consider, as a separate
question, whether the defendant should have foreseen injury by nervous
shock.
When the case got to the Court of Appeal [1994] 4 All E.R. 522, the
approach became more complicated. Mr. Priest's argument as summarised
by Ralph Gibson L.J., at p. 540, was as follows:
"If a plaintiff establishes that he has suffered some physical injury, he
may advance a claim in respect of a recognised psychiatric illness
which has resulted from that physical injury. If a plaintiff has suffered
no physical injury, and his only injuries are a recognised form of
psychiatric illness, he may succeed if the court decides that psychiatric
illness was foreseeable in the case of a person of reasonable fortitude.
There is no difference in this respect, it was submitted, between a
bystander and a person directly involved in an event, except that the
consequences are more likely to be foreseeable in the case of the latter
than in the case of the former."
The Court of Appeal accepted Mr. Priest's argument. Ralph Gibson L.J.
said, at p. 544: "The fact that this plaintiff was directly involved does not,
in my judgment, render irrelevant the question whether injury by nervous
shock was reasonably foreseeable as a result of what happened to him in
the accident." Ralph Gibson L.J. went on to hold that injury by nervous
shock was not foreseeable in a person of ordinary fortitude as a result of
what happened to the plaintiff. In reaching this conclusion he was much
influenced, as is apparent from his judgment, by the fact that the plaintiff
suffered no physical injury.
Hoffmann L.J. put the point with his usual epigrammatic force. In
cases of nervous shock, he said, at p. 549: "Foreseeability of physical
injury is neither necessary nor sufficient." I agree that it is not necessary,
as Hambrook v. Stokes Brothers [1925] 1 K.B. 141, McLoughlin v. O'Brian
[1983] 1 A.C. 410 and numerous other cases show. But is it not sufficient?
Hoffmann L.J. considered that if one part of his apophthegm was true,
the other must also be true. But I am not sure that this follows.
If as in Malcolm v. Broadhurst [1970] 3 All E.R. 508, the plaintiff had
suffered a head injury or a broken leg, or significant bruising, with
consequential psychiatric illness, it is very doubtful whether the case would
ever have reached the Court of Appeal at all. It would be like many other
personal injury cases which are tried or settled every day in the High
j)
187
1 A.C.
"
"
Court and the county courts. Of course, it would have been necessary to
prove that the psychiatric illness was genuine, and that it was caused by
the accident. But nobody would have stopped to consider the foreseeability
of nervous shock. Nobody would have referred to Bourhill v. Young [1943]
A.C. 92. We now know that the plaintiff escaped without external injury.
Can it be the law that this makes all the difference? Can it be the law that
the fortuitous absence of actual physical injury means that a different test
has to be applied? Is it to becofne necessary, in ordinary personal injury
claims, where the plaintiff is the primary victim, for the court to concern
itself with different "kinds" of injury?
Suppose, in the present case, the plaintiff had been accompanied by
his wife, just recovering from a depressive illness, and that she had
suffered a cracked rib, followed by an onset of psychiatric illness. Clearly,
she would have recovered damages, including damages for her illness,
since it is conceded that the defendant owed the occupants of the car a
duty not to cause physical harm. Why should it be necessary to ask a
different question, or apply a different test, in the case of the plaintiff?
Why should it make any difference that the physical illness that the
plaintiff undoubtedly suffered as a result of the accident operated through
the medium of the mind, or of the nervous system, without physical
injury? If he had suffered a heart attack, it cannot be doubted that he
would have recovered damages for pain and suffering, even though he
suffered no broken bones. It would have been no answer that he had a
weak heart.
I must say at once that I prefer the simplicity of the judge's approach
to what, with respect, seems to be an unnecessary complication introduced
by the Court of Appeal. Foreseeability of psychiatric injury remains a
crucial ingredient when the plaintiff is the secondary victim, for the very
reason that the secondary victim is almost always outside the area of
physical impact, and therefore outside the range of foreseeable physical
injury. But where the plaintiff is the primary victim of the defendant's
negligence, the nervous shock cases, by which I mean the cases following
on from Bourhill v. Young, are not in point. Since the defendant was
admittedly under a duty of care not to cause the plaintiff foreseeable
physical injury, it was unnecessary to ask whether he was under a separate
duty of care not to cause foreseeable psychiatric injury.
Apart from its simplicity, Otton J.'s approach has other attractions.
As medical science advances, it is important that the law should not be
seen to limp too far behind: see Mount Isa Mines Ltd. v. Pusey, 125
C.L.R. 383, 395, per Windeyer J. As long ago as 1901 the courts were
already beginning to become aware that there may be no hard and fast
line between physical and psychiatric injury, such as had hitherto been
supposed. In Dulieu v. White & Sons [1901] 2 K.B. 669, 677 Kennedy J.
said:
"For my own 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 detect the injury at the time in the
living subject. I should not be surprised if the surgeon or the
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physiologist told us that nervous shock is or may be in itself an

injurious affection of the physical organism."
In Bourhill v. Young [1943] A.C. 92, 103 Lord Macmillan said:
"The crude view that the law should take cognisance only of physical
injury resulting from actual impact has been discarded, and it is now
well recognised that an action will lie for injury by shock sustained
through the medium of the eye or 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 consequences more
serious than those resulting from physical impact."
Likewise, in more recent times, Lord Bridge of Harwich drew attention to
the interrelation of physical and psychiatric injury in McLoughlin v.
O'Brian [1983] 1 A.C. 410, 433:
"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
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."
In an age when medical knowledge is expanding fast, and psychiatric
knowledge with it, it would not be sensible to commit the law to a
distinction between physical and psychiatric injury, which may already
seem somewhat artificial, and may soon be altogether outmoded. Nothing
will be gained by treating them as different "kinds" of personal injury, so
as to require the application of different tests in law.
My noble and learned friend, Lord Keith of Kinkel, has drawn
attention to an observation of Lord Wright in Bourhill v. Young [1943]
A.C. 92, 110, that in nervous shock cases the circumstances of the accident
or event must be viewed ex post facto. There are similar observations by
Lord Wilberforce and Lord Bridge in McLoughlin v. O'Brian [1983] 1 A.C.
410, 420 and 432. This makes sense, as Lord Keith points out, where the
plaintiff is a secondary victim. For if you do not know the outcome of the
accident or event, it is impossible to say whether the defendant should
have foreseen injury by shock. It is necessary to take account of what
happened in order to apply the test of reasonable foreseeability at all. But
it makes no sense in the case of a primary victim. Liability for physical
injury depends on what was reasonably foreseeable by the defendant
189
1 A.C.
"
"
before the event. It could not be right that a negligent defendant should
escape liability for psychiatric injury just because, though serious physical
injury was foreseeable, it did not in fact transpire. Such a result in the
case of a primary victim is neither necessary, logical nor just. To introduce
hindsight into the trial of an ordinary running-down action would do the
law no service.
Are there any disadvantages in taking the simple approach adopted by
Otton J.? It may be said that it would open the door too wide, and
encourage bogus claims. As for opening the door, this is a very important
consideration in claims by secondary victims. It is for this reason that the
courts have, as a matter of policy, rightly insisted on a number of control
mechanisms. Otherwise, a negligent defendant might find himself being
made liable to all the world. Thus in the case of secondary victims,
foreseeability of injury by shock is not enough. The law also requires a
degree of proximity: see Alcock's case [1992] 1 A.C. 310, per Lord Keith
of Kinkel, at p. 396, and the illuminating judgment of Stuart-Smith L.J.
in McFarlane v. E.E. Caledonia Ltd. [1994] 2 All E.R. 1, 14. This means
not only proximity to the event in time and space, but also proximity of
relationship between the primary victim and the secondary victim.
A further control mechanism is that the secondary victim will only recover
damages for nervous shock if the defendant should have foreseen injury
by shock to a person of normal fortitude or "ordinary phlegm."
None of these mechanisms are required in the case of a primary victim.
Since liability depends on foreseeability of physical injury, there could be
no question of the defendant finding himself liable to all the world.
Proximity of relationship cannot arise, and proximity in time and space
goes without saying.
Nor in the case of a primary victim is it appropriate to ask whether he
is a person of "ordinary phlegm." In the case of physical injury there is
no such requirement. The negligent defendant, or more usually his insurer,
takes his victim as he finds him. The same should apply in the case of
psychiatric injury. There is no difference in principle, as Geoffrey Lane J.
pointed out in Malcolm v. Broadhurst [1970] 3 All E.R. 508, between an
eggshell skull and an eggshell personality. Since the number of potential
claimants is limited by the nature of the case, there is no need to impose
any further limit by reference to a person of ordinary phlegm. Nor can
I see any justification for doing so.
As for bogus claims, it is sometimes said that if the law were such as
I believe it to be, the plaintiff would be able to recover damages for a
fright. This is not so. Shock by itself is not the subject of compensation,
any more than fear or grief or any other human emotion occasioned by
the defendant's negligent conduct. It is only when shock is followed by
recognisable psychiatric illness that the defendant may be held liable.
There is another limiting factor. Before a defendant can be held liable
for psychiatric injury suffered by a primary victim, he must at least have
foreseen the risk of physical injury. So that if, to take the example given
by my noble and learned friend, Lord Jauncey of Tullichettle, the
defendant bumped his neighbour's car while parking in the street, in
circumstances in which he could not reasonably foresee that the occupant
would suffer any physical injury at all, or suffer injury so trivial as not to
190
11996]
found an action in tort, there could be no question of his being held liable
for the onset of hysteria. Since he could not reasonably foresee any injury,
physical or psychiatric, he would owe the plaintiff no duty of care. That
example is, however, very far removed from the present.
So I do not foresee any great increase in unmeritorious claims. The
court will, as ever, have to be vigilant to discern genuine shock resulting
in recognised psychiatric illness. But there is nothing new in that. The
floodgates argument has made regular appearances in this field, ever since
it first appeared in Victorian Railways Commissioners v. Coultas (1888)
13 App.Cas. 222. I do not regard it as a serious obstacle here.
My provisional conclusion, therefore, is that Otton J.'s approach was
correct. The test in every case ought to be whether the defendant can
reasonably foresee that his conduct will expose the plaintiff to risk of
personal injury. If so, then he comes under a duty of care to that plaintiff.
If a working definition of "personal injury" is needed, it can be found in
section 38(1) of the Limitation Act 1980: "'Personal injuries' includes
any disease and any impairment of a person's physical or mental
condition . . ." There are numerous other statutory definitions to the same
effect. In the case of a secondary victim, the question will usually turn on
whether the foreseeable injury is psychiatric, for the reasons already
explained. In the case of a primary victim the question will almost always
turn on whether the foreseeable injury is physical. But it is the same test
in both cases, with different applications. There is no justification for
regarding physical and psychiatric injury as different "kinds" of injury.
Once it is established that the defendant is under a duty of care to avoid
causing personal injury to the plaintiff, it matters not whether the injury
in fact sustained is physical, psychiatric or both. The utility of a single test
is most apparent in those cases such as Schneider v. Eisovitch [1960]
2 Q.B. 430, Malcolm v. Broadhurst [1970] 3 All E.R. 508 and Brice v.
Brown [1984] 1 All E.R. 997, where the plaintiff is both primary and
secondary victim of the same accident.
Applying that test in the present case, it was enough to ask whether
the defendant should have reasonably foreseen that the plaintiff might
suffer physical injury as a result of the defendant's negligence, so as to
bring him within the range of the defendant's duty of care. It was
unnecessary to ask, as a separate question, whether the defendant should
reasonably have foreseen injury by shock; and it is irrelevant that the
plaintiff did not, in fact, suffer any external physical injury.
The authorities
I turn now to the authorities to see if there is anything which supports
the contrary view taken by the Court of Appeal. All the dicta which
appear to support the contrary view are to be found in cases where the
plaintiff was the secondary victim, and they almost all go back to an
observation of Denning L.J. in King v. Phillips [1953] 1 Q.B. 429, 441, an
observation which has been very frequently repeated, but has often,
I suspect, been misunderstood.
Before coming to King v. Phillips, however, it is first necessary to look
at Victorian Railways Commissioners v. Coultas, 13 App.Cas. 222 and
Dulieu v. White & Sons [1901] 2 K.B. 669.
191
1 A.C.
"
In the former case, the defendant's servant permitted the plaintiff to

drive across a level crossing in her buggy, when a train was approaching.
There was no actual impact, but a very near miss. The plaintiff suffered
severe nervous shock, which in turn produced illness and a miscarriage.
She recovered damages for negligence at first instance, but the decision
was reversed by the Privy Council, on the ground that the damage was
too remote. The decision has long since been disapproved. Today there
can be no doubt that the plaintiff would have kept her damages, but not,
I suggest, because the defendant's gatekeeper should have foreseen injury
by shock, but on the straightforward ground that he should have foreseen
that a collision might result in the plaintiffs injury or death.
In Dulieu v. White & Sons, the Divisional Court declined to follow
Victorian Railways Commissioners v. Coultas, preferring instead to follow
two decisions of the Irish courts. The facts of that case were that the
defendant's horse-van was driven so negligently that it ended up in a
public house where the plaintiff was serving behind the bar. She suffered
no impact, but according to her statement of claim the shock resulted in
serious illness, and the premature birth of her child. It was held that the
statement of claim disclosed a good cause of action. In the course of his
judgment Kennedy J. suggested that recovery for nervous shock should be
limited to cases in which the plaintiff fears for his own safety. He said
[1901] 2 K.B. 669, 675: "The shock, where it operates through the mind,
must be a shock which arises from a reasonable fear of immediate personal
injury to oneself."
It is now clear that this proposed limitation was too restrictive. But it
has never, until now, been suggested that the decision depended in any
way on foreseeability of injury by shock, as distinct from the ordinary
duty of care owed to lawful users of the highway.
In Hambrook v. Stokes Brothers [1925] 1 K.B. 141, the Court of Appeal
by a majority disapproved Kennedy J.'s dictum in Dulieu v. White. It was
held that the plaintiff was entitled to recover damages under the Fatal
Accidents Acts for the death of his wife, resulting from nervous shock.
Her shock was caused by fear, not for her own safety, but for her
children's safety. She was thus the secondary victim of the defendant's
negligence. It went without saying that if the shock had been brought
about by fear for her own safety, she would have recovered. Thus,
Bankes L.J. said, at p. 151:
"Upon the authorities as they stand, the defendant ought to have
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 herself, that she would receive such a
mental shock as would injure her health."
Atkin L. J. said, at p. 158:
"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 cause of action, as I have said, appears to be
created by breach of the ordinary duty to take reasonable care to
avoid inflicting personal injuries, followed by damage, even though
the type of damage may be unexpectednamely, shock. The question
192
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appears to be as to the extent of the duty, and not as to remoteness

of damage."
After considering another way of putting the matter, Atkin L.J. added, at
p. 159:
"It may be, however, that there is not any practical difference between
the two ways of putting it; for the degree of care to be exercised by
the owner of the vehicle would still in practice be measured by the
standard of care necessary to avoid the ordinary form of personal
injuries."
Sargant L.J. dissented. He would not have extended liability for
nervous shock beyond the area covered by Kennedy J.'s dictum, that is to
say, cases where the plaintiff fears for his own safety. But that is the very
area with which we are concerned in the present case. The following
passage, at pp. 161-162, is thus directly relevant:
"It is no doubt more difficult to prove that physical injury results
from nervous shock than from direct impact. But when once this
difficulty of proof is overcome, I cannot see why a negligence which
so nearly causes direct impact as to cause physical injury by nervous
shock is a more remote or less natural cause of damage than a
negligence causing actual physical impact. Or, to put it more precisely,
as a matter of duty which is owed to the plaintiff, and the neglect of
which has caused damage, the duty of the defendant so to control his
vehicle as to avoid causing physical injury to those on or near the
highway, including the plaintiff, can hardly be limited to actual
physical impact on the plaintiff (though this is in fact the result of
the American cases), but must logically include such an immediate
threat of impact on the plaintiff as to produce physical injury to him,
or her, through the nervous system. There seems to me to be no
magic in actual personal contact. A threatened contact producing
physical results should be an equivalent."
There is no support in any of the judgments for the view that where
the plaintiff is the primary victim of the defendant's negligence, liability
for nervous shock depends on the foreseeability of injury by nervous
shock.
I now come to King v. Phillips [1953] 1 Q.B. 429, the case of the
"unimaginative taxi cab driver," as it was called by Professor
A. L. Goodhart in (1953) 69 L.Q.R. 347. In the course of backing his taxi
without looking, the defendant injured a small boy, and damaged his
tricycle. His mother was at a window, about 80 yards away, when she
heard a scream. She saw the taxi backing slowly onto the tricycle, but she
could not see her son. She suffered severe shock. She brought an action
on behalf of her son as the primary victim, and also on her own behalf.
McNair J. found in favour of the son. He was awarded 5 for his personal
injuries and 10 for his tricycle. But the mother's action failed, and her
appeal was dismissed.
It seems clear enough that the result nowadays would have been
different. In particular, the ground on which Denning L.J. decided the
case, namely, that because the taxi was backing so slowly, the damage was
193
1 A.C.
too remote, is indefensible. Professor Goodhart's caustic comment seems

well justified. But the leading judgment given by Singleton L.J. is
instructive. After referring to Bourhill v. Young, he said, at p. 437:
"I find it difficult to draw a distinction between damages from
physical injury and damage from shock; prima facie, one would think
that, if a driver should reasonably have foreseen either, and damage
resulted from the one or from the other, the plaintiff would be
entitled to succeed."
Denning L.J. agreed. He said, at p. 439:
"I cannot see why the duty of a driver should differ according to the
nature of the injury. . . . If he drives negligently with the result that a
bystander is injured, then his breach of duty is the same, no matter
whether the injury is a wound or is emotional shock. Only the damage
is different."
Denning L.J. refused to accept any distinction between physical and
emotional injury. Otherwise, he said, one would be driven to the view that
there are two different torts, one tort when the defendant can foresee
physical injury, and another tort when he can foresee emotional injury.
This could not be right. He said, at p. 440: "There i$ one wrong only, the
wrong of negligence. I know that damage to person and damage to
property are for historical reasons regarded as different torts; but that
does not apply to physical injury and emotional injury." So far, there is
nothing which assists the defendant's case. Indeed, the passage from
Singleton L.J.'s judgment is strongly against him. But then comes
Denning L.J.'s celebrated dictum at p. 441:
"Howsoever that may be, whether the exemption for shock be
based on want of duty or on remoteness, there can be no doubts that
since Bourhill v. Young [1943] A.C. 92 that the test for liability for
shock is foreseeability of injury by shock."
The danger of any good phrase is that it gets repeated so often and
applied so uncritically that in the end it tends to distort the law.
Denning L.J.'s dictum is wrong in two respects. It is both too wide and
too narrow. It is too wide where the plaintiff is the secondary victim, as
she was in King v. Phillips. For subsequent cases have shown that
foreseeability of injury by shock is not the sole test: see Alcock's case
[1992] 1 A.C. 310, 396, per Lord Keith of Kinkel and McFarlane v. E.E.
Caledonia Ltd. [1994] 2 All E.R. 1. The test is also too narrow, where, as
here, the plaintiff is the primary victim. There is nothing in Bourhill v.
Young to displace the ordinary rule that where the plaintiff is within the
range of foreseeable physical injury the defendant must take his victim as
he finds him. The whole point of Bourhill v. Young was that the plaintiff
was not within the range of foreseeable physical injury. She was not
"involved" in the collision. There was, therefore, no way in which she
could recover damages unless she could show that the defendant ought to
have foreseen injury by shock. It is only in that limited sense that it was
ever true to say that liability for shock depends on foreseeability of injury
by shock. The dictum has no application where the plaintiff is the primary
victim of the defendant's negligence.
A.C. 1996-7
194
|1996|
Mr. Priest relied heavily on two cases decided by the High Court of
Australia. In the first, Mount Isa Mines Ltd. v. Pusey, 125 C.L.R. 383, the
plaintiff went to the rescue of two fellow employees who had been severely
burnt by an electrical short circuit. One of them died the next day. The
plaintiff went on working without any apparent ill consequences. Then
about four weeks later he developed a psychiatric illness described as
severe schizophrenic reaction. The court had no difficulty in holding that
the defendant should have foreseen that a fellow employee might come to
the rescue, and might suffer psychiatric damage. The point in the case, as
appears from the argument at p. 385, and the judgment of Barwick C.J.,
at p. 388 and p. 390, turned on the finding of the trial judge that the
"specific psychological reaction" was not foreseeable. It was held by the
High Court that this was irrelevant. It was enough that the class of injury
as distinct from the particular injury was foreseeable. The observation of
Windeyer J., at p. 402, to which Lord Keith of Kinkel has referred, must
be read in this light. The purpose of referring to psychiatric injury as a
class was not to draw a line between psychiatric injury on the one hand
and physical injury on the other; but to include within the psychiatric
class all forms of psychiatric injury however rare and unforeseen. It
follows that the case does not touch in any way on the issue in the present
case. This is abundantly clear from a passage in Walsh J.'s judgment at
p. 414. Having cited Denning L.J.'s dictum, he continued:
"It is not here necessary to consider whether or not there are
satisfactory reasons for treating injury by shock as different in kind
from other forms of personal injury. If all personal injuries, whether
"mental" or "physical," were to be treated as being of the same kind,
then it would be evident in the present case that damage of a
foreseeable kind was suffered. But for the purposes of the present
case the statement in The Wagon Mound [1961] A.C. 388, 426 that the
test of liability for shock is foreseeability of injury by shock may be
accepted."
The facts of the second Australian case, Jaensch v. Coffey, 155 C.L.R.
549 were very similar to those in McLoughlin v. O'Brian. The plaintiff
suffered severe anxiety and depression after seeing her husband in hospital,
shortly after he had been severely injured in a car accident. The High
Court upheld her claim for damages. The only point of interest in the
decision, as appears from the leading judgment of Gibbs C.J. is that the
plaintiff was "exceptionally predisposed" to anxiety and depression.
Otherwise, all the case called for was a straightforward application of the
principles already well established in Mount Isa Mines Ltd. v. Pusey and
McLoughlin v. O'Brian. The facts came nowhere near the present case.
However, in the course of a very lengthy judgment Deane J. made a
number of observations, two of which are quoted by Hoffmann L.J. in
the Court of Appeal in the present case. He said, at p. 595:
"One finds in the judgments [in Bourhill v. Young] an implicit (explicit
in the case of Lord Porter, at p. 119) acceptance of a refinement of
the ordinary test of foreseeability of injury which has subsequently
received general acceptance: in the case of mere psychiatric injury, the
requirement of reasonable foreseeability will not be satisfied unless
195
1 A.C.
j)
injury in that particular form, as distinct from personal injury generally

(cf. per Atkin L.J., Hambrook v. Stokes Brothers, at pp. 157-158 and
per Singleton L.J., King v. Phillips at p. 437), was reasonably
foreseeable . . . "
With great respect, this seems to be a misunderstanding of what Lord
Porter said in Bourhill v. Young [1943] A.C. 92. The case was fought on
the basis (as Deane J. had just recognised) that the plaintiff was not in
fear for her own personal safety. So she could not succeed by showing
that she was within the range of foreseeable physical injury. She could
only succeed by showing that she was within the range of foreseeable
emotional injury. But this she failed to do. Bourhill v. Young does not
represent a refinement of the ordinary test of reasonable foreseeability. It
represents an extension of that test, as Lord Edmund-Davies pointed out
in McLoughlin v. O'Brian [1983] 1 A.C. 410, 423^24. He quoted in
support of his view the laconic observation of Professor Goodhart in "The
Shock Cases and Area of Risk" (1953) 16 M.L.R. 14, 16, note 10: "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."
The cases cited by Deane J. do not support the restrictive proposition
that in cases of "mere psychiatric injury" (by which I understand him to
mean cases not involving physical injury) the plaintiffs injury must be
foreseeable "in that particular form as distinct from personal injury
generally." On the contrary, Atkin L.J. in Hambrook v. Stokes Brothers
[1925] 1 K.B. 141 and Singleton L.J. in King v. Phillips [1953] 1 Q.B. 429
lend strong support to the opposite view.
The second passage is at 155 C.L.R. 549, 604:
that reasonable foreseeability of personal injury generally will not
suffice to give rise to a duty of care to avoid psychiatric injury
foreseeable."
This adds nothing to the earlier passage. For the reasons already stated,
I do not regard it as a correct view of the law.
I come last to what is, perhaps, the strongest authority supporting the
view taken by the Court of Appeal: Overseas Tankship (U.K.) Ltd. v.
Moris Dock & Engineering Co. Ltd. (The Wagon Mound) [1961] A.C. 388.
This case, and the companion case The Wagon Mound (No. 2) [1967]
1 A.C. 617, established that "the essential factor in determining liability is
whether the damage is of such a kind as the reasonable man should have
foreseen:" see p. 426. The defendants allowed a large quantity of bunker
oil to spill over in Sydney Harbour. The oil was ignited by welding
operations of the employees of the plaintiff dock company. The Wagon
Mound was presented on the basis, in which both parties joined, that fuel
oil on water did not create a foreseeable fire risk. Had the plaintiff
company done otherwise it would have been met with the defence of
contributory negligence which in New South Wales then provided a
196
(1996|
complete defence. The defendants could, however, foresee that the oil
would do some trivial damage to the plaintiffs slipway by fouling. The
Supreme Court of New South Wales found in favour of the plaintiffs,
applying the rule in In re Polemis and Furness Withy & Co. Ltd. [1921]
3 K.B. 560. The decision was overturned by the Privy Council. Viscount
Simonds, in tendering the advice of the Privy Council, said that their
Lordships had been concerned primarily to displace the proposition that
unforeseeability is irrelevant if damage is "direct." But in the course of his
judgment, at p. 426, he cited by way of illustration the dictum of
Denning L.J. in King v. Phillips [1953] 1 Q.B. 429, 441, and added: "Their
Lordships substitute the word 'fire' for 'shock' and endorse this statement
of the law."
Viscount Simonds did not attempt to define what he meant by "kind
of damage," and the concept is apt to be elusive, as Mr. R. W. M. Dias
and Professor Jolowicz have pointed out in their comments [1961] C.L.J.
23-30: see also Clerk and Lindsell on Torts, 16th ed. (1989), at pp. 587588. It is clear that Viscount Simonds regarded shock as a "kind of
damage." Otherwise, he would not have cited Denning L.J.'s dictum. But
the case was not in any way concerned with liability for shock. The
reference to Bourhill v. Young [1943] A.C. 92, both in the argument and in
the judgment, was for quite a different purpose, namely, to pray in aid the
"plain common sense" stated by Lord Russell of Killowen, that
foreseeability goes to compensation as well as culpability. I do not think
the Privy Council was intending to indicate that Denning L.J.'s dictum
applied across the board in personal injury actions, or that psychiatric
injury is "a different kind of damage" from physical injury, for the
purposes of establishing the relevant duty of care. Although the Privy
Council in The Wagon Mound has often been regarded as having approved
the full width of Denning L.J.'s dictum, I consider this goes too far. As
I have said, I prefer to regard the reference to the dictum as being more
by way of illustration. If so, then it does not stand in the way of a sensible
and practical approach to cases where the plaintiff is the primary victim
of the defendant's negligence, along the lines proposed by the judge.
Many other cases were cited in argument, but I need only refer to one,
Brice v. Brown [1984] 1 All E.R. 997. This was one of the authorities cited
with approval by Hoffmann L.J. There can be no doubt that the case was
correctly decided on the facts. It would have been a reproach to the law if
the plaintiff had not been able to recover damages for the severe mental
illness which she suffered as a result of the accident, partly out of fear for
herself, and partly out of fear for her daughter. But as she was herself
involved in the accident, and as the accident was quite severe (her
daughter suffered quite serious injuries), she was plainly owed a duty of
care by the defendant. In these circumstances it was, in my opinion,
unnecessary to ask as a separate question whether the defendant should
have foreseen injury by shock to a person of normally robust constitution.
It sufficed that she was a primary victim of the defendant's negligence.
I return to the facts of the present case to mention a fallback argument
on which Mr. McKay relied. Assuming, contrary to his primary argument,
that it was necessary to establish foreseeability of injury by nervous shock
in a person of normal fortitude, then the Court of Appeal were wrong to
"
197
1 A.C.
hold that such injury was not foreseeable. The judge held, as I have said,
that the collision was one of moderate severity. He had no doubt that the
plaintiff suffered nervous shock in the broad sense of that word. He
concluded that since the plaintiff was actually involved in the accident, it
became a foreseeable consequence.
I have some difficulty in understanding how the Court of Appeal was
justified in disturbing the judge's primary findings or the inference which
he drew from those findings. Ralph Gibson L.J. was impressed by the fact
that the plaintiff suffered no physical injury. If he was using this piece of
hindsight in order to qualify the judge's finding that the accident was one
of moderate severity, then, with respect, he was wrong. If he was saying
that a person of normal fortitude involved in an accident does not suffer
shock, with recognised psychiatric consequences, unless he receives some
physical injury, then I would disagree. As Lord Bridge of Harwich, said
in McLoughlin v. O'Brian [1983] 1 A.C. 410, 433:
"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."
"
When cars collide at 30 miles per hour, the possibility that those involved
will suffer nervous shock, resulting in some form of psychiatric illness, is
not something to be brushed aside. In my opinion, the Court of Appeal
were wrong to find that psychiatric illness, in some form, was not a
foreseeable consequence of the accident in a person of normal fortitude.
But for reasons already mentioned, I do not regard that as the relevant
test.
In conclusion, the following propositions can be supported. 1. In cases
involving nervous shock, it is essential to distinguish between the primary
victim and secondary victims. 2. In claims by secondary victims the law
insists on certain control mechanisms, in order as a matter of policy to
limit the number of potential claimants. Thus, the defendant will not be
liable unless psychiatric injury is foreseeable in a person of normal
fortitude. These control mechanisms have no place where the plaintiff is
the primary victim. 3. In claims by secondary victims, it may be legitimate
to use hindsight in order to be able to apply the test of reasonable
foreseeability at all. Hindsight, however, has no part to play where the
plaintiff is the primary victim. 4. Subject to the above qualifications, the
approach in all cases should be the same, namely, whether the defendant
can reasonably foresee that his conduct will expose the plaintiff to the risk
of personal injury, whether physical or psychiatric. If the answer is yes,
then the duty of care is established, even though physical injury does not,
in fact, occur. There is no justification for regarding physical and
psychiatric injury as different "kinds of damage." 5. A defendant who is
under a duty of care to the plaintiff, whether as primary or secondary
victim, is not liable for damages for nervous shock unless the shock results
in some recognised psychiatric illness. It is no answer that the plaintiff
was predisposed to psychiatric illness. Nor is it relevant that the illness
takes a rare form or is of unusual severity. The defendant must take his
victim as he finds him.
198
[1996|
These propositions do not, I think, involve any radical departure from

the law as it was left by Kennedy J. in Dulieu v. White & Sons, and by the
Court of Appeal in Hambrook v. Stokes Brothers [1925] 1 K.B. 141 and
King v. Phillips [1953] 1 Q.B. 429, although the decision in the latter case
can no longer be supported on its facts. In McLoughlin v. O'Brian [1983]
1 A.C. 410 your Lordships had the opportunity to take the law forward
by holding that the plaintiff could recover damages for nervous shock,
even though she was two miles away at the time of the accident. No such
opportunity offers in the present case. But it is at least as important that
the law should not take a step backwards. This would, I fear, be the result
if the decision of the Court of Appeal were allowed to stand.
In the result, I would restore the judgment of Otton J., but subject to
one last caveat. One of the grounds of appeal from Otton J.'s judgment
was that his finding on causation was against the weight of the evidence.
Ralph Gibson L.J. upheld this ground of appeal, but it was left open by
Farquharson L.J. and Hoffmann L.J. Unless, therefore, the claim can now
be settled, the case will have to go back to the Court of Appeal for a
finding on this issue.
I would allow the appeal and order that the respondents pay the
appellants' costs in your Lordships' House. Costs before the judge and the
Court of Appeal will have to wait the outcome of the issue on causation.
"
Appeal allowed with costs.

Solicitors: Edward Lewis; Harry R. Pearce, Haywards Heath
J. A. G.

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155

Sheldon v. R. H. M. Outhwaite Ltd. (H.L.(E.))

I understand why, because ultimately and with reluctance I have found

Feb. 13, 14, 15, 16;

Lord Keith of Kinkel, Lord Ackner,

NegligenceForeseeability of riskNervous shockPlaintiff directly

While driving along the highway the plaintiff was involved in

reasonably foreseeable. Only one of the members of the Court of

The following cases are referred to in their Lordships' opinions:

APPEAL from the Court of Appeal.

Page v. Smith (H.L.(E.))

claimants from discharging the impossible burden of showing that they

Page v. Smith (H.L.(E.))

possessed of ordinary health and fortitude. That is the position to be

as its logical consequence that the foreseeability of some physical injury is

[1992] A.C. 310, 396G, 402G, 4 1 0 D , 4 1 9 F - 4 2 0 C .

As to the standard by which foreseeability is to be judged, the duty

Page v. Smith (H.L.(E.))

to the effect that, if foreseeability of nervous shock is judged prospectively,

The reason why the test is often expressed retrospectively in nervous

Page v. Smith (H.L.(E.))

Their Lordships took time for consideration.

Page v. Smith (H.L.(E.))

Lord Keith of Kinkel

The defendant appealed, and on 30 March 1994 the Court of Appeal

Page v. Smith (H.L.(E.))

The decided cases reveal several observations indicating that this

Later, he said, at p. 604:

Page v. Smith (H.L.(E.))

Lord Keith of Kinkel

and as regards those who claim as secondary victims. Reasonable

Page v. Smith (H.L.(E.))

C.F.S. Whether this recrudescence was attributable to the accident is

Page v. Smith (H.L.(E.))

LORD JAUNCEY OF TULLICHETTLE. My Lords, the primary issue in this

Page v. Smith (H.L.(E.))

impact accident than is nervous shock causing subsequent illness. While it

Page v. Smith (H.L.(E.))

Lord Jauncey of Tullichettle

Page v. Smith (H.L.(E.))

foreseeability of harm 'of some such nature' as that which actually

Page v. Smith (H.L.(E.))

Lord Jauncey of Tullichettle

Page v. Smith (H.L.(E.))

conclude that the appellant could only succeed if he could demonstrate

It was argued that these passages supported the contention that

Page v. Smith (H.L.(E.))

Lord Jauncey of I ullichclllc

In Wilkinson v. Downton [1897] 2 Q.B. 57 the defendant informed the

A few sentences later he said:

In McLoughlin v. O'Brian [1983] 1 A.C. 410, 422 Lord Wilberforce

Page v. Smith (H.L.(E.))

phenomenon might induce in the plaintiff a psychiatric illness. Some

None of these cases involved participants but the observations of Lord

"This is saying that foreseeability must be accompanied and limited

Page v. Smith (H.L.(E.))

Lord Jaunccy of Tullichettle

This statement, following as it did immediately after the reference to

Page v. Smith (H.L.(E.))

volunteer rescuer at the scene of the Lewisham railway disaster witnessed

Page v. Smith (H.L.(E.))

a willingness to accept that all such tangible physical damage is foreseeable.

Page v. Smith (H.L.(E.))