Bourhill v Young

[1943] AC 92

Bourhill v Young is a great example of the old approach to secondary nervous shock victims. For a long time claims by secondary victims were dealt with at the duty in fact stage by asking whether psychiatric injury to someone in the claimant's position was reasonably foreseeable on the facts. in practice courts took a tough approach when they applied the foreseeability test on facts: Bourhill v Young is a prime example of this approach.

While there are now legal common law limits rather than merely factual limits on the claims of secondary victims, Bourhill v Young remains emblematic of the current approach to proximity and remoteness, which must still be shown for a successful negligence claim.

Facts

The defendant Mr Young rode his motorcycle at high speed past the tram that the claimant Mrs Bourhill was alighting from. The defendant collided with a car 50 feet (15 metres) past the tram. The claimant was on the other side of the tram collecting her luggage at the time of the collision so did not see the crash, she only heard the collision. After Mr Young’s body was removed from the scene, Mrs Bourhill approached and witnessed the immediate aftermath of the crash. The claimant was eight months pregnant at the time of the incident and gave birth to a stillborn child a month later. Mrs Bourhill then later brought a negligence action against Mr Young’s estate, claiming that she had suffered nervous shock and sustained a loss due to the defendant’s negligence.

Issue

Whether on the facts the claimant Mrs Bourhill was sufficiently proximate to the incident to find a duty of care owed by the defendant Mr Young. To decide the proximity question the court asks whether on the facts it was reasonably foreseeable to the defendant that in driving in the negligent way that he was driving, he might cause someone hearing the crash from the claimant’s position to suffer nervous shock.

Held

The House of Lords held that Mrs Bourhill was not sufficiently proximate to the incident because it was not reasonably foreseeable to someone driving in the negligent way that Mr Young was driving that he might cause someone hearing the crash from Mrs Bourhill’s position to suffer nervous shock.

So, in relation to some types of torts, particularly negligence and nuisance, the test for remoteness of damage is whether the kind of damage suffered by the claimant was reasonably foreseeable by the defendant at the time of the breach of duty.