3PLR – BOURHILL V. YOUNG
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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[BASED ON POLICY, PRACTICE AND PUBLISHING LAW REPORT, 3PLR, PROTOCOLS]
BOURHILL
V.
YOUNG
HOUSE OF LORDS
H.L No. 3.
5 AUGUST 1942
3PLR/1942/1 (HL)
OTHER CITATIONS
[1943] A.C. 92;
[1942] 2 All E.R. 396
BEFORE THEIR LORDSHIPS:
LORD THANKERTON
LORD RUSSELL OF KILLOWEN
LORD MACMILLAN
LORD WRIGHT
LORD PORTER
BETWEEN
MRS EUPHEMIA HAY OR BOURHILL, Pursuer – (Appellant)
JAMES YOUNG (JOHN YOUNG’S EXECUTOR-DATIVE), Defender – (Respondent).
REPRESENTATION
Blades, K.C.–Guthrie
Duffes, K.C.–G. S. Reid.
OTHER ISSUES
TORT AND PERSONAL INJURY: Reparation–Negligence–Remoteness of damage – Collision between motor vehicles – Nervous shock caused by noise of collision – Person affected outside area of potential danger – Reasonable fear of personal bodily injury
TRANSPORT AND LOGISTICS LAW – MOTOR VEHICLE AND TRAFFIC: – Fatal road traffic accident – Motor cycle and motor car accident – Deceased driver adjudged at fault – Liability of deceased driver to third party not involved in the accident who nonetheless suffer nervous shock from exposure as eye-witness to the accident – Relevant considerations
HEALTHCARE AND LAW: – Pregnant women – Exposure to traumatic experiences – Nervous shock/Injury indirectly suffered from exposure to a fatal highway accident – Loss of child as still-birth consequently – Whether a health-related damage deemed recoverable at law
CHILDREN AND WOMEN LAW:- Women and Healthcare/Justice Administration – Safety of unborn children – Nervous shock caused to a pregnant wife who was eye-witness to fatal road accident – Action brought to recover from estate of driver-at-fault for alleged injury and stillbirth of child – How treated
SUMMARY OF FACTS AND JUDGMENT
A motor cyclist overtook and passed on its near side a tramway car which was halted at a stopping place. Owing to his negligence he ran into a motor car which, coming from the opposite direction, had crossed the road in front of the car and was about to enter a side road distant some 45 to 50 feet from the stopping place. Fright, caused by the noise of the collision, resulted in nervous shock to a fishwife who, standing in the road, was, at the time of the collision, getting her creel on to her back from the off side of the front platform of the tramway car, out of sight of the collision.
In an action of damages at her instance against the executor of the cyclist, who had been killed, held (aff. judgment of the Second Division) that, having regard to the pursuer’s position on the road, the cyclist’s duty towards persons on the road to drive carefully did not extend to her, in respect that he could not reasonably have anticipated that she could be injured in any way by his carelessness, and, accordingly, that, in a question with her, he had not been guilty of negligence, and that his estate was not liable in damages for the injury which she had sustained.
Opinions reserved, with reference to the cases of Dulieu v. White & Sons, [1901] 2 K. B. 669 and Hambrook v. Stokes Brothers, [1925] 1 K. B. 141, upon the question whether injury through mental shock is actionable only when the shock arises from a reasonable fear of immediate personal bodily injury to the person experiencing the shock.
(IN the Court of Session, 28th March 1941–1941 S. C. 395)
Mrs Euphemia Hay or Bourhill brought an action against the executor-dative of the late John Young in which she claimed £1250 in respect of loss, injury and damage sustained by her through the negligent driving of a motor cycle by the late John Young.
The facts established at a proof before the Lord Ordinary were briefly as follows:–
On 11th October 1938 John Young, riding a motor bicycle, overtook and passed on its near side a tramway car which was halted at a stopping place upon a main road. A motor car, coming along the main road from the opposite direction, turned to its right and crossed in front of the tramway car in order to enter a side road which joined the main road some 40 or 50 feet from the stopping place and from the front of the stationary tramway car. The motor cyclist was driving too fast and without due care, and ran into the motor car just as it was about to enter the side road. The collision was wholly due to his negligence and resulted in his death. The pursuer, who was a fishwife, had been a passenger on the tramway car and had got down and gone round the front of the tramway car to the off side of the driver’s platform to get her creel, which she had left there. At the moment of the collision she was standing on the road with her back to the tramway car getting the creel on to her back. She did not see, and could not have seen, the collision, but she proved that the noise of the collision had produced in her a fright or terror which resulted in nervous shock, but she explained in her record “that the pursuer’s terror did not involve any element of reasonable fear of immediate bodily injury to herself.” Averments that injury to her back and the still-birth of a child were due to what happened were not, in the opinion of the Lord Ordinary, established.
On 3rd December 1940, the Lord Ordinary (Robertson) assoilzied the defender, and on 28th March 1941 the Second Division adhered to his interlocutor.
The pursuer appealed to the House of Lords, and the appeal was heard on 11th, 12th, 14th and 15th May 1942.
The defender did not dispute that the pursuer had sustained a nervous shock which had affected her business, and the House decided that the argument on liability should be completed before any question as to the extent of the pursuer’s injuries was considered.
Argued for the appellant;–It was admitted by the respondent that the motor cyclist had caused the collision by his negligence; that the pursuer had suffered injury in consequence of the collision; and that the injury which she had sustained, viz., nervous shock, was of a class for which damages might be recovered just as for actual physical injury caused by an impact. In Dulieu v. White & Sons,1 Kennedy, J., said that to entitle to damages the nervous shock must result from “a reasonable fear of immediate personal injury to oneself.” Logically there was no warrant for this restriction, which was directly contrary to the decisions and the views expressed in Hambrook v. Stokes Brothers2 and Owens v. Liverpool Corporation,3 which were cases directly in favour of the appellant. “The law does not ignore these reactions of the mind in tracing conduct to its consequences”4 The appellant’s contention was that a person who drove a vehicle recklessly on the street was liable for all the consequences of his recklessness. The appellant was a person upon the street: the motor cyclist owed a duty to all such persons provided that they could be affected by his conduct: admittedly the pursuer had been injuriously affected, and, to quote Atkin, L.J., in Hambrook v. Stokes Brothers,5 “once a breach of duty to the plaintiff is established, one has no longer to consider whether the consequences could reasonably be anticipated by the wrongdoer.” This was the decision also in In re Polemis and Furness, Withy & Co.,6 and it was supported by the undernoted English cases and an Irish case.1 The undernoted Scots cases were also in the appellant’s favour.2 Ross v. Glasgow Corporation3 was distinguishable on its facts. In it there was no reasonable ground for apprehension on the part of the pursuer; no collision and nothing untoward had occurred. In a claim in respect of shock due to an accident it was sufficient if the accident was near enough to affect a normal person. In considering liability for the effects of an act of negligence, not only the direct effects but all effects which could reasonably be attributed to the negligence must be taken into account. It should be noted that the Scottish case of A. v. B.’s Trustees,4 an authority directly in the appellant’s favour, had never been challenged in the Inner House. In Harris v. Mobbs5 and in Wilkins v. Day,6 obstructions negligently placed on a highway and producing fright in horses had been held to warrant a claim of damages at the instance of persons injured as a result of the fright. In these cases, no question was asked as to whether the fright was reasonable. Similarly in the present case there was no room for such a question. Put briefly, the injury to the appellant was the direct result of the negligence of the motor cyclist, for which his representative was liable in damages.
Argued for the respondent;–There could, in Scots law, be no negligence where there was no duty. In the present case the motor cyclist owed no duty to the appellant in respect that she was outwith the sphere of his operations. She did not see the accident; she was in no danger; and she only heard a noise. There was no authority either in Scotland or in England for the proposition that there may be liability in damages for making a loud noise. A person was liable only for the natural and probable results of his negligence, such as he, if an ordinarily careful man, might reasonably have foreseen. Whatever might be the law of England, in Scotland nervous shock was a ground for an action of damages only where it arose from a reasonable fear of personal bodily injury. Mere fright, without such a fear, was not a basis for an action. In Scotland, the view of Kennedy, J., in Dulieu v. White & Sons7 was the view adopted. As to Hambrook v. Stokes Brothers,8 the present case was distinguishable on the facts, but, in any event, in Currie v. Wardrop9 doubts were expressed whether that case was in accordance with the law of Scotland. Reference was also made to the undernoted authorities.1
At delivering judgment on 5th August 1942,–
MAIN JUDGMENT
LORD THANKERTON.–
The appellant is the pursuer in an action of reparation, in which she claims damages from the respondent as executor-dative of the late John Young, in respect of injuries alleged to have been sustained by her owing to the fault of John Young, on the occasion of a collision between a motor-cycle which the latter was riding and a motor-car on 11th October 1938, which resulted in the death of John Young, to whom I will hereafter refer as the cyclist. After a proof, Lord Robertson assoilzied the respondent on the ground that the cyclist had not been guilty of any breach of duty to the appellant, and this decision was affirmed by the Second Division, Lord Justice-Clerk Aitchison dissenting.
The facts as to the occurrence of the collision and its relation to the appellant are comparatively simple. The appellant, who is a fishwife, was a passenger on a tramway-car which was proceeding in the direction of Colinton along the Colinton Road–which may be taken as a south-westerly direction–and which stopped at a stopping-place at a short distance before Colinton Road is joined at right angles by Glenlockhart Road from the south-east, that is, on the near side of the tramway-car. The appellant alighted, and went round the near side and front of the tramway-car in order to lift her fish-basket from the off-side of the driver’s platform. Meantime the cyclist, travelling in the same direction as the tramway-car, had come up and, as the appellant was getting her basket, he passed on the near side of the tramway-car and, when mostly across the opening of Glenlockhart Road, his cycle collided with a motor-car, which had been travelling in the opposite direction, but had turned across the path of the cycle in order to enter Glenlockhart Road. The cyclist, who was held by the Lord Ordinary to have been travelling at an excessive speed, was thrown on to the street and sustained injuries from which he died. There is no doubt that the appellant saw and heard nothing of the cyclist until the sound of the noise created by the impact of the two vehicles reached her senses. At that moment she had her back to the driver’s platform, and the driver was assisting to get the basket on to her back and the broad leather strap on to her forehead. It may be taken that the distance between the appellant and the point of impact was between 45 and 50 feet. After the cyclist’s body had been removed, the appellant approached and saw the blood left on the roadway.
The injuries alleged to have been sustained by the appellant are set out in condescendence 4 of the record as follows: “Condescendence 4. As an immediate result of the violent collision and the extreme shock of the occurrence in the circumstances explained, the pursuer wrenched and injured her back and was thrown into a state of terror and sustained a very severe shock to her nervous system. Explained that the pursuer’s terror did not involve any element of reasonable fear of immediate bodily injury to herself. The pursuer was about eight months pregnant at the time, and gave birth to a child on 18th November 1938, which was still-born owing to the injuries sustained by the pursuer.” The words italicised were inserted by amendment in the Inner House, after the Lord Ordinary had dismissed the action as irrelevant, and, as the result of the reclaiming motion, the case was sent to proof before answer.
After the proof the Lord Ordinary expressed his view that, while the appellant had sustained a nervous shock as the result of hearing the noise of the collision, which disabled her from carrying on her business for some time, she had failed to prove either that the death of the child in utero or the injury to her back resulted from the shock or her immediate reaction to the fright of the event. The respondent does not dispute the finding of the Lord Ordinary that the appellant had sustained a nervous shock, which affected her business, and this finding is admittedly sufficient to raise the question of liability. At the hearing of the appeal your Lordships decided to have the argument on liability completed on both sides before considering the other injuries alleged to have resulted. While both the Lord Ordinary and Lord Jamieson refer to an apparent inconsistency between the evidence given by the appellant at the trial and the averment added by amendment that the appellant’s terror did not involve any element of reasonable fear of immediate bodily injury to herself, the argument of the appellant before this House was conducted on the footing that the added averment was correct. Indeed, the appellant’s argument was that the shock ensued without any functioning of the brain at all. I am content to consider the question of liability on this footing.
It is clear that, in the law of Scotland, the present action can only be based on negligence, and “it is necessary for the pursuer in such an action to show there was a duty owed to him by the defenders, because a man cannot be charged with negligence if he has no obligation to exercise diligence”: per Lord Kinnear in Kemp & Dougall v. Darngavil Coal Co.1 I may further adopt the words of Lord Johnston in the same case (at p. 1327), “the obligee in such duty must be a person or of a class definitely ascertained, and so related by the circumstances to the obligor that the obligor is bound, in the exercise of ordinary sense, to regard his interest and his safety.
Only the relation must not be too remote, for remoteness must be held as a general limitation of the doctrine.” I doubt whether, in view of the infinite variation of circumstances which may exist, it is possible or profitable to lay down any hard and fast principle, beyond the test of remoteness as applied to the particular case. The Lord Justice-Clerk, who dissented, accepted the test of proximity, although it is a little difficult to follow how he made his conclusion satisfy this test. In the observations that I have to make, I shall confine myself to the question of the range of duty of a motor-cyclist on the public road towards other passengers on the road. Clearly this duty is to drive the cycle with such reasonable care as will avoid the risk of injury to such persons as he can reasonably foresee might be injured by failure to exercise such reasonable care. It is now settled that such injury includes injury by shock, although no direct physical impact or lesion occurs. If, then, the test of proximity or remoteness is to be applied, I am of opinion that such a test involves that the injury must be within that which the cyclist ought to have reasonably contemplated as the area of potential danger which would arise as the result of his negligence, and the question in the present case is whether the appellant was within that area.
I am clearly of opinion that she was not, for the following reasons. Although, admittedly, going at an excessive speed, the cyclist had his machine under his control, and this at once distinguishes this case from such cases as those where the motor has been left standing unoccupied and insufficiently braked, and has started off on an uncontrolled career. At the time of the collision with the motor-car he was well past the tramway-car, and the appellant was not within the range of his vision, let alone that the tramway-car obstructed any view of her. The risk of the bicycle ricochetting and hitting the appellant, or of flying glass hitting her, in her position at the time, was so remote, in my opinion, that the cyclist could not reasonably be held bound to have contemplated it, and I differ from the Lord Justice-Clerk on this point, but, as already stated, the appellant’s case is not now based on any fear of such possibilities, but merely on the sound of the collision. There is no suggestion that the volume of the noise of the collision afforded any ground for argument, and I am clearly of opinion that, in this case, the shock resulting to the appellant, situated as she was, was not within the area of potential danger which the cyclist should reasonably have had in view. In my opinion, none of the cases cited presents sufficiently analogous circumstances, such as should control the decision in the present case.
The dictum of Kennedy, L.J., in Dulieu v. White & Sons,1 may well afford a useful test, in appropriate cases, of the area of potential danger, but I am not prepared to accept it as a conclusive test in all cases. That dictum has received considerable acceptance in Scottish cases. There may be circumstances in which it should not be applied, and I prefer to treat each case on its own facts as it arises, with assistance from cases in which the facts are so analogous as to afford guidance. It would not be right, however, in view of the attention paid to them in argument and in the opinions of the learned judges, not to refer to three of the English decisions. In In re Polemis and Furness, Withy & Co.1, in the Court of Appeal, where the issue only related to the question of damages, Bankes, L.J., said (at p. 571): “What a defendant ought to have anticipated as a reasonable man is material when the question is whether or not he was guilty of negligence, that is, of want of due care according to the circumstances … In the present case the arbitrators have found as a fact that the falling of the plank was due to the negligence of the defendants’ servants. The fire appears to me to have been directly caused by the falling of the plank. Under these circumstances I consider that it is immaterial that the causing of the spark by the falling of the plank could not have been ‘reasonably anticipated.'” The case is, therefore, of no assistance here, and I have no occasion to consider whether the principle so laid down as to assessment of damages correctly states the law of England and, if so, whether the law of Scotland is the same. The same is true of Hambrook v. Stokes Brothers,2 which was the case of a motor lorry left at the top of a steep and narrow street unattended, with the engine running and without being properly secured, with the consequence that the lorry started off by itself and ran violently down the incline. My noble and learned friend Lord Atkin, then Atkin, L.J., said (at p. 156): “I agree that in the present case the plaintiff must show a breach of duty to her, but this she shows by the negligence of the defendants in the care of their lorry. I am clearly of opinion that the breach of duty to her is admitted in the pleadings.” But there are certain obiter dicta on the question of duty, which might be considered too wide, and I reserve any opinion on them. The remaining case is Owens v. Liverpool Corporation,3 in which the defendants’ tramway-car collided with a hearse, damaged it and caused the coffin to be overturned, and mourners were held entitled to recover damages for mental shock, although there was no apprehension, or actual sight, of injury to a human being. While each case must depend on its own circumstances, I have difficulty in seeing that there was any relationship of duty between the parties in that case.
I am, therefore, of opinion that the appellant has failed to establish that, at the time of the collision, the cyclist owed any duty to her, and that the appeal fails. I, accordingly, move that the appeal should be dismissed, that the judgment appealed from should be affirmed, and that the appellant should pay the respondent’s costs of the appeal.
LORD RUSSELL OF KILLOWEN (read by Lord Thankerton).–
The foundation of the appellant’s claim is fault or negligence alleged against John Young, an allegation which postulates a breach by him of some duty owed by him to her. Therefore, the first essential for the appellant to establish is the existence of a duty owed to her by John Young of which he committed a breach. As between John Young and the driver of the motor-car, John Young was admittedly negligent, in that he was in breach of the duty which he owed to him of not driving, while passing the stationary tramway-car, at such a speed as would prevent him from pulling up in time to avoid a collision with any vehicle which might come across the front of the tramway-car from Colinton Road into Glenlockhart Road, but it by no means follows that John Young owed any duty to the appellant. The facts relevant to this question seem to me to be these. The appellant was not in any way physically involved in the collision. She had been a passenger in the tramway-car which had come from the direction of the city and had stopped some 15 or 16 yards short of the point of collision. She was standing in the road on the off-side of the tramway-car (which was at rest), with her back to the driver’s platform. The front part of the tramway-car was between her and the colliding vehicles. She was frightened by the noise of the collision, but she had no reasonable fear of immediate bodily injury to herself.
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. It will be sufficient in this connection to cite two passages from well known judgments. The first is from the judgment of Brett, M. R., in Heaven v. Pender1: “Whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.” The second is from the speech of Lord Atkin in Donoghue v. Stevenson2: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be–persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” A man is not liable for negligence in the abstract. The liability only arises “where there is a duty to take care and where failure in that duty has caused damage”: see per Lord Macmillan in Donoghue v. Stevenson1 (at p. 70). In my opinion, such a duty only arises towards those individuals of whom it may be reasonably anticipated that they will be affected by the act which constitutes the alleged breach.
Can it be said that John Young could reasonably have anticipated that a person, situated as was the appellant, would be affected by his proceeding towards Colinton at the speed at which he was travelling? I think not. His road was clear of pedestrians. The appellant was not within his vision, but was standing behind the solid barrier of the tramway-car. His speed in no way endangered her. In these circumstances I am unable to see how he could reasonably anticipate that, if he came into collision with a vehicle coming across the tramway-car into Glenlockhart Road, the resultant noise would cause physical injury by shock to a person standing behind the tramway-car. In my opinion, he owed no duty to the appellant, and was, therefore, not guilty of any negligence in relation to her.
The duty of the driver of a motor vehicle in a highway has often been stated in general terms which, if literally interpreted, would include persons to whom the driver would obviously owe no duty at all, as for instance, persons using the highway but who, having passed the vehicle, are well on their way in the opposite direction. I think the true view was correctly expressed by Lord Jamieson in the present case when he said (1941 S. C., at p. 429): “No doubt the duty of a driver is to use proper care not to cause injury to persons on the highway or in premises adjoining the highway, but it appears to me that his duty is limited to persons so placed that they may reasonably be expected to be injured by the omission to take such care.” The appellant was not, in my opinion, “so placed,” or (to use the language of Lord Mackay at p. 422) she has “failed to bring herself into any relationship to the cyclist which infers a duty of care in driving owed by him towards her.” On this ground the interlocutor appealed against should be affirmed, and the appeal dismissed.
We heard a lengthy argument addressed to the questions whether Hambrook v. Stokes Brothers2 was rightly decided, and, if so, whether the decision was in accordance with the law of Scotland as expounded in the numerous Scottish decisions cited to us. In the view which I have taken of the present case it is unnecessary to express a final view upon these questions. I will only say that, as at present advised, I see no reason why the laws of the two countries should differ in this respect, and I prefer the dissenting judgment of Sargant, L.J., to the decision of the majority in Hambrook v. Stokes Brothers.2 It was said by counsel for the appellant that it was impossible to affirm the interlocutor under appeal without disapproving of the decision in Hambrook v. Stokes Brothers.1 I do not agree, for the simple reason that in that case the negligence, which was the basis of the claim, was admitted, whereas in the present case we are affirming because John Young was guilty of no negligence in relation to the appellant.
LORD MACMILLAN.–
It is established that the appellant suffered in her health and in her ability to do her work by reason of the shock which she sustained when a motor-cycle ridden by the deceased John Young collided with a motor-car in her vicinity. The question for decision is whether the respondent, as representing the late John Young, can be rendered accountable at law for what the appellant has suffered.
It is no longer necessary to consider whether the infliction of what is called mental shock may constitute an actionable wrong. The crude view that the law should take cognizance only of physical injury resulting from actual impact has been discarded, and it is now well recognized that an action will lie for injury by shock sustained through the medium of the eye or the 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. But in the case of mental shock there are elements of greater subtlety than in the case of an ordinary physical injury, and these elements may give rise to debate as to the precise scope of legal liability.
Your Lordships have here to deal with a common law action founded on negligence. The appellant’s plea is that she has “sustained loss, injury and damage through the fault of the said John Young” and that she is “entitled to reparation therefor out of his estate.” She can recover damages only if she can show that in relation to her the late John Young acted negligently. To establish this she must show that he owed her a duty of care which he failed to observe, and that, as a result of this failure in duty on his part, she suffered as she did. As was said by Lord Kinnear: “A man cannot be charged with negligence if he has no obligation to exercise diligence”: Kemp & Dougall v. Darngavil Coal Co.,2 quoted by Lord Thankerton in Donoghue v. Stevenson.3 In dealing with a case of alleged negligence it is thus necessary to ascertain, first, what in the circumstances was the duty of the person alleged to be in fault, and second, to whom that duty was owed.
The late John Young was riding a motor bicycle in an Edinburgh street. What duty then was incumbent on him? It cannot be better or more succinctly put than it was by Lord Jamieson in the Second Division in the present case, when he said that “the duty of a driver is to use proper care not to cause injury to persons on the highway or in premises adjoining the highway.” Proper care connotes avoidance of excessive speed, keeping a good look-out, observing traffic rules and signals and so on. Then, to whom is the duty owed? Again I quote and accept Lord Jamieson’s words: “To persons so placed that they may reasonably be expected to be injured by the omission to take such care.” The duty to take care is the duty to avoid doing or omitting to do anything the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed.
There is no absolute standard of what is reasonable and probable. It must depend on circumstances and must always be a question of degree. In the present instance the late John Young was clearly negligent in a question with the occupants of the motor-car with which his cycle collided. He was driving at an excessive speed in a public thoroughfare and he ought to have foreseen that he might consequently collide with any vehicle which he might meet in his course, for such an occurrence may reasonably and probably be expected to ensue from driving at a high speed in a street. But can it be said that he ought further to have foreseen that his excessive speed, involving the possibility of collision with another vehicle, might cause injury by shock to the appellant? The appellant was not within his line of vision, for she was on the other side of a tramway-car which was standing between him and her when he passed, and it was not until he had proceeded some distance beyond her that he collided with the motor-car. The appellant did not see the accident, and she expressly admits that her “terror did not involve any element of reasonable fear of immediate bodily injury to herself.” She was not so placed that there was any reasonable likelihood of her being affected by the cyclist’s careless driving. In these circumstances I am of opinion with the majority of the learned judges of the Second Division that the late John Young was under no duty to the appellant to foresee that his negligence in driving at an excessive speed and consequently colliding with a motor-car might result in injury to her; for such a result could not reasonably and probably be anticipated. He was, therefore, not guilty of negligence in a question with the appellant.
That is sufficient for the disposal of the case and absolves me from considering the question whether injury through mental shock is actionable only when, in the words of Kennedy, J., the shock arises from a reasonable fear of immediate personal injury to oneself (Dulieu v. White & Sons1), which was admittedly not the case in the present instance. It also absolves me from considering whether, if the late John Young neglected any duty which he owed to the appellant–which, in my opinion, he did not–the injury of which she complains was too remote to entitle her to damages. I shall observe only that the view expressed by Kennedy, J., has in Scotland the support of a substantial body of authority, although it was not accepted by the Court of Appeal in England in Hambrook v. Stokes Brothers,1 notwithstanding a powerful dissent by Sargant, L.J. This House has not yet been called upon to pronounce on the question either as a matter of Scots law or as a matter of English law, and I reserve my opinion on it. The decision in Owens v. Liverpool Corporation,2 if it is the logical consequence of Hambrook’s case,1 shows how far-reaching is the principle involved.
On the second point it was argued that once an act is properly characterized as negligent, that is to say, as a breach of a duty of care owed to a particular person, then the party at fault is liable to that person for everything that directly follows from the negligent act, whether or not it could have been foreseen as a natural and probable result of the negligent act. For this In re Polemis and Furness, Withy & Co.3 was cited. Whether the law there laid down is consonant with the law of England it will be for this House to pronounce when the occasion arises. As at present advised, I doubt if it is the law of Scotland, and I could cite ample authority to the contrary, but, again, this is not a point which I deem it necessary to discuss now. I am, accordingly, for affirming the decision of the Second Division of the Court of Session and dismissing the appeal.
LORD WRIGHT.–
That damage by mental shock may give a cause of action is now well established and is not disputed in this case, but, as Phillimore, J., pointed out in his admirable judgment in Dulieu v. White & Sons,4 the real difficulty in questions of this kind is to decide whether there has been a wrongful act or breach of duty on the part of the defendant vis-à-vis the plaintiff. That being the prior question, if it is answered against the plaintiff the matter is concluded. I shall, therefore, consider that issue in the first place.
The appellant, according to the finding of the Lord Ordinary, suffered substantial damage, and suffered it owing to the conduct of the cyclist, but the infliction of damage on a plaintiff does not in itself give a cause of action. Damage due to the legitimate exercise of a right is not actionable, even if the actor contemplates the damage. It is damnum absque injuria. The damage must be attributable to the breach by the defendant of some duty owing to the plaintiff. Where there is no immediate physical action by the defendant on the plaintiff, but the action operates at a distance, or is not direct, or is what is called nervous shock, difficulties arise in ascertaining if there has been a breach of duty. Some cases are comparatively simple. Thus, in Smith v. London and South Western Railway Co.1, Blackburn, J., makes some observations, obvious enough but not to be forgotten: “If the negligence were once established it would be no answer that it did much more damage than was expected. If a man fires a gun across a road where he may reasonably anticipate that persons will be passing and hits someone, he is guilty of negligence and liable for the injury he has caused; but if he fires in his own wood, where he cannot reasonably anticipate that anyone will be, he is not liable to anyone whom he shoots, which shows that what a person may reasonably anticipate is important in considering whether he has been negligent.” Much to the same effect Scrutton, L.J., in the Polemis case 2 said: “To determine whether an act is negligent, it is relevant to determine whether any reasonable person would foresee that the act would cause damage; if he would not the act is not negligent … Once the act is negligent the fact that its exact operation was not foreseen is immaterial.” These simple propositions are as much a part of the law of Scotland as of England. It would be, I repeat, a grievous defect if in a branch of law, of modern development like that of negligence, and one affecting the ordinary life of the people, there were a divergence in principle between the two laws, but, having regard to the views on this point expressed by Lord Mackay and Lord Jamieson, I take it that they accept the test. Lord Jamieson quotes the well-known aphorism of Lord Atkin in Donoghue v. Stevenson,3 a Scottish case: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” And “neighbour” means persons “so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” I do not read Lord Atkin’s language in a similar context in Hambrook v. Stokes Brothers4 as going beyond what he said in Donoghue v. Stevenson.3
This general concept of reasonable foresight as the criterion of negligence or breach of duty (strict or otherwise) may be criticized as too vague, but negligence is a fluid principle, which has to be applied to the most diverse conditions and problems of human life. It is a concrete, not an abstract, idea. It has to be fitted to the facts of the particular case. Willes, J., defined it as absence of care according to the circumstances: Vaughan v. Taff Vale Co.5 It is also always relative to the individual affected. This raises a serious additional difficulty in the cases where it has to be determined, not merely whether the act itself is negligent against someone, but whether it is negligent vis-à-vis the plaintiff. This is a crucial point in cases of nervous shock. Thus, in the present case John Young was certainly negligent in an issue between himself and the owner of the car which he ran into, but it is another question whether he was negligent vis-à-vis the appellant. In such cases terms like “derivative” and “original” and “primary” and “secondary” have been applied to define and distinguish the type of the negligence. If, however, the appellant has a cause of action it is because of a wrong to herself. She cannot build on a wrong to someone else. Her interest, which was in her own bodily security, was of a different order from the interest of the owner of the car. That this is so is also illustrated by cases such as have been called in the United States “rescue” or “search” cases. This type has been recently examined and explained in the Court of Appeal in Haynes v. Harwood,1 where the plaintiff, a police constable, was injured in stopping runaway horses in a crowded street in which were many children. His act was due to his mental reaction, whether instinctive or deliberate, to the spectacle of others’ peril. Maugham, L.J., in the Court of Appeal approved the language used by the trial judge, Finlay, J.,2 when he held that to leave the horses unattended was a breach of duty not only to any person injured by being run over (in fact, no one was so injured), but also to the constable. Finlay, J.’s, words were: “It seems to me that if horses run away it must be quite obviously contemplated that people are likely to be knocked down. It must also, I think, be contemplated that persons will attempt to stop the horses and try to prevent injury to life or limb.” I may also refer to the admirable judgment of Cardozo, J., in the New York Court of Appeals, in Wagner v. International Railway Co.,3 a “search” case, which is to the same effect. This again shows how the ambit of the persons affected by negligence or misconduct may extend beyond persons who are actually subject to physical impact. There, indeed, may, be no one injured in a particular case by actual impact, but still a wrong may be committed to anyone who suffers nervous shock or is injured in an act of rescue. The man who negligently allows a horse to bolt, or a car to run at large down a steep street, or a savage beast to escape, is committing a breach of duty towards every person who comes within the range of foreseeable danger, whether by impact or shock, but, if there is no negligence or other default, there can be no liability for either direct impact or for nervous shock. Thus, if, owing to a latent defect or some mischance for which no one is liable, a terrifying collision occurs between vehicles on the road, and the occupants are killed or suffer horrible injuries, a bystander who suffers shock, whether through personal fear or merely horror, would have no action. On somewhat similar principles may be solved the problem of the old lady at Charing Cross, who suffers shock because she narrowly escapes being run over.
She cannot claim damages if the driver is driving carefully, whether he hits her or not.
The present case, like many others of this type, may, however, raise the different question whether the appellant’s illness was not due to her peculiar susceptibility. She was eight months gone in pregnancy. Can it be said, apart from everything else, that it was likely that a person of normal nervous strength would have been affected in the circumstances by illness as the appellant was? Does the criterion of reasonable foresight extend beyond people of ordinary health or susceptibility, or does it take into account the peculiar susceptibilities or infirmities of those affected which the defendant neither knew of nor could reasonably be taken to have foreseen? Must the manner of conduct adapt itself to such special individual peculiarities? If extreme cases are taken, the answer appears to be fairly clear, unless, indeed, there is knowledge of the extraordinary risk. One who suffers from the terrible tendency to bleed on slight contact, which is denoted by the term “a bleeder,” cannot complain if he mixes with the crowd and suffers severely, perhaps fatally, from being merely brushed against. There is no wrong done there. A blind or deaf man who crosses the traffic on a busy street cannot complain if he is run over by a careful driver who does not know of, and could not be expected to observe and guard against, the man’s infirmity. These questions go to “culpability, not compensation”: as Bankes, L.J., said in the Polemis case.1 No doubt, it has long ago been stated and often restated that, if the wrong is established, the wrongdoer must take the victim as he finds him. That, however, is only true, as the Polemis case1 shows, on the condition that the wrong has been established or admitted. The question of liability is anterior to the question of the measure of the consequences which go with the liability. That was the second point, decided not for the first time, but merely reiterated in the Polemis case.1 It must be understood to be limited, however, to “direct” consequences to the particular interest of the plaintiff which is affected. Liesbosch, Dredger v. Edison, S.S. (Owners)2 illustrates this limitation.
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 should myself be disposed, as at present advised, to say that it should have stopped short of judgment for the plaintiff in Owens v. Liverpool Corporation.1 The particular susceptibility there was to my mind beyond any range of normal expectancy or of reasonable foresight. I cannot, however, forbear referring to a most important case in the High Court of Australia, Chester v. Waverley Corporation,2 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.
But when I apply the considerations which I have been discussing to the present appeal, I come to the conclusion that the judgment should be affirmed. The case is peculiar, as, indeed, though to a varying extent, all these cases are apt to be. There is no dispute about the facts. Upon these facts, can it be said that a duty is made out, and breach of that duty, so that the damage which is found is recoverable? I think not. The appellant was completely outside the range of the collision. She merely heard a noise, which upset her, without her having any definite idea at all. As she said: “I just got into a pack of nerves and I did not know whether I was going to get it or not.” She saw nothing of the actual accident, or, indeed, any marks of blood until later. I cannot accept that John Young could reasonably have foreseen, or, more correctly, the reasonable hypothetical observer could reasonably have foreseen, the likelihood that anyone, placed as the appellant was, could be affected in the manner in which she was. In my opinion, John Young was guilty of no breach of duty to the appellant, and was not in law responsible for the hurt she sustained. I may add that the issue of duty or no duty is, indeed, a question for the court, but it depends on the view taken of the facts. In the present case both Courts below have taken the view that the appellant has, on the facts of the case, no redress, and I agree with their view.
This conclusion disposes of the present case and makes it unnecessary to decide the difficult question which was the subject of lengthy argument and elaborate citation of authorities before your Lordships. I have carefully considered all the authorities cited, and it may well be that someday this House will have to examine the exact meaning and effect of what Kennedy, J., said in Dulieu v. White & Sons.3 He was, he said, inclined to think that there was at least one limitation: “the shock where it operates through the mind must be a shock which arises from a reasonable fear of immediate personal injury to oneself.” That statement, if meant to lay down a rigid rule of law, has been overruled by the Court of Appeal in Hambrook v. Stokes Brothers,1 which now lays down the English law unless it is set aside by this House. As at present advised, I agree with that decision. Kennedy, J.’s dictum, if intended to lay down a rigid limitation, is not, I think, in accordance with principle or with cases like Wilkinson v. Downton.2 It finds no support in the judgment of Phillimore, J., who implicitly lays down a wider principle, but as I may someday have to decide the question in this House, I prefer to express here no final opinion. If, indeed, the Inner House, having to determine a case like Hambrook v. Stokes Brothers,1 takes a different view, this House may have to decide between the conflicting views of the two appellate Courts, because in a modern and developing branch of law like that of negligence the law adopted by the two courts should, if possible, be uniform. That, however, is a matter for the future. Kennedy, J.’s dictum does indeed give a rough criterion which may be useful in some cases, but, always assuming that the wrongful act is established, the damage to be proved is physical injury due to nervous shock. Modern medical science may, perhaps, show that the nervous shock is not necessarily associated with any particular mental ideas. The worst nervous shock may for the moment at least paralyse the mind, but I do not pursue these questionings on this occasion. I concur in the motion proposed.
LORD PORTER (read by Lord Wright).–
This case raises a question which has been much canvassed during the period beginning with Victorian Railways Commissioners v. Coultas3 and ending with Haynes v. Harwood.4 The problem to be determined is whether the driver of a vehicle who through his negligence causes physical injury to one person is responsible for any, and (if so) what, consequent emotional injury to another, at any rate if that emotion results in physical illness, or, perhaps, it may be put more generally by asking to whom and for what effects of his negligence a tortfeasor is liable.
In considering the question it is I think essential to bear in mind the distinction drawn in In re Polemis and Furness, Withy & Co.,5 a distinction which is perhaps best expressed in the words of Channell, B., taken from Smith v. London and South Western Railway Co.,6 which are quoted by Warrington, L.J. (at p. 574): “Where there is no direct evidence of negligence, the question what a reasonable man might foresee is of importance in considering the question whether there is evidence for the jury of negligence or not, … but when it has been once determined that there is evidence of negligence, the person guilty of it is equally liable for its consequences, whether he could have foreseen them or not.” For the present I think it immaterial to consider whether the second proposition is accurate or not. Before any decision on quantum of damage is required it has first to be determined whether the cyclist was guilty of any negligence towards the appellant. “The law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage”: per Lord Macmillan in Donoghue v. Stevenson.1 It is not enough to say that the cyclist was guilty of negligence towards someone. Admittedly he was, and I will assume without deciding that for all damages, whether expected or unexpected, to that person he was liable. But was he, therefore, liable for all damages of whatsoever nature to all other persons affected by his negligence whether he could reasonably foresee that he would injure them or not?
For the present purpose I am also prepared to assume without deciding that all types of injury are included, physical, mental and emotional, and that once a defender is shown to be negligent towards a pursuer he is liable for all such consequences. Does it follow from this assumption that the defender is guilty of negligence towards all persons on the highway because conceivably they might in other circumstances have suffered physical damage, and, among others, towards those who were never in personal danger themselves or in fear for their children or even for third persons, but were merely emotionally disturbed because some person was in fact injured and because they heard the crash or saw the result of the accident?
In Dulieu v. White & Sons,2 Kennedy, J., thought that only those in reasonable fear for their own safety could recover, not, I think, because he thought the damage was too remote but because he thought that unless there was such fear no legal duty was involved. As he said (at p. 675): “A has, I conceive, no legal duty not to shock B’s nerves by the exhibition of negligence towards C, or towards the property of B or C … In Smith v. Johnson & Co.3 a man was killed by the defendants’ negligence in the sight of the plaintiff, and the plaintiff became ill, not from the shock produced by fear of harm to himself, but from the shock of seeing another person killed. The Court held that this harm was too remote a consequence of the negligence. I should myself, as I have already indicated, have been inclined to go a step further and to hold upon the facts in Smith v. Johnson & Co.,3 that, as the defendant neither intended to affect the plaintiff injuriously not 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 or in regard to him of that absence of care according to the circumstances which Willes, J., in Vaughan v. Taff Vale Railway Co.4 gave as a definition of negligence” So Phillimore, J., in the same case after suggesting (at p. 684): “It may be (I do not say that it is so) that a person venturing into the streets takes his chance of terrors. If not fit for the streets at hours of crowded traffic, he or she should not go there,” said (at p. 685): “The difficulty in these cases is to my mind not one as to the remoteness of the damage, but as to the uncertainty of there being any duty.” It is true that he does also envisage the possibility of liability for mental shock apart from fear of personal injury in the remark (at p. 682): “I think there may be cases in which A owes a duty to B not to inflict a mental shock on him or her, and that in such a case, if A does inflict such a shock upon B–as by terrifying B–and physical damage thereby ensues, B may have an action for the physical damage, though the medium through which it has been inflicted is the mind.” But his previous remarks show that he would not necessarily include mental shock due to the sight of an accident in the streets.
In Hambrook v. Stokes Brothers,1 in which the plaintiff succeeded, negligence was admitted, and as Lord Atkin, then Atkin, L.J., pointed out, such an admission can only mean an admission of negligence towards the plaintiff, but none of the lords justices who heard the case confined themselves to considerations founded on this fact. Bankes, L.J., expressed himself thus (at p. 151): “What a man ought to have anticipated is material when considering the extent of his duty. 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,” and he then goes on to assert that in his view no distinction can be drawn between the fear of a mother for her own safety and her fear for her children. He was careful to limit the scope of his decision to the facts of the case then under consideration, and to confine his determination to cases where the claimant was in fear for his or her own personal safety or that of his or her children. Of Smith v. Johnson & Co.2 he said (at p. 150): “It may well be that the duty of a person to take care does not extend to a person in the position of the plaintiff in Smith v. Johnson & Co.2 or to the person indicated as B in Kennedy, J.’s illustration, and yet may extend to a person in the position of the plaintiff’s wife.” Atkin, L.J., said (at p. 156): “Apart from the admission in the pleadings, I think that the cause of action is complete. The duty of the owner of a motor-car in a highway is not a duty to refrain from inflicting a particular kind of injury upon those who are in the highway. If so, he would be an insurer. It is a duty to use reasonable care to avoid injuring those using the highway. It is thus a duty owed to all wayfarers, whether they are injured or not … Further, the breach of duty does not take place necessarily when the vehicle strikes or injures the wayfarer. The negligent act or omission may precede the act of injury. In this case it was completed at the top of Dover Street when the car was left unattended.” He continued (at p. 158): “In my opinion it is not necessary to treat this cause of action as based upon a duty to take reasonable care to avoid administering a shock to wayfarers. The cause of action, as I have said, appears to be created by breach of the ordinary duty to take reasonable care to avoid inflicting personal injuries, followed by damage, even though the type of damage may be unexpected–namely, shock. The question appears to be as to the extent of the duty, and not as to remoteness of damage.” Sargant, L.J., differed, and, like Kennedy, J., would confine liability to cases of reasonable fear for personal safety but only because in his view the injury complained of could not reasonably have been anticipated, and, therefore, the defendant had broken no duty which he owed to the plaintiff. He said (at p. 162): “I should prefer, with Kennedy, J., to put it not on the ground that the harm was too remote a consequence of the negligence but on (what is often practically equivalent) a consideration of the extent of the duty of the defendant towards the plaintiff and others on and near the highway. That is to say that, as the defendant did not do anything which could reasonably or naturally be expected to cause the harm in question to the plaintiff, there was no evidence of any breach of duty towards him for which the defendant could be rendered liable.” In the result, the plaintiff succeeded.
A conclusion in favour of the plaintiff was also reached by the Court of Appeal in Owens v. Liverpool Corporation,1 in which the driver of a tramway car negligently ran into a hearse containing the body of a relative of the plaintiffs and was held liable to them in respect of illness caused by the shock of seeing the accident. The lords justices seem to have accepted the view that the driver ought to have anticipated that the result of his negligence might be to cause emotional distress to spectators of the consequent accident, and, therefore, was guilty of negligence towards any one physically affected by feelings induced by the sight presented to them. With all respect, I do not myself consider the Court of Appeal justified in thinking that the driver should have anticipated any injury to the plaintiffs as mere spectators or that he was in breach of any duty which he owed to them.
I have, however, dealt with both these cases, and particularly with Hambrook v. Stokes Brothers,2 somewhat at length because they show the high water mark reached in claims of the character now in question. It will be observed that in the earlier case all the lords justices were careful to point out that the vital problem was the extent of the duty and not the remoteness of damages–a view in which they were supported by the opinions of Kennedy and Phillimore, JJ., in Dulieu v. White & Sons.3 With this view I agree, and I ask myself whether the cyclist in the present case owed any duty to the appellant.
In the case of a civil action there is no such thing as negligence in the abstract. There must be neglect of the use of care towards a person towards whom the defendant owes the duty of observing care, and I am content to take the statement of Lord Atkin in Donoghue v. Stevenson,1 as indicating the extent of the duty. “You must take,” he said, “reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be–persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” Is the result of this view that all persons in or near the street down which the negligent driver is progressing are potential victims of his negligence? Though from their position it is quite impossible that any injury should happen to them and though they have no relatives or even friends who might be endangered, is a duty of care to them owed and broken because they might have been but were not in a spot exposed to the errant driving of the peccant car? I cannot think so. The duty is not to the world at large. It must be tested by asking with reference to each several complainant: Was a duty owed to him or her? If no one of them was in such a position that direct physical injury could reasonably be anticipated to them or their relations or friends, normally, I think, no duty would be owed, and if, in addition, no shock was reasonably to be anticipated to them as a result of the defender’s negligence, the defender might, indeed, be guilty of actionable negligence to others but not of negligence towards them. In the present case the appellant was never herself in any bodily danger nor reasonably in fear of danger either for herself or others. She was merely a person who, as a result of the action, was emotionally disturbed and rendered physically ill by that emotional disturbance. 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.
In Hambrook v. Stokes Brothers2 the defendant’s lorry was left unattended and improperly braked at the top of a steep and narrow street with the engine running, with the result that it started off by itself and ran violently down the hill, putting the plaintiff in fear for the safety of her children, whom she had just left, and thereby causing a serious illness and ultimately her death. In such circumstances it might well be held that the negligence complained of was a potential danger to all those in the way, and that the careless driver should have foreseen the likelihood of actual or apprehended injury to anyone in the street down which the lorry might run and the possibility of illness being produced in a mother from fear that the run-away car would injure her children. The position of the respondent in the present case is more favourable. The rider of the cycle had not left it to career at its own will. He was always in control, and his negligence was not to all those in the highway but only to anyone turning or intending to turn in front of him into a side road. The appellant was not such a person, and the only allegation of negligence which I can find in the condescendence is not towards her but, as I understand it, towards traffic proceeding across or, at any rate, down the road towards the cyclist. So far as the appellant is concerned she complains of nothing but the disturbance caused by an accident to the cyclist himself, and in her claim confines her allegation to a general averment against him of negligence resulting in a collision with a motor-car. She in no way connects that negligence with herself except by the assertion that she sustained a very severe shock to her nervous system, and by an amendment assented to in the Inner House she expressly repudiates any fear of personal injury. The Lord Ordinary, if I understand him aright, was nevertheless prepared to treat the case on the basis that the appellant had been put in fear of bodily injury to herself. “At the best for her,” he said (1941 S. C., at p. 406), “it can be said that the shock arose from a fear of immediate bodily injury to herself, but only from a fear which had no rational basis, or, in other words, an unreasoned fear, and, as the whole facts disclose, an unreasonable fear.” In your Lordships’ House the appellant’s representatives preferred to rest their case on the terms of the amended plea and confined their arguments to considerations based on an averment that the appellant was not put in fear of injury to herself or others but was only emotionally disturbed and rendered physically ill by the crash and possibly by the sight of the injured man. This limited contention was, no doubt, prudently adopted since, although the Lord Ordinary had found that any fear of personal injury was unreasoned and unreasonable, he had made no similar finding as to fear engendered by the crash or sight. In order, however, to establish a duty towards herself, the appellant must still show that the cyclist should reasonably have foreseen emotional injury to her as a result of his negligent driving, and, as I have indicated, I do not think she has done so.
If I am right in thinking that the appellant has established no duty towards herself in the cyclist and no breach of any duty, she must fail unless it can be said that there is some principle in the law of Scotland, which is not to be found in the law of England, under which she can recover. I should be loth to think that there is any difference between the principles adopted in the two systems, nor can I find in the cases quoted any decision or even dicta which would warrant a decision in favour of the appellant in the present instance. Taking the cases in the order in which they were quoted, the claim in Cooper v. Caledonian Railway Co.1 was based on an allegation of fear of personal physical injury and even in that case the allegation was only held to be relevant if it appeared that the fright resulting from the negligent act might reasonably arise in a mind of average intelligence and strength, i.e., it must not be unreasoned and unreasonable. Gilligan v. Robb2 contained an averment of negligence and fear of physical injury. In Ross v. Glasgow Corporation,3 in which a tramway-car was driven negligently on the wrong line but drawn up slowly and carefully short of another car, it was held that fright thereby caused was not naturally or probably caused by the negligent act and that the defenders had no duty to anticipate such a consequence. Boyd or Brown v. Glasgow Corporation,4 and Currie v. Wardrop,5 both led to considerable divergence of opinion, and in each the conclusion that a cause of action existed was reached by a majority of three against two. In the former there was an allegation of fear of personal injury and a finding by the Court that that fear was reasonable. In the latter a man and his fiancee walking together were knocked down by a negligent motor driver. The man was killed and the woman suffered physically from consequent nervous shock partly due to the accident to herself and partly to fear for the safety of her companion. Undoubtedly, there was in that case a duty to the pursuer (the woman) and a breach of that duty, and the decision of the majority was due to that fact coupled with the impossibility of distinguishing between the physical injury due to each type of shock. A v. B.’s Trustees,6 in which a lodger committed suicide in the lodgings he had hired and both did some material damage and administered a nervous shock to his landladies, may be explained as founded on contract or on the fact that the material damage might have been anticipated. Finally, in Walker v. Pitlochry Motor Co.,7 the pursuer was held entitled to recover in respect of the physical consequences of shock occasioned by the sight of injury caused to a near relative, shock which it was held might reasonably have been anticipated as a result of the negligent act. To the same effect is the Irish case of Bell v. Great Northern Railway Co. of Ireland,8 in which illness due to reasonable apprehension of personal injury due to the defendants’ negligence was held to give a cause of action. These cases are, at any rate, no more favourable to the appellant’s contention than those decided in England. In all three countries, no doubt, shock occasioned by deliberate action affords a valid ground of claim: see Wilkinson v. Downton9 and Janvier v. Sweeney,1 and so, I think, does shock occasioned by reasonable apprehension of injury to oneself or others, at any rate, if those others are closely connected with the claimant. What is reasonable may give rise to some difference of opinion, but whether illness due to shock which might reasonably have been anticipated as the result of injury to others can or cannot form the basis of a successful claim need not now be considered. No exceptionally loud noise or particularly gruesome sight is alleged or any circumstance suggesting that the cyclist should have anticipated he would cause a shock to the appellant.
On the ground that there never was any duty owed by the cyclist to the appellant or breach of such a duty, I should dismiss the appeal. In so deciding, I believe I am following the reasoning and conclusion of the Lord Ordinary as well as those of the majority in the Inner House, with whose opinions I agree.
APPEAL dismissed.
BOTTERELL & ROCHE–BOYD, JAMESON & YOUNG, W.S.–BERRYMANS–DOVE, LOCKHART & SMART, S.S.C.
CITATION OF CASES REFERRED TO – SEQUENTIALLY
1 [1901] 2 K. B. 669, at p. 675.
2 [1925] 1 K. B. 141.
3 [1939] 1 K. B. 394.
4 Wagner v. International Railway Company, (1921) 232 N. Y. 176, Cardozo, J., at p. 180.
5 [1925] 1 K. B., at p. 156. See also pp. 157, 158.
6 [1921] 3 K. B. 560.
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1 Haynes v. Harwood, [1935] 1 K. B. 146; Wilkinson v. Downton, [1897] 2 Q. B. 57; Smith v. Johnson & Co., (1897) unreported; Smith v. London and South Western Railway Co., (1870) L. R., 6 C. P. 14; Bell v. Great Northern Railway Company of Ireland, (1890) 26 L. R. Ir. 428; H.M.S. London, [1914] P. 72 at p. 76; Pugh v. London, Brighton and South Coast Railway Co., [1896] 2 Q. B. 248.
2 Cooper v. Caledonian Railway Co., (1902) 4 F. 880; Gillian v. Robb, 1910 S. C. 856; Brown v. Glasgow Corporation, 1922 S. C. 527: Currie v. Wardrop, 1927 S. C. 538; A. v. B.’s Trustees, (1906) 13 S. L. T. 830; Walker v. Pitlochry Motor Co., 1930 S. C. 565; Dumbreck v. Robert Addie & Sons (Collieries), Limited, 1929 S. C. (H. L.) 51.
3 1919 S. C. 174.
4 13 S. L. T. 830.
5 (1878) 3 Ex. D. 268.
6 (1883) 12 Q. B. D. 110.
7 [1901] 2 K. B. 669, at p. 675.
8 [1925] 1 K. B. 141.
9 1927 S. C. 538.
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1 Donoghue v. Stevenson, 1932 S. C. (H. L.) 31, [1932] A. C. 562; Mackintosh v. Mackintosh, (1864) 2 Macph. 1357, at pp. 1362, 1364; Wernham v. M’Lean, Baird, & Neilson, 1925 S. C. 407, at p. 422; Campbell v. James Henderson, Limited, 1915, 1 S. L. T. 419; Ross v. Glasgow Corporation, 1919 S. C. 174; Brown v. Glasgow Corporation, 1922 S. C. 527; Glegg on Reparation, 3rd ed., p. 7.
_______________________________
1 1909 S. C. 1314, at p. 1319.
_________________________
1 [1901] 2 K. B. 669, at p. 675.
_________________________
1 [1921] 3 K. B. 560.
2 [1925] 1 K. B. 141.
3 [1939] 1 K. B. 394.
_________________________
1 (1883) 11 Q. B. D. 503, at p. 509.
2 1932 S. C. (H. L.) 31, at p. 44, [1932] A. C. 562, at p. 580.
_________________________
1 1932 S. C. (H. L.) 31.
2 [1925] 1 K. B. 141.
_________________________
1 [1925] 1 K. B. 141.
2 1909 S. C. 1314, at p. 1319.
3 1932 S. C. (H. L.) 34, at p. 59, [1932] A. C. 562, at p. 602.
_________________________
1 [1901] 2 K. B. 669, at p. 682.
_________________________
1 [1925] 1 K. B. 141.
2 [1939] 1 K. B. 394.
3 [1921] 3 K. B. 560.
4 [1901] 2 K. B. 669.
_________________________
1 (1870 L. R., 6 C. P. 14, at p. 22.
2 [1921] 3 K. B. 560, at p. 577.
3 1932 S. C. (H. L.) 31, at p. 44, [1932] A. C. 562, at p. 580.
4 [1925] 1 K. B. 141, at p. 156.
5 (1860) 5 H. & N. 679, at p. 688.
_________________________
1 [1935] 1 K. B. 146.
2 [1934] 2 K. B. 240, at p. 247.
3 (1921) 232 N. Y. 176.
_________________________
1 [1921] 3 K. B. 560, at p. 571.
2 [1933] A. C. 449.
_________________________
1 [1939] 1 K. B. 394.
2 (1939) 62 C. L. R. 1.
3 [1901] 2 K. B. 669, at p. 675.
_________________________
1 [1925] 1 K. B. 141.
2 [1897] 2 Q. B. 57.
3 (1887) 13 App. Cas. 222.
4 [1935] 1 K. B. 146.
5 [1921] 3 K. B. 560.
6 (1870) L. R., 6 C. P. 14, at p. 21.
_________________________
1 1932 S. C. (H. L.) 31, at p. 70, [1932] A. C. 562, at p. 618.
2 [1901] 2 K. B. 669.
3 (1897) Unrep.
4 (1860) 5 H. & N. 679, at p. 688.
___________________________
1 [1925] 1 K. B. 141.
2 (1897) Unrep.
__________________________
1 [1939] 1 K. B. 394.
2 [1925] 1 K. B. 141.
3 [1901] 2 K. B. 669.
__________________________
1 1932 S. C. (H. L.) 31, at p. 44, [1932] A. C. 562, at p. 580.
2 [1925] 1 K. B. 141.
__________________________
1 (1902) 4 F. 880.
2 1910 S. C. 856.
3 1919 S. C. 174.
4 1922 S. C. 527.
5 1927 S. C. 538.
6 (1906) 13 S. L. T. 830.
7 1930 S. C. 565.
8 (1890) 26 L. R. Ir. 428.
9 [1897] 2 Q. B. 57.
_________________________
1 [1919] 2 K. B. 316.
