Page v Smith - Detailed case brief, including paragraphs and page references Topic: Nervous PDF

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Detailed case brief, including paragraphs and page references
Topic: Nervous Shock...

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Page v Smith Area of law concerned:

Psychiatric illness from negligence

Court:

House of Lords

Date:

1996

Judge:

Lord Lloyd (majority)

Counsel: Summary of Facts:

Plaintiff claimed that a low-speed car accident caused by the defendant, in which he suffered no physical injury, had aggravated the chronic fatigue syndrome condition from which he suffered, leaving him unable to work.

Relief sought: Issues:

Relevant Statute(s): Procedural History: Plaintiff/Appellant’s arguments Defendant/Respondent’s arguments: Result: Lord Lloyd

We know that the plaintiff escaped physical injury. Can it be the law that this makes all the difference? Can it be law that the fortuitous absence of foreseeable physical injury means that a different test has to applied? Does the fact that there was luckily no physical injury mean that mental injury is not to be considered?

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 occupants of the car a duty not to cause physical harm. If there was psychiatric illness coupled with physical injury there would be claim for the psychiatric illness.

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 nervous system without physical injury? If he had suffered a heart attack he’d be covered, even though there was no physical injury. It would have been no answer that he had a weak heart. Absence of physical injury shouldn’t be a difference

Comparison to secondary victim cases (this case is primary victim) 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 areas 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 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. There should no longer at law be a distinction between physical and psychiatric injury.

Policy - Might be said that the door is open too wide, encouraging bogus claims. This is an important consideration in claims by secondary victims. For this reasons, control mechanisms have been introduced; a- for secondary victims, foreseeability is not enough. There must also be a degree of proximity. This means proximity in space, time and relationship. b- Secondary victims will only recover damages for nervous shock if the defendant should have foreseen injury by shock to a person of normal fortitude. These don’t make sense in the case of a primary victim and are not needed. Nor in the case of a primary victim is it appropriate to ask if they are of normal fortitude. The negligent defendant (or his insurer) takes his victim as he finds him. The same applies to psychiatric injury. There is no difference between an eggshell skull and ‘eggshell personality’(not personality, but medical issues).

Shock by itself is not the subject of compensation any more than fear or grief or any other emotion caused by the defendant’s negligence. It is only when shock is followed by recognisable psychiatric illness that the defendant may be held liable.

Lord Jauncey (dissent)

Another limiting factor is, before a defendant can be held liable for psychiatric injury suffered by a primary victim, he must have at least foreseen the risk of physical injury. If the defendant bumped his neighbour’s car while parking, in circumstances that he could not necessarily foresee would result in a claimable physical injury, there could be no question of claiming for psychiatric injury. 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. Eggshell skull principle

However it is relevant to the question of damages payable in respect of a breach of a duty otherwise established. There do not appear to be reasons in principle or logic for drawing a distinction between the two classes of person (physical/psychiatric injuries) 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 stationery. B, who is a woman prone to hysteria, promptly develops the condition with consequential physical injury. The circumstances are such that no normal person would have been in any way mentally or physically affected by that bump. Is B to be compensated because A should have foreseen that a hysterical woman might be in the car and thereby sustain a shock from a minor bump? Common sense would loudly say no. Don’t have to foresee unforeseeable circumstances

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. Assume that it is a person of normal fortitude for the foreseeability test. This is similar but not identical to Lord Lloyd’s view, where there is no liability if the accident couldn’t have foreseeably caused a physical injury.

I have no hesitation in adopting the approach of Lord Wilberforce in McLoughlin 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… In all reported cases in which a plaintiff has recovered damages for nervous shock the causative event has been of a dramatic and horrifying nature. 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. There were no bruises from his seatbelt and he did not suggest he was at any time in fear for his own safety… Physical injuries are not foreseeable from this accident, and thus are unlikely to be claimed. Can you really claim for psychiatric injury? Top 266

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 its occupants… This is a low threshold to instill foreseeability for psychiatric harm, or indeed any harm at all. No harm foreseeable. (Question of law or question of fact?) Lord Lloyd’s potential response: eggshell skull principle- so long as you can foresee some harm, you are liable for all the harm caused, including psychiatric. End...