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Case:
BGH NJW 1989, 2317 VI. Civil Senate (VI ZR 97/88)
Date:
04 April 1989
Translated by:
J Shaw
Copyright:
Professor B. S. Markesinis

Facts

The plaintiff and her husband had booked a cruise in the eastern Mediterranean scheduled to start on April 26, 1984 and paid the organisers the full price of DM 10,130. On April 21, 1984 the plaintiff’s son C, then aged 22, was killed in a road accident. It is not contested by the parties that the defendant is liable in full for the damage resulting from the accident. On account of the pressures placed upon them, the plaintiff and her husband were unable to take the cruise which began one day after the funeral. They were not able to claim reimbursement of the DM 10,130 from the organisers. The plaintiff claimed for the loss of potential support under § 845 BGB arising from her rights as the mother of the victim of the accident and from her husband’s corresponding rights which were assigned to her. In addition she claimed compensation for the expenditureon the lost holiday.

Although the LG rejected the claim based on § 845 BGB, it awarded her DM 10,130 as compensation for the holiday expenses. The OLG dismissed the appeals of both parties, but the defendant’s appeal to the BGHwas successful in respect of the lost holiday expenditure.

The plaintiff’s cross-appeal for the loss of supportwas denied.

For the following reasons:

I. The OLG accepted the claim brought by the plaintiff for the recovery of money spent on the holiday bookedbut not taken and made the following findings of law:

As a result of their son’s death, the plaintiff and her husband were harmed in respect of their ‘rightof health’ protected by § 823 I BGB.

The general view is that damages for pain and suffering are only available in respect of loss in the form of nervous shock which has the degree of severity of an illness. This does not necessarily mean that psychological impairment can only represent an infringement of a right protected by § 823 I BGB when it has the degree of severity of an illness. On the contrary, any form of invasion of the plaintiff’s general bodily condition such as the infliction of worry and discomfort is sufficientfor there to be damage to the plaintiff’s health.

Furthermore, the court believed the plaintiff’s assertion that she and her husband were psychologically incapable of going on holiday as a result of the death of their son. The principles developed by the case law on the ‘Vorhaltekosten’ [costs of maintaining a replacement vehicle whenever the plaintiff’s own vehicle is out of circulation as a result of an accident] must be applied in this case and, as a result, the expenditure on the holiday must be treated as arecoverable form of damage.

II. The appeal judgment cannot be upheld in law.

1. On the basis of the facts as established, the OLG sees the plaintiff and her husband as having suffered an injury to their right of health protected under § 823 I BGB as a direct consequence of the accident suffered by their son. As a result, it held that the defendant was under a duty to make good the lost expenditure onthe holiday as a consequence of the injury.

(a) This approach is not correct as a matter of law. True, the case law has long recognised [references omitted] that the concept of injury to the health within the meaning of § 823 I BGB not only covers physical impairment of the body, but also impairment of a psychological form. However, the law at present denies recovery for mental pain in so far as this is not a consequence of the effects of the injury to the (plaintiff’s own) body or the (plaintiff’s own) health. Feelings such as sorrow and pain, which are generated by the negative experience itself, are always linked in serious cases with disturbances in the plaintiff’s physiological make-up and can, therefore, be directly relevant in a medical sense to the plaintiff’s bodily state. To recognise these matters in law as injuries to the plaintiff’s health within the meaning of § 823 I BGB … would contradict the intention of the legislator to limit tortious liability in § 823 I BGB to clearly defined sets of circumstances by restricting the range of protected interests and the prohibited forms of conduct. In particular, the BGB [never intended] to give a remedy, except where §§ 844 and 845 BGB apply, in cases where the interference with the protected interests of a person has an effect on third parties, unless the latter have suffered an injury in their own right. Thus, precisely in cases such as the present one, the close relatives will normally experience an effect upon their psychological and mental condition on hearing of the victim’s death in an accident and as a consequence will suffer not only non-pecuniary, but also pecuniary loss. Nevertheless, the law has restricted recovery for pecuniary loss in the case of the person ‘indirectly’ injured by a death to the more precisely defined types of loss set out in §§ 844 and 845 BGB. This legislative determination in favour of a basic limitation of tortious liability to recovery by the person ‘directly’ injured, would be undermined if those types of psychological and mental effects resulting from the experience of the death of a close relative amounted to recoverable injury to health under § 823 I BGB simply because they are recognised by medical science. Consequently, this court has, since its decision in BGHZ 56, 163 [references omitted], only recognised a right to compensation in these types of cases for those types of psychologically inflicted impairments which have psycho-pathological effects lasting for some time, which exceed by some degree the already not inconsiderable detriment caused by a painful trauma for a person’s general state of health, and which can therefore ‘be regarded in accordance with the general view as injuries to the body or to the health of the victim’ [references omitted]. For this reason it is wrong for the OLG to take the view, in cases such as the present one where the loss is in the nature of psychological pressure upon the relatives as a result of the death, that even in the context of psychological injuries any invasion of the plaintiff’s general bodily condition, or any infliction of worry and discomfort would suffice even if it did not display the severity of an illness. This point of view is not even supported by the references cited by the OLG itself such as Thomas in Palandt in BGB Kommentar, 48th Edition, § 823 note 3b. In that commentary upon the law relating to injuries to mental and bodily health through psychological effects [reference omitted] it is stated that ‘in accordance with the protective purpose of § 823 I BGB a claim for compensation should exist only where the injury to health exceeds, in the type and degree, that which close relatives must expect to suffer by way of impairment in these kinds of cases.’ In making this statement, Thomas also cited the judgment of this court of May 11 1971 (NJW 1971, 1883 [other references omitted]). The court confirms the approach taken there according to which the only psychological impairments which will amount to injuries to health under § 823 I BGB are those which display the characteristics of an obvious pathology and which will, therefore, be seen by the general public as injuries to the body or the health of the victim [references omitted]. Findings of fact to this effect were not discussed by the OLG and werenot advanced by the plaintiff.

(b) If an injury to the health of the plaintiff or her husband within the meaning of § 823 I BGB as a consequence of the fatal accident involving their son cannot be established, then it may be left open whether, if such psychological impairments did in the particular circumstances of this case lead to a genuine injury to the plaintiff’s health in the sense defined above, lost expenditure on a holiday which was booked but not taken could be brought within the scope and purpose of the legal norm which has been violated [references omitted]. There is also no need to decide whether, for example, recovery for such a form of detriment is excluded as a form of recoverable compensation for injury to health because experience would indicate that regardless of whether the psychological and physical impairments which they might have suffered as a result of the traumatic event had the degree of severity of an illness as required by § 823 I BGB, parents would not, normally, go on holiday one day after the funeral of their child.

2. The appeal judgment is further unsustainable on other legal grounds. Consideration should be given in this context to § 844 I BGB. Even if with respect to this claim for damages (which here accrues to a third party due to his duty to bear the funeral costs) one could give the term ‘funeral’ expenses a wide meaning to include all expenditures associated with an appropriate and dignified burial, the presence of proximate cause (Zurechnungszusammenhang) would be questionable. This is because the plaintiff, according to her own pleadings, failed to take the holiday because of the psychological pressures she was experiencing as a result of the accident and not because of the timing of the funeral.

However, even if the focus were solely upon the funeral, it must be held that expenditure upon a holiday which is booked but not taken falls outside the protective scope of § 844 I BGB. For as exceptions to the general principle of the law of tort, that only persons who are directly injured by an accident will normally have a claim for compensation, §§ 844 and 845 BGB are to be narrowly interpreted. This means that in the context of § 844 I BGB it is the duty of the victim’s heirs to bear the costs of the funeral which must form the focus of attention; but the concept of funeral expenses cannot be extended to cover expenditure which has been wasted because the third party (plaintiff) had to attend the funeral. Even if, exceptionally, § 844 I BGB can be construed as encompassing also the recovery of the travelling expenses of close relatives to attend the victim’s funeral [references omitted], compensation for the above types of expenditure would go beyond the scope of liability set by the legislator. This court finds itself precluded from giving a wider interpretation of § 844 I BGB both by the terms of the law, itself, and the place of § 844 I BGB within the [wider] systematic framework of the law of tort.

Notes to Cases 1–2

1. The previous two and the next one case deal with the compensation of what used to be known in English law as nervous shock but nowadays goes by under the name of psychiatric injury. In the United States the term used is emotional harm and this is wider than the English term for two reasons. First, because, as we shall note below, in some jurisdictions this is seen to include distress, anxiety, and diminished enjoyment of life, types of harm which are seen with greater distrust both by English and German law. Secondly, American lawyers award compensation for emotional harm in factual instances such as discrimination (sexual or racial), violation of religious freedom, sexual harassment, and other such instances in which English and Continental European courts (and the legislature) have yet to make comparable inroads. In these notes we shall thus focus on the factual situations covered by the three German cases, all of which involve psychiatric injury inflicted as a result of experiencing unusually distressing scenes. Seen in this context, the first two cases raise four important points.

2. The first is connected with the problem of distant shock. Endorsing the view of earlier courts—of which RGZ 133, 270 is reproduced below as case 3—the court took the view that recovery should not be confined to eye-witnessing relatives but should also be allowed where the injurious effect was distant (Fernwirkung). This point, though never seriously contested, has been reaffirmed in more recent times by the Federal Court. (BGH 5 February 1985, BGHZ 93, 351 = NJW 1985, 1390 with note by Deubner at p. 1392). In that case the plaintiff was en ventre sa mère when the latter was told of her husband’s serious injuries in a traffic accident. As a result, the mother suffered severe physiological and psychological reactions, which affected the birth process and led to the plaintiff being born seriously impaired. The child’s claim for a declaratory judgment that she was entitled to damages was accepted, the court rejecting the defendant’s argument that there was no causal nexus between the mother’s shock and the plaintiff’s injury. This is one of the crucial issues in nervous shock cases and is discussed more fully in the notes to the next case. For a summary of German law see Ch. 2, A. 2, (c), above.

3. The second point decided by the Federal Court was that recovery should be limited to cases of psychiatric injury. See: Attia v. British Gas Plc, [1988] QB 304, 317, 320, per Bingam LJ. Cf. Toms v. McConnell, 45 Mich. App. 647, 207 NW 2d 140 (1973). See, also, De Franceschi v. Storrier (1989) 85 ACTR 1. This includes cases where there is a recognisable medical illness entailing such consequences as sleeping disorders, headaches, vomiting, speech disturbances, inability to concentrate, loss of libido and, in the most serious types of cases, even suicidal mania. (A fuller list can be found in Alcock v. Chief Constable of South Yorkshire [1992] 1 AC 310, 317.) Attempts by German lawyers to enlarge the definition of compensatable harm to include life’s general risks – allgemeines Lebensrisiko – such as pain, grief, and other expenses connected with the ‘inconvenience’ suffered as a result of the death of a close relative, have been rebuffed by the courts. (See BGH NJW 1989, 2317, reproduced above as case 2. Point re-confirmed in BGH 9 April 1991, NJW 1991, 2347. Likewise in English law - Lord Lloyd in Page v. Smith [1996] 1 AC 155 at - and in most but not all the jurisdictions of the United States.) However, the dividing line between, on the one hand psychiatric injury with recognised medical symptoms, and on the other hand ‘ordinary’ pain and grief is sometimes more easy to state than to apply. An able lawyer and a sympathetic court can also manipulate it in favour of the plaintiff – especially if operating under a jury system. Case 2 shows how, with the help of a wider, teleological interpretation of all the relevant provisions of the Code, the temptation has been avoided in Germany. In this context, therefore, German law greatly resembles the English approach, though the juxtaposition of the German and English decisions (e.g. Hinz v. Berry [1970] 2 QB 40, 42) reveals some interesting differences at the level of writing style. (Cf. in this respect, the comments of Professor Kötz in La Sentenza in Europa: Metodo Tecnica e Stile (1988), Einführungsvortrag, 129.) On the other hand, in German law, “…it is not a precondition of the tortfeasor’s liability that the psychological effects had a physical cause. It is sufficient if it is clear enough that the psychological impairment would not have occurred but for the accident.” (BGH 9 April 1991 NJW 1991, 2347; trans. by Weir taken from van Gerven, op. cit., p. 92.)

4. The diversity of American solutions makes comparisons with the law in the USA more difficult, especially with the legal scene of the last thirty years ago. For here one finds diametrically different trends and a continuing and bewildering state of flux. The comments in this note must thus be read in conjunction with what is said in the notes to the next case and with the important caveat that in the United States one can find decisional law that can support almost every conceivable proposition. Such uncertainty and flux are unlikely to make American law a model for exportation, though landmark decisions such as Dillon v. Legg, 68 Cal. 2d 728, 69 Cal. Rptr. 72, 441 P. 2d 912 (1968), have had an important impact on other systems, including the English, and still repay careful reading.

In the United States, the first (and liberalising) trend manifested itself in the late seventies and early 1980s and was mostly to be found in the Western States of America. Those courts, which adopted it, inclined towards a wide (but erratic) interpretation of Dillon, undermining the calm authority of the case. They thus seemed willing to consider sympathetically claims for ‘emotional distress’ unaccompanied by obvious physical manifestations. See Molien v. Kaiser Foundation Hospitals, 27 Cal. 3d 916, 616 P. 2d 813 (1980); Whitmore v. Euroways Express Coaches Ltd, The Times, 4 May 1984. In the Molien case the main controlling device introduced by the court was the requirement that the emotional harm suffered by the plaintiff be ‘serious’. This was defined in Rodrigues v. State, 52 Haw. 156, 472 P. 2d 509 (1970) (and approved by Molien) as ‘serious mental distress . . . found where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case’. If the italicised words are properly utilised they could be sufficient: but the Hawaiian courts have certainly not taken it seriously: see the bizarre case of Campbell v. Animal Quarantine Station 63 Haw. 557, 632 P. 2d 1066 (1981). There, five plaintiffs recovered a total of $1000 for the anguish they suffered when they were told over the phone that their ageing dog had died the previous day after it had been forgotten in an unventilated van for over an hour exposed to the Hawaiian sun! (Some of these decisions, which are not without parallels in other systems such as the French, are discussed by Wise, “Recovery of Common Law damages for Emotional Distress, Loss of Society, and Loss of Companionship for the Wrongful death of a Companion Animal”, 4 Animal Law 33 (1998).) But this shift towards plaintiffs courted a reaction which came with a vengeance as the changed of political climate in the 1980’s put more conservatively inclined judges on the Bench. The decision of the Supreme Court of California in Elden v. Sheldon 250 Cal., 254 (1988), is an excellent example. Thing v. La Chusa, 48 Cal. 3rd 644, 257 Cal. Rptr. 865, 771 P. 2d 814 (1989), another ‘leading’ case, confirmed this swing; and it presents a particular interest to English lawyers in so far as it involved facts very similar to those of the English case of McLoughlin v.O’ Brian [1983] 1 AC 410. But in the California case, the mother who rushed to scene of the accident after it had occurred to find her son bloody and apparently dead, failed to recover for her own emotional distress whereas in the England the opposite result was reached. This antithesis of the late 1980’s to the thesis of the previous ten years thus marks a return to a more traditional understanding of the meaning of emotional distress. It also radically restricts the range of claimants under the Dillon v. Legg rule. This will be discussed briefly in the notes that accompany the translation of the second German decision on nervous shock.

5. But the battle between liberal and conservative judges is not over. Molien, allowing recovery for mental anguish even in the absence of physical injury, now seems to be accepted by some ten states with the Texas Supreme Court joining this move in its majority decision in Moore v. Lillebo 722 SW 2d 683 (1986). As is explained in greater detail in the note 4 to the next German decision, Tennesse and Montana are also showing signs of being content to rely on foreseeability as the main if not sole controlling device. Even California has in one sense swung back to a more liberal stance in its decision in Burgess (discussed in the next note). It remains to be seen whether this emerging ‘independent’ cause of action for pure emotional distress will displace the Dillon v. Legg rule. On this see the notes to the next German case and, inter alia, Nola and Ursin, ‘Negligent Infliction of Emotional Distress: Coherence Emerging from Chaos’ 33 Hastings LJ 583 (1982). See, also, Hughes, ‘Recovering Damages for Mental Anguish in Wrongful Death Suits: The Elimination of the Physical Injury/Physical Manifestation Requirement’ 18 Texas Tech. L. Rev. 893 (1987). An interesting compromise is proposed by Miller, ‘The Scope of Liability for Negligent Infliction of Emotional Distress: Making “the Punishment Fit the Crime”’ U. Haw. L. Rev. 1 (1979). Cases such as these prompt many questions. Here are some:

(i) How does one define mental anguish that merits compensation? Some Texas courts have understood the term to imply ‘a relatively high degree of mental pain and distress. It is more than mere disappointment, anger, resentment, or embarrassment, although it may include all of these . . .’, Trevino v. Southwestern Bell Tel. Co., 582 SW 2d 582, 584 (Tex. Civ. App. 1979). But Rodrigues (cited above) shows that it is easier to formulate a test than to apply it.

(ii) What is the legal position of absent members of a community hit by a natural disaster? See Labin, ‘Dealing with Disasters: Some Thoughts on the Adequacy of the Legal System’ 30 Stan. L. Rev. 281 (1978).

(iii) What if the victim suffers mental anguish because physical harm may follow the negligently caused event, e.g. in the case of a man who had a homosexual relationship with another man who, unbeknown to him, was infected by AIDS? Courts have allowed damages for fear of future cancer—cancerphobia—as a result of exposure to toxic substances, e.g. Jackson v. Johns-Manville Sales Corp., 781 F. 2d 394 5th Cir. (1986); Herber v. Johns-Manville Corp., 785 F. 2d 79 (1986); Eagle-Pitcher Indus. Inc. v. Cox, 481 So. 2d 517 (1987), rev. denied, 492 So. 2d 1331 (1986). On this see: Gale and Goyer, ‘Recovery for Cancerphobia and Increased Risk of Cancer’ 15 Cumb. L. Rev. 723 (1985); Dworkin, ‘Fear of Disease and Delayed Manifestation Injuries: A Solution or a Pandora’s Box?’ 53 Fordham L. Rev. 527 (1984); Note, ‘Tort Liability for the Transmission of AIDS Virus: Damages for Fear of AIDS and Prospective AIDS’ 45 Wash. and Lee L. Rev. 185 (1988); “Emotional Distress Damages for fear of Contracting AIDS: Should Plaintiff have to show exposure to HIV?” 99 Dick L. Rev. 779 (1995). Some courts have made recovery depend on “actual exposure”; and have understood this notion restrictively. Thus in K.A.C. v. Benson, 527 NW 2d 553 (Minn. 1995) a woman who was subjected to gynaecological examinations by a doctor who had lesions in his hands and forearms and had tested HIV positive, was refused recovery. Others, however, have taken the view that subjecting the plaintiff to reasonable fear of exposure to AIDS infection is sufficient and in similar circumstances such as the one just given have allowed recovery. See: Faya v. Almaraz, 329 Md. 435, 620 A. 2d 327 (1993); Williamson v. Waldman, 150 N.J. 232, 696 A. 2d 14 (1997); Hartwig v. Oregon Trail Eye Clinic, 254 Neb. 777, 580 NW 2d 86 (1998). The recovery however tends to be limited for the period until testing can assuage the fears.

(iv) How does one reconcile the law’s general reluctance to allow recovery for pure emotional harm if the plaintiff has not suffered recognisable physical or psychological effects with the statutes and decisions one in some States which allow damages for mere grief in wrongful death settings? This heading, which goes beyond the more widely recognisable claim for “loss of companionship, (discussed below in chapter 4) has emerged as a result of legislative intervention (e.g. Kan. Stat. Ann. § 60-1904) as well as judicial creativity. (See, St. Louis Southwestern Ry. v. Pennington, 261 Ark 650, 553 SW 2d 436 (1977).)

6. The problem of contributory negligence examined in the leading German case is a difficult one; and in England it recently surfaced in an interesting judgment by Cazalet J. reproduced as an addendum, below. The German case concerned the deceased’s (primary victim’s) own contributory fault and whether this should be taken into account when calculating the plaintiff’s damages. (The plaintiff was the primary victim’s wife who claimed for the psychiatric injury that resulted from her being told of her spouse’s death). The German court’s decision was affirmative; but its reasoning has to be studied carefully before it is fully understood. Two points thus need to be separated from the outset.

First, it is clear that any claim brought by the plaintiff as a dependant under the English Fatal Accidents Acts (or the German equivalent) will be affected by the contributory negligence of the deceased; in both cases the relevant statutory material says so. (§ 846 BGB.) The more difficult question is the second one namely, whether the same apportionment should take place in the case of any personal claims which the plaintiff/secondary victim might have for his or her nervous shock. Now in German law such a plaintiff’s nervous shock claim will be an independent claim based on § 823 I BGB and not a derivative one based on §§ 843-4 BGB (wrongful death). Put in this way, it is prima facie difficult to see how the primary victim’s own contributory fault could be imputed to his wife/plaintiff. The German court by-passed this difficulty by basing its decision on the pervading notion of good faith (embodied in § 242 BGB). The Kammergericht Berlin has subsequently followed this approach, in its decision of 10 November 1997, VersR 1999, 504, though this solution has not been without its critics. (Thus see the strong doubts expressed about the first decision by the late John Fleming in 20 A. J. Comp. Law 485, 488–9 (1972).) (The rationale behind imputing the ‘primary’ victim’s negligence is further examined in note 7, below.)

Prior to Greatorex v Greatorex [2000] 1 WLR 1970=[2000] 4 All ER 769 (reproduced as an addendum, below), common law courts do not appear to have faced this problem squarely in the context of nervous shock - at any rate in England - though in his judgment Cazalet J. alluded to some inconclusive Commonwealth authority. The picture in the USA may not be much clearer, though Dillon v. Legg (441 P. 2d 912 (1968)) contains some (seemingly) confused views on the subject. (In Dillon the majority, at p. 916, asked the question whether the contributory negligence of the victim and the plaintiffs should affect their claims whereas the minority, at p. 928, asked the very different question whether the deceased child’s negligence can affect the living plaintiffs’ claims.) However, the same point (about contributory negligence) may also arise in ‘rescue’ cases and in those States (in the United States) which still recognise actions for ‘loss of consortium’ or loss of ‘parental or children’s companionship’. In the first instance, and perhaps also in the second, the tendency is to treat the claims as independent and, therefore, not to impute contributory negligence. See Mallett v. Dunn [1949] 2 KB 180 (England); Feltch v. General Rental Co., 383 Mass. 603, 421 NE 2d 67 (1981), reviewing the contradictory American case law. See also Handeland v. Brown, 216 NW 2d 574 (Iowa, 1974) and compare the views of the majority and the dissent. Imputed contributory negligence is discussed in detail in Gregory, Kalven, and Epstein, 716 ff., especially 730 ff and Harper, Fleming James Jr and Gray, vol. II, ch. 8.8 and 8.9. In Germany, as far as the rescue situation is concerned, it has been argued that, since there is a duty to rescue under § 323c StGB, a person wishing to commit suicide has a duty to carry it out in a way which does not “provoke” any rescue by third parties; otherwise he may be liable for any damage suffered during the rescue. (See Medicus Schuldrecht BT 9th ed. (1999) p. 302.) The point, however, does not appear to have been settled by the courts.

7. Greatorex v Greatorex raised the question whether a “primary victim” owed a duty of care to a “secondary victim” not to harm himself. The (first) defendant was injured in an accident caused by his grossly negligent driving. The plaintiff, his father, a professional fire officer, suffered nervous shock as a result of attending his son at the scene of the accident. As stated, Cazalet J. acknowledged that there was no binding authority on this issue. Interestingly enough, his conclusion was, to a large extent, influenced by BGHZ 56, 163 (case 1) which was cited to him by counsel. The question the judge asked himself was whether a person owes a duty of care to other persons not to harm himself. It will be recalled that the BGH had suggested that the imposition of such a duty would unduly restrict the person’s right to self-determination. We also noted that an exception might have to be considered where the suicide was committed in a “deliberately shocking manner”. (Similarly, in BGH ZIP 1990, 1485, the court held that as a general rule a lessor did not owe a contractual duty to the lessee not to commit suicide and as a result the estate was not answerable for the termination of the lease. To impose such a duty would have amounted to an unjustifiable intrusion of the right to self-determination of the lessor.) Cazalet J. expressly followed the reasoning of the BGH and regarded the argument derived from the right to self-determination in case 1 as “powerful”. (See also the Law Commission’s report on Liability for Psychiatric Illness Law Com. No. 249 (1998) para. 5.34-5.44). Matters might be different where, by harming himself, the “primary victim” causes damage other than nervous shock to another. (See A v. B's Trustees (1906) 13 SLT 830.) The ethical duty not to harm oneself becomes a legal duty as soon as the self-harming activity also causes physical harm to another person. From this perspective the “primary victim’s” immunity from liability for nervous shock (suffered by others) constitutes an exception. In other words, the “primary victim’s” right to self-determination prevails only if we regard this injury as special. Cazalet’s J. constant reference to “policy” lends credence to this view and illustrates, once again, the legal system’s difficulty to cope with the ramification of nervous shock and emotional injuries.

In case 1, above, the issue was whether the contributory negligence by the primary victim could be imputed to the secondary victim and his claim for damages against a third party accordingly reduced. At this stage, it is useful to reconsider the argument in favour of imputing the primary victim’s contributory negligence to the secondary victim in the light of Cazalet’s J. analysis of the “primary victim’s” (limited or non-existent) liability to others for causing harm to himself. For the two issues are interrelated.

The rationale seems to be this. If, generally speaking, a person (“primary victim”) does not owe a duty of care to others (“secondary victims”) not to harm himself, then “it is only fair” that if a third person causes physical injury to the primary victim, the secondary victim should bear the primary victim’s causal contribution to the accident. This problem has occurred also in other contexts of adjustment among multiple ‘debtors’ and the BGH has (not always consistently) applied similar considerations. (Thus, e.g. BGH, JR 1989, 60, but see BGHZ 12, 213). Because of special circumstances, characteristic of the relationship between primary and secondary victim, the secondary victim does not have a cause of action against the primary victim (all other conditions of liability for nervous shock being fulfilled). This is because such a cause of action would be contrary to the primary victim’s right to self-determination; but one could easily replace this with an exclusion clause. So the secondary victim sues the third party (case 1). If the third party could subsequently claim contribution from the primary victim, then in the end the primary victim would be held liable for his causal contribution to the accident. (Albeit the risk of insolvency of the primary victim would be transferred from the secondary victim to the third party.) But this result of holding the primary victim liable is regarded as undesirable (because of his right to self-determination). Therefore, the third party cannot claim contribution from the primary victim even if the latter was primarily responsible for the accident. (Cf. Alcock v. Chief Constable of South Yorkshire Police [1992] 1 AC 310, 418 per Lord Oliver.) This result may not be satisfactory. It would not seem fair in such circumstances, the BGH stressed, to impose full liability on the third party, especially if his contribution to the harm was in causative terms very low and that of the primary victim very high. Why should the third party (rather than the secondary victim) bear the primary victim’s causal contribution to the accident? After all, it is because of special circumstances arising out of the relationship between primary and secondary victim, that the primary victim cannot be made liable for causing nervous shock. It is therefore plausible to apply the rationale of § 846 BGB also to claims of secondary victims in respect of nervous shock and to reduce the secondary victim’s claim accordingly. This implies that where the primary victim is solely answerable for the accident, the secondary victim cannot recover. We are thus back to our point of departure!

8. There is a final issue that needs to be considered and it concerns the level of damages that are recoverable. Pecuniary losses caused by the psychiatric illness induced by the accident are, of course, recoverable. (For instance lost earnings, case 1). But an English lawyer will also need to know the level of damages that can be recovered for “pain and suffering” under § 847 BGB. Are they/should they be high or low? And should they be influenced by the level of awards found in other cases? These questions are examined in detail in Ch. 4 section A.3(c).

Addendum
Extracts from Greatorex v Greatorex [2000] 1 WLR 1970

Facts and Proceedings
On 11 April 1996 the first defendant had been drinking with a friend, who is the defendant in the proceedings made pursuant to Part 20 of the Civil Procedure Rules. The first defendant was driving a car belonging to the Part 20 defendant, who had given him permission to drive the car and was a passenger in it. Whilst overtaking on a blind brow the first defendant negligently drove over on to the wrong side of the road and was hit by an oncoming vehicle. The Part 20 defendant was uninjured. The defendant's head was injured and he was unconscious for about an hour. Initially he was trapped inside the car. The police, ambulance and fire services attended the scene of the accident. Among the fire officers who attended the scene was the plaintiff. He is the defendant's father. At the time of the accident he was employed as a leading fire officer. He was nowhere near the scene of the accident when it happened. He went there in the course of his employment. Having been informed that his son had been injured, he attended to him. The plaintiff was later diagnosed as suffering from long-term, severe, post-traumatic stress disorder as a result of the accident. The first defendant was subsequently convicted of driving a motor vehicle without due care and attention, driving without insurance and failing to provide a specimen. The plaintiff brought proceedings claiming damages against the first defendant, his son. Since the first defendant was uninsured at the time of the accident, the Motor Insurers' Bureau has been joined as the second defendant. The second defendant has in turn brought proceedings under Part 20 of the Civil Procedure Rules against the Part 20 defendant seeking an indemnity from him on the basis that he allowed the first defendant to drive his car without insurance against third party risks in breach of the Road Traffic Act 1988. On the basis of these facts the court had to determine the following three preliminary questions of law:

"1. Does a primary victim (ie the first defendant) owe a duty of care to a third party in circumstances where his self-inflicted injuries caused that third party psychiatric injury? 2. On the agreed facts, did the first defendant owe the plaintiff a duty of care not to harm himself? 3. On the agreed facts, did the first defendant owe the plaintiff a duty of care not to cause him psychiatric injury as a result of exposing him to the sight of the defendant's self-inflicted injuries?"
CAZALET J.

The role of policy considerations

It is not in dispute that the onus is on the plaintiff to show that a duty of care exits, either on the basis of existing authority or by the application of established principle. It is well settled that whilst foreseeability is a necessary condition for the existence of such a duty it is not of itself a sufficient condition. It must, in addition, be fair, just and reasonable for a duty of care to be imposed in a particular situation. The law was encapsulated by Lord Bridge of Harwich in Caparo Industries Plc v Dickman [1990] 2 AC 605, 617-618 in the following well known passage:

"in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other . . . the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope."

These observations apply with particular force in the field of negligently inflicted psychiatric injury, where policy considerations loom large. This is evident from each of the quartet of decisions in which the House of Lords has reviewed this area of the law in the last two decades,

[Then follow references to McLoughlin v O'Brian [1983] 1 AC 410, 420 per Lord Wilberforce; Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, 411 (the first of two House of Lords decisions arising out of the Hillsborough football stadium disaster) per Lord Oliver of Aylmerton; Page v Smith [1996] AC 155, 197E per Lord Lloyd of Berwick; and Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455, 493A (the second of the Hillsborough disaster cases) per Lord Steyn].

The control mechanisms
The control mechanisms which restrict the scope of the duty of care where damages for psychiatric injury arising out of an accident are claimed by claimants who were not directly threatened by the accident but learned of it through seeing it or hearing of it were defined in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. In Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455, 502 Lord Hoffmann conveniently stated them in summary form:

"(1) The plaintiff must have close ties of love and affection with the victim. Such ties may be presumed in some cases (eg spouses, parent and child) but must otherwise be established by evidence. (2) The plaintiff must have been present at the accident or its immediate aftermath. (3) The psychiatric injury must have been caused by direct perception of the accident or its immediate aftermath and not upon hearing about it from someone else."

Primary and secondary victims
In Page v Smith [1996] AC 155, 197 Lord Lloyd, with whose speech Lord Ackner and Lord Browne-Wilkinson agreed, placed emphasis upon the distinction in nervous shock cases between the position of a primary victim of an accident, who is directly involved as a participant and is within the range of foreseeable physical injury, and that of a secondary victim, whose psychiatric injury is caused by witnessing or participating in the aftermath of an accident which causes or threatens death or injury to others. Among the principal consequences of this distinction are that the primary victim, unlike the secondary victim, can recover damages for his psychiatric injury even if such injury was unforeseeable, and that he can do so even if he suffered the psychiatric harm because he lacked normal fortitude or "ordinary phlegm."

I turn to the competing arguments which have been urged upon me as to whether a duty of care situation arose on the facts of this case.

The plaintiff as a rescuer
Mr Mason, for the plaintiff, first submits that the first defendant owed the plaintiff a duty of care in his capacity as a rescuer, separate and apart from, for the purpose of this submission, the fact that he was also a close relative of the first defendant.

It seems reasonably clear that prior to the decision of the House of Lords in Frost rescuers were treated as coming within a special category. Lord Oliver in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, 408 summarised the position of the rescuer as it was then seen to be as follows:

"Into the same category, as it seems to me, fall the so called 'rescue cases.' It is well established that the defendant owes a duty of care not only to those who are directly threatened or injured by his careless acts but also to those who, as a result, are induced to go to their rescue and stiffer injury in so doing. The fact that the injury suffered is psychiatric and is caused by the impact on the mind of becoming involved in personal danger or in scenes of horror and destruction makes no difference. 'Danger invites rescue. The cry of distress is the summons to relief . . . the act, whether impulsive or deliberate, is the child of the occasion:' Wagner v International Railway Co (1921) 232 NY 176, 180-181, per Cardozo J."…However, in Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455 the House of Lords concluded by a majority of three to two that for policy reasons rescuers should no longer be regarded as coming within a special category. Lord Steyn and Lord Hoffmann, with both of whose speeches Lord Browne-Wilkinson agreed, concurred in dismissing claims by police officers who had suffered psychiatric injury as a result of their experiences at the Hillsborough disaster. The effect of the majority decision is that in order to recover compensation for pure psychiatric injury suffered as a rescuer the plaintiff has at least to satisfy the threshold requirement that he objectively exposed himself to danger or reasonably believed that he was doing so, although it is not necessary for him to establish that his psychiatric condition was caused by the perception of personal danger. Where this element of personal danger is lacking his position is no different from that of other secondary victims who are subject to the control mechanisms to which I have referred above: see the Frost case, at pp 497, 499, per Lord Steyn: at pp 509-511, per Lord Hoffmann.

The speeches of Lord Steyn and Lord Hoffmann are to be compared with the no less powerful dissenting speeches of Lord Griffiths and Lord Goff of Chieveley, both of whom were of the opinion that rescuers should remain in the special category in which they had previously appeared to be placed. Both Lord Griffiths and Lord Goff accepted, however, that it should only be in exceptional cases that rescuers who were not in any physical danger should be permitted to recover for their psychiatric injury. Lord Griffiths said, at p 465:

"If the rescuer is in no physical danger it will only be in exceptional cases that personal injury in the form of psychiatric injury will be foreseeable for the law must take us to be sufficiently robust to give help at accidents that are a daily occurrence without suffering a psychiatric breakdown. But where the accident is of a particularly horrifying kind and the rescuer is involved with the victims in the immediate aftermath it may be reasonably foreseeable that the rescuer will suffer psychiatric injury . . ."

Lord Goff having described the circumstances in which the rescuer found himself in Chadwick v British Railways Board [1967] 1 WLR 912 (the Lewisham train disaster case) as "wholly exceptional," stated, at p 484: "It must be very rare that a person bringing aid and comfort to a victim or victims will be held to have suffered foreseeable psychiatric injury as a result." Both Lord Griffiths and Lord Goff regarded the circumstances of the Hillsborough disaster as falling within that exceptional category.

Mr Mason urges me not to follow the majority opinion in the House of Lords on the ground that it constituted an unwarranted departure from previous authority, which, he submitted, had firmly established the rescuer claiming damages for psychiatric injury as being within a special category. He submits that the minority views of Lord Griffiths and Lord Goff should be followed. He argues that in the case of a particularly horrific accident in which the rescuer finds himself in exceptional circumstances justice may cry out for compensation for the psychiatric harm he suffers in consequence, even if he is not exposed to any physical danger and does not reasonably apprehend such danger.

It seems to me that this submission is nothing less than an attempt to reopen the argument which was rejected by the majority opinion in Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455. The majority decision in that case has made it clear that the rescuer seeking to recover damages for purely psychiatric injury is to be regarded as a secondary victim having no special status. It is clearly not open to me to decline to follow that decision. The consequence is that on the agreed facts of the present case, it being accepted on all sides that the plaintiff was never in any physical danger nor in fear of such danger, his claim qua rescuer must fail.

I would add, for the sake of completeness, that even had I been persuaded by Mr Mason to discard our doctrine of precedent and follow the minority views of Lord Griffiths and Lord Goff in the Frost case, my conclusion on the agreed facts would not have been any different. Although the accident involved a potentially serious injury to the first defendant, the circumstances in which the rescuers involved in the aftermath of that accident found themselves in no way approached the horror of the circumstances in which the rescuers found themselves in the Lewisham train disaster or in the Hillsborough football stadium disaster. Even on the minority view in the Frost case, a rescuer who suffered psychiatric injury in consequence of his experiences after arriving at the scene of this accident would not on the facts of this case be entitled, as a rescuer, to recover damages for his injury.

Accordingly the plaintiff cannot succeed in this case on the sole ground that he was a rescuer.

The plaintiff as father
Mr Mason next submits that the plaintiff, as the first defendant's father, meets the requirements of each of the control mechanisms applicable to claims by secondary victims, to which I have referred above. Mr Eklund, for the second defendant, the Motor Insurers' Bureau, concedes that on the agreed facts both the first requirement, that there must be close ties of love and affection between the primary and the secondary victims, and the third requirement, that the psychiatric injury must have been caused by direct perception as opposed to hearing about the accident from someone else, appear to be satisfied. He contends, however, that the plaintiff does not satisfy the second requirement, that he must have been present at the accident or its immediate aftermath.

In McLoughlin v O'Brian [1983] 1 AC 410 the plaintiff was held by the House of Lords to have been present at the immediate aftermath of the accident when she attended hospital to see her injured family somewhat over an hour after the accident. In contrast, in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 Lord Ackner, at p 405, and Lord Jauncey of Tullichettle, at p 424, were both of the opinion that a visit to the mortuary some eight or nine hours after the disaster could not qualify as being within its immediate aftermath. In the present case the plaintiff was at the scene of the accident very shortly after its occurrence, at a time when the first defendant was still trapped in the wreckage and in urgent need of help from the emergency services. The facts of the present case are much stronger than the facts of McLoughlin v O'Brian, both as regards timing and as regards location. I therefore reject Mr Eklund's submission.

I find that the plaintiff meets the requirements of each of the control mechanisms, which govern a claim for psychiatric injury suffered by a secondary victim of an accident.

The plaintiff as rescuer and father

… On analysis, what is said to be the unique feature of the present case is the fact that the plaintiff happens to be a professional rescuer. That feature of the case, adds nothing to the strength of his claim. Lord Hoffmann's observation in the Frost case, at p 510, seems in point:

". . . I have no doubt that most people would regard it as wrong to award compensation for psychiatric injury to the professionals and deny compensation for similar injury to the relatives."….

Duty owed by victim of self-inflicted injuries: the authorities

There is no reported English decision on the question whether a victim of self-inflicted injuries owes a duty of care to a third party not to cause him psychiatric injury. Lord Ackner referred to the issue in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, 401:

"As yet there is no authority establishing that there is liability on the part of the inured person, his or her estate, for mere psychiatric injury which was sustained by another by reason of shock, as a result of a self-inflicted death, injury or peril of the negligent person, in circumstances where the risk of such psychiatric injury was reasonably foreseeable. On the basis that there must be a limit at some reasonable point to the extent of the duty of care owed to third parties which rests upon everyone in all his actions, Lord Robertson, the Lord Ordinary, in his judgment in the Bourhill case, 1941 SC 395, 399, did not view with favour the suggestion that a negligent window-cleaner who loses his grip and falls from a height, impaling himself on spiked railings, would be liable for the shock-induced psychiatric illness occasioned to a pregnant woman looking out of the window of a house situated on the opposite side of the street."

Lord Oliver also considered the question and said, at p 418:

"Whilst not dissenting from the case-by-case approach advocated by Lord Bridge in McLaughlin's case, the ultimate boundaries within which claims for damages in such cases can be entertained must I think depend in the end upon considerations of policy. For example, in his illuminating judgment in Jaensch v Coffey (1984) 155 CLR 549, Deane J expressed the view that no claim could be entertained as a matter of law in a case where the primary victim is the negligent defendant himself and the shock to the plaintiff arises from witnessing the victim's self-inflicted injury. The question does not, fortunately, fall to be determined in the instant case, but I suspect that an English court would be likely to take a similar view. But if that be so, the limitation must be based upon policy rather than upon logic for the suffering and shock of a wife or mother at witnessing the death of her husband or son is just as immediate, just as great and just as foreseeable whether the accident be due to the victim's own or to another's negligence and if the claim is based, as it must be, on the combination of proximity and foreseeability, there is certainly no logical reason why a remedy should be denied in such a case. Indeed, Mr Hytner, for the plaintiffs, has boldly claimed that it should not be. Take, for instance, the case of a mother who suffers shock and psychiatric injury through witnessing the death of her son when he negligently walks in front of an oncoming motor car. If liability is to be denied in such a case such a denial can only be because the policy of the law forbids such a claim, for it is difficult to visualise a greater proximity or a greater degree of foreseeability. Moreover, I can visualise great difficulty arising, if this be the law, where the accident, though not solely caused by the primary victim has been materially contributed to by his negligence. If, for instance, the primary victim is himself 75 per cent responsible for the accident, it would be a curious and wholly unfair situation if the plaintiff were enabled to recover damages for his or her traumatic injury from the person responsible only in a minor degree whilst he in turn remained unable to recover any contribution from the person primarily responsible since the latter's negligence vis-a-vis the plaintiff would not even have been tortious."

Jaensch v Coffey (1984) 155 CLR 549, referred to by Lord Oliver, was a decision of the High Court of Australia. It has been considered in other decisions in that jurisdiction. It is right that I should take into account further Commonwealth authorities bearing upon the issue which I have to decide. I can do no better than refer to the words of Lord Goff in Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455, 471-472:

"In this, as in other areas of tortious liability in which the law is in a state of development, the courts proceed cautiously from one category of case to another. We should be wise to heed the words of Windeyer J spoken nearly 30 years ago in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, 396: 'The field is one in which the common law is still in course of development. Courts must therefore act in company and not alone. Analogies in other courts, and persuasive precedents as well as authoritative pronouncements, must be regarded.'"

In Jaensch v Coffey, 155 CLR 549 a motor cyclist suffered severe injuries in a collision with a vehicle which was driven negligently. The motor cyclists wife, who was not at the scene of the accident but who saw him in hospital and was told that he was "pretty bad," suffered nervous shock as a result of what she had seen and been told. The wife succeeded in her claim for damages on the basis of her relationship with her husband and the fact that the events which had caused the nervous shock to her were part of the aftermath of the accident resulting from the defendant's negligence.

Deane J, at p 604, in referring to the duty of care to avoid psychiatric injury unassociated with physical injury, said:

"such a duty of care will not exist unless the reasonably foreseeable psychiatric injury was sustained as a result of the death, injury or peril of someone other than a person whose carelessness is alleged to have caused the injury . . ."

Dawson J appears to have inclined towards the same view. He said, at p 612:

"On the other hand, there appear to be strictures upon liability for the infliction of nervous shock which are not readily explicable in terms of foreseeability and which may be seen to be the result of the application of policy considerations. For example, if no action will lie in negligence against a defendant who carelessly injures himself and thereby inflicts nervous shock upon the plaintiff, there would seem to be a limit imposed which is outside the test of foreseeability."

These observations were not necessary for the decision in the case and thus were plainly obiter.

Mr Eklund has referred me to a number of other Australian authorities in which the issue in question has received consideration. [Harrison v State Government Insurance Office [1985] Aust Torts Rep 80-723, a decision of the Supreme Court of Queensland, was considered] ...

Mr Eklund further pointed out that the same conclusion was reached in a decision of the Supreme Court of British Columbia, Cady v Anderson [1993] BCWLD 200. In that case the plaintiff was prevented from recovering for psychiatric injury caused by witnessing the death of her fiancé in a car accident caused by his negligence. One of the two grounds given for this decision was the fact that the fiancé was the tortfeasor.

The weight of the Commonwealth authorities to which I have been referred clearly tends to support Mr Eklund's submission that there is no duty of care in the situation presently under consideration.

Whilst acknowledging that the authorities to which I have made reference were not helpful to his case, Mr Mason submitted that the decision of the Scottish Outer House in A v B's Trustees (1906) 13 SLT 830, a decision much closer to home than the Commonwealth cases, provided authority for the sustainability of the plaintiff's claim for nervous shock, notwithstanding that the first defendant's injuries were self-inflicted. The action was brought at the instance of a lady and her daughter, landladies of a furnished apartment in Glasgow, against the trustees and executors of a man to whom the apartment had been let, seeking damages in respect of nervous shock suffered by them as a result of his having committed suicide in the bathroom of that apartment. The action succeeded. Mr Mason submitted that the ratio decidendi of the decision was that a tortfeasor is liable for psychiatric illness caused by his self-inflicted injuries. On analysis of the judgment of the Lord Ordinary, Lord Johnston, I do not consider the case to have been decided on that basis. The following passage from the judgment of Lord Johnston, at p 831, shows that he based liability on contract:

"Is it one of the purposes of renting lodgings that they should be taken for the purpose of committing suicide? I think that it is not, and that in so using the lodgings in turning the bathroom into a slaughter house, this man was performing a wrongful act, an act in breach of the contract under which he received possession of the premises."

In Bourhill v Young [1943] AC 92, 120 Lord Porter stated that the decision in A v B's Trustees, 13 SLT 830 may be explained as "founded on contract or on the fact that the material damage might have been anticipated." Leaving aside any question of breach of contract, in my view such a claim, if made in tort, would now fail for want of the close ties of love and affection.

Accordingly I do not consider that the decision in A v B's Trustees is of assistance to the plaintiff's case.

Mr Mason went on to submit that Deane J's approach in Jaensch v Coffey, 155 CLR 549 that as a matter of law no claim can be entertained where the primary victim is the negligent defendant himself and the shock to the plaintiff arises from witnessing the victims self-inflicted injury, is not only unworkable but also unjust in that, for example, it would preclude claims such as those of train drivers who suffer nervous shock when a person throws himself in front of their train in order to commit suicide. Although I shall be referring to potentially relevant policy considerations later in this judgment, it seems convenient to deal with this submission at this stage, because Mr Mason relies upon authority in support of it. ...

It is clear, however, that the case of the train driver falls into a particular category of cases, including Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyds Rep 271, in which a duty of care has been held to exist, and which was described by Lord Oliver in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, 408 in these terms:

"where the negligent act of the defendant has put the plaintiff in the position of being, or of thinking that he is about to be or has been, the involuntary cause of another's death or injury and the illness complained of stems from the shock to the plaintiff of the consciousness of this supposed fact." ...

Whether claimants in this category are to be treated as primary victims, as Lord Oliver treated them, or as secondary victims, its Lord Hoffmann [in Frost at pp.507-508] appears to have viewed them, does not seem to me to be a matter of critical importance. There is room for the law to make provision for them on either basis.

My conclusion on this issue is that cases which fall into this particular category raise materially different considerations from those which arise in the instant case, and that the authorities would not necessarily preclude such cases from receiving separate treatment were I to rule against the plaintiff on the preliminary issue which I have to decide. I therefore do not find myself assisted by the submission based on the case of Watkins LJ's engine driver.

Duty owed by victim of self-inflicted injuries: policy considerations

Although it appears from the body of authority referred to above that the preponderance of opinion is unfavourable to the concept of a victim of self-inflicted injuries owing a duty of care to a third party not to cause him psychiatric harm in consequence of his injuries, there is no decision on the point which is binding upon this court. Accordingly the court, in the light of such guidance as has been given, including such assistance as may be gleaned from the Commonwealth decisions, must reach its own conclusion. It is at this stage that policy considerations come into play.

I observe, first, that since a claim for psychiatric illness suffered by a secondary victim in consequence of injury to a primary victim is not admitted by our law unless the three elements of the control mechanism are present, it follows that it will normally only be in cases where close family ties exist between the primary and secondary victim that the particular issue with which this case is concerned will arise. For reasons which will shortly appear, I regard that as a matter of significance.

In the second place, the issue which I have to resolve raises, as it seems to me, a question which impinges upon a person's right of self-determination. Mr Eklund has drawn my attention to a decision of the German Bundesgerichtshof (Sixth Civil Division) (11 May 1971), where this problem was identified. A translation of an extract from that judgment (translated by Mr Tony Weir) which appears in Markesinis The German Law of Torts, 3rd ed (1994), p 109 was produced to the court [case 1 above]. That case concerned a wife's claim for damages for psychiatric injury suffered by her as a secondary victim of an accident in which her husband had died and which had been partly caused by his own negligence. I shall describe in a moment how the court dealt with the question of contribution between joint tortfeasors in that case. The immediately relevant passage in the judgment of the German court relates to the court's observation that if the death of the primary victim had been exclusively caused by his own negligence, the plaintiff could not have recovered anything in respect of her injuries. The court reasoned, at p 113 of that translation:

"A person is under no legal duty, whatever the moral position may be, to look after his own life and limb simply in order to save his dependants from the likely psychical effects on them if he is killed or maimed: to impose such a legal duty, except in very peculiar cases, for instance, wherever a person commits suicide in a deliberately shocking manner, would be to restrict a person's self-determination in a manner inconsistent with our legal system."

Both counsel maintain that self-harming, whether by negligence or deliberately, would not be expected to give rise to any criminal liability. Mr Eklund, relying upon the opinion of the Bundesgerichtshof, argues that to impose the proposed liability for psychiatric harm caused to another through such acts would be to curtail the right of self-determination and the liberty of the individual. There is, of course, a duty not to cause foreseeable physical injury to another in such circumstances, but in my judgment to extend that duty so as to bring within its compass purely psychiatric injury would indeed be to create a significant further limitation upon an individual's freedom of action. That seems to me to be a powerful objection to the imposition of such a duty. Mr Eklund maintains that there are strong policy reasons for holding that the victim of self-inflicted injury, whether caused negligently or deliberately, should not owe a duty of care to someone who suffers psychiatric injury as a result of seeing him in an injured state. He postulates certain examples, in each of which A causes himself harm and B, who fulfils all the preconditions for classification as a secondary victim, suffers psychiatric injury as a result of seeing A in his injured state: (1) A commits suicide and the body is found by B, his son; (2) A negligently wounds himself with a kitchen knife in front of B, his wife; (3) A suffers extensive loss of blood as a result of a fall caused by his own negligence and is found by B, his mother. In all these circumstances, he submits, public policy ought to prevent B from suing A or A's estate if he or she suffers psychiatric injury in consequence of what he or she has seen.

His argument is as follows. The first Alcock control mechanism means that such claims must of necessity be between close relatives. Regrettably, the suffering of close relatives for self-induced or natural reasons is an inherent part of family life. It is only when someone else inflicts the injuries that the incident is taken out of the category of everyday family life and into the law of tort. There seems to me to be force in this argument. Tragedy and misfortune may befall any family. Where the cause arises within the family there would, in my view, have to be good reason for further extending the law to provide a remedy in such a case.

That takes me to a related point, which in my view is of some importance. Home life may involve many instances of a family member causing himself injury through his own fault. Should the law allow one family member, B, to sue another family member, A, or his estate in respect of psychiatric illness suffered as a result of B either having been present when the injury was sustained or having come upon A in his injured state? Mr Mason argues that such claims will be rare, because such events will not normally cause psychiatric illness, and because the courts may be expected strictly to enforce the requirement that a secondary victim must show that the circumstances were such that a person of normal fortitude might foreseeably suffer psychiatric harm. That may be so, but experience shows that it is not only successful claimants who sue. To allow a cause of action in this type of situation is to open up the possibility of a particularly undesirable type of litigation within the family, involving questions of relative fault as between its members. Issues of contributory negligence might be raised, not only where the self-inflicted harm is caused negligently, but also where it is caused intentionally. To take an example, A, while drunk, seriously injures himself. B, his wife, suffers nervous shock. What if A raises by way of defence the fact that he had drunk too much because B had unjustifiably threatened to leave him for another man or had fabricated an allegation of child sexual abuse against him? Should the law of tort concern itself with this kind of issue? In a case where A's self-harm is deliberate, the possibility that B's claim may be met by a defence of contributory negligence, alleging that B's behaviour caused A to harm himself, is an alarming one. And that is without allowing for the further impact of possible Part 20 claims being brought against other members of the family.

I appreciate, of course, that one member of the family may already sue another family member in respect of physical injury caused by that other, so that in cases of physical injury there is already the potential for personal injury litigation within the family; but the fact that family members have the same right as others to make a claim for physical injury does not necessarily mean that they should have the right to make a claim for a different kind of harm in respect of which, because of the first Alcock control mechanism, others have no such right. Further, where a family member suffers psychiatric harm as a result of the self-inflicted injuries of another family member, the psychiatric illness in itself may well have an adverse effect upon family relationships which the law should be astute not to exacerbate by allowing litigation between those family members. In my judgment, to permit a cause of action for purely psychiatric injury in these circumstances would be potentially productive of acute family strife.

Mr Mason's best point in answer to these policy considerations, as it seems to me, derives from the passage in Lord Oliver's speech in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, 418 to which I have already referred, where Lord Oliver referred to the anomaly that might arise where an accident, though not solely caused by the primary victim, has been materially contributed to by his negligence. Lord Oliver pointed to the unfair situation which would arise if a claimant were to recover damages in full for his or her traumatic injuries from a person who had in fact been responsible in only a minor degree whilst he in turn remained unable to recover any contribution from the person primarily responsible, since the latter's negligence vis-a-vis the plaintiff would not even have been tortious.

I fully recognise the force of this objection to a denial of a duty of care in the type of situation under consideration in this judgment, but it does not seem to me to outweigh the policy considerations to which I have referred above. There is no easy answer to the point, save to observe that, as has often been pointed out, the area of law relating to so-called nervous shock cases is bedevilled by inconsistencies. The particular anomaly identified by Lord Oliver, which springs from the wording of section 1(1) of the Civil Liability (Contribution) Act 1978 providing that a tortfeasor may recover contribution "from any other person liable in respect of the same damage," is perhaps more easily capable of remedy by Parliament than some of the other problems created by the existing limitations on liability for negligently caused psychiatric harm. One possibility is suggested by the judgment of the Bundesgerichtshof (Sixth Civil Division) to which I have already referred. In that case the court held that the secondary victim's damages ought to be reduced to the extent of the primary victim's contributory negligence. The court pointed out (The German Law of Torts, p 112):

"if the critical reason for the plaintiff's suffering this injury to her health was her close personal relationship to her husband, it is only fair that her claim should be affected by his fault in contributing to the accident."

I note that this is not a suggestion which has found favour in the Law Commission Report on Liability for Psychiatric Illness (1998) (Law Com No 249), which states, at paragraph 5.39:

"It would be contrary to the underlying principle that the defendant owes a separate duty of care directly to the plaintiff, and would mean that the plaintiff was unable to obtain full compensation for his or her psychiatric illness."

That is of course true, but the competing policy considerations in this area of the law are such that I suspect that any statutory reform is likely to have its own drawbacks and imperfections.

Mr Eklund submits that any decision that there should be civil liability to a secondary victim who suffers psychiatric harm in consequence of a primary victim's self-inflicted injuries is better left to Parliament than taken by the courts. It seems to me that there is substance in this submission. There is ample support in the authorities to which I have referred for the argument that Parliament is the best arbiter of what the public interest requires in this difficult field of the law. Indeed, in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, 419, Lord Oliver, in a passage immediately after the passage to which I have referred above, said:

"Policy considerations such as this could, I cannot help feeling, be much better accommodated if the rights of persons injured in this way were to be enshrined in and limited by legislation as they have been in the Australian statute law . . ."

In this context, it is interesting to note that in Jaensch v Coffey, 155 CLR 549, 601-602 Deane J drew attention to the fact that three states in Australia had introduced legislation to deal with this area of the law and that in none of them did the legislation extend to cover liability in respect of nervous shock sustained as a consequence of the death, injury or peril of the person whose negligence caused the accident.

The Law Commissions report on Liability for Psychiatric Illness, at paragraphs 5.34-5.44, considered the very question which is before me as a preliminary issue. The report gives weight to the argument that to create a duty of care in the situation under consideration would place an undesirably restrictive burden on a person's self-determination, but it appears not to take account of the potentially destructive impact upon family relationships of the introduction of such a duty. It recommends that legislation should provide for such a duty to exist where the defendant has negligently harmed himself, but for the courts to have scope to decide not to impose the duty where the defendant has chosen to harm himself. The purpose of the latter provision would be to allow room for respect to be accorded to the defendant's right of self-determination. At common law, a claimant who has a cause of action where he is injured by the defendant's negligent act has a stronger claim if the defendant acted intentionally. If the Law Commission's proposal commends itself to Parliament, a somewhat paradoxical situation will arise, in which it will be in the defendant's interest to argue that the act by means of which he caused the harm was deliberate, while the plaintiff will be seeking to persuade the court that it was inadvertent.

Conclusion

I have come to the conclusion that the policy considerations against there being a duty of care in the situation under consideration in this judgment clearly outweigh the arguments in favour of there being such a duty. Reinforced in my conclusion by the authorities to which I have referred, I find that there is no duty of care owed by a primary victim of self-inflicted injuries towards a secondary party who suffers psychiatric illness as a result of those injuries.

I therefore answer the three questions of law as follows. 1. A primary victim does not owe a duty of care to a third party in circumstances where his self-inflicted injuries caused that third party psychiatric injury. 2. On the agreed facts the first defendant did not owe the plaintiff a duty of care not to harm himself. 3. On the agreed facts the first defendant did not owe the plaintiff a duty of care not to cause him psychiatric injury as a result of exposing him to the sight of the first defendant's self-inflicted injuries.

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