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

A pregnant woman suffered nervous shock and a stillbirth after hearing a motorcycle accident 50 feet away, although she did not see it. The House of Lords held the motorcyclist did not owe her a duty of care as she was an unforeseeable victim.

Facts

The appellant, Mrs Bourhill, a pregnant fishwife, was alighting from the driver’s side of a tramcar. At that moment, the respondent, John Young, riding a motorcycle at an excessive speed, passed the tram on its other side and violently collided with a motor car approximately 50 feet away. The appellant did not see the collision itself, as her view was obstructed by the tram, but she heard the loud crash. Shortly after, she approached the scene and saw blood on the roadway after the body had been removed. She suffered a fright and severe nervous shock which, she claimed, resulted in her child being stillborn one month later. She brought an action for damages against the respondent’s estate.

Issues

The central legal issue was whether the motorcyclist, John Young, owed a duty of care to the appellant, Mrs Bourhill. The key questions for the court were:

1. Was the appellant a ‘foreseeable plaintiff’ to whom the motorcyclist owed a duty of care, despite her being physically outside the immediate area of the collision?
2. Could the motorcyclist have reasonably foreseen that his negligent driving would cause injury through nervous shock to a person in the appellant’s position?
3. Does a duty of care extend to persons who suffer psychiatric harm as a result of witnessing the aftermath of an accident, a person of ‘ordinary fortitude’, or is it limited to those in the area of potential physical impact?

Judgment

The House of Lords unanimously found in favour of the respondent, dismissing the appeal. It was held that no duty of care was owed to the appellant as she was not a foreseeable victim of the motorcyclist’s negligence.

Lord Thankerton

Lord Thankerton held that the motorcyclist was in breach of his duty towards the other vehicle’s driver, but not towards the appellant. He argued that the appellant was not in the area of potential physical danger and, therefore, the risk of her suffering injury by nervous shock was not something the cyclist could have reasonably foreseen. He stated that a duty is not owed to the world at large.

Lord Russell of Killowen

Lord Russell focused on the physical position of the appellant, concluding she was not within the area where injury was a foreseeable consequence of the negligent driving. He stated that a duty of care arises if a person is foreseeably in a ‘situation of potential danger’ resulting from the negligence, which the appellant was not. He remarked:

…the Appellant was not in a situation of potential danger, and it was her presence in that situation which was unknown to Young. Could the Respondent be held liable as for a breach of duty owed by Young to the Appellant? In my opinion, he cannot…

Lord Macmillan

Lord Macmillan delivered a key speech on the test of foreseeability. He argued that the duty to take care is owed only to those persons to whom injury can be reasonably and probably anticipated if the duty is not observed. The appellant was not such a person. He famously articulated the principle:

The duty to take care is the duty to avoid doing or omitting to do anything the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed.

Lord Wright

Lord Wright distinguished between the type of injury (physical or psychiatric) and the primary question of whether a duty was owed at all. He confirmed that injury from shock is a valid claim, but only if the claimant is foreseeable. He introduced the concept of the person of ‘normal fortitude’, suggesting that one cannot expect a defendant to anticipate injury to an unusually susceptible person. He stated:

…the test of the Plaintiff’s right to recover is not her proximity in a merely physical sense, but the reasonable foreseeability on the part of the wrongdoer of the risk of injury in the circumstances to a person of normal fortitude.

Lord Porter

Lord Porter agreed that foreseeability was the crucial test. He determined that the appellant was too remote from the accident for the motorcyclist to have reasonably anticipated that his actions would cause her harm. He noted that allowing such a claim would create an unmanageably wide scope of liability:

…the driver of a car or vehicle, even though careless, is not to be held responsible for injury to every person who is terrified by seeing an accident to others.

Implications

The decision in Bourhill v Young was pivotal in shaping the law on negligence and psychiatric injury (‘nervous shock’). It established a restrictive approach by creating the ‘unforeseeable plaintiff’ doctrine. The case significantly narrowed the scope of potential claimants to those who were within the area of foreseeable physical impact, or to whom the risk of psychiatric harm was itself foreseeable. It drew a firm line between primary victims (those in the zone of danger) and secondary victims (bystanders or witnesses), holding that a duty of care is generally not owed to a secondary victim unless their presence and the risk of shock to them were reasonably foreseeable. This case stands as a key authority on the limits of the duty of care, emphasising the importance of proximity and foreseeability in containing the ‘floodgates’ of litigation for psychiatric harm.

Verdict: The appeal was dismissed.

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