McLoughlin v O'Brian (1982)

Before this case, English law allowed nervous shock claims by relatives who saw or heard an accident, or who were at or near the scene. Mrs McLoughlin was two miles away at home and was told of the accident an hour or so afterwards, and saw her injured family only at the hospital. The House of Lords held that she could recover.

The case is remembered for two things. First, it extended liability to someone who came upon the immediate aftermath of the accident. Second, the Lords split on how to limit such claims: Lord Wilberforce set out three elements — the class of persons, proximity in time and space, and the means by which the shock is caused — while Lord Bridge and Lord Scarman would have applied reasonable foreseeability without fixed policy limits. Later cases on nervous shock, including Alcock v Chief Constable of South Yorkshire Police (1992), work from Lord Wilberforce's three elements.

On 19 October 1973, near Withersfield, Suffolk, a Ford car carrying the appellant's husband and three of her children (George, 17; Kathleen, 7; Gillian, nearly 3) collided with a lorry. It was admitted that the accident was caused by the respondents' negligence. Gillian died almost immediately; George, Kathleen and the husband were injured.

The appellant was at home about two miles away. "An hour or so afterwards" a family friend, Mr Pilgrim, told her of the accident, said he thought George was dying, and drove her to Addenbrooke's Hospital, Cambridge. There she learned from her son Michael that Gillian was dead. She saw Kathleen "crying, with her face cut and begrimed with dirt and oil", heard George shouting and screaming, and found her husband covered in mud and oil. Lord Wilberforce described the circumstances as "distressing in the extreme".

At trial it was assumed, to decide liability, that she suffered severe shock, organic depression and a change of personality, caused by shock rather than grief, and that she was a person of reasonable fortitude.

Boreham J held that no duty was owed because her injury was not reasonably foreseeable. The Court of Appeal upheld that result on different grounds: Stephenson LJ held there was a duty but that policy prevented recovery; Griffiths LJ held that the injury was "readily foreseeable" but no duty was owed, the duty being limited to those on or near the road. She appealed.

As Lord Wilberforce framed it: whether a person "who was not present at the scene of grievous injuries to her family but who comes upon those injuries at an interval of time and space, can recover damages for nervous shock."

Behind that lay a further question: once psychiatric injury is foreseeable, may the courts, on grounds of policy, draw a line limiting liability — and if so, where?

The appeal was allowed unanimously. The respondents were liable to the appellant.

Lord Wilberforce — logical progression and the aftermath

Lord Wilberforce reasoned by analogy from earlier cases. Had she found her family by the roadside she would have succeeded; "Can it make any difference that she comes upon them in an ambulance, or, as here, in a nearby hospital, when, as the evidence shows, they were in the same condition, covered with oil and mud, and distraught with pain?" He accepted that her claim was "upon the margin of what the process of logical progression would allow", but "where the facts are strong and exceptional, and, as I think, fairly analogous, her case ought, prima facie, to be assimilated to those which have passed the test."

He agreed with the Court of Appeal that, at the margin, "the boundaries of a man's responsibility for acts of negligence have to be fixed as a matter of policy", and that "foreseeability does not of itself, and automatically, lead to a duty of care". He considered the policy arguments against extension (floodgates and fraudulent claims, unfairness to defendants and insurers, evidential difficulty, and that extension should be for the legislature) and found that some were "susceptible of answer": "Fraudulent claims can be contained by the courts, who, also, can cope with evidentiary difficulties."

Yet, because shock can affect so wide a range of people, the law must limit claims. "It is necessary to consider three elements inherent in any claim: the class of persons whose claims should be recognised; the proximity of such persons to the accident; and the means by which the shock is caused."

1. Class of persons. The range runs from the closest family ties to the ordinary bystander. The law recognises the first and denies the second. Less close relationships "must be very carefully scrutinised", and "The closer the tie (not merely in relationship, but in care) the greater the claim for consideration."
2. Proximity. It "must be close in both time and space." Insisting on direct sight or hearing "would be impractical and unjust and that under what may be called the " aftermath " doctrine, one who, from close proximity comes very soon upon the scene, should not be excluded." By analogy with rescuers, a parent or spouse who would be expected to come immediately to the scene may be within the scope of foresight and duty.
3. Means. "there is no case in which the law has compensated shock brought about by communication by a third party." "The shock must come through sight or hearing of the event or of its immediate aftermath." Whether simultaneous television would suffice was left open.

He concluded that the appellant's case fell within these boundaries.

Lord Bridge (with whom Lord Scarman agreed) — foreseeability, not fixed lines

Lord Bridge held that any judge would agree that it was "readily foreseeable" that a significant number of mothers in her position might break down. He rejected the policy arguments for a narrower test: the "floodgates" argument is "as it always has been, greatly exaggerated", and to require that the plaintiff witnessed the accident, was near it, came upon its aftermath, or was related in some degree to the victim "must impose a largely arbitrary limit of liability." To freeze the law at the furthest decided case "would be, to my mind, an unwarranted abdication of the court's function of developing and adapting principles of the common law to changing conditions". Where must it stop? "where in the particular case the good sense of the judge, enlightened by progressive awareness of mental illness, decides."

Lord Scarman — principle for judges, policy for Parliament

Lord Scarman accepted Lord Bridge's approach, holding that "Space, time, distance, the nature of the injuries sustained, and the relationship of the plaintiff to the immediate victim of the accident, are factors to be weighed, but not legal limitations". Though he shared the Court of Appeal's anxieties and saw "a powerful case for legislation", he held that "the policy issue as to where to draw the line is not justiciable."

Lord Edmund-Davies and Lord Russell

Both allowed the appeal because her injury was reasonably foreseeable. Lord Edmund-Davies disagreed with Lord Scarman and Lord Bridge on one point: "I hold that public policy issues are " justiciable"." Lord Russell saw no policy reason to deny liability; the fear of floodgates did not persuade him "to deprive this plaintiff of just compensation for the reasonably foreseeable damage done to her."

A close relative who does not witness an accident but comes upon its immediate aftermath — here, the injured family at hospital shortly after she was told of the accident, still in the condition in which they had been found — and suffers psychiatric illness as a result, can recover damages from the negligent defendant where such injury was reasonably foreseeable.

Beyond that result the reasoning divided. Lord Wilberforce held that foreseeability must be limited by policy, through the class of persons, proximity in time and space, and perception of the event or its immediate aftermath rather than being told by a third party. Lord Bridge and Lord Scarman held that reasonable foreseeability alone is the test, with those matters as factors to weigh rather than fixed limits. Lord Edmund-Davies and Lord Russell decided on foreseeability without adopting either framework.

• Direct question: Discuss the law relating to nervous shock with reference to McLoughlin v O'Brian. Give the facts, the aftermath extension, Lord Wilberforce's three elements, and the Bridge–Scarman foreseeability approach. Then show how Alcock later adopted Lord Wilberforce's control mechanisms.
• Problem question: a father arrives at hospital an hour after a road accident and sees his injured children still in the condition they were found in. Apply the aftermath doctrine: close tie, close in time and space, direct perception — likely recovery. Contrast a person who is only told of the accident by phone: no recovery on Lord Wilberforce's third element.
• Short note: the aftermath doctrine; primary v secondary victims; policy v foreseeability in duty of care; the floodgates argument and why the Lords thought it exaggerated.