Hay (or Bourhill) v. Young (1942)

Donoghue v Stevenson asked "who is my neighbour?" Bourhill answers an essential follow-up: negligence is relative to the plaintiff. A defendant may be negligent towards one person and owe no duty at all to another. The duty is owed only to those within the area of foreseeable danger.

It is also the classic early nervous-shock case where the claimant was a mere bystander who heard, but did not see, an accident — and it gives us the famous idea of the "customary phlegm" expected of an ordinary person in the street.

The appellant, a fishwife, got off a tramcar in Colinton Road, Edinburgh, and went round to the far side of the driver's platform to lift her fish basket. John Young, a motor-cyclist travelling at an excessive speed, passed on the near side of the tramcar and, having gone some way beyond, collided with a motor car turning into Glenlockhart Road. He was killed.

The appellant was between 45 and 50 feet from the point of impact, behind the tramcar, and saw and heard nothing until the noise of the collision reached her. Afterwards she approached and saw blood on the road. She was about eight months pregnant, and a month later gave birth to a still-born child. She claimed damages from Young's executor for nervous shock and injury, and expressly pleaded that her terror "did not involve any element of reasonable fear of immediate bodily injury to herself."

The Lord Ordinary found that she suffered nervous shock but held that the cyclist owed her no duty. The Second Division affirmed, the Lord Justice Clerk dissenting. She appealed to the House of Lords.

1. Did the negligent cyclist owe a duty of care to a person in the appellant's position, out of sight and outside the range of physical danger?
2. How is the class of persons to whom a road-user owes a duty to be identified, particularly in cases of nervous shock?

The appeal was dismissed unanimously. The cyclist owed no duty of care to the appellant.

Lord Thankerton — the area of potential danger

The cyclist's duty is to drive with 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 settled that such injury includes injury by shock without physical impact. But 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". Here, the appellant was not within the range of his vision and was behind the tramcar; the shock to her "was not within the area of potential danger which the cyclist should reasonably have had in view."

Lord Russell of Killowen — duty is owed to individuals

A man "is not liable for negligence in the air". Applying Lord Atkin's neighbour test from Donoghue v Stevenson, the 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." The appellant was standing behind the solid barrier of the tramcar, and the cyclist's speed in no way endangered her. He adopted Lord Jamieson's view in the Court of Session that a driver's 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 "so placed".

Lord Macmillan — negligence relative to the plaintiff

"There is no absolute standard of what is reasonable and probable; it must depend on circumstances and must always be a question of degree." Young was plainly negligent towards the occupants of the car he struck, but he could not have foreseen injury by shock to the appellant. He "was under no duty to the pursuer to foresee that his negligence in driving at an excessive speed and consequently colliding with a motor car might result in injury to the pursuer, for such a result could not reasonably and probably be anticipated."

Lord Wright — negligence is a concrete idea

Negligence "is a concrete not an abstract idea. It has to be fitted to the facts of the particular case." It is "always relative to the individual affected", which is "a crucial point in cases of nervous shock." Liability generally depends on a normal standard of susceptibility; the rule that a wrongdoer takes his victim as he finds him applies only once the wrong has been established — "The question of liability is anterior to the question of the measure of the consequences which go with the liability."

It is here that Lord Wright mentions the other case you have been asked about: the Polemis rule of liability for direct consequences "must be understood to be limited however to " direct" consequences to the particular interest of the Plaintiff which is affected. The Liesbosch case, 1933, A.C. 449, illustrates this limitation." That is all Bourhill says about Liesbosch.

Lord Porter — customary phlegm

"In the case of a civil action there is no such thing as negligence" in the abstract; there must be neglect of care towards a person to whom the duty is owed. Not every shock should be foreseen. A careless driver is entitled to assume that the ordinary person in the street has sufficient fortitude to endure such incidents as 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."

A duty of care in negligence is owed only to persons whom the defendant can reasonably foresee as likely to be injured by his carelessness — those within the area of potential danger. Negligence towards one person does not create liability to another outside that area. A bystander out of sight of the accident, in no danger herself, who suffers nervous shock merely from hearing the collision, is not owed a duty by the negligent driver.

• Duty of care question: Negligence is relative to the plaintiff. Explain with reference to Bourhill v Young. Use Lord Russell's "negligence in the air" and Lord Wright's "concrete not an abstract idea".
• Nervous shock question: a bystander who hears an accident and suffers shock. No duty unless she is within the area of foreseeable danger; cite Lord Porter's "customary phlegm".
• Link to remoteness: when writing on Re Polemis and The Wagon Mound, use Bourhill to show that foreseeability governs duty even while Polemis governed remoteness, and note Lord Wright's reference to Liesbosch as limiting Polemis to direct consequences to the plaintiff's own interest. For the facts and holding of Liesbosch itself, use a separate source.