A. Issues and Reasoning

At first instance, before Otton J., the defendant admitted liability for the collision, and the judge said the only issue to be determined was that of quantum.Footnote ³ Otton J. listed eight questions he had to determine. The significance of the case seemed to be seen to lie in the nature of the illness claimed to be suffered by Mr Page. The questions included (1) whether there was a condition, disease or illness called ME, CFS or PVFS, what its principal symptoms were, and what caused it; (2) whether Mr Page suffered from it before the accident, and if so to what extent; (3) whether the accident caused or materially contributed to the condition that prevailed after the accident; (4) the extent to which, if Mr Page had had the condition before the accident, he would have suffered if there had been no accident; (5) the extent to which Mr Page had suffered damage as a result of the accident; and (6) the level of compensation to which Mr Page was entitled.

Otton J. considered at length Mr Page's character and history and the extensive medical evidence. He concluded (1) that there was no doubt that CFS existed and was a genuine and common condition; (2) that it was an ill-defined and fluctuating condition, with a wide range of symptoms, including exhaustion and depression; and (3) that little was known about its causes. He was prepared to find on the balance of probabilities that the condition could be triggered by a viral infection, emotional stress or the trauma of an accident.Footnote ⁴ He also concluded that Mr Page had suffered from CFS for a substantial period prior to the accident, but was in a recovery stage immediately before it. The collision was one of “moderate severity” and the deleterious effects of the accident were “likely to have been mediated or caused by psychological factors such as nervous shock”.Footnote ⁵ The conclusion was that the negligence “materially contributed to the recrudescence of the CFS and converted that illness from a mild and sporadic state to one of chronic intensity and permanency”.Footnote ⁶

The learned judge then addressed the defendant's argument that since the claimant had suffered no physical injury, and therefore the subsequent relapse had been triggered by shock alone, he could recover damages only if the defendant could reasonably have foreseen this consequence, and that it was not reasonably foreseeable that an accident of such a trivial nature would have had such a devastating effect. Counsel cited cases on liability for psychiatric injury.Footnote ⁷

This argument was swiftly rejected. First, on the facts this was not a trivial accident. Second, it was “well established that the defendant must take the plaintiff as he finds him. If symptoms are caused or increased by the particular susceptibility of the plaintiff, the defendant is not relieved of responsibility for them.”Footnote ⁸ Here, Otton J. cited and adopted the reasoning in Malcolm v. Broadhurst,Footnote ⁹ and held that once it was established that CFS existed “and that a relapse or recrudescence could be triggered by the trauma of an accident and that nervous shock was suffered by the plaintiff” who was actually involved in the accident it became a foreseeable consequence.Footnote ¹⁰ The “nervous shock cases” had no relevance, as the plaintiff was not a spectator of the accident who suffered shock from what he witnessed happening to another, but “was directly involved and suffered the shock directly from experiencing the accident”. Accordingly, “the remoteness argument … must be rejected”.Footnote ¹¹ Damages of £162,153 were awarded.

B. Comments

Some of the difficulties that subsequently emerged may have arisen from the way in which the case was viewed and presented at first instance. First, there was a failure fully to recognise that there were potentially significant legal issues concerning the duty of care. On the facts, it was clear that Mr Smith owed Mr Page a duty of care as another road user in respect of the damage to Mr Page's car and any physical injury he might have suffered through direct impact. The former actually occurred;Footnote ¹² the latter did not. Could it properly just be assumed that the defendant owed Mr Page a duty of care not to inflict physical injuryFootnote ¹³ via the medium of “nervous shock”, leaving issues of foreseeability of the kind of damage suffered as relevant only to remoteness? It is submitted that it could not. There was a significant, live, issue to be addressed as to whether the duty of care extended to cover the way the injury suffered was brought about.

As a matter of principle it is well established that the fact that D owes C a duty of care in respect of one kind of harm is not determinative when considering whether a duty of care is owed in respect of a completely different kind of harm, even though it is caused by the same act of carelessness. For example, if D through careless driving injured two passengers, C1 and C2 (C1's employer), the fact that D owed C1 a duty of care in respect of C1's physical injuries would be irrelevant to a claim by C1 in respect of the loss of his job caused by the injuries to C2.Footnote ¹⁴Page v. Smith raised a potentially awkward question as to how this principle applies. A possible solution would be to say that as physical harm was the ultimate outcome (if it is accepted that the effects of CFS are physical rather than psychological), the fact that it was inflicted via a shock rather than impact indeed went only to remoteness. However, it has long been established in the case law on psychiatric injury that the fact that a shock has led to physical consequences (such as a miscarriage) does not take the case out of the special category of psychiatric damage cases that raise issues as to the ambit of the duty of care.Footnote ¹⁵ That therefore left as an inescapable question to be addressed whether the defendant owed Mr Page a duty of care not to inflict harm on him by means of a shock. The irony is that if this question had been addressed expressly there was the obvious answer available that, on Otton J.'s findings,Footnote ¹⁶ the kind of harm suffered was reasonably foreseeable, and that it would be difficult to deny there was a proximate relationship and hard to think of any reason why it would not be fair, just and reasonable to recognise a duty of care. However, the fact that the duty question was not analysed expressly left it open to be inferred that a duty arose simply because of the fact that Mr Page had been at risk of physical injury.

A further difficulty is that it is unclear whether Otton J.'s apparent invocation of the eggshell skull principleFootnote ¹⁷ was intended to follow on from his ruling that this had not been a trivial accident (and that therefore psychiatric damage was reasonably foreseeable) or to be an independent ground for his decision. If it was the latter, it is submitted that Otton J.'s proposition that “If symptoms are caused or increased by the particular susceptibility of the plaintiff, the defendant is not relieved of responsibility for them” is potentially misleading. Confusingly, the label “eggshell skull principle” is used to cover two distinct propositions that may be relevant where a claimant suffers from an existing susceptibility or hypersensitivity: (1) that liability is imposed for the unforeseeable extent of a foreseeable kind of injury; and (2) that liability is imposed for the unforeseeable development of a foreseeable kind of injury. However, both these propositions relate only to the unforeseeable extent or consequences of an initial, foreseeable, injury actually suffered.Footnote ¹⁸ It is therefore a mistake to suppose that the eggshell skull principle applies in all cases in which a claimant suffers an injury that is unforeseeable because it arises from some existing susceptibility, as the principle is not engaged where that susceptibility makes the initial injury suffered by the claimant unforeseeable.

Malcolm v. Broadhurst Footnote ¹⁹ could properly be relied on for the proposition that the eggshell skull principle (correctly analysed) can apply to an “eggshell personality”,Footnote ²⁰ but not for any proposition that the rule is of wider application than has been stated here. In Malcolm, a husband and wife were physically injured in a car accident as a result of the defendant's negligence. The wife had a pre-existing nervous disability and was entitled to damages for its exacerbation in respect of a period up to February 1968. A further question was whether the wife could recover damages for loss of wages for a further period when her incapacity was held to have been caused solely by the effect on her “vulnerable condition” of her husband's behaviour, as changed by the effect on him of the accident. Geoffrey Lane J. held that she was. However, central to the reasoning was a broad application of the Wagon Mound reasonable foreseeability test for remoteness of damage. It was reasonably foreseeable that the claimant might suffer psychiatric damage as a result of this (serious) accident, and she did so. The fact that an element of such damage was caused by her reaction to her husband's changed behaviour was immaterial. On this approach, there was no need to invoke the eggshell skull principle to impose liability for unforeseeable harm. In Page, Otton J.'s decision was simply that the CFS was a foreseeable consequence of the accident, apparently an even more straightforward application of the Wagon Mound than in Malcolm itself. The references to the eggshell skull principle in Malcolm and Page merely muddied the waters.

Thirdly, there was the proposition that the “nervous shock” cases were not relevant as Mr Page was directly involved in the accident. The significance of this is difficult to assess given that Otton J. did not make clear which cases he had in mind. This aspect of the judgment was subsequently interpreted as holding that it was not necessary for Mr Page to establish that psychiatric injury had been reasonably foreseeable. It is not at all clear that that was what was meant. If Otton J.'s two reasons had been cumulative, such a ruling would have been unnecessary. The citation of Malcolm, a case where psychiatric damage was on the facts reasonably foreseeable, tends to support the view that the reasons were indeed cumulative. Another possible interpretation is that Otton J. was merely holding inapplicable the principle derived from Bourhill v. Young that it must be reasonably foreseeable that psychiatric damage might be caused to a person of ordinary fortitude.Footnote ²¹ If this was intended, it is again unfortunate that there was no analysis of the purpose and content of this requirement,Footnote ²² and why it should not apply in this sort of case.

Overall, the picture emerges of a case largely fought on its particular, novel facts, with insufficient attention paid to relevant, fundamental issues of law and misleading elements introduced into the analysis. It is possible that the judge's conclusion was simply a finding that the harm was on the facts reasonably foreseeable on ordinary negligence principles and that no new principles of law had to be invoked. If so, it is unfortunate that this was not made clear. And if Otton J. did intend to articulate a new principle, there should have been much more by way of explanation and justification.

A. Issues and Reasoning

The case was taken on appeal to the Court of Appeal.Footnote ²³ The grounds of appeal included a challenge to the finding that Mr Page's symptoms were caused by the accident and an argument that the judge had been wrong to hold that the injury was foreseeable. As to the latter, the defendant argued that Otton J. had failed to apply the principle that it was necessary in law for the claimant to prove that a person of reasonable fortitude might suffer shock from the accident as it occurred, and had incorrectly held that foreseeability of injury from nervous shock was not required in the case of a claimant who was involved in the accident. The claimant sought to uphold such an approach. There were also grounds of appeal concerning the proper test for causation in fact and aspects of the award of damages.

Ralph Gibson L.J. rejected grounds of appeal concerning the judge's approach in law to causation, but held that the evidence was not sufficient to show that the accident probably caused or materially contributed to the CFS. His Lordship then considered the foreseeability point, in case he was wrong on proof of causation. He held that the defendant was entitled to succeed on that point too. It had been stated by Denning L.J. in King v. Phillips that “the test of liability for shock is foreseeability of injury by shock”.Footnote ²⁴ This had been approved by the Privy Council in The Wagon Mound (No 1).Footnote ²⁵ In applying this test, it was necessary to consider what at trial was shown to have happened to the claimant as a result of the defendant's act or omission, not merely what was foreseeable at the time of the defendant's act or omission. The judge here had erred in failing to consider whether, as a result of what had happened to the claimant in the accident, any psychological injury to the claimant as a person of ordinary fortitude was reasonably foreseeable. On the facts, Ralph Gibson L.J. concluded that it had not been so foreseeable. Farquharson L.J. adopted the same approach to the foreseeability requirement and did not consider the question of causation.

Hoffmann L.J. provided a more extended analysis, leading to the same conclusion. Importantly, for the first time in the litigation there was a review of the law concerning what he termed liability for damage by mental trauma. Among seven propositions summarising the position, were those that this was a separate head of damages in the law of negligence with its own conditions of liability; that foreseeability of damage caused by mental trauma is a necessary ingredient; that this question is asked with hindsight, in the light of the accident as it actually happened; that for the purposes of foreseeability the claimant must be assumed to be a person of normal fortitude; and that “if some damage caused by mental trauma was foreseeable and the other conditions of liability are satisfied, the plaintiff is entitled to be compensated for all damage caused by mental trauma, whether its precise nature and extent were foreseeable or not”.Footnote ²⁶ The main question that arose in the present case was whether, as argued by the claimant, in a case where the claimant was a participant in the accident rather than a bystander, the foreseeability requirement was satisfied by showing that Mr Page might suffer some physical injury. In Hoffmann L.J.'s view, whether the claimant was a participant or bystander went to the question of proximity not foreseeability. Proximity (established in the circumstances) was not a substitute for foreseeability. His Lordship also agreed that foreseeability was not established on the facts, since while a person of ordinary fortitude might well have been expected to suffer what the judge had called “nervous shock in the broad sense”, he or she would not have become physically or mentally ill.Footnote ²⁷

B. Comments

The Court of Appeal helpfully considered the legal position in greater depth than Otton J., and did recognise that there were duty of care issues to be addressed. However, the legal issues were essentially resolved by recourse to precedent rather than by an analysis of relevant principles and any applicable arguments of policy as to the shape the law should take. Nevertheless, our view (which will be developed below) is that the court's conclusion that it should be necessary for the claimant in a case such as this to establish that psychiatric damage had been reasonably foreseeable was indeed the correct one on its own merits and not merely as a matter of precedent.

What is more doubtful is the court's decision to overturn Otton J.'s finding on the reasonable foreseeability of the harm on the facts. While his reasoning could have been clearer, it does not follow from Otton J.'s failure expressly to mention the hypothetical effect on a person of ordinary fortitude that he necessarily applied the wrong test. Furthermore, in substituting their view on the point, the Court of Appeal seems to have adopted a particularly stringent approach to the facts.Footnote ²⁸

A. Issues and Reasoning

In the House of Lords, the main focus of attention was on the legal issues.Footnote ²⁹ The main battle line was between the claimant's argument that “the defendant should compensate the plaintiff for the personal injury he sustained if it was reasonably foreseeable in the moments before the accident that the accident would cause him some personal injury”Footnote ³⁰ and the defendant's contention that “the test of foreseeability for ‘nervous shock’ is the foreseeability of damage by nervous shock”.Footnote ³¹

The House divided by three to two. It is convenient to take the dissenting opinions first. Lord Keith stated that liability in negligence depended on both foreseeability and proximity. Where a claimant was personally involved in a terrifying incident proof of proximity presented no problem and proximity clearly existed here. It was clearly foreseeable that the claimant might suffer physical injury, although he did not. The question was whether the claimant was required to prove that “it was reasonably foreseeable that he would suffer such nervous shock as was capable of leading to some identifiable illness”.Footnote ³² Statements in the case law indicated that the answer was yes.Footnote ³³ The question was to be judged ex post facto, looking at the circumstances as they actually occurred.Footnote ³⁴ It was also to be judged in the light of what would be suffered by a person of normal fortitude. On the facts, there was no evidence that Mr Page had been terrified, and foreseeability was not established. This approach echoes that of the Court of Appeal and is again notable for a lack of a detailed consideration of principle or any overt consideration of policy.

Lord Jauncey stated that as a claimant directly involved in an accident had to show that physical injuries sustained by him were the foreseeable consequence of a negligent act, it was not easy in principle to see why such a claimant who suffered nervous shock and its consequences should not have to prove that it was similarly foreseeable.Footnote ³⁵ His Lordship referred to the same authorities as Lord Keith in support of the same conclusion. In none of these cases had the requirement to establish foreseeability of nervous shock been confined to cases concerning bystanders rather than participants.Footnote ³⁶ The “ordinary fortitude” requirement was also well supported by the authorities,Footnote ³⁷ and not said to be confined to bystander cases. There were no justifications in principle or logic for such a distinction.Footnote ³⁸ Foreseeability was to be judged with hindsight; indeed this was the general approach in negligence, not one confined to nervous shock cases. Finally, on the facts, nervous shock had not been reasonably foreseeable. In all reported cases in which a claimant had recovered damages for nervous shock the causative event had been “of a dramatic and horrifying nature”. Here it could not be suggested that Mr Page had suffered an “acute emotional trauma”.Footnote ³⁹

The main opinion for the majority was given by Lord Lloyd. He noted that this was the first nervous shock case determined by the House of Lords in which the claimant had been a participant and therefore a “primary victim”. He had been “directly involved in the accident, and well within the range of foreseeable physical injury”.Footnote ⁴⁰ His Lordship then invoked considerations of the practicalities of personal injuries litigation. In practice where a claimant actually suffered physical injury, but also developed psychiatric illness, nobody would stop to consider the foreseeability of nervous shock. Should it make all the difference that a primary victim in a similar case escaped physical injury? There is then a crucial passage:

Lord Lloyd preferred the “simplicity” of Otton J.'s approach. In the case of primary victims, since the defendant was admittedly under a duty of care not to cause the plaintiff foreseeable physical injury, “it was unnecessary to ask whether he was under a separate duty of care not to cause foreseeable psychiatric injury”.Footnote ⁴²

Quite apart from its simplicity, Otton J.'s approach had other attractions. First, with the expansion in medical knowledge, it would not be sensible to commit the law to an artificial distinction between physical and psychiatric injury. Secondly, it was not appropriate in the case of primary victims to apply the foreseeability test with hindsight:

Furthermore, as liability would depend on foreseeability of physical injury, there was no need for the control mechanisms appropriate in the case of secondary victims to prevent “opening the door too wide”.Footnote ⁴⁴ These control mechanisms included the need to ask whether the claimant was a person of “ordinary phlegm”, but in the case of physical injury there was no such requirement: “The negligent defendant, or more usually his insurer, takes his victim as he finds him. The same should apply in the case of psychiatric injury.”Footnote ⁴⁵ The approach of Otton J. was correct. The nervous shock authorities were not to be interpreted as inconsistent with it.Footnote ⁴⁶

Finally, an alternative argument was also accepted: if it had been necessary to establish reasonable foreseeability of psychiatric injury, the Court of Appeal had been wrong to find that some form of psychiatric illness was not a foreseeable consequence of the accident in a person of normal fortitude.Footnote ⁴⁷ Lord Lloyd's opinion concluded with a list of five propositions summarising the law as he saw it.Footnote ⁴⁸

The other speeches in the majority were much shorter. Lord Ackner simply agreed with Lord Lloyd's reasons, and added further observations supporting the view that on the facts, the risk of injury by nervous shock was “clearly foreseeable”.Footnote ⁴⁹ A person of normal fortitude could well have been terrified. Lord Browne-Wilkinson agreed with Lord Lloyd's reasons, but also added further observations. Medical science recognised that a physical injury caused by impact could cause consequential physical damage to another limb or organ; that physical illness or injury could be caused by a psychiatric route; and that psychiatric illness could be caused by a psychiatric route. Accordingly, the fact that Mr Page had suffered no physical injury was irrelevant to the question whether he could recover damages. On the facts, therefore, the question was whether a driver of a car should reasonably foresee that a person involved in an accident might suffer psychiatric injury of some kind (whether or not accompanied by physical injury). His Lordship had no doubt that he should.Footnote ⁵⁰

It was well established that damages could be awarded for nervous shock unaccompanied by physical injury, as in cases where the claimant feared for his or her own safety.Footnote ⁵¹ Developments concerning claims for nervous shock by non-participants were not in point. His Lordship continued:

Finally, Lord Browne-Wilkinson endorsed Lord Lloyd's remark about the dangers of drawing hard-and-fast lines between physical illness and its causes and psychiatric illness and its causes. For the courts to impose different criteria for liability depending on whether the injury was “physical” or “psychiatric” was likely to lead to the complication of straightforward personal injury cases. In his Lordship's judgment, the law would be more effective if it was accepted that involvement in a collision could result in both physical and psychiatric damage.Footnote ⁵³

The case was remitted to the Court of Appeal for it to determine the ground of appeal concerning causation. The Court of Appeal subsequently upheld the judgment of Otton J. that it was established that the defendant's negligence had caused the harm suffered by the claimant, disagreeing with the view expressed by Ralph Gibson L.J. in the same court when the case was first heard there.Footnote ⁵⁴

B. Comments

We set out here a number of criticisms of the reasoning of their Lordships. It is submitted, with respect, that there are difficulties with all the opinions. These difficulties are as follows.

First, while there was recognition that this situation was different from previous psychiatric damage cases that had reached the House of Lords, which concerned secondary victims, there was a notable and regrettable lack across all the opinions of detailed analysis of the negligence principles that were to be applied. (Lord Keith came the nearest in recognising that there were separate issues of foreseeability and proximity to be addressed in negligence cases.) It would have been very helpful for their Lordships to have set out their understanding of the general principles of duty of care and remoteness and then to have applied them (as they thought appropriate) to the facts.

Secondly (the other side of the same coin), there was perhaps an over-emphasis on the precedents. It was clear that no court prior to Page v. Smith had been required to address the precise question now raised, although there were some dicta that touched upon it.Footnote ⁵⁵ Statements made in secondary victim cases, or at a time when the debate was as to whether liability for what may be termed “pure” psychiatric damage was to be confined to those who reasonably believed themselves in danger, neither compelled the conclusion that it was necessary to establish foreseeability of psychiatric damage in a case like Page (as apparently thought by the minority), nor were so clearly irrelevant that they could easily be set on one side (as apparently thought by the majority). The true position is that this was a novel case at the level of the House of Lords. Indeed there had been very few English cases concerning what were now to be termed “primary victims” at any level before Page.Footnote ⁵⁶ It was a case where the reasoning should have been more from principle than precedent. Having said that, it must be recognised that the position taken by the majority in Page was (and is) out of line with the vast majority of the relevant decisions both here and abroad.Footnote ⁵⁷

Thirdly, there is the curious disjunction between the law laid down in Page v. Smith and the facts of the case as found. The key disagreement was about whether foreseeability of psychiatric damage (as distinct from physical injury) was a necessary requirement in law. (There was also disagreement about whether the test for foreseeability should be applied with hindsight.) And yet Otton J. (it seems) and the majority of the House of Lords were of the view that such foreseeability – even if judged with hindsightFootnote ⁵⁸ – was established on the facts.Footnote ⁵⁹ The case can accordingly be seen as having two rationes decidendi. It is submitted that it is undesirable for a court to adopt a novel – and contested – rule on the basis of a factual assumption (here, that psychiatric damage was unforeseeable) which is inconsistent with the facts as found by that court.

Finally on this point, it would seem that the ruling of the majority on the facts empties its ruling on the key question of law of all practical content in a running-down case. The view that psychiatric injury was reasonably foreseeable to Mr Page on these facts was a ruling that such foreseeability was established in respect of a person of normal fortitude.Footnote ⁶⁰ If so, one reaches the position (which seems to receive some express support from Lord Browne-WilkinsonFootnote ⁶¹) that in practice the courts will accept on the facts of running-down cases arising out of collisions of at least the severity of the one in Page that any person foreseeably physically endangered by the defendant's negligence may suffer psychiatric damage as an immediate consequence of that negligence.Footnote ⁶² If it had been held that in law it was necessary to prove foreseeability of psychiatric damage, such an approach to the facts of cases of this kind would itself have kept running-down litigation reasonably simple, but without causing difficulties for the overall structure of the law.

Fourthly, there are difficulties with specific aspects of the majority's reasoning. In a passage quoted above,Footnote ⁶³ for example, Lord Lloyd compares Mr Page's position with the hypothetical example of Mr Page's wife, just recovering from a depressive illness, being with him in the car and suffering a cracked rib followed by psychiatric illness. According to his Lordship, it was clear that she would have recovered damages, including damages for her illness, since it was “conceded that the defendant owed the occupants of the car a duty not to cause physical harm”. This is problematic as it fails to address why it is “clear” that she would have recovered damages for her illness and how this relates to the duty not to cause physical harm. It might well be obvious that she would recover damages for the illness but not obvious that this would be because of the defendant's duty not to cause her physical harm. Where a person is physically injured and also immediately develops psychiatric illness following an accident a court is indeed likely to impose liability, either on the basis that the illness is a consequence of the injuries (and is either foreseeable or covered by the eggshell skull principle) or on the basis that the person has suffered shock through fear for their own safety (which is again likely to be reasonably foreseeable). Only the first of these clearly relates to the duty of care not to cause physical harm. How can these cases be analogous to Page if it is assumed that psychiatric damage was not foreseeable on the facts, and given that no other injury was suffered on which the eggshell skull principle could bite? If the psychiatric illness is clearly (but unforeseeably) caused by the accident but not by the claimant's physical injuries, then it is not covered by the eggshell skull principleFootnote ⁶⁴ and the only remaining basis for liability under existing law would be a parasitic claim of the kind controversially recognised in Schneider v. Eisovitch.Footnote ⁶⁵ This decision was indeed mentioned with approval by Lord Lloyd, but it was not analysed in any depth.

Another difficulty with the reasoning of the majority is Lord Lloyd's mistaken assumption that the test of reasonable foreseeability of psychiatric injury in a person of ordinary fortitude was a special control mechanism appropriate only in secondary victim cases, an assumption that appears to have been based on an exaggeration of the impact of the eggshell-skull principle.Footnote ⁶⁶ On the contrary, the reasonable foreseeability test in negligence is generally applied by reference to the anticipated effect of the defendant's conduct on ordinary persons, so that where the effect is attributable to an abnormal susceptibility of the claimant, the defendant is liable only if he was or ought to have been aware of that susceptibility.Footnote ⁶⁷ And the only reason this principle has acquired particular prominence in the psychiatric injury context is that susceptibility to mental injury varies more than susceptibility to physical injury.Footnote ⁶⁸ For this reason, Lord Lloyd's analysis of the ordinary fortitude test was later disapproved by the Law Commission,Footnote ⁶⁹ and has not found favour in either the High Court of AustraliaFootnote ⁷⁰ or the Supreme Court of Canada, where in a recent decision McLachlin C.J. described the assumption of ordinary fortitude as “inherent in the notion of foreseeability”.Footnote ⁷¹

Furthermore, the argument that it would not be sensible to commit the law to an “artificial distinction” between physical and psychiatric injury is also odd given Lord Lloyd's acceptance that it is the foreseeability of physical as distinct from psychiatric injury that is sufficient to turn the claimant into a primary victim. The distinction, whether artificial or not, is in fact crucial here. Reasonable foreseeability of psychiatric injury alone is of course insufficient in itself to establish on anyone's approach that the claimant is a primary victim; if that were the case the whole primary/secondary distinction endorsed by Lord Lloyd would in fact fall away.

Fifthly, the new rule is inconsistent with the approach to foreseeability adopted by the Privy Council in The Wagon Mound (No 1)Footnote ⁷² when determining whether the kind of damage suffered is too remote.Footnote ⁷³ The Privy Council clearly decided that a distinction was to be drawn between different kinds of property damage, and it is difficult to see why something similar would not apply in the case of personal injury.Footnote ⁷⁴

Sixthly, it is notable that while the policy reasons given in favour of the new rule centred on the simplification of the position of participants in running-down cases, there was no suggestion that the rule was to be confined to that situation. It is accordingly particularly unfortunate that no thought was given to how the new rule would apply in other situations.

Finally, it is unfortunate that the majority attached such significance to classification as a “primary victim” without engaging in any considered analysis of that concept. In particular, the majority did not explain why the focus when classifying a claimant in this way should be on whether he or she had been foreseeably endangered by the defendant's negligence, rather than on whether the shock had been caused by the claimant's fear for his or her own safety (the approach which Lord Oliver had adopted in Alcock v. Chief Constable of South Yorkshire Police, the leading case on secondary victim claimsFootnote ⁷⁵). As we shall see, this subtle change of focus is a lot more significant in practice than it might at first appear to be, and has given rise to considerable difficulties in subsequent litigation. It is most unfortunate that the adoption of an objective “zone of danger” test of this kind should have taken place without proper consideration of its appropriateness and its possible ramifications, not least because academic writers had in the past decried such an approach as irrational.Footnote ⁷⁶ It is also unfortunate that the majority failed to make it clear that this test was not intended to be exhaustive of the primary victim category, an omission which we shall see has also given rise to problems in later cases.

Overall, it is submitted that the case was not well reasoned on either side; an assertion of a status quo derived from dicta in arguably distinguishable cases was defeated by reasoning comprised essentially of an assertion that a novel rule would be both simpler and fairer, with minimal recognition of or attention paid to the difficulties that would be posed for future courts. The origins were indeed inauspicious.

A. The Expansionary Effect of Page

A good example of the expansionary effect of Page is provided by the facts of Young v. Charles Church (Southern) Ltd.Footnote ⁸⁵ A workmate of the claimant's had been electrocuted after the scaffolding pole he was carrying came into contact with an overhead electricity cable. The claimant had handed the pole to the deceased and turned away, when he heard a loud bang and a hissing noise. On looking round he saw that his workmate had been killed. The claimant sued his employers for the psychiatric injury that resulted, but although they admitted that they had been negligent in not ensuring that the power to the cable had been switched off, they denied that they had owed the claimant a duty of care. The Court of Appeal unanimously allowed the claimant's action, although the reasoning was not uniform. For present purposes, the most important judgment is that of Evans L.J., who held that the claimant was a primary victim applying Page because he was in the area of physical risk created by his employer's negligence (it could have been him on the end of the pole). The defendant had argued that the case was distinguishable from Page because the claimant's shock seemed to have been caused by the impact of his workmate's death, and Hobhouse L.J. (while accepting that the appeal should be allowed on other grounds) agreed, classifying the claimant as a secondary victim on the grounds that “[h]is injury was brought about by the infliction of a physical injury upon another person”.Footnote ⁸⁶ However, according to Evans L.J. (with whom Hutchison L.J. agreed), the foreseeable risk of physical injury was determinative, and “no valid distinction” existed between this case and Page.Footnote ⁸⁷Young v. Charles Church is therefore clear authority for the proposition that a claimant foreseeably endangered by the defendant's breach of duty is a primary victim even if the shock is not brought about by fear for her own safety but by witnessing the death, injury or imperilment of another.Footnote ⁸⁸ In this situation, there would not have been recovery under Alcock but there is under Page.

This expansion of the primary victim category might seem to be rather inconsequential, since in most cases it will be the physical threat to the primary victim that causes the shock. However, commentators have pointed out that in some circumstances the area of foreseeable physical risk created by the defendant's breach of duty could be very extensive, with the result that the primary victim aspect of Page may have the potential significantly to undermine the Alcock restrictions on secondary victim claims. This is not immediately apparent when one has in mind a car accident of the type seen in Page, where the time gap between the breach of duty and the shocking incident is short, and the number of people in the area of foreseeable physical risk usually small. However, where the time gap between the negligence and the incident is longer, many more people could come within the area of foreseeable physical risk. Trindade gives the example of a disabled aircraft which flies over a city and then crashes into a residential building.Footnote ⁸⁹ Under the Page approach, it seems that almost any resident of the city who suffered shock as a result would count as a primary victim, with the result that claims brought by such persons would not be subject to the Alcock controls.Footnote ⁹⁰ And, as Trindade also emphasises, it will not always be obvious who was or was not within the foreseeable area of physical danger, so that Page v. Smith makes the critical distinction between primary and secondary victims less clear: if a train is derailed through the driver's negligence, he asks, are all the passengers primary victims, or only those in the derailed carriages?Footnote ⁹¹ An example of the uncertain scope of the Page test is provided by Fagan v. Goodman,Footnote ⁹² where the claimant alleged that she had suffered post-traumatic stress disorder after witnessing a road accident in which a police motorcyclist was killed after the defendant pulled into the outside lane, directly into his path. Although the trial judge, Turner J., held that the claimant, who was travelling just behind the defendant in the middle lane, was a secondary victim because she had not been forced to take any emergency action, arguably it was foreseeable that the defendant's negligent driving could have led to her being injured, had the motorcyclist's reaction to it been different.Footnote ⁹³

B. Does Page Have a Restrictive Effect?

If Lord Lloyd's definition of a primary victim in Page were exhaustive, then the primary victim aspect of Page would also have a restrictive effect, since it would follow that rescuers, involuntary participants, and claimants in cases where the breach of duty created no risk of physical danger to anyone (such as work stress cases) would automatically be classified as secondary victims, and hence subject to the Alcock limits. However, as we have seen, such an interpretation of Lord Lloyd's analysis is impossible to accept, since it is clear that the courts have treated claimants in cases outside the accident mainstream as “primary victims”, and it would be nonsensical to subject such persons to the Alcock controls. Lord Lloyd must therefore have meant only that those physically endangered by the breach were one category of primary victim.Footnote ⁹⁴ This is borne out by the fact that the old Dulieu v. White category of primary victim – people who reasonably believed that they were in danger – has clearly survived Page, even though there could be circumstances in which it later transpires that such a person had not in fact been at risk, so that the Page test would not be satisfied.Footnote ⁹⁵

Unfortunately, however, Lord Steyn muddied the waters somewhat in White v. Chief Constable of the South Yorkshire Police Footnote ⁹⁶ by suggesting that presence within the area of foreseeable physical risk was not just a sufficient, but a necessary, condition of primary victim status. The claimants in White were police officers who suffered psychiatric injury after witnessing the Hillsborough disaster. Relying on the analysis of Lord Oliver in Alcock, they argued that they were entitled to recover as rescuers, since they had actively rendered assistance to the victims of the disaster. However, the House held (Lord Goff and Lord Griffiths dissenting) that only rescuers who exposed themselves to danger or who reasonably believed that they were doing so were entitled to recover, and since none of the claimants had in fact been physically imperilled, their claims were therefore dismissed. Lord Hoffmann arrived at this conclusion without ascribing any restrictive effect to Page v. Smith, a case which he said “did not have the present question in mind”.Footnote ⁹⁷ Instead, his Lordship argued that liability should not be extended to rescuers because it would be difficult to draw a clear line between rescuers and bystanders, and because in the light of the rejection of the claims of the bereaved relatives by the House in Alcock, such an extension would offend against ordinary people's notions of distributive justice.Footnote ⁹⁸ Lord Steyn shared this latter concern,Footnote ⁹⁹ but also took the unorthodox view that the decision in Page had been “plainly intended … to narrow the range of potential secondary victims”, and that following Page any claimant who could not establish that he had been in the range of foreseeable physical injury was by definition a secondary victim, and must satisfy the control mechanisms laid down in Alcock.Footnote ¹⁰⁰ It followed that the claims in White must fail. Since Lord Browne-Wilkinson agreed with both Lord Steyn and Lord Hoffmann, White is not a strong authority for Page v. Smith having a restrictive effect, and, as we have already explained, Lord Steyn's interpretation of Page cannot be accepted. In his dissenting opinion in White, Lord Goff said that it was “inconceivable” that Lord Lloyd had intended to lay down that presence within the range of foreseeable physical injury was a necessary attribute of a primary victim, a conclusion so plainly at odds with Lord Oliver's analysis in Alcock.Footnote ¹⁰¹ It was plain that Lord Lloyd's strategy had been “to expand recovery by primary victims” rather than to restrict it.Footnote ¹⁰²

Before we leave the issue of Page's restrictive effect, it should be noted that the courts have not treated Page as having had a limiting effect on one of the other categories of participant identified by Lord Oliver in Alcock, so-called “involuntary participants”. Although a number of cases decided after Page have placed limits on this category of claimant, none of these relate to the question of physical risk,Footnote ¹⁰³ and in a subsequent Scottish case, Salter v. UB Frozen and Chilled Foods Ltd, it was held that a pursuer who was not within the range of foreseeable physical injury could recover damages as a primary victim under this heading.Footnote ¹⁰⁴

C. Evaluating the Impact of Page

We have seen that the expansionary effect of the primary victim point in Page was that it led to people within the zone of danger created by the defendant's negligence being classified as primary victims even where the cause of their trauma was the injury or imperilment of another, and that although Page ought not to have had any restrictive effect at all, it was later used by Lord Steyn to justify limiting recovery by rescuers to those physically endangered in the course of the rescue. In our opinion, these two developments have added unnecessary complexity to the law, and are without rational justification. As regards the expansionary effect of Page, if the claimant's shock was caused by fear for another, it is difficult to see why the mere fact that he or she just happened to be in the physical danger zone merits classification as a primary victim, thereby enabling the claimant to circumvent the Alcock limits; the earlier distinction between shock caused by fear for oneself and shock caused by fear for another seems clearly to be preferable. In addition to cutting right across that distinction, and thereby adding to the complexity of the law, the Page focus on physical risk has also added uncertainty to the primary/secondary victim boundary, since in general it will be easier to tell what caused the claimant's shock than whether or not she was exposed to foreseeable physical danger.

Unsurprisingly, therefore, this aspect of the Page decision has been heavily criticised. The Law Commission, for example, said that it was “far from convinced that there is a valid reason for isolating those plaintiffs who came within the area of physical danger and treating them differently from those … who were not at any stage in physical danger”,Footnote ¹⁰⁵ while Teff has commented that linking primary victim status to physical imperilment marks “a retreat to the early twentieth century fixation on the ‘zone of danger’, a refusal to engage with modern science at odds with the protestations that the legal rules need to reflect advances in psychiatry”.Footnote ¹⁰⁶ Similarly, although there may be valid reasons for limiting recovery by rescuers, there is no logic in drawing the line at foreseeable physical risk. Suppose that after a train crash, two rescuers (A and B) do the same sort of work, A in carriage 1, B in carriage 2, and that both suffer psychiatric injury as a result of what they see. It subsequently transpires that while carriage 1 was unstable, and could have collapsed on A, B had been in no danger. Following White, A can recover, but B cannot. As Lord Goff recognised, this makes little sense.Footnote ¹⁰⁷ We might also note that the suggestion that recovery be limited to rescuers in physical danger had been specifically rejected by the Law Commission the year before White was decided,Footnote ¹⁰⁸ and that following White the Scottish Law Commission described the restriction as “hard to justify” and recommended its abolition.Footnote ¹⁰⁹

A. Bypassing the Assumption of Ordinary Fortitude

In psychiatric injury cases, the principal significance of the foreseeability aspect of Page is that a primary victim physically imperilled by the defendant's negligence no longer has to establish that psychiatric injury to a person of ordinary fortitude in their position was reasonably foreseeable. The circumvention of the assumption of ordinary fortitude in such cases is of particular importance, because susceptibility to psychiatric injury varies much more than susceptibility to physical injury: as the psychiatrist Simon Wessely points out, “in practice eggshell skulls themselves are few and far between. The same is not true of eggshell personalities.”Footnote ¹¹⁰ This insight is borne out by the case law following Page, in which actions by claimants who suffered psychiatric injury because they were unusually susceptible to it have been allowed on the grounds that they were in the area of foreseeable physical injury, even though in fact they suffered no physical harm.

A good example of such a case is Donachie v. Chief Constable of Greater Manchester Police.Footnote ¹¹¹ The claimant was a police detective who had been assigned the task of attaching a tracking device to the underside of a car which belonged to a gang of suspected criminals. At the time, the car was parked in the street near a pub in which the suspects were drinking, and there was a risk that they would come out of the pub in the course of the operation and attack the claimant, although this risk was reduced by the presence in the vicinity of a number of other officers. Unfortunately, owing to the negligence of the defendant, the batteries in the tracking device malfunctioned a number of times, with the result that the claimant had to go to the car nine times, thereby adding greatly to the stress of the situation. Unbeknown to the defendant, the claimant suffered from hypertension which rendered him particularly vulnerable to stress. After the incident, this caused him to suffer an abnormal psychiatric reaction, which in turn caused him to suffer a serious stroke. At first instance, his action for damages for personal injury failed on the grounds that neither the claimant's psychiatric reaction nor his stroke had been reasonably foreseeable consequences of the incident, but the Court of Appeal allowed his appeal, applying Page v. Smith. Since the defendant's negligence had exposed the claimant to a foreseeable risk of physical injury, the judge's finding that psychiatric harm had not been foreseeable was held to be irrelevant, as was the claimant's pre-existing vulnerability.

Two other cases in which this aspect of Page has been decisive are Schofield v. Chief Constable of West Yorkshire Police Footnote ¹¹² and A v. Essex CC.Footnote ¹¹³ The claimant in Schofield was a police officer, who developed post-traumatic stress disorder after seeing a colleague discharge a gun into a pile of bedding. Since the trial judge had found that the other officer's action had given rise to a foreseeable risk of physical injury to the claimant, the Court of Appeal held that she could recover regardless of whether her psychiatric illness had been reasonably foreseeable, and even though she may have had a psychologically vulnerable personality. In A, adoptive parents who suffered psychiatric injury as a result of the violent and destructive behaviour of a young boy placed with them by the defendant local authority sued the authority for not giving them adequate information about the boy when the placement was made. The Court of Appeal held that the limited duty of care that the authority owed in relation to the communication of such information had been breached, and that even though it was difficult to accept that psychiatric illness had been a foreseeable result of the breach, this did not matter because it had been foreseeable that the child might assault the claimants, and so Page v. Smith applied.

B. Page and the Fear of Future Harm Cases

However, the most troublesome consequence of the foreseeability aspect of Page has proven to be its implications for cases where psychiatric illness has been triggered by a fear of future harm.Footnote ¹¹⁴ The first such case to reach the courts was brought by a group of claimants who sued the Department of Health for psychiatric injury they suffered after finding out that they had been treated with a human growth hormone that might have been contaminated with a lethal dose of the Creutzfeldt-Jacob Disease virus. In Re Creutzfeldt-Jacob Disease Litigation,Footnote ¹¹⁵ Morland J. considered as a preliminary issue whether the defendants had owed the claimants a relevant duty of care. The judge took the view that although the claimants had clearly been exposed to the risk of physical injury, the facts of the case were so far removed from the factual situation in Page v. Smith or any factual situation envisaged in Page that it did not apply.Footnote ¹¹⁶ In particular, while the claimants' psychiatric illness resulted from a fear of future physical harm, in cases like Page all danger of physical injury had passed by the time the psychiatric illness developed. Furthermore, if the claimants were classified as primary victims, the ramifications would be incalculable; it would mean, for example, that if a foodstuff had been contaminated with a dangerous substance, the producer might be inhibited from warning the public of danger for fear that some of those who had eaten the food might bring a claim as a primary victim for psychiatric injury triggered by the warning, against which the producer could not raise the defence that psychiatric injury had been unforeseeable in a person of normal fortitude.Footnote ¹¹⁷ Nevertheless, Morland J. went on to hold that since the cohort of potential victims was small and on the facts psychiatric injury had been reasonably foreseeable in persons of normal fortitude, a duty of care had been owed to the claimants, some of whom went on to recover damages at trial.Footnote ¹¹⁸ Resolution of this kind of case was never going to be straightforward, but the judgment of Morland J. shows that Page v. Smith only adds to the difficulties, since at the very least it seems sensible to apply a test of foreseeability of psychiatric injury in a person of ordinary fortitude, and yet even that can only be done if an apparently arbitrary exception is carved out of the area of physical risk approach.

Confirmation of these difficulties was provided when the fear of future harm issue came before the House of Lords in Rothwell v. Chemical & Insulating Co. Ltd.Footnote ¹¹⁹ One of the claimants in Rothwell was suffering from depression which had arisen when he realised that he had been negligently exposed to asbestos dust by an employer and was now at risk of contracting an asbestos-related disease. The claimant tried to circumvent a finding by the trial judge that in these circumstances the onset of psychiatric illness had not been reasonably foreseeable by arguing that Page v. Smith applied. Although the House of Lords agreed with the judge that the claim should be dismissed because psychiatric injury had been unforeseeable, they refused to depart from Page, instead distinguishing it in a number of unprincipled and at times unfathomable ways. According to Lord Hoffmann, for example, Page applied only to foreseeable events which, viewed in prospect, were such as might cause physical injury or psychiatric injury or both, and decided that where such an event had in fact happened and had caused psychiatric injury, it was unnecessary to ask whether it was foreseeable that what actually happened would have that consequence. His Lordship then said that in the present case the foreseeable event was the contraction of an asbestos-related disease, and that since that event had not occurred – but was only apprehended by the claimant – Page did not apply. There are, however, two difficulties with this reasoning. The first is that the question in cases such as Page is not whether psychiatric or physical injury is a foreseeable consequence of an “event” brought about by the breach of duty, but whether it is a foreseeable consequence of the breach of duty itself. And the second is that even if such an “event” were the focus of the foreseeability inquiry in such a case, it is hard to see why the relevant event in Rothwell should be defined as the contraction of an asbestos-related disease, when it would surely be more natural to think of that as the reasonably foreseeable physical consequence of a different event, or sequence of events, namely the ingestion of asbestos fibres by the claimant in the workplace.Footnote ¹²⁰

The two ways in which Lord Hope distinguished Page were also problematic. The first was that whereas in Page the claimant's psychiatric illness had been precipitated by a stressful event – a road accident – the same was not true of the claimant's depression. But of course his depression was brought about by a stressful event for which the defendants were responsible, namely his being informed after an X-ray of the presence of pleural plaques which confirmed the degree of his asbestos exposure. And his Lordship's second argument, that the causal chain between the claimant's inhalation of the asbestos dust and the psychiatric injury “is stretched far beyond that which was envisaged in Page's case”,Footnote ¹²¹ is difficult to understand. Although lawyers use the metaphor of a “causal chain” being broken by an intervening event, it is hard to see what it means to say that such a chain has been “stretched”, or why this should matter if the stretching does not cause it to break.Footnote ¹²² Lord Hope also drew attention to the time gap (upwards of twenty years) between the inhalation of the asbestos by the claimant and the onset of his depression, but again it is difficult to see why this should make a difference, and there is nothing in Page to suggest that it does.

In practice, the most useful distinction drawn by their Lordships was that in Page the psychiatric injury was caused by what Lord Rodger referred to as “the immediate effects of a past traumatic event”,Footnote ¹²³ and Lord Mance as “an immediate consequence of an obvious accident, in which the claimant could foreseeably have been physically injured at the time”.Footnote ¹²⁴ The use of the word immediate here echoes the draft US Restatement, Third, Torts, which limits recovery under the “zone of danger” rule to situations in which the negligent conduct places the claimant “in immediate danger of bodily harm”, and where the risk of physical injury “has terminated and no future event exists that might trigger bodily harm”.Footnote ¹²⁵ A formulation along these lines seems effectively to exclude the fear of the future cases from the area of physical risk test, and doubtless one way or another Rothwell will be treated as having done this, so that at the very least such claims will be subject to a requirement of reasonable foreseeability of psychiatric injury. However, the fact remains that there was no principled distinction between the facts of Rothwell and Page. The Rothwell case demonstrates very clearly that, if taken to its logical conclusion, Page v. Smith produces wholly unsatisfactory outcomes, and the efforts of the House of Lords to avoid such an outcome have added yet further complexity and uncertainty to the law.Footnote ¹²⁶

Rothwell is not the only case in which problematic distinctions have been drawn in order to avoid the awkward implications of the foreseeability aspect of Page. In Coleman v. British Gas Services Ltd,Footnote ¹²⁷ an employee of the defendant had been careless when fitting a gas heater in the lounge of the claimants' house, with the result that over the next eight years an unknown quantity of carbon monoxide had leaked into the room. After the fault was discovered, the claimants became convinced that they had been the victims of carbon monoxide poisoning, and this belief exacerbated the anxiety and depression from which they were already suffering. An action by the claimants for the effects of carbon monoxide poisoning failed, but they also sought damages for the psychiatric injury they suffered after the discovery of the leak. Toulson J. took the view that since in the circumstances this type of injury had not been reasonably foreseeable, this claim should also be dismissed. However, to arrive at this result, the judge had to dispense with the claimants' argument that the risk of poisoning meant that Page applied. Although the extent of that risk remained unknown, the learned judge felt it necessary to distinguish Page, and did so in two ways. The first was that on the facts “the claimants' psychological deterioration was too remote from the exposure itself for it to be reasonable to regard the defendants as liable for it”,Footnote ¹²⁸ and the second was that the claimants “were not involved in some frightening or traumatic event, nor did they suffer injury (physical or psychological) as a result of shock in the ordinary sense of the word”.Footnote ¹²⁹ Furthermore, he pointed out, the logic of the claimants' argument would lead to odd results. Suppose, for example, that a hotel served bad food at a reception, and some of the guests were taken ill. Were an unaffected guest to find this out later, convince himself that the food he ate had caused various ailments, and then develop a psychiatric illness, he would be entitled to recover for this illness without establishing that it had been reasonably foreseeable. The same would be true of a hospital patient who wrongly convinced himself that a negligent delay in diagnosis had harmed him and then suffered psychiatric injury as a result.Footnote ¹³⁰ According to Toulson J., only a “perverted logic” could produce such unreasonable results. Unfortunately, this “perverted logic” happens to be the logic of Page v. Smith, and in Coleman we see yet again the difficulties which the foreseeability aspect of that decision has posed in psychiatric illness cases.

C. Criticism of the Foreseeability Aspect of Page

The foreseeability aspect of Page has come in for some stinging criticism from judges and academics alike. In White, Lord Goff said that it represented “a remarkable departure from … generally accepted principles”,Footnote ¹³¹ and Nicholas Mullany has written that “defendants should only be liable for that which they can reasonably foresee and therefore take steps to avoid”, describing this as a “fundamental tenet of negligence law”.Footnote ¹³² According to Nicholas McBride and Roderick Bagshaw, it is hard to see why psychiatric injury and physical injury should be treated as the same type of loss in the foreseeability context “when in almost every other context we recognise that there is a distinction between them”,Footnote ¹³³ and Alan Sprince argues that in the case of psychiatric injury the assumption of ordinary fortitude in particular is justified.Footnote ¹³⁴

It is also noteworthy that both the High Court of Australia (in Tame v. New South Wales Footnote ¹³⁵) and the Supreme Court of Canada (in Mustapha v. Culligan of Canada Ltd Footnote ¹³⁶) have recently reaffirmed the requirement of foreseeability of psychiatric injury and the assumption of ordinary fortitude that goes with it. In Tame, McHugh J. said that abandoning the normal fortitude test “would place an undue burden on social action and communication”, and impose an intolerable burden on individual autonomy: ordinary people were entitled to act on the basis that there would be a normal reaction to their conduct.Footnote ¹³⁷ It would be contrary to principle to hold defendants liable in negligence for risks of injury of which they neither knew nor ought to have known, and to repudiate the test was to repudiate the touchstone of the common law doctrine of negligence – reasonable conduct.Footnote ¹³⁸ And according to McLachlin CJ in Mustapha, by drawing the line for compensability of damages at reasonable foreseeability, the law of negligence sought to impose a result which was both fair to plaintiffs and defendants, and socially useful.Footnote ¹³⁹ The ordinary fortitude standard also remains a feature of the law on psychiatric injury in the United States.Footnote ¹⁴⁰