In this article, Sagnik Chatterjee, who is currently in IInd Year pursuing BA.LL.B, from Symbiosis Law School, Pune, analyzes the case Hambrook v. Stokes Bros.
 1 KB 141, 94 LJKB 435, 132 LT 707
Atkin, Bankes, Sargant LJJ
Relevant Act/ Section
The Fatal Accidents Act 1846 (9 & 10 Vict. c.93), commonly known as Lord Campbell’s Act, was an Act of the Parliament of the United Kingdom that, for the first time in England and Wales, allowed relatives of people killed by the wrongdoing of others to recover damages. The Act came into effect in August 1846 and gave personal representatives the right to bring a legal action for damages where the deceased person had such a right at the time of their death. Compensation was restricted to the husband, parent, or child of the deceased and was for “such damages … proportioned to the injury resulting from such death.” The wording left the question of how damages were to be assessed.
The defendant’s employee left a lorry at the top of a steep narrow street unattended, with the engine running and without having taken proper steps to secure it. The lorry ran violently down the hill. The plaintiff’s wife had been walking up the street with her children and had just parted with them a little below a point where the street made a bend when she saw the lorry rushing around the bend towards her. She became very frightened for the safety of her children, who by that time were out of sight and who she knew must have met the lorry in its travels. She was almost immediately afterwards told by bystanders that a child answering the description of one of hers had been injured. As a consequence of her fright and anxiety, she suffered a nervous shock which eventually caused her death.
Could people outside the zone of immediate physical danger be owed a duty of care?
Bankes and Atkin LJJ (Sargant LJ dissenting) held that on the assumption that the deceased’s shock was caused by what she saw with her own eyes as distinct from what she was told by bystanders, her husband was entitled to recover notwithstanding that the shock was brought about by fear for her children’s safety and not by fear for her own. Atkin LJ said:
‘In my opinion it is not necessary to treat this cause of action as based upon a duty to take reasonable care to avoid administering a shock to wayfarers. The cause of action, as I have said, appears to be created by breach of the ordinary duty to take reasonable care to avoid inflicting personal injuries, followed by damage, even though the type of damage may be unexpected – namely, shock. The question appears to be as to the extent of the duty, and not as to remoteness of damage. If it were necessary, however, I should accept the view that the duty extended to the duty to take care to avoid threatening personal injury to a child in such circumstances as to cause damage by shock to a parent or guardian then present, and that the duty was owed to the parent or guardian; but I confess that upon this view of the case I should find it difficult to explain why the duty was confined to the case of parent or guardian and child, and did not extend to other relations of life also involving intimate associations; and why it did not eventually extend to bystanders.’
Sargant LJ, dissenting have sought to keep the line resting on the basis of shock caused by fear of injury to oneself, and not to have extended it to that caused by fear of injury to another:
‘In my judgment, it would be a considerable and unwarranted extension of the duty of owners of vehicles towards others in or near the highway, if it were held to include an obligation not to do anything to render them liable to harm through nervous shock caused by the sight or apprehension of damage to third persons.’
‘It seems to me that, when once the requirement is relaxed, that the shock is to be one caused by the plaintiff’s apprehension of damage to himself, the defendant is exposed to liability for a consequence which is only reached by a new and quite unusual link in the chain of causation, and which cannot therefore properly be held to have been within his ordinary and reasonable expectation. And the extent of this extra liability is necessarily both wide and indefinite, in as much as it may vary with the precise degree of connection between the person injured and the plaintiff, and also, perhaps, with the circumstances attending the realisation by the plaintiff of actual or apprehended injury to the third person.’
And then he asked:
‘For instance, should it extend to a shock occasioned to a daughter by apprehended danger to a mother, or to a sister by apprehended danger to a brother? And where, as in this case, the apprehended danger is out of the sight of the plaintiff, ought the plaintiff to be entitled to recover for the illness by shock, if the facts were that the person whose safety was in question had turned off the dangerous highway, or had for some other reason never been in imminent danger at all?’
Decision of the Court
The husband was entitled to recover for the shock inflicted on her due to the reasonable fear of the immediate injury to her child from the runaway lorry. An express distinction was to be made between shock caused by what the mother saw with her own eyes and what she might have been told by bystanders, liability being excluded in the latter case. Persons outside the zone of physical danger were nevertheless owed a duty of care, because injury by shock was the only kind of injury that was foreseeable in such circumstances.
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