Page v Smith

Where a person is directly involved in an accident and exposed to a foreseeable risk of personal injury, the duty of care extends to recognised psychiatric illness even if no physical injury occurs. The claimant need not prove separately that psychiatric injury was foreseeable or that a person of normal fortitude would have suffered it.

Once the duty is established, the defendant takes the claimant as found. A predisposition to psychiatric illness and the illness's unusual form or severity do not exclude liability. Secondary victims remain subject to additional controls, including foreseeable psychiatric injury in a person of normal fortitude and sufficient proximity. Fright, grief or distress without recognised psychiatric illness is not compensable.

In Page v Smith, the claimant was involved in a road collision caused by the defendant's negligence. He sustained no external physical injury but alleged that the collision caused a chronic and permanent recurrence of a pre-existing condition described as myalgic encephalomyelitis or chronic fatigue syndrome.

Otton J found for the claimant and awarded damages of £162,153. The Court of Appeal, reported at [1994] 4 All ER 522, unanimously held that the claimant had to establish that psychiatric injury was reasonably foreseeable in a person of normal fortitude. It entered judgment for the defendant. Ralph Gibson LJ also held that causation had not been proved; the other members did not determine that issue.

The principal issue before the House was whether a participant exposed to foreseeable physical injury had also to establish the separate foreseeability of psychiatric injury.

1. Appeal allowed by a majority of three to two. Lord Lloyd of Berwick delivered the leading speech. Lord Ackner and Lord Browne-Wilkinson agreed with it. Lord Keith of Kinkel and Lord Jauncey of Tullichettle dissented.
2. Per Lord Lloyd, a claimant directly involved in an accident and within the range of foreseeable physical injury is a primary victim. Once the defendant can reasonably foresee that the conduct exposes that claimant to personal injury, a duty of care arises. It is unnecessary to ask separately whether psychiatric injury was foreseeable. Physical and psychiatric injury are not different kinds of personal injury for this purpose.
3. Per Lord Lloyd, the special controls developed in Bourhill v Young [1943] AC 92 and later secondary-victim cases do not govern a primary victim. A primary victim need not show that psychiatric injury was foreseeable in a person of normal fortitude. Foreseeability is assessed prospectively. The absence of physical injury in the event cannot retrospectively remove the duty.
4. Per Lord Lloyd, secondary victims remain subject to control mechanisms. Psychiatric injury must be foreseeable in a person of normal fortitude, and sufficient proximity in time, space and relationship must exist. Hindsight may legitimately assist that inquiry because the actual event and its consequences define the shock-producing circumstances.
5. Per Lord Lloyd, shock, fear or grief alone is not actionable. The shock must result in recognised psychiatric illness. Once a duty to avoid personal injury exists, the defendant takes the claimant as found. Predisposition, unusual severity and the rare form of the illness provide no defence. The inclusive definition of personal injuries in section 38(1) of the Limitation Act 1980 was consistent with that approach.
6. Lord Browne-Wilkinson emphasised the artificiality of a rigid division between physical and psychiatric processes. Lord Ackner agreed with Lord Lloyd and added that, even if foreseeability of psychiatric injury in a person of normal fortitude were required, that risk was foreseeable in this collision. Lord Lloyd reached the same alternative conclusion.
7. Lord Keith and Lord Jauncey would have dismissed the appeal. They considered that every claimant seeking recovery for illness caused solely by nervous shock had to prove that injury by shock was foreseeable in a person of normal fortitude, assessed in light of the events which actually occurred. In their view, the moderate collision did not meet that standard.
8. The Court of Appeal's order was set aside and Otton J's order restored, except on causation and costs. The causation issue was remitted to the Court of Appeal.

• House of Lords: In Page v Smith [1996] AC 155, allowed the claimant's appeal by a majority of three to two, restored Otton J's order except on causation and costs, and remitted causation to the Court of Appeal.
• Court of Appeal: In [1994] 4 All ER 522, unanimously allowed the defendant's appeal and entered judgment for the defendant. Ralph Gibson LJ also decided causation against the claimant.
• High Court: Otton J found for the claimant and awarded £162,153 in damages.