Page v Smith

The House considered whether a plaintiff who is a primary victim of a negligent accident must prove that psychiatric injury (nervous shock) specifically was reasonably foreseeable, or whether it is sufficient that personal injury generally was foreseeable. The Lords held that, for a primary victim, the correct single test is whether the defendant could reasonably foresee that his conduct would expose the plaintiff to the risk of personal injury (physical or psychiatric). The special foreseeability and proximity controls developed for secondary victims remain applicable to bystanders but do not apply to primary victims. The House restored the trial judge's order in favour of the plaintiff save for the question of causation, which was remitted to the Court of Appeal.

This was an appeal from a judgment of the Court of Appeal which had reversed the trial judge and entered judgment for the defendant. The plaintiff (Page) was involved as a driver in a road collision caused by the defendant (Smith). Although no external physical injury resulted, the plaintiff alleged that the accident produced a recrudescence of a pre-existing chronic fatigue/myalgic encephalomyelitis condition such that he became chronically incapacitated and sought damages for personal injury.

The parties' dispute focused on the legal test for recovery when injury results from "nervous shock": whether a primary victim must show that psychiatric injury in particular was reasonably foreseeable, or whether foreseeability that any personal injury might result is sufficient. The procedural path was: trial before Otton J. (judge found for plaintiff and awarded damages), reversal by the Court of Appeal (30 March 1994), then appeal to the House of Lords.

The House framed the issues as:

• whether the foreseeability test for psychiatric injury differs between primary victims (those directly involved) and secondary victims (bystanders);
• whether the defendant should be taken to have owed a duty to avoid psychiatric injury to a primary victim where physical injury was foreseeable; and
• whether the plaintiff's recrudescence of his illness was caused by the accident.

Reasoning: the Lords distinguished primary and secondary victims and explained that the additional limiting rules (proximity requirements and the requirement that psychiatric injury be foreseeable to a person of normal fortitude) apply chiefly to secondary victims to prevent an unbounded class of claimants. In contrast, where the claimant is a primary victim who was within the range of foreseeable personal injury, the defendant owes the usual duty to take care and must take the victim "as he finds him"; it is therefore unnecessary to require separate proof that psychiatric injury in particular was foreseeable. The House therefore restored Otton J.'s judgment in the plaintiff's favour except that the issue of causation (which some Lords considered not finally determined on the evidence) was remitted to the Court of Appeal.

Appeal allowed in part. The House held that where the claimant is a primary victim (directly involved in the accident) the ordinary negligence test applies: the defendant is liable if he should reasonably have foreseen that his conduct would expose the claimant to risk of personal injury, whether physical or psychiatric. The special foreseeability/proximity constraints that apply to secondary victims do not apply to primary victims. The Court restored the trial judge's order except that the issue of causation was remitted to the Court of Appeal for determination.

Trial before Otton J. (judge found for plaintiff and awarded damages); Court of Appeal reversed that judgment and entered judgment for the defendant (Court of Appeal judgment: reported [1994] 4 All E.R. 522, decision dated 30 March 1994); appeal to the House of Lords allowed in part ([1995] UKHL 7) with causation remitted to the Court of Appeal.