Page v. Smith
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| English Tort law |
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Page v. Smith [1995] 2 WLR 644[1] is a decision of the House of Lords. It is part of the common law of England and Wales.
The case concerns foreseeability of psychiatric damage and creates an important distinction between primary and secondary victims in the English law of negligence relating to the recovery of such damage.
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[edit] Facts
The plaintiff, Mr Page, was involved in a minor car accident, and was physically unhurt in the collision. However the crash did result in a recurrence of Myalgic Encephalomyelitis (Chronic fatigue syndrome) from which he had suffered for 20 years but was then in remission. The defendant admitted that he had been negligent, but said he was not liable for the psychiatric damage as it was unforeseeable and therefore not recoverable as a head of damage.
[edit] Judgment
Their Lordships held that Mr Page was a primary (direct) victim of the accident, since he was directly involved in it and risked personal injury. Therefore, no issues of foreseeability of psychiatric shock needed to be considered: psychiatric shock was to be treated as direct personal injury. This case is to be distinguished from cases of secondary victims, such as spectators and rescuers, where the requirements of proximity and foreseeability were essential to establish the duty of care.
In the case of direct victims, their Lordships said the following test should be applied: "Could the defendant reasonably foresee that his conduct would expose the plaintiff to the risk of personal injury, psychological or physical?" If the answer was yes, it would be irrelevant that the extent of the damage was unforeseeable because the plaintiff had special sensitivities. This is based on the Eggshell skull rule, that is, one "takes the defendant as one find him". Consequently, the defendant was found liable for the nervous shock suffered by Mr Page.
