References:  1 AC 410,  2 All ER 298,  UKHL 3,  2 WLR 982
Coram: Lord Wilberforce, Lord Bridge, Lord Scarman
Ratio: 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 happened. She saw and comforted her injured husband and children, and was told of the death of her youngest child. She brought proceedings for the psychiatric effect of the shock that she sustained as a result.
Held: Her appeal was allowed. The House identified the circumstances in which such a claim could succeed:
1. While damages cannot, at common law, be awarded for grief and sorrow, a claim for damages for ‘nervous shock’ caused by negligence can be made without the necessity of showing direct impact or fear of immediate personal injuries for oneself.
2. A plaintiff may recover damages for ‘nervous shock’ brought on by injury caused not to him — or herself but to a near relative, or by the fear of such injury.
3. Subject to the next paragraph, there is no English case in which a plaintiff has been able to recover nervous shock damages where the injury to the near relative occurred out of sight and earshot of the plaintiff.
4. An exception has been made where the plaintiff does not see or hear the incident but comes upon its immediate aftermath.
5. A remedy on account of nervous shock has been given to a man who came upon a serious accident involving numerous people immediately thereafter and acted as a rescuer of those involved.
Three issues were to be addressed: the class of persons whose claims should be recognised, the proximity of such persons to the accident and the means by which the shock was caused. Foreseeability in any given set of circumstances is ultimately a question of fact.
On the issue of the court’s role in developing the law, Lord Scarman: ‘By concentrating on principle the judges can keep the legal system clear of policy problems which neither they, nor the forensic process which it is their duty to operate, are equipped to resolve. If principle leads to results which are thought to be socially unacceptable, Parliament can legislate to draw a line or map out a new path.’
Lord Wilberforce said: ‘there remains, in my opinion, just because ‘shock’ in its nature is capable of affecting so wide a range of people, a real need for the law to place some limitation upon the extent of admissible claims.’ and
‘As regards proximity to the accident, it is obvious that this must be close in both time and space . . The shock must come through sight or hearing of the event or of its immediate aftermath.’
and ‘Whatever is unknown about the mind body relationship (and the area of ignorance seems to expand with that of knowledge), it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind. Thus there may be produced what is as identifiable an illness as any that may be caused by direct physical impact.’
This case cites:
- Cited – Hambrook v Stokes Brothers CA ( 1 KB 141)
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 . .
- Cited – Hinz v Berry CA ( 2 QB 40)
Then plaintiff saw her husband killed and her children injured by a runaway motor car. At trial she was awarded damages for nervous shock. The question was whether, having regard to the fact that she had suffered sorrow and grief it would not be to . .
- Rejected – Bourhill v Young’s Executor HL ( AC 92,  SC (HL) 78, 1943 SLT 105, Bailii,  UKHL 5)
When considering claims for damages for shock, the court only recognised the action lying where the injury by shock was sustained ‘through the medium of the eye or the ear without direct contact.’ Wright L said: ‘No doubt, it has long ago been . .
(This list may be incomplete)
This case is cited by:
- Applied – Alcock and Others v Chief Constable of South Yorkshire Police QBD (lip,  2 WLR 814,  CLY 2671)
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 – Alcock and Others v Chief Constable of South Yorkshire Police HL (Gazette 22-Jan-92, lip,  3 WLR 1057, Times 29-Nov-91,  1 AC 310, Bailii,  UKHL 5)
The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .
- Cited – Keen v Tayside Contracts OHCS (Times 27-Mar-03, Bailii,  ScotCS 55, ScotC)
The claimant sought damages for post traumatic stress disorder. He was a road worker instructed to attend by the defendant immediately after a terrible accident.
Held: It was a classic case of nervous shock. He was not a rescuer, and nor had . .
- Cited – Giullietta Galli-Atkinson v Seghal CA ( Lloyds Rep Med 285, Bailii,  EWCA Civ 697)
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 – Marvin John Pearson v Anthony Lightning CA (Times 30-Apr-98, Gazette 20-May-98, Bailii,  EWCA Civ 591)
The parties were golfers playing different holes at the same time. The shot of one hit the other in the eye. The shot was a recovery shot over where he should have known others would be playing. Where a golfer hit a shot which was difficult but . .
- Cited – Jaensch v Coffey ((1984) 55 CLR 549,  54 ALR 417,  CLY 2326, Austlii,  HCA 52)
(High Court of Australia) The claimant’s husband was injured. She saw his injuries at hospital and was affected. She claimed damages for her own shock.
Held: The driver owed her a duty of care, and was liable for negligence which caused . .
- Cited – Donachie v The Chief Constable of the Greater Manchester Police CA ( EWCA Civ 405, Bailii)
The claimant had been asked to work under cover. The surveillance equipment he was asked to use was faulty, requiring him to put himself at risk repeatedly to maintain it resulting in a stress disorder and a stroke.
Held: There was a direct . .
- Cited – JD v East Berkshire Community Health NHS Trust and others HL (Bailii,  UKHL 23, House of Lords,  2 AC 373, Times 22-Apr-05,  2 WLR 993)
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 – Quayle and others v Regina, Attorney General’s Reference (No. 2 of 2004) CACD (Bailii,  EWCA Crim 1415, Times 22-Jun-05,  Crim LR 148, (2006) 89 BMLR 169,  1 All ER 988,  2 Cr App R 34,  1 WLR 3642)
Each defendant appealed against convictions associated variously with the cultivation or possession of cannabis resin. They sought to plead medical necessity. There had been medical recommendations to move cannabis to the list of drugs which might . .
- Cited – Rothwell v Chemical & Insulating Co Ltd and Another CA (Bailii,  EWCA Civ 27,  ICR 1458, Times 31-Jan-06)
Each claimant sought damages after being exposed to asbestos dust. The defendants resisted saying that the injury alleged, the development of pleural plaques, was yet insufficient as damage to found a claim.
Held: (Smith LJ dissenting) The . .
- Cited – French and others v Chief Constable of Sussex Police CA (Bailii,  EWCA Civ 312, Times 05-Apr-06)
The claimants sought damages for psychiatric injury. They were police officers who had been subject to unsuccessful proceedings following a shooting of a member of the public by their force.
Held: The claim failed: ‘these claimants have no . .
- Cited – Fook, Regina v CACD (Bailii,  EWCA Crim 1)
The defendant appealed his conviction for assault. He had suspected a lodger of theft, and was accused of having assaulted him while interrogating him about it. He locked the complainant in his room, but he then fell whilst escaping through a first . .
- Cited – Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar HL (Bailii,  UKHL 39, Times 24-Oct-07,  ICR 1745,  4 All ER 104,  LS Law Medical 1,  3 WLR 877, (2008) 99 BMLR 139,  1 AC 281,  PIQR P6)
The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but . .
- Cited – Hussain v West Mercia Constabulary CA (Bailii,  EWCA Civ 1205, Times)
The claimant taxi driver complained of misfeasance in public office in the way the defendant had responded to the several calls for assistance made by him to the police.
Held: His appeal against the striking out failed. The damages pleaded . .
- Cited – Taylor v A Novo (UK) Ltd CA (Bailii,  EWCA Civ 194,  3 WLR 989,  Med LR 100,  PIQR P15,  WLR(D) 119,  Ch 150,  1 QB 150, WLRD)
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 – Rhodes v OPO and Another SC ( 2 WLR 137, Bailii,  UKSC 32,  AC 219,  EMLR 20,  HRLR 11,  WLR(D) 227,  4 All ER 1, WLRD, Bailii Summary, UKSC 2014/0251, SC, SC Summary, SC Video Summary)
The mother sought to prevent a father from publishing a book about his life. It was to contain passages she said may cause psychological harm to their 12 year old son. Mother and son lived in the USA and the family court here had no jurisdiction to . .
- Cited – OPO v MLA and Another CA (Bailii,  EWCA Civ 1277,  WLR(D) 422, WLRD)
The claimant child sought to prevent publication by his father of an autobiography which, he said, would be likely to cause him psychological harm. The father was well known classical musician who said that he had himself suffered sexual abuse as a . .
- Cited – Liverpool Women’s Hospital NHS Foundation Trust v Ronayne CA (Bailii,  EWCA Civ 588,  WLR(D) 263, WLRD)
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 – Smith v Lancashire Teaching Hospitals NHS Trust and Another QBD (Bailii,  EWHC 2208 (QB))
The claimant had cohabited with the deceased: ‘The claimant seeks a declaration in one of two alternative forms:
i) Pursuant to s.3 of the Human Rights Act 1998 . . that s.1A(2)(a) of the Fatal Accidents Act 1976 . . is to be read as including . .
(This list may be incomplete)
Jurisdiction: England and Wales
Last Update: 24-Nov-16