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GAZETTE
jAnuaRy/february
1990
Supreme Court would want to fix
boundaries where the House of
Lords refrained from so doing.
Nevertheless, one can foresee
major problems that will arise in
this area in the future. Take for
example, the situation that arose in
McLoughlin -v- O'Brian.
There, the
negligent driver, who struck the car
driven by the Plaintiff's son and
containing members of the Plain-
tiff's family, was held to owe a duty
of care not to cause nervous shock
to the Plaintiff. The Defendants
were entirely to blame for that
accident. What if the Plaintiff's son
was partly to blame? Presumably,
he would be joined as a Third Party
to his mother's action and would
" . . . one can foresee major
problems that will arise in this
area in the future."
have to contribute towards the
damages payable. What if he was
entirely to blame for the accident?
It would seem to follow logically
that the mother would be entitled
to recover the same damages for
nervous shock from her own son.
Is she to be denied recovery
because she is the wrongdoer's
mother rather than say, a rescuer?
Taking the matter one step further,
what if the Plaintiff's son was
travelling alone - surely this could
not affect the Plaintiff's position?
Indeed, is not one's own mother
more closely and directly affected
by one's acts (to use the words of
Lord Atkin) than the mother of the
driver/passenger of another car?
Thus, on the basis of
McLoughlin -
v-
O'Brian,
it would seem that a
mother could sue her son for ner-
vous shock which she suffers
when she visits him in hospital and
sees the horrific injuries he sus-
tained in an accident caused by his
own negligence. If nervous shock
is foreseeable say, to one's mother
or wife in such circumstances,
surely economic loss (say where
the driver is the breadwinner) is
equally foreseeable? If a wife can
sue her husband for nervous shock
arising out of an accident which
was his fault, why can she not sue
for economic loss which she suf-
fers when he drives so negligently
that he permanently disables or
kills himself? This is an area where
the number of claims is potentially
great. For example, can the pilots of
aerobatic aircraft performing head
to head flypasts at air shows not
foresee that if they misjudge
matters and collide, the spectators
(of which there might be a large
number) may suffer nervous
shock? It is not for me to answer
these questions. However, history
has shown that every time the
Courts attempted to draw the line,
subsequently it had to be aban-
doned. Perhaps the best approach
is to be found in the immortal
words of Lord Scarman in
McLoughlin -v- O'Brian: -
"The distinguishing feature of
the common law is this judicial
development and formulation of
principle. Policy considerations
will have to be weighed; but the
objective of the Judges is the
formulation of principle. And, if
principle inexorably requires a
decision which entails a degree
of policy risk, the Court's funct-
Law Society.
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