This article is written by Akshaya V, CMR University, School of Legal Studies, Bangalore.


Negligence is one of the civil wrongs covered under the tort law. In a general sense, the extent of liability in tort is determined by the number of damages a party has incurred.  To be liable for negligence, the requisites have to be met. The instant case is on the proximity of the cause of action discussed with the relevant rules in tort. 

Equivalent Citations 

(1942) 2 All ER 396 (HL)


Lord Thankerton, Lord Wright and Lord Porter, Lord Russel of Killowen, Lord Macmillan 

Date of Judgement 

5 August 1942

Relevant Law 

Law of torts




The defender was the executor of John Young, who drove his motorcycle through Edinburgh road at a high speed and collided with an on-coming motor car after overtaking a stationary tram-car. He was dead on spot and as his corpse was being taken away, a fish-wife bystander, who was pregnant and unloading her basket from the tram-car noticed the bloodshed. The noise of collision shocked her and by looking at the bloodshed, she wrenched and injured her back. She was thrown into a state of terror that affected her nervous system. The baby was stillborn. She filed a suit against John Young for his action.

Issues before the Court

Is the plea maintainable?

Is there a breach of duty of required care by the defendant towards the plaintiff? 

Points of determination 

Negligence, by its general meaning, is the breach of duty of care resulting in undesirable damages. Where a person fails to exercise the required standard of care as a reasonable man would do in a particular situation. It can also be malfeasance by doing something which should not have been done. The instant case is about negligence on the part of the defendant. He should have exercised due care in riding his motorcycle. He is wholly liable for causing a collision with the tram-car.

To find if John Young owes a duty of care towards Bourhill, the following points shall have to be determined – 

  1. Duty of care – This is one of the essential conditions to hold a person liable for a negligent act. The duty should be legal and shall not be unlawful or immoral. Therefore, it has to be ensured it is done with a duty of care. In the above case, he has not shown a duty of care towards riding which resulted in an accident. 
  2. Breach of duty to take care – Young has breached his duty. He did not observe a  standard of care. He should have rather acted wisely and not omitted an act which he was ought to do. 
  3. Proximate cause – It means the legal cause. It may not be the first event that may occur in a sequence of events and may not be the last event before the injury occurs. A defendant in a negligence case is only liable for only those damages within his contemplation and could have foreseen through his actions. In the above case, the collision may have been foreseen by Young but the injury caused to the fish-wife may not have been foreseen.
  4. Duty of care towards the plaintiff – A duty arises when the law identifies a relationship between the plaintiff and defendant. The establishment of a duty of care towards the plaintiff is determined by the Court. In the instant case, there is no established relationship between Young and Bourhill. The duty of care should have been established by Young towards the tram-car driver before overtaking. 
  5. Actual cause or cause in fact – The plaintiff who is suing the defendant for negligence has the liability to prove that the defendant’s violation of duty was the actual cause of damage incurred by him. Here, Bourhill does not have an actual cause but an incidental cause thus not falling victim to the defendant’s action. 

The ratio of the case 

  1. Lord Macmillan held that the appellant suffered in her health and in her capacity to do work because of this tremendous shock. The question is only whether Young’s representative can be rendered accountable for what the appellant had suffered.
  2. Primarily, it is not necessary to consider what caused the mental impact. The cognizance shall be taken only for the physical injury caused by actual action, which was well settled. Now, concerning mental health, the distinction between physical and mental injury has to be decided. The distinction is not very scientific for a mental shock is always accompanied by a physical disturbance but the elements affecting mental health are more than a physical injury which may give scope to legal liability. 
  3. Bourhill shall recover damages if there was a pre-established relationship between her and John Young and that he failed to exercise a duty of care towards her. 
  4. The duty of a rider is not to cause injury to persons on the highway or in premises adjoining the road. The term “care” connotes avoiding excessive speed, observing signals and keeping a good lookout. Should this be the case, to whom is the duty owed? According to Lord Jameson’s words, the duty is owed to those to whom injury may reasonably be anticipated if the duty is not observed. 
  5. John Young was negligent in riding. However, he would not have foreseen that his excessive speed would have caused a terrible shock to the appellant. The appellant’s injury was not within his contemplation, for she was on the other side unloading her fish basket from a tram-car. The appellant happened to see the bloodshed and heard the noise of collision, which was the main cause of her injury. 


Lord Thankerton held that the shock caused to the appellant was not within the proximity of potential danger which the motorcyclist would have reasonably contemplated. It was finally held by the Lords that the plaintiff was not sufficiently proximate to the cause of the negligent act. Therefore, the defendant had no duty of care towards the plaintiff. The plaintiff could not claim any damages from the plaintiff’s executor. The plea shall not be maintainable.

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