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The relevance of defences to accident liability in nervous shock cases

Published online by Cambridge University Press:  02 January 2018

T. I. Bailey
T. I. Bailey*
Affiliation:
The University College at Buckingham
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Extract

For the first time in nearly 40 years the House of Lords has examined the basis for liability for negligently inflicted nervous shock. The primary conclusion of their Lordships in Mcbughlin v O’Brian, that liability depends upon foresight of shock in the absence of considerations relevant to negative the duty of care, confirms the earlier approach of the House in Bourhill v Young, but the decision for the plaintiff makes it clear that the known scope of the tort of negligence has undoubtedly been expanded. Mrs McLoughlin was two miles away when the accident in which her family was injured occurred and the shock she suffered came not from seeing the accident but from coming upon its after math sometime later at the local hospital. In no other English case had there been liability where there was such a separation of time and places’.

Type
Research Article
Information
Legal Studies , Volume 3 , Issue 1 , March 1983 , pp. 43 - 49
Copyright
Copyright © Society of Legal Scholars 1983

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References

1. (1982) 2 WLR 982.

2. (1943) AC 92.

3. Perhaps the nearest equivalent is Chadwick u BRB (1967) 1 WLR 912 where the plaintiff was in his house 200 yards away when the accident occurred.

4. ‘A false analogy between the action of negligence and the action of trespass to the person involving some sort of impact with the person’ per LJ, Atkin in Hambrook v Stokes Brothers (1925) 1 KB 141 at 154 Google Scholar.

5. (1901) 2 KB 669.

6. (1925) 1 KB 141.

7. (1925) 1 KB 141 at 156.

8. (1943) AC 92.

9. (1943) AC 92 at 99.

10. (1982) 2 WLR 982 at 1006.

11. (1943) AC 92 at 108.

14. (1963) 2 QB 650.

13. (1981) 3 ALL ER 697, approving the judgment of Laskin J in ‘The Ogopogo’, sub norm Horsley v Maclaren (1971) 2 Lloyd's rep 410.

14. (1968) 29 ALR 3d 1316.

15. (1968) 29 ALR 3d 1316 at 1320.

16. Under the provisions of the Law Reform (Contributory Negligence) Act 1945.

17. (1963) 2 QB 43 at 70.

18. It can be argued that this provision does not rule out the defence in cases where implied consent is relied upon: the reference to a ‘person so carried’ could be construed to mean a person carried under an ‘antecedent agreement or understanding’ and this might not be wide enough to cover the implied consent cases. See Symmons, ‘Volenti non fit injuria and Passenger Liability’ (1973) 123 NLJ 373.

19. (1964) 2 All ER 999.

20. Under the provisions of the Civil Liability (Contribution) Act 1978.

21. See Smith v Leech, Brain & Co (1961) 3 All ER 1159.

22. A clear example of this is Hughes v Lord Advocate (1963) AC 837.

23. Hughes v Lord Advocate (1963) AC 837; Bradford v Robinson Rentals (1967) 1 WLR 337.

24. (1969) 1 WLR 1556.

25. (1972) AC 877.

26. (1943) AC 92 at 103.