Case analysis & Problem Solving Question

1. Question 5
Presented by:
AMALIA SULAIMAN
UKM LAW SCHOOL 2019

2. 2
Question 5:
In cases involving nervous shock, it is essential to distinguish
between the primary victim and the secondary victims. In
claim by secondary victims the law insists on certain control
mechanisms, in order, as a matter of policy, to limit the
number of potential claimants.
Lord Llyod, Page v Smith (1995)

3. nervous shock!
What is nervous shock?
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4. What is nervous shock?
× Duhaime's Law Dictionary:
A recognizable psychiatric illness caused by the breach of duty.
× Nurchaya Talib, Law of Torts in Malaysia:
‘Nervous shock’- or preferred expression now is ‘psychiatric illness’. Psychiatric illness may
occur either as a result of a deliberate act which is intentional in nature, or from
negligence.
× Alcock v Chief Constable of South Yorkshire Police [1991] All ER 907
Psychiatric illness includes all forms of mental illness, neurosis and personality change
that are medically recognised.
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5. PAGE V SMITH [1995]
2 All ER 736
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6. Plaintiff
× Full name: Ronald Edgar Page
× Occupation: school teacher
× Status: had been suffering
from myalgic
encephalomyelitis (ME) /
chronic fatigue syndrome
(CFS) / post-viral fatigue
syndrome (PVFS).
Background facts
Defendant
× Full name: Simon Gerald
Toby Smith
× Occupation: unknown
× Status: father and husband
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7. FACT OF CASE
1) Plaintiff (P) was driving
with due care when
suddenly and without
warning, Defendant (D)
coming in the opposite
direction, turned into his
path. The impact caused
some physical damage to
the cars but none to the
occupants. However, 3
hours later, P felt exhausted
and took to his bed. The
exhaustion continued and P
never fully recovered.
2) At the time of the
appeal, despite the lapse
of almost 8 years, P had
not yet returned to work.
The diagnosis was the
recrudescence of a
condition known as
myalgic encephalomyelitis
(ME), from a mild form of
which P had suffered
sporadically in the past
has now become an illness
of chronic density and
permanency.
3) At first instance, P was
awarded damages of over
£160,000 but D’s appeal to
the Court of Appeal (COA)
was allowed, primarily on
the basis that it had not
been reasonably
foreseeable that a person
of normal fortitude would
have suffered psychiatric
injury. P appealed to the
House of Lords (HOL).
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8. ISSUE!
What is the issue?
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9. Whether a driver of a car should
reasonably foresee that a person
involved in an accident may suffer
psychiatric injury/illness of
somekind (regardless whether it is
accompanied by physical injury or
not).
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10. Rule of law
× A distinction must be made between primary and secondary victim. If the
plaintiff himself suffers physical injury and consequently psychiatric illness,
he is classified as a primary victim.
× Per Lord Lloyd, quoting Lord Oliver of Aylmerton in the case Alcock v Chief
Constable of the South Yorkshire Police [1992] 1 AC 310:
× “He referred to those who are involved in an accident as the primary victims,
and those who are not directly involved, but who suffer from what they see or
hear, as the secondary victim. This is, in my opinion, the most convenient and
appropriate terminology.”
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11. application
× Per Lord Lloyd: In the present case, the plaintiff was a participant.
He himself was directly involved in the accident, and well within the
range of foreseeable physical injury. He was the primary victim.
× In contrast with the present case. On three previous occasions,
namely in the case of Bourhill v Young [1943] AC 92, McLoughlin v O’
Brian [1983] 1 AC 410 and Alcock Case [1992], the plaintiffs in these
cases were outside the range of foreseeable physical injury. They
were the secondary victim of the defendant’s negligence. He or she
was in the position of a spectator or bystander.
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12. Cont…
× It is important to foresee psychiatric injury when the plaintiff is the secondary
victim because they are almost always outside the range of foreseeable
physical injury. 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.
× It may be said that... [this approach] would open the door too wide, and
encourage bogus claims. As for opening the door, this is a very important
consideration in claims by secondary victims. It is for this reason that the
courts have, as a matter of policy, rightly insisted on a number of control
mechanisms. Otherwise, a negligent defendant might find himself being made
liable to all the world.
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13. Cont...
× Thus in the case of secondary victims, foreseeability of injury by shock is not
enough. The law also requires a degree of proximity: see Alcock [1992] 1 AC 310
at 396 per Lord Keith, and the illuminating judgment of Stuart-Smith LU in
McFarlane v EE Caledonia Ltd [1994] 2 All ER 1 at 14. This means not only
proximity to the event in time and space, but also proximity of relationship
between the primary victim and the secondary victim. 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.
× None of these mechanisms are required in the case of primary victim similarly
to present case. The negligent defendant takes his victim as he finds him.
Before a defendant can be held liable for psychiatric injury suffered by primary
victim, he must at least have foreseen the risk of physical injury.
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14. Held
The House of Lords found in favour of P,
by a bare majority (Lords Keith and
Jauncey dissenting) and held that,
provided it was reasonably foreseeable
that P would suffer some physical injury
as a result of D’s negligence, it was not
necessary that the type of harm caused
was itself reasonably foreseeable; P was
thus within the range of D’s duty of care.

15. references
× Nurchaya Talib, Law of Torts
× Mark Lunney & Ken Oliphant, Tort Law: Text and Materials
× https://publications.parliament.uk/pa/ld199899/ldjudgmt/jd981203/w
hite02.htm
× https://www.lawteacher.net/free-law-essays/common-law/what-is-
nervous-shock.php
× http://www.duhaime.org/LegalDictionary/N/NervousShock.aspx
× http://www.e-lawresources.co.uk/Page-v-Smith.php
× https://webstroke.co.uk/law/cases/page-v-smith-1995
× https://www.lawteacher.net/cases/page-v-smith.php
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16. THANKS!Any questions?
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