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

Start your day with The Independent, sign up for daily news emails
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksA special investigation by Andy McSmith
Arts and Entertainment
Buttoned up: Ryan Reynolds with Helen Mirren in ‘Woman in Gold’
filmFor every box-office smash in his Hollywood career, there's always been a misconceived let-down. Now he says it's time for a reboot
News
people
News
Actress Julianne Moore wins the Best Actress in a Leading Role Award for 'Still Alice' during the 87th Annual Academy Awards in Hollywood, California
people
Sport
Ross Barkley
footballPaul Scholes says it's time for the Everton playmaker to step up and seize the England No 10 shirt
News
'We will fix it': mice in the 1970s children’s programme Bagpuss
science
Life and Style
2 Karl Lagerfeld and Choupette
fashion
  • Get to the point
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Recruitment Genius: Customer Service Executive

£18000 - £22000 per annum: Recruitment Genius: This is an exciting opportunity...

Recruitment Genius: Retail Buyer / Ecommerce Buyer

£30000 - £35000 per annum: Recruitment Genius: Working closely with the market...

Recruitment Genius: Sales Executive - CAD Software Solutions Sales

£20000 - £50000 per annum: Recruitment Genius: A reputable company, famed for ...

Ashdown Group: Client Accountant Team Manager - Reading

Negotiable: Ashdown Group: The Ashdown Group has been engaged by a highly resp...

Day In a Page

War with Isis: Iraq declares victory in the battle for Tikrit - but militants make make ominous advances in neighbouring Syria's capital

War with Isis

Iraq declares victory in the battle for Tikrit - but militants make make ominous advances in neighbouring Syria
Scientists develop mechanical spring-loaded leg brace to improve walking

A spring in your step?

Scientists develop mechanical leg brace to help take a load off
Peter Ackroyd on Alfred Hitchcock: How London shaped the director's art and obsessions

Peter Ackroyd on Alfred Hitchcock

Ackroyd has devoted his literary career to chronicling the capital and its characters. He tells John Walsh why he chose the master of suspense as his latest subject
Ryan Reynolds interview: The actor is branching out with Nazi art-theft drama Woman in Gold

Ryan Reynolds branches out in Woman in Gold

For every box-office smash in Ryan Reynolds' Hollywood career, there's always been a misconceived let-down. It's time for a rethink and a reboot, the actor tells James Mottram
Why Robin Williams safeguarded himself against a morbid trend in advertising

Stars safeguard against morbid advertising

As film-makers and advertisers make increasing posthumous use of celebrities' images, some stars are finding new ways of ensuring that they rest in peace
The UK horticulture industry is facing a skills crisis - but Great Dixter aims to change all that

UK horticulture industry facing skills crisis

Great Dixter manor house in East Sussex is encouraging people to work in the industry by offering three scholarships a year to students, as well as generous placements
Hack Circus aims to turn the rule-abiding approach of TED talks on its head

Hack Circus: Technology, art and learning

Hack Circus aims to turn the rule-abiding approach of TED talks on its head. Rhodri Marsden meets mistress of ceremonies Leila Johnston
Sevenoaks is split over much-delayed decision on controversial grammar school annexe

Sevenoaks split over grammar school annexe

If Weald of Kent Grammar School is given the go-ahead for an annexe in leafy Sevenoaks, it will be the first selective state school to open in 50 years
10 best compact cameras

A look through the lens: 10 best compact cameras

If your smartphone won’t quite cut it, it’s time to invest in a new portable gadget
Paul Scholes column: Ross Barkley played well against Italy but he must build on that. His time to step up and seize that England No 10 shirt is now

Paul Scholes column

Ross Barkley played well against Italy but he must build on that. His time to step up and seize that England No 10 shirt is now
Why Michael Carrick is still proving an enigma for England

Why Carrick is still proving an enigma for England

Manchester United's talented midfielder has played international football for almost 14 years yet, frustratingly, has won only 32 caps, says Sam Wallace
Tracey Neville: The netball coach who is just as busy as her brothers, Gary and Phil

Tracey Neville is just as busy as her brothers, Gary and Phil

The former player on how she is finding time to coach both Manchester Thunder in the Superleague and England in this year's World Cup
General Election 2015: The masterminds behind the scenes

The masterminds behind the election

How do you get your party leader to embrace a message and then stick to it? By employing these people
Machine Gun America: The amusement park where teenagers go to shoot a huge range of automatic weapons

Machine Gun America

The amusement park where teenagers go to shoot a huge range of automatic weapons
The ethics of pet food: Why are we are so selective in how we show animals our love?

The ethics of pet food

Why are we are so selective in how we show animals our love?