Page v Smith (1995)

Nervous shock cases had grown a thicket of limiting rules — the claimant must be a person of ordinary fortitude, must be close in time and space to the accident, must have a close relationship with the victim. Those rules exist for a reason: they stop a negligent defendant being "made liable to all the world."

This case says those rules do not apply to everyone. It divides claimants into two classes and gives them different tests:

• a primary victim, personally involved in the accident and within the range of foreseeable physical injury, need only show that personal injury of some kind was foreseeable — physical or psychiatric, it does not matter which;
• a secondary victim, a witness to injury to others, must still satisfy all the control mechanisms.

If you learn one framework for psychiatric injury, learn Lord Lloyd's five propositions below.

On 24 July 1987 Mr Page was driving his Volvo in Bury St Edmunds when Mr Smith, coming the other way, cut across to enter a side road. A collision occurred. Nobody was physically hurt — not Mr Page, not Mr Smith, not Mr Smith's wife and child.

But Mr Page had for a long time suffered from a condition "variously described as myalgic encephalomyelitis (ME), or chronic fatigue syndrome (CFS) or post viral fatigue syndrome (PVFS)", which came and went in severity. He had had a severe attack in March 1987 but was recovering and hoped to return to teaching in September.

His case was that the accident made the condition chronic and permanent, so that he would never work again.

Otton J found for him and awarded £162,153. The Court of Appeal reversed, holding that injury by nervous shock had to be foreseeable and was not. He appealed to the House of Lords.

In a claim for psychiatric injury, must the claimant always prove that injury by nervous shock was reasonably foreseeable — or does it suffice, where he was himself involved in the accident, that personal injury of some kind was foreseeable?

Appeal allowed (by a majority); the issue of causation was remitted.

Lord Lloyd noted this was "the fourth occasion on which the House has been called on to consider 'nervous shock'", after Bourhill v Young, McLoughlin v O'Brian and Alcock. In each of those "the plaintiffs were, in each case, outside the range of foreseeable physical injury" — Mrs Bourhill was shielded by a tramcar, Mrs McLoughlin was two miles away. Mr Page was not: he was in the collision.

Lord Lloyd's five propositions — the framework to learn

1. "In cases involving nervous shock, it is essential to distinguish between the primary victim and secondary victims."
2. "In claims by secondary victims the law insists on certain control mechanisms, in order as a matter of policy to limit the number of potential claimants. Thus, the defendant will not be liable unless psychiatric injury is foreseeable in a person of normal fortitude. These control mechanisms have no place where the plaintiff is the primary victim."
3. "In claims by secondary victims, it may be legitimate to use hindsight in order to be able to apply the test of reasonable foreseeability at all. Hindsight, however, has no part to play where the plaintiff is the primary victim."
4. "Subject to the above qualifications, the approach in all cases should be the same, namely, whether the defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury, whether physical or psychiatric. If the answer is yes, then the duty of care is established, even though physical injury does not, in fact, occur. There is no justification for regarding physical and psychiatric injury as different 'kinds of damage'."
5. "A defendant who is under a duty of care to the plaintiff, whether as primary or secondary victim, is not liable for damages for nervous shock unless the shock results in some recognised psychiatric illness. It is no answer that the plaintiff was predisposed to psychiatric illness. Nor is it relevant that the illness takes a rare form or is of unusual severity. The defendant must take his victim as he finds him."

Why the control mechanisms do not apply to a primary victim

"Since liability depends on foreseeability of physical injury, there could be no question of the defendant finding himself liable to all the world. Proximity of relationship cannot arise, and proximity in time and space goes without saying."

Nor should a primary victim be asked whether he is a person of "ordinary phlegm": "In the case of physical injury there is no such requirement. The negligent defendant, or more usually his insurer, takes his victim as he finds him." And then the phrase that has stuck: there is no difference in principle "between an eggshell skull and an eggshell personality."

On the facts Lord Lloyd added that "when cars collide at 30 miles per hour, the possibility that those involved will suffer nervous shock, resulting in some form of psychiatric illness, is not something to be brushed aside" — though he did not regard that as the relevant test.

Where the claimant is a primary victim — personally involved in the accident and within the range of foreseeable physical injury — the defendant owes a duty if personal injury of any kind, physical or psychiatric, was reasonably foreseeable. Physical and psychiatric injury are not different kinds of damage, and the control mechanisms developed for secondary victims do not apply. The claimant must still prove a recognised psychiatric illness, but the defendant takes his victim as he finds him.

Keep these separate in your mind and state them when the claimant is a bystander or relative: foreseeability of psychiatric injury in a person of normal fortitude; proximity of relationship — close ties of love and affection with the primary victim; proximity in time and space to the accident or its immediate aftermath; and perception through one's own unaided senses.

• Direct question: Discuss the liability for nervous shock in the law of torts. Structure it as: recognised psychiatric illness required → is the claimant primary or secondary? → primary: foreseeability of any personal injury (this case) → secondary: the Alcock control mechanisms.
• Problem question pattern: the claimant was in the crash but physically unhurt, and develops depression or an aggravation of an existing condition — primary victim, and the pre-existing vulnerability is no defence ("eggshell personality"). A mother who hears of the crash and attends the hospital — secondary victim, apply Alcock.
• Read with: Dulieu v White & Sons (the early limit), Bourhill v Young, McLoughlin v O'Brian and Alcock, which this case expressly places in the secondary-victim line.
• Line worth quoting: there is no difference in principle "between an eggshell skull and an eggshell personality."