McLOUGHLIN v O’ BRIAN

Proximity, foreseeability and nervous shock, are central to a claim for damages when a mother is witness to the fallout of a multiple vehicle collision, which left one of her children dead.

At a time when common law and judicial confidence preferred to abstain from extending the scope of award, the need for extension became overwhelming in the face of such distress and protracted suffering.

In 1973, the appellant’s husband and three children were involved in a traffic accident involving two articulated vehicles central to the cause of the collision.

The outcome left the husband with bruising and shock, the oldest child with severe head injuries, fractures and bruising, the middle child with fractures, bruising and concussion, while the youngest child aged almost three, had died just moments after the crash.

The appellant was informed of the accident roughly an hour after the tragic event, and was immediately taken to see her family at the nearby hospital.

On her arrival, the appellant saw her husband in a state of shock and visible distress; after which, the hospital staff informed her that their youngest child was dead.

She then witnessed her oldest child screaming and shouting while, her middle child was unable to speak and simply clung to the appellant throughout.

Having initiated a claim for damages under severe shock, organic depression and a change of personality, the court dismissed the claim on policy grounds, in that despite admitting liability for the death and injuries of the immediate victims, there was no duty of care when allowing for the foreseeability that the appellant would suffer resulting psychological injuries.

When heard in the Court of Appeal, the Court ruled that although their was a valid argument that the respondents could have foreseen the impact their negligence would have upon a wife and mother, existing policy denied award to those not present at the scene.

Pursued in the House of Lords, the question in need of address was whether if, by refraining from close analysis and challenge of the existing policy on nervous shock, the judiciary had failed to acknowledge the manifestation of psychological trauma within parties beyond the tragedy, and thereby polluted the course of natural justice.

In Benson v Lee, the court had allowed a claim for nervous shock, when a mother  who having been told by a third party, ran outside her home to find her son had been run over; while in Chadwick v British Railways Board,a nearby resident to a train crash was diagnosed with nervous shock, after arriving at the scene and helping rescue the survivors.

On that occasion, the court had treated the matter as one of special duty, given his willingness to attend and assist.

Contrastingly, it was stated by Reid LJ in McKew v Holland & Hannen & Cubitts (Scotland) Ltd that:

“A defender is not liable for a consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee.”

McKew v Holland & Hannen & Cubitts (Scotland) Ltd

Whereas in the American case Wagner v International Railway Co., Cardozo J explained that:

“Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognises them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer.”

Wagner v International Railway Co.

It was this statement that led the House to consider the appellant’s attendance at the hospital as that of a rescuer at a traumatic event, despite the reluctance of the Court of Appeal to widen the scope of award to those elsewhere, as outlined by Griffiths LJ, who stipulated that:

“[T]he closer the relationship the more readily it is foreseeable that they may be so affected, but if we just confine our consideration to parents and children and husbands and wives, it is clear that the potential liability of the tortfeasor is vastly increased if he has to compensate the relatives as well as the immediate victims of his carelessness.”

While the House agreed that overextension of scope ran risk of abuse of the principle, the time had come to move the parameters of the law in line with increased medical insight, along with a recognition that many years earlier, Australia had taken the liberty of embracing the right to such claims under section 4(1) of the New South Wales Law Reform (Miscellaneous Provisions) Act 1994.

An Act which allowed a parent, husband or wife of a killed, injured or severely distressed party, to claim for nervous shock damages regardless of the spatial or temporal relationship to the accident or event involved.

It was for this reason, along with the obvious need to lead the change required, that the House uniformly upheld the appeal, while clearly noting that legislative reform was now long overdue in this particular field and reminding the parties that:

“Space, time, distance, the nature of the injuries sustained, and the relationship of the plaintiff to the immediate victim of the accident, are factors to be weighed, but not legal limitations, when the test of reasonable foreseeability is to be applied.”