Page v Smith [1996]

FACTS:

The plaintiff was involved in a collision with the defendant when the latter failed to give way when turning out of a side road. The plaintiff was physically unhurt in the collision, but the accident caused him to suffer the onset of myalgic encephalomyelitis (ME) from which he had suffered for about 20 years but which was then in remission. The recrudescence of ME was likely to prevent him from ever working again. The plaintiff brought an action against the defendant claiming damages for chronic and permanent ME.

The defendant admitted liability for the accident but disputed liability for damages. The judge awarded the plaintiff damages of £162,153 on the ground that once it was established that the plaintiff had ME, that a relapse or recrudescence of his condition could be triggered by the trauma of an accident of moderate severity and that he had suffered nervous shock as the result of being involved in the accident, the aggravation of his condition was a foreseeable consequence for which the defendant was liable.

The defendant appealed, contending (i) that the plaintiff had not proved a causal connection between the accident and the aggravation of his condition and (ii) that the judge, in deciding that the plaintiff’s injury was foreseeable, had failed to consider whether a person of reasonable fortitude would have suffered shock from the accident and had wrongly decided that foreseeability of injury from nervous shock was not necessary in the case of a plaintiff who had been directly involved in the accident rather than a mere spectator.

The Court of Appeal allowed the appeal on the grounds, inter alia, that in claims for damages due to nervous shock it was in all cases incumbent on the plaintiff to prove that injury by nervous shock was reasonably foreseeable by the defendant.

The plaintiff appealed to the House of Lords.

HELD:

The House of Lords allowed the Plaintiff’s appeal by a three to two majority.  Lord Keith and Lord Jauncey gave a dissenting judgment.

It was held in cases of nervous shock it is essential to distinguish between primary and secondary victims. Where the Plaintiff is a primary victim and it is established that the Defendant was under a duty of care to avoid causing personal injury to the Plaintiff, it is enough to ask whether the Defendant should have reasonably foreseen that the Plaintiff might suffer personal injury as a result of the Defendant’s negligence. It was unnecessary to ask, as a separate question, whether D should have foreseen injury by shock, Bourhill v Young [1943] A.C. 92 HL, King v Phillips [1953] 1 Q.B. 429 CA, Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound) [1961] A.C. 388 PC (Aus), Alcock v Chief Constable of South Yorkshire [1992] 1 A.C. 310 HL considered. In the absence of agreement between the parties the case went back to the Court of Appeal on the issue of causation.

Per Lord Lloyd. In the case of secondary victims, those persons who are not participants in an accident, the defendant will not be liable unless psychiatric injury is foreseeable in a person of normal fortitude and it may be legitimate to use hindsight in order to be able to apply the test of reasonable foreseeability. The decision of the Court of Appeal [1994] 4 All ER 522 was reversed.

Related posts:

1. Wake v Page and Another [2001]
2. Smith v Ainger [1990]