Page v Smith [1996] AC 155

Key points

  • Leading case on the distinction between primary and secondary victims
  • For primary victims, it is sufficient that the risk of physical injury is reasonably foreseeable even if no physical injury occurred
  • Laid down the ‘egg-shell personality rule’

Facts

  • C was involved in a car collision caused by D’s negligence which caused no physical injury
  • As a result of the accident, C suffered from chronic fatigue syndrome which affected him on and off for 25 years but has now became permanent
  • D argued that it is not foreseeable that a person of normal fortitude would suffer psychiatric illness

Held (House of Lords)

  • C’s claim succeeded
  • As C was a primary victim, it did not matter that C’s psychiatric injury was not reasonably foreseeable as the risk of C’s physical injury was reasonably foreseeable, even though C did not suffer any physical injury

Lord Lloyd

Primary vs secondary victims

  • The distinction between primary and secondary victims is longstanding
  • Primary victims are those who are involved in an accident
  • Secondary victims are those not directly involved but suffer from what they see or hear

Legal consequences of the distinction

  • Different remoteness tests
    • For secondary victims, foreseeability of psychiatric injury is a crucial ingredient since he is almost always outside the area of physical impact and hence range of foreseeable physical injury
    • But for primary victims, D is under a duty of care not to cause foreseeable physical injury, it is unnecessary to ask whether he was under a separate duty not to cause psychiatric injury
  • The criteria for liability applicable to secondary victims is inapplicable to primary victims
    • Proximity of relationship cannot arise and proximity in time and space goes without saying
  • The thin skull rule applies to primary victims only
    • There is ‘no difference between an eggshell skull and an eggshell personality’
    • There is no justification for regarding physical and psychiatric injury as different kinds of injury, if D is under a duty of care to avoid causing ‘personal injury’ to C, does not matter what kind of injury it is
    • In the case of secondary victims psychiatric injury must be foreseeable on a person of ordinary fortitude
  • But in both cases the injury must be a recognisable psychiatric illness