Page v. Smith, (1995) 182 N.R. 321 (HL)

• Case Date: May 11, 1995
• Jurisdiction: Canada (Federal)
• Citations: (1995), 182 N.R. 321 (HL)

Page v. Smith (1995), 182 N.R. 321 (HL)

MLB headnote and full text

Page (appellant) v. Smith (respondent)

Indexed As: Page v. Smith

House of Lords

London, England

Lord Keith of Kinkel, Lord Ackner,

Lord Jauncey of Tullichettle,

Lord Browne-Wilkinson and

Lord Lloyd of Berwick

May 11, 1995.

Summary:

Page, a teacher, was recovering from a bout of chronic fatigue syndrome. He hoped to return to work in two months. Page was involved in a motor vehicle accident of moderate severity when his vehicle was struck by Smith's vehicle. Page suffered no physical injury. However, Page suffered a relapse of the chronic fatigue syndrome. Page sued for damages on the ground the condition had become chronic and permanent so that he would never be able to work again. Smith submitted that a plaintiff suing for nervous or psychiatric illness had to prove (1) that the nervous illness was caused by the accident and (2) that injury by ner­vous illness in a person of normal suscepti­bility was reasonably foreseeable. Page claimed that it was suffi­cient to prove that (1) the nervous illness was caused by the accident and (2) that personal injury of some kind was reasonably foreseeable.

The High Court allowed the action and awarded Page damages of £162,153. Smith appealed.

The Court of Appeal of England, in a decision reported [1994] 4 All E.R. 522, allowed the appeal on the ground that Page failed to prove that injury by nervous shock was reasonably foreseeable in a person of normal fortitude. Ralph Gibson, L.J., allowed the appeal on the additional ground that Page failed to prove that the relapse was caused by the accident. Page appealed.

The House of Lords, Lord Keith of Kinkel and Lord Jauncey of Tullichettle dissenting, allowed the appeal. Their Lordships remitted the matter to the Court of Appeal for a determination of the issue of causation.

Damages - Topic 531

Limits of compensatory damages - Re­moteness - Torts - Recoverable dam­ages - Purely economic loss - Page was recov­ering from chronic fatigue syndrome - Page was involved in a moderate motor vehicle accident - Page suffered no physi­cal injury - Page suffered a relapse of the chronic fatigue syndrome - Page sued Smith for damages on the ground that he would never be able to return to work - Smith submitted that it was not reasonably foreseeable that a normal person would suffer a nervous illness from the accident - Smith also submitted that even if it was foreseeable, there was no evidence that the accident caused the relapse - The House of Lords ruled that it was sufficient for Page to prove that personal injury of some type was foreseeable - The issue of cau­sation was remitted to the Court of Appeal.

Damages - Topic 595

Limits of compensatory damages - Predis­position to damage (thin skull rule) - Personal injury - Victim's mental condi­tion - Page sued for damages after experi­encing a relapse of chronic fatigue syn­drome following an automobile collision - The House of Lords, per Lord Browne-Wilkinson, stated "that any driver of a car should reasonably foresee that, if he drives carelessly, he will be liable to cause injury, either physical or psychiatric or both, to other users of the highway who become involved in an acci­dent. ... In the present case the defendant could not fore­see the exact type of psy­chiatric damage in fact suffered by the plaintiff, who, due to his M.E. [myalgic encephalomyelitis], was 'an eggshell per­sonality'. But that is of no significance since the defend­ant did owe a duty of care to prevent foreseeable dam­age, including psychiatric damage." - See paragraph 53.

Damages - Topic 595

Limits of compensatory damages - Predis­position to damage (thin skull rule) - Personal injury - Victim's mental condi­tion - [See Dam­ages - Topic 531 ].

Torts - Topic 8703

Duty of care - Claims for nervous shock - Psychiatric illness - [See Damages - Topic 531 ].

Torts - Topic 8703

Duty of care - Claims for nervous shock - Psychiatric illness - The House of Lords, per Lord Lloyd of Berwick, set forth five consider­ations to be employed in cases involving claims for damages by primary and sec­ondary victims for nervous illness or psy­chiatric injury - See paragraph 102.

Cases Noticed:

Schneider v. Eisovitch, [1960] 2 Q.B. 430, refd to. [paras. 3, 81].

Fardon v. Harcourt-Rivington (1932), 146 L.T. 391 (H.L.), refd to. [para. 17].

Dillon v. Legg (1968), 69 Cal. Rptr. 72 (Cal. Sup. Ct.), refd to. [para. 29].

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 30].

Wilkinson v. Downton, [1897] 2 Q.B. 57, refd to. [para. 35].

Attia v. British Gas plc, [1988] Q.B. 304 (C.A.), refd to. [para. 45].

Chadwick v. British Railways Board, [1967] 1 W.L.R. 912, refd to. [para. 45].

Currie v. Wardrop, [1927] S.C. 538 (Scot.), refd to. [para. 51].

Brown v. Glasgow Corp., [1922] S.C. 527 (Scot.), refd to. [para. 51].

Copoc et al. v. Chief Constable of the South Yorkshire Police, [1992] 1 A.C. 310; 131 N.R. 194 (H.L.), dist. [para. 56].

Alcock et al. v. Chief Constable of the South York­shire Police - see Copoc et al. v. Chief Constable of the South Yorkshire Police.

McLoughlin v. O'Brian, [1983] A.C. 410 (H.L.), consd. [para. 56].

Bourhill v. Young, [1943] A.C. 92 (H.L.), dist. [para. 56].

Malcolm v. Broadhurst, [1970] 3 All E.R. 508, consd. [para. 67].

Hambrook v. Stokes Brothers, [1925] 1 K.B. 141 (C.A.), dist. [para. 69].

Dulieu v. White & Sons, [1901] 2 K.B. 669 (D.C.), consd. [para. 73].

Mount Isa Mines Ltd. v. Pusey (1970), 125 C.L.R. 383 (Aust. H.C.), consd. [para. 73].

McFarlane v. Caledonia (E.E.) Ltd., [1994] 2 All E.R. 1 (C.A.), refd to. [para. 75].

Victorian Railways Commissioners v. Coultas (1888), 13 App. Cas. 222 (P.C.), not folld. [para. 80].

King v. Phillips, [1953] 1 Q.B. 429 (C.A.), consd. [para. 83].

Jaensch v. Coffey (1984), 54 A.L.R. 417 (Aust. H.C.), consd. [para. 94].

Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. (The Wagon Mound), [1961] A.C. 388 (P.C.), consd. [para. 97].

Ship Wagon Mound (No. 1), Re - see Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. (The Wagon Mound).

Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. Ltd., [1967] 1 A.C. 617 (P.C.), consd. [para. 97].

Ship Wagon Mound (No. 2), Re - see Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. Ltd.

Polemis and Furness Withy & Co., Re, [1921] 3 K.B. 560 (C.A.), refd to. [para. 97].

Brice v. Brown, [1984] 1 All E.R. 997, consd. [para. 99].

Statutes Noticed:

Fatal Accidents Act, 1846 (U.K.), c. 93, generally [para. 87].

Limitation Act, 1980 (U.K.), sect. 38(1) [para. 81].

Authors and Works Noticed:

Clerk and Lindsell on Torts (16th Ed. 1989), pp. 587 to 588 [para. 98].

Dias, R.W.M. and Jolowicz, Article re the Wagon Mound (No. 1), [1961] C.L.J. 23, p. 30 [para. 98].

Goodhart, A.L., Comment re King v. Phillips (1953), 69 L.Q.R. 347, generally [para. 90].

Goodhart, A.L., The Shock Cases and Area of Risk (1953), 16 M.L.R. 14, p. 16, note 10 [para. 94].

United Kingdom, Law Commission, Lia­bility for Psychiatric Illness (No. 137 of 1995), paras. 3.11, 3.13 [para. 51].

Counsel:

Colin MacKay, Q.C., and Jennifer Richards, for the appellant;

Julian Priest, Q.C., and Andrew Hogarth, for the respondent.

Agents:

Edward Lewis, for the appellant;

Harry R. Pearce, for the respondent.

This appeal was heard on February 13, 14 and 15, 1995, before Lord Keith of Kinkel, Lord Ackner, Lord Jauncey of Tullichettle, Lord Browne-Wilkinson and Lord Lloyd of Berwick of the House of Lords.

On May 11, 1995, the judgment of the House of Lords was given and the following speeches were delivered:

Lord Keith of Kinkel, dissenting - see paragraphs 1 to 13;

Lord Ackner - see paragraphs 14 to 18;

Lord Jauncey of Tullichettle, dissenting - see paragraphs 19 to 46;

Lord Browne-Wilkinson - see para­graphs 47 to 55;

Lord Lloyd of Berwick - see paragraphs 56 to 105.