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Damages Mental Shock Accident to child

Info: 5407 words (22 pages) Law Essay
Published: 6th Aug 2019

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Jurisdiction(s): UK Law

Damages – Mental shock – Accident to child – Mother hearing scream and seeing something of accident while seventy to eighty yards away.

A taxi-driver backed his taxicab negligently and without looking where he was going, and ran into a child who was on a tricycle immediately behind him, slightly injuring him. The child’s mother, who was in her house seventy or eighty yards away, heard him scream, and, looking out of a window, saw the cab back into the ticycle, but she could not see the child. In an action by her for damages for the shock thus suffered by her,

Held –(per Singleton and Hodson LJJ): the test of negligence vis-à-vis the mother was whether the taxi-driver could reasonably have foreseen the risk of damage to her; in the circumstances the taxi-driver could not reasonably have contemplated that, if he backed his taxicab without looking where he was going, he might cause to the mother the injury complained of; and, therefore, he owed her no duty of care and her claim should be dismissed.

Hay (or Bourhill) v Young ([1942] 2 All ER 396), applied.

Hambrook v Stokes Brothers ([1925] 1 KB 141), distinguished.

Per Denning LJ: there was a duty of care owed by the taxi-driver, not only to the boy, but also to the mother; the driver was in breach of that duty, but in the circumstances the shock suffered by the mother could not reasonably have been foreseen by the driver; it was, therefore, too remote as a head of damage and the claim should be dismissed.

Decision of McNair J ([1952] 2 All ER 459), affirmed.


As to the Duty to take care, see Halsbury, Hailsham Edn, Vol 23, pp 568–587, paras 823–840; and for Cases, see Digest, Vol 36, pp 12–21, Nos 33–101, and Digest Supps.

As to Remoteness of Damage, see Halsbury, Hailsham Edn, Vol 10, pp 103–109, paras 130–136; and for Cases, see Digest, Vol 17, pp 117–120, Nos 267–289.

Cases referred to in judgment

Hay (or Bourhill) v Young,[1942] 2 All ER 396,[1943] AC 92, 111 LJPC 97, 167 LT 261, 2nd Digest Supp.

Owens v Liverpool Corpn [1938] 4 All ER 727,[1939] 1 KB 394, 108 LJKB 155, 160 LT 8, Digest Supp.

Hambrook v Stokes Brothers [1925] 1 KB 141, 94 LJKB 435, 132 LT 707, 36 Digest 123, 819.

Re Polemis & Furness, Withy & Co [1921] 3 KB 560, sub nom Polemis & Furness, Withy & Co, 90 LJKB 1353, 126 LT 154, 36 Digest 29, 151.

Chester v Waverley Municipal Council (1939), 62 CLR 1, 39 SRNSW 173, 56 NSWWN 94, Digest Supp.

Smith v Johnson & Co (1897), cited in,[1897] 2 QB p 61, 66 LJQB p 496, 76 LT p 494, 36 Digest 124, 820.


Wilkinson v Downton [1897] 2 QB 57, 66 LJQB 493, 76 LT 493, 17 Digest 100, 150.


Appeal by the plaintiff from a decision of McNair J dated 16 July 1952, reported [1952] 2 All ER 459.

In an action for damages for negligence by the boy for personal injuries and by his mother for shock caused by her hearing the boy’s scream and seeing his peril, McNair J, gave judgment for the boy for £15 and dismissed the mother’s claim on the ground that her injury could not have been reasonably anticipated. The boy appealed against the amount of damages awarded, but his appeal was dismissed and this report deals solely with the appeal by the mother.

F G Paterson for the plaintiff.

Wiggins for the defendant.

Cur adv vult

16 February 1953. The following judgments were delivered.

SINGLETON LJ. On 2 August 1951, a boy was on his tricycle in Birstall Road, Tottenham, about the point where Birstall Road joins Greenfield Road. A taxicab, which was driven by a servant of the defendant, called at a house in Greenfield Road, and, having picked up the fare, was in the act of being backed by the driver into Birstall Road so that he might return towards Seven Sisters Road when he heard a call. It appeared that his taxicab had struck the boy’s tricycle. The boy was slightly hurt, and the tricycle was damaged. The boy ran back towards his home, No 12, Birstall Road, which is about six houses up on the right hand side of the road from Greenfield Road and some seventy or eighty yards away from the site of the accident. The boy’s mother was at an upstairs window in that house. She heard a scream, she looked down the road and saw the taxicab backing on to the tricycle, and then she saw the tricycle under the taxicab. She could not see the boy. She ran downstairs and into the road, where she met the boy running towards her and took him inside. As a result of what she heard and saw she suffered trembling fits, and became distressed and tearful. She consulted her doctor on 17 August, and she continued to be attended by him until November. McNair J, was satisfied that her condition as spoken to by the doctor was directly caused by what she heard and saw at the time of the accident, and, subject to liability, he assessed the damages in her case at the sum of £100. The learned judge decided further that there was no liability on the defendant in respect of her claim, and gave judgment for the defendant. Against that judgment the mother appeals to this court.

It is clear that a person who sustains damage from nervous shock has a right of action against one whose negligence caused the shock. An allegation of negligence postulates a breach by the defendant of a duty owed by him to the plaintiff. In the civil law there is no such thing as negligence in the air; liability only arises where there is a duty to take care and where failure in that duty has caused damage. McNair J, delivered a considered judgment in favour of the owner of the taxicab. In so deciding he followed the decision of the House of Lords in Hay (or Bourhill) v Young, in which it was held (i) that the duty of a motor cyclist on the public road to other persons using it was to drive with such reasonable care as would avoid the risk of injury (including injury by shock although no direct impact occurred) to such persons as he could reasonably foresee might be injured by his failure to exercise that care; and (ii) that the pursuer in that case was not within the area of potential danger arising as the result of the defender’s negligence, and, accordingly, he owed no duty to her and was not guilty of negligence in relation to her. I do not see that McNair J could have come to any other conclusion, having regard to what was said in that case. The view of each of the learned law lords was that on the facts no duty was owed to the pursuer by the motor cyclist 618 who collided with a motor van. At the time of the collision the pursuer was on the off-side of a tramcar which the motor cyclist had passed on its near side. The point of impact was some forty-five to fifty feet beyond her and the tramcar was between her and the vehicles which came into collision. It was clear that the motor cyclist was at fault and that in relation to the driver of the motor van he was guilty of negligence, but it was held that he owed no duty to the pursuer, and that, consequently, vis-à-vis her he was not negligent. The test was put by Lord Russell Of Killowen in this way ([1942] 2 All ER 401):

“Can it be said that John Young could reasonably have anticipated that a person, situated as was the pursuer, would be affected by his proceeding towards Colinton at the speed at which he was travelling?”.

And by Lord Macmillan (ibid, 403):

“But can it be said that he ought further to have foreseen that his excessive speed, involving the possibility of collision with another vehicle, might cause injury by shock to the pursuer?”

Lord Macmillian was of opinion that the motor cyclist, Young, was under no duty to the pursuer to foresee that his negligence in driving at an excessive speed, and, consequently, colliding with a motor car, might result in injury to her, for such a result could not reasonably and probably be anticipated, and, thus, he was not guilty of negligence in a question with the pursuer. Lord Wright said that the pursuer was completely outside the range of the collision, and added (ibid, 406):

“I cannot accept that John Young could reasonably have foreseen, or, more correctly, the reasonable hypothetical observer could reasonably have foreseen, the likelihood that anyone placed as the [pursuer] was, could be affected in the manner in which she was.”

Lord Porter said (ibid, 410):

“In order, however, to establish a duty towards herself, the pursuer must show that the cyclist should reasonably have foreseen emotional injury to her as a result of his negligent driving, and, as I have indicated, I do not think she has done so.”

The pursuer in that case was not very far from the scene of the accident, and one would have thought that the motor cyclist owed her a duty and would have been responsible to her in damages if, as the result of the collision with the motor car, there had been an explosion which caused bodily injury to her, but Lord Thankerton said (ibid, 400):

“At the time of the collision with the motor he was well past the tramcar and the [pursuer] was not within the range of his vision, let alone that the tramcar obstructed any view of her. The risk of the bicycle ricochetting and hitting the [pursuer], or of flying glass hitting her, in her position at the time, was so remote, in my opinion, that the cyclist could not reasonably be held bound to have contemplated it …”

Lord Thankerton was, of course, dealing with a claim in respect of nervous shock, and his observation on this point must be limited to the case with which he was dealing. As I have said, the view of all their Lordships in that case was that the motor cyclist owed no duty to the pursuer, and that, consequently, he was not guilty of any negligence in relation to her, so that she could not recover damages for the shock which she had sustained.

If there was no duty owed to the pursuer in Hay (or Bourhill) v Young, I cannot see how there was any owed by the taxi-driver to the plaintiff, Mrs King, on the facts of this case. In Bourhill’s case Lord Russell Of Killowen (ibid, 402), and Lord Macmillan (ibid, 403), adopted the words of Lord Jamieson:

“No doubt the duty of a driver is to use proper care not to cause injury 619 to persons on the highway or in premises adjoining the highway, but it appears to me that his duty is limited to persons so placed that they may reasonably be expected to be injured by the omission to take such care.”

Lord Macmillan added (ibid):

“The duty to take care is the duty to avoid doing or omitting to do anything the doing or omitting to do which may have as its reasonable and probable consequence injury to others and the duty is owed to those to whom injury may reasonably and probably e anticipated if the duty is not observed.”

Can it be said that the driver (or any driver in the world) could reasonably or probably anticipate that injury, either physical or from shock, would be caused to the mother who was in No 12 Birstall Road when he caused his taxicab to move backwards a short distance from Greenfield Road without looking to see if anyone was immediately behind? There can surely be only one answer to that question. The driver owed a duty to the boy, but he knew nothing of the mother; she was not on the highway; he could not know that she was at the window, nor was there any reason why he should anticipate that she would see his taxicab at all; he was not intending to go into Birstall Road except for the purpose of turning. I cannot see that the fact that she saw the tricycle under the taxicab enables one to distinguish this case from Hay (or Bourhill) v Young.

It would appear that in that case the judgment of the Court of Appeal in Owens v Liverpool Corpn was not looked on favourably: see Lord Thankerton ([1942] 2 All ER 400); though I confess I should have thought that, if the driver of a tramcar negligently drove his tramcar against a hearse and overturned the coffin therein, he would be under a duty towards those in a coach which immediately followed the hearse. Lord Wright said (ibid, 406):

“The lawyer likes to draw fixed and definite lines and is apt to ask where the thing is to stop. I should reply it should stop where in the particular case the good sense of the jury, or of the judge, decides. I should myself be disposed, as at present advised, to say that it should have stopped short of judgment for the plaintiff in Owens v. Liverpool Corpn..”

Lord Wright was there considering a case in which the deputy presiding judge had found the facts in favour of the plaintiffs [funeral mourners in a coach following the hearse], but had held, following earlier authority, that they could not recover as they themselves were not in danger of personal injury. The Court of Appeal held that he was wrong and that the plaintiffs were entitled to judgment. Counsel for the defendant corporation had advanced the argument that no duty was owed by the tramcar driver to the passengers in the coach, but this point was not dealt with in the judgment of the court which was given by MacKinnon LJ.

The decision of this court in Hambrook v Stokes Brothers was not directly overruled by the House of Lords in Hay (or Bourhill) v Young—indeed it could not be, for in Hambrook’s case (3) there was an admission of negligence which pre-supposed the existence of a duty towards the plaintiff. Atkin LJ however, dealt with the case apart from the question of pleading, and his judgment, if I may humbly say so, commends itself to me. At the same time he was dealing with a case which on its facts is far removed from the case now under appeal. In that case the plaintiff, who died from shock some time later, was on the highway—a narrow road—and not far from the scene of an accident to one of her children.

The decision of the House of Lords shows that the test is whether the driver could reasonably have foreseen any damage to the plaintiff. Unless he could, it was said, no duty was owed to her, and, consequently, there was no negligence 620 vis-à-vis the plaintiff. I find it difficult to draw a distinction between damage from physical injury and damage from shock; prima facie one would think that, if a driver should reasonably have foreseen either and damage from the one or from the other resulted, the plaintiff would be entitled to succeed. It is, however, unnecessary to consider this somewhat academic point for the purposes of this appeal for, on the finding of McNair J, no reasonable driver (or no hypothetical bystander) would have anticipated damage of any kind to Mrs King, and that is a finding of fact with which this court ought not to interfere. Moreover, it is in accord with common sense. McNair J, towards the end of his judgment, said ([1952] 2 All ER 461):

“The mother, in my judgment, was wholly outside the area or range of reasonable anticipation, and if I am asked where the line is to be drawn I should humbly reply in the language of LORD WRIGHT, used admittedly in a slightly different context, that it should be drawn ([1942] 2 All E.R. 406): ‘… where in the particular case the good sense of the jury, or of the judge, decides’. It seems to me to be contrary to common sense to say that a taxi-driver ought reasonably to have contemplated that, if he backed his taxi without looking where he was going, he might cause injury by shock, or any other injury, to a woman in a house some seventy or eighty yards away up a side street.”

There is, indeed, a sense of remoteness in this case. In my opinion, the appeal should be dismissed.

DENNING LJ. In this case a taxi-driver negligently backed his cab without looking where he was going and ran into a small boy on a tricycle. His mother, who was in her home seventy or eighty yards away, heard him scream and, looking out of the window, saw his peril. She suffered nervous shock, and the question is whether she can recover damages on that account. Counsel for the mother put the case on her behalf quite simply. His first proposition was that the taxi-driver was under a duty to drive his cab with reasonable care, and that he owed that duty to everyone in the vicinity, not only to people in physical danger, but also to those in emotional danger, particularly to a mother who was put in fear for her children’s safety. For this proposition he relied on Hambrook v Stokes Brothers. His next proposition was that the taxi-driver by his negligence had broken that duty and was liable for all the direct consequences of the breach, whether they could reasonably have been foreseen or not. For this proposition he relied on Re Polemis & Furness, Withy & Co.

If the two cases on which counsel relied stood alone, they would be sufficient to warrant a decision in favour of the mother, but they have to be read in the light of the case of the Edinburgh fishwife, Hay (or Bourhill) v Young. In that case the negligence of a motor cyclist brought about a collision which so upset a fishwife (who was standing nearby) that she suffered a miscarriage. She was held not entitled to recover. It seems to me that each member of the House of Lords based his decision on the ground that the motor cyclist could not reasonably be expected to have foreseen that the fishwife would suffer injury by emotional shock. The test applied was not foreseeability of physical injury, but foreseeability of emotional shock. It would, I suppose, be open to this court to apply that test uncritically in the present case and ask ourselves simply whether the taxi-driver could reasonably have foreseen that the mother might suffer nervous shock. But I do not think we can quite do this. We have to try to reconcile Hay (or Bourhill) v Young with Hambrook v Stokes Brothers, particularly with regard to the duty of the driver. In Hambrook v Stoke Brothers (3), the case of the runaway lorry, Atkin LJ, held that, apart from the admissions in the pleadings, the lorry driver was in breach of his duty to the mother, although she was not herself 621 in any personal danger, whereas in Hay (or Bourhill) v Young the House of Lords held that the motor cyclist was guilty of no breach of duty to the fishwife.

I am not sure that the whole difficulty does not arise because of the different senses in which we speak of the duty of care. Take the case of the fishwife. Although the House of Lords held that the motor cyclist was under no duty to her, that must mean that he owed her no duty in regard to emotional shock. It cannot mean that he did not owe her a duty in regard to physical injuries if it had so happened that she suffered any. In that regard he was clearly under a duty to her to drive with reasonable care. Suppose, for instance, that his negligence had caused her to be physically injured in some way or other. This was admittedly improbable, but it was not altogether outside the realms of possibility. She was standing at a point where she might conceivably have been struck. The excessive speed of the motor cyclist existed before the impact. He was not to know what vehicles would appear in his path. He might have collided with some negligently driven car coming in some other direction, and as a result of the collision one or other of the vehicles might have been flung back on her. One can never tell where vehicles will be placed after an accident. The risk of her being struck might be remote, but no matter how remote it was, and no matter how much it was outside the contemplation of the motor cyclist, nevertheless, if the fishwife had actually been struck as a result of his negligence, or of the negligence of him and others, she would have a cause of action in damages against him. So, also, with the case of the funeral procession, Owens v Liverpool Corpn. The mourners were not actually struck, but they were well within the area where they might have been. If their own carriage had been going a little faster it might have become itself involved in the accident by having to pull up suddenly or to swerve, with consequent physical injury to the mourners, in which case they would clearly have had a cause of action for damages.

What is the reasoning which admits a cause of action for negligence if the injured person is actually struck, but declines it if he only suffers from shock? I cannot see why the duty of a driver should differ according to the nature of the injury. I should have thought that every driver was under a plain duty which he owed to everyone in the vicinity. He ought to drive with reasonable care. If he drives negligently with the result that a bystander is injured, then his breach of duty is the same, no matter whether the injury is a wound or is emotional shock. Only the damage is different. The bystander may be so close as to be put in fear for himself, or he may be just a little way off and be shocked by fear for the safety of others. In either case he has been injured by the driver’s negligence. If you view the duty of care in this way, and yet refuse to allow a bystander to recover for shock, it is not because there was no duty owed to him, nor because it was not caused by the negligence of the driver, but simply because it is too remote to be admitted as a head of damage.

A different result is reached by viewing the driver’s duty differently. Instead of saying simply that his duty is to drive with reasonable care, you say that his duty is to avoid injury which he can reasonably foresee, or, rather, to use reasonable care to avoid it. Then you draw a distinction between physical injury and emotional injury, and impose a different duty on him in regard to each kind of injury, with the inevitable result that you are driven to say there are two different torts, one tort when he can foresee physical injury, another tort when he can foresee emotional injury. I do not think that is right. There is one wrong only, the wrong of negligence. I know that damage to person and damage to property are for historical reasons regarded as different torts, but that does not apply to physical injury and emotional injury. Lord Wright clearly treated impact and shock as one cause of action when he said in Hay (or Bourhill) v Young ([1942] 2 All ER 405):


“The man who negligently allows a horse to bolt, or a car to run at large down a steep street, or a savage beast to escape is committing a breach of duty towards every person who comes within the range of foreseeable danger, whether by impact or shock …”

The true principle, as I see it, is this. Every driver can and should foresee that, if he drives negligently, he may injure somebody in the vicinity in some way or other, and he must be responsible for all the injuries which he does in fact cause by his negligence to anyone in the vicinity, whether they are wounds or shocks, unless they are too remote in law to be recovered. If he does by his negligence in fact cause injury by shock, then he should be liable for it unless he is exempted on the ground of remoteness. This principle is the same as that stated by Sir Frederick Pollock in Pollock On Torts, 15th ed, p 334:

“… every one is bound to exercise due care towards his neighbours in his acts and conduct, or rather omits or falls short of it at his peril; the peril, namely, of being liable to make good whatever harm may be proved a consequence of the default.”

If this principle is correct, the only consequences for which he is excused are those which are too remote. Howsoever that may be, whether the exemption for shock be based on want of duty or on remoteness, there can be no doubt since Hay (or Bourhill) v Young that the test of liability for shock is foreseeability of injury by shock. But this test is by no means easy to apply. The test is not what the negligent party himself could reasonably have foreseen, for he rarely has time to foresee anything. The test is what a “reasonable hypothetical observer could reasonably have foreseen”: see Hay (or Bourhill) v Young per Lord Wright ([1942] 2 All ER 406). But where must this hypothetical observer be situate? In the driver’s seat, or in an observation post on high? It is obvious that much must depend on his powers of observation and the scope of his imagination. One judge may credit him with more foresight than another. One judge may think that he should have foreseen the shock. Another may not. In both Hambrook v Stokes Brothers and Chester v Waverley Municipal Corpn, the judges were divided in opinion whether the shock to the mother could reasonably have been foreseen. Some cases seem plain enough. A wife or mother who suffers shock on being told of an accident to a loved one cannot recover damages from the negligent party on that account. Nor can a bystander who suffers shock by witnessing an accident from a safe distance: Smith v Johnson & Co, cited in Wilkinson v Downton; Hay (or Bourhill) v Young, per Lord Porter (ibid, 409). But if the bystander is a mother who suffers from shock by hearing or seeing, with her own unaided senses, that her child is in peril, then she may be able to recover from the negligent party, even though she was in no personal danger herself: Hambrook v Stokes Brothers’ Lord Wright said he agreed with that decision. So do I.

This brings me to the real question: Is the present case covered by Hambrook v Stokes Brothers or not? I think we should follow Hambrook v Stokes Brothers so far as to hold that there was a duty of care owed by the taxi-driver, not only to the boy, but also to his mother. In that case the negligence took place three hundred yards from the place where the mother was standing. In this case it was only seventy or eighty yards. In that case the mother was not herself in any personal danger. Nor was she here. In that case she suffered shock by fear for the safety of her children from what she saw and heard. So did she here. In that case the mother was in the street, and in this case at the window of the house. I do not think that makes any difference. Nevertheless, I think the shock in this case is too remote to be a head of damage. It seems to me that the slow backing of the taxicab was very different from 623 the terrifying descent of the runaway lorry. The taxi-driver cannot reasonably be expected to have foreseen that his backing would terrify a mother seventy yards away, whereas the lorry driver ought to have foreseen that a runaway lorry might seriously shock the mother of children in the danger area.

I may mention that some years ago, shortly after Hay (or Bourhill) v Young was reported, I tried a case at the Manchester Assizes where a woman, cutting a loaf of bread, found a dirty finger-stall in it. She suffered shock from the sight of it, and claimed damages from the baker. She did not make the contract with the baker, but he clearly was under a duty of care to her which he had broken. I held that she could not recover for the shock, because it could not reasonably have been foreseen. That case shows the difficulty of drawing the line. If she had eaten the loaf and been poisoned, she could have recovered damages, but because she was only shocked by sight, she could not. Where is the line to be drawn? Only where “in the particular case the good sense of the … judge decides.” That is how Lord Wright put it in Hay (or Bourhill) v Young (ibid, 406), and I do not think we can get any nearer than that. I agree that the appeal should be dismissed.

HODSON LJ. The plaintiff’s claim is for shock sustained owing to the negligence of a taxi-driver, the servant of the defendant, who ran into and injured her infant son who was playing in the street some little way from her house. The plaintiff, while in the house, heard a scream which she identified as that of her son. She saw the taxicab backing on to a tricycle and saw the tricycle under the cab, but could not see the boy. she ran down the road, the boy ran towards her, and she took him indoors. McNair J, found that the negligence of the taxi-driver caused the injury to the boy and that the mother’s shock was caused by what she saw and heard, but dismissed her claim on the ground that the driver could not reasonably have anticipated that to back his taxi-cab in the way he did, admittedly negligently vis-à-vis the boy, would cause injury to his mother in her home seventy or eighty yards away.

The law in shock cases where no direct contact is involved was considered by the House of Lords in Hay (or Bourhill) v Young. It is clear that the action will lie for injury by shock whenever a person is placed in reasonable fear of immediate injury to himself, provided that the defendant could reasonably have foreseen the risk and ought to have guarded against it. As Lord Russell Of Killowen said [1942] 2 All ER 401):

“In considering whether a person owes to another a duty a breach of which will render him liable to that other in damages for negligence, it is material to consider what the defendant ought to have contemplated as a reasonable man.”

The difficulty lies in applying the law and in determining the range of the action. On the authorities it is at least doubtful whether it can extend to unintentional acts causing shock where there is no fear of personal injury to the plaintiff. Speaking, if I follow him correctly, of the range of the action, Lord Wright, in Hay (or Bourhill) v Young, was not prepared to impose any exact limit on it, saying that it should be where in the particular case the good sense of the judge or jury should decide.

McNair J, in the case now under appeal, having directed himself in accordance with the speeches in Hay (or Bourhill) v Young, and having arrived at the conclusion that the injury to the boy’s mother was outside the range of the reasonable anticipation of the taxicab driver, I think an appellate court should hesitate long before disturbing his conclusion. The plaintiff contends that, since she has proved the negligent driving of the taxi-driver and injury by shock to have been caused thereby, the case is on all fours with, and, indeed, stronger than, Hambrook v Stokes Brothers, in which the Court of Appeal, 624by a majority, found that a husband was entitled to recovery in an action under the Fatal Accidents Act where the death of his wife was caused by shock brought about by fear for her child’s safety. That case, it is said, was not overruled by Hay (or Bourhill) v Young, and, accordingly, the learned judge was wrong in directing himself by the speeches delivered in the House of Lords without regard to the earlier decision. This criticism is, I think, ill founded. In Hay (or Bourhill) v Young, their Lordships had to deal with a case in which no breach of duty was admitted, while in Hambrook v Stokes Brothers there was an admission of negligence, so that the question of breach of duty did not arise. It seems to me that, in the absence of the admission, Lord Thankerton would not have approved the decision in Hambrook v Stokes Brothers. He quoted (ibid, 400) a passage from Atkin LJ’s judgment ([1925] 1 KB 156):

“‘I agree that in the present case the plaintiff must show a breach of duty to her, but this she shows by the negligence of the defendants in the care of their lorry. I am clearly of opinion that the breach of duty to her is admitted in the pleadings.’ There are, however, certain obiter dicta on the question of duty, which might be considered too wide, and I reserve any opinion on them.”

Lord Russell Of Killowen preferred the dissenting judgment of Sargant LJ; Lord Macmillan reserved his opinion on the case; Lord Wright said that, as at present advised, he agreed with the decision. Lord Porter expressed no dissent, emphasising that all the lords justices were careful to point out that the vital problem was the extent of the duty and not the remoteness of damage, a view with which he agreed. In these circumstances, although I think it is difficult to draw a valid distinction on the facts between this case and Hambrook v Stokes Brothers, I think that McNair J, was entitled to treat the decision of the majority of

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