• In the case of McLoughlin v O’Brian [1983] 1 A.C. 410, it was held that the test of liability for nervous shock is the ordinary test of reasonable foreseeability. As such, liability for nervous shock extends to all cases where it was reasonably foreseeable that the plaintiff would suffer such injury, irrespective of any limitations of time and space.

Facts of the Case

  • On 19th October 1973, C’s husband and 3 children were involved in a traffic collision with a lorry driven by the D1 and owned by the D2 that had itself just collided with an articulated lorry driven by D3 and owned by D4.
  • C, at home two miles away at the time, was informed about the accident by her neighbour and taken to see her family in hospital. C learnt her youngest daughter had been killed and witnessed the extent of injuries to her husband and other children.
  • C alleged that the impact of what she heard and saw caused her severe shock, resulting in psychiatric illness.
  • In 1976, C began action against D for damages for personal injuries, pleading for shock and injury to health resulting in depression and change of personality affecting her abilities as a wife and mother.
  • D admitted liability for the death of C’s daughter and the injuries suffered by her family but denied that the shock and injury to C was due to their negligence.

Issues

  • Can a duty of care be owed to someone who was not at the scene of an accident, but suffers after witnessing its effects later?

Held by the House of Lords

  • Finding for C, that the test of liability for nervous shock is the ordinary test of reasonable foreseeability. If it was reasonably foreseeable that C would suffer nervous shock, she was entitled to recover. In considering the question of reasonable foreseeability there are no legal limitations of time, space, distance, nature of injuries, or the relationship of the victim to C, although these are all factors to be considered.

Lord Wilberforce

  • Both previous judgments on this case have denied C, at least in part, on the basis that the boundaries of a man’s responsibility for acts of negligence has to be fixed as a matter of policy. A person suffering injury being reasonably foreseeable to someone is not enough to create a duty that would justify a claim in negligence.
  • “It is necessary to consider three elements inherent in any claim: the class of persons whose claims should be recognised; the proximity of such persons to the accident; and the means by which the shock is caused. As regards the class of persons, the possible range is between the closest of family ties – of parent and child, or husband and wife – and the ordinary bystander. Existing law recognises the claims of the first: it denies that of the second, either on the basis that such persons must be assumed to be possessed of fortitude sufficient to enable them to endure the calamities of modern life, or that defendants cannot be expected to compensate the world at large…I think, however, that it should follow that other cases involving less close relationships must be very carefully scrutinised. I cannot say that they should never be admitted. The closer the tie (not merely in relationship, but in care) the greater the claim for consideration. The claim, in any case, has to be judged in the light of the other factors, such as proximity to the scene in time and place, and the nature of the accident” [422A].

Lord Edmund-Davies

  • “My Lords, the experiences of a long life in law have made me very familiar with this ‘floodgates’ argument. I do not, of course, suggest that it can invariably be dismissed as lacking cogency; on the contrary, it has to be weighed carefully, but I have often seen it disproved by later events…And, even before my time, on the basis of conjecture later shown to be ill-founded it provided a fatal stumbling-block to the plaintiff’s claim in the ‘shock’ case of Victorian Railways Commissioners v Coultas (1888) 13 App.Cas. 222…” [425D].

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