Case law
Hambrook v Stokes Bros
[1925] 1 K.B. 141
- Court
- Court of Appeal
- Judgment date
- 12 November 1924
- Citation
- [1925] 1 K.B. 141
- Judges
- Bankes L.J.; Atkin L.J.; Sargant L.J.
- Parties
- Hambrook v Stokes Brothers
- Jurisdiction
- United Kingdom
Summary
The runaway lorry
On the morning of 1 May 1923 the defendants’ motor lorry was left by their servant at the top of a steep street in Folkestone, unattended and with the engine running, and without proper precautions to prevent it moving. It ran away down Dover Street, a street so narrow that in places the road was only just six feet wide, ricocheting from one side of the road to the other. Negligence was admitted on the pleadings, the only material traverse being that the injury to the wife was caused by that negligence.
Mrs. Hambrook and the children
Mrs. Hambrook had escorted her children — two boys and a girl, Mabel, aged ten — to the pavement in Dover Street, where they joined other children on their way to school. The group turned a corner within a few yards of leaving her and so passed out of her sight. They had hardly turned the corner when the lorry dashed into the children, inflicting serious injuries on Mabel. The progress of the lorry would be heard by those round the corner, including Mrs. Hambrook. After injuring the child the lorry shot round the corner, bumped into a dealer’s shop on the opposite side of the street, and finally came to rest against a baker’s shop within 15 or 20 feet of her.
The shock and its cause
She was found in a frantic condition, in violent hysterics, tearing her hair and inquiring wildly as to the safety of her little girl. The jury found that her mental disturbance was caused by apprehension not of injury to herself but of injury to the child. It was not clear on the evidence whether that apprehension arose solely from her own realisation that the lorry had been charging down the street where her children were, or was due to or aggravated by statements made to her by a bystander that a little girl wearing spectacles, as her girl did, had been injured; Sargant L.J. thought there was strong ground for the latter view, since she expressed anxiety only for the daughter although the two boys had been in equal peril. Counsel for the plaintiff expressly disclaimed any suggestion that the shock was due to or aggravated by her finding the girl missing from the school or by seeing her afterwards in hospital.
Her illness and death
She was pregnant at the time, the husband saying three months and the doctor who attended her at her death saying two to six weeks. She had a severe haemorrhage on 3 May, which she thought was a miscarriage. She partially recovered, but about 28 June became worse and died on 16 July 1923. On 11 July she was operated on and a foetus was removed which the doctor said had been dead about a month and was of about two to three months’ development. The defendants raised an issue whether the deaths of the foetus and of the mother were due entirely to one or other of two motor charabanc drives the wife had taken, to the Derby on 6 June and to Ascot on 21 June; there was ample evidence on which the jury might have found that death was not solely so caused.
The proceedings and the alleged misdirection
The husband claimed under Lord Campbell’s Act — the Fatal Accidents Act 1846 as amended by the Act of 1864 — for the loss of his wife, and had to show that she would herself have been entitled to recover had she lived. Branson J. directed the jury that, unless the shock causing her illness arose from a reasonable fear of immediate personal injury to herself as contrasted with fear of injury to her children, the plaintiff could not recover. That direction followed the dictum of Kennedy J. in Dulieu v. White & Sons. A second complaint of misdirection concerned the way the judge put the question whether the death resulted from the shock or from an independent cause.
Outcome
The appeal was allowed and a new trial ordered, Sargant L.J. dissenting. Bankes L.J. held that the dictum of Kennedy J., laid down in quite general terms, could not be accepted as good law applicable in every case, and confined his decision to facts indistinguishable in principle from the present: the plaintiff would establish a cause of action if he proved that the death resulted from the shock occasioned by the running away of the lorry, that the shock resulted from what his wife saw or realised by her own unaided senses and not from something someone told her, and that it was due to a reasonable fear of immediate personal injury either to herself or to her children. Atkin L.J. found the breach of duty admitted on the pleadings and, following Re Polemis, held it immaterial that the particular kind of damage was not contemplated; he could find no principle to support Kennedy J.’s restriction and saw no reason to exclude even a bystander. Sargant L.J. would have dismissed the appeal, holding that to extend the duty to shock caused by apprehension of injury to third persons introduced a new and unusual link in the chain of causation and a liability both wide and indefinite. He suggested that on the new trial the jury be directed to find whether the shock was caused by Mrs. Hambrook’s own unaided realisation of what had happened or was due wholly or partly to what she heard from bystanders. The costs of the appeal were to be paid by the respondent and the costs of the first trial to abide the event of the new trial.
Judgment
Bankes L.J.
This appeal raises an important and interesting point of law. The appellant, who was plaintiff in the court below, claimed compensation under Lord Campbell's Act for the loss of his wife. His case was that his wife died as the result of nervous shock caused by the negligence of the defendants' servant. The material facts proved or admitted at the trial were that the defendants were the owners of a motor lorry, which was left by their servant unattended and with the engine running, and which ran away down a street in Folkestone, so narrow that in places the road was only just 6 ft. wide. It was admitted that the defendants' servant was negligent in allowing this to happen. The lorry was finally pulled up by running into a house close to where the plaintiff's wife happened to be standing. The plaintiff's case was that his children, at the time the lorry came down the street, were on their way to school, and having regard to the time at which they started, would presumably be where the lorry might strike them, the street being so narrow and the lorry swaying from side to side of the street. He further contended that the shock to his wife was due either to a reasonable fear of immediate personal injury to herself, or, alternatively, of injury to her children, and that her death was the result of the shock. The case for the defendants was that the shock was due to a fear of injury to her children, which did not give rise to any cause of action, and, further, that the wife's death was due to quite independent causes. Upon both points issues of fact were raised which were entirely for the jury, and upon which no question arises in this appeal.
The matter comes before this court upon a complaint of misdirection by the learned judge upon two matters. The first has reference to the way in which the learned judge put the case to the jury upon the question whether the wife's death was the result of the shock or of some independent cause, I should not be prepared to direct a new trial upon this part of the case as, although the learned judge did, in summing up to the jury on this part of the case, put the matter in a way of which complaint can be made, he had previously put the matter so very clearly and carefully to the jury that I do not think they could have been in anyway misled. The important part of the plaintiff's complaint is with regard to the statement of the law by the learned judge to the jury in reference to the defendants' liability for any nervous shock caused to the wife. What the learned judge told the jury in substance was that, if they found that the shock to the wife resulted in her death, and arose from reasonable fear of immediate injury to herself, they might award the husband compensation, but that, if they found that the fear was fear, not of injury to herself, but of injury to her children, they must find for the defendants. In thus directing the jury the learned judge was following the latest decision upon the point, and the object of this appeal is to get that decision, if decision it be, as opposed to a mere dictum, set aside or corrected, and the law laid down in terms wide enough to embrace either view of the cause of the shock to the wife.
The branch of the law relating to the responsibility for causing nervous shock has developed considerably in comparatively recent years. In Lynch v Knight (2) (9 HL Cas at p 590) decided in 1861, LORD WENSLEYDALE speaks of mental pain or anxiety as something which the law cannot value and does not pretend to redress. In 1888, in the case in the Privy Council of the Victorian Rail CoMrs. v Coultas (3) the question was directly raised whether damages were recoverable for a nervous shock or mental injury caused by fright of an impending collision. The decision was that they were not, and the ground of the decision was that such damages would be too remote. SIR R COUCH, in delivering judgment, says this (13 App Cas at p 775):
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