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Page v Smith - A Case of Mere Psychiatric Injury?

Vivien Pickford

Associate Senior Lecturer in Law
Business School
University of Portsmouth

< pickfordv@pbs.port.ac.uk>

Copyright © 1996 Vivien Pickford.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

In the House of Lords' case of Page v Smith a victim of a road accident caused by another's negligence claimed damages solely for psychiatric illness. This comment considers the decision from a particular viewpoint; that the case could be described as one of 'mere' nervous shock, in that the plaintiff suffered no physical injury, but the phrase suggests that psychiatric illness is considered to be less significant than physical injury. The development of the law in this area is examined to assess how true this is, followed by a discussion of the various issues with which the House of Lords was faced and how their Lordships dealt with them. The importance of the decision is assessed, with emphasis on the approach adopted with regard to 'mere' psychiatric injury.

Contents

Introduction
Background
The Facts
The Issues Facing The House Of Lords
Comments
Conclusion

Bibliography

Introduction

The personal injury suffered by the victim in Page v Smith [1995] 2 WLR 644 could be described as mere psychiatric injury. Lord Jauncey in his dissenting judgment referred to a person who suffers "merely nervous shock" (at p 651) and in Lord Keith's dissenting judgment there is reference (at p 648) to Jaensch v Coffey (1984) 155 CLR 549, in which Deane J discussed what had to be reasonably foreseeable in the case of "mere psychiatric injury". One would understand them to be referring to cases where there is psychiatric injury alone and no physical injury and here we have the nub of the case, but it could be argued that this is an unfortunate use of the word 'mere'. It may suggest that psychiatric injury is regarded in some way as being less serious or less significant than physical injury thereby making it more difficult to recover damages for the former. Is it so regarded? Mullany and Handford (1993) argue strongly that it is, concluding that an important reason for psychiatric damage law still being in the early stages of development is "society's failure to appreciate, or refusal to admit, that serious disruption to peace of mind is no less worthy of community and legal support than physical injury to the body, even given that priorities in accident compensation require careful thought in the face of limited resources" (at p 308). They then point out the realities of psychiatric damage and the problems of recovery therefrom, demonstrating that in practice it may be much more difficult to cure than physical injury (at p 309). Such arguments are recognised by the Law Commission in its Consultation Paper on Liability for Psychiatric Illness. "A feeling that psychiatric illness is less serious than bodily injury" is included in the list of policy arguments for limiting recovery and specific reference is made to the observation by Mullany and Handford that an injured mind may be far more difficult to heal than an injured body. (Law Commission 1995, p 57)

Certainly psychiatric injury has been less well understood than physical injury and this also explains to some extent the reluctance of the courts in the past to award damages in such cases but in Page v Smith the question was raised as to whether a distinction between these two kinds of injury should be made at all. Before examining the case in detail and how that question was answered, it is instructive to outline the development of the law relating to mere psychiatric injury or nervous shock as it is referred to in a number of the relevant cases.

Background

An early case of mere psychiatric injury was Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222, where the defendant's servant permitted the plaintiff to drive across a level crossing when a train was approaching. There was no actual impact and hence no physical injury but it was a "near miss", resulting in the plaintiff suffering nervous shock, followed by a miscarriage. Her action for damages failed as the injury was held to be too remote. Here we have a situation where the plaintiff was in fear of her own safety, indeed her life, and yet she failed in her action, showing only too clearly the reluctance of the courts at that time to award damages for such injury. The outcome would undoubtedly be different today and the decision had been questioned within a very short period of time in the case of Pugh v London, Brighton & South Coast Railway Co [1896] 2 QB 248 at p 250.

We see a change of attitude in Dulieu v White & Sons [1901] 2 KB 669 where the plaintiff, a pregnant barmaid, suffered shock followed by illness and the premature birth of her child when a cart and runaway horses crashed through into the pub where she was working. Again there was no impact causing physical injury but she was in fear of her own safety and it was on this basis that her claim succeeded. Kennedy J explained (at p 675) that recovery of damages for nervous shock should be limited to such cases.

This proved however, to be too narrow an approach and was criticised in Hambrook v Stokes [1925] 1 KB 141, following which we find plaintiffs succeeding in a number of cases where they were not in fear of their own safety at all. There was no question therefore of any physical injury being suffered as they were not participants in the accident itself; they may therefore be described as secondary victims. It is in these cases that the law has had to develop certain control mechanisms in order to limit the number of potential plaintiffs. Particularly relevant here are the only three cases in which the House of Lords had considered claims for pure psychiatric injury prior to Page v Smith.

In Bourhill v Young [1943] AC 92, the plaintiff heard the noise of an accident and later saw blood on the road. She was not a primary victim, neither did she have any relationship with the accident victim and it is not surprising therefore that her action for damages for nervous shock failed. Such injury was held not to be reasonably foreseeable but the case can also be explained on policy grounds. She was no more than a bystander, to whom no duty of care was owed, although her claim was not dismissed specifically on that ground.

Both those factors were considered by the House of Lords in McLoughlin v O'Brian [1983] 1 AC 410, the case in which the plaintiff was not a participant in or even a witness of the accident in which her daughter was killed and other members of her family were injured. She saw the immediate aftermath and suffered nervous shock. The House of Lords held unanimously that her nervous shock was foreseeable and her claim for damages in negligence was successful. There were differences of opinion though with regard to the policy issue. Lord Wilberforce in particular thought that a decision could not be based on foreseeability alone because of the potential number of claims which this could give rise to, (pp 421 & 422) whereas Lord Bridge took a different view and considered that policy was not in itself a reason for refusing a claim for damages for nervous shock (pp 441-443). Although therefore the case did not clarify the law, the House of Lords did recognise a claim for damages for mere psychiatric injury. They did accept the invitation of the plaintiff's counsel "to keep up with advances in psychiatric medicine and the ordinary citizen's advances in knowledge" (at p 413), in determining that such injury was reasonably foreseeable.

It was left to their Lordships to make clear the legal position in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, a case arising out of the Hillsborough disaster. Again the case itself involved secondary victims and their Lordships confirmed what were now well established requirements in such cases, that the psychiatric injury must have been induced by shock and that the event must have been likely to result in nervous shock to a person of normal fortitude. They then made it clear that reasonable foreseeability of nervous shock was not enough to give rise to a duty of care. There had to be the requisite degree of proximity in terms of the closeness of the plaintiff's relationship with the primary victim, the closeness of the plaintiff to the accident in time and space and the means by which the shock was suffered. With regard to the first point, parents and spouses of the primary victim are presumed to satisfy the requirement, whilst others will have to prove it. This conjures up the distasteful image of a brother, for example, having to provide evidence of his love for his sibling. Whilst the decision answers some questions, in particular that foreseeability alone is not sufficient to establish a duty of care in cases involving secondary victims, it raises others in that it does not, for example, rule out completely certain possible plaintiffs.

Finally we come to Page v Smith which represents the fourth occasion on which their Lordships have been required to consider nervous shock.

The Facts

Page was involved in a road accident in 1987 when Smith drove his car across Page's path. The cars collided at some 30 mph, which, as Lord Jauncey comments (at p 659), was described by the trial judge as being a collision of "moderate severity". Page suffered no physical injury and neither did Smith nor the two members of his family who were passengers in his car. Page was able to drive his car home but it was subsequently declared a "write-off", mainly because of economics rather than the seriousness of the damage. Page had suffered for the previous twenty years from a condition known as myalgic encephalomyelitis or ME, which was in remission at the time of the accident and he gave evidence to the effect that he had been hoping to return to work as a teacher later that year. However, some three hours after the accident, he felt exhausted and the exhaustion continued. He therefore brought this action for damages for personal injury caused by Smith's negligence, claiming that it had brought about a recrudescence of ME which had then become chronic and permanent making it unlikely that he would be able to work full time again. Smith admitted liability for the accident but not for damages.

Where does this case fit in with regard to the earlier cases referred to above? It might at first sight appear similar to Dulieu v White but the plaintiff was not terrified and in fear of his own life as the barmaid had been and he was not alleging subsequent physical injury following the nervous shock as she had been. Neither does it come within the second category of cases, ie those involving witnesses. The plaintiff was actually a participant in the accident, a primary victim, albeit one suffering no physical injury and it is the last point which caused difficulty.

The trial Judge, Otton J did not himself consider this to be a problem and found for Page, awarding him damages of £162,153. One interesting point to emerge from this, and to which I shall return, is that he did find ME to be a genuine illness. The Court of Appeal [1994] 4 All ER 522, however, considered the lack of physical injury to be a problem and unanimously allowed the appeal on the ground that Page's injury by nervous shock was not reasonably foreseeable. Only one of the judges, Ralph Gibson LJ then went on to consider causation and found that Page had not proved that the recrudescence of ME was caused by the accident (pp 537-540). Page appealed to the House of Lords.

The Issues Facing The House Of Lords

Their Lordships were faced with a plaintiff claiming for mere psychiatric injury and the major issue was whether in such a case a plaintiff must always prove that injury by nervous shock was reasonably foreseeable by the defendant or whether it is sufficient to prove that personal injury of some kind was reasonably foreseeable.

Two further issues arose from this: first whether, if foreseeability of nervous shock is required to be present in such a case, the assumption of reasonable fortitude applies, or whether the defendant must take his victim as he finds him; and secondly whether, in dealing with foresight, the defendant should apply his mind to the position immediately before the impact, or whether what actually occurred should be taken into account.

Lord Keith in giving his dissenting ruling dealt with the first two issues. He concluded that it was necessary to prove that injury by nervous shock was reasonably foreseeable by the defendant, there being no logical reason for distinguishing between a participant and a witness with regard to this issue, and that one must judge the matter by considering a person of reasonable fortitude.

Lord Jauncey in his dissenting ruling reached the same conclusions but also considered the final issue. He adopted Lord Wilberforce's approach in McLoughlin v O'Brian that "foreseeability...involves a hypothetical person looking with hindsight at an event which has occurred...." (at p 420), arguing that to do otherwise was to ignore reality. He expressed concern that failing to consider the matter ex post facto could lead to a situation where, because the plaintiff could have claimed damages if he had suffered one kind of harm, he could now have damages for the harm he does actually suffer.

We now come to the leading judgment by Lord Lloyd. He emphasised that this was the first case in which their Lordships had been faced with a primary victim seeking to recover damages for nervous shock and that classifying all nervous shock cases under the same head could be misleading. He was not therefore assisted by previous cases involving secondary victims but referred instead to Malcolm v Broadhurst [1970] 3 All ER 508. In this case a woman suffered head injuries in a car accident which exacerbated a pre-existing nervous disorder. Geoffrey Lane J (at p 511) said that the defendant must take the plaintiff as he finds her, there being no difference in principle between an egg-shell skull and an egg-shell personality.

Lord Lloyd considered what the position would have been if Page had suffered some physical injury with consequential psychiatric illness. He stressed that it would still be necessary to prove that the psychiatric illness was genuine and that it was caused by the defendant's negligence, but foreseeability of such illness would not have been an issue. He concluded that the law should not apply a different test because, fortuitously, there was no physical injury. The test ought to be whether the defendant can reasonably foresee that his conduct may cause personal injury to the plaintiff.

He also concluded that whilst control mechanisms are required to limit the number of potential plaintiffs who are secondary victims, such controls are inappropriate in the case of primary victims and it is not necessary therefore to enquire whether the plaintiff is a person of normal fortitude.

Again with regard to hindsight Lord Lloyd made a distinction between primary and secondary victims and concluded that in the case of the former the defendant should apply his mind to the position immediately before the impact. It would not be right that a negligent defendant whose actions could foreseeably result in serious physical injury, should be able to escape liability for personal injury altogether because psychiatric illness alone resulted.

Interestingly Lord Lloyd stated that if it were necessary to establish foreseeability of injury by nervous shock in a person of normal fortitude then he would have agreed with the trial judge that it was foreseeable in this case.

Lords Ackner and Browne-Wilkinson concurred with Lord Lloyd and the appeal was therefore allowed. The case is now going back to the Court of Appeal on the issue of causation. It is somewhat unfortunate that only one of the judges in that court considered the point at that time.

Comments

It is perhaps particularly appropriate that the case should have involved ME which has attracted much interest in the medical world in the last few years. It is not recognised by all members of the medical profession as a medical condition and sufferers will therefore be relieved that it now has judicial recognition as chronic fatigue syndrome. Those doctors who do recognise it disagree on the causes, some believing it to have its origins in physical illness, whilst others believing it to be brought about by a psychiatric route, illustrated by the fact that it is known by a number of different names, including post-viral fatigue syndrome, as well as those already mentioned. Its initial cause was not a point at issue in this case as Page had already suffered from it for a number of years when the accident occurred but it does highlight the problems of distinguishing between physical and psychiatric illness. It shows the difficulty of trying to label illness as either one or the other and with advances in medical science we are now realising that there is no easy division, in fact recent developments suggest the reverse, that there is a much closer relationship between them than previously understood. A number of illnesses which were thought to be purely psychiatric are now recognised as being caused by physical symptoms, a point well illustrated in the recent popular film "The Madness of King George".

It was partly the difficulty of demonstrating the nature of psychiatric illness or injury which resulted in the courts being so reluctant to accept that it could be reasonably foreseen. Page v Smith has dealt with the problem to some extent, stressing that the law should no longer seek to draw a line between the two. As Lord Lloyd said (at p 669):

"In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded. Nothing will be gained by treating them as different 'kinds' of personal injury, so as to require the application of different tests in law."

He took the opportunity presented to him by this particular case to emphasise this point. As we have already seen, he would have found nervous shock to be reasonably foreseeable in a person of normal fortitude in these circumstances anyway. He chose, however, to adopt a different ratio decidendi, supported by Lords Ackner and Browne- Wilkinson.

The case does therefore appear to bring the law into line with modern medical thinking. Further it could be argued that it clarifies the law in that Lord Lloyd sets out succinctly five propositions in his conclusion which can be summed up as follows. He said that it was necessary to distinguish between primary and secondary victims; that there were control mechanisms which applied in the case of the latter in order to limit the number of potential plaintiffs as a matter of policy, thus the defendant would not be liable unless psychiatric injury was foreseeable in a person of normal fortitude; that hindsight had no part to play in cases involving primary victims, although it may be used legitimately in cases involving secondary victims; that subject to the above points, the approach should be whether the defendant could reasonably foresee that his conduct would expose the plaintiff to the risk of personal injury and finally that the defendant would not be liable for damages for nervous shock unless it resulted in some recognised psychiatric illness.

Here though lies the difficulty. He was not prepared in practice to equate fully physical and psychiatric injury, stressing that the control mechanisms still applied in the case of secondary victims. It is acceptable in such cases that it will continue to be necessary to prove that psychiatric injury was foreseeable as there is no likelihood of physical injury anyway. What is questionable is that the normal fortitude rule will only apply to such victims. One could argue that as the rule is expressed to be there to limit the number of potential plaintiffs, the reason for not applying it to primary victims is that they face another limitation, that of having to be involved in the incident. As we shall see, some writers consider that that will prove to be somewhat ineffective. There is an alternative point to be made that although one should regard both kinds of injury as being equally serious, that is not the same as equating them fully, which perhaps by their very nature one cannot do. Further, even when a victim falls into the primary category the risk of some injury must be reasonably foreseeable and the shock must result in some recognised psychiatric injury. There should be no question therefore of the floodgates being opened or of fraudulent claims being likely to succeed, following this case, or should there?

The decision has been much criticised, particularly because it is argued that the basis of liability should not depend on the classification of the victim.(See for example Jones 1995, Sprince 1995, Trindade 1996). It does seem illogical and unjust that a plaintiff mother who witnesses her child being fatally injured through another's negligence will have to satisfy the special control mechanisms, whereas a plaintiff like Mr Page will not. Indeed anyone who is a parent will recognise that the trauma of witnessing such an event may well be greater than that experienced by being involved in an accident oneself. It may be of course that the plaintiff like Mr Page fails on the causation issue, whereas the parent succeeds, but that is hardly the point.

What is of great interest is the differing reactions to the law as it now stands. Some writers argue that the special control mechanisms should be abandoned altogether so that in practice physical and psychiatric injury are treated equally (see Jones 1995). Others argue in effect that too many plaintiffs may fall into the primary category (see Sprince 1995, Trindade 1996). There is concern that a number of secondary victims might try to claim as primary victims and might succeed because they would no longer be subject to these control mechanisms. It is submitted, with respect, that some of the examples given would still involve secondary victims anyway. One of the questions raised by Alan Sprince is with regard to the position if Mrs Bourhill had been hit by flying debris. However in the case itself Lord Thankerton stated (at p99)that "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." Further, another writer raises the following query:

"What of a passenger train which is derailed by the negligence of the engine driver? Is it only the passengers sitting in the derailed carriage or all the passengers on the train who are within the range of foreseeable physical injury?" (Trindade 1996).

It will be for the courts to decide who is to be regarded as a primary victim and that will depend on how narrowly or widely they interpret the zone of danger. A plaintiff who is identified as a primary victim will still have to prove psychiatric illness and causation and providing he can do so should he not be able to claim successfully?

Conclusion

It remains to be seen how many cases there will be like Page v Smith where a primary victim suffers psychiatric injury alone and that will depend to some extent on who the courts regard as a primary victim. What can be said now though is that the case is important in terms of recognising not only the seriousness of both kinds of injury but also the dangers and the inappropriateness of trying to distinguish between them in such situations. This approach is to be welcomed particularly when one considers that if Page had suffered some physical injury such as severe bruising then the issue of foreseeability would not have been raised. However, the decision may also be criticised in that their Lordships were only prepared to adopt that approach with regard to primary victims. It reflects the basic dilemma of where and how to draw the line with regard to liability, demonstrating a continuing acceptance of the floodgates argument. The majority was simply prepared to make it easier for certain plaintiffs to cross the line. It remains to be seen whether it will be adjusted further in subsequent cases.

In conclusion Page v Smith can be described as a case of mere psychiatric injury in the sense of Page suffering that kind of injury alone, but the majority of their Lordships have made it clear that such injury is not to be regarded as something more minor than physical injury. They are both examples of personal injury and that is what we must concentrate on. Let us therefore drop the use of the word 'mere' altogether as not only is it misleading but also it is now unnecessary.

Bibliography

Mullany and Handford (1993) Tort Liability for Psychiatric Damage (Sydney: The Law Book Company Ltd).

Law Commission (1995) Consultation Paper No 137 Liability for Psychiatric Illness (London: HMSO).

Jones, MA (1995) 'Liability for Psychiatric Illness - More Principle, Less Subtlety?' [1995] 4 Web Journal of Current Legal Issues

Sprince A (1995) 'Page v Smith - being 'primary 'colours House of Lords' judgment' 11 Professional Negligence 124.

Trindade FA (1996) 'Nervous Shock and Negligent Conduct' 112 Law Quarterly Review 22.