is a decision of the
House of Lords
The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...
. It is part of the
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
of
England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
.
The case concerns foreseeability of
psychiatric damage and creates an important distinction between primary and secondary victims in the English law of
negligence
Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...
relating to the recovery of such damage.
Facts
The
plaintiff
A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the p ...
, Mr Page, was involved in a minor car accident, and was physically unhurt in the collision. However the crash did result in a recurrence of
myalgic encephalomyelitis
Chronic fatigue syndrome (CFS), also called myalgic encephalomyelitis (ME) or ME/CFS, is a complex, debilitating, long-term medical condition. The causes and mechanisms of the disease are not fully understood. Distinguishing core symptoms are ...
(chronic fatigue syndrome) from which he had suffered for 20 years but was then in remission. The
defendant
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one jurisdic ...
admitted that he had been negligent, but said he was not liable for the psychiatric damage as it was
unforeseeable and therefore not recoverable as a head of damage.
Judgment
The leading judgment was given by Lord Lloyd of Berwick who, following from the factual distinction made by Lord Oliver in
Alcock v Chief Constable of South Yorkshire, held that Mr Page was a primary victim. Mr Page had been directly involved in the accident, and therefore his case was of a different nature than those that had come previously before the House of Lords. His Lordship held that this factual distinction also had legal consequences, those being that the restrictions that were put in place in order to limit the extent of the defendant's duty to secondary victims, did not apply to Mr Page's case. Therefore, it did not have to be shown that
nervous shock or psychiatric injury needed to be a foreseeable consequence of what happened - Mr Page only had to show that a personal injury (describing a broader type of damage) was a foreseeable consequence.
In the case of direct victims, their Lordships said the following test should be applied: "Could the defendant reasonably foresee that his conduct would expose the plaintiff to the risk of personal injury, psychological or physical?" If the answer was yes, it would be irrelevant that the extent of the damage was unforeseeable because the plaintiff had special sensitivities - the rule founded in other nervous shock cases that the plaintiff should be of reasonable fortitude was found to be irrelevant. This is based on the
eggshell skull
The eggshell rule (also thin skull rule, papier-mâché-plaintiff rule, or talem qualem rule) is a well-established legal doctrine in common law, used in some tort law systems, with a similar doctrine applicable to criminal law. The rule stat ...
rule, that is, one "takes the plaintiff as one finds him". Consequently, the defendant was found liable for the nervous shock suffered by Mr Page.
The majority judgment has been critically received by most academics. The minority followed the decision of the Court of Appeal, finding that in all cases of psychiatric injury the test in establishing a duty of care was whether the kind of damage (psychiatric damage) was foreseeable and not just whether or not it was foreseeable that harm (of any type) might come to the plaintiff. This is to be judged ex post facto, taking into account what actually happened. When establishing a duty, the plaintiff's unusual susceptibility is of relevance to the question of duty - once it is established that the type of damage (nervous shock) is foreseeable, then the 'eggshell personality' rule comes into operation, and the exact nature and extent of that damage need not have been foreseeable.
The minority found that in the circumstances - a moderate collision where neither Mr Page or Mr Smith and his passengers suffered any physical injuries and where vehicular damage was only moderate - that nervous shock was not foreseeable. It does not follow that whenever there is physical injury that psychiatric injury will be foreseeable, therefore, the test is based on the type of damage.
The rule created in ''Page v Smith'' was later restricted (''
Rothwell v Chemical & Insulating Co'')
[ 007UKHL 39, ]008 008, OO8, O08, or 0O8 may refer to:
* The Streetwear Brand @008us , inspired by Ian Fleming & Virgil Abloh
*"030", the fictional 030 Agent of MI6
* '' 038: Operation Exterminate'', a 1965 Italian action film
* '' Explosivo 030'' a 1940 Argentine c ...
1 AC 281 to apply only to cases where the complainant suffers psychiatric illness as an immediate result of the incident - a mere endangerment resulting in worry which later turns into psychiatric illness does not suffice.
See also
*
Nervous shock (English Law)
In English law, a nervous shock is a psychiatric / mental illness or injury inflicted upon a person by intentional or negligent actions or omissions of another. Often it is a psychiatric disorder triggered by witnessing an accident, for example ...
References
{{Reflist
English tort case law
House of Lords cases
English psychiatric injury case law
1995 in case law
1995 in British law