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Case:
RGZ 133, 270 VI. Civil Senate = JZ 1929,914 (VI 149/31)
Date:
21 September 1931
Note:
with a note by Bezold and Plum
Translated by:
Kurt Lipstein
Copyright:
Professor Basil Markesinis

On 5 October 1929 the second defendant, driving the car belonging to his father, the first defendant, mounted the pavement and killed the plaintiffs’ seven-year-old son. In criminal proceedings he was sentenced to nine months’ imprisonment. The plaintiffs now sued both defendants as joint and several debtors for liquidated damages in respect of the cost of medical attempts to save the child’s life, burial, and loss of business profits, and asked for a declaration of liability in respect of loss of future maintenance and services by the plaintiffs’ son as well as for damages arising from the nervous breakdown of the plaintiff wife. The defendants paid RM 850 and alleged to have discharged their liability thereby.

The District Court of Cologne held the defendants jointly and severally liable to make periodic payments to the plaintiffs to the extent that the deceased would have been obliged during his estimated life-span to provide them with maintenance and services; in other respects it dismissed the claim. On appeal the Court of Appeal of Cologne allowed the claim for RM 1200 in respect of loss of business profits due to the reduced earning capacity of the plaintiff wife and held that the costs of attempted medical care and of the burial had been discharged; in addition it held the defendants liable as joint and several debtors to compensate the plaintiffs in respect of the loss suffered by them as a result of the past or future injury to the health of the plaintiff mother arising from the accident, including the present or future loss of services, until she reached the age of sixty-five. The appeal by the defendants was successful in part for the following

Reasons

. . . in this appeal the question is only whether the defendants are also liable for the effects of the plaintiff wife’s nervous breakdown which she suffered upon receiving the news of the accident, but which she did not witness herself . . . the Court of Appeal found that the emotional excitement on hearing of her child’s death caused the plaintiff wife’s nervous breakdown, which had affected her earning capacity and was likely to continue to do so in the future.

The Court of Appeal has held correctly that the damage in question is not indirect in the sense that it is only covered by the duty to compensate under § 823 BGB in the exceptional circumstances of §§ 844, 845 BGB. Indirect damage is that damage suffered by a person who is not himself a victim of a tort but is only affected by its reflex effect upon his assets. In the present case, however, the plaintiff wife herself has been injured in her health by the tort, and the plaintiffs sue in respect of this injury to health. It has never been stated in the practice of the Reichsgericht that the legal interests or rights enumerated in § 823 I BGB must be violated directly and that an indirect violation does not suffice [reference]; the view to the contrary, put forward by the appellants, is unfounded. However, two questions must be examined in such cases; firstly, whether the causal nexus can still be regarded as adequate and, if this question should be answered in the affirmative; secondly, whether the indirect violation could be foreseen. The Court of Appeal has examined both questions and has answered them in the affirmative.

It is normally to be expected that a fatal accident of her child will greatly excite the mother emotionally, and it is not unusual if a grave emotional excitement of this kind results in a nervous breakdown which affects the capacity to work. Thus adequate causality exists [reference]. One can go even further and add . . . that this result could be foreseen. The contention of the appellants that the second defendant could not even have known whether the seven-year-old boy had any parents cannot be accepted. The question is not whether the defendant could know but whether he ought to have considered the shock of the parents and the possible effects of the shock. In answering these questions in the affirmative the Court of Appeal has not broadened the concept of negligence excessively.
These statements only apply to liability according to the general rules of tort. In the case of the second defendant, his liability under § 823 BGB has been sufficiently justified by the judgment of the Court of Appeal. For, having regard to findings of fact of the accident, it cannot be doubted that the second defendant caused it negligently . . . On the other hand, the Court of Appeal has not given sufficient grounds for holding the first defendant liable, as it does on the basis of § 831 BGB. The appellants point out rightly that it has not been established at all whether and now the first defendant had appointed the second defendant to carry out this ‘task’. . . . The fact that the first defendant denied the claim to a limited extent only does not permit the conclusion that he appointed his son to carry out the task. In so far as the claim is based on the injury to her health suffered by the plaintiff wife, the defendants have denied its substance throughout. The Court of Appeal will therefore have to examine again whether the first defendant has incurred liability, which it had held to be the case without restricting it to the provisions of the Act on Motor Vehicles.

If the defendant should only be liable under § 7 of the Act on Motor Vehicles, in addition to the conditions set out above in which liability to compensate the plaintiff wife in respect of injury to her health would exist, the problem would arise whether this injury to her health had occurred ‘in the course of operating’ the motor vehicle. The courts below have held that it did. From their point of view this finding was superfluous, since judgment against the defendants was based on §§ 823, 831 BGB. However, the affirmative answer to this problem cannot be approved. The Court of Appeal itself refers to the decision of the Reichsgericht [reference] where that court refused to regard as an injury to health ‘in the course of operating’ a railway, a mental illness suffered by a father as a result of the shock occasioned by a railway accident involving his daughter. This decision is in keeping with the constant practice of the Reichsgericht in applying the Act on the Tortious Liability of the Reich.* The onset of the mental illness was not directly connected with the operational process or with a specific installation of the operation; nor could it be traced to a danger peculiar to the operation of railways [reference], but it could have happened as a result of any accident or fright. The Court of Appeal believes however . . . that the words in § 7 of the Law on Motor Vehicles bear a different meaning from the corresponding words in § 1 of the Law on the Tortious Liability of the Reich. The . . . [reference] legislative history of § 7 shows clearly, however, that in this respect the Law on the Tortious Liability of the Reich was copied deliberately by the Law on Motor Vehicles in order to make use of the extensive practice and literature on the law on liability. . . . Nevertheless it is conceivable that in individual cases the determination may differ as to whether an accident is to be regarded as having occurred ‘in the course of operating’, given the technical differences between operating railways and motor vehicles. It is difficult to perceive, however, how a difference can be established in the present case. In both situations the question is whether the effect of a shock suffered by a relative on the occasion of an operational accident is still to be regarded itself as an injury to health in the ‘course of operating’. The difference in the types of operations is irrelevant for this purpose . . . Accordingly the first defendant can be held liable under § 831 BGB for the nervous breakdown of the plaintiff wife if the conditions for its application should have been fulfilled but not under the Law on Motor Vehicles. It is a different question, not in issue here, whether the determination must be different, if the plaintiff wife had been present where the accident occurred and whether in such a case the opinion expressed in[reference] can be maintained [reference].

It follows that the judgment against the first defendant must be quashed and the case referred back. On the other hand the appeal of the second defendant must be rejected.

Notes to Case 3

For a number of reasons this is a very important case.

1. First of all it shows the tendency of German law (and modern civil law in general) to use normative concepts of causation in cases where Common lawyers would more evidently have recourse to the notion of duty of care. Note, however, that this was not always so: Victorian Railways Commissioners v. Coultas (1888) L.R. 13 App. Cas. 222, 226 (the earliest English case on nervous shock, decided before the concept of duty had started its meteoric rise). This equivocation between ‘duty’ and ‘remoteness’ will figure in other cases as well (e.g. economic loss, rescue etc.) and is discussed, inter alia, by Fleming, ‘Remoteness and Duty: the Control Devices in Liability for Negligence’ 31 Can. Bar. Rev. 471 (1953) (a seminal article) and Lawson and Markesinis I, ch. 2. See also Prosser’s remarks at 244–5.

2. Secondly, the German decision addresses itself to the key issue of distant nervous shock and opts for the more liberal view according to which compensation is not limited to persons suffering shock as a result of witnessing the accident. Bystanders or “secondary” victims, may also, under certain circumstances, be compensated. However, it seems that strangers who are not closely related to a primary victim of an accident will have difficulties to prove their case. So we note that in none of the cases 1-3 was the claimant a stranger to the victim. However, as in English law so in German law, this restriction does not apply to primary victims: BGH NJW 1986, 777. In that case the claimant was severely injured in an accident that was negligently caused by another person who had crossed the motorway on foot and who was killed in the accident. The claimant also suffered “nervous shock” and it was this part of his claim that was the subject matter of the dispute. He was allowed to recover damages for pecuniary losses and for pain and suffering from the deceased’s estate. The court argued that it was immaterial that the claimant did not have any “ties of love and affection” to the deceased who had, through his own conduct, caused the accident because the claimant was directly involved in the accident and suffered physical injury as a result. It was left to a subsequent court to decide whether additional requirements would be necessary as far as “secondary victims” (the court called them “indirect victims”) were concerned.

3.This approach, which has been followed many times since the principal case was decided in 1931, arguably places German law in a more pioneering position when compared with the English and American law. (See, also, RGZ 157, 11; BGH NJW 1971, 1883, BGHZ 93, 351 = NJW 1985, 1390, and further references and commentary by von Hippel, in ‘Haftung für Schockschäden Dritter’, NJW 1965, 1890) But even if one does not like the German approach one must, at least, credit the system with the fact that, in its essentials, it has remained constant. The same cannot be said of the House of Lords, which in fifty years, has revisited the topic five times and – some would say - made it more confusing than ever. Their Lordships tergiversations can be seen when the following cases are read in their chronological sequence. Bourhill v. Young [1943] AC 92 (restrictive view); McLoughlin v. O’Brian [1983] 1 AC 410 (liberal adaptation to new conditions); Alcock v. Chief Constable of South Yorkshire [1992] 1 AC 310 (the beginnings of a retreat to a more cautious approach); Page v. Smith [1996] AC 155 (confusion resulting from a well-intended attempt to make use of a sensible distinction); White v. Chief Constable of South Yorkshire [1999] 2 AC 455 (back to a conservative position justified by an open appeal to policy). Ironically, these multi-judgment decisions have provided a steady stream of dicta, which practising lawyers can use ad infinitum to “argue” minor embellishments. They are thus defeating the current judicial preference for a bright line rule in favour of restricted liability. The latest decision – again from the House of Lords and sixth in number if we added to the above list – that leaves many questions unanswered is W. v. Essex County Council [2000] 2 WLR 601. The following position of bystanders or “secondary” victims is thus attempted with some trepidation.

Traditionally, the view was that the plaintiff should have heard or seen the accident with his own unaided senses. In the early 1980s, however, the House of Lords awarded damages to a mother and wife who rushed to the hospital to see her injured family a few hours after the accident had occurred and then suffered shock (McLoughlin v. O’Brian [1983] 1 AC 410). The decision though criticised, is remarkable for the frankness of the judicial turnabout vis-à-vis the value of the ‘floodgates’ argument, which up to that point had received an almost exaggerated respect. (In part this result must be credited to the pioneering remarks of Tobriner, J. in Dillon v. Legg 68 Cal. 2d 728, 441 P. 2d 912 (1968) which was cited by Lord Wilberforce.) However, the liberating effect of McLoughlin was neither immediate nor radical nor long lasting. To be sure, in the early 1990s it led to two interesting decisions at first instance, which through interesting pronouncements effected a further extension in the law. Thus, in Hevican v. Ruane [1991] 3 All ER 65 compensation was granted to a father who suffered nervous shock as a result of being told of his son’s death and subsequently seeing his body in the mortuary. And in Ravenscroft v. Rederi AB Transatlantic [1991] 3 All ER 73 the same result was reached in the case of a mother who, however, never saw the body of the killed son. But these decisions were soon to be discredited by pronouncements in Alcock v. Chief Constable of South Yorkshire [1992] 1 AC 310 where the House of Lords sounded a cautious retreat from its earlier position. The facts of the case that gave rise to this retrenchment were, admittedly, difficult. They involved claims by relatives and friends of the victims of the Hillsborough Stadium disaster, some of whom saw on live television the spectators crushed to death against the stadium railings that were meant to prevent the crowds from getting onto the football pitch. The reason for this horrifying accident was the decision taken by the police locally to allow extra people to enter a restricted area without foreseeing the sudden surge of the crowd, which caused the disaster. A carefully argued decision of the Court of First Instance in favour of some of the claimants (in the first, test action) was overturned both by the Court of Appeal and the House of Lords relying largely on the usual grounds advanced against psychiatric injury. However, unlike some recent American pronouncements, the House of Lords did not limit (potential) recovery to close relatives. The key sections of Lord Keith’s leading speech deserves to be quoted in full since it provides a sensible test for solving this aspect of the problem and one which, incidentally, could have produced results approximating those of German law. He said (at p. 397): “As regards the class of persons to whom a duty may be owed . . . I think it sufficient that reasonable foreseeability should be the guide. I would not seek to limit the class by reference to particular relationships such as husband and wife or parent and child. The kinds of relationship which may involve close ties of love and affection are numerous . . . They may be present in family relationships or those of close friendship, and may be stronger in the case of engaged couples than in that of persons who have been married to each other for many years. It is common knowledge that such ties exist, and reasonably foreseeable that those bound by them may in certain circumstances be at real risk of psychiatric illness if the loved one is injured or put in peril. The closeness of the tie would, however, require to be proved by a plaintiff, though no doubt being capable of being presumed in appropriate cases. Psychiatric damage to [a bystander] would not ordinarily be within the range of reasonable foreseeability, but could not perhaps be entirely excluded from it if the circumstances of a catastrophe occurring very close to him were particularly horrific.”

Alcock is an interesting decision, which will repay careful reading. Here, for lack of space, two further points will be mentioned. First, Lord Keith departed from Lord Wilberforce’s dicta and denied that liability could arise if the shock had been induced from witnessing the scenes on television. Broadcasting rules prohibit the showing of the suffering of recognisable individuals; and warnings usually advert viewers to the imminent showing of distressing pictures. If by some peradventure, pictures of identifiable victims were shown, Lord Keith thought this might amount to a novus actus interveniens and interrupt the causation between negligence and hurt. But what then of the possible liability of the news medium, itself? Neither the decision (nor its commentators) seems to have considered the possibility of a media defendant being held liable for showing a distressing scene on air. Would, for example, liability depend on whether ‘identifiable’ victims were shown on the screen (not the case here)? What effect would ‘warning notices’ have? More importantly, would such (potential) liability have a ‘chilling effect’ on news reporting and thus amount to a restriction on free speech? In the USA such an argument would, probably, have a crucial effect on the issue of liability, but in England it might prove less decisive. Secondly, the overruling of some of the earlier, more liberal decisions (e.g. Hevican, Ravenscroft) will, inevitably, cast doubts over some interesting dicta, which they contained. In Ravenscroft, for example, Mr. (now Lord) Justice Ward stressed that the need to prove ‘psychiatric illness’ and ‘causation’ were hurdles that ‘not many [litigants] will jump’ and this would, inevitably, allay ‘fears of the floodgates opening too wide’ ([1991] 3 All ER 73, 76). It is submitted that there is much to be said for the view that psychiatric injury can, nowadays, be treated as a form of injury in its own right, that the plaintiff need not be seen as a ‘secondary victim’ of the accident, and that the seriousness of the injury, coupled with rigid causal proof can be workable controlling devices, sufficiently countering the fear of numerous suits. (See Markesinis and Deakin ch. 2). This was clearly rejected as an option by White – the most recent, major pronouncement of the House of Lords. But discussion of this case makes sense only after we have said a few words about Page, the decision of the House of Lords that came immediately before it.

Page, by a majority, drew a clear distinction between primary and secondary victims. The first category included those who suffered psychiatric injury either because they were themselves physically injured or put in fear of injury. For persons in this category one question only had to be asked: was it foreseeable that they suffered injury – physical or psychiatric? If physical injury were foreseeable, recovery would be allowed even if psychiatric injury, which was not foreseeable, resulted. Matters, however, were different where “secondary” victims were involved. These were persons who were neither injured physically nor threatened by such injury. In such cases, foreseeability of psychiatric injury was a necessary but not sufficient condition for liability. Additional, arbitrary, factors had to be satisfied. These included the need to prove that the shock was the result of the shock. (So, one who suffers psychiatric injury as a result of caring for a loved one seriously injury in an accident will not be compensated under this heading. Jaensch v. Coffey (1984) 155 CLR 549, 569 (per Brennan J.), cited with approval by Lord Ackner in Alcock, [1992] 1 AC 310, 403.) It was also necessary to show that the victim had witnessed the shock-producing event either directly or upon coming upon its immediate aftermath. Finally, it was necessary to show that the relationship with the accident victim was sufficiently proximate in the sense defined by the cases.

White – by a majority – took the process of non-assimilation of physical and psychiatric harm a step further while admitting its open attachment to policy as well as the fact that this did not result in neatness and consistency in the law. (Contrast Lord Goff’s powerful dissent.) The claims of the policemen, who attended the Hillsborough incident, were also rejected, the House of Lords considering it unfair to treat their claims differently from the claims of the ordinary by-standers, which had been dismissed by Alcock. Thus, recovery will now be allowed only if the following conditions are satisfied. The plaintiff was (a) not abnormally susceptible to psychiatric illness; (b) his psychiatric harm occurred through shock; (c) he was in physical proximity to the accident or its aftermath, and (d) he had a close personal or familial relationship with the accident victim. One casualty of this restricted approach was “rescuers”, traditionally favoured by English law. (Chadwick v. British Railways Board [1967] 1 WLR 912.) But the plaintiff in that case was disingenuously treated as a “primary” victim (which he was not) so the case ceased being of any relevance to the policemen/plaintiffs in this case since, clearly, they were in no physical danger when helping in the Stadium. Rescuers can thus nowadays recover only if they can show that because of their physical proximity to the scene of the accident, they had been in fear of physical injury.

4. Comparative lawyers accustomed to the fact that ideas these days tend to move from West to East (and no longer the other way round) will be surprised to see how cautious American courts are in this area of the law. True, the original impact rule, which insisted on contemporaneous personal injury before nervous shock was compensated, was increasingly found to be too rigid and nowadays it has gone out of fashion. (Woodman v. Dever, 367 So. 2d 1061 (Fla. App. 1979) shows its unfairness; and Payton v. Abbott Labs, 386 Mass. 540, 437 NE 2d 171, 176 (1982), discusses judicial dissatisfaction with the rule. Florida, however, still retains this rule: Champion v. Gray, 478 So. 2d 17 (1985).) Most jurisdictions, in conformity with s. 313 of the Restatement (Second) of Torts, still require the plaintiff to be in the danger zone before he can recover. (Henderson and Pearson, 363; Prosser, Schwartz, and Wade, 458 ff.; see also Rickey v. Chicago Transit Authority, 98 Ill. 2d 546, 457 NE 2d 1 (1983); Stadler v. Cross, 295 NW 2d 552 (Minn., 1980) and the courts of some twenty jurisdictions). The pioneering decision of Dillon v. Legg (above) is thus still the subject of mixed feelings: see, for example, Pearson, in 34 U. Fla. L. Rev. 477 (1982).

Dillon, which nevertheless contains one of the best discussions on the subject, extended recovery to bystanders (outside the immediate danger zone). This could happen only if (1) the ‘plaintiff was located near the scene of the accident . . . (2) the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence, [and] (3) . . . plaintiff and the victim were closely related . . .’ (441 P. 2d 912 at 920). The requirements of ‘physical proximity’, ‘temporal proximity’ and ‘relational proximity’ have been the subject of much discussion, both inside and outside the courtroom. Nowadays, there is a tendency to give this last requirement – relational proximity - a very narrow interpretation. It is certainly narrower than that adopted, in theory at least, by German law. This has occurred wherever (in the USA) the decisions of the California Supreme Court in Elden v. Sheldon 758 P. 2d 582 (1988) and Thing v. La Chusa 771 P. 2d 814 (1989) are used as models. For the first denied the plaintiff recovery for his shock upon seeing his injured girl friend on the grounds that he was not married to her while the second reached the same result in the case of a mother who suffered shock in circumstances not dissimilar to those in McLoughlin. Elden reminds one of the old French debates about “concubinage” though the (at times) sanctimonious tone of the American judgment exceeds the moral revulsion which French Catholics claimed to have felt whenever a single woman claimed compensation for the loss of support resulting from the tortious killing of her lover.

A similar, narrowing tendency may be developing for the other two kinds of ‘proximity’ (spatial and temporal) stressed by Dillon. (See Prosser On the Law of Torts, 5th edn. (1984), 366 and supplements.) These requirements of ‘nearness, hearness, and dearness’ have certainly proved difficult to define as, indeed, the dissent in Dillon had predicted (p. 926). Californian courts have thus much vacillated and the confusing case-law—reviewed in Justus v. Atchison, 19 Cal. 3d 564, 565 P. 2d 122 (1977), and by Quai-Smith, ‘The Negligent Infliction of Emotional Distress’ 19 Indiana L. Rev. 809, 818 ff. (1986)—has not been unravelled (as it could have been) by the decision of the Supreme Court of California in Ochoa v. Superior Court 39 Cal. 3d 159, 703 P. 2d 1 (1985). Thus cases like Justus suggest that only plaintiffs who have observed the accident will be allowed to recover. See also Parsons v. Superior Court, 81 Cal. App. 3d 506, 146 Cal. Rptr. 495 (1978) and contrast this with the McLoughlin judgment. On the other hand, in General Motors Corp. v. Grizzle 642 SW 2d 837 (Tex. App. 1982) a mother, who arrived at the scene shortly after the accident and saw her injured daughter, succeeded in her action for damages. All one can say, therefore, is that spatial and temporal proximity will remain crucial factors even though they are likely to be understood differently by different courts. See, for example, Cohen v. McDonnell Douglas Corp., 389 Mass. 327, 450 2d NE 581 (1983). However, these problems, too, must now be approached bearing in mind the restrictive philosophy of decisions like Thing v. La Chusa 771 P. 2d 814 (1989) though beyond that it is dangerous to attempt any specific predictions.

5. Yet even the above do not complete the summary of the differing American trends. That is because for every thesis, an antithesis soon appears; and the mixed reception it receives from other American jurisdictions, only goes to prove that in the United States the richness of the case law. Thus the following three variations to the theme of non- recovery described above must also be born in mind.
First, one must note cases as Sanchez v. Schindler, 651 SW 2d 249 (1983) which suggest yet a different approach to this problem. It relies on a wider interpretation of the Wrongful Death Statute (in that case, the Texas version) and allows parents the right to recover damages for mental distress resulting from the death of their child. This solution—praised by some Texan commentators (e.g. Mendel in 26 South Texas Law Journal, 305 (1985))—is, however, dubious. For not only is it contrary to the intentions of Lord Campbell’s Act (on which the Texas Wrongful Death Statute is, apparently, based); but, more importantly, it produces the strange result of making the parents’ right of recovery depend on their child’s death.

More importantly, one must note the innovation introduced by the California decision of Burgess v. Superior Court 2 Cal. 4th 1064, 831 P. 2d 1197, 9 Cal. Rptr. 2d 615 (1992). In that case the defendant doctor treated the plaintiff during her pregnancy. When the day of birth arrived, problems were detected and for reasons which are unclear from the judgment a Cesarean delivery was delayed for nearly an hour with the result that the child was born deprived of oxygen and suffering from severe brain damage. It sued and so did its mother. The claim could have been excluded on the grounds that the mother may not have experienced a contemporaneous observance of her child’s condition. (Again, the facts are not clearly stated.) Nevertheless the mother’s claim succeeded on the grounds that the physician’s duty to the mother was independent from whatever duty he may have owed to the child. Professor Dobbs neatly summarises the new theory of recovery thus (op. cit., 849): “When the defendant owes an independent duty of care to the plaintiff, there is no risk of unlimited liability to an unlimited number of people. Liability turns solely on relationships accepted by the defendant, usually under a contractual arrangement. Consequently, the duty extends only to those for whom the contract was made. When the defendant contracts to provide services for childbirth, he is on notice that negligent acts will likely cause emotional harm. For these two reasons, the zone of danger and contemporaneous awareness rules are not needed to limit liability to an appropriate sphere. An assumed duty or a special relationship with a duty imposed by law might arguably eliminate other restrictive rules, for example, those requiring a physical manifestation or symptom of harm and those requiring a sudden event…”

Finally, whether the assumed or independent duty approach alluded to above prevails or not, the fact is that other courts have also manifested a tendency to abolish restrictive rules and rely solely on foreseeability and other such devices. The Montana and Tennessee courts seem to be veering in that direction with their decisions in Sacco v. High Country Indep. Press, Inc, 271 Mont. 209, 220, 896 P. 2d 411 (1995) and Camper v. Minor, 915 SW 2d 437 (Tenn. 1996). The guess can thus be made that American courts may be about to go around the same circle again, vacillating between conservative and liberal views. It would be unwise to try and predict whether in the end they will adopt the current conservative model that one finds in England or they will ever opt for the (theoretically) more open German model which treats psychiatric injury as a species of physical harm.

6. Finally, students should note how articulate the Anglo-American decisions are about the policy issues, which have justified first the strict and then more relaxed treatment of claims for nervous shock. The best discussions in America can be found in Amaya v. Home Ice, Fuel & Supply Co. 59 Cal. 2d 295, 29 Cal. Rptr. 33 (1963); Dillon v. Legg (above), and in England, McLoughlin v. O’Brian (above) including the judgments in the Court of Appeal: (1981) QB 599. By contrast the German decisions give little away about policy. There is no doubt, however, that the same policy reasons are at work in this system as well, and contemporary writers are prepared to admit that the problem is not one of causation but one of policy. (See von Hippel in NJW 1965, 1890 at 1891. Huber in Festschrift E. Wahl, 301 ff. agrees.) Thus, increasing reliance can be found on more normative theories of causation (like the Normzweck approach); and even the contractual concept of Vertrag mit Schutzwirkung für Dritte has been mentioned as a possible source of inspiration. See Berg in NJW 1970, 515.

7. Though articulated in different ways the policy reasons are mainly three. First is the fear of fraudulent or vexatious claims. Tobriner J.’s answer (in Dillon v. Legg, above) that ‘. . . the possibility that fraudulent assertions may prompt recovery in isolated cases does not justify a wholesale rejection of the entire class of claims in which that potentiality arises’ seems to be winning the day. Secondly is the ‘floodgates’ argument which has prompted the development of numerous rules of thumb (impact theory, danger zone theory; relatives only can recover etc.). Though not without some merit, this objection, too, is falling into disfavour as an increasing number of dicta in English decisions (dealing with economic loss as well as nervous shock) clearly suggest, though the California cases of Elden and La Chusa show that it still finds favour with cautiously-inclined judges. Finally, one might argue with Professor Atiyah (Accidents, Compensation and the Law (3rd edn., 1980) 80) that ‘. . . the claims of such a person [i.e. one who suffers distress and/or shock as a result of witnessing an accident] must have a low priority when it is remembered that thousands of victims with physical injury go uncompensated every year because they are injured in accidents not caused by negligence’. Further policy reasons are discussed by Professor Dobbs, op. cit., at pp.821-4.

8. In this note the approach of three systems was compared briefly. Is there any other factor (not mentioned above) that has to be borne in mind when explaining the differences between them? Could the absence of civil juries in England and the European continent explain why these systems can afford to disregard the floodgates argument more easily than, perhaps, American courts can? To what extent can this ebb and flow of the law be linked to changing attitudes in society? Could the decisions of the Supreme Court of California in Elden v. Sheldon 758 P. 2d 582, denying damages for nervous shock to the plaintiff who actually witnessed the death of his girl friend (with whom he had a ‘stable and significant relationship’) be linked to policy factors such as the State’s need (real or perceived) to discourage extra-matrimonial cohabitation? Would not this argument appeal more to the wave of ‘conservative’ judges who were appointed (or elected) from about the mid-eighties onwards? Incidentally, this ‘conservative’ approach found favour with some French judges in the 1940s, 50s, and 60s (in the slightly different context of wrongful death actions), but was abandoned in the early 70s as being legally unconvincing and morally sanctimonious. For further details on this see: Lawson and Markesinis, Tortious Liability for Un-Intentional Harm in the Common Law and the Civil Law I, (1982), ch. 2. The importance of such background factors in the development of American tort law is fully explored in Professor Fleming’s The American Tort Process (1988), his observations being particularly useful to European lawyers trying to understand tort law in America.

9. For further discussion see, Prosser, Wade, and Schwartz, 446 ff. Further references to cases and periodical literature can be found in the following articles. Chesley, ‘The Increasingly Disparate Standards of Recovery for Negligently Inflicted Emotional Injuries’ 52 Cincinnati L. Rev. 1017 (1983); Dupuy, ‘Negligent Infliction of Emotional Distress’, 53 Louisiana L. Rev. 555 (1992); 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); Rose, ‘Negligent Infliction of Emotional Distress: Formulating the Psycho-Legal Inquiry’ 18 Suffolk Univ. L. Rev. 401 (1984); Quai-Smith, ‘The Negligent Infliction of Emotional Distress: A Critical Analysis of Various Approaches to the Tort in Light of Ochoa v. Superior Court’ 19 Indiana L. Rev. 809 (1986); Comment, ‘Negligent Infliction of Mental Distress: A Jurisdictional Survey of Existing Limitation Devices and Proposals Based on an Analysis of Objective Versus Subjective Indices of Distress’ 33 Villanova Law Rev. 781 (1988); Sitzman, ‘Marlene F. v. Affiliated Psychiatric Medical Clinic Inc.: Negligent Infliction of Emotional Distress Bounces Out of Bounds’, 22 Pacific Law Journal 189 (1990); Leesfield “Negligent Infliction of Emotional Distress; Where are we Now?” 71 Feb. Fla. B.J. 42 (1997); “Recovery for negligent Infliction of Emotional Distress requires Witnessing of Accident” 29 Suffolk U.L. Rev 647 (1995); Davies, “ Direct Actions for Emotional harm: Is Compromise Possible?”, 67 Wash. L. Rev. 1 (1992). For a discussion of English and Commonwealth cases see: Trindade, ‘The Principles Governing the Recovery of Damages for Negligently Caused Nervous Shock’ [1986] CLJ 476.

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