Bourhill v Young [1942] UKHL 5 (05 August 1942)

A pregnant fishwife suffered nervous shock after hearing a motorcycle collision approximately 50 feet away, though she was never in physical danger and saw nothing of the accident itself. The House of Lords held the motorcyclist owed her no duty of care as she was outside the foreseeable area of potential danger.

Facts

The Appellant, a fishwife who was eight months pregnant, alighted from a tramcar on Colinton Road, Edinburgh, on 11th October 1938. While collecting her fishbasket from the tramcar’s platform with her back turned, a motorcyclist (John Young) riding at excessive speed passed on the near side of the tram and collided with a motor car turning into Glenlockhart Road. The collision occurred approximately 45-50 feet from where the Appellant stood. The motorcyclist died from his injuries. The Appellant heard the noise of the collision but saw nothing of the accident itself. She later approached and saw blood on the roadway. She suffered nervous shock affecting her ability to work, and subsequently gave birth to a stillborn child.

Amendment to Pleadings

The Appellant’s case was amended in the Inner House to include the averment that her terror did not involve any element of reasonable fear of immediate bodily injury to herself.

Issues

The central legal issue was whether the deceased motorcyclist owed a duty of care to the Appellant, and if so, whether that duty was breached. The specific questions were:

• Whether a duty of care extends to a person who suffers nervous shock from hearing an accident but who was never in physical danger
• Whether foreseeability of harm determines the existence and scope of the duty of care
• Whether the Appellant was within the area of potential danger that the motorcyclist should reasonably have contemplated

Judgment

The House of Lords unanimously dismissed the appeal, affirming the decision of the Second Division of the Court of Session.

Lord Thankerton

Lord Thankerton held that the test of proximity or remoteness required that injury must be within what the cyclist ought reasonably to have contemplated as the area of potential danger arising from his negligence. The Appellant was not within that area because the cyclist had his machine under control, was well past the tramcar at the time of collision, and the Appellant was not within his range of vision.

Lord Russell of Killowen

Lord Russell emphasised that to establish negligence, the pursuer must show the existence of a duty owed to her by the deceased which he breached. He held that John Young could not reasonably have anticipated that a person situated as was the Appellant would be affected by his driving. The Appellant was behind a tramcar, out of sight, and the cyclist’s speed in no way endangered her directly.

Lord Macmillan

Lord Macmillan stated that the duty to take care is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed. The Appellant was not so placed that there was any reasonable likelihood of her being affected by the deceased’s careless driving. While the cyclist was negligent towards the occupants of the motor car, he owed no duty to foresee that his collision might result in shock injury to the Appellant.

Lord Wright

Lord Wright held that negligence is a fluid principle applied to diverse circumstances and must be fitted to the particular facts. He noted that the Appellant was completely outside the range of the collision and merely heard a noise which upset her without any definite idea of what occurred. He could not accept that the cyclist should reasonably have foreseen that anyone in the Appellant’s position could be affected as she was.

Lord Porter

Lord Porter held that in civil actions there is no negligence in the abstract; there must be neglect of care towards a person to whom a duty is owed. The duty is not to the world at large but must be tested by asking whether a duty was owed to each complainant. The driver is entitled to assume that ordinary frequenters of streets have sufficient fortitude to endure incidents that may occur, including the noise of collisions.

Implications

This case established important principles regarding nervous shock (now termed psychiatric injury) claims:

• A duty of care for nervous shock does not extend to all persons who might conceivably be affected by negligent conduct
• The claimant must be within the foreseeable area of potential danger
• Foreseeability of harm to the particular claimant is essential to establish a duty of care
• The standard of foreseeability is that of a person of ordinary fortitude, not one of particular susceptibility

The case remains a foundational authority on the limits of liability for psychiatric injury and the requirement that claimants establish they were within the range of foreseeable harm.

Verdict: Appeal dismissed. The House of Lords affirmed the judgment of the Second Division of the Court of Session, holding that the deceased motorcyclist owed no duty of care to the Appellant and was therefore not liable for her nervous shock.

Source: Bourhill v Young [1942] UKHL 5 (05 August 1942)