Page v Smith [1995] UKHL 7

Mr Page, with a pre-existing chronic fatigue condition, was involved in a car collision caused by Mr Smith but suffered no physical injury. He later developed permanent relapse of his condition. The House of Lords held that as a primary victim he only needed to show foreseeable personal injury, not specifically psychiatric harm.

Facts

On 24 July 1987 the plaintiff, Mr Page, was driving his Volvo in Bury St Edmunds when the defendant, Mr Smith, turned his Datsun across the road into a side street, causing a collision.

No one involved suffered bodily injury and Mr Page was able to drive his damaged car home. However, he had a long-standing condition described as myalgic encephalomyelitis (ME), chronic fatigue syndrome (CFS) or post-viral fatigue syndrome (PVFS). He had suffered a particularly severe attack in March 1987 but believed he was recovering and hoped to return to teaching in September 1987.

Following the accident, about three hours later, Mr Page experienced symptoms indicating a recrudescence of his CFS, which, on the trial judge’s findings, became chronic and permanent such that he would never work again.

Mr Page sued Mr Smith for negligence, claiming that the accident caused a relapse of his condition. Otton J found for Mr Page and awarded £162,153 in damages. The Court of Appeal (Ralph Gibson, Farquharson and Hoffmann LJJ) reversed that decision and entered judgment for the defendant. Mr Page appealed to the House of Lords.

Issues

Primary legal issue

The central question was the scope of the duty of care in claims for what the judgment calls “nervous shock” (recognisable psychiatric illness or illness resulting from shock):

• Must a plaintiff always prove that injury by nervous shock itself was reasonably foreseeable?
• Or, where the plaintiff is personally involved in the accident (a primary victim), is it sufficient that some form of personal injury was reasonably foreseeable, even if the particular psychiatric or shock-induced illness was not?

Related issues

• Whether the distinction between primary and secondary victims has legal consequences for foreseeability and duty.
• Whether the “normal fortitude” test and the special control mechanisms for nervous shock cases apply to primary victims.
• Whether foreseeability in nervous shock cases is assessed prospectively or ex post facto.
• Whether, on the facts, psychiatric injury was reasonably foreseeable in a person of normal fortitude.
• Causation: whether the accident in fact caused the recrudescence of Mr Page’s CFS (left unresolved by two members of the Court of Appeal and remitted by the House).

Judgment

Outcome and formal order

The House of Lords was divided. By a majority (Lords Ackner, Browne-Wilkinson and Lloyd of Berwick), the appeal was allowed. Lords Keith of Kinkel and Jauncey of Tullichettle dissented and would have dismissed the appeal.

The House ordered that the Court of Appeal’s order be set aside and that the order of Otton J be restored, save as to the issue of causation and costs. The issue of causation was remitted to the Court of Appeal for determination.

“It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty’s Court of Appeal of the 30th day of March 1994 complained of in the said Appeal be, and the same is hereby, Set Aside and that the Order of the Honourable Mr. Justice Otton of the 22nd day of October 1992 be, and the same is hereby, Restored save as to the issue of causation and as to costs: And it is further Ordered, That the issue of causation be remitted back to the Court of Appeal for determination…”

Majority reasoning (Lords Lloyd, Ackner and Browne-Wilkinson)

Primary vs secondary victims

Lord Lloyd emphasised the factual and legal distinction between primary and secondary victims of an accident:

“In all these cases the plaintiff was the secondary victim of the defendant’s negligence. He or she was in the position of a spectator or bystander. In the present case, by contrast, the plaintiff was a participant. He was himself directly involved in the accident, and well within the range of foreseeable physical injury. He was the primary victim.”

He explained that earlier House of Lords nervous shock decisions (Bourhill v Young, McLoughlin v O’Brian, Alcock) all concerned secondary victims, outside the range of foreseeable physical injury, where foreseeability of psychiatric harm and additional control mechanisms were essential.

Single duty of care to avoid personal injury

Lord Lloyd held that where the plaintiff is a primary victim, once it is reasonably foreseeable that the defendant’s negligence may cause personal injury (physical or psychiatric), a duty of care arises; it is unnecessary and inappropriate to ask separately whether psychiatric injury was foreseeable.

“Foreseeability of psychiatric injury remains a crucial ingredient when the plaintiff is the secondary victim … But where the plaintiff is the primary victim of the defendant’s negligence, the nervous shock cases, by which I mean the cases following on from Bourhill v. Young, are not in point. Since the defendant was admittedly under a duty of care not to cause the plaintiff foreseeable physical injury, it was unnecessary to ask whether he was under a separate duty of care not to cause foreseeable psychiatric injury.”

He preferred the “simplicity” of Otton J’s approach and saw no justification for treating physical and psychiatric injury as different “kinds” of damage for duty purposes:

“There are numerous other statutory definitions to the same effect. In the case of a secondary victim, the question will usually turn on whether the foreseeable injury is psychiatric, for the reasons already explained. In the case of a primary victim the question will almost always turn on whether the foreseeable injury is physical. But it is the same test in both cases, with different applications. There is no justification for regarding physical and psychiatric injury as different ‘kinds’ of injury.”

He endorsed Geoffrey Lane J’s reasoning in Malcolm v Broadhurst that “there is no difference in principle between an egg-shell skull and an egg-shell personality” and that once foreseeable personal injury is established, the defendant must take the victim as found.

Control mechanisms confined to secondary victims

For secondary victims (bystanders), the law uses policy-based control mechanisms (such as requirements of close relationship, proximity in time and space, and the normal fortitude test) to limit liability and avoid indeterminate defendants’ exposure. Lord Lloyd stated:

“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 … A further control mechanism is that the secondary victim will only recover damages for nervous shock if the defendant should have foreseen injury by shock to a person of normal fortitude or ‘ordinary phlegm’.”

He held that these mechanisms “have no place where the plaintiff is the primary victim” because proximity and claimant numbers are inherently limited and the defendant already owes a duty in respect of foreseeable physical injury.

No “ordinary phlegm” test for primary victims

Lord Lloyd rejected importing the “normal fortitude” requirement into primary victim cases. Once a duty arises to avoid personal injury, the thin skull rule applies:

“Nor in the case of a primary victim is it appropriate to ask 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. The same should apply in the case of psychiatric injury. There is no difference in principle … between an eggshell skull and an eggshell personality.”

Hindsight and foreseeability

He distinguished the ex post facto approach to foreseeability appropriate for secondary victims (where the outcome of the accident must be known to assess whether psychiatric harm to a distant observer was foreseeable) from primary victim cases. For primary victims, liability must depend on what was reasonably foreseeable before the event; the defendant cannot rely on the fortuitous absence of physical injury to defeat a claim for shock-induced illness.

Application to Mr Page

On the facts, the defendant clearly should have foreseen that negligent driving creating a head-on collision risk could cause physical injury to Mr Page as another road user. Mr Page was therefore within the scope of the defendant’s duty of care as a primary victim. It was legally irrelevant that he in fact suffered no external physical injury and that the actual damage manifested as a chronic relapse of CFS brought about through shock.

Lord Lloyd considered that even if the Court of Appeal’s stricter test were applied, it was wrong to hold that psychiatric injury was not foreseeable in a person of normal fortitude when cars collide at 30 mph:

“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. In my opinion, the Court of Appeal were wrong to find that psychiatric illness, in some form, was not a foreseeable consequence of the accident in a person of normal fortitude. But for reasons already mentioned, I do not regard that as the relevant test.”

Summary propositions

Lord Lloyd concluded with a set of propositions, including:

“In cases involving nervous shock, it is essential to distinguish between the primary victim and secondary victims;”
“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.”
“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… The defendant must take his victim as he finds him.”

Concurring reasoning (Lord Browne-Wilkinson)

Lord Browne-Wilkinson agreed with Lord Lloyd and elaborated on the medical and conceptual problems created by trying to draw a strict line between physical and psychiatric injuries.

He noted that medical science recognises that some injuries (such as heart attacks or miscarriages) can be caused “by a psychiatric route” and that psychiatric illness itself can be a foreseeable consequence of accidents, as cases like Dulieu v White & Sons and Scottish authorities showed.

He emphasised that the absence of tangible physical injury is irrelevant where the plaintiff has in fact suffered illness via shock:

“It follows that in the present case the fact that the plaintiff suffered no tangible physical injury is irrelevant to the question whether or not he is entitled to recover damages for the recrudescence of his illness. On the judge’s findings, the plaintiff suffered injury (the recrudescence of his illness) by the psychiatric route i.e. by reason of shock exacerbating his condition.”

In his view, any careful driver should reasonably foresee that careless driving may cause either physical or psychiatric injury to other road users involved in an accident, and once such a duty exists, the defendant must take the plaintiff as found, even if he is “an eggshell personality”.

Concurring reasoning (Lord Ackner)

Lord Ackner agreed with Lord Lloyd and would allow the appeal. Addressing an alternative argument, he considered that even if it were necessary to establish foreseeability of nervous shock in a person of normal fortitude, the risk here was real and not “so farfetched or fantastic” as to be ignored under The Wagon Mound (No. 2). He considered that a person of normal fortitude could be terrified by a collision of this type, potentially leading to post-traumatic neurosis.

Dissenting reasoning (Lords Keith and Jauncey)

Foreseeability of nervous shock as a distinct requirement

Lord Keith (with whom Lord Jauncey broadly agreed) took the view that in all nervous shock cases, whether involving primary or secondary victims, liability depends on reasonable foreseeability of injury by nervous shock, not merely foreseeability of some personal injury. He relied on authorities such as Bourhill v Young, King v Phillips, The Wagon Mound cases and Australian decisions.

“The question primarily at issue is whether in claims for damages due to nervous shock it is in all cases incumbent upon the plaintiff to prove that injury by nervous shock was reasonably foreseeable by the defendant, or whether it suffices, where the plaintiff was himself involved in an accident, for him to prove that personal injury of some kind was reasonably foreseeable as a result of it. The trial judge took the latter view but the Court of Appeal unanimously took the former…”

He considered that the general requirement from negligence law (that the damage be of a class or character foreseeable as a possible result) applies equally to primary and secondary victims and that there is “no logical ground for distinguishing between the two classes of claimants” on this point.

Normal fortitude and ex post facto assessment

Lord Keith affirmed that foreseeability of nervous shock must be judged by reference to a person of normal fortitude and that the circumstances are to be considered as they actually occurred (the ex post facto approach from Bourhill and McLoughlin). Lord Jauncey likewise emphasised that the need to prove foreseeability of psychiatric illness applies generally and that victims are assumed to have reasonable fortitude unless the defendant has special knowledge.

Application to the facts

Lord Keith accepted proximity and foreseeability of physical injury but concluded that the accident, described as of “moderate severity” with no bodily injuries, would not lead a reasonable person to foresee shock-induced illness in a person of normal susceptibility. The plaintiff did not report terror or acute emotional trauma; any illness was attributable to his peculiar susceptibility. Lord Jauncey stressed the relative ordinariness of a collision where only property damage occurred and contrasted it with the dramatic and horrifying events in earlier successful nervous shock cases.

Both dissenting Law Lords therefore would have held that the plaintiff failed to show that nervous shock leading to illness was reasonably foreseeable and would have dismissed the appeal.

Implications

Clarification of duty in psychiatric injury cases

The decision draws a fundamental distinction between primary and secondary victims in nervous shock jurisprudence:

• For primary victims (those directly involved in the accident and within range of foreseeable physical injury), the defendant owes a duty if it is reasonably foreseeable that his negligence may cause personal injury of some kind. Once that duty exists, the defendant is liable for any resultant recognised psychiatric illness, even absent physical injury, and must take the victim as found.
• For secondary victims (bystanders or witnesses), the law continues to require foreseeability of psychiatric injury in a person of normal fortitude, plus additional control mechanisms concerning relationship, proximity in time and space, and the nature of the event.

Unified concept of personal injury

The majority stressed that physical and psychiatric injuries are not different “kinds” of damage for the purposes of duty and foreseeability, recognising the close interrelation of physical and mental processes and accommodating modern medical understanding. The approach avoids requiring separate duties for physical and psychiatric harm in ordinary personal injury litigation.

Thin skull principle extended to psychiatric illness

The case confirms that the thin skull rule applies equally to psychiatric conditions and psychologically mediated physical illnesses. Where a duty to avoid personal injury is established, unusual susceptibility, “eggshell personality” or the rare form or severity of the illness do not limit liability, provided a recognised psychiatric illness is proved.

Continued need for genuine psychiatric illness

The House reaffirmed that mere fright, anxiety or grief remain non-compensable. Compensable damage requires a recognised psychiatric illness or medically accepted illness arising from shock. Courts must remain vigilant against unsupported or exaggerated claims.

Procedural consequence

Although the House resolved the duty and foreseeability issues in favour of Mr Page, it left causation open and remitted that question to the Court of Appeal, reflecting the complexity of establishing causal links in medically controversial conditions like CFS/ME.

Verdict: Appeal allowed; the House of Lords set aside the Court of Appeal’s order and restored Otton J’s judgment in favour of the plaintiff, save that the issue of causation and questions of costs were remitted to the Court of Appeal for determination.

Source: Page v Smith [1995] UKHL 7