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Cite as: [1995] 2 All ER 736, [1995] UKHL 7, [1995] PIQR P329, [1996] 1 AC 155, [1995] RTR 210, [1996] AC 155, [1995] 2 WLR 644, [1995] 2 Lloyd's Rep 95

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JISCBAILII_CASE_TORT

    Parliamentary Archives,
    HL/PO/JU/18/255

    Page (Appellant) v. Smith (Respondent)


    JUDGMENT

    Die Jovis 11° Mail 1995

    Upon Report from the Appellate Committee to whom was
    referred the Cause Page against Smith, That the Committee had
    heard Counsel as well on Monday the 13th and Tuesday the 14th as
    on Wednesday the 15th days of February last upon the Petition and
    Appeal of Ronald Edgar Page of 80 Horringer Road, Bury St.
    Edmunds, Suffolk IP33 2DP, praying that the matter of the Order
    set forth in the Schedule thereto, namely an Order of Her
    Majesty's Court of Appeal of the 30th day of March 1994, might
    be reviewed before Her Majesty the Queen in Her Court of
    Parliament and that the said Order might be reversed, varied or
    altered or that the Petitioner might have such other relief in
    the premises as to Her Majesty the Queen in Her Court of
    Parliament might seem meet; as upon the case of Simon Smith
    lodged in answer to the said Appeal; and due consideration had
    this day of what was offered on either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of Her Majesty's Court of Appeal
    of the 30th day of March 1994 complained of in the said Appeal
    be, and the same is hereby, Set Aside and that the Order of the
    Honourable Mr. Justice Otton of the 22nd day of October 1992 be,
    and the same is hereby, Restored save as to the issue of
    causation and as to costs: And it is further Ordered. That the
    issue of causation be remitted back to the Court of Appeal for
    determination: And it is also further Ordered. That the
    respondent do pay to the appellant his costs in this House, the
    amount of such costs to be certified by the Clerk of the
    Parliaments if not agreed between the parties; and that the costs
    below be determined by the Court of Appeal.

    Cler: Parliamentor:

    HOUSE OF LORDS

    OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

    IN THE CAUSE

    PAGE
    (APPELLANT)

    v.

    SMITH
    (RESPONDENT)

    ON 11TH MAY 1995

    Lord Keith of Kinkel
    Lord Ackner
    Lord Jauncey of Tullichettle
    Lord Browne-Wilkinson
    Lord Lloyd of Berwick


    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 (ME), or chronic fatigue syndrome (CFS) or post viral
    fatigue syndrome (PVFS), which had manifested itself from time to time with
    different degrees of severity. The plaintiff had suffered a particularly severe
    attack in March 1987, apparently as a result of a viral infection, but his
    evidence was that he was recovering from it and hoped to be able to return to
    his work as a teacher in September 1987. The plaintiff took proceedings
    against the defendant claiming damages for personal injuries caused by the
    defendant's negligence. His case was that his condition of what I shall for
    convenience refer to as CFS had as a result of the accident become chronic
    and permanent so that he would never be able to work again. Trial took place
    before Otton J., who on 22 December 1992 found in the plaintiff's favour and
    awarded him damages of £162,153. The defendant appealed, and on 30
    March 1994 the Court of Appeal (Ralph Gibson, Farquharson and Hoffmann
    L.JJ.) reversed the decision of Otton J. and entered judgment for the
    defendant. The plaintiff now appeals to your Lordships' House.

    - 1 -

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

    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 AC 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 KB 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 AC 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 AC 410 but not in Alcock v.
    Chief Constable of South Yorkshire Police
    [1992] 1 AC 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.

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

    - 2 -

    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] AC 92 that the test of liability for shock
    is foreseeability of injury by shock."

    That statement was endorsed by Viscount Simonds in The Wagon Mound
    (No. 1)
    [1961] AC 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) 54 A.L.R. 417, 452 Deane J. said,
    referring to Bourhill v. Young [1943] A.C. 97:

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

    Later, he said, at p. 460:

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

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

    - 3 -

    "It has now been established by The Wagon Mound (No. 1)
    [1961] AC 388 and by Hughes v. Lord Advocate [1963] AC 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 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] AC 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] AC 410 Lord Wilberforce spoke
    to similar effect at p. 420, and Lord Bridge of Harwich at p. 432. I think that
    what these judges had in mind was that it is necessary to look at the
    circumstances as they actually occurred and consider whether the hypothetical
    reasonable man, when directing his mind to the act or omission which is
    called in question, would have foreseen those circumstances, including that
    some person in the position of the plaintiff might as a result of what happened
    suffer nervous shock leading to an identifiable illness. Lord Wilberforce, at
    p. 422 in McLoughlin v. O'Brian mentioned that one of the factors in the light
    of which the claim had to be judged was the nature of the accident.

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

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

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

    - 4 -

    "... 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 CFS. 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 plaintiff's 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 [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] AC 410. 433.

    My Lords, for these reasons I would dismiss this appeal.

    LORD ACKNER

    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. McKay Q.C.'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

    - 5 -

    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 farfetched or fantastic
    as to be ". . .a mere possibility which would never occur to the mind of a
    reasonable man" (per Lord Dunedin in Fardon 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 Wagon Mound (No. 2) [1967] 1 AC 617 per Lord Reid,
    at pp. 640-642, where for the reasons which have already been explained, the
    evidence led was substantially different from the evidence led in Wagon
    Mound (No. 1)).
    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 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,

    - 6 -

    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] AC 388
    the judgment of the Board contained the following observations, at p.426:

    "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 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

    - 7 -

    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] AC 92 that the test of liability for shock is
    foreseeability of injury by shock."

    - 8 -

    This passage was referred to with approval in the following passage in
    the judgment of the Board in The Wagon Mound (No. 1) [1961] AC 388.
    at p.426:

    "We have come back to the plain common sense stated by Lord
    Russell of Killowen in Bourhill v. Young [1943] AC 92, 101. As
    Denning LJ. 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 Tire' 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] AC 410, although the appellant (plaintiff),
    accepted that the agreed test for liability for shock was the foreseeability
    thereof Lord Bridge of Harwich said, at p. 432:

    "The judges, in all the decisions we have been referred to, have
    assumed that it lay within their own competence to determine whether
    the plaintiff's 'nervous shock' (as lawyers quaintly persist in calling it)
    was in any given circumstances a sufficiently foreseeable consequence
    of the defendant's act 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 plaintiff's 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] AC 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 motor-cyclist 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.

    - 9 -

    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 (1970) 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 present-
    day rule that a cause of action for nervous shock depends on
    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 'recognizable psychiatric illness'."

    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 (No.l)
    [1961] AC 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 [19631]
    A.C. 837, 845 and Chapman v. Hearse (1961) 106 C.L.R. 112, 121.
    The second reason is that in The Wagon Mound (No 1) [1961] A.C.

    - 10 -

    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] AC 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 (No.1) [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) 54 A.L.R. 417 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.430:

    "In cases of negligence occasioning nervous shock, as in cases of
    negligence occasioning physical injury the 'essential factor in
    determining liability is whether the damage is of such a kind as the
    reasonable man should have foreseen' (The Wagon Mound (No 1)
    [1961] AC 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 recognizable
    psychiatric illness induced by shock must be reasonably foreseeable."

    Deane J. expressed views to a similar effect, at p.460:

    "The limitations upon the ordinary test of reasonable foreseeability in
    cases of mere psychiatric injury are conveniently stated in negative
    form. Two of them have already been mentioned. The first of those is
    that reasonably 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 the USA Tobriner J. delivering the judgment of the Supreme Court
    of California in Dillon v. Legg (1968) 69 Cal. Reptr. 72 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 p.80:

    "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

    - 11 -

    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 & Jones, 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 Wagon Mound (No 1) 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, 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 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 [1992] 1 A.C.
    310, 406F - H. After referring to the fact that compensable 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. 407A:

    "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."

    - 12 -

    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 self-
    evident 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.

    In Wilkinson v. Downton [1897] 2 QB 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."

    - 13 -

    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] AC 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 plaintiff's 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] AC 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 (p.436) considered that the above quoted dictum of Lord
    Porter in Bourhill v. Young was as acceptable in 1982 as it was in 1942. I
    consider that it is still acceptable in 1995. In Jaensch v. Coffey 54 A.L.R. 417
    Brennan J. said, at p. 431:

    "Moreover, it is generally recognized that what will induce a
    psychiatric illness in one person may leave another unaffected. Some
    people are naturally more robust - or less sensitive - than others. Yet
    reasonable foreseeability is an objective criterion of duty, and a
    general standard of susceptibility must be postulated. At least to that
    extent it is possible to confine consideration of the question whether it
    is reasonably foreseeable that the perception of a particular
    phenomenon might induce in the plaintiff a psychiatric illness. Some
    general guidelines apply. The first guideline is this: the question
    'whether there is duty owing to members of the public who come
    within the ambit of the act, must generally depend on a normal
    standard of susceptibility.' (per Lord Wright in Bourhill v. Young
    [1943] A.C. at p. 110)"

    - 14 -

    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? Commonsense 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] AC 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] AC 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."

    This statement, following as it did immediately after the reference to
    Donoghue v. Stevenson, was clearly intended to apply to foreseeability in

    - 15 -

    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 (supra) 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 KB 669 the plaintiff was assumed to have reasonable
    apprehension of immediate bodily hurt when the pair-horse van was driven
    into the bar where she was working. In Hambrook v. Stokes Brothers. [1925]
    1 K.B. 141 the plaintiff saw a run-away lorry heading in the direction of her
    children and then discovered that it had injured one of them. In Attia v.
    British Gas Plc [1988] 1 Q.B. 304 a woman saw her house and all her
    possessions therein go up in flames. In McLoughlin v. O'Brian [1983] A.C.
    410 a mother found her injured husband and children in a terrible state in

    - 16 -

    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 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 work mate and in Jaensch v. Coffey 54 A.L.R. 417
    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 (supra). In marked contrast was the unreported Court of
    Appeal case of Nicholls v. Rushton (unreported) 29 april 1992: Court of
    Appeal (Civil Division) Transcript No. 0401 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, at pp. 544g and 552h - 553c 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

    - 17 -

    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 bedeviled 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 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] AC 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 and Sons [1901] 2 KB 669 the pregnant plaintiff behind

    - 18 -

    the bar received no physical injury when the defendant's pair-horse 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 fiancé when they were both knocked down by a bus. The fiancé
    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 fiancé. 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 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.

    - 19 -

    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 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 distinguished 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

    - 20 -

    [1943] AC 92, McLoughlin v. O'Brian [1983] AC 410 and Alcock v. Chief
    Constable of South Yorkshire Police
    [1992] 1 AC 310, the plaintiffs were,
    in each case, outside the range of foreseeable physical injury. Thus, in
    Bourhill v. Young 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, 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 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 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, when he pointed out that Mrs. Bourhill was
    not physically involved in the collision. In Alcock's case [1992] 1 AC 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

    - 21 -

    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 sustained - that of an assault
    upon the nervous system of the plaintiff through witnessing or taking
    part in an event - and that they will, on account of this factor, provide
    a single common test for the circumstances which give rise to a duty
    of care."

    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 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

    - 22 -

    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 tindings 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 A.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."

    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

    - 23 -

    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 on 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 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. "The fact", said Ralph
    Gibson L.J., at p. 544, "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." The Lord Justice went on 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. (p. 549) put the point with his usual epigrammatic
    force. In cases of nervous shock, he said, "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] AC 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

    - 24 -

    personal injury cases which are tried or settled every day in the High Court
    and the County Courts. Of course, it would have been necessary to prove that
    the psychiatric illness was genuine, arid that it was caused by the accident.
    But nobody would have stopped to consider the foreseeability of nervous
    stock. Nobody would have referred to Bourhill v. Young [1943] AC 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 foreseeable physical injury means that a different test has to be
    applied? Is it to become 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 (1970) 125 C.L.R.
    383 per Windeyer J. at 395. 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 KB 669, Kennedy J. said, at p. 677:

    - 25 -

    "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."

    In Bourhill v. Young [1943] AC 92 Lord Macmillan said, at p. 103:

    "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
    inter-relation of physical and psychiatric injury in McLoughlin v. O'Brian
    [19831 AC 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.

    - 26 -

    My noble and learned friend Lord Keith of Kinkel has drawn attention
    to an observation of Lord Wright in Bourhill v. Young [1943] AC 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] AC 410, at pp. 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 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 AC 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 ER 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

    - 27 -

    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 found an action in
    ton. 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

    - 28 -

    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 [1962] 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 (1888) 13 App Cas 222
    and Dulieu v. White & Sons [1901] 2 KB 669.

    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 plaintiff's 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

    - 29 -

    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, at p. 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 Act 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, not her own. 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 unexpected - namely, shock. The questions 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."

    - 30 -

    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 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

    - 31 -

    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 is 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] AC 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 AC 310, 396 per Lord Keith of
    Kinkel and McFarlane v. E.E. Caledonia Ltd. [1994] 2 All ER 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

    - 32 -

    shock. The dictum has no application where the plaintiff is the primary victim
    of the defendant's negligence.

    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 (No. 7) [1961] AC 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 54 A.L.R.
    417 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 pre-disposed" 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

    - 33 -

    are quoted by Hoffmann L.J. in the Court of Appeal in the present case. He
    said, at p. 452:

    "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
    injury in that particular form, as distinct from personal injury generally
    (cf. per Atkin L.J. Hambrook v. Stokes at pp. 157-8 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] AC 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] AC 410, 423-
    424. 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 plaintiff's 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 and Singleton L.J. in
    King v. Phillips lend strong support to the opposite view.

    The second passage is at p. 460.

    "The limitations upon the ordinary test of reasonable foreseeability in
    cases of mere psychiatric injury are conveniently stated in negative
    form. Two of them have already been mentioned. The first of those
    is that reasonable foreseeability of 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."

    - 34 -

    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 Tank Ship (U.K.) Ltd. v. Morts
    Dock Engineering Co. Ltd. (The Wagon Mound (No. 1))
    [1961] AC 388.
    This case, and the companion case of 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 (No. 1)
    was presented on the basis, in which both parties joined, that fuel oil on water
    did not crease a forseeable 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 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 (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 in [1961] C.L.J. 23,
    30. See also Clerk and Lindsell on Torts 16th ed. (1989), at pp. 587-588. 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] AC 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 (No. 1) 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

    - 35 -

    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 fall-back 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 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] AC 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

    - 36 -

    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.

    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] AC 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

    - 37 -

    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.

    - 38 -


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