McLoughlin v O'Brian [1982] UKHL 3

House of Lords

Between

McLoughlinAppellant

O'BrianRespondent

Upon Reoort from the Appellate Committee to whom was referred the Cause McLoughlin (Married Woman) (Assisted Person) against O'Brian and others, That the Committee had heard Counsel as well on Monday the 15th as on Tuesday the 16th and Wednesday the 17th days of February last upon the Petition and Appeal of Rosina McLoughlin of 20 Town Close, Sawston, Cambridgeshire praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 16th day of December 1980 except as far as regards the words "The Plaintiffs costs be taxed in accordance with the provisions of the Second Schedule to the Legal Aid Act 1974 " might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order so far as aforesaid might be reversed, varied or altered or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as also upon the Case of Thomas Alan O'Brian, A. E. Docker & Sons Limited, Raymond Sygrove and Ernest Doe & Sons Limited lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 16th day of December 1980 in part complained of in the said Appeal be, and the same is hereby, Set Aside and that it be Declared that the Appellant is entitled to recover damages from the Respondents in respect of such injuries or illness as she may prove to have suffered in consequence of the circumstances pleaded in paragraphs 6 and 7 of the Amended Statement of Claim: And it is further Ordered, That the Respondents do pay or cause to be paid to the said Appellant the Costs incurred by her in the Courts below and also the Costs incurred by her in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments if not agreed between the parties: And it is further Ordered that the Appellant's Costs in this House be taxed in accordance with the provisions of Schedule 2 to the Legal Aid Act 1974: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice to do therein as shall be just and consistent with this Judgment.

HOUSE OF LORDS

McLOUGHLIN (MARRIED WOMAN) A.P. (APPELLANT)

O'BRIAN AND OTHERS (RESPONDENTS)

Lord Wilberforce Lord Edmund-Davies Lord Russell of Killowen Lord Scarman Lord Bridge of Harwich

Lord Wilberforce

My Lords,

This appeal arises from a very serious and tragic road accident which occurred on 19th October 1973 near Withersfield, Suffolk. The appellant's husband, Thomas McLoughlin, and three of her children, George, aged 17, Kathleen, aged 7 and Gillian, nearly 3, were in a Ford motor car: George was driving. A fourth child, Michael, then aged 11, was a passenger in a following motor car driven by Mr. Pilgrim: this car did not become involved in the accident. The Ford car was in collision with a lorry driven by the first respondent and owned by the second respondent. That lorry had been in collision with another lorry driven by the third respondent and owned by the fourth respondent. It is admitted that the accident to the Ford car was caused by the respondents' negligence. It is necessary to state what followed in full detail.

As a result of the accident, the appellant's husband suffered bruising and shock; George suffered injuries to his head and face, cerebral concussion, fractures of both scapulae and bruising and abrasions; Kathleen suffered concussion, fracture of the right clavicle, bruising, abrasions and shock; Gillian was so seriously injured that she died almost immediately.

At the time, the appellant was at her home about two miles away; an hour or so afterwards the accident was reported to her by Mr. Pilgrim, who told her that he thought George was dying, and that he did not know the whereabouts of her husband or the condition of her daughter. He then drove her to Addenbrooke's hospital, Cambridge. There she saw Michael, who told her that Gillian was dead. She was taken down a corridor and through a window she saw Kathleen, crying, with her face cut and begrimed with dirt and oil. She could hear George shouting and screaming. She was taken to her husband who was sitting with his head in his hands. His shirt was hanging off him and he was covered in mud and oil. He saw the appellant and started sobbing. The appellant was then taken to see George. The whole of his left face and left side was covered. He appeared to recognise the appellant and then lapsed into unconsciousness. Finally, the appellant was taken to Kathleen who by now had been cleaned up. The child was too upset to speak and simply clung to her mother. There can be no doubt that these circumstances, witnessed by the appellant, were distressing in the extreme and were capable of producing an effect going well beyond that of grief and sorrow.

The appellant subsequently brought proceedings against the respondents. At the trial, the judge assumed, for the purpose of enabling him to decide the issue of legal liability, that the appellant subsequently suffered the condition of which she complained. This was described as severe shock, organic depression and a change of personality. Numerous symptoms of a physiological character are said to have been manifested. The details were not investigated at the trial, the court being asked to assume that the appellant's condition had been caused or contributed to by shock, as distinct from grief or sorrow, and that the appellant was a person of reasonable fortitude.

On these facts, or assumed facts, the trial judge (Boreham J.) gave judgment for the respondents holding, in a most careful judgment reviewing the authorities, that the respondents owed no duty of care to the appellant because the possibility of her suffering injury by nervous shock, in the circumstances, was not reasonably foreseeable.

On appeal by the appellant, the judgment of Boreham J. was upheld, but not on the same ground. Stephenson L.J. took the view that the possibility of injury to the appellant by nervous shock was reasonably foreseeable and that the respondents owed the appellant a duty of care. However, he held that considerations of policy prevented the appellant from recovering. Griffiths L.J. held that injury by nervous shock to the appellant was " readily foreseeable " but that the respondents owed no duty of care to the appellant. The duty was limited to those on the road nearby. Cumming-Bruce L.J. agreed with both judgments. The appellant now appeals to this House. The critical question to be decided is whether a person in the position of the appellant, i.e. one who was not present at the scene of grievous injuries to her family but who comes upon those injuries at an interval of time and space, can recover damages for nervous shock.

Although we continue to use the hallowed expression " nervous shock ", English law, and common understanding, have moved some distance since recognition was given to this symptom as a basis for liability. 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. There may thus be produced what is as identifiable an illness as any that may be caused by direct physical impact. It is safe to say that this, in general terms, is understood by the ordinary man or woman who is hypothesised by the courts in situations where claims for negligence are made. Although in the only case which has reached this House (Bourhill v. Young [19431 A.C. 92) a claim for damages in respect of " nervous shock" was rejected on its facts, the House gave clear recognition to the legitimacy, in principle, of claims of that character. As the result of that and other cases, assuming that they are accepted as correct, the following position has been reached:

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. The reservation made by Kennedy J. in Dulieu v. White & Sons

[1901] 2 KB 669

, though taken up by Sargant L.J. in Hambrook v. Stokes Bros. [1925] 1 K.B. 141, has not gained acceptance, and although the respondents, in the courts below, reserved their right to revive it, they did not do so in argument. I think that it is now too late to do so. The arguments on this issue were fully and admirably stated by the Supreme Court of California in Dillon v. Legg (1968) 29 A.L.R. 3rd, 130.

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. So far (subject to 5 below), the cases do not extend beyond the spouse or children of the plaintiff (Hambrook v. Stokes, U.S., Boardman v. Sanderson

[1964] 1 WLR 1317

. Hinz v. Berry [1970] 2 Q.B. 40—including foster children—(where liability was assumed) and see King v. Phillips [1953] 1 Q.B. 429).

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. In Hambrook v. Stokes an express distinction was 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.

An exception from, or I would prefer to call it an extension of. the latter case, has been made where the plaintiff does not see or hear the incident but comes upon its immediate aftermath. In Boardman v. Sanderson the father was within earshot of the accident to his child and likely to come upon the scene: he did so and suffered damage from what he then saw. In Marshall v. Lionel Enterprises [1972] 2 Ontario

Reports 117, the wife came immediately upon the badly injured body of her husband. And in Benson v. Lee [1972] V.R . 789, a situation existed with some similarity to the present case. The mother was in her home one hundred yards away, and, on communication by a third party, ran out to the scene of the accident and there suffered shock. Your Lordships have to decide whether or not to validate these extensions.

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 (Chadwick v. British Railways Board [1967] 1 W.L.R. 912). " Shock " was caused neither by fear for himself nor fear or horror on account of a near relative. The principle of " rescuer " cases was not challenged by the respondents and ought, in my opinion, to be accepted. But we have to consider whether, and how far, it can be applied to such cases as the present.

Throughout these developments, as can be seen, the courts have proceeded in the traditional manner of the common law from case to case, upon a basis of logical necessity. If a mother, with or without accompanying children, could recover on account of fear for herself, how can she be denied recovery on account of fear for her accompanying children? If a father could recover had he seen his child run over by a backing car, how can he be denied recovery if he is in the immediate vicinity and runs to the child's assistance? If a wife and mother could recover if she had witnessed a serious accident to her husband and children, does she fail because she was a short distance away and immediately rushes to the scene? (cf. Benson v. Lee, U.S.). I think that unless the law is to draw an arbitrary line at the point of direct sight and sound, these arguments require acceptance of the extension mentioned above under 4 in the interests of justice.

If one continues to follow the process of logical progression, it is hard to see why the present plaintiff also should not succeed. She was not present at the accident, but she came very soon after upon its aftermath. If, from a distance of some 100 yards (cf. Benson v. Lee) she had found her family by the roadside, she would have come within principle 4 above. Can it make any difference that she comes upon them in an ambulance, or, as here, in a nearby hospital, when, as the evidence shows, they were in the same condition, covered with oil and mud, and distraught with pain? If Mr. Chadwick can recover when, acting in accordance with normal and irresistible human instinct, and indeed moral compulsion, he goes to the scene of an accident, may not a mother recover if. acting under the same motives, she goes to where her family can be found?

I could agree that a line can be drawn above her case with less hardship than would have been apparent in Boardman's and Hinz's cases, but so to draw it would not appeal to most people's sense of justice. To allow her claim may be, I think it is, upon the margin of what the process of logical progression would allow. But where the facts are strong and exceptional, and, as I think, fairly analogous, her case ought, prima facie, to be assimilated to those which have passed the test.

To argue from one factual situation to another and to decide by analogy is a natural tendency of the human and the legal mind. But the lawyer still has to enquire whether, in so doing, he has crossed some critical line behind which he ought to stop. That is said to be the present case. The reasoning by which the Lords Justices decided not to grant relief to the plaintiff is instructive. Both Stephenson L.J. and Griffiths L.J. accepted that the " shock" to the plaintiff was foreseeable; but from this, at least in presentation, they diverge. Stephenson L.J. considered that the defendants owed a duty of care to the plaintiff, but that for reasons of policy the law should stop short of giving her damages: it should limit relief to those on or near the highway at or near the time of the accident caused by the defendants' negligence. He was influenced by the fact that the courts of this country, and of other common law jurisdictions, had stopped at this point: it was indicated by the barrier of commercial sense and practical

convenience. Griffiths L.J. took the view that although the injury to the plaintiff was foreseeable, there was no duty of care. The duty of care of drivers of motor vehicles was, according to decided cases, limited to persons and owners of property on the road or near to it who might be directly affected. The line should be drawn at this point. It was not even in the interest of those suffering from shock as a class to extend the scope of the defendants' liability: to do so would quite likely delay their recovery by immersing them in the anxiety of litigation.

I am deeply impressed by both of these arguments, which I have only briefly summarised. Though differing in expression, in the end, in my opinion, the two presentations rest upon a common principle, namely that, at the margin, the boundaries of a man's responsibility for acts of negligence have to be fixed as a matter of policy. Whatever is the correct jurisprudential analysis, it does not make any essential difference whether one says, with Stephenson L.J., that there is a duty but, as a matter of policy, the consequences of breach of it ought to be limited at a certain point, or whether, with Griffiths L.J., one says that the fact that consequences may be foreseeable does not automatically impose a duty of care, does not do so in fact where policy indicates the contrary. This is an approach which one can see very clearly from the way in which Lord Atkin stated the neighbour principle in Donoghue v. Stevenson

[1932] AC 562

, 580:

" Persons who are so closely and directly affected by my act that " I ought reasonably to have them in contemplation as being so " affected ".

This is saying that foreseeability must be accompanied and limited by the law's judgment as to persons who ought, according to its standards of value or justice, to have been in contemplation. Foreseeability, which involves a hypothetical person, looking with hindsight at an event which has occurred, is a formula adopted by English law, not merely for defining, but also for limiting the persons to whom duty may be owed, and the consequences for which an actor may be held responsible. It is not merely an issue of fact to be left to be found as such. When it is said to result in a duty of care being owed to a person or a class, the statement that there is a " duty of care " denotes a conclusion into the forming of which considerations of policy have entered. That foreseeability does not of itself, and automatically, lead to a duty of care is, I think, clear. 1 gave some examples in Anns v. Merton London Borough

[1978] AC 728

, 752, Anns itself being one. I may add what Lord Reid said in McKew v. Holland & Hannen & Cubitts, " A defender is not liable for a consequence " of a kind which is not foreseeable. But it does not follow that he is liable " for every consequence which a reasonable man could foresee." [1969] 3 All E.R. 1621, 1623.

We must then consider the policy arguments. In doing so we must bear in mind that cases of " nervous shock " and the possibility of claiming damages for it, are not necessarily confined to those arising out of accidents in public roads. To state, therefore, a rule that recoverable damages must be confined to persons on or near the highway is to state not a principle in itself, but only an example of a more general rule that recoverable damages must be confined to those within sight and sound of an event caused by negligence or, at least, to those in close, or very close, proximity to such a situation.

The policy arguments against a wider extension can be stated under four heads.

First, it may be said that such extension may lead to a proliferation of claims, and possibly fraudulent claims, to the establishment of an industry of lawyers and psychiatrists who will formulate a claim for nervous shock damages, including what in America is called the customary miscarriage, for all, or many, road accidents and industrial accidents.

Secondly, it may be claimed that an extension of liability would be unfair to defendants, as imposing damages out of proportion to the negligent

conduct complained of. In so far as such defendants are insured, a large additional burden will be placed on insurers, and ultimately upon the class of persons insured—road users or employers.

Thirdly, to extend liability beyond the most direct and plain cases would greatly increase evidentiary difficulties and tend to lengthen litigation.

Fourthly, it may be said—and the Court of Appeal agreed with this—that an extension of the scope of liability ought only to be made by the legislature, after careful research. This is the course which has been taken in New South Wales and the Australian Capital Territory.

The whole argument has been well summed up by Dean Prosser:

" The reluctance of courts to enter this zone even where the mental " injury is clearly foreseeable, and the frequent mention of the " difficulties of proof, the facility of fraud and the problem of finding " a place to stop and draw the line, suggest that here it is the nature " of the interest invaded and the type of damages which is the real " obstacle " (Prosser, Law of Torts, 4th Ed. p.256).

Since he wrote, the type of damage has, in this country at least, become more familiar and less deterrent to recovery. And some of the arguments are susceptible of answer. Fraudulent claims can be contained by the courts, who, also, can cope with evidentiary difficulties. The scarcity of cases which have occurred in the past, and the modest sums recovered, give some indication that fears of a flood of litigation may be exaggerated— experience in other fields suggests that such fears usually are. If some increase does occur, that may only reveal the existence of a genuine social need: that legislation has been found necessary in Australia may indicate the same thing.

But these discounts accepted, 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. It is necessary to consider three elements inherent in any claim: the class of persons whose claims should be recognised; the proximity of such persons to the accident; and the means by which the shock is caused. As regards the class of persons, the possible range is between the closest of family ties—of parent and child, or husband and wife, and the ordinary bystander. Existing law recognises the claims of the first: it denies that of the second, either on the basis that such persons must be assumed to be possessed of fortitude sufficient to enable them to endure the calamities of modern life, or that defendants cannot be expected to compensate the world at large. In my opinion, these positions are justifiable, and since the present case falls within the first class, it is strictly unnecessary to say more. I think, however, that it should follow that other cases involving less close relationships must be very carefully scrutinised. I cannot say that they should never be admitted. The closer the tie (not merely in relationship, but in care) the greater the claim for consideration. The claim, in any case, has to be judged in the light of the other factors, such as proximity to the scene in time and place, and the nature of the accident.

As regards proximity to the accident, it is obvious that this must be close in both time and space. It is, after all, the fact and consequence of the defendant's negligence that must be proved to have caused the " nervous " shock ". Experience has shown that to insist on direct and immediate sight or hearing would be impractical and unjust and that under what may be called the " aftermath " doctrine, one who, from close proximity comes very soon upon the scene, should not be excluded. In my opinion, the result in Benson v. Lee (u.s.) was correct and indeed inescapable. It was based, soundly, upon " direct perception of some of the events which go " to make up the accident as an entire event, and this includes ... the " immediate aftermath ". The High Court's majority decision in Chester v. Waverley Council (1939) 62 C.L.R. 1. where a child's body was found floating in a trench after a prolonged search, may perhaps be placed on the

other side of a recognisable line (Evatt J. in a powerful dissent placed it on the same side), but in addition, I find the conclusion of Lush J. to reflect developments in the law.

Finally, and by way of reinforcement of " aftermath " cases, I would accept, by analogy with " rescue " situations, that a person of whom it could be said that one could expect nothing else than that he or she would come immediately to the scene—normally a parent or a spouse, could be regarded as being within the scope of foresight and duty. Where there is not immediate presence, account must be taken of the possibility of alterations in the circumstances, for which the defendant should not be responsible.

Subject only to these qualifications, I think that a strict test of proximity by sight or hearing should be applied by the courts.

Lastly, as regards communication, there is no case in which the law has compensated shock brought about by communication by a third party. In Hambrook v. Stokes (u.s.), indeed, it was said that liability would not arise in such a case and this is surely right. It was so decided in Abramzik v. Brenner (1967) 65 D.L.R. (2nd) 651. The shock must come through sight or hearing of the event or of its immediate aftermath. Whether some equivalent of sight or hearing, e.g. through simultaneous television, would suffice may have to be considered.

My Lords,

I believe that these indications, imperfectly sketched, and certainly to be applied with common sense to individual situations in their entirety, represent either the existing law, or the existing law with only such circumstantial extension as the common law process may legitimately make. They do not introduce a new principle. Nor do I see any reason why the law should retreat behind the lines already drawn. I find on this appeal that the appellant's case falls within the boundaries of the law so drawn. 1 would allow her appeal.

Lord Edmund-Davies

My Lords,

I am for allowing this appeal. The facts giving rise to it have been related in detail by my noble and learned friend, Lord Wilberforce, and both he and my noble and learned friend, Lord Bridge of Harwich, have spaciously reviewed the case law relating to the recovery of damages for personal injury resulting from nervous shock. My own observations can, in the circumstances, be substantially briefer than I had originally planned.

It is common ground in the appeal that, the appellant's claim being based on shock, "... there can be no doubt since Bourhill v. Young that " the test of liability ... is foreseeability of injury by shock " (per Denning L.J., King v. Phillips, [1953] 1 Q.B. 429, at 441). But this was not always the law, and great confusion arose in the cases from applying to claims based on shock, restrictions hedging negligence actions based on the infliction of physical injuries. In the same year as that in which King v. Phillips (ibid.) was decided, Goodhart perceptively asked ((1953) 16 M.L.R., at p.22) why it was considered that the area of possible physical injury should be relevant to a case based on the unlawful infliction of shock, and continued:

" A woman standing at the window of a second-floor room is just " as likely to receive a shock when witnessing an accident as she " would be if she were standing on the pavement. To say that the " careless driver of a motor-car could not reasonably foresee such a " self-evident fact is to hide the truth behind a fiction which must " disappear as soon as we examine it. The driver obviously cannot " foresee that the woman at the window will receive a physical injury, " but it does not follow from this that he cannot foresee that she will " receive a shock. As the cause of action is based on shock it is only " foresight of shock which is relevant. "

Indeed, in King v. Phillips itself Denning L.J. expressly held that the fact that the plaintiff was in an upstairs room 80 yards away from the scene of the accident was immaterial.

It is true that, as Goodhart observed, in most cases the foresight concern- ing emotional injury and that concerning physical injury are identical, the shock following the physical injury, and the result was that, in the early development of this branch of the law, the courts tended to assume that this must be so in all cases. But in fact, as Goodhart laconically put it " The area of risk of physical injury may extend to only X yards, " while the area of risk of emotional injury may extend to Y yards ". That error still persists is indicated by the holding of Stephenson LJ. in the instant case that the ambit of duty of care owed by a motorist is restricted to persons " on or near the highway at or near the time of the accident" ([1981] 2 W.L.R. 1014, at 1028D), and by Griffiths L.J. to those "on the " road or near to it who may be directly affected by the bad driving. It " is not owed to those who are nowhere near the scene " (ibid., at 1037E). The most striking feature in the present case is that such limits on the duty of care were imposed notwithstanding the unanimous conclusion of the Court of Appeal that it was reasonably foreseeable (and even " readily " so in the judgment of Griffiths, L.J.) that injury by shock could be caused to a person in the position of the appellant.

Similar restrictions were unsuccessfully sought to be imposed in Haynes v. Harwood [19351 1 K.B. 146, the plaintiff having been inside a police station when he first saw the bolting horses and therefore out of sight and seemingly out of danger. And they were again rejected in Chadwick v. British Railways Board [1967] 1 W.L.R. 912, where the plaintiff was in his home 200 yards away when the Lewisham railway accident occurred. Griffiths L.J. expressed himself as " quite unable to include in the category " of rescuers to whom a duty [of care] is owed a relative visiting victims " in hospital " (1036 FG). I do not share the difficulty, and in my respectful judgment none exists. I am here content to repeat once more the noble words of Cardozo J. in Wagner v. International Railways Co. (1921) 232 N.Y. Rep. 176, at 180:

" Danger invites rescue. The cry of distress is the summons to " relief. The law does not ignore these reactions of the mind in " tracing conduct to its consequences. It recognises them as normal. " It places their effect within the range of the natural and probable. " The wrong that imperils life is a wrong to the imperilled victim; " it is wrong also to his rescuer."

Was not the action of the appellant in visiting her family in hospital immedi- ately she heard of the accident basically indistinguishable from that of a "rescuer", being intent upon comforting the injured? And was not her action " natural and probable" in the circumstances? I regard the questions as capable only of affirmative answers, and, indeed, Stephenson L.J. so answered them (1026 AC).

I turn to consider the sole basis upon which the Court of Appeal dismissed the claim, that of public policy. They did so on the grounds of what, for short, may be called the " floodgates " argument. Griffiths L.J. presented it in the following way:

" If the [appellant's] argument is right it will certainly have far- " reaching consequences, for it will not only apply to road traffic " accidents. Whenever anybody is injured it is foreseeable that the " relatives will be told and will visit them in hospital, and it is further " foreseeable that in cases of grave injury and death some of those " relatives are likely to have a severe reaction causing illness. Of " course, the closer the relationship the more readily it is foreseeable " that they may be so affected, but if we just confine our consideration " potential liability of the tortfeasor is vastly increased if he has to " to parents and children and husbands and wives, it is clear that the " compensate the relatives as well as the immediate victims of his " carelessness" (1031H).

" Every system of law must set some bounds to the consequences " for which a wrongdoer must make reparation. If the burden is " too great it cannot and will not be met, the law will fall into disrepute, " and it will be a disservice to those victims who might reasonably " have expected compensation. In any state of society it is ultimately " a question of policy to decide the limits of liability (1036G)."

Stephenson LJ. expressed the same view (at 1028H) by citing his own observation when giving the judgment of the Court of Appeal in Lambert v. Lewis [1980] 2 W.L.R. 299, at 231, that "... there comes a " point where the logical extension of the boundaries of duty and damage " is halted by the barrier of commercial sense and practical convenience ".

My Lords,

the experiences of a long life in the law have made me very familiar with this " floodgates " argument. I do not, of course, suggest that it can invariably be dismissed as lacking cogency; on the contrary, it has to be weighed carefully, but I have often seen it disproved by later events. It was urged when abolition of the doctrine of common employ- ment was being canvassed, and it raised its head again when the abolition of contributory negligence as a total bar to a claim in negligence was being urged. And, even before my time, on the basis of conjecture later shown to be ill-founded it provided a fatal stumbling-block to the plaintiff's claim in the " shock " case of Victorian Railways Commissioners v. Coultas

(1888) 13 App Cas 222

, where Sir Richard Couch sounded the "floodgates" alarm in stirring words which are Quoted in the speech of my noble and learned friend Lord Bridge of Harwich.

My Lords,

for such reasons as those developed in the speech of my noble and learned friend, Lord Wilberforce, and which it would serve no purpose for me to repeat in less felicitous words of my own, I remain unconvinced that the number and area of claims in " shock " cases would be substantially increased or enlarged were the respondents here held liable. It is a question which Kennedy J. answered in Dulieu v. White & Sons

[1901] 2 KB 669

, at 681, in the following terms, which commend themselves strongly to me:

" I should be sorry to adopt a rule which would bar all such claims " on grounds of policy alone, and in order to prevent the possible " success of unrighteous or groundless actions. Such a course involves " the denial of redress in meritorious cases, and it necessarily implies a " certain amount of distrust, which I do not share, in the capacity of " legal tribunals to get at the truth in this class of claim. "

My Lords,

in the present case two totally different points arising from the speeches of two of your Lordships call for further attention. Both relate to the Court of Appeal's invoking public policy. Unless I have completely misunderstood my noble and learned friend. Lord Bridge of Harwich, he doubts that any regard should have been had to such a consideration, and seemingly considered the Court of Appeal went wrong in paying any attention to it. The sole test of liability, I read him as saying, is the reasonable foreseeability of injury to the plaintiff through nervous shock resulting from the defendant's conceded default. And, such foreseeability having been established to their unanimous satisfaction, it followed that in law no other course was open to the Court of Appeal than to allow this appeal. I have respectfully to say that I cannot accept this approach. It is true that no decision was cited to your Lordships in which the contrary has been held, but that is not to say that reasonable foreseeability is the only test of the validity of a claim brought in negligence. If it is surmounted, the defendant would probably be hard put to escape liability.

Lord Wright found it difficult to conceive that any new head of public policy could be discovered ( Fender v. St. John-Mildmay [1938] A.C. 1, at 41), and, were Lord Halsbury sound in denying that any Court could invent a new head of policy ( Jansen v. Driefontein Consolidated Mines [1902] A.C. 484, at 491), I should have been in the happy position of accepting the standpoint adopted by my noble and learned friend, Lord Bridge of

Harwich. But, as I shall later indicate, the more recent view which has found favour in your Lordships' House is that public policy is not immutable. Accordingly, whilst I would have strongly preferred indicating with clarity where the limit of liability should be drawn in such cases as the present, in my judgment the possibility of a wholly new type of policy being raised renders the attainment of such finality unfortunately unattainable.

As I think, all we can say is that any invocation of public policy calls for the closest scrutiny, and the defendant might well fail to discharge the burden of making it good, as, indeed, happened in Rondel v. Worsley [1969] 1 A.C. 191. But that is not to say that success for the defendant would be unthinkable, for, in the words of MacDonald J. in Nova Mink Ltd. v. Trans-Canada Airlines [1951] 2 D.L.R. 241 at 254:

"... there is always a large element of judicial policy and social " expediency involved in the determination of the duty-problem, " however it may be obscured by the use of traditional formulae ".

I accordingly hold, as Griffiths L.J. did, that, " The test of foreseeability " is not a universal touchstone to determine the extent of liability for the " consequences of wrongdoing" (1032B). Authority for that proposition is both ample in quantity and exalted in status. My noble and learned friend. Lord Wilberforce, has already quoted in this context the observation of Lord Reid in McKew v. Holland & Hannen & Cubitts [1969] 3 All E.R. 1621, at 1623, and referred to his own treatment of the topic in Anns v. Merton London Borough

[1978] AC 728

, at 752, where further citations are furnished. To add yet another, let me conclude by recalling that in Medley Byrne and Co. Ltd. v. Heller and Partners Ltd.

[1964] AC 465

, at 536, Lord Pearce observed:

" How wide the sphere of the duty of care in negligence is to be laid " depends ultimately upon the courts' assessment of the demands of " society for protection from the carelessness of others ".

I finally turn to consider the following passage in the speech of my noble and learned friend, Lord Scarman:

" Policy considerations will have to be weighed: but the objective " of the judges is the formulation of principle. And, if principle " inexorably requires a decision which entails a degree of policy risk, " the court's function is to adjudicate according to principle, leaving

" policy curtailment to the judgment of Parliament . . . . . . . If

" principle leads to results which are thought to be socially unaccept- " able, Parliament can legislate to draw a line or map out a new path."

And at a later stage my noble and learned friend added,

" Why then should not the courts draw the line, as the Court of " Appeal manfully tried to do in this case? Simply, because the " policy issue as to where to draw the line is not justiciable."

My understanding of these words is that my noble and learned friend shares (though for a different reason) the conclusion of my noble and learned friend, Lord Bridge of Harwich, that, in adverting to public policy the Court of Appeal here embarked upon a sleeveless errand, for public policy has no relevance to liability at law. In my judgment, the proposition that "... " the policy issue ... is not justiciable " is as novel as it is startling. So novel is it in relation to this appeal that it was never mentioned during the hearing before your Lordships. And it is startling because in my respectful judgment it runs counter to well-established and wholly acceptable law.

I restrict myself to recent decisions of your Lordships' House. In Rondel v. Worsley (ante), their Lordships unanimously held that public policy required that a barrister should be immune from an action for negligence in respect of his conduct and management of a case in court and the work preliminary thereto, Lord Reid saying (at p.228B)

" Is it in the public interest that barristers and advocates should be " protected against such actions? Like so many questions which raise " the public interest, a decision one way will cause hardships to

" individuals while a decision the other way will involve disadvantage " to the public interest ... So the issue appears to me to be whether " the abolition of the rule would probably be attended by such " disadvantage to the public interest as to make its retention clearly " justifiable."

In Dorset Yacht Co. v. Home Office

[1970] AC 1004

your Lordships' House was called upon to decide whether the English law of civil wrongs should be extended to impose legal liability for loss caused by conduct of a kind which had not hitherto been recognised by the courts as entailing liability. In expressing the view that it did, Lord Diplock said (at 1058D):

" I agree with the Master of the Rolls that what we are concerned " with in this appeal' is ... at bottom a matter of public policy which " ' we as judges, must resolve ' ".

And in British Railways Board v. Herrington

[1972] AC 877

, dealing with an occupier's duty to trespassing children, Lord Reid said (at 897C):

" Legal principles cannot solve the problem. How far occupiers are " to be required by law to take steps to safeguard such children must " be a matter of public policy ".

My Lords,

in accordance with such a line of authorities, I hold that public policy issues are " justiciable". Their invocation calls for close scrutiny, and the conclusion may be that its nature and existence have not been established with the clarity and cogency required before recognition can be granted to any legal doctrine, and before any litigant can properly be deprived of what would otherwise be his manifest legal rights. Or the conclusion may be that adoption of the public policy relied upon would involve the introduction of new legal principles so fundamental that they are best left to the legislature; see, for example, Launchbury v. Morgans [1973] A.C.127, and especially Lord Pearson at 142G. And " Public policy is not " immutable" (per Lord Reid in Rondel v. Worsley, ante, at 227 BC). Indeed, Winfield described it as " necessarily variable ", and wisely added (1928 42 Harvard L.R., at 93):

" This variability ... is a stone in the edifice of the doctrine, and " not a missile to be flung at it. Public policy would be almost useless " without it. The march of civilization and the difficulty of ascertaining " public policy at any given time make it essential . . . How is " public policy evidenced? If it is so variable, if it depends on the " welfare of the community at any given time, how are the courts to " ascertain it? Some judges have thought this difficulty so great that " ' they have urged that it would be solved much better by the legislature " and have considered it to be the main reason why the courts should " leave public policy alone . . . This admonition is a wise one and " judges are not likely to forget it. But the better view seems to be " that the difficulty of discovering what public policy is at any given " moment certainly does not absolve the bench from the duty of doing " so. The judges are bound to take notice of it and of the changes " which it undergoes, and it is immaterial that the question may be " one of ethics rather than of law."

In the present case the Court of Appeal did just that, and in my judgment they were right in doing so. But they concluded that public policy required them to dismiss what they clearly regarded as an otherwise irrefragable claim. In so concluding, I respectfully hold that they were wrong, and I would accordingly allow the appeal.

Lord Russell of Killowen

My Lords,

I make two comments at the outset. Firstly: we are not concerned with any problem that might have been posed had the accident been not wholly attributable to the negligence of the respondents, but partly attributable to negligent driving by the injured son of the plaintiff. Secondly: the plaintiff

is to be regarded as of normal disposition or phlegm: we are therefore not concerned to investigate the applicability of the " thin skull" cases to this type of case.

The facts in this case, and the physical illness suffered by the plaintiff as a result of mental trauma caused to her by what she learned, heard and saw at the hospital have been set out in the speech of my noble and learned friend, Lord Wilberforce, and I do not repeat them.

All members of the Court of Appeal concluded that that which happened to the plaintiff was reasonably foreseeable by the defendants as a consequence of their negligence on the road. (In some cases, and at all levels, a reasonable bystander seems to be introduced as a relevant mind: I do not understand why: reasonable foreseeability must surely be something to be attributed to the person guilty of negligence.)

But if the effect on this wife and mother of the results of the negligence is considered to have been reasonably foreseeable, I do not see the justification for not finding the defendants liable in damages therefor. I would not shrink from regarding in an appropriate case policy as something which may feature in a judicial decision. But in this case what policy should inhibit a decision in favour of liability to the plaintiff? Negligent driving on the highway is only one form of negligence which may cause wounding or death and thus induce a relevant mental trauma in a person such as the plaintiff. There seems to be no policy requirement that the damage to the plaintiff should be on or adjacent to the highway. In the last analysis any policy consideration seems to be rooted in a fear of floodgates opening—the tacit question " What next? ". I am not impressed by that fear—certainly not sufficiently to deprive this plaintiff of just compensation for the reasonably foreseeable damage done to her. I do not consider that such deprivation is justified by trying to answer in advance the question posed " What next?" by a consideration of relationships of plaintiff to the sufferers or deceased, or other circumstances: to attempt in advance solutions, or even guidelines, in hypothetical cases may well, it seems to me, in this field, do more harm than good.

1 also would allow this appeal.

Lord Scarman

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bridge of Harwich. It cannot be strengthened or improved by any words of mine. I accept his approach to the law and the conclusion he reaches. But I also share the anxieties of the Court of Appeal. I differ, however, from the Court of Appeal in that I am persuaded that in this branch of the law it is not for the courts but for the legislature to set limits, if any be needed, to the law's development.

The appeal raises directly a question as to the balance in our law between the functions of judge and legislature. The common law, which in a constitutional context includes judicially developed equity, covers everything which is not covered by statute. It knows no gaps: there can be no " casus omissus ". The function of the court is to decide the case before it, even though the decision may require the extension or adaptation of a principle or in some cases the creation of new law to meet the justice of the case. But, whatever the court decides to do, it starts from a base-line of existing principle and seeks a solution consistent with or analogous to a principle or principles already recognised.

The distinguishing feature of the common law is this judicial development and formulation of principle. Policy considerations will have to be weighed: but the objective of the judges is the formulation of principle. And, if principle inexorably requires a decision which entails a degree of policy risk, the court's function is to adjudicate according to principle, leaving policy curtailment to the judgment of Parliament. Here lies the

true role of the two law-making institutions in our constitution. By concentrating on principle the judges can keep the common law alive, flexible and consistent, and 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.

The real risk to the common law is not its movement to cover new situations and new knowledge but lest it should stand still, halted by a conservative judicial approach. If that should happen, and since the 1966 Practice Direction of the House it has become less likely, there would be a danger of the law becoming irrelevant to the consideration, and inept in its treatment, of modem social problems. Justice would be defeated. The common law has, however, avoided this catastrophe by the flexibility given it by generations of judges. Flexibility carries with it, of course, certain risks, notably a degree of uncertainty in the law and the " floodgates " risk which so impressed the Court of Appeal in the present case.

The importance to be attached to certainty and the size of the " floodgates " risk vary from one branch of the law to another. What is required of the law in its approach to a commercial transaction will be very different from the approach appropriate to problems of tortious liability for personal injuries. In some branches of the law, notably that now under consideration, the search for certainty can obstruct the law's pursuit of justice, and can become the enemy of the good.

The present case is a good illustration. Certainty could have been achieved by leaving the law as it was left by Victorian Railways Commissioners v. Coultas

(1888) 13 App Cas 222

, or again, by holding the line drawn in 1901 by Dulieu v. White & Sons [1901] 1 K.B. 669, or to-day by confining the law to what was regarded by Lord Denning M.R. in Hinz v. Berry [1970] 2 Q.B. 40, 42, as " settled law ", namely that " damages can be " given for nervous shock caused by the sight of an accident, at any rate " to a close relative."

But at each landmark stage common law principle, when considered in the context of developing medical science, has beckoned the judges on. And now, as has been made clear by Evatt J., dissenting, in Chester's case in the High Court of Australia, (1939) 62 C.L.R. 1, by Tobriner J. giving the majority judgment in the Californian case of Dillon v. Legg (1968) 29 A.L.R. 3rd 1316, and by my noble and learned friend in this case, common law principle requires the judges to follow the logic of the " reasonably " foreseeable test " so as, in circumstances where it is appropriate, to apply it untrammelled by spatial, physical, or temporal limits. Space, time, distance, the nature of the injuries sustained, and the relationship of the plaintiff to the immediate victim of the accident, are factors to be weighed, but not legal limitations, when the test of reasonable foreseeability is to be applied.

But I am by no means sure that the result is socially desirable. The " floodgates " argument may be exaggerated. Time alone will tell: but I foresee social and financial problems if damages for " nervous shock" should be made available to persons other than parents and children who without seeing or hearing the accident, or being present in the immediate aftermath, suffer nervous shock in consequence of it. There is, I think, a powerful case for legislation such as has been enacted in New South Wales and the Australian Capital Territories.

Why then should not the courts draw the line, as the Court of Appeal manfully tried to do in this case? Simply, because the policy issue as to where to draw the line is not justiciable. The problem is one of social, economic, and financial policy. The considerations relevant to a decision are not such as to be capable of being handled within the limits of the forensic process.

My Lords,

I would allow the appeal for the reasons developed by my noble and learned friend, Lord Bridge of Harwich, while putting on record my view that there is here a case for legislation.

Lord Bridge of Harwich

My Lords,

I gratefully adopt the account given by my noble and learned friend, Lord Wilberforce, of the facts giving rise to this appeal.

This is only the second case ever to reach your Lordships' House concerning the liability of a tortfeasor who has negligently killed or physi- cally injured A to pay damages to B for a psychiatric illness resulting from A's death or injury. The previous case was Bourhill v. Young [1943] A.C. 92. The impression with which I am left, after being taken in argument through all the relevant English authorities, a number of Common- wealth authorities, and one important decision of the Supreme Court of California, is that this whole area of English law stands in urgent need of review.

The basic difficulty of the subject arises from the fact that the crucial answers to the questions which it raises lie in the difficult field of psychiatric medicine. The common law gives no damages for the emotional distress which any normal person experiences when someone he loves is killed or injured. Anxiety and depression are normal human emotions. Yet an anxiety neurosis or a reactive depression may be recognisable psychiatric illnesses, with or without psychosomatic symptoms. So, the first hurdle which a plaintiff claiming damages of the kind in question must surmount is to establish that he is suffering, not merely grief, distress or any other normal emotion, but a positive psychiatric illness. That is here not in issue. A plaintiff must then establish the necessary chain of causation in fact between his psychiatric illness and the death or injury of one or more third parties negligently caused by the defendant. Here again, this is not in dispute in the instant case. But when causation in fact is in issue, it must no doubt be determined by the judge on the basis of the evidence of psychiatrists. Then, here comes the all important question. Given the fact of the plaintiff's psychiatric illness caused by the defendant's negligence in killing or physically injuring another, was the chain of causation from the one event to the other, considered ex post facto in the light of all that has happened, " reasonably foreseeable" by the "reasonable man"? A moment's thought will show that the answer to that question depends on what knowledge is to be attributed to the hypothetical reasonable man of the operation of cause and effect in psychiatric medicine. There are at least two theoretically possible approaches. The first is that the judge should receive the evidence of psychiatrists as to the degree of probability that the particular cause would produce the particular effect, and apply to that the appropriate legal test of reasonable foreseeability as the criterion of the defendant's duty of care. The second is that the judge, relying on his own opinion of the operation of cause and effect in psychiatric medicine, as fairly representative of that of the educated layman, should treat himself as the reasonable man and form his own view from the primary facts as to whether the proven chain of cause and effect was reasonably foreseeable. In principle, I think there is much to be said for the first approach. Foreseeability, in any given set of circumstances, is ultimately a question of fact. If a claim in negligence depends on whether some defect in a complicated piece of machinery was foreseeably a cause of injury, I apprehend that the judge will decide that question on the basis of the expert evidence of engineers. But the authorities give no support to this approach in relation to the foreseeability of psychiatric illness. The judges, in all the decisions we have been referred to, have assumed that it lay within their own competence to determine whether the plaintiff's "nervous " shock" (as lawyers quaintly persist in calling it), was in any given circumstances a sufficiently foreseeable consequence of the defendant's act or omission relied on as negligent to bring the plaintiff within the scope of those to whom the defendant owed a duty of care. To depart from this practice and treat the question of foreseeable causation in this field, and hence the scope of the defendant's duty as a question of fact to be determined in the light of the expert evidence adduced in each case, would,

no doubt, be too large an innovation in the law to be regarded as properly within the competence, even since the liberating 1966 Practice Direction, of your Lordships' House. Moreover, psychiatric medicine is far from being an exact science. The opinions of its practitioners may differ widely. Clearly it is desirable in this, as in any other field, that the law should achieve such a measure of certainty as is consistent with the demands of justice. It would seem that the consensus of informed judicial opinion is probably the best yardstick available to determine whether, in any given circumstances, the emotional trauma resulting from the death or injury of third parties, or indeed the threat of such death or injury, ex hypothesi attributable to the defendant's negligence, was a foreseeable cause in law, as well as the actual cause in fact, of the plaintiff's psychiatric or psycho- somatic illness. But the word I would emphasise in the foregoing sentence is " informed ". For too long earlier generations of judges have regarded psychiatry and psychiatrists with suspicion, if not hostility. Now, I venture to hope, that attitude has quite disappeared. No judge who has spent any length of time trying personal injury claims in recent years would doubt that physical injuries can give rise not only to organic but also to psychiatric disorders. The sufferings of the patient from the latter are no less real and frequently no less painful and disabling than from the former. Like- wise, I would suppose that the legal profession well understands that an acute emotional trauma, like a physical trauma, can well cause a psychiatric illness in a wide range of circumstances and in a wide range of individuals whom it would be wrong to regard as having any abnormal psychological make-up. It is in comparatively recent times that these insights have come to be generally accepted by the judiciary. It is only by giving effect to these insights in the developing law of negligence that we can do justice to an important, though no doubt small, class of plaintiffs whose genuine psychiatric illnesses are caused by negligent defendants.

My Lords,

in the instant case I cannot help thinking that the learned trial judge's conclusion that the appellant's illness was not the foreseeable consequence of the respondents' negligence was one to which, understand- ably, he felt himself driven by the authorities. Free of authority, and applying the ordinary criterion of reasonable foreseeability to the facts, with an eye " enlightened by progressive awareness of mental illness " (the language of Stephenson L.J.), any judge must, I would think, share the view of all three members of the Court of Appeal, with which I understand all your Lordships agree, that, in the words of Griffiths L.J., it was " readily " foreseeable that a significant number of mothers exposed to such an " experience might break down under the shock of the event and suffer " illness".

The question, then, for your Lordships' decision is whether the law, as a matter of policy, draws a line which exempts from liability a defendant whose negligent act or omission was actually and foreseeably the cause of the plaintiff's psychiatric illness and, if so, where that line is to be drawn. In thus formulating the question, I do not, of course, use the word " negligent " as prejudging the question whether the defendant owes the plaintiff a duty, but I do use the word " foreseeably " as connoting the normally accepted criterion of such a duty.

Before attempting to answer the question, it is instructive to consider the historical development of the subject as illustrated by the authorities, and to note, in particular, three features of that development. First, it will be seen that successive attempts have been made to draw a line beyond which liability should not extend, each of which has in due course had to be abandoned. Secondly, the ostensible justification for drawing the line has been related to the current criterion of a defendant's duty of care, which, however expressed in earlier judgments, we should now describe as that of reasonable foreseeability. But. thirdly, in so far as policy consider- tins can be seen to have influenced any of the decisions, they appear to have sprung from the fear that to cross the chosen line would be to open the floodgates to claims without limit and largely without merit.

Perhaps the most vivid illustration of all three features is in the very first case in the series, the decision of the Privy Council in Victorian Railways Commissioners v. Coultas

(1888) 13 App Cas 222

. The plaintiff, a pregnant lady, was a passenger in a buggy which was negligently allowed by the defendants' gatekeeper to cross the railway line when a train was approaching. The buggy crossed just in time, ahead of the train, but only narrowly escaped collision. The plaintiff was so alarmed that she suffered what was described as "a severe nervous shock. She fainted, and subset- queenly miscarried. She succeeded in her claim for damages in the courts below. Delivering the judgment of the Privy Council, allowing the appeal, Sir R. Couch said, at p.225:

" According to the evidence of the female plaintiff her fright was " caused by seeing the train approaching, and thinking they were " going to be killed. Damages arising from mere sudden terror " unaccompanied by an actual physical injury, but occasioning a " nervous or mental shock, cannot, under such circumstances, their " Lordships think, be considered a consequence which, in the ordinary " course of things, would flow from the negligence of the gate-keeper. " If it were held that they can, it appears to their Lordships that it " would be extending the liability for negligence much beyond what that " liability has hitherto been held to be. Not only in such a case at the " present, but in every case where an accident caused by negligence " had given a person a serious nervous shock, there might be a claim " for damages on account of mental injury. The difficulty which now " often exists in case of alleged physical injuries of determining whether " they were caused by the negligent act would be greatly increased, and " a wide field opened for imaginary claims."

Two Irish courts declined to follow this decision: Bell v. The Great Northern Railway of Ireland (1890) 26 L.R. Ir. 428, following Byrne v. Great Southern and Western Railway Company of Ireland (unreported). The next English case followed the Irish courts' lead. This was Dulieu v. White & Sons [1901] 1 K.B. 669. The case was argued on a preliminary point of law. The plaintiff, again a pregnant lady, pleaded that she had suffered nervous shock when the defendants' horse-drawn van was negligently driven into the public house where she was behind the bar. Kennedy J. gave the leading judgment of the Divisional Court in the plaintiff's favour. It is worth quoting the passage which is central to his decision, if only to show how far we have travelled in the last eighty years in the judicial approach to the kind of medical question presently under consideration. He said at p.677:

" For my own part, I should not like to assume it to be scientifically " true that a nervous shock which causes serious bodily illness is not " actually accompanied by physical injury, although it may be " impossible, or at least difficult, to detect the injury at the time in the " living subject. I should not be surprised if the surgeon or the " physiologist told us that nervous shock is or may be in itself an " injurious affection of the physical organism. Let it be assumed, " however, that the physical injury follows the shock, but that the jury " are satisfied upon proper and sufficient medical evidence that it follows " the shock as its direct and natural effect, is there any legal reason for " saying that the damage is less proximate in the legal sense than " damage which arises contemporaneously? "

But earlier in his judgment Kennedy J. had drawn a new line of limitation when he said, at p.675:

" The shock, where it operates through the mind, " must be a shock which arises from a reasonable fear of immediate personal " injury to oneself."

He supported this by reference to an earlier unreported case (Smith v. Johnson and Co.), where the unsuccessful plaintiff suffered from the shock of seeing another person killed, and said of such a case: " I should myself . . . have been inclined to go a step further, and to hold "... that, as the defendant neither intended to affect the plaintiff " injuriously nor did anything which could reasonably or naturally be

" expected to affect him injuriously, there was no evidence of any breach of " legal duty towards the plaintiff . . .".

The next landmark is Hambrook v. Stokes Bros [1925] 1 K.B. 141. This was the case which turned on whether " nervous shock " caused to a mother by fear for her children, who had just disappeared round a corner going up a hill when a runaway lorry appeared round the corner going downhill, and when, as it turned out, one of her children was injured, gave a cause of action against the driver whose negligence allowed the lorry to run down the hill. The court by a majority held that it did. The leading judgment of Bankes L.J. sought to demonstrate the absurdity of maintaining the boundary of a defendant's liability for " nervous shock " on the line drawn by Kennedy J., saying at p. 151:

" Assume two mothers crossing this street at the same time when " this lorry comes thundering down, each holding a small child by the " hand. One mother is courageous and devoted to her child. She is " terrified, but thinks only of the damage to the child, and not at all " about herself. The other woman is timid and lacking in the motherly " instinct. She also is terrified, but thinks only of the damage to herself " and not at all about her child. The health of both mothers is seriously " affected by the mental shock occasioned by the fright. Can any real " distinction be drawn between the two cases? Will the law recognize " a cause of action in the case of the less deserving mother, and none " in the case of the more deserving one? Does the law say that the " defendant ought reasonably to have anticipated the non-natural " feeling of the timid mother, and not the natural feeling of the " courageous mother? I think not."

Sargant L.J., in his dissenting judgment, nevertheless sought to uphold the distinction essentially on the basis that " nervous shock" caused to a plaintiff by fear of injury to himself occasioned by a " near miss" is indistinguishable, so far as the defendant's duty is concerned, from injury by direct impact, whereas " nervous shock " caused by the fear or sight of injury to another is beyond the defendant's anticipation and hence beyond the range of his duty.

When one comes to the decision of your Lordships' House in Bourhill v. Young (u.s.) it is important to bear in mind, as the speeches delivered show, that the difference of judicial opinion in Hambrook v. Stokes Bros (u.s.) remained unresolved, and indeed that their Lordships did not purport to resolve it. Furthermore, on the facts of that case the result was surely a foregone conclusion. The pursuer was alighting from a tram when she heard, but did not see, the impact of a collision between a motor-cyclist (on whose negligence in driving too fast her claim was based) and a car. The motor-cyclist, a stranger to the pursuer, was killed. There is nothing in the report to indicate that she ever saw the body, but after the body had been removed she saw the blood left on the road. In these circumstances I cannot suppose that any judge today would dissent from the view that " nervous shock " to the pursuer was not reasonably foreseeable. Nor would anyone, I think, quarrel with the following passage from the speech of Lord Porter as expressing a view of the law as acceptable in 1982 as it was in 1942:

" The question whether emotional disturbance or shock, which a " defender ought reasonably to have anticipated as likely to follow " from his reckless driving, can ever form the basis of a claim is not " in issue. It is not every emotional disturbance or every shock which " should have been foreseen. The driver of a car or vehicle, even " though careless, is entitled to assume that the ordinary frequenter of " the streets has sufficient fortitude to endure such incidents as may " from time to time be expected to occur in them, including the noise " of a collision and the sight of injury to others, and is not to be " considered negligent towards one who does not possess the customary " phlegm."

On the difference of opinion in Hambrook v. Stokes Bros, (u.s.) Lord Russell of Killowen in terms expressed a preference for the dissenting view of Sargant L.J. Lord Thunderstone and Lord Macmillan, although not saying so in terms, appear by necessary implication to support the same view by confining a driver's duty of care to those in the area of potential physical danger which may arise from the manner of his driving. Lord Porter's speech is neutral. Lord Wright expressed provisional agreement with the majority decision in Hambrook v. Stokes Bros (u.s.). His speech also contained the following and, as I think, far-sighted passage, at p. 110:

" What is now being considered is the question of liability, and this, " I think, in a question whether there is duty owing to members of the " public who come within the ambit of the act, must generally depend " on a normal standard of susceptibility. This, it may be said, is " somewhat vague. That is true, but definition involves limitation " which it is desirable to avoid further than is necessary in a principle " of law like negligence which is widely ranging and is still in the stage " of development. It is here, as elsewhere, a question of what the " hypothetical reasonable man, viewing the position, I suppose ex " post facto, would say it was proper to foresee. What danger of " particular infirmity that would include must depend on all the " circumstances, but generally, I think, a reasonably normal condition. " if medical evidence is capable of defining it, would be the standard. " The test of the plaintiff's extraordinary susceptibility, if unknown to " the defendant, would in effect make him an insurer. The lawyer " likes to draw fixed and definite lines and is apt to ask where the " thing is to stop. I should reply it should stop where in the particular " case the good sense of the jury or of the judge decides .... I " cannot, however, forbear referring to a most important case in the " High Court of Australia, Chester v. Waverley Corporation, where the " court by a majority held that no duty was made out. The dissenting " judgment of Evatt J. will demand the consideration of any judge who " is called on to consider these questions."

I shall return later to the judgment of Evatt J. to which Lord Wright there refers.

I need not consider in detail the subsequent English Court of Appeal decisions in King v. Phillips [1953] 1 Q.B. 429, Boardman v. Sanderson

[1964] 1 WLR 1317

and Hinz v. Berry [1970] 2 Q.B. 40. In King v. Phillips (u.s.) Denning L.J. as he then was, said at p.441:

" there can be no doubt since Bourhill v. Young that the test of liability " for shock is foreseeability of injury by shock."

This observation was cited with approval in The " Wagon Mound" [1961] A.C. 388 at p.426. I would add, however, that King v. Phillips (u.s.), a case in which the plaintiff failed, would, as I think, clearly be decided differently today. By 1970 it was clear that no one could any longer contend for the limitation of liability for " nervous shock" to those who were themselves put in danger by the defendant's negligence, so much so that in Hinz v. Berry (u.s.) a mother who witnessed from one side of the road a terrible accident to her family picnicking on the other side of the road recovered damages for her resulting psychiatric illness without dispute on the issue of liability, and the case reached the Court of Appeal on the issue of quantum of damages only. Lord Denning M.R. said at p.42:

" The law at one time said that there could not be damages for " nervous shock: but for these last 25 years, it has been settled that " damages can be given for nervous shock caused by the sight of an " accident, at any rate to a close relative."

The only other important English decision is Chadwick v. British Railways Board [19671 1 W.L.R. 912. The plaintiff's husband lived 200 yards from the scene of the terrible Lewisham railway accident in 1957 in which 90 people were killed. On hearing of the accident in the evening he went at once to the scene and assisted in the rescue work through the night until

early the next morning. As a result of his experiences of the night he developed an acute anxiety neurosis for which he required hospital treat- ment as an in-patient for over six months. After his death from unrelated causes his wife, as administrator of his estate, recovered damages for his psychiatric illness. This was a decision of Waller J. It was not challenged on appeal and no one, I believe, has ever doubted that it was rightly decided.

I should mention two Commonwealth decisions of first instance. In Benson v. Lee [1972] V.R. 879 Lush J., in the Supreme Court of Victoria, held that a mother who did not witness, but was told of, an accident to her son 100 yards from her home, went to the scene and accompanied the child in an ambulance to hospital where he died, was entitled to damages for " nervous shock" notwithstanding evidence that she was prone to mental illness from stress. In Marshall v. Lionel Enterprises Inc. (1971) 25 D.L.R. (3d) 141, Haines J., in the Ontario High Court, held that a wife who found her husband seriously injured shortly after an accident caused by defective machinery was not, as a matter of law, disentitled to damages for the " nervous shock " which she claimed to have suffered as a result. On the other hand in Abramzik v. Brenner (1967) 65 D.L.R. (2d) the Saskatchewan Court of Appeal held that a mother who suffered " nervous shock " on being informed by her husband that two of her children had been killed in a road accident was not entitled to recover.

Chester v. Waverley Corporation (1939) 62 C.L.R. 1, referred to by Lord Wright in the passage quoted above, was a decision of the High Court of Australia. The plaintiff's seven year old son having been out to play, failed to return home when expected. A search was mounted which continued for some hours. Eventually, in the presence of the plaintiff, his mother, the child's dead body was recovered from a flooded trench which the defendant authority had left inadequately fenced. The plaintiff claimed damages for " nervous shock ". The majority of the court (Latham L.J., Rich and Starke JUJU.) rejected the claim. The decision was based squarely on the ground that the plaintiff's injury not being a foreseeable consequence of the defendant's omission to fence the trench, they owed her no duty. But the judgment of Latham L.J. contains an interesting example of the " floodgates " argument. He said, at app., 8:

" But in this case the plaintiff must establish a duty owed by the " defendant to herself and a breach of that duty. The duty which it " is suggested the defendant owed to the plaintiff was a duty not to " injure her child so as to cause her a nervous shock when she saw, " not the happening of the injury, but the result of the injury, namely, " the dead body of the child. It is rather difficult to state the limit of " the alleged duty. If a duty of the character suggested exists at all, " it is not really said that it should be confined to mothers of children " who are injured. It must extend to some wider class—but to what " class? There appears to be no reason why it should not extend " to other relatives or to all other persons, whether they are relatives " or not. If this is the true principle of law, then a person who is " guilty of negligence with the result that A is injured will be liable " in damages to B, C, D and any other persons who receive a nervous " shock (as distinguished from passing fright or distress) at any time " upon perceiving the results of the negligence, whether in disfigure- " ment of person, physical injury, or death."

In a powerful dissenting judgment, which I find wholly convincing, Evatt J. drew a vivid picture of the mother's agony of mind as the search continued, culminating in the gruesome discovery in her presence of the child's drowned body. I cannot for a moment doubt the correctness of his conclusion that the mother's mental illness was the reasonably foresee- able consequence of the defendant's negligence. This was a case from New South Wales and I cannot help wondering whether it was not the manifest injustice of the result which led, a few years later, to the interven- tion of the New South Wales legislature, to enable the parent, husband or

wife of a person " killed, injured or put in peril" by another's negligence to recover damages for "mental or nervous shock" irrespective of any spatial or temporal relationship to the accident in which the death, injury or peril occurred.

My Lords,

looking back I think it is possible to discern that there only ever were two clear lines of limitation of a defendant's liability for " nervous "shock" for which any rational justification could be advanced in the light, both of the state of the law of negligence and the state of medical science as judicially understood, at the time when those limitations were propounded. In 1888 it was, no doubt, perfectly sensible to say:

" Damages "arising from mere sudden terror unaccompanied by any actual physical " injury, but occasioning a nervous or mental shock, cannot ... be " considered a consequence which, in the ordinary course of things, " would flow from . . . negligence"

. Here the test, whether of duty or of remoteness, can be recognised as a relatively distant ancestor of the modern criterion of reasonable foreseeability. Again, in 1901 it was, I would suppose, equally sensible to limit a defendant's liability for " nervous " shock " which could " reasonably or actually be expected " to be such as was suffered by a plaintiff who was himself physically endangered by the defendant's negligence. But once that line of limitation has been crossed, as it was by the majority in Hambrook v. Stokes Bros, (u.s.), there can be no logical reason whatever for limiting the defendant's duty to persons in physical proximity to the place where the accident, caused by the defendant's negligence, occurred. Much of the confusion in the authorities since Bourhill v. Young (u.s.), including, if I may say so, the judgments of the courts below in the instant case, has arisen, as it seems to me, from the deference still accorded, notwithstanding the acceptance of the Hambrook principle, to dicta of their Lordships in Bourhill v. Young (u.s.) which only make sense if understood as based on the limited principle of liability propounded by Kennedy J. in Dulieu v. White & Sons (u.s.), and adopted in the dissenting judgment of Sargant L.J. in Hambrook v. Stokes Bros. (u.s.).

My Lords,

before returning to the policy question, it is, I think, highly instructive to consider the decision of the Supreme Court of California in Dillon v. Legg (1968) 29 ALR 3d 1316. Before this decision the law of California, and evidently of other States of the Union, had adhered to the English position before Hambrook v. Stokes Bros, (u.s.), that damages for nervous shock could only be recovered if resulting from the plaintiff's apprehension of danger to himself and, indeed, this view had been affirmed by the Californian Supreme Court only five years earlier. The majority in Dillon v. Legg (u.s.) adopted a contrary view in refusing a motion to dismiss a mother's claim for damages for emotional trauma caused by seeing her infant daughter killed by a car as she crossed the road.

In delivering the majority judgment of the court, Tobriner J. said, at pp. 1326-7:

" Since the chief element in determining whether defendant owes a " duty or an obligation to plaintiff is the foreseeability of the risk, that " factor will be of prime concern in every case. Because it is inherently " intertwined with foreseeability such duty or obligation must " necessarily be adjudicated only upon a case-by-case basis. We cannot " now predetermine defendant's obligation in every situation by a fixed " category; no immutable rule can establish the extent of that obligation " for every circumstance of the future. We can, however, define " guidelines which will aid in the resolution of such an issue as the " instant one.

" We note, first, that we deal here with a case in which plaintiff " suffered a shock which resulted in physical injury and we confine our " ruling to that case. In determining, in such a case, whether defendant " should reasonably foresee the injury to plaintiff, or, in other " terminology, whether defendant owes plaintiff a duty of due care.

" the courts will take into account such factors as the following:(1) " Whether plaintiff was located near the scene of the accident as " contrasted with one who was a distance away from it.

(2) Whether " the shock resulted from a direct emotional impact upon plaintiff from " the sensory and contemporaneous observance of the accident, as " contrasted with learning of the accident from others after its " occurrence.

(3) Whether plaintiff and the victim were closely " related, as contrasted with an absence of any relationship or the " presence of only a distant relationship.

" The evaluation of these factors will indicate the degree of the " defendant's foreseeability: obviously defendant is more likely to " foresee that a mother who observes an accident affecting her child " will suffer harm than to foretell .that a stranger witness will do so. " Similarly, the degree of foreseeability of the third person's injury is " far greater in the case of his contemporaneous observance of the " accident than that in which he subsequently learns of it. The " defendant is more likely to foresee that shock to the nearby, witnessing " mother will cause physical harm than to anticipate that someone " distant from the accident will suffer more than a temporary emotional " reaction. All these elements, of course, shade into each other; the " fixing of obligation, intimately tied into the facts depends upon each " case.

" In light of these factors the court will determine whether the " accident and harm was reasonably foreseeable. Such reasonable " foreseeability does not turn on whether the particular plaintiff as an " individual would have in actuality foreseen the exact accident and " loss; it contemplates that courts, on a case-to-case basis, analyzing all " the circumstances, will decide what the ordinary man under such " circumstances should reasonably have foreseen. The courts thus mark " out the areas of liability, excluding the remote and unexpected.

" In the instant case, the presence of all the above factors indicates " that plaintiff has alleged a sufficient prima facie case. Surely the " negligent driver who causes the death of a young child may reasonably " expect that the mother will not be far distant and will upon witnessing " the accident suffer emotional trauma. As Dean Prosser has stated:

" ' when a child is endangered, it is not beyond contemplation that its "

' mother will be somewhere in the vicinity, and will suffer serious " ' shock.' (Prosser, The Law of Torts, supra, at p.353. See also " 2 Harper & James, The Law of Torts, supra, at p. 1039.)

" We are not now called upon to decide whether, in the absence or " reduced weight of some of the above factors, we would conclude " that the accident and injury were not reasonably foreseeable and that " therefore defendant owed no duty of due care to plaintiff. In future " cases the courts will draw lines of demarcation upon facts more subtle " than the compelling one alleged in the complaint before us."

The leading minority judgment castigated the majority for embarking on a first excursion into the " fantastic realm of infinite liability ", a colourful variant of the familiar " floodgates " argument.

In approaching the question whether the law should, as a matter of policy, define the criterion of liability in negligence for causing psychiatric illness by reference to some test other than that of reasonable foreseeability it is well to remember that we are concerned only with the question of liability of a defendant who is, ex hypothesi, guilty of fault in causing the death, injury or danger which has in turn triggered the psychiatric illness. A policy which is to be relied on to narrow the scope of the negligent tortfeasor's duty must be justified by cogent and readily intelligible considerations, and must be capable of defining the appropriate limits of liability by reference to factors which are not purely arbitrary. A number of policy considerations which have been suggested as satisfying these requirements appear to me, with respect, to be wholly insufficient. I can see no ground whatever for

suggesting that to make the defendant liable for reasonably foreseeable psychiatric illness caused by his negligence, would be to impose a crushing burden on him out of proportion to his moral responsibility. However liberally the criterion of reasonable foreseeability is interpreted, both the number of successful claims in this field and the quantum of damages they will attract are likely to be moderate. I cannot accept as relevant the well-known phenomenon that litigation may delay recovery from a psychiatric illness. If this were a valid policy consideration, it would lead to the conclusion that psychiatric illness should be excluded altogether from the heads of damage which the law will recognise. It cannot justify limiting the cases in which damages will be awarded for psychiatric illness by reference to the circumstances of its causation. To attempt to draw a line at the furthest point which any of the decided cases happen to have reached, and to say that it is for the legislature, not the courts, to extend the limits of liability any further, would be, to my mind, an unwarranted abdication of the court's function of developing and adapting principles of the common law to changing conditions, in a particular corner of the common law which exemplifies, par excellence, the important and indeed necessary part which that function has to play. In the end I believe that the policy question depends on weighing against each other two conflicting considerations. On the one hand, if the criterion of liability is to be reasonable foreseeability simpliciter, this must, precisely because questions of causation in psychiatric medicine give rise to difficulty and uncertainty, introduce an element of uncertainty into the law and open the way to a number of arguable claims which a more precisely fixed criterion of liability would exclude. I accept that the element of uncertainty is an important factor. I believe that the " floodgates" argument, however, is, as it always has been, greatly exaggerated. On the other hand, it seems to me inescapable that any attempt to define the limit of liability by requiring, in addition to reasonable foreseeability, that the plaintiff claiming damages for psychiatric illness should have witnessed the relevant accident, should have been present at or near the place where it happened, should have come upon its aftermath and thus have some direct perception of it, as opposed to merely learning of it after the event, should be related in some particular degree to the accident victim—to draw a line by reference to any of these criteria must impose a largely arbitrary limit of liability. I accept, of course, the importance of the factors indicated in the guidelines suggested by Tobriner J. in Dillon v. Legg (u.s.) as bearing upon the degree of foreseeability of the plaintiff's psychiatric illness. But let me give two examples to illustrate what injustice would be wrought by any such hard and fast lines of policy as have been suggested. First, consider the plaintiff who learned after the event of the relevant accident. Take the case of a mother who knows that her husband and children are staying in a certain hotel. She reads in her morning newspaper that it has been the scene of a disastrous fire. She sees in the paper a photograph of unidentifiable victims trapped on the top floor waving for help from the windows. She learns shortly afterwards that all her family have perished. She suffers an acute psychiatric illness. That her illness in these circumstances was a reasonably foreseeable consequence of the events resulting from the fire is undeniable. Yet. is the law to deny her damages as against a defendant whose negligence was responsible for the fire simply on the ground that an important link in the chain of causation of her psychiatric illness was supplied by her imagination of the agonies of mind and body in which her family died, rather than by direct perception of the event? Secondly, consider the plaintiff who is unrelated to the victims of the relevant accident. If rigidly applied, an exclusion of liability to him would have defeated the plaintiff's claim in Chadwick v. British Railways Board (u.s.). The Court of Appeal treated that case as in a special category because Mr. Chadwick was a rescuer. Now, the special duty owed to a rescuer who voluntarily places himself in physical danger to save others is well understood, and is illustrated by Haynes v. Harwood [1935] 1 K.B. 146, the case of the constable injured in stopping a runaway horse in a crowded street. But in relation to the psychiatric consequences of witnessing such terrible carnage as must have resulted from

the Lewisham train disaster, I would find it difficult to distinguish in principle the position of a rescuer, like Mr. Chadwick, from a mere spectator as, for example, an uninjured or only slightly injured passenger in the train, who took no part in the rescue operations but was present at the scene after the accident for some time, perforce observing the rescue operations while he waited for transport to take him home.

My Lords,

I have no doubt that this is an area of the law of negligence where we should resist the temptation to try yet once more to freeze the law in a rigid posture which would deny justice to some who, in the application of the classic principles of negligence derived from Donoghue v. Stevenson

[1932] AC 562

, ought to succeed, in the interests of certainty, where the very subject-matter is uncertain and continuously developing, or in the interests of saving defendants and their insurers from the burden of having sometimes to resist doubtful claims. I find myself in complete agreement with Tobriner J. that the defendant's duty must depend on reasonable foreseeability and " must necessarily be adjudicated only upon a case-by-case " basis. We cannot now pre-determine defendant's obligation in every " situation by a fixed category; no immutable rule can establish the extent " of that obligation for every circumstance of the future". To put the matter in another way, if asked where the thing is to stop, I should answer, in an adaptation of the language of Lord Wright and Stephenson L.J., " where in the particular case the good sense of the judge, enlightened by " progressive awareness of mental illness, decides."

1 regret that my noble and learned friend, Lord Edmund-Davies, who criticises my conclusion that in this area of the law there are no policy considerations sufficient to justify limiting the liability of negligent tortfeasors by reference to some narrower criterion than that of reasonable foreseeability. stops short of indicating his view as to where the limit of liability should be drawn or as to the nature of the policy considerations (other than the " floodgates " argument, which I understand he rejects) which he would invoke to justify such a limit.

My Lords,

1 would accordingly allow the appeal.

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