Page v Smith

The law does not treat psychiatric injury as a separate special tort for primary victims; instead, a defendant who reasonably foresaw a risk of personal injury owed a duty in respect of that risk whether the injury was physical or psychiatric. For secondary victims additional control mechanisms apply. In secondary-victim claims the court requires foreseeability of psychiatric injury to a person of normal fortitude and close proximity in relationship, time and space.

The appellant (driver) was involved in a road collision. He suffered a recrudescence of a pre-existing illness (M.E./CFS) after the accident. At trial Otton J. found for the plaintiff and awarded damages. The Court of Appeal reversed. The House of Lords heard the appeal on whether a participant in an accident must prove that psychiatric injury specifically was reasonably foreseeable, or whether foreseeability of personal injury generally suffices. The House restored Otton J.'s judgment except that the question of causation was remitted to the Court of Appeal.

1. Disposition: The appeal is allowed. The judgment of Otton J. is restored save that the issue of causation is remitted to the Court of Appeal for determination.
2. General rule: The correct single inquiry is whether the defendant could reasonably foresee that his conduct would expose the plaintiff to the risk of personal injury, physical or psychiatric. If so a duty of care exists. ([1995] UKHL 7)
3. Primary v secondary victims: Distinguish primary (directly involved) and secondary (bystanders) victims. For primary victims the ordinary duty to avoid foreseeable personal injury governs. For secondary victims additional policy-based control mechanisms apply, including foreseeability of psychiatric injury to a person of normal fortitude and proximity requirements. (see paras [Lloyd of Berwick]; McLoughlin v. O'Brian cited)
4. Foreseeability timing: Hindsight (ex post facto consideration of what happened) may be necessary to apply the foreseeability test for secondary victims but not for primary victims; primary-victim liability depends on what a reasonable actor should have foreseen before the event.
5. Eggshell rule: Where duty is established the defendant takes the plaintiff as he finds him. Pre-disposition or unusual susceptibility is not a bar to recovery once duty and causation are proved.
6. Application to facts: The House concluded that the Court of Appeal were wrong to displace the trial judge's approach that, as a primary victim, the plaintiff fell within the defendant's duty to avoid foreseeable personal injury. For causation (whether accident caused the chronic recrudescence of M.E.) the matter is remitted to the Court of Appeal.
7. Order: Appeal allowed; Otton J.'s order restored except causation and costs; causation remitted to the Court of Appeal; costs in this House to the appellant.

• House of Lords: Appeal allowed; restored trial judge's decision save for causation; causation remitted to the Court of Appeal. ([1995] UKHL 7)
• Court of Appeal: Judgment for defendant, reversing Otton J. ([1994] 4 All E.R. 522)
• High Court (Queen's Bench, trial): Otton J. found for plaintiff and awarded damages (restored by this House).