Page v. Smith
The plaintiff though directly involved in a motor accident remained unhurt but suffered from myalgic encephalomyelitis is a psychiatric illness with which he had earlier suffered but which was there in remission; this injury which the plaintiff suffered as a result of the accident was not foreseeable to a person of ordinary fortitude but as personal injury of physical harm (which the plaintiff did not suffer) was foreseeable the plaintiff succeeded in recovering damages. In disposing of the appeal the House of Lords laid down:-
1. In cases involving nervous shock it is essential to distinguish b/w the primary and the secondary victim.
2. In claims by secondary victim the law insists on certain control mechanisms, in order as a matter of policy to limit the number of potential claimants, thus the defendant will not be liable unless psychiatric injury is foreseeable in a person of normal fortitude. These control mechanism have no place where the plaintiff is the primary victim.
3. In claims by secondary victims, it may be legitimate to use hindsight in order to be able to apply the test of reasonable foreseeability at all. Hindsight, however, has no part to play where the plaintiff is a primary victim.
4. Subject to the above qualifications, the approach in all cases should be the same, namely, whether the defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury, whether physical or psychiatric. If the answer is yes, then the duty or case is established, even though physical injury does not in fact occur. There is no justification for regarding physical and psychiatric injury as different ‘kinds of damages’.
5. A defendant, who is under a duty to care to the plaintiff, whether as primary or secondary victim, is not liable for damages of nervous shock unless the shock results in some recognized psychiatric illness. It is no answer that the plaintiff was predisposed to psychiatric illness. Nor is it relevant that the illness takes a rare form or is of unusual severity.
THE DEFENDANT MUST TAKE HIS VICTIM AS HE FINDS HIM.
Regards from “Let’s Rock Sec-D”
Vijay Kumar (vijaydubey2009@gmail.com)
9871842009
