Driver liable for fatigue illness after accident

LAW REPORT: 12 May 1995

Page v Smith, House of Lords (Lord Keith of Kinkel, Lord Ackner, Lord Jauncey of Tullichettle, Lord Browne-Wilkinson and Lord Lloyd of Berwick).

11 May 1995.

A driver of a car who negligently causes an accident is liable for psychiatric illness suffered by a victim of the accident, even if the victim suffered no physical injury since any driver should reasonably foresee that if he drives carelessly he will be liable to cause injury, either physical or psychiatric or both, to others involved in an accident.

The House of Lords (Lord Keith and Lord Jauncey dissenting) restored Mr Justice Otton's award of damages to the plaintiff of £162,153.

The plaintiff, who had suffered from myalgic encephalomyelitis or chronic fatigue syndrome, was driving at about 30mph when the defendant cut across the road. There was a collision. Although the plaintiff suffered no bodily injury, his condition of chronic fatigue became permanent. He claimed damages for personal injuries caused by the defendant's negligence. Mr Justice Otton found in the plaintiff's favour.

The Court of Appeal allowed the defendant's appeal on the basis that psychiatric illness which had not resulted from physical injury was not reasonably foreseeable in a person of ordinary fortitude.

Colin Mackay QC and Jennifer Richards (Edward Lewis) for the plaintiff; Julian Priest QC and Andrew Hogarth (Harry R Pearce) for the defendant.

LORD LLOYD said the plaintiff was directly involved in the accident and well within the range of foreseeable physical injury. He was the primary victim. Those who were not directly involved in an accident but who suffered from what they saw or heard were the secondary victims.

Foreseeability of psychiatric injury remained a crucial ingredient when the plaintiff was the secondary victim for the very reason that the secondary victim was almost always outside the area of physical impact and therefore outside the range of foreseeable physical injury. But where the plaintiff was the primary victim, the defendant was under a duty of care not to cause the plaintiff foreseeable physical injury, and it was unnecessary to ask whether he was under a separate duty of care not to cause foreseeable psychiatric injury.

In an age when medical knowledge was expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury. Nothing would be gained by treating them as different "kinds" of physical injury so as to require the application of different tests in law.

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.

In the case of secondary victims, foreseeability of injury and a degree of proximity were required as control mechanisms to limit the number of potential claimants. Those mechanisms were not required in the case of a primary victim. Nor, in the case of a primary victim, was it appropriate to ask whether he was a person of "ordinary phlegm". In the case of physical injury the negligent defendant took his victim as he found him.

There was no difference between an eggshell skull and an eggshell personality. It was only when shock was followed by recognisable psychiatric illness that the defendant might be held liable. It was enough to ask whether the defendant should have reasonably foreseen that the plaintiff might suffer physical injury. It was unnecessary to ask as a separate question, whether the defendant should reasonably have foreseen injury by shock; and it was irrelevant that the plaintiff did not suffer any external physical injury.

LORD ACKNER and LORD BROWNE-WILKINSON concurred.

LORD KEITH, dissenting, said that a reasonable man in the position of the defendant would not have have foreseen that such an accident might inflict on a person of normal susceptibility such mental trauma as to result in illness.

LORD JAUNCEY, also dissenting, said that it was not foreseeable that the plaintiff would suffer nervous shock as a result of this accident.

Ying Hui Tan, Barrister