Bourhill v Young

A duty of care in negligence is owed only to persons whom a reasonable person would foresee as likely to be affected by the conduct. For psychiatric injury, physical impact is unnecessary, but the claimant must fall within the foreseeable area of danger. Negligence towards another road user does not itself establish negligence towards a bystander.

A person who merely hears an ordinary collision from a place of safety, without reasonable fear for personal safety or others, is outside the duty where injury by shock could not reasonably have been anticipated. Duty is determined before questions about remoteness or the extent of recoverable consequences arise.

In Bourhill v Young [1943] AC 92, the appellant sought reparation from the executor-dative of a motorcyclist who had died following a collision. She was standing behind a stationary tram, about 45 to 50 feet from the collision. She neither saw the accident nor faced physical danger, but heard the impact and later saw blood on the road. She suffered nervous shock which impaired her ability to work. Her case proceeded on the express basis that she had experienced no reasonable fear of immediate bodily injury to herself.

Lord Robertson, sitting as Lord Ordinary, initially dismissed the action as irrelevant. The Extra Division remitted it for proof before answer. After proof, the Lord Ordinary assoilzied the respondent because the motorcyclist had owed the appellant no duty of care. The Second Division affirmed that decision, Lord Justice Clerk Aitchison dissenting. The central issue before the House was whether injury by shock to a person in the appellant's position was sufficiently foreseeable to bring her within the motorcyclist's duty of care.

Appeal dismissed unanimously. All five Law Lords concluded that the deceased motorcyclist had owed the appellant no duty of care. The judgment of the Second Division was affirmed.

1. Lord Thankerton, Lord Russell of Killowen, Lord Macmillan, Lord Wright and Lord Porter each treated negligence as relational. A person may be negligent towards one road user without being negligent towards another. A duty arises only towards persons so placed that a reasonable person should contemplate that the impugned conduct might injure them.

2. Lord Thankerton described the relevant inquiry as whether the appellant fell within the reasonably contemplated area of potential danger. Lord Russell and Lord Macmillan similarly asked whether a person in her position could reasonably have been expected to suffer injury. The appellant was concealed from the motorcyclist by the tram, was outside the physical range of the collision and relied solely on shock caused by its sound. All five Law Lords held that injury to her by that means was not reasonably foreseeable.

3. Lord Macmillan and Lord Wright confirmed that psychiatric injury may be actionable despite the absence of impact or direct physical contact. Lord Wright and Lord Porter added that reasonable foreseeability normally assumes a person of ordinary susceptibility or fortitude. An unknown exceptional vulnerability cannot make a defendant an insurer against reactions which an ordinary person would not be expected to suffer.

4. Lord Russell, Lord Macmillan, Lord Wright and Lord Porter distinguished the existence of a duty from the remoteness or extent of damage. The appellant could not build her claim upon the motorcyclist's admitted negligence towards the driver of the car. The rule discussed in In re Polemis and Furness, Withy & Co. [1921] 3 K.B. 560 concerning unforeseen direct consequences could arise only after a wrong to the particular claimant had been established.

5. The House did not decide whether psychiatric injury invariably requires reasonable fear of immediate personal injury to the claimant. Lord Russell preferred the restrictive view, whereas Lord Wright provisionally agreed with the wider approach in Hambrook v Stokes Brothers [1925] 1 K.B. 141. The other speeches reserved or avoided a final conclusion. Several Law Lords nevertheless disapproved or doubted the wider spectator liability recognised in Owens v Liverpool Corporation [1939] 1 K.B. 394.

6. The House ordered the appellant to pay the respondent's costs of the appeal. It did not disturb the earlier award of expenses arising from the preliminary relevancy proceedings.

1. House of Lords: The appeal in Bourhill v Young [1943] AC 92 was dismissed unanimously. The judgment appealed from was affirmed, with costs of the appeal against the appellant.
2. Court of Session, Second Division: The court affirmed the Lord Ordinary's post-proof decision assoilzieing the respondent. Lord Justice Clerk Aitchison dissented.
3. Earlier Court of Session proceedings: Lord Robertson initially dismissed the action as irrelevant. On reclaiming motion, the Extra Division remitted the case for proof before answer. After proof, Lord Robertson held that no duty had been owed to the appellant and assoilzied the respondent.