Hinz v Berry (1970)

English Tort Law

 

Hinz v Berry
‘Grief’ by Cynthia Angeles

Damages for nervous shock (and even secondary nervous shock) are now not uncommon across many jurisdictions, as was outlined in my academic paper ‘A Comparative Analysis of Secondary Nervous Shock within Tort Law’ and as explored within McLoughlin v O’Brian, however in this matter, the courts were less certain as to how best to regulate the level of award, yet forged ahead regardless of any potential to undermine the cost of psychological trauma.

In spring of 1964, the respondent was returning home from a day trip with her sizeable family, when after parking their Bedford Dormobile in an available lay-by, an out-of-control car ploughed into the family, as she, the recently pregnant mother of eight children, stood helplessly watching from the other side of the road. With her husband pronounced dead, and almost all of the children suffering injuries, the respondent was left to pick up the pieces of her already challenging life, after which she initiated proceedings for damages.

Claiming pecuniary loss as a result of her husbands death, the court awarded £15000, along with an additional £4000 for nervous shock, as had been privy to such claims for the preceding quarter century. Upon appeal, the defendant-appellant cited a gross overestimation of the award for nervous shock, relying upon an absence of damages based tariffs in this particular area for justification.

With examination of recent case precedent and the comments of her consultant psychiatrist, who remarked during the trial that:

“[T]here is no medical doubt at all that she is suffering from a morbid depression; she is now officially ill.”

And how:

“In other circumstances I would probably have brought her into hospital, at least for a rest, but possibly for electrical treatment and it may come to that yet.”

The Court acknowledged the robustness of the respondent and her tenacity in the face of such a massive loss, yet illustrated that while English law precluded a right to compensation for grief and sorrow, evidential and medically diagnosable trauma proved an exception to that rule where such symptoms were demonstrable.

It was then that the Court uniformly outlined how it was beyond the power of the courts to undermine the significance of nervous shock, and that in any respect, judicial consensus supported the amount awarded through the comprehensive evaluation of the numerous years of suffering and morbid depression faced by the respondent in addition to her expected mourning. It was for these reasons that the Court upheld the award and dismissed the appeal.

A Comparative Analysis of Secondary Nervous Shock within Tort law

Academia

A Comparative Analysis of Secondary Nervous Shock within Tort law
Image: ‘Anxiety’ by Mary Woronov

Comparative Analysis of Secondary Nervous Shock within Tort Law

McLoughlin v O’ Brian (1983)

English Tort Law

Mcloughlin v O'Brian
Image: ‘Collage Car Crash’ by Patrick O’Brian

As with Topp v London County Bus (South West) Ltdthe principle of proximity proves the distinguishing criteria, however this earlier case pushed further the scope of award for damages, with an emerging appreciation for psychiatric nervous shock or trauma.

When the husband and father of four young children is involved in a collision with a commercial articulated vehicle (that had itself just collided with another articulated vehicle), the resulting injuries leave the youngest of the girls dead within minutes, and the father seriously injured, while lapsing in and out of consciousness. After being notified of the crash almost two hours later, his wife (and mother to the children) is escorted to the nearest hospital, where she is confronted with the aftermath of the accident, and left in a state of deep shock and profound distress; the effects of which were to be felt for many months afterwards.

Having chosen to pursue a tortious claim through the owners of the commercial vehicles, the original judges found that proximity and foreseeability precluded eligibility for damages, and so while admission of the daughter’s manslaughter provided financial remedy, the anguish and emotional turmoil of the mother did not.

However, upon appeal, the scope of award for incidents such as this was, for the first time, given consideration enough to result in a new precedent in English tort law, and significant allowances for the impact of psychological trauma upon secondary victims previously considered too remote for inclusion.