King v Phillips, [1953] 1 Q.B.

429 (1953)

For educational use only

*429 King and Another v Phillips.
Positive/Neutral Judicial Consideration

Court
Court of Appeal

Judgment Date
16 February 1953

Report Citation
[1951 K. 1228.]; [1953] 2 W.L.R. 526
[1953] 1 Q.B. 429

Court of Appeal
Singleton , Denning and Hodson L.JJ.
1953 Jan. 23; Feb. 16.
Negligence—Shock—Injury to child—Negligence of driver of motor—vehicle—Liability
to mother for shock—Extent of duty—Remoteness of damage—Area of potential danger.

A taxicab driver backed his taxicab into a small boy on a tricycle. The damage to the
boy and his tricycle was slight, but his mother heard him scream and, looking out of an
upstairs window some 70 to 80 yards away, saw the tricycle under the taxicab but could
not see the boy. He eventually ran home, but his mother had suffered nervous shock, an
injury for which she claimed damages. McNair J. held that the defendant was under no
liability to the mother. On appeal:-

Held, that the defendant had not, by his servant the driver, done a legal wrong to the
mother, for, on the facts as found, and applying the test laid down in Bourhill v. Young
[1943] A.C. 92; [1942] 2 All E.R. 396 , no “hypothetical reasonable observer” could
reasonably or probably have anticipated that injury either physical or nervous could

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King v Phillips, [1953] 1 Q.B. 429 (1953)

have been caused to her by the backing of the taxi without due attention as to where it
was going, and, accordingly, the driver owed no duty to the plaintiff and was not
negligent towards her.

Per Denning L.J. If (as he considered) the duty owed by the driver to everyone in the
vicinity was to drive with reasonable care, his liability for a breach of that duty
depended on whether the damage sustained could be said to be too remote; but if the
duty was to use reasonable care to avoid injury which he could reasonably foresee, the
extent of the duty varied in regard to the different kind of injuries likely to be
occasioned, and that involved recognition of two torts, the infliction of physical injury
and of emotional injury. In Hambrook v. Stokes Brothers [1925] 1 K.B. 141; 41 T.L.R.
125 , as here, a duty of care was owed by the defendant to the plaintiff, though in
neither case was she in any personal danger and was at some distance from the vehicle,
but, on the facts here, the damage was too remote to be reasonably foreseeable.

Bourhill v. Young [1943] A.C. 92 ; [1942] 2 All E.R. 396 followed.

Hambrook v. Stokes Brothers [1925] 1 K.B. 141; 41 T.L.R. 125 distinguished.

Decision of McNair J. [1952] W.N. 393; [1952] 2 T.L.R. 277; [1952] 2 All E.R. 459
affirmed.

APPEAL from McNair J.

The following statement of facts is taken substantially from the judgment of

SINGLETON L.J.:- On August 2, 1951, a small boy, Michael Charles King, was on his
tricycle in Birstall Road, *430 Tottenham, about the point where Birstall Road joins
Greenfield Road. A taxicab, owned by the defendant, Phillips, and driven by his servant,
called at a house in Greenfield Road, and, having picked up the fare, was backing into
Birstall Road so that it might return towards Seven Sisters Road, when the driver heard a
call. Apparently the taxicab had struck the boy’s tricycle. The boy was slightly hurt and
the tricycle was damaged. The boy gathered himself together and ran back towards his
home in Birstall Road. He brought an action through his mother against the defendant
claiming damages for personal injuries. His injuries being very slight, McNair J. assessed
the damages to which he was entitled at £5, together with £10 in respect of the tricycle.
[An appeal as to the amount of damages to which he was entitled was dismissed.]
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King v Phillips, [1953] 1 Q.B. 429 (1953)

The boy’s mother, Mrs. Kathleen Clara King, also brought an action. She was at an
upstairs window in No. 12, Birstall Road, about six houses up on the right-hand side of
the road from Greenfield Road and about 70 or 80 yards away from the site of the
accident. She heard a scream, looked down the road, and saw the taxicab backing on to
the tricycle and the tricycle under the taxicab, but she could not see the boy. She ran
downstairs and into the road, and then she met the boy running towards her, and took him
inside. As a result of what she had heard and seen, she suffered trembling fits, and
became distressed and tearful. She consulted her doctor on August 17 and continued to
attend him until November. McNair J. was satisfied that her condition as spoken to by her
doctor was directly caused by what she heard and saw at the time of the accident; and,
subject to liability, he assessed the damages in her case at the sum of £100. McNair J.
decided, however, that there was no liability on the defendant in respect of the mother’s
claim, and on that he gave judgment for the defendant. The plaintiff mother appealed.

F. G. Paterson
for the plaintiff mother. The defendant’s servant, the taxicab driver, was under a duty to
everyone in the vicinity to drive with reasonable care and, if he failed in that duty, he was
liable to anyone who sustained injury, whether physical or emotional, as a result of his
negligence. It is clear from Hambrook v. Stokes Brothers 1 that injury by shock to a
mother who is put in fear for the safety of her children is actionable.
*431
[SINGLETON L.J. But in Hambrook v. Stokes Brothers 2 the mother was a wayfarer
even though she may have been some distance from the scene of the accident. Here the
mother looked out of a window 70 to 80 yards away.]

The driver was in breach of the duty he owed and, applying In re Polemis and Furness,
Withy & Co. Ld., 3 he was liable for all the direct consequences of his negligence whether
they could reasonably have been foreseen or not. [Counsel referred also to Chester v.
Waverley Corporation. 4 ] But if that is wrong it is submitted that, in a neighbourhood of
this sort, the taxicab driver should have foreseen that a small child playing in the street on
his tricycle alone was not likely to be far from home, and if he was injured his mother
was probably near at hand and might suffer from shock. The hypothetical reasonable
taxicab driver sitting notionally in his cab would or ought to have foreseen the injury. It
was natural that the mother should be shocked and she was in fact injured by shock.

In Bourhill v. Young 5 the court found, on the other hand, that the possibility of injury to
the fish-wife standing on the pavement was not foreseeable. There was no direct
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connexion between her and the accident; she merely heard a noise but could not see what
was happening. In the present case the mother saw the tricycle under the cab, having
heard her little boy scream. Here she was within the scope of the accident.

[SINGLETON L.J. In Hambrook v. Stokes Brothers 6 it was said that, in considering the
duty owed, the court should bear in mind the likelihood of injury to someone if the duty
was not observed, but that if negligence was proved the negligent person was responsible
for all the damage which actually flowed from his or her negligence. That was not,
apparently, the approach in Bourhill v. Young, 7 or the court might have said that as the
cyclist had been negligent he was liable for all the damage flowing naturally from his
acts, and as it was found as a fact that the fish-wife had sustained injury resulting from
the shock she received, ought he not, on the principle in Hambrook v. Stokes Brothers, 8
to have been liable?]

Bourhill v. Young 9 is distinguishable from Hambrook v. Stokes Brothers, 10 both on the

facts and the questions involved. *432 Hambrook v. Stokes Brothers 11 was commented
on in Bourhill v. Young, 12 but the comments were obiter and the case was not overruled.
This case is covered by Hambrook v. Stokes Brothers 13 and is a much stronger case, for
in that case the mother was further away from the accident and did not actually see it.

[Counsel referred also to Owens v. Liverpool Corporation. 14 ]

Norman Wiggins
for the defendant. The defendant owed no duty to the plaintiff for, on the principle of
Bourhill v. Young, 15 she was outside the range of the reasonable anticipation of the
taxicab driver. As the driver owed no duty to her he was not negligent towards her,
though admittedly he was negligent towards the child. [Counsel referred to Lord Wright’s
comments on Owens v. Liverpool Corporation 16 in Bourhill v. Young. 17 ] It was beyond
the range of reasonable anticipation that somebody should suffer in this particular way.

[SINGLETON L.J. But in Hambrook v. Stokes Brothers 18 Atkin L.J. said that if the
driver was negligent and damage resulted he was responsible whether the damage was
that which he might have expected or not, subject only to the question of remoteness.
That statement seems to conflict with Bourhill v. Young, 19 yet Hambrook v. Stokes
Brothers 20 was said not to be overruled by that case, and indeed Lord Wright said 21 that
it “now lays down the law.”]
22
In that passage Lord Wright was referring to Dulieu v. R. White & Sons and not to
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King v Phillips, [1953] 1 Q.B. 429 (1953)

Hambrook v. Stokes Brothers. 23 Hambrook v. Stokes Brothers 24 is distinguishable from

Bourhill v. Young 25 because negligence towards the mother was admitted in the
pleadings in Hambrook v. Stokes Brothers, 26 so that there could be no question of
whether any duty was owed to her; the only question was whether the damage she
suffered was too remote. In Bourhill v. Young, 27 on the other hand, the question at issue
was whether there was a duty owed or not. In Hambrook v. Stokes Brothers 28 the
plaintiff was a wayfarer and she may *433 have been in some fear for her own personal
safety. The sudden descent of a runaway lorry is a much more terrifying thing than the
slow, though negligent, backing of a taxicab. In the present case the plaintiff was upstairs
and the driver could not be expected to foresee that she might be within sight if she
looked out of the window.

The application of the test stated in Bourhill v. Young 29 depends on the good sense of the
judge as to whether in fact the defendant can be said to owe a duty to the plaintiff. On the
facts as found by McNair J. the present case is not a marginal one. The plaintiff was a
long way from the scene of the accident; she wag upstairs and no reasonable hypothetical
driver could have foreseen that she would be shocked if he backed his taxicab
negligently; she was outside the area of potential danger. Therefore, he owed her no duty
and though, as in Bourhill v. Young, 30 the driver was admittedly negligent, he was not
negligent vis-à-vis the plaintiff. The test is, first, whether there is a duty, secondly,
whether there is negligence, and, finally, whether the damage which is complained of is
the direct result of that negligence. Here there was no duty and no negligence.

Paterson
replied.

Cur. adv. vult.

February 16. SINGLETON L.J.

, having stated the facts substantially as set out above, continued:- It is clear that a person
who sustains damage from nervous shock has a right of action against the person whose
negligence caused the shock. An allegation of negligence postulates a breach by the
defendant of a duty owed by him to the plaintiff. In the civil law there is no such thing as
negligence at large; liability only arises where there is a duty to take care and where
failure in that duty has caused damage.

McNair J. delivered a considered judgment in favour of the defendant. In so deciding he

followed the House of Lords in Bourhill v. Young, 31 in which it was held: “(1) that the
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duty of the motor cyclist on the public road to other persons using it was to drive with
such reasonable care as would avoid the risk of injury (including injury by shock
although no direct impact occurred) to such persons as he could reasonably foresee might
be injured by his failure to exercise that care; (2) that the appellant was not within the
area of potential danger arising as *434 the result of his negligence, and, accordingly, he
owed no duty to her and was not guilty of negligence in relation to her.” I do not see that
McNair J. could come to any other conclusion, having regard to what was said in that
case. The view of each of the Law Lords was that, on the facts, no duty was owed to the
appellant by the motor-cyclist who collided with a motor-van. At the time of the collision
the appellant was on the offside of a tramcar which the motor-cyclist had passed on its
nearside. The point of impact was some 45 to 50 feet beyond her and the tramcar was
between her and the vehicles which came into collision. It was clear that the
motor-cyclist was at fault and that, in relation to the driver of the motor-car, he was guilty
of negligence, but it was held that he owed no duty to the appellant, and that,
consequently, vis-à-vis her he was not negligent.

The test was put by Lord Russell of Killowen in this way 32 : “Can it be said that John
Young could reasonably have anticipated that a person, situated as was the appellant,
would be affected by his proceeding towards Colinton at the speed at which he was
travelling?” Lord Macmillan said 33 : “But can it be said that he ought further to have
foreseen that his excessive speed, involving the possibility of collision with another
vehicle, might cause injury to the appellant?” He was of opinion that John Young was
under no duty to the appellant to foresee that his negligence in driving at an excessive
speed, and consequently colliding with a motor-car, might result in injury to her, for such
a result could not reasonably and probably have been anticipated; thus he was not guilty
of negligence in relation to the appellant. Lord Wright 34 said that the appellant was
completely outside the range of the collision, and added: “I cannot accept that John
Young could reasonably have foreseen, or, more correctly, the reasonable hypothetical
observer could reasonably have foreseen, the likelihood that anyone placed as the
appellant was, could be affected in the manner in which she was.” Lord Porter said 35 :
“In order, however, to establish a duty towards herself, the appellant must still show that
the cyclist should reasonably have foreseen emotional injury to her as a result of his
negligent driving, and, as I have indicated, I do not think she has done so.”

The appellant in Bourhill v. Young 36 was not very far from the scene of the accident, and
one would have thought that *435 the motor-cyclist owed her a duty, and would have
been responsible to her in damages, if, as the result of the collision with the motor-car,
there had been an explosion which caused bodily injury to her, but Lord Thankerton said
37
: “At the time of the collision with the motor-car he was well past the tramcar, and the
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appellant was not within the range of his vision, let alone that the tramcar obstructed any
view of her. The risk of the bicycle ricochetting and hitting the appellant, or of flying
glass hitting her, in her position at the time, was so remote, in my opinion, that the cyclist
could not reasonably be held bound to have contemplated it.” Lord Thankerton was, of
course, dealing with a claim in respect of nervous shock, and his observation on this point
must be limited to the case with which he was dealing. As I have said, the view of all
their Lordships in that case was that the motor-cyclist owed no duty to the appellant, and
that consequently he was not guilty of any negligence in relation to her, so that she could
not recover damages for the shock which she had sustained.

[His Lordship referred to the facts of the present case and continued:] If there was no
duty owed to the appellant in Bourhill v. Young, 38 I cannot see how there was any owed
by the defendant to the mother on the facts of this case. In Bourhill v. Young 39 Lord
Russell of Killowen 40 and Lord Macmillan 41 adopted the words of Lord Jamieson 42 :
“No doubt the duty of a driver is to use proper care not to cause injury to persons on the
highway or in premises adjoining the highway, but it appears to me that his duty is
limited to persons so placed that they may reasonably be expected to be injured by the
omission to take such care.” And Lord Macmillan added: “The duty to take care is the
duty to avoid doing or omitting to do anything the doing or omitting to do which may
have as its reasonable and probable consequence injury to others, and the duty is owed to
those to whom injury may reasonably and probably be anticipated if the duty is not
observed.”

Can it be said that the driver (or any driver in the world) could reasonably or probably
anticipate that injury - either physical or from shock - would be caused to the mother,
who was in No. 12 Birstall Road, when he caused his taxicab to move backwards a short
distance along Greenfield Road without looking to see if anyone was immediately
behind? There can surely be only one *436 answer to that question. The driver owed a
duty to the boy, but he knew nothing of the mother; she was not on the highway; he could
not know that she was at the window, nor was there any reason why he should anticipate
that she would see his cab at all; he was not intending to go into Birstall Road except for
the purpose of turning. I cannot see that the fact that she saw the tricycle under the cab
distinguishes this case from Bourhill v. Young. 43

It would appear that the judgment of the Court of Appeal in Owens v. Liverpool
Corporation 44 was not looked upon favourably in Bourhill v. Young (see per Lord
Thankerton 45 , though I confess that I should have thought that, if the driver of a tramcar
negligently drove his tramcar against a hearse and overturned the coffin therein, he would
be under a duty towards those in a coach immediately following the hearse. Lord Wright
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said 46 : “The lawyer likes to draw fixed and definite lines and to ask where the thing is to
stop. I should reply that it should stop where in the particular case the good sense of the
jury or the judge decides. I should myself be disposed, as at present advised, to say that it
should have stopped short of judgment for the plaintiff in Owens v. Liverpool
Corporation.” 47 Lord Wright was there considering a case in which the Deputy
Presiding Judge had found the facts in favour of the plaintiffs, but had held, following
earlier authority, that the plaintiffs could not recover as they themselves were not in
danger of personal injury, and on this the Court of Appeal held that he was wrong and
that the plaintiffs were entitled to judgment. Counsel for the corporation in Owens v.
Liverpool Corporation 48 had advanced the argument that no duty was owed by the
tramcar driver to the passengers in the coach, but this point was not considered in the
judgment of the court, which was given by MacKinnon L.J. 49

The decision of this court in Hambrook v. Stokes Brothers 50 was not directly overruled
by the House of Lords in Bourhill v. Young 51 ; indeed it could not be, for in Hambrook v.
Stokes Brothers 52 there was an admission of negligence which presupposed the existence
of a duty towards the plaintiff. Atkin L.J., however, considered that case apart from the
question of pleading, and his judgment, 53 if I may humbly say so, commends *437 itself
to me. He, however, was considering a case which on its facts is far removed from the
present. In that case the mother, who died from the shock some time later, was on the
highway - a narrow road - not far from the scene of an accident to one of her children.

The decision of the House of Lords in Bourhill v. Young 54 shows that the test in such
cases is whether the driver could reasonably have foreseen any damage to the plaintiff;
unless he could, it was said, no duty was owed to her, and consequently there was no
negligence vis-à-vis the plaintiff. I find it difficult to draw a distinction between damage
from physical injury and damage from shock; prima facie, one would think that, if a
driver should reasonably have foreseen either, and damage resulted from the one or from
the other, the plaintiff would be entitled to succeed. It is, however, unnecessary to
consider this somewhat academic point for the purposes of this appeal for, on the finding
of McNair J., no reasonable driver (or hypothetical bystander) would have anticipated
damage of any kind to the plaintiff. That is a finding of fact with which this court ought
not to interfere. Moreover, it is in accord with common sense. McNair J., towards the end
of his judgment, said: “The mother, in my judgment, was wholly outside the area or range
of reasonable anticipation, and if I am asked where the line is to be drawn, I should
humbly reply in the language of Lord Wright, 55 used admittedly in a slightly different
context, that it should be drawn ‘where in the particular case the good sense of the jury or
judge decides.’ It seems to me to be contrary to common sense to say that a taxicab driver
ought reasonably to have contemplated that, if he backed his taxi without looking where
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he was going, he might cause injury by shock, or any other injury, to a woman in a house
some 70 or 80 yards away up a side street.” There is indeed a sense of remoteness in this
case.

In my opinion the appeal should be dismissed.

DENNING L.J.

In this case a taxicab driver negligently backed his cab without looking where he was
going and ran into a small boy on a tricycle. His mother, who was in her home 70 or 80
yards away, heard him scream and, looking out of the window, saw his peril. She
suffered nervous shock, and the question is whether she can recover damages on that
account.

Mr. Paterson put the case on her behalf quite simply. His *438 first proposition was that
the taxicab driver was under a duty to drive his cab with reasonable care, and that he
owed that duty to everyone in the vicinity, not only to people in physical danger, but also
to those in emotional danger - particularly to a mother who was put in fear for her
children’s safety. For this proposition he relied on Hambrook v. Stokes Brothers. 56 His
next proposition was that the taxicab driver by his negligence was in breach of that duty
and was liable for all the direct consequences of the breach, whether they could
reasonably have been foreseen or not. For this proposition he relied on In re Polemis and
Furness, Withy & Co. Ld. 57

If the two cases on which Mr. Paterson relied stood alone, they would be sufficient to
warrant a decision in favour of the mother; but they have to be read in the light of the
case of the Edinburgh fish-wife, Bourhill v. Young. 58 In that case the negligence of a
motor-cyclist brought about a collision which so upset a fish-wife (who was standing
nearby) that she suffered a miscarriage. She was held not entitled to recover. It seems to
me that each member of the House of Lords based his decision on the ground that the
motor-cyclist could not reasonably have been expected to have foreseen that the fish-wife
would suffer injury by emotional shock. The test applied was not foreseeability of
physical injury, but foreseeability of emotional shock. It would, I suppose, be open to this
court to apply that test uncritically in the present case, and for us to ask ourselves simply
whether the taxicab driver could reasonably have foreseen that the mother might suffer
nervous shock. But I do not think that we can quite do that. We have to try to reconcile
Bourhill v. Young 59 with Hambrook v. Stokes Brothers 60 particularly in regard to the
duty of the driver. In Hambrook v. Stokes Brothers, 61 the case of the runaway lorry,
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Atkin L.J. held that, apart from the admissions in the pleadings, the lorry driver was in
breach of his duty to the mother, although she was not herself in any personal danger;
whereas in Bourhill v. Young 62 the House of Lords held that the motor-cyclist was guilty
of no breach of duty to the fish-wife.

I am not sure that the whole difficulty does not arise because of the different senses in
which we speak of the duty of care. Take the case of the fish-wife. Although the House of
Lords held that the motor-cyclist was under no duty to her, that must *439 mean that he
owed her no duty in regard to emotional shock. It cannot mean that he did not owe her a
duty in regard to physical injuries if it had so happened that she had suffered any. In that
regard he was clearly under a duty to her to drive with reasonable care. Suppose, for
instance, that his negligence had caused her to be physically injured in some way or
other. This was admittedly improbable, but it was not altogether outside the realms of
possibility. She was standing at a point where she might conceivably have been struck.
The excessive speed of the motor-cyclist existed before the impact. He was not to know
what vehicles would appear in his path. He might have collided with some other
negligent car coming in some other direction, and as a result of the collision one or other
of the vehicles might have been flung back on to her. One can never tell how vehicles
will finish up after an accident. The risk of her being struck might be remote, but no
matter how remote it was, and no matter how much it was outside the contemplation of
the cyclist, nevertheless if the fish-wife had actually been struck as a result of his
negligence, or of the negligence of him and others, she would have a cause of action in
damages against him.

So also with the case of the funeral procession, Owens v. Liverpool Corporation. 63 The
mourners were not actually struck, but they were well within the area where they might
have been. If their own carriage had been going a little faster it might have become itself
involved in the accident by having to pull up suddenly or to swerve, with the consequent
physical injury to the mourners, in which case they would clearly have had a cause of
action for damages.

What is the reasoning which admits a cause of action for negligence if the injured person
is actually struck, but declines it if he only suffers from shock? I cannot see why the duty
of a driver should differ according to the nature of the injury. I should have thought that
every driver was under a plain duty which he owed to everyone in the vicinity. He ought
to drive with reasonable care. If he drives negligently with the result that a bystander is
injured, then his breach of duty is the same, no matter whether the injury is a wound or is
emotional shock. Only the damage is different. The bystander may be so close as to be
put in fear for himself, or he may be just a little way off and be shocked by fear for the
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safety of others. In either case he has been injured by the driver’s negligence. If you view
the *440 duty of care in this way, and yet refuse to allow a bystander to recover for
shock, it is not because there was no duty owed to him, nor because it was not caused by
the negligence of the driver, but simply because it was too remote to be admitted as a
head of damage.

A different result is reached by viewing the driver’s duty differently. Instead of saying
simply that his duty is to drive with reasonable care, you say that his duty is to avoid
injury which he can reasonably foresee, or, rather, to use reasonable care to avoid it. Then
you draw a distinction between physical injury and emotional injury, and impose a
different duty on him in regard to each kind of injury, with the inevitable result that you
are driven to say there are two different torts - one tort when he can foresee physical
injury, and another tort when he can foresee emotional injury. I do not think that that is
right. There is one wrong only, the wrong of negligence. I know that damage to person
and damage to property are for historical reasons regarded as different torts; but that does
not apply to physical injury and emotional injury. Lord Wright clearly treated impact and
shock as one cause of action when he said in Bourhill v. Young 64 : “The man who
negligently allows a horse to bolt, or a car to run at large down a steep street, or a savage
beast to escape is committing a breach of duty towards every person who comes within
the reach of foreseeable danger, whether by impact or shock.”

The true principle, as I see it, is this: Every driver can and should foresee that, if he drives
negligently, he may injure somebody in the vicinity in some way or other; and he must be
responsible for all the injuries which he does in fact cause by his negligence to anyone in
the vicinity, whether they are wounds or shocks, unless they are too remote in law to be
recovered. If he does by his negligence in fact cause injury by shock, then he should be
liable for it unless he is exempted on the ground of remoteness. This principle is the same
as that stated by Sir Frederick Pollock in his book on Torts, 13th ed., p. 451 (or 15th ed.,
p. 334): “Everyone is bound to exercise due care towards his neighbours in his acts and
conduct, or rather omits or falls short of it at his peril; the peril, namely, of being liable to
make good whatever harm may be a proved consequence of the default.” If this principle
is correct, the only consequences for which he is excused are those which are too remote.
*441

Howsoever that may be, whether the exemption for shock be based on want of duty or on
remoteness, there can be no doubt since Bourhill v. Young 65 that the test of liability for
shock is foreseeability of injury by shock. But this test is by no means easy to apply. The
test is not what the negligent party himself could reasonably have foreseen, for he rarely
has time to foresee anything. The test is what a “hypothetical reasonable observer could
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reasonably have foreseen”: see Bourhill v. Young, 66 per Lord Wright. But where must
this hypothetical observer be situate? In the driver’s seat, or in an observation post on
high? It is obvious that much must depend on his powers of observation and the scope of
his imagination. One judge may credit him with more foresight than another. One judge
may think that he should have foreseen the shock. Another may not. In both Hambrook v.
Stokes Brothers 67 and Chester v. Waverley Corporation 68 the judges were divided in
opinion on the question whether the shock to the mother could reasonably have been
foreseen. Some cases seem plain enough. A wife or mother who suffers shock on being
told of an accident to a loved one cannot recover damages from the negligent party on
that account. Nor can a bystander who suffers shock by witnessing an accident from a
safe distance: Smith v. Johnson (unreported), cited in Wilkinson v. Downton 69 ; Bourhill
v. Young, 70 per Lord Porter. But if the bystander is a mother who suffers from shock by
hearing or seeing, with her own unaided senses, that her child is in peril, then she may be
able to recover from the negligent party, even though she was in no personal danger
herself: Hambrook v. Stokes Brothers. 71 Lord Wright said that he agreed with that
decision. So do I.

This brings me to the real question: Is the present case covered by Hambrook v. Stokes
Brothers 72 or not? I think that we should follow Hambrook v. Stokes Brothers 73 so far as
to hold that there was a duty of care owed by the taxi driver not only to the boy, but also
to his mother. In that case the negligence took place 300 yards from the place where the
mother was standing. In this case it was only 70 or 80 yards. In that case the mother was
not herself in any personal danger. Nor was she here. In that case she suffered shock by
fear for the safety of *442 her children from what she saw and heard. So did she here. In
that case the mother was in the street, and in this case at the window of the house. I do
not think that makes any difference. Nevertheless, I think that the shock in this case is too
remote to be a head of damage. It seems to me that the slow backing of the taxicab was
very different from the terrifying descent of the runaway lorry. The taxicab driver cannot
reasonably be expected to have foreseen that his backing would terrify a mother 70 yards
away, whereas the lorry driver ought to have foreseen that a runaway lorry might
seriously shock the mother of children in the danger area.

I may mention that some years ago, shortly after Bourhill v. Young 74 was reported, I tried
a case at the Manchester Assizes where a woman, cutting a loaf of bread, found a dirty
finger-stall in it. She suffered shock from the sight of it, and claimed damages from the
baker. She did not make the contract with the baker, but he clearly was under a duty of
care to her which he had broken. I held that she could not recover for the shock, because
it could not reasonably have been foreseen. That case shows the difficulty of drawing the
line. If she had eaten the loaf and been poisoned, she could have recovered damages, but
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King v Phillips, [1953] 1 Q.B. 429 (1953)

because she was only shocked by sight, she could not. Where is the line to be drawn?
Only where “in the particular case the good sense of the judge decides.” That is how Lord
Wright put it in Bourhill v. Young, 75 and I do not think we can get any nearer than that.

I agree that the appeal should be dismissed.

HODSON L.J.

The appellant’s claim is for shock sustained owing to the negligence of the respondent, a
taxicab driver, who ran into and injured her infant son who was playing in the street some
little way from her house.

The appellant, while in the house, heard a scream which she identified as that of her son.
She saw the taxicab backing on to a tricycle and saw the tricycle under the taxicab, but
could not see the boy. She ran down the road, the boy ran towards her and she took him
indoors. McNair J. found that the negligence of the defendant caused the injury to the
boy, and the mother’s shock was caused by what she saw and heard, but dismissed her
claim on the ground that the driver could not reasonably have anticipated that to back his
taxicab in the way he did, admittedly *443 negligently vis-à-vis the small boy, would
cause injury to his mother in her home 70 or 80 yards away.

The law in shock cases where no direct contact is involved was considered by the House
of Lords in Bourhill v. Young. 76 It is clear that the action will lie for injury by shock
whenever a person is placed in reasonable fear of immediate injury to himself, provided
that the defendant could reasonably have foreseen the risk and ought to have guarded
against it. As Lord Russell said 77 : “In considering whether a person owes to another a
duty a breach of which will render him liable to that other in damages for negligence, it is
material to consider what the defendant ought to have contemplated as a reasonable
man.” The difficulty lies in applying the law and in determining the range of the action.
On the authorities it is at least doubtful whether it can extend to unintentional acts
causing shock where there is no fear of personal injury to the plaintiff. Speaking, if I
follow him correctly, of the range of the action, Lord Wright in Bourhill v. Young 78 was
not prepared to impose any exact limit upon it, saying that it should be where in the
particular case the good sense of the judge or jury should decide.

As McNair J., in the case now under appeal, directed himself in accordance with the
speeches in Bourhill v. Young, 79 and arrived at the conclusion that the injury to the boy’s
mother was outside the range of the reasonable anticipation of the taxicab driver, I think
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King v Phillips, [1953] 1 Q.B. 429 (1953)

that an appellate court should hesitate long before disturbing his conclusion.

The appellant contends that, since she has proved the negligent driving of the defendant
and injury by shock to have been caused thereby, the case is on all fours with and, indeed,
stronger than Hambrook v. Stokes Brothers, 80 in which the Court of Appeal, by a
majority, found that a husband was entitled to recover in an action under the Fatal
Accidents Acts where the death of his wife was caused by shock brought about by fear
for her child’s safety. That case, it is said, was not overruled by Bourhill v. Young, 81 and,
accordingly, McNair J. was wrong in directing himself by the speeches delivered in the
House of Lords with regard to the earlier decision.

This criticism is, I think, ill-founded. In Bourhill v. Young 82 their Lordships had to deal
with a case in which no breach of duty was admitted, while in Hambrook v. Stokes *444
Brothers 83 there was an admission of negligence, so that the question of breach of duty
did not arise.

It seems to me that, in the absence of the admission, Lord Thankerton would not have
approved the decision in Hambrook v. Stokes Brothers. 84 He quoted a passage from
Atkin L.J.’s judgment 85 : “’I agree that in the present case the plaintiff must show a
breach of duty to her, but this she shows by the negligence of the defendants in the care
of their lorry. I am clearly of opinion that the breach of duty to her is admitted in the
pleadings,’” and continued: “But there are certain obiter dicta on the question of duty,
which might be considered too wide, and I reserve any opinion on them.” Lord Russell of
Killowen preferred the dissenting judgment of Sargant L.J.; Lord Macmillan reserved his
opinion upon the case; Lord Wright said that, as at present advised, he agreed with the
decision; and Lord Porter expressed no dissent, emphasizing that all the Lords Justices
were careful to point out that the vital problem was the extent of the duty and not the
remoteness of damage, a view with which he agreed.

In these circumstances, although I think that it is difficult to draw a valid distinction on

the facts between this case and Hambrook v. Stokes Brothers, 86 I think that McNair J.
was entitled to treat the decision of the majority of the Court of Appeal in the way in
which he did, for the reasons which he gave and for those which can be extracted from
the speeches to which I have referred in Bourhill v. Young. 87

I agree that the appeal should be dismissed.

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King v Phillips, [1953] 1 Q.B. 429 (1953)

Representation
Solicitors: Darracotts ; Alfred E. Johnson .

Appeal as to damages for infant plaintiff dismissed. Appeal on claim of mother dismissed. (E. D. )
Footnotes

1 [1925] 1 K.B. 141; (1925) 41

T.L.R. 125 .

2 [1925] 1 K.B. 141; 41 T.L.R.

125 .

3 [1921] 3 K.B. 560 .

4 (1939) 62 C.L.R. 1 .

5 [1943] A.C. 92; [1942] 2 All

E.R. 396 .

6 [1925] 1 K.B. 141 .

7 [1943] A.C. 92 .

8 [1925] 1 K.B. 141 .

9 [1943] A.C. 92 .

10 [1925] 1 K.B. 141 .

11 [1925] 1 K.B. 141 .

12 [1943] A.C. 92 .

13 [1925] 1 K.B. 141 .

14 [1939] 1 K.B. 394; 55 T.L.R.

246; [1938] 4 All E.R. 727 .

15 [1943] A.C. 92 .

16 [1939] 1 K.B. 394 .

17 [1943] A.C. 92 , 110.

18 [1925] 1 K.B. 141 , 157.

19 [1943] A.C. 92 .

20 [1925] 1 K.B. 141 .

21 [1943] A.C. 92 , 111.

22 [1901] 2 K.B. 669, 675;

(1901) 17 T.L.R. 555 .

23 [1939] 1 K.B. 394 .

24 [1939] 1 K.B. 394 .

25 [1943] A.C. 92 .

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King v Phillips, [1953] 1 Q.B. 429 (1953)

26 [1939] 1 K.B. 394 .

27 [1943] A.C. 92 .

28 [1939] 1 K.B. 394 .

29 [1943] A.C. 92 .

30 [1943] A.C. 92 .

31 [1943] A.C. 92 .

32 [1943] A.C. 92 , 102.

33 Ibid. 105.

34 Ibid. 111.

35 Ibid. 119.

36 [1943] A.C. 92 .

37 [1943] A.C. 92 , 98, 99.

38 [1943] A.C. 92 , 98, 99.

39 [1943] A.C. 92 , 98, 99.

40 Ibid. 102.

41 Ibid. 104.

42 1941 S.C. 395 , 429.

43 [1943] A.C. 92 .

44 [1939] 1 K.B. 394; 55 T.L.R.

246; [1938] 4 All E.R. 727 .

45 [1943] A.C. 92 , 100.

46 Ibid. 110.

47 [1939] 1 K.B. 394 .

48 [1939] 1 K.B. 394 .

49 Ibid. 397.

50 [1925] 1 K.B. 141; (1925) 41

T.L.R. 125 .

51 [1943] A.C. 92 .

52 [1925] 1 K.B. 141 .

53 Ibid. 152.

54 [1943] A.C. 92 .

55 [1943] A.C. 92 , 110.

56 [1925] 1 K.B. 141 .

57 [1921] 3 K.B. 560 .

58 [1943] A.C. 92 .

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King v Phillips, [1953] 1 Q.B. 429 (1953)

59 [1943] A.C. 92 .

60 [1925] 1 K.B. 141 .

61 [1925] 1 K.B. 141 .

62 [1943] A.C. 92 .

63 [1939] 1 K.B. 394 .

64 [1943] A.C. 92 , 109.

65 [1943] A.C. 92 .

66 Ibid. 111.

67 [1925] 1 K.B. 141 .

68 (1939) 62 C.L.R. 1 .

69 [1897] 2 Q.B. 57 .

70 [1943] A.C. 92 , 117.

71 [1925] 1 K.B. 141 .

72 [1925] 1 K.B. 141 .

73 [1925] 1 K.B. 141 .

74 [1943] A.C. 92 .

75 [1943] A.C. 92 .

76 [1943] A.C. 92 .

77 [1943] A.C. 92 , 101.

78 [1943] A.C. 92 .

79 [1943] A.C. 92 .

80 [1925] 1 K.B. 141 .

81 [1943] A.C. 92 .

82 [1943] A.C. 92 .

83 [1925] 1 K.B. 141 .

84 [1925] 1 K.B. 141 .

85 [1943] A.C. 92, 100; [1925] 1

K.B. 141 , 156.

86 [1925] 1 K.B. 141 .

87 [1943] A.C. 92 .

(c) Incorporated Council of Law Reporting for England & Wales

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