McLoughlin v O’Brian

A negligent defendant may be liable for a recognisable psychiatric illness suffered by a person of normal fortitude through the injury of a close relative. Grief, sorrow and ordinary emotional distress alone remain irrecoverable.

Liability does not require direct physical impact, fear for the claimant’s own safety or presence at the accident. A close relative who comes very soon upon the immediate aftermath may fall within the duty of care, including where the relatives remain in substantially the condition produced by the accident at a nearby hospital. Reasonable foreseeability is essential. Relationship, proximity in time and space, and the means by which the shock occurs are material considerations. General concerns about numerous or fraudulent claims do not justify an arbitrary exclusion of an otherwise foreseeable claim.

The respondents’ negligent driving caused a serious collision in which the appellant’s husband and children were injured and one child died. The appellant was about two miles away. After being told of the accident, she went promptly to hospital and encountered her family while they remained distressed, injured and covered with the effects of the collision.

The trial proceeded on the assumptions that the appellant was of reasonable fortitude and had developed severe shock, organic depression and a personality change because of what she encountered. Boreham J dismissed the claim because psychiatric injury was not reasonably foreseeable.

The Court of Appeal, reported at [1981] 2 W.L.R. 1014, upheld that result. Its members accepted that psychiatric injury was foreseeable, but treated policy or the restricted scope of a motorist’s duty as barring recovery. The central issue before the House was whether a person absent from the accident could recover after directly encountering its consequences at an interval of time and place.

1. Appeal allowed unanimously. The House set aside the Court of Appeal’s order. It declared that the appellant could recover damages for any injury or illness proved to have resulted from the pleaded circumstances, and remitted the cause to the Queen’s Bench Division.

2. Lord Wilberforce and Lord Bridge explained that the common law distinguishes a positive, recognisable psychiatric illness from grief, sorrow or ordinary emotional distress. The former may be actionable without direct physical impact or fear for the claimant’s own safety. The claimant must establish factual causation and psychiatric injury which was reasonably foreseeable in a person of normal fortitude. On the assumed facts, the members of the House regarded such injury as readily foreseeable.

3. Lord Wilberforce identified three matters requiring consideration: the claimant’s relationship with the immediate victim, proximity to the accident in time and space, and the means by which the shock was caused. Existing law recognised the special position of spouses, parents and children. It also extended beyond direct sight or hearing of the collision to direct perception of its immediate aftermath. The hospital scenes formed part of that aftermath because the appellant arrived very soon and her family remained in substantially the condition created by the accident. Lord Edmund-Davies expressly relied on Lord Wilberforce’s reasons.

4. Lord Bridge treated reasonable foreseeability as the governing criterion, to be applied case by case. He approved the relevance of the relational, spatial, temporal and sensory factors discussed in Dillon v Legg, but rejected their conversion into rigid legal barriers. Lord Scarman expressly adopted Lord Bridge’s approach. Lord Russell likewise considered foreseeability sufficient on these facts and declined to prescribe solutions for hypothetical future cases.

5. The speeches differed on the precise role of policy. Lord Wilberforce, Lord Edmund-Davies and Lord Russell accepted that policy could inform the scope of a duty, but found no policy sufficient to defeat this claim. Lord Bridge found no cogent policy supporting a criterion narrower than reasonable foreseeability. Lord Scarman considered that broad social, economic and financial curtailment should be left to Parliament. All five rejected the suggested highway boundary and the general floodgates objection as grounds for denying the appellant recovery.

• House of Lords: Unanimously allowed the appeal in McLoughlin v O’Brian, set aside the Court of Appeal’s order, declared the appellant entitled to recover for such injury or illness as she proved, and remitted the cause to the Queen’s Bench Division.
• Court of Appeal: Dismissed the appellant’s appeal in [1981] 2 W.L.R. 1014. Stephenson LJ treated psychiatric injury as foreseeable and a duty as arising, but held that policy barred recovery. Griffiths LJ treated the injury as foreseeable but confined the motorist’s duty to persons on or near the road.
• Queen’s Bench Division: Boreham J gave judgment for the respondents because psychiatric injury to the appellant was not reasonably foreseeable.