Page v. Smith: Case Analysis

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This article is authored by Kirti Bhushan, a student of Campus Law Centre, University of Delhi. The author seeks to explain briefly the role of the present case in the growth of the concepts of primary and secondary victim in the case of tort of negligence under the Law of Torts.

Case Number

HL/PO/JU/18/255

Equivalent Citations

[1995] 2 WLR 644; [1995] UKHL 7; (1995) 2 ALL ER 736

Bench

Dissenting opinion: Lord Keith of Kinkel; Lord Jauncey of Tullichettle

Concurring judgment: Lord Ackner; Lord Browne-Wilkinson; Lord Lloyd of Berwick

Decided on

11 May 1995

Relevant concepts of Law

Negligence in the Law of Torts

Brief Facts of the Case and Procedural History

Mr. Page was the plaintiff in the present case. He was involved in a minor car accident and did not suffer any physical harm or hurt in the collision with the defendant. But the crash did result in the reappearance of Magic Encephalomyelitis also called Chronic Fatigue Syndrome. The plaintiff suffered from that disease for nearly twenty years but his disease was, at the time of accident, in remission. The plaintiff was in the hope to join his job again as a full-time teacher. Due to the collision, the disease of the plaintiff reappeared. This rendered the plaintiff’s condition to become chronic and permanent. As a result of it, he was incapable to return to his job as a teacher and take up any full-time employment. The plaintiff, therefore, claimed damages from the defendant because due to the negligent driving of the defendant, the plaintiff had suffered psychiatric harm. The defendant admitted that he had driven the car negligently and the collision was his fault. At the same time, he also contended that he cannot be made liable for the psychiatric harm caused to the plaintiff because the same was unforeseeable and cannot be claimed as damages. The defendant claimed that an ordinary person would not have suffered the injury which was incurred by the plaintiff.

The Court of Appeal ruled in favour of defendant and the present appeal was filed before the House of Lords by the plaintiff.

Issues Before the House of Lords

Whether, where a claim is brought in negligence by the plaintiff for any psychiatric damage caused by the defendant, it was necessary to establish that this particular type of harm was a foreseeable consequence of the defendant’s negligence, or whether it would be sufficient that some form of compensable harm was foreseeable, such as a physical injury.

Or, in simple words, whether the claimant was competent to recover for such extreme and unforeseeable mental injury caused by the negligent driving of the defendant.

Or, in other words, whether a duty of care was owed and, if it did, whether the loss was too remote to be claimed by the plaintiff.

Ratio of the Decision

The reasoning given by Lord Lloyd, with whom Lords Ackner and Browne-Wilkinson concurred, was that where the claimant is a primary victim, then it was “unnecessary to ask whether [the defendant] was under a separate duty of care not to cause foreseeable psychiatric injury.” They further said, “It would be inappropriate to separate physical and psychiatric harm into different ‘kinds’ of loss with separate tests.”

Thus, the only requirement was that the defendant owed a duty of care towards the claimant to avoid causing them ‘personal injuries.’ This includes both physical and psychiatric harm.

Lord Lloyd then went on to explain it simply and also avoided drawing difficult distinctions in the law:

“Suppose, in the present case, the plaintiff had been accompanied by his wife, just recovering from a depressive illness, and that she had suffered a cracked rib, followed by an onset of psychiatric illness. Clearly, she would have recovered damages, including damages for her illness, since it is conceded that the defendant owed the occupants of the car a duty not to cause physical harm. Why should it be necessary to ask a different question, or apply a different test, in the case of the plaintiff? Why should it make any difference that the physical illness that the plaintiff undoubtedly suffered as a result of the accident operated through the medium of the mind, or of the nervous system, without physical injury?”

The House of Lords, therefore, considered the aspect that the plaintiff was a primary victim in the incident and there was a risk of injury involved to him due to the collision. Hence, there was no need to consider if the psychiatric shock was foreseeable or not.

Though the plaintiff did not suffer any mental harm, the crash resulted in reappearance of his disease which was, prior to the collision, in a state of remission. Thus, the psychiatric harm, that too to a primary victim, was to be treated as a direct personal harm.

Furthermore, Lord Lloyd held that in the case of primary victims there arises no question of the victim’s proximity to the defendant’s act and thus, he rejected the ‘floodgates’ argument.

Decision of the House of Lords

The House of Lords gave their decision in favour of the plaintiff, albeit by a bare majority as Lords Keith and Jauncey were having a dissenting opinion. Thus, it was held that if any sort of personal injury was foreseeable then it did not matter it to have been physical or psychiatric.
the primary victim also need not establish that any psychiatric harm was foreseeable. 

Moreover, the Court rejected defendant’s contention that an ordinary person would not have suffered the injury which was incurred by the plaintiff. The Court held that it is well established law that ‘the defendant must take his victim as he finds him under the thin skull rule.’

The plaintiff was successful and he was awarded £162,000 in damages from the defendant.

CONCLUSION

The Page v. Smith case is significant in the branch of Law of Torts because it enhanced the distinction between primary and secondary victims. The House of Lords held there was no difference between physical and psychiatric harm for the purposes of the duty of care in the tort of negligence.

The distinction between primary and secondary victims was not there prior to this case. And it was assumed that reasonable foreseeability of psychiatric illness was a requirement in all cases of tort of negligence where psychiatric illness was involved. Further, it was also assumed, prior to this case, that all the plaintiffs must be persons of normal disposition. The House of Lords by a majority in Page v. Smith improved the claim of damages of the primary victims over the secondary victims. 

From this case onwards, a primary victim can recover for psychiatric illness even when the same will not be reasonably foreseeable, if the physical injury (which now is not a need to actually occur) is foreseeable. Per contra, in the case of a claim by a secondary victim, it is restricted to a larger extent than the primary victim.

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