The court considered the quantum of damages after the claimant had been severely injured when knocked down by a bus.
Kenneth Parker J
[2014] EWHC 4256 (QB)
Bailii
England and Wales

Updated: 26 September 2021; Ref: scu.539994

The worker had been injured at work. His employer was partly at fault. The employer had a compensation scheme for which it paid, and sought to deduct the payments to the worker from the damages it was to pay. The Court was also invited by the defendants to consider an alternative ground for deductibility which was based on public policy grounds.
Held: Lloyd LJ: ‘Arguments based on public policy tend to be somewhat imprecise, even, at time, emotive. The present case was no exception. Why, said [counsel for the plaintiff[, should third party tortfeasors reap the benefit of a scheme which was intended, not for their benefit, but for the benefit of the employee? Why should a wrongdoer pay less than he would otherwise pay, or even nothing at all, when it is his victim who has earned the benefit by his labour? I do not find such arguments on either side of much assistance. But there is one consideration of public policy which is worth mentioning, If an employee is injured in the course of his employment, and his employers make him an immediate ex gratia payment, as any good employer might, I see no reason why such a payment should not be take into account in reduction of any damages for which the employer may ultimately be held liable. Employers should be encouraged to make ex gratia payments in such circumstances. If so, then public policy would seem to require that such payments be brought into account.
It could, of course, be said that an ex gratia payment is like a sum coming to the plaintiff by way of benevolence, and should therefore be disregarded. This is so, where it is a third party who is ultimately held liable: see Cunningham v Harrison [1973] QB 942. But there must surely be an exception to that general rule where the ex gratia payment comes from the tortfeasor himself. So, if it is right that an ex gratia payment by the employer should be brought into account where the employer is the tortfeasor, why should it make any difference that the payment is one which he has contracted to make in advance? So if [counsel for the defendants] is wrong in his main argument, that payments under the scheme are in the nature of wages, and should be brought into account on that score, there would be much to be said for his alternative argument that such payments should in any event be brought into account on the grounds of `justice, reasonableness and public policy’. But it is unnecessary to decide the case on that ground, since, on the facts of the present case, [counsel] is entitled to succeed on his first ground.’
Lloyd LJ, Ralph Gibson LJ
[1987] 1 WLR 336
England and Wales
Cited by:
Cited – Longden v British Coal Corporation HL 13-Mar-1997
The plaintiff was injured whilst at work in one of the defendant’s collieries. The House considered the deductibility from damages awarded for personal injury of a collateral benefit.
Held: The issue of deductibility where the claim is for . .
Appeal from – Hussain v New Taplow Paper Mills Ltd HL 1988
The plaintiff was injured in an accident at work. His employer was partly responsible. For 13 weeks he received full sick pay in accordance with his contract. He then received half his pre-accident earnings under the permanent health insurance . .

Lists of cited by and citing cases may be incomplete.
Updated: 21 September 2021; Ref: scu.225048

The Honourable Mrs Justice Tipples
[2021] EWHC 2056 (QB)
Bailii
England and Wales

Updated: 21 September 2021; Ref: scu.666706

[2007] ScotCS CSOH – 199
Bailii
Scotland

Updated: 20 September 2021; Ref: scu.263291

The claimant’s mother died in a car accident caused by the father. The father then took over the mother’s role in caring for the claimant.
Held: Those services, and compensation awarded to provide for them, were not a benefit accruing as a result of the death for the purposes of section 4, and the plaintiff could not recover them as damages.
[1992] 1 WLR 986, Times 08-Apr-1992, [1992] CLY 1528
Fatal Accidents Act 1976 4
England and Wales
Cited by:
Distinguished – Regina v Criminal Injuries Compensation Board ex parte Kavanagh and others Admn 30-Jul-1998
The fact that the care received by a child, whose mother had been murdered, was equivalent to the care received from the mother should be disregarded when calculating loss of mother’s care. . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 September 2021; Ref: scu.183457

A new mother woke in hospital to see her baby (E) fitting. E suffered a major epileptic seizure leading to coma and irreparable brain damage. E was transferred to a London hospital and the following day the claimant was told by a consultant that E’s brain damage was so severe that he would have no quality of life. The claimant and her husband then decided that E’s life support should be terminated and E died in her arms approximately 36 hours after the seizure. Negligence in the Hospital was admitted, and the issue was the award of damages for nervous shock.
Held: The Trust’s appeal failed. The circumstances witnessed by her were distressing in the extreme and capable of producing an effect going well beyond that of grief and sorrow. Without the sudden and direct visual impression on the claimant’s mind of actually witnessing the event or its immediate aftermath there is no liability. The elements of proximity and causation are closely linked together. The case involved no new step in the award of such damages.
Ward LJ said: ‘In my judgment the law as presently formulated does permit a realistic view being taken from case to case of what constitutes the necessary ‘event’. Our task is not to construe the word as if it had appeared in legislation but to gather the sense of the word in order to inform the principle to be drawn from the various authorities. As a word, it has a wide meaning as shown by its definition in the Concise Oxford Dictionary as: ‘An item in a sports programme, or the programme as a whole’. It is a useful metaphor or at least a convenient description for the ‘fact and consequence of the defendant’s negligence’, per Lord Wilberforce [in McLoughlin], or the series of events which make up the entire event beginning with the negligent infliction of damage through to the conclusion of the immediate aftermath whenever that may be. It is a matter of judgment from case to case depending on the facts and circumstance of each case. In my judgment on the facts of this case there was an inexorable progression from the moment when the fit occurred as a result of the failure of the hospital properly to diagnose and then to treat the baby, the fit causing the brain damage which shortly thereafter made termination of this child’s life inevitable and the dreadful climax when the child died in her arms. It is a seamless tale with an obvious beginning and an equally obvious end. It was played out over a period of 36 hours, which for her both at the time and as subsequently recollected was undoubtedly one drawn-out experience.’
When considering whether the event was ‘horrifying’, Ward LJ said: ‘For my part the facts only have to be stated for the test to be satisfied. This mother awakens to find her baby rigid after a convulsion. Blood is coming from his mouth. He is choking. Is that not as much an assault upon her senses as if her child had been involved in a road accident, suffered grievous head injuries as yet undetected and was found bleeding in the car seat? Her fear and anxiety was undoubtedly calmed not only afterwards when given an incorrect medical opinion that it was very unlikely and would be very unlucky if Elliot had suffered serious damage. Every mother would seize upon the good news for her comfort to reduce the impact of the horror. Consequently, all the more likely it is that she should have felt numb, panic stricken and terrified by the sudden turn in events when she arrived at King’s College Hospital. That left her stunned. As the consultant observed she ‘responded as if half in a dream . . in a state of emotional shock’. Her hopes were lifted then they were dashed and finally destroyed when shortly thereafter she was advised to terminate treatment on the life support machine. That she should have felt that ‘this was a complete shock’ seems to me to be inevitable. That her immediate reaction should have been one of anger is understandable. Anger is part of the grieving process. But the agreed medical evidence made it plain that the combination of events ‘witnessed and experienced’ caused her pathological grief reaction and was different from a normal grief reaction. They must have been chilling moments, truly shocking events, as the experts agreed in answer to the seventh question put to them, and thus amply justifying the conclusion that this was a horrifying event.’
Lord Justice Clarke, Lord Justice Ward, Sir Anthony Evans
[2002] EWCA 1792, [2003] PIQR 232
Bailii
England and Wales
Citing:
Cited – Sion v Hampstead Health Authority CA 27-May-1994
An amendment to pleadings was allowed after the limitation period had expired in order to add a claim based on the same facts. The claim was brought by the father of a young man injured in a motor cycle accident. For fourteen days the father stayed . .
Cited – Tredget and Tredget v Bexley Health Authority 1994
(Central London County Court) As a result of the defendant hospital’s negligent management of Mrs Tredget’s labour, her baby was born in a severely asphyxiated state and died two days later. The actual birth of the child with its ‘chaos’ or . .
Cited – Taylorson v Shieldness Produce Ltd 1994
A fourteen year old boy died three days after he had been crushed by a reversing vehicle. The appellants were informed of the accident soon after it occurred and went to the hospital. The boy was seen in the ambulance and as he was rushed to the . .
Cited – Chadwick v British Railways Board 1967
Mr Chadwick tried to bring relief and comfort to the victims of the Lewisham train disaster in December 1967. His widow claimed in nervous shock, saying that it had eventually led to his own death.
Held: Where an accident is of a particular . .

Cited by:
Cited – Giullietta Galli-Atkinson v Seghal CA 21-Mar-2003
The claimant’s daughter was fatally injured in car accident, dying shortly after. The mother came upon the scene, witnessed a police cordon at the scene of the accident and was told of her death. She later saw the injuries at the mortuary and . .
Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Cited – Toth v Jarman CA 19-Jul-2006
The claimant appealed dismissal of his claim for damages for nervous shock, associated with the alleged negligence of the defendant doctor in treating his son. It was said that the medical expert had not disclosed a conflict of interest.
Held: . .
Cited – Taylor v A Novo (UK) Ltd CA 18-Mar-2013
The deceased had suffered a head injury at work from the defendant’s admitted negligence. She had been making a good recovery but then collapsed and died at home from pulmonary emboli, and thrombosis which were a consequence of the injury. The . .
Cited – Liverpool Women’s Hospital NHS Foundation Trust v Ronayne CA 17-Jun-2015
The respondent was an experienced ambulance driver. His wife underwent emergency treatment at the appellant’s hospital. He had claimed as a secondary victim for the distress he suffered witnessing her suffering.
Held: The hospital’s appeal . .
Cited – Paul and Another v The Royal Wolverhampton NHS Trust QBD 4-Jun-2020
Nervous shock – liability to third parties
The claimants witnessed the death of their father from a heart attack. They said that the defendant’s negligent treatment allowed the attack to take place. Difficult point of law about the circumstances in which a defendant who owes a duty of care . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.178461

The defendant’s employee left a lorry at the top of a steep narrow street unattended, with the engine running and without having taken proper steps to secure it. The lorry ran violently down the hill. The plaintiff’s wife had been walking up the street with her children and had just parted with them a little below a point where the street made a bend when she saw the lorry rushing around the bend towards her. She became very frightened for the safety of her children, who by that time were out of sight and who she knew must have met the lorry in its travels. She was almost immediately afterwards told by bystanders that a child answering the description of one of hers had been injured. As a consequence of her fright and anxiety she suffered a nervous shock which eventually caused her death.
Held: (Sargant LJ dissenting) The husband was entitled to recover for the shock inflicted on her due to the reasonable fear of the immediate injury to her child from the runaway lorry. An express distinction was to be made between shock caused by what the mother saw with her own eyes and what she might have been told by bystanders, liability being excluded in the latter case. Persons outside the zone of physical danger were nevertheless owed a duty of care, because injury by shock was the only kind of injury that was foreseeable in such circumstances.
Bankes and Atkin LJJ (Sargant LJ dissenting) held that on the assumption that the deceased’s shock was caused by what she saw with her own eyes as distinct from what she was told by bystanders, her husband was entitled to recover notwithstanding that the shock was brought about by fear for her children’s safety and not by fear for her own.
Atkin LJ said: ‘In my opinion it is not necessary to treat this cause of action as based upon a duty to take reasonable care to avoid administering a shock to wayfarers. The cause of action, as I have said, appears to be created by breach of the ordinary duty to take reasonable care to avoid inflicting personal injuries, followed by damage, even though the type of damage may be unexpected – namely, shock. The question appears to be as to the extent of the duty, and not as to remoteness of damage. If it were necessary, however, I should accept the view that the duty extended to the duty to take care to avoid threatening personal injury to a child in such circumstances as to cause damage by shock to a parent or guardian then present, and that the duty was owed to the parent or guardian; but I confess that upon this view of the case I should find it difficult to explain why the duty was confined to the case of parent or guardian and child, and did not extend to other relations of life also involving intimate associations; and why it did not eventually extend to bystanders.’
Sargant LJ, dissenting have sought to keep the line resting on the basis of shock caused by fear of injury to oneself, and not to have extended it to that caused by fear of injury to another: ‘In my judgment, it would be a considerable and unwarranted extension of the duty of owners of vehicles towards others in or near the highway, if it were held to include an obligation not to do anything to render them liable to harm through nervous shock caused by the sight or apprehension of damage to third persons.’
He continued: ‘It seems to me that, when once the requirement is relaxed, that the shock is to be one caused by the plaintiff’s apprehension of damage to himself, the defendant is exposed to liability for a consequence which is only reached by a new and quite unusual link in the chain of causation, and which cannot therefore properly be held to have been within his ordinary and reasonable expectation. And the extent of this extra liability is necessarily both wide and indefinite, in as much as it may vary with the precise degree of connection between the person injured and the plaintiff, and also, perhaps, with the circumstances attending the realisation by the plaintiff of actual or apprehended injury to the third person.’
And then he asked: ‘For instance, should it extend to a shock occasioned to a daughter by apprehended danger to a mother, or to a sister by apprehended danger to a brother? And where, as in this case, the apprehended danger is out of the sight of the plaintiff, ought the plaintiff to be entitled to recover for the illness by shock, if the facts were that the person whose safety was in question had turned off the dangerous highway, or had for some other reason never been in imminent danger at all?’
Atkin, Bankes, Sargant LJJ
[1925] 1 KB 141
Fatal Accidents Act 1846
England and Wales
Citing:
Cited – Wilkinson v Downton 8-May-1997
Thomas Wilkinson, the landlord of a public house, went off by train, leaving his wife Lavinia behind the bar. A customer of the pub, Downton played a practical joke on her. He told her, falsely, that her husband had been involved in an accident and . .

Cited by:
Cited – Giullietta Galli-Atkinson v Seghal CA 21-Mar-2003
The claimant’s daughter was fatally injured in car accident, dying shortly after. The mother came upon the scene, witnessed a police cordon at the scene of the accident and was told of her death. She later saw the injuries at the mortuary and . .
Cited – McLoughlin v O’Brian HL 6-May-1982
The plaintiff was the mother of a child who died in an horrific accident, in which her husband and two other children were also injured. She was at home at the time of the accident, but went to the hospital immediately when she had heard what had . .
Cited – White, Frost and others v Chief Constable of South Yorkshire and others HL 3-Dec-1998
No damages for Psychiatric Harm Alone
The House considered claims by police officers who had suffered psychiatric injury after tending the victims of the Hillsborough tragedy.
Held: The general rules restricting the recovery of damages for pure psychiatric harm applied to the . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police QBD 31-Jul-1990
Overcrowding at a football match lead to the deaths of 95 people. The defendant’s employees had charge of safety at the match, and admitted negligence vis-a-vis those who had died and been injured. The plaintiffs sought damages, some of them for . .
Cited – Rhodes v OPO and Another SC 20-May-2015
The mother sought to prevent a father from publishing a book about her child’s life. It was to contain passages she said may cause psychological harm to the 12 year old son. Mother and son lived in the USA and the family court here had no . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.183344

The court considered the principles for the award of damages for future loss of earning capacity.
Held: The court distinguished between an award for loss of earnings and compensation for loss of earning capacity. The latter head of damage arose where a plaintiff was at the time of trial in employment but there was a risk that he might lose that employment at some time in the future and by then, as a result of his injury, be at a disadvantage in getting another job or an equally well paid job. That was a different head of damage from an actual loss of future earnings which could be proved at the time of the trial.
Browne LJ said: ‘I do not think one can say more by way of principle than this. The consideration of this head of damages should be made in two stages. 1. Is there a ‘substantial’ or ‘real’ risk that a plaintiff will lose his present job at some time before the estimated end of his working life? 2. If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the plaintiff will suffer if that risk materialises, having regard to the degree of the risk, the time when it may materialise, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the plaintiff’s chances of getting a job at all, or an equally well paid job.
It is impossible to suggest any formula for solving the extremely difficult problems involved in stage 2 of the assessment. A judge must look at all the factors which are relevant in a particular case and do the best he can.’ and ‘If the Court comes to the conclusion that there is no substantial or real risk of the plaintiff losing his present job in the rest of his working life, no damages will be recoverable under this head.’
As to Smith v Manchester: ‘[it] laid down no new principle of law… [but was] merely an example of an award of damages under a head which has long been recognised – a plaintiff’s loss of earning capacity where as a result of his injury his chances in the future of getting in the labour market work (or work as well paid as before the accident) have been diminished by his industry. This court made an award under this head in Ashcroft v Curtin [l971] 1 WLR 1731 three years before Smith’s case. This head of damage generally only arises where a plaintiff is at the time of the trial in employment, but there is a risk that he may lose this employment at some time in the future, and may then, as a result of his injury, be at a disadvantage in getting another job or equally well paid job. It is a different head of damages from an actual loss of future earnings which can already be proved at the time of the trial.’
Stephenson LJ sought words to define the correct approach to be followed stated: ‘I avoid ‘speculation’ because this head of damage can really be nothing else’.
Browne LJ, Stephenson LJ
[1977] 1 WLR 132, [1976] ICR 253
England and Wales
Citing:
Cited – Ashcroft v Curtin CA 1971
A plaintiff, injured in a motor accident, was seeking to recover damages for loss of profit.
Held: The court commented adversely on the evidence and stated that no figures were given, and that counsel for the defendant had force in his . .
Explained – Smith v Manchester City Council CA 10-Jun-1974
Damages – earnings loss for persistent disability
The plaintiff, a part time domestic cleaner slipped and injured herself (a frozen shoulder) when working for the defendant. It was accepted that the cause of the slip was the defendant’s negligence. At the time of the claim she was still employed by . .

Cited by:
Cited – Software 2000 Ltd v Andrews etc EAT 17-Jan-2007
EAT Four employees successfully established before the Employment Tribunal that they had been unfairly dismissed for redundancy. The Tribunal found that there had been procedural defects. In particular the . .
Cited – Scope v Thornett CA 27-Nov-2006
The employee was an engineer. She worked on field assessments and in the manufacture and adaptation of equipment. She was suspended for alleged bullying and harassment and given a final written warning. It was proposed that she should be relocated . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.241421