"Howsoever that may be, whether the exemption for shock be based on want of duty or on remoteness, there can be no doubt since Bourhill v. Young[1943] AC 92 that the test of liability for shock is foreseeability of injury by shock."
"In what way does one test whether a particular harm is of the genus that was foreseeable? We have at least one 'fixed and definite line.' Liability for nervous shock depends on foreseeability of nervous shock. That, not some other form of harm, must have been a foreseeable result of the conduct complained of. The particular pathological condition which the shock produced need not have been foreseeable. It is enough that it is a 'recognisable psychiatric illness.'"
"The limitations upon the ordinary test of reasonable foreseeability in cases of mere psychiatric injury are conveniently stated in negative form. Two of them have already been mentioned. The first of those is that reasonable foreseeability of risk of personal injury generally will not suffice to give rise to a duty of care to avoid psychiatric injury unassociated with conventional physical injury: a duty of care will not arise unless risk of injury in that particular form was reasonably foreseeable."
"It has now been established by The Wagon Mound (No. 1)[1961] AC 388 and by Hughes v. Lord Advocate[1963] AC 837 that in such cases damages can only be recovered if the injury complained of was not only caused by the alleged negligence but was also an injury of a class or character foreseeable as a possible result of it."
"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 is now being considered is the question of liability, and this, I think, in a question whether there is a duty owing to members of the public who come within the ambit of the act, must generally depend on a normal standard of susceptibility."
"... 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."
"Their Lordships conclude this part of the case with some general observations. They have been concerned primarily to displace the proposition that unforeseeability is irrelevant if damage is 'direct'. In doing so they have inevitably insisted that the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen. This accords with the general view thus stated by Lord Atkin in Donoghue v. Stevenson [1932] A.C. 562, 580:
'The liability for negligence, whether you style it such or treat it as in other systems as a "species of-culpa," is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay.'
"In considering whether a person owes to another a duty a breach of which will render him liable to that other in damages for negligence, it is material to consider what the defendant ought to have contemplated as a reasonable man. This consideration may play a double role. It is relevant in cases of admitted negligence (where the duty and breach are admitted) to the question of remoteness of damage, i.e., to the question of compensation not to culpability, but it is also relevant in testing the existence of a duty as the foundation of the alleged negligence, i.e.. to the question of culpability not to compensation."
"Howsoever that may be, whether the exemption for shock be based on want of duty or on remoteness, there can be no doubt since Bourhill v. Young[1943] AC 92 that the test of liability for shock is foreseeability of injury by shock."
"We have come back to the plain common sense stated by Lord Russell of Killowen in Bourhill v. Young[1943] AC 92 , 101. As Denning LJ. said in King v. Phillips [1953] 1 Q.B. 429, 441 'there can be no doubt since Bourhill v. Young that the test of liability for shock is foreseeability of injury by shock. ' Their Lordships substitute the word Tire' for 'shock' and endorse this statement of the law."
"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 of omission relied on as negligent to bring the plaintiff within the scope of those to whom the defendant owed a duty of care."
"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."
"This passage is noteworthy: first, as an anticipation of the present- day rule that a cause of action for nervous shock depends on foreseeability of harm 'of some such nature' as that which actually occurred. Secondly, it emphasises that nervous shock cases are not a new tort: they turn simply on the circumstances in which damages are recoverable for a particular kind of harm caused by a tort."
"In what way does one test whether a particular harm is of the genus that was foreseeable? We have at least one 'fixed and definite line'. Liability for nervous shock depends on foreseeability of nervous shock. That, not some other form of harm, must have been a foreseeable result of the conduct complained of. The particular pathological condition which the shock produced need not have been foreseeable. It is enough that it is a 'recognizable psychiatric illness'."
"One must ask also whether or not the finding that 'shock and some form of mental illness or neurosis' was foreseeable satisfies the requirements of the principle asserted in The Wagon Mound (No.l)[1961] AC 388 , 426 that 'the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen'. In the application of this principle there may be difficulty in some cases in determining whether damage for which an action is brought and damage which was foreseeable are the same 'kind' of damage. But in the present case there are two reasons which appear to me to justify the conclusion reached by Skerman J. The first is that it is not a condition of liability that either the precise character of the damage or the extent of it should have been foreseen. It is necessary only that the damage suffered should not be different in kind from that which was foreseeable: see Hughes v. Lord Advocate [19631] A.C. 837, 845 and Chapman v. Hearse (1961) 106 C.L.R. 112, 121. The second reason is that in The Wagon Mound (No 1) [1961] A.C.
"In cases of negligence occasioning nervous shock, as in cases of negligence occasioning physical injury the 'essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen' (The Wagon Mound (No 1)[1961] AC 388 , 426). The distinction in principle between the two classes of cases, however, depends on the kind of damage that the reasonable man should foresee. Where a plaintiff is entitled to damages for negligence occasioning nervous shock, some recognizable psychiatric illness induced by shock must be reasonably foreseeable."
"The limitations upon the ordinary test of reasonable foreseeability in cases of mere psychiatric injury are conveniently stated in negative form. Two of them have already been mentioned. The first of those is that reasonably foreseeability of risk of personal injury generally will not suffice to give rise to a duty of care to avoid psychiatric injury unassociated with conventional physical injury: a duty of care will not arise unless risk of injury in that particular form was reasonably foreseeable."
"This foreseeable risk may be of two types. The first class involves actual physical impact. A second type of risk applies to the instant situation. 'In other cases, however, plaintiff is outside the zone of physical risk '(or there is no risk of physical impact at all), but bodily
"Cases in which damages are claimed for directly inflicted injuries of this nature may present greater difficulties of proof but they are not, in their essential elements, any different from cases where the damages claimed arise from direct physical injury and they present no very difficult problems of analysis where the plaintiff has himself been directly involved in the accident from which the injury is said to arise. In such a case he can be properly said to be the primary victim of the defendant's negligence and the fact that the injury which he sustains is inflicted through the medium of an assault on the nerves or senses does not serve to differentiate the case, except possibly in the degree of evidentiary difficulty, from a case of direct physical injury."
"... that is to say, those cases in which the injured plaintiff was involved, either mediately or immediately, as a participant, and those in which the plaintiff was no more than the passive and unwilling witness of injury caused to others. In the context of the instant appeals the cases of the former type are not particularly helpful, except to the extent that they yield a number of illuminating dicta, for they illustrate only a directness of relationship (and thus a duty) which is almost self- evident from a mere recital of the facts."
"One question is whether the defendant's act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind. I think that it was."
"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."
"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 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."
"Moreover, it is generally recognized that what will induce a psychiatric illness in one person may leave another unaffected. Some people are naturally more robust - or less sensitive - than others. Yet reasonable foreseeability is an objective criterion of duty, and a general standard of susceptibility must be postulated. At least to that extent it is possible to confine consideration of the question whether it is reasonably foreseeable that the perception of a particular phenomenon might induce in the plaintiff a psychiatric illness. Some general guidelines apply. The first guideline is this: the 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.' (per Lord Wright in Bourhill v. Young [1943] A.C. at p. 110)"
"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."
"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."
"Then, here comes the all-important question. Given the fact of the plaintiffs 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'?"
"... the suggestion that because the plaintiff could have had damages if he had suffered a different kind of harm he can now have damages for the harm he actually suffered calls to mind the 'imaginary necktie' and Professor Goodhart's vigorous comments."
"Broadly they divide into two categories, that is to say, those cases in which the injured plaintiff was involved, either mediately, or immediately, as a participant, and those in which the plaintiff was no more than the passive and unwilling witness of injury caused to others."
"It is customary to classify cases in which damages are claimed for injury occasioned in this way under a single generic label as cases of 'liability for nervous shock'. This may be convenient but in fact the label is misleading if and to the extent that it is assumed to lead to a conclusion that they have more in common than the fact of similarity of the medium through which the injury is sustained - that of an assault upon the nervous system of the plaintiff through witnessing or taking part in an event - and that they will, on account of this factor, provide a single common test for the circumstances which give rise to a duty of care."
"I find on the balance of probabilities that there was a collision of moderate severity. It must have been a frightening experience for Mr. Page and I have no doubt that he did suffer nervous shock in the broad sense of the word."
"The defendant must take the wife as he finds her and there is no difference in principle between an egg-shell skull and an egg-shell personality: Love v. Port of London Authority [1959] 2 Lloyd's Rep. 541. Exacerbation of her nervous depression was a readily foreseeable consequence of injuring her ... I do not derive any assistance from the 'nervous shock' cases; they are concerned with the effect of the sudden traumatic effect of witnessing or hearing of an accident and their somewhat special rules do not seem to me to be applicable to the present circumstances."
"Once it is established that C.F.S. exists and that a relapse or recrudescence can be triggered by the trauma of an accident and that nervous shock was suffered by the plaintiff who is actually involved
"If a plaintiff establishes that he has suffered some physical injury, he may advance a claim in respect of a recognised psychiatric illness which has resulted from that physical injury. If a plaintiff has suffered no physical injury, and his only injuries are a recognised form of psychiatric illness, he may succeed if the court decides that psychiatric illness was foreseeable in the case of a person of reasonable fortitude. There is no difference in this respect, it was submitted, between a bystander and a person directly involved in an event, except that the consequences are more likely to be foreseeable in the case of the latter than in the case of the former."
"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."
"The crude view that the law should take cognisance only of physical injury resulting from actual impact has been discarded, and it is now well recognised that an action will lie for injury by shock sustained through the medium of the eye or ear without direct contact. The distinction between mental shock and bodily injury was never a scientific one, for mental shock is presumably in all cases the result of, or at least accompanied by, some physical disturbance in the sufferer's system. And a mental shock may have consequences more serious than those resulting from physical impact."
"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. Likewise, 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."
"The shock, where it operates through the mind, must be a shock which arises from a reasonable fear of immediate personal injury to oneself."
"Upon the authorities as they stand, the defendant ought to have anticipated that if his lorry ran away down this narrow street, it might terrify some woman to such an extent, through fear of some immediate bodily injury to herself, that she would receive such a mental shock as would injure her health."
"In my opinion it is not necessary to treat this cause of action as based upon a duty to take reasonable care to avoid administering a shock to wayfarers. The cause of action, as I have said, appears to be created by breach of the ordinary duty to take reasonable care to avoid inflicting personal injuries, followed by damage, even though the type of damage may be unexpected - namely, shock. The questions appears to be as to the extent of the duty, and not as to remoteness of damage."
"It may be, however, that there is not any practical difference between the two ways of putting it; for the degree of care to be exercised by the owner of the vehicle would still in practice be measured by the standard of care necessary to avoid the ordinary form of personal injuries."
"It is no doubt more difficult to prove that physical injury results from nervous shock than from direct impact. But when once this difficulty of proof is overcome, I cannot see why a negligence which so nearly causes direct impact as to cause physical injury by nervous shock is a more remote or less natural cause of damage than a negligence causing actual physical impact. Or, to put it more precisely, as a matter of duty which is owed to the plaintiff, and the neglect of which has caused damage, the duty of the defendant so to control his vehicle as to avoid causing physical injury to those on or near the highway, including the plaintiff, can hardly be limited to actual physical impact on the plaintiff (though this is in fact the result of the American cases), but must logically include such an immediate threat of impact on the plaintiff as to produce physical injury to him, or her. through the nervous system. There seems to me to be no magic in actual personal contact. A threatened contact producing physical results should be an equivalent."
"I find it difficult to draw a distinction between damages from physical injury and damage from shock; prima facie, one would think that, if a driver should reasonably have foreseen either, and damage resulted
"I cannot see why the duty of a driver should differ according to the nature of the injury. ... If he drives negligently with the result that a bystander is injured, then his breach of duty is the same, no matter whether the injury is a wound or is emotional shock. Only the damage is different."
"There is one wrong only, the wrong of negligence. I know that damage to person and damage to property are for historical reasons regarded as different torts; but that does not apply to physical injury and emotional injury."
"Howsoever that may be, whether the exemption for shock be based on want of duty or on remoteness, there can be no doubts that since Bourhill v. Young[1943] AC 92 that the test for liability for shock is foreseeability of injury by shock."
"It is not here necessary to consider whether or not there are satisfactory reasons for treating injury by shock as different in kind from other forms of personal injury. If all personal injuries whether "mental" or "physical" were to be treated as being of the same kind then it would be evident in the present case that damage of a foreseeable kind was suffered. But for the purposes of the present case the statement in The Wagon Mound (No. 7)[1961] AC 388 , 426 that the test of liability for shock is foreseeability of injury by shock may be accepted."
"One finds in the judgments [in Bourhill v. Young] an implicit (explicit in the case of Lord Porter, at p. 119) acceptance of a refinement of the ordinary test of foreseeability of injury which has subsequently received general acceptance; in the case of mere psychiatric injury, the requirement of reasonable foreseeability will not be satisfied unless injury in that particular form, as distinct from personal injury generally (cf. per Atkin L.J. Hambrook v. Stokes at pp. 157-8 and per Singleton L.J. King v. Phillips at p. 437), was reasonably foreseeable ..."
"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."
"The limitations upon the ordinary test of reasonable foreseeability in cases of mere psychiatric injury are conveniently stated in negative form. Two of them have already been mentioned. The first of those is that reasonable foreseeability of personal injury generally will not suffice to give rise to a duty of care to avoid psychiatric injury unassociated with conventional physical injury: a duty of care will not arise unless risk of injury in that particular form was reasonably foreseeable."
"Their Lordships substitute the word 'fire' for 'shock' and endorse this statement of the law."
". . .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."