The Gazette 1990

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-

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