Page v Smith [1995]

Information about Page v Smith [1995]

Published on June 8, 2020

Author: AmaliaSulaiman2

Source: slideshare.net

Content

1. Question 5 Presented by: AMALIA SULAIMAN UKM LAW SCHOOL 2019

2. 2 Question 5: In cases involving nervous shock, it is essential to distinguish between the primary victim and the secondary victims. In claim by secondary victims the law insists on certain control mechanisms, in order, as a matter of policy, to limit the number of potential claimants. Lord Llyod, Page v Smith (1995)

3. nervous shock! What is nervous shock? 3

4. What is nervous shock? × Duhaime's Law Dictionary: A recognizable psychiatric illness caused by the breach of duty. × Nurchaya Talib, Law of Torts in Malaysia: ‘Nervous shock’- or preferred expression now is ‘psychiatric illness’. Psychiatric illness may occur either as a result of a deliberate act which is intentional in nature, or from negligence. × Alcock v Chief Constable of South Yorkshire Police [1991] All ER 907 Psychiatric illness includes all forms of mental illness, neurosis and personality change that are medically recognised. 4

5. PAGE V SMITH [1995] 2 All ER 736 5

6. Plaintiff × Full name: Ronald Edgar Page × Occupation: school teacher × Status: had been suffering from myalgic encephalomyelitis (ME) / chronic fatigue syndrome (CFS) / post-viral fatigue syndrome (PVFS). Background facts Defendant × Full name: Simon Gerald Toby Smith × Occupation: unknown × Status: father and husband 6

7. FACT OF CASE 1) Plaintiff (P) was driving with due care when suddenly and without warning, Defendant (D) coming in the opposite direction, turned into his path. The impact caused some physical damage to the cars but none to the occupants. However, 3 hours later, P felt exhausted and took to his bed. The exhaustion continued and P never fully recovered. 2) At the time of the appeal, despite the lapse of almost 8 years, P had not yet returned to work. The diagnosis was the recrudescence of a condition known as myalgic encephalomyelitis (ME), from a mild form of which P had suffered sporadically in the past has now become an illness of chronic density and permanency. 3) At first instance, P was awarded damages of over £160,000 but D’s appeal to the Court of Appeal (COA) was allowed, primarily on the basis that it had not been reasonably foreseeable that a person of normal fortitude would have suffered psychiatric injury. P appealed to the House of Lords (HOL). 7

8. ISSUE! What is the issue? 8

9. Whether a driver of a car should reasonably foresee that a person involved in an accident may suffer psychiatric injury/illness of somekind (regardless whether it is accompanied by physical injury or not). 9

10. Rule of law × A distinction must be made between primary and secondary victim. If the plaintiff himself suffers physical injury and consequently psychiatric illness, he is classified as a primary victim. × Per Lord Lloyd, quoting Lord Oliver of Aylmerton in the case Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310: × “He referred to those who are involved in an accident as the primary victims, and those who are not directly involved, but who suffer from what they see or hear, as the secondary victim. This is, in my opinion, the most convenient and appropriate terminology.” 10

11. application × Per Lord Lloyd: In the present case, the plaintiff was a participant. He himself was directly involved in the accident, and well within the range of foreseeable physical injury. He was the primary victim. × In contrast with the present case. On three previous occasions, namely in the case of Bourhill v Young [1943] AC 92, McLoughlin v O’ Brian [1983] 1 AC 410 and Alcock Case [1992], the plaintiffs in these cases were outside the range of foreseeable physical injury. They were the secondary victim of the defendant’s negligence. He or she was in the position of a spectator or bystander. 11

12. Cont… × It is important to foresee psychiatric injury when the plaintiff is the secondary victim because they are almost always outside the range of foreseeable physical injury. But where the plaintiff is the primary victim of the defendant's negligence, the nervous shock cases, by which I mean the cases following on from Bourhill v Young, are not in point. Since the defendant was admittedly under a duty of care not to cause the plaintiff foreseeable physical injury, it was unnecessary to ask whether he was under a separate duty of care not to cause foreseeable psychiatric injury. × It may be said that... [this approach] would open the door too wide, and encourage bogus claims. As for opening the door, this is a very important consideration in claims by secondary victims. It is for this reason that the courts have, as a matter of policy, rightly insisted on a number of control mechanisms. Otherwise, a negligent defendant might find himself being made liable to all the world. 12

13. Cont... × Thus in the case of secondary victims, foreseeability of injury by shock is not enough. The law also requires a degree of proximity: see Alcock [1992] 1 AC 310 at 396 per Lord Keith, and the illuminating judgment of Stuart-Smith LU in McFarlane v EE Caledonia Ltd [1994] 2 All ER 1 at 14. This means not only proximity to the event in time and space, but also proximity of relationship between the primary victim and the secondary victim. A further control mechanism is that the secondary victim will only recover damages for nervous shock if the defendant should have foreseen injury by shock to a person of normal fortitude. × None of these mechanisms are required in the case of primary victim similarly to present case. The negligent defendant takes his victim as he finds him. Before a defendant can be held liable for psychiatric injury suffered by primary victim, he must at least have foreseen the risk of physical injury. 13

14. Held The House of Lords found in favour of P, by a bare majority (Lords Keith and Jauncey dissenting) and held that, provided it was reasonably foreseeable that P would suffer some physical injury as a result of D’s negligence, it was not necessary that the type of harm caused was itself reasonably foreseeable; P was thus within the range of D’s duty of care.

15. references × Nurchaya Talib, Law of Torts × Mark Lunney & Ken Oliphant, Tort Law: Text and Materials × https://publications.parliament.uk/pa/ld199899/ldjudgmt/jd981203/w hite02.htm × https://www.lawteacher.net/free-law-essays/common-law/what-is- nervous-shock.php × http://www.duhaime.org/LegalDictionary/N/NervousShock.aspx × http://www.e-lawresources.co.uk/Page-v-Smith.php × https://webstroke.co.uk/law/cases/page-v-smith-1995 × https://www.lawteacher.net/cases/page-v-smith.php 15

16. THANKS!Any questions? 16

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