BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales High Court (King's Bench Division) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Dulieu v White & Sons [1901] EWHC KB 1 (05 June 1901)
URL: http://www.bailii.org/ew/cases/EWHC/KB/1901/1.html
Cite as: [1901] EWHC KB 1, [1901] 2 KB 669

[New search] [Printable version] [Buy ICLR report: [1901] 2 KB 669] [Help]


Neutral Citation Number: [1901] EWHC KB 1
Neutral Citation Number: [1901] EWHC KB 1

IN THE HIGH COURT OF JUSTICE
Divisional Court
King's Bench

5 June 1901

B e f o r e :

Kennedy J. and Phillimore JJ.
____________________

Between:
DULIEU v. WHITE & SONS.

____________________

Ritter ,instructed by H. Dade & Go. for the plaintiff.
G. Spencer Bower ,instructed by William Hurd & Son for the defendants.

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Kennedy J.:-

  1. In this case the only question for the judgment of the Court is in the nature of a demurrer. The defendants have pleaded as a matter of law that the damages sought to be recovered are too remote, and that the statement of claim upon its face discloses no cause of action.
  2. The statement of claim alleges that on July 20, 1900, the plaintiff, then being in a state of pregnancy, was behind the bar of her husband's public-house, and that the defendants by their servant negligently drove a pair-horse van into the public-house. It goes on to allege in paragraph 4 that the plaintiff in consequence sustained a severe shock and was seriously ill, and on September 29 following gave premature birth to a child, and, in paragraph 5, that in consequence of the shock sustained by the plaintiff the said child was born an idiot. Then follows the claim for damages.
  3. The matter we have to decide is whether, if it be proved –at the trial that the defendants' servant did negligently manage a pair-horse van, and by reason of his negligence drove it into the part of the public-house where the plaintiff was, and did thereby cause her such a nervous shock as to make her ill in body and suffer bodily pain in the way alleged, the plaintiff has a good cause of action for damages under paragraph 4. The head of damage alleged in paragraph 5 was rightly treated by the plaintiff's counsel as untenable.
  4. The defendants' counsel summed up his contention against the legal validity of the plaintiff's claim in the statement that no action for negligence will lie where there is no immediate physical injury resulting to the plaintiff. He has argued that the bodily harm, which in the present case resulted to the plaintiff through the shock received by her through the inroad of the van and horses into the room in which she was, and which so acted upon her in her then state of health as to produce the bodily harm, was in point of law too remote a consequence of the negligence of the defendants' servant.
  5. My brother Phillimore and I agree that this contention ought not to be upheld; but as we arrive at this result by somewhat different courses of reasoning, and the case is upon the authorities not free from difficulty and raises points of general interest, I think that I ought to state the considerations which have led me to my conclusion.
  6. This is an action on the case for negligence—that is to say, for a breach on the part of the defendants' servant of the duty to use reasonable and proper care and skill in the management of the defendants' van. In order to succeed, the plaintiff has to prove resulting damage to herself and "a natural and continuous sequence uninterruptedly connecting the breach of duty with the damage as cause and effect."[1] In regard to the existence of the duty here, there can, I think, be no question. The driver of a van and horses in a highway owes a duty to use reasonable and proper care and skill so as not to injure either persons lawfully using the highway, or property adjoining the highway, or persons who, like the plaintiff, are lawfully occupying that property. His legal duty towards all appears to me to be practically identical in character and in degree. I understood the plaintiff's counsel to suggest that there might exist a higher degree of duty towards the plaintiff sitting in a house than would have existed had she been in the street. I am not satisfied that this is so. The wayfarer in the street, as it seems to me, has in law as much right of redress if he is injured in person or in property by the negligence of another as the man who is lawfully sitting on a side-wall or in an adjoining house. " The whole law of negligence assumes the principle of ' Volenti non fit injuria' not to be applicable,"' for reasons which Sir Frederick Pollock points out [2] in a. passage which follows the quotation which I have just made. The legal obligations of the driver of horses are the same, I think, towards the man indoors as to the man out of doors; the only question here is whether there is an actionable breach of those obligations if the man in either case is made ill in body by such negligent driving as does not break his ribs but shocks his nerves.
  7. Before proceeding to consider the objections to the maintenance of such a claim as that of the present plaintiff, it is, I think, desirable for clearness' sake to see exactly what are the facts which ought to be assumed for the purposes of the argument. We must assume in her favour all that can be assumed consistently with the allegations of the statement of claim. We must, therefore, take it as proved that the negligent driving of the defendants' servant reasonably and naturally caused a nervous or mental shock to the plaintiff by her reasonable apprehension of immediate bodily hurt, and that the premature childbirth, with the physical pain and suffering which accompanied it, was a natural and a direct consequence of the shock. I may just say in passing that I use the words " nervous " and " mental" as interchangeable epithets on the authority of the judgment of the Privy Council in Victorian Railways Commissioners v. Coultas [3] ; but I venture to think "nervous "is probably the more correct epithet where terror operates through parts of the physical organism to produce bodily illness, as in the present case. The use of the epithet "mental" requires caution, in view of the undoubted rule that merely mental pain unaccompanied by any injury to the person cannot sustain an action of this kind.[4]
  8. Now, these being the assumed facts, what are the defendants' arguments against the plaintiff's right to recover damages in this action ?
  9. First of all, it is argued, fright caused by negligence is not in itself a cause of action—ergo, none of its consequences can give a cause of action. In Mitchell v. Rochester Ry. Co.[5] the point is put thus [6] : " That the result may be nervous disease, blindness, insanity, or even a miscarriage, in no way changes the principle. These results merely shew the degree of fright or the extent of the damages. The right of action must still depend upon the question whether a recovery may be had for fright." With all respect to the learned judges who have so held, I feel a difficulty in following this reasoning. No doubt damage is an essential element in a right of action for negligence. I cannot successfully sue him who has failed in his duty of using reasonable skill and care towards me unless I can prove some material and measurable damage. If his negligence has caused me neither injury to property nor physical mischief, but only an unpleasant emotion of more or less transient duration, an essential constituent of a right of action for negligence is lacking. "Fear," as Sir Frederick Pollock has stated [7], "taken alone falls short of being actual damage not because it is a remote or unlikely consequence, but because it can be proved and measured only by physical effects." It may, I conceive, be truly said that, viewed in relation to an action for negligence, direct bodily impact is, without resulting damage, as insufficient a ground of legal claim as the infliction of fright. That fright—where physical injury is directly produced by it—cannot be a ground of action merely because of the absence of any accompanying impact appears to me to be' a contention both unreasonable and contrary to the weight of authority. Leaving out of sight, as perhaps involving special considerations, cases of wilful wrong-doing such as Wilkinson v. Downton[8], decided by my brother Wright in a civil court, and the authorities as to criminal responsibility which are cited in Mr. Beven's work [9] we have as reported decisions, which go far in my judgment to negative the correctness of any such contention, Jones v. Boyce[10], Harris v. Mobbs [11], and Wilkins v. Day.[12] All the three cases are cited by Wright J. in his judgment in Wilkinson v. Downton [13], and he there explains the judgment given in favour of the plaintiff in each of them on the ground that the fright occasioned by the defendant's wrong-doing to the passenger in the earliest case, and to the horse in the two later cases, properly ought, in the circumstances, to be regarded as the direct and immediate cause of the damage which ensued. In other words, an action was held to lie where the only physical impact did not accompany but was a consequence of the fright. Further, we have directly in point the decision given in December, 1882, by the Common Pleas Division in Ireland under the presidency of the present Lord Morris in the unreported case of Byrne v. Great Southern and Western Railway Company of Ireland [14], and affirmed on appeal in a. judgment delivered by the late Sir Edward Sullivan, and the approval of this decision in 1890 by the Exchequer Division in Bell v. Great Northern Railway of Ireland. [15] In the course of his judgment in the last cited case Palles C.B. expressly points out [16] that in the circumstances in Byrne v. Great Southern and Western Railway Company of Ireland [17] there was nothing in the nature of impact, and the portions of the evidence which he quotes clearly shew that this was so. In Victorian Railways Commissioners v. Coultas[18], which was much relied upon by the defendants in the argument before us, and to which I shall have to refer more fully later on, the Privy Council expressly declined to decide that impact was necessary. If impact be not necessary, and if, as must be assumed here, the fear is proved to have naturally and directly produced physical effects, so that the ill results of the negligence which caused the fear are as measurable in damages as the same results would be if they arose from an actual impact, why should not an action for those damages lie just as well as it lies where there has been an actual impact ? It is not, however, to be taken that in my view every nervous shock occasioned by negligence and producing physical injury to the sufferer gives a cause of action. There is, I am inclined to think, at least one limitation. The shock, where it operates through the mind, must be a shock which arises from a reasonable fear of immediate personal injury to oneself. A. has, I conceive, no legal duty not to shock B.'s nerves by the exhibition of negligence towards C, or towards the property of B. or C. The limitation was applied by Wright and Bruce JJ. in the unreported case of Smith v. Johnson & Co.[19] referred to by Wright J. at the close of his judgment in Wilkinson v. Downton.[20] In Smith v. Johnson & Co. [21] a man was killed by the defendant's negligence in the sight of the plaintiff, and the plaintiff became ill, not from the shock produced by fear of harm to himself, but from the shock of seeing another person killed. The Court held that this harm was too remote a consequence of the negligence. I should myself, as I have already indicated, have been inclined to go a step further, and to hold upon the facts in Smith v. Johnson & Co.[22] that, as the defendant neither intended to affect the plaintiff injuriously nor did anything which could reasonably or naturally be expected to affect him injuriously, there was no evidence of any breach of legal duty towards the plaintiff or in regard to him of that absence of care according to the circumstances which Willes J. in Vaughan v. Taff Vale By. Co.[23] gave as a definition of negligence. Sir Frederick Pollock begins the passage in his work on Torts, 6th ed. p. 50, in which he discusses the point at issue before us with a question which assumes the limitation. The learned author puts the inquiry in this form : " Where a wrongful or negligent act of A. threatening Z. with immediate bodily hurt, but not causing such hurt, produces in Z. a sudden terror or 'nervous shock' from which bodily illness afterwards ensues, is this damage too remote to enter into the measure of damages if A.'s act was an absolute wrong, or to give Z. a cause of action if actual damage is the gist of the action ? " In order to illustrate my meaning in the concrete, I say that I should not be prepared in the present case to hold that the plaintiff was entitled to maintain this action if the nervous shock was produced, not by the fear of bodily injury to herself, but by horror or vexation arising from the sight of mischief being threatened or done either to some other person, or to her own or her husband's property, by the intrusion of the defendants' van and horses. The cause of the nervous shock -is one of the things which the jury will have to determine at the trial.
  10. It remains to consider the second and somewhat different form in which the defendants' counsel put his objection to the right of the plaintiff to maintain this action. He contended that the damages are too remote, and relied much upon the decision of the Privy Council in Victorian Railways Commissioners v. Coultas. [24] In that case the principal circumstances were that the appellants' gate-keeper negligently invited the male plaintiff and his wife, who were driving in a buggy, to enter the gate at a crossing when a train was approaching, and, though there was no actual collision with the train, the escape was so narrow and the danger so alarming that the lady fainted and suffered a severe nervous shock, which produced illness and a miscarriage. The Colonial Court had entered judgment for the plaintiff for the amount found by the jury at the trial of the action brought against the appellants for negligence. The Privy Council reversed this decision. The principal ground of their judgment is formulated in the following sentence: "Damages arising from mere sudden terror unaccompanied by any actual physical injury but occasioning a nervous or mental shock cannot under such circumstances, their Lordships think, be considered a consequence which, in the ordinary course of things, would flow from the negligence of the gate-keeper."[25] A judgment of the Privy Council ought of course to be treated by this Court as entitled to very great weight indeed; but it is not binding upon us, and, in venturing most respectfully not to follow it in the present case, I am fortified by the fact that its correctness was treated by Lord Esher M.E. in his judgment in Pugh v. London, Brighton & South Coast By. Co.[26] as open to question; that it was disapproved by the Exchequer Division in Ireland in Bell v. Great Northern Railway Company of Ireland [27], where, in the course of his judgment, Palles C.B. gives a reasoned criticism of the Privy Council judgment, which, with all respect, I entirely adopt; and, lastly, by the fact that I find that the judgment has been unfavourably reviewed by legal authors of recognised weight such as Mr. Sedgwick [28], Sir Frederick Pollock[29], and Mr. Beven. [30] "Why is the accompaniment of physical injury essential ? 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 physiologist told us that nervous shock is or may be in itself an injurious affection of the physical organism. Let it be assumed, however, that the physical injury follows the shock, but that the jury are satisfied upon proper and sufficient medical evidence that it follows the shock as its direct and natural effect, is there any legal reason for saying that the damage is less proximate in the legal sense than damage which arises contemporaneously ? "As well might it be said " (I am quoting from the judgment of Palles C.B.[31]) " that a death caused by poison is not to be attributed to the person who administered it because the mortal effect is not produced contemporaneously with its administration." Remoteness as a legal ground for the exclusion of damage in an action of tort means, not severance in point of time, but the absence of direct and natural causal sequence— the inability to trace in regard to the damage the "propter hoc " in a necessary or natural descent from the wrongful act. As a matter of experience, I should say that the injury to health which forms the main ground of damages in actions of negligence, either in cases of railway accidents or in running-down cases, frequently is proved, not as a concomitant of the occurrence, but as one of the sequelæ.
  11. To one other point only in the judgment in Victorian Railways Commissioners v. Coultas[32] will I now refer. The judgment proceeds[33]: "If it were held that they can, it appears to their Lordships that it would be extending the liability for negligence much beyond what that liability has hitherto been held to be. Not only in such a case as the present, but in every case where an accident caused by negligence had given a person a serious nervous shock, there might be a claim for damages on account of mental injury." I find, with all respect, a difficulty in appreciating this argument, because in that case, as is to be assumed in this, there was evidence of actual physical illness, not only of a mental pain, and the defendants, if the verdict on this part of the case was against the weight of the evidence, should have moved for a new trial. The case standing as it did, it is difficult to see how a decision on the appeal in favour of the respondents would have sanctioned the maintenance of an action for merely mental hurt.
  12. The counsel for the defendant on the argument before us referred also to two American cases. One I have already mentioned, Mitchell v. Rochester Ry. Co.[34] The Court of Appeals of the State of New York did no doubt there hold, both, as I have already stated, that no recovery may be had for fright, and also that it could not properly be said that the plaintiffs miscarriage in that case was the proximate result of the defendants' negligence. Shortly, the facts there were that the plaintiff, whilst waiting for a tram-car, was nearly run over by the negligent management of the defendants' servant of a car drawn by a pair of horses, and owing to terror so caused fainted, lost consciousness, and subsequently had a miscarriage and consequent illness. The Court upon the present point base their decision, to use their own language, upon a view that the injuries [35] "were plainly the result of an accidental or unusual combination of circumstances which could not have been reasonably anticipated, and over which the defendant had no control." ¦ I can only say, with due deference to the learned judges who so decided, that I cannot assent upon the assumed state of facts, which was that the defendants' driver by negligent driving threatened the plaintiff with immediate bodily injury, and by that threat caused her terror which produced the physical injuries above mentioned. "Whether the terror was in the circumstances a natural and reasonable result of the threat was a question of fact for the jury. It must be taken, I think, that they so found. But if the damages thus occasioned ought to be held not to be proximate, it seems to me to be difficult to maintain the correctness of the decisions in Jones v. Boyce[36], Wilkins v. Day[37], and Harris v. Mobbs.[38] It may be admitted that the plaintiff in this American case would not have suffered exactly as she did, and probably not to the same extent as she did, if she had not been pregnant at the time; and no doubt the driver of the defendants' horses could not anticipate that she was in this condition. But what does that fact matter ? If a man is negligently run over or otherwise negligently injured in his body, it is no answer to the sufferer's claim for damages that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart.
  13. The other American case cited for the defendants is Spade v. Lynn and Boston Rail Road [39], decided by the Supreme Judicature Court of Massachusetts in 1897. The Court there held, as appears in the head-note of the report, that in an action to recover damages for an injury sustained through the negligence of another there can be no recovery for a bodily injury caused by mere fright and mental disturbance. But whilst the decision is thus in the result in accordance with the New York case, it is nevertheless given upon different grounds. In his interesting judgment, Allen J., who delivered the decision of the Court, admits fully that which, as I have pointed out, the New York Court denied, namely, that damages for physical injury caused through fright, which is occasioned by negligent conduct, are in principle not too remote. " A physical injury," he says (1), "may be directly traceable to fright, and so may be caused by it. We cannot say, therefore, that such consequences may not flow proximately from unintentional negligence, and if compensation in damages may be recovered for a physical injury so caused, it is hard on principle to say why there should not be also a recovery for the mere mental suffering when not accompanied by any perceptible physical effects." This reasoning concedes more than the present plaintiff asks, for she asks to be compensated in damages only if she proves physical injury. The learned judge then proceeds to state why the right to recover, which on principle ought to exist, is in his view properly refused. " It would seem therefore," he says[40], " that the real reason for refusing damages sustained from mere fright must be something different, and it probably rests on the ground that in practice it is impossible satisfactorily to administer any other rule." He goes on to develope his argument on the ground of public policy—the hardship of holding persons bound to anticipate and guard against anything but the probable consequences to ordinary people (in which it is clear he considers that the consequences of fright should not be included), and the risk of opening "a wide door for unjust claims which could not successfully be met." He refers amongst other cases to Victorian Railways Commissioners v. Coultas[41] ; and it will be seen on a reference to the report of that case [42] that while the judgment of the Privy Council proceeds mainly upon the view that the damages are too remote, it does also claim justification from the argument of public policy and the danger which would arise from a contrary decision on account of "a wide field opened for imaginary claims." Naturally one is diffident of one's opinion when one finds that it is not in accord with those which have been expressed by such judicial authorities as those to which I have just referred. But certainly, if, as is admitted, and I think justly admitted, by the Massachusetts judgment, a claim for damages for physical injuries naturally and directly resulting from nervous shock which is due to the negligence of another in causing fear of immediate bodily hurt is in principle not too remote to be recoverable in law, I should be sorry to adopt a rule which would bar all such claims on grounds of policy alone, and in order to prevent the possible success of unrighteous or groundless actions. Such a course involves the denial of redress in meritorious cases, and it necessarily implies a certain degree of distrust, which I do not share, in the capacity of legal tribunals to get at the truth in this class of clam. My experience gives me no reason to suppose that a jury would really have more difficulty in weighing the medical evidence as to the effects of nervous shock through fright, than in weighing the like evidence as to the effects of nervous shock through a railway collision or a carriage accident, where, as often happens, no palpable injury, or very slight palpable injury, has been occasioned at the time.
  14. I have now, I think, dealt with the authorities and the arguments upon which the defendants rely, and I have done so at greater length than I should have wished to do but for the general interest of the points involved and the difficulties which the conflict of authorities undoubtedly present. In this conflict I prefer, as I have already indicated, the two decisions of the Irish Courts. They seem to me to constitute strong and clear authorities for the plaintiff's contention. It was suggested on the part of the defendants that the applicability of the judgment in Bell v. Great Northern Railway Company of Ireland [43] is affected by the fact that the female plaintiff in that action was a passenger on the defendants' railway, and as such had contractual rights. It appears to me that in the circumstances this fact can make no practical difference whatever. In the Irish case there was no special contract, no notice to the railway company when they accepted her as a passenger, that she was particularly delicate, or peculiarly nervous or liable to fright. The contractual duty existed, as it often does exist, concurrently with the duty apart from contract; but the one is in such circumstances practically coextensive with the other in the rights which it gives and the corresponding liabilities which it imposes.
  15. I hold that, if on the trial of this action the jury find the issues left to them as the jury found them in Bell v. Great Northern Railway Company of Ireland[44], after the direction of Andrews J., which was approved by the Exchequer Division, the plaintiff will have made out a good cause of action.
  16. Phillimore J. :-

  17. The discussion in this case has ranged over wide ground, and many points have been brought to our notice.
  18. It will not, I hope, be thought that these matters have been omitted from consideration or not materially considered because I am able to put my conclusions into a comparatively narrow compass.
  19. I think there may be cases in which A. owes a duty to B. not to inflict a mental shock on him or her, and that in such a case, if A. does inflict such a shock upon B.—as by terrifying B.—and physical damage thereby ensues, B. may have an action for the physical damage, though the medium through which it has been inflicted is the mind.
  20. I think, for example, that it may well be, as the Exchequer Division in Ireland held in the case of Bell v. Great Northern Bailway Company of Ireland [45], that a railway company has a duty to its passengers to use its best endeavours to convey them, not merely safely, but securely in the etymological sense of the word, and that when it fails, and physical damage accrues to a passenger through the fright which its failure occasions, the passenger may have an action.
  21. I cordially accept the decision of my brother Wright in Wilkinson v. Downton[46]. that every one has a legal right to his personal safety, and that it is a tort to destroy this safety by wilfully false statements and thereby to cause a physical injury to the sufferer. In that case it will be observed that the only physical action of the wrong-doer was that of speech.
  22. I think there is some assistance to be got from the cases where fear of impending danger has induced a passenger to take means of escape which have in the result proved injurious to him, and where the carrier has been held liable for these injuries, as in Jones v. Boyce. [47] The limit of the application of this principle is shewn in Adams v. Lancashire and Yorkshire By. Co.[48]
  23. These principles and cases seem to establish that terror wrongfully induced and inducing physical mischief gives a cause of action. Against them is to be set the weighty authority of Victorian Railways Commissioners v. Coultas.[49] This is an authority to be treated with the utmost respect, but no more binding on us even as to the res decisa than it was upon the Exchequer Division in Ireland. Still less are the special reasons for the decision binding. I do not know whether I should or should not have come unaided to the same conclusion as that which was in that case arrived at; but I think it possible that I should, though not for the reasons which have prominence in the judgment. It must be conceded on behalf of the plaintiff that to give rise to a cause of action the act which terrifies must be either wilful or negligent. Negligence is a breach of duty owed to the person complaining. It is not certain that as between people travelling on highways there is. any duty so carefully to conduct yourself or your vehicle as not to frighten others. It is a duty so carefully to conduct yourself or your vehicle as not to cause collision or some other form of direct physical damage.
  24. The gate-keeper in the Victorian Railways Case [50] was careless in opening the gate when the train was coming, and would have rendered his railway liable if there had been actual impact, even if the actual impact was produced by a wrong manoeuvre taken under the influence of fear : see per James L.J. in The Bywell Castle.[51] But it may be nevertheless that in such circumstances a railway is not liable if there be escape of actual impact, however narrowly. There are dangers sometimes from the traffic at Charing Cross which might frighten not only an inexperienced and elderly countrywoman, but an experienced and cool citizen, the ideal vir constans (reasonable and resolute person) for whom εμπειρια (experience) makes αυδρεια (less fearful). But if physical consequences were induced by terror so produced, it may be that there would be no cause of action. This principle is suggested, though in language perhaps open to criticism, by Bramwell B. in Holmes v. Mather.[52] It may be (I do not say that it is so) that a person venturing into the streets takes his chance of terrors. If not fit for the streets at hours of crowded traffic, he or she should not go there. But if a person being so unfit either permanently or temporarily stays at home, he or she may well have a right to his or her personal safety, giving to these words the meaning given by my brother Wright J., and wilfully or negligently to invade this right and so induce physical damage may give an action. In the case before us the plaintiff, a pregnant woman, was in her house. It is said that she was not the tenant in possession and could not maintain trespass quare clausum fregit, if this had been a direct act of the defendant and not of his servant (as it was). This is true: her husband was in possession. But none the less it was hex home, where she had a right, and on some occasions a duty, to be; and it seems to me that if the tenant himself could maintain an action, his wife or child could do likewise. It is averred that by reason of the careless driving of the defendants' servant a pair-horse van came some way into the room, and so frightened her that serious physical consequences thereby befell her. If these averments be proved, I think that there was a breach of duty to her for which she can have damages. The difficulty in these cases is to my mind not one as to the remoteness of the damage, but as to the uncertainty of there being any duty. Once get the duty and the physical damage following on the breach of duty, and I hold that the fact of one link in the chain of causation being mental only makes no difference. The learned counsel for the plaintiff has put it that every link is physical in the narrow sense. That may be or may not be. For myself, it is unimportant.
  25. The American cases to which we have been referred are worthy of much attention and respect. As to the decision of the Court of Appeal in Mitchell v. Rochester Ry. Co.[53], I would make the same observations as I have made on the Victorian Railways Case. [54] I accept the reasoning in the case of Spade v. Lynn and Boston Rail Road [55] and I think I should have come to the same decision. But I should not have expressed it in such broad and sweeping language. The following passage, which I only discovered after I had written the first part of my judgment, exactly expresses what I mean up to a certain point [56]: " Not only the transportation of passengers and the running of trains, but the general conduct of business and of the ordinary affairs of life, must be done on the assumption that persons who are liable to be affected thereby are not peculiarly sensitive, and are of ordinary physical and mental strength. If, for example, a traveller is sick or infirm, delicate in health, specially nervous or emotional, liable to be upset by slight causes, and therefore requiring precautions which are not usual or practicable for travellers in general, notice should be given, so that, if reasonably practicable, arrangements may be made accordingly, and extra care be observed. But as a general rule a carrier of passengers is not bound to anticipate or to guard against an injurious result which would only happen to a person of peculiar sensitiveness." Aliter in this case, where the plaintiff is not a passenger nor a traveller.
  26. Our judgment must be for the plaintiff with costs. I do not, however, think that she has any lawful claim for damages in respect of the matters stated in paragraph 5 of her statement of claim. This, indeed, her learned counsel has abandoned.
  27. Judgment for the plaintiff.

Note 1   Shearman and Eedfield, Negligence, cited in Beven, Negligence in Law, 2nd ed. p. 7.     [Back]

Note 2   The Law of Torts, by Sir P. Pollock, 6th ed. pp. 166, 167.    [Back]

Note 3   13 App Cas 222.    [Back]

Note 4   Beven, Negligence in Law, 2nd ed. p. 77.    [Back]

Note 5    (1896) 151 N. Y. 107.    [Back]

Note 6   151 N. Y. at pp. 109, 110.    [Back]

Note 7   The Law of Torts, 6th ed. p. 51.    [Back]

Note 8    [1897] 2 Q B 57.    [Back]

Note 9   Negligence in Law, 2nd ed    [Back]

Note 10    (1816) 1 Stark 493; 18 R. R.    [Back]

Note 11    (1878) 3 Ex. D. 268.    [Back]

Note 12    (1883) 12 Q. B. D. 110.    [Back]

Note 13   [1897] 2 Q. B. at p. 61. pp. 81, 82    [Back]

Note 14   Unreported.    [Back]

Note 15   (1890) 26 L. R. Ir. 428. 812.    [Back]

Note 16   26 L. R. Ir. at p. 442.    [Back]

Note 17   Unreported.    [Back]

Note 18   13 App Cas 222.    [Back]

Note 19   Unreported.    [Back]

Note 20    [1897] 2 Q B 57, at p. 61.    [Back]

Note 21   Unreported.    [Back]

Note 22   Unreported.    [Back]

Note 23   (1860) 5 H. & N. 679, at p. 688.    [Back]

Note 24   13 App Cas 222.    [Back]

Note 25   13 App. Cas. at p. 225.    [Back]

Note 26   [1896] 2 Q. B. 248, at p. 250.    [Back]

Note 27   26 L. R. Ir. 428.    [Back]

Note 28   On Damages, 8th ed. p. 861.    [Back]

Note 29   The Law of Torts, 6th ed. pp. 50-52.    [Back]

Note 30   Negligence in Law, 2nd ed. pp. 76-83.    [Back]

Note 31   26 L. R. Ir. at p. 439.    [Back]

Note 32   13 App Cas 222.    [Back]

Note 33   13 App. Cas. at p. 225.    [Back]

Note 34   151 N. Y. 107.    [Back]

Note 35   151 N. Y. at p. 110.    [Back]

Note 36   1 Stark. 493 ; 18 R. R. 812.    [Back]

Note 37   12 Q. B. D. 110.    [Back]

Note 38   3 Ex. D. 268    [Back]

Note 39   (1897) 60 Am. St. Rep. 393; 168 Mass. 285. Spade v. Lynn and Boston Rail Boad Co. appears to have been tried a second time after the decision of Allen J., reported 168 Mass. 285; 60 Am. St. Rep. 393. At the second trial it was proved that the defendants' conductor in removing a passenger from the car jostled another passenger and caused him to fall on the plaintiff, which of itself was a trifling matter, but the fright resulted in physical injury. This second trial resulted also in a verdict for the plaintiff; but the defendants again alleged exceptions which were sanctioned in a judgment of Holmes J. in January 1899, reported 172 Mass. 488; 70 Am. St. Rep. 298.     [Back]

Note 40   60 Am. St. Rep. at p. 395.    [Back]

Note 41   13 App Cas 222.    [Back]

Note 42   13 App. Cas. at p. 226.    [Back]

Note 43   26 L. R. Ir. 428.    [Back]

Note 44   26 L. R. Ir. 428.    [Back]

Note 45    26 L. R. Ir. 428.    [Back]

Note 46    [1897] 2 Q B 57.    [Back]

Note 47   1 Stark. 493; 18 R. R. 812.    [Back]

Note 48   (1869) L. R. 4 C. P. 739.    [Back]

Note 49   13 App Cas 222.    [Back]

Note 50   13 App Cas 222.    [Back]

Note 51   (1879) 4 P. D. 219, at p. 223.    [Back]

Note 52    (1875) L. R. 10 Ex. 261.    [Back]

Note 53   151 N. T. 107.    [Back]

Note 54   13 App Cas 222.    [Back]

Note 55   60 Am. St. Rep. 393; 168 Mass. 285.    [Back]

Note 56   60 Am. St. Rep. at p. 395.    [Back]


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWHC/KB/1901/1.html