Page v Smith

Facts

Page was driving his car when Smith, driving negligently, caused a collision. The impact was relatively minor and Page was not physically injured. Page had previously suffered from chronic fatigue syndrome, also called myalgic encephalomyelitis, which had been in remission, and he claimed that the accident caused its recurrence in a chronic and permanent form, preventing him from working. It was found that physical injury to Page was foreseeable in the collision but that psychiatric injury to a person of ordinary fortitude was not.

Issue

Whether a claimant who was directly involved in an accident and was within the range of foreseeable physical injury, but who suffered only psychiatric injury, can recover in negligence without showing that psychiatric injury was reasonably foreseeable in a person of normal fortitude.

Held

Appeal allowed by a majority of three to two. As a primary victim, Page could recover for the psychiatric harm because the defendant should have foreseen that he might suffer personal injury in the accident, whether physical or psychiatric.

Ratio

• A primary victim, one who is directly involved in an accident and who is within the range of foreseeable physical injury, can recover for psychiatric injury caused by the accident if it was foreseeable that he might suffer personal injury of any kind, and need not show that psychiatric injury was itself foreseeable.
• Personal injury, physical or psychiatric, is a single kind of damage for the purposes of foreseeability, and the defendant must take the victim as he finds him, so the extent of harm suffered by a vulnerable claimant does not defeat liability.

The judgments

Key reasoning

• The distinction between primary and secondary victims is fundamental, because the control mechanisms that limit liability to secondary victims, such as closeness of relationship and proximity to the event, do not apply to a person directly involved.
• Where the defendant should have foreseen that the claimant might be physically injured, it is irrelevant whether the harm which in fact followed was physical or psychiatric, since both are personal injury.
• The established principle that the defendant takes his victim as he finds him extends to a claimant with a latent psychiatric vulnerability, so liability extends to the full psychiatric consequences.

Where it fits in the module

On the FHS psychiatric injury topic, the case divides victims into primary and secondary, with different tests, and so underlies the debate over whether the control mechanisms for secondary victims are justified. Its scope was narrowed in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, which confined primary victim status to those in physical danger or reasonably believing themselves in danger, and in Rothwell v Chemical and Insulating Co Ltd [2007] UKHL 39. The categories were revisited in Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1, concerning secondary victims. The tutorial question is whether the distinction between primary and secondary victims is principled or arbitrary.

Criticisms

• The decision treats physical and psychiatric injury as the same kind of harm for foreseeability, which departs from the requirement that the type of damage be foreseeable and expands liability for vulnerable claimants.
• The primary and secondary victim distinction produces arbitrary results, since a person suffering the same psychiatric harm may recover or not depending on whether he was in physical danger.
• The decision applied the rule to a trivial collision with no physical injury, so the defendant was held liable for grave and unforeseeable consequences from a minor accident.
• Later decisions treated the rule as an exception which they did not extend, which shows that the reasoning cannot be generalised and leaves the law without a coherent principle.