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Page v Smith
Factual and Procedural Background
The Plaintiff, a schoolteacher diagnosed with chronic fatigue syndrome (CFS/ME), was driving in The City on 24 July 1987 when the Defendant’s vehicle turned across his path, causing a collision described by the trial judge (Judge Otton) as “of moderate severity.” No occupant of either car sustained external bodily injury, and the Plaintiff was able to drive home. Within hours, however, he experienced a serious relapse of his pre-existing illness and was thereafter unable to work.
At first instance, Judge Otton found for the Plaintiff and awarded damages exceeding £160,000. The Court of Appeal (three Lords Justices) reversed that decision, holding that psychiatric injury was not reasonably foreseeable and, additionally, that causation had not been proved. The Plaintiff appealed to the House of Lords. On 11 May 1995, five Law Lords delivered opinions and the Appellate Committee issued the order reproduced in the parliamentary record.
Legal Issues Presented
- Whether, in a negligence claim brought by a primary victim of a road accident, the Plaintiff must prove that psychiatric injury itself was reasonably foreseeable, or whether it is sufficient that some physical injury was reasonably foreseeable.
- Whether the Defendant owed a duty of care to guard against psychiatric injury in a person with an “eggshell personality.”
- Whether, on the evidence, the collision caused the Plaintiff’s chronic and permanent relapse of CFS/ME (causation issue remitted).
Arguments of the Parties
Plaintiff's Arguments
- Because he was directly involved in the collision, it was enough to show that any personal injury was foreseeable; a further requirement of foreseeability of psychiatric injury applies only to secondary victims.
- The Defendant must take his victim as found (“egg-shell skull/personality” rule), so pre-existing vulnerability does not preclude recovery.
- Medical testimony demonstrated that the accident triggered a permanent exacerbation of CFS/ME.
Defendant's Arguments
- Liability for psychiatric injury always requires that such injury be specifically foreseeable; absence of bodily harm made psychiatric damage unforeseeable in a person of normal fortitude.
- Even if the foreseeability test is satisfied, the medical evidence did not prove causation between the collision and the Plaintiff’s chronic condition.
- The Plaintiff’s unusual susceptibility places his loss outside the scope of the duty of care.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Alcock v. Chief Constable of South Yorkshire Police [1992] 1 AC 310 | Control mechanisms and proximity requirements for secondary victims | Highlighted that such mechanisms are inapplicable to a primary victim like the Plaintiff. |
| Dulieu v. White & Sons [1901] 2 KB 669 | Primary victim may recover for psychiatric injury caused by reasonable fear of personal safety | Cited as early authority supporting recovery without bodily impact. |
| Schneider v. Eisovitch [1960] 2 QB 430 | Primary victim recovering for injuries including psychiatric consequences | Illustrative of unified treatment of physical and psychiatric harm. |
| Hambrook v. Stokes Brothers [1925] 1 KB 141 | Extension of duty to secondary victims fearing for their children | Contrasted with present Plaintiff’s primary-victim status. |
| McLoughlin v. O’Brian [1983] 1 AC 410 | Foreseeability & proximity in secondary-victim claims; link between physical and psychiatric trauma | Relied on Lord Bridge’s discussion of psychiatric illness following acute trauma. |
| Bourhill v. Young [1943] AC 92 | Need for foreseeability of psychiatric harm to a bystander outside impact zone | Held not to govern primary-victim cases; distinguished accordingly. |
| King v. Phillips [1953] 1 QB 429 | Denning LJ dictum equating nervous-shock liability with foreseeability of shock | Explained as confined to secondary-victim situations. |
| Overseas Tankship (UK) v. Morts Dock (“Wagon Mound No. 1”) [1961] AC 388 | Liability limited to damage of a foreseeable “kind” | Discussed to show concept of damage “kind” does not require separate psychiatric foreseeability for primary victims. |
| Wagon Mound (No. 2) [1967] 1 AC 617 | Balancing foreseeability against cost of prevention | Quoted in Lord Ackner’s concurrence to show shock risk was not “far-fetched.” |
| Hughes v. Lord Advocate [1963] AC 837 | Foreseeability of injury within a class suffices | Supports view that precise psychiatric diagnosis need not be foreseen. |
| Mount Isa Mines Ltd. v. Pusey (1970) 125 CLR 383 | Psychiatric injury constitutes a “kind” of damage if foreseeable | Cited but distinguished; present Plaintiff already within physical-injury foresight. |
| Jaensch v. Coffey (1984) 54 ALR 417 | Secondary victim recovery; need for recognised psychiatric illness | Used for comparative analysis. |
| Victorian Railways Commrs v. Coultas (1888) 13 App Cas 222 | Historic (now disapproved) restriction on shock claims | Noted as long-rejected precedent. |
| Wilkinson v. Downton [1897] 2 QB 57 | Intentional infliction of mental harm; ordinary susceptibility standard | Quoted for “normal standard” in shock liability. |
| Fardon v. Harcourt-Rivington (1932) 146 LT 391 | Risk must not be “far-fetched or fantastic” | Used by Lord Ackner to show shock risk was real. |
| Currie v. Wardrop 1927 SC 538 | Participant claimant recovering for shock without bodily injury | Cited to distinguish participant from bystander. |
| Brown v. Glasgow Corporation 1922 SC 527 | Psychiatric injury following fear for own safety | Reinforced participant-shock liability. |
| Love v. Port of London Authority [1959] 2 Lloyd’s Rep 541 | Egg-shell personality principle | Referenced in Malcolm v. Broadhurst quotation. |
| Chapman v. Hearse (1961) 106 CLR 112 | Foreseeability of rescue-related harm | Cited within Walsh J analysis in Pusey. |
| Dillon v. Legg (1968) 69 Cal Rptr 72 | Foreseeability test in U.S. secondary-victim cases | Discussed comparatively. |
| Attia v. British Gas plc [1988] 1 QB 304 | Shock from destruction of property | Example of dramatic event causing compensable shock. |
| Chadwick v. British Railways Board [1967] 1 WLR 912 | Rescuer’s psychiatric injury recoverable | Contrasted with mild collision here. |
| Nicholls v. Rushton (CA 1992, unreported) | Minor collision insufficient for foreseeable shock | Compared when evaluating foreseeability. |
| Malcolm v. Broadhurst [1970] 3 All ER 508 | Egg-shell personality; unified approach to injury types | Adopted by first-instance judge and Lords majority. |
| Brice v. Brown [1984] 1 All ER 997 | Primary/secondary overlap; duty owed despite predisposition | Used as illustration. |
| In re Polemis & Furness, Withy [1921] 3 KB 560 | Directness test for remoteness (overruled by Wagon Mound) | Mentioned historically. |
Court's Reasoning and Analysis
The Law Lords divided, but by majority held that a primary victim need only demonstrate that the Defendant should reasonably have foreseen some personal injury; it is unnecessary to establish separate foreseeability of psychiatric injury. The majority reasoning unfolded as follows:
- Established negligence principles impose a duty where physical injury is foreseeable; participants are automatically within that duty’s scope.
- Historic nervous-shock authorities (e.g., Bourhill, King) concern secondary victims and do not transplant wholesale to primary-victim cases.
- Medical science recognises no clear line between physical and psychiatric pathology; the law should not impose artificial distinctions (“no magic in actual personal contact” – quoting Atkin LJ).
- The “egg-shell skull” rule applies equally to psychiatric vulnerability; once duty is owed, the Defendant takes the victim as found.
- Foreseeability is assessed prospectively; hindsight (e.g., the fact no bones were broken) cannot negate an existing duty.
- Although the collision caused no bodily harm, a reasonable motorist should foresee risk of physical injury in a head-on impact at 30 mph; therefore the duty extended to resulting psychiatric sequelae.
- Accordingly, the Court of Appeal erred in super-adding a requirement of psychiatric foreseeability and in overturning findings open to the trial judge.
A minority (Lord Keith and Lord Jauncey) would have dismissed the appeal, reasoning that psychiatric injury itself must be foreseeable even for a participant, and that a moderate, non-injury collision would not foreseeably traumatise a person of normal fortitude.
Holding and Implications
ORDER: Court of Appeal judgment SET ASIDE; High Court judgment RESTORED save as to issues of causation and costs; causation remitted to the Court of Appeal; Defendant to pay Plaintiff’s costs in the House of Lords; costs below to be determined after causation ruling.
Implications: The decision clarifies that for primary victims physical-injury foreseeability suffices to ground liability for resulting psychiatric harm. It narrows the reach of the “shock foreseeability” test to secondary-victim cases, aligning psychiatric injury with other personal injuries for participants, and reinforces the egg-shell personality doctrine. No novel cause of action was created, but the ruling streamlines negligence analysis in future personal-injury litigation.
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