¹ [1996] A.C. 155 (HL).

² Page v. Smith has been expressly rejected in Australia, and not accepted in any other common law jurisdiction: Peter Handford, Mullany and Handford's Tort Liability for Psychiatric Damage, 2nd ed. (Sydney 2006), para. 5.650. In Simmons v. British Steel plc [2004] UKHL 20, [2004] I.C.R. 58, Page was accepted as part of Scots law, although this was not necessary for the decision. For commentaries on Page v. Smith, see PeterHandford, , “A New Chapter in the Foresight Saga: Psychiatric Damage in the House of Lords” (1996) 4 Tort L. Rev. 5Google Scholar; Mullany, Nicholas J., “Psychiatric Damage in the House of Lords—Fourth Time Unlucky: Page v. Smith” (1995) 3 Journal of Law and Medicine 112Google Scholar; Trindade, F.A., “Nervous Shock and Negligent Conduct” (1996) 112 L.Q.R. 22Google Scholar and other pieces cited by Handford (op. cit., 2006), at para. 1.130.

³ [1993] P.I.Q.R. Q55 (QBD).

⁴ This last point was particularly significant, as it was generally agreed that the condition could be triggered by a virus, but not that it could be triggered by stress or trauma. There appear to be no subsequent reported tort cases where it has been claimed that CFS was caused by negligence. The subsequent handling by employers of employees known to have CFS has, however, given rise to claims.

⁵ [1993] P.I.Q.R. Q55 (QBD), Q73.

⁶ Ibid., at Q73–Q74.

⁷ R.W.M. Dias (ed.), Clerk and Lindsell on Torts, 16th ed. (London 1989), para. 10-12 and commentary in the second supplement. Otton J. did not name the cases. Paragraph 10-12 of Clerk and Lindsell dealt with the “arbitrary limitation” that injury from shock has to be reasonably foreseeable “with reference to an ordinarily strong nerved person” (with a footnote reference to Bourhill v. Young [1943] A.C. 92 (HL), 110 per Lord Wright), although “if even such a person would have been shocked, then a hypersensitive person may recover for the full extent of the shock produced by such sensitivity”.

⁸ [1993] P.I.Q.R. Q55 (QBD), Q74.

⁹ [1970] 3 All E.R. 508 (QBD).

¹⁰ [1993] P.I.Q.R. Q55 (QBD), Q74.

¹¹ Ibid., at Q74–Q75.

¹² Presumably the defendant's insurers had paid for the cost of the written-off Volvo. The claim pursued was just for “illness”.

¹³ Whether CFS is properly to be regarded as a physical or psychiatric condition is itself unclear; it was treated as the former in Page v. Smith, where counsel for the defendant, Colin Mackay QC, conceded that “the plaintiff's symptoms were entirely physical” ([1996] A.C. 155 (HL), 158).

¹⁴ The fact that a claimant is physically injured in a car accident should not mean that she can simply add on claims on a parasitic basis for other harms suffered as a result of the accident (as distinct from the physical injuries). The decision in Schneider v. Eisovitch [1960] 2 Q.B. 430 (QBD) recognised such a parasitic claim, allowing a wife injured and rendered unconscious in a car accident to recover damages in respect of psychiatric harm caused by hearing of the death of her husband in the crash. This reasoning was criticised in a number of notes on the case (see J.A. Jolowicz [1960] C.L.J. 156, A.L. Goodhart (1960) 76 L.Q.R. 187, G. Dworkin (1960) 23 M.L.R. 317, H.W. Burnett (1960) 38 Can. Bar Rev. 602) and a more orthodox approach was taken in Rowe v. McCartney [1976] 2 N.S.W.L.R. 72 (NSWCA), where it was assumed that a car owner who suffered depression after a road accident because she felt guilty about allowing a friend seriously injured in the crash to drive her car had to establish that her depression was reasonably foreseeable, even though she had also been physically injured in the accident. Schneider v. Eisovitch was not relied on either by Geoffrey Lane J. in Malcolm v. Broadhurst [1970] 3 All E.R. 508 (QBD) or by Otton J. in Page.

¹⁵ Dulieu v. White & Sons [1901] 2 K.B. 669 (DC); Bourhill v. Young [1943] A.C. 92 (HL). Hoffmann L.J. was clear on this point in the Court of Appeal in Page: see [1994] 4 All E.R. 522, 549.

¹⁶ On the basis that Otton J.'s finding that it was not a trivial accident itself meant that the harm had been foreseeable. This was not made crystal clear at first instance but was the ultimate finding of a majority of the House of Lords. In the House of Lords, Lord Lloyd regarded Otton J. as having ruled on the point ([1996] 1 A.C. 155, 196–197), although Hoffmann L.J. in the Court of Appeal thought otherwise ([1994] 4 All E.R. 522, 552).

¹⁷ See text accompanying note 8 above (“the defendant must take the plaintiff as he finds him”).

¹⁸ See discussion in A.M. Dugdale and M.A. Jones (eds), Clerk and Lindsell on Torts, 19th ed. (London 2006), paras 2-132–2-138. The first proposition is an application of a recognised gloss on the Wagon Mound principle; the eggshell skull principle only has a real life of its own through the second proposition, and it would be helpful if usage of the label were confined to that proposition.

¹⁹ [1970] 3 All E.R. 508 (QBD).

²⁰ Ibid., p. 511 per Geoffrey Lane J.

²¹ See note 7 above.

²² See text accompanying notes 66–71 below.

²³ [1994] 4 All E.R. 522 (CA) (Ralph Gibson, Farquharson and Hoffmann L.JJ.).

²⁴ [1953] 1 Q.B. 429 (CA), 441.

²⁵ [1961] A.C. 388 (PC), 426 per Viscount Simonds.

²⁶ His Lordship referred to this as the “familiar ‘eggshell skull’ rule” ([1994] 4 All E.R. 522 (CA), 550), but it is submitted that it is the aspect of that “rule” that overlaps with the Wagon Mound principle: see note 18 above and accompanying text.

²⁷ [1994] 4 All E.R. 522 (CA), 554.

²⁸ Reminiscent of the widely criticised approach of the majority of the Court of Appeal to the facts in King v. Phillips [1953] 1 Q.B. 429 (CA): see e.g. Goodhart, A.L., “Emotional Shock and the Unimaginative Taxicab Driver” (1953) 69 L.Q.R. 347Google Scholar.

²⁹ [1996] 1 A.C. 155 (HL).

³⁰ Ibid., p. 158 (argument of Colin Mackay QC).

³¹ Ibid., p. 171 (argument of Julian Priest QC).

³² Ibid., p. 167.

³³ King v. Phillips [1953] 1 Q.B. 429 (CA), 441 per Denning L.J. (endorsed by Viscount Simonds in The Wagon Mound (No. 1) [1961] A.C. 388 (PC), 426); Mount Isa Mines Ltd v. Pusey (1970) 125 C.L.R. 383 (HCA), 402 per Windeyer J.; Jaensch v. Coffey (1984) 155 C.L.R. 549 (HCA), 595 per Deane J. His Lordship might also have cited Brennan J. in Jaensch v. Coffey (at p. 566); Marshall v. Lionel Enterprises Inc. (1971) 25 D.L.R. (3d) 141 (Ont. HC); and Rowe v. McCartney [1976] 2 N.S.W.L.R. 72 (NSWCA), 83–84 per Samuels J.A.

³⁴ [1996] 1 A.C. 155 (HL), 169.

³⁵ Ibid., p. 171.

³⁶ Ibid., p. 175.

³⁷ Wilkinson v. Downton [1897] 2 Q.B. 57 (QBD), 59 per Wright J.; Bourhill v. Young [1943] A.C. 92 (HL), 110 per Lord Wright; McLoughlin v. O'Brien [1983] 1 A.C. 410 (HL), 422 per Lord Wilberforce.

³⁸ [1996] 1 A.C. 155 (HL), 178.

³⁹ Ibid., p. 180.

⁴⁰ Ibid., p. 184.

⁴¹ Ibid., p. 187.

⁴² Ibid.

⁴³ Ibid., p. 189.

⁴⁴ Ibid.

⁴⁵ Ibid.

⁴⁶ Ibid., pp. 190–196.

⁴⁷ Ibid., p. 197.

⁴⁸ Ibid.

⁴⁹ Ibid., p. 170.

⁵⁰ Ibid., p. 182.

⁵¹ Ibid., p. 181.

⁵² Ibid., p. 182.

⁵³ Ibid., p. 183.

⁵⁴ Page v. Smith (No. 2) [1996] 1 W.L.R. 855 (CA).

⁵⁵ See note 33 above.

⁵⁶ The English cases were Dulieu v. White & Sons [1901] 2 K.B. 669 (DC); Schneider v. Eisovitch [1960] 2 Q.B. 430 (QBD); and Brice v. Brown [1984] 1 All E.R. 997 (CA). The most extended discussion of the concept was in McFarlane v. EE Caledonia Ltd [1994] 2 All E.R. 1 (CA), where the claimant was held not to be a primary victim.

⁵⁷ For an excellent critical discussion of the interpretation of the precedents by Lord Lloyd, see Peter Handford, Mullany and Handford's Tort Liability for Psychiatric Damage, 2nd ed. (Sydney 2006), paras 5.570–5.600, noting “a solid wall of authority in favour of the test of reasonable foreseeability of psychiatric injury”.

⁵⁸ See [1996] 1 A.C. 155 (HL), 197 per Lord Lloyd.

⁵⁹ A related oddity is that it is not obvious that Otton J. actually espoused the new rule attributed to him by the majority in the House.

⁶⁰ See [1996] 1 A.C. 155 (HL), 196–197 per Lord Lloyd.

⁶¹ See text to note 52 above.

⁶² This would simply rest on recognition of this approach in practice. Appellate courts cannot properly lay down general binding rules on issues of fact: Qualcast (Wolverhampton) Ltd v. Haynes [1959] A.C. 743 (HL).

⁶³ See text to note 41 above.

⁶⁴ That Lord Lloyd may have misunderstood the eggshell skull principle was suggested by Lord Goff in White v. Chief Constable of the South Yorkshire Police [1999] 2 A.C. 455 (HL), 476. See also the Scottish Law Commission, Damages for Psychiatric Injury (Scot Law Com No. 196, 2004), para. 2.16.

⁶⁵ [1960] 2 Q.B. 430 (QBD).

⁶⁶ See [1996] A.C. 155 (HL), 189 (“In the case of physical injury there is no such requirement. The negligent defendant … takes his victim as he finds him”).

⁶⁷ For this important qualification, which could be thought in itself to reveal the falsity of Lord Lloyd's analysis, see e.g. Mustapha v. Culligan of Canada Ltd. [2008] SCC 27, [2008] 2 S.C.R. 114, at [17] per McLachlin C.J.

⁶⁸ The ordinary fortitude test originated in the speech of Lord Wright in Bourhill v. Young [1943] A.C. 92 (HL), 109–110, who reasoned by analogy from the example of a “bleeder” abnormally susceptible to physical injury.

⁶⁹ Law Commission, Liability for Psychiatric Illness (Law Com No. 249, 1998), para. 5.26 (allowing the defendant to assume that the claimant is a person of ordinary fortitude “is best interpreted as meaning nothing more than that, in deciding whether psychiatric illness was reasonably foreseeable … one can take into account the robustness of the population at large to psychiatric illness”).

⁷⁰ See Tame v. New South Wales [2002] HCA 35, (2002) 211 C.L.R. 317, at [16] per Gleeson C.J., at [95] per McHugh J., at [189] per Gummow and Kirby JJ. The position of Hayne J. (at [273]–[275]) is less clear.

⁷¹ Mustapha v. Culligan of Canada Ltd [2008] SCC 27, [2008] 2 S.C.R. 114, at [15]. See also White v. Chief Constable of the South Yorkshire Police [1999] 2 A.C. 455 (HL), 477 per Lord Goff.

⁷² [1961] A.C. 388 (PC).

⁷³ Lord Lloyd seemed to regard the new rule as one of duty: see [1996] A.C. 155 (HL), 187. There was no suggestion that different approaches might apply when determining foreseeability as between duty and remoteness.

⁷⁴ This point is made by Lord Goff as part of his extended critique of Page v. Smith in White v. Chief Constable of the South Yorkshire Police [1999] 2 A.C. 455 (HL), 475.

⁷⁵ Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310 (HL), 406–408.

⁷⁶ See e.g. Goodhart, A.L., “The Shock Cases and Area of Risk” (1953) 16 M.L.R. 14CrossRefGoogle Scholar, 22–24; and Burnett, note 14 above, pp. 605–606.

⁷⁷ [1992] 1 A.C. 310 (HL).

⁷⁸ Ibid., p. 407.

⁷⁹ Ibid., p. 408.

⁸⁰ Ibid. See also p. 396, where Lord Keith refers to harm suffered “by the infliction of physical injury, or the risk of physical injury, upon another person”.

⁸¹ See Mullany, note 2 above, p. 115 (“Problems of proximity plagued the Hillsborough litigation and it was in the course of analysing these difficulties that Lord Oliver subdivided psychiatric injury claimants into two categories”).

⁸² See e.g. Keen v. Tayside Contracts [2003] ScotCS 55, at [57] per Lady Paton. See also White v. Chief Constable of the South Yorkshire Police [1999] 2 A.C. 455 (HL), 473 per Lord Goff.

⁸³ This point has been made by judges a number of times: see e.g. White v. Chief Constable of the South Yorkshire Police [1999] 2 A.C. 455 (HL), 504, where Lord Hoffmann says that the Alcock criteria “contemplate that the injury has been caused in consequence of death or injury suffered … by someone else”. See also Farrell v. Avon HA [2001] Lloyd's Rep. Med. 458 (QBD), 471 per Bursell J.; and Re Organ Retention Group Litigation [2004] EWHC 644 (QB), [2005] Q.B. 506, at [198] per Gage J. See further, Nolan, Donal, “Reforming Liability for Psychiatric Injury in Scotland: a Recipe for Uncertainty?” (2005) 68 M.L.R. 983CrossRefGoogle Scholar, 990–991.

⁸⁴ See Campbell v. North Lanarkshire Council [2000] S.C.L.R. 373 (OH), 380 per Lord Reed.

⁸⁵ (1997) 39 B.M.L.R. 146 (CA).

⁸⁶ Ibid., p. 157.

⁸⁷ Ibid., p. 152.

⁸⁸ See also Campbell v. North Lanarkshire Council [2000] S.C.L.R. 373 (OH), where the pursuer suffered psychiatric injury after seeing the aftermath of an explosion in a switch room in which his workmates had been terribly injured. As the pursuer had himself been physically imperilled by the defenders' negligence, he was treated as a primary victim, and according to Lord Reed (at p. 381) it was “not necessary to prove that the psychiatric injury was caused by the perception of personal danger”. Contrast the draft US Restatement, Third, Torts: Liability for Physical and Emotional Harm (PFD No. 1), § 46(a): “An actor whose negligent conduct causes serious emotional disturbance to another is subject to liability to the other if the conduct places the other in immediate danger of bodily harm and the emotional disturbance results from the danger” (emphasis added).

⁸⁹ Trindade, note 2 above, p. 24. For other examples of the potentially broad scope of the primary victim category, see Rogers, W.V.H., “Page v. Smith: Shock, Foresight and Vulnerable Personalities” (1995) 3 Torts L.J. 149Google Scholar, 154–155; and Nolan, Donal, “Taking Stock of Nervous Shock” (1999) 10 King's College L.J. 112, 116Google Scholar.

⁹⁰ Nor, applying the foreseeability aspect of Page, would such a person have to establish that psychiatric injury had been reasonably foreseeable in a person of ordinary fortitude: see text accompanying notes 110–113 below.

⁹¹ See also Harvey Teff, Causing Psychiatric and Emotional Harm: Reshaping the Boundaries of Legal Liability (Oxford 2009), p. 77.

⁹² 30 November 2001 (QBD).

⁹³ Mulheron, Rachel, “The ‘Primary Victim’ in Psychiatric Illness Claims: Reworking the ‘Patchwork Quilt’” (2008) 19) King's L.J. 81CrossRefGoogle Scholar is surely right to argue (at p. 98) that there is no distinction in this respect between the claimant in Fagan and the claimant in Young v. Charles Church (Southern) Ltd (1997) 39 B.M.L.R. 146 (CA).

⁹⁴ See also Teff, op. cit., pp. 80–82.

⁹⁵ See Hegarty v. EE Caledonia Ltd [1997] 2 Lloyd's Rep. 259 (CA), where Brooke L.J. makes it clear (at p. 266) that the primary victim category encompasses both those who pass the Page test of physical danger and those who reasonably fear for their own safety. See also Hunter v. British Coal Corp. [1999] Q.B. 140 (CA), 163 per Hobhouse L.J.; White v. Chief Constable of the South Yorkshire Police [1999] 2 A.C. 455 (HL), 463 per Lord Griffiths; Campbell v. North Lanarkshire Council [2000] S.C.L.R. 373 (OH), 381 per Lord Reed; and Law Com No. 249, note 69 above, para. 2.16. For a similar analysis that predates Page, see McFarlane v. EE Caledonia Ltd [1994] 2 All E.R. 1 (CA), 10 per Stuart-Smith L.J.

⁹⁶ [1999] 2 A.C. 455 (HL).

⁹⁷ Ibid., p. 505.

⁹⁸ Ibid., pp. 508–511.

⁹⁹ According to his Lordship (ibid., p. 495), the distinction between the two types of case “might perplex the man on the Underground”.

¹⁰⁰ Ibid., pp. 496–497.

¹⁰¹ Ibid., p. 479.

¹⁰² Ibid., p. 480 (emphasis in original).

¹⁰³ The limits are: (1) that the claimant must be placed by the breach of duty in a position where he would consider himself personally responsible for the accident, so that the trauma is caused by anxiety and guilt about the event (Robertson v. Forth Road Bridge Joint Board [1995] S.C.L.R. 466 (IH)); (2) that the claimant's belief that he was responsible must be reasonable as well as genuine (Monk v. PC Harrington Ltd [2008] EWHC 1879 (QB), [2009] P.I.Q.R. P3); and (3) that the claimant must be proximate in time and space to the event that causes the shock (Hunter v. British Coal Corp. [1999] Q.B. 140 (CA)).

¹⁰⁴ 2004 SC 233 (OH). See also W v. Essex CC [2001] 2 A.C. 592 (HL), where the House of Lords held that it was arguable that the claimants might qualify for recovery as primary victims by virtue of their involuntary participation in the relevant events, even though they had not been exposed to any physical risk.

¹⁰⁵ Law Com No. 249, note 69 above, para. 5.48.

¹⁰⁶ Teff, note 91 above, p. 82. For other academic criticism, see Trindade, note 2 above, pp. 24–25; Feng, Tan Keng, “Nervous Shock to Primary Victims” [1995] Singapore J.L.S. 649, 653; Nicholas J. Mullany and Peter R. Handford, “Hillsborough Replayed” (1997) 113 L.Q.R. 410Google Scholar, 416; Hilson, Chris, “Nervous Shock and the Categorisation of Victims” (1998) 6 Tort L. Rev. 37, 46–47Google Scholar; Tony Weir, An Introduction to Tort Law, 2nd ed. (Oxford 2006), p. 50; Allan Beever, Rediscovering the Law of Negligence (Oxford 2007), p. 406; and Michael A. Jones, “Liability for Psychiatric Damage: Searching for a Path Between Pragmatism and Principle” in Jason Neyers et al. (eds), Emerging Issues in Tort Law (Oxford 2007), p. 119.

¹⁰⁷ White v. Chief Constable of the South Yorkshire Police [1999] 2 A.C. 455 (HL), 487. Lord Griffiths described the physical danger restriction as “very artificial” (ibid., p. 465).

¹⁰⁸ Law Com No. 249, note 69 above, para. 7.3.

¹⁰⁹ Scot Law Com No. 196, note 64 above, paras 2.18, 3.53.

¹¹⁰ Wessely, Simon, “Liability for Psychiatric Illness” (1995) 39 Journal of Psychosomatic Research 659CrossRefGoogle ScholarPubMed, 667. See also Tame v. New South Wales [2002] HCA 35, (2002) 211 C.L.R. 317, at [334] per Callinan J.; and Mustapha v. Culligan of Canada Ltd [2008] SCC 27, [2008] 2 S.C.R. 114, at [14] per McLachlin C.J.

¹¹¹ [2004] EWCA Civ 405.

¹¹² [1999] I.C.R. 193 (CA).

¹¹³ [2003] EWCA Civ 1848, [2004] 1 W.L.R. 1881.

¹¹⁴ See generally, Nicholas Mullany, “Fear for the Future: Liability for Infliction of Psychiatric Disorder” in Nicholas Mullany (ed.), Torts in the Nineties (Sydney 1997).

¹¹⁵ (1998) 41 B.M.L.R. 157 (QBD). See Janet O'Sullivan, “Liability for Fear of the Onset of Future Medical Conditions” (1999) 15 Professional Negligence 96.

¹¹⁶ (1998) 41 B.M.L.R. 157 (QBD), 164.

¹¹⁷ Ibid., p. 165.

¹¹⁸ Andrews v. Secretary of State for Health (19 June 1998, QBD).

¹¹⁹ [2007] UKHL 39, [2008] 1 A.C. 281. See Jones, Michael A., “Liability for Future Disease?” (2008) 24 Professional Negligence 13Google Scholar.

¹²⁰ For a similar criticism, see Nicholas J. McBride and Roderick Bagshaw, Tort Law, 3rd ed. (Harlow 2008), p. 575.

¹²¹ Rothwell v. Chemical & Insulating Co. Ltd [2007] UKHL 39, [2008] 1 A.C. 281, at [55].

¹²² Further difficult distinctions were drawn by Lord Scott, who said (ibid., at [77]) that while in Page the psychiatric illness had been a direct result of the collision, in the instant case it had not been caused directly by the asbestos exposure but had resulted from the claimant's “worry about his liability to future illness and his reaction to the X-rays and medical reports which had disclosed the presence of pleural plaques in his lungs”; and by Lord Rodger, who said (ibid., at [96]) that while in Page the mechanism (the collision) which caused the onset of the psychiatric harm was the same mechanism as had been liable to result in physical harm, in this case the risk of physical harm was caused by the asbestos exposure but his depression was caused by him being told about the plaques and the events following on that.

¹²³ Ibid., at [95].

¹²⁴ Ibid., at [104].

¹²⁵ Note 88 above, § 46(a) and comment h. See also comment c (“Exposure to a toxic substance requiring a significant latency period does not satisfy the zone of danger requirement”). Note, however, that while the House of Lords in Rothwell decided only that claims for psychiatric illness arising out of fear of future harm should be subject to a test of foreseeability of psychiatric injury, the draft Restatement rules them out altogether.

¹²⁶ As Michael Jones put it in a commentary on the Rothwell decision, distinguishing Page provided “a solution of sorts to the immediate issue” but did “nothing to put the law on a more rational basis” (note 119 above, p. 26).

¹²⁷ 27 February 2002 (QBD).

¹²⁸ Ibid., at [53].

¹²⁹ Ibid., at [57]. Toulson J. also argued (at [58]) that it was circular to describe the claimants as primary victims because that assumed that they were victims at all, and yet the leak had not caused them any (physical) harm. This argument is, however, difficult to accept, since it is surely the psychiatric injury to which the term “primary victim” refers, and of course the claimant in Page suffered no physical harm either.

¹³⁰ A further example of an unreasonable result that apparently follows from the logic of Page is provided by Alan Sprince, “Page v. Smith—Being Primary ‘Colours’ House of Lords' Judgment” (1995) 11 Professional Negligence 124, 130, who points out that Page would seem to apply where an architect's defective design caused the ceiling in someone's living room to fall down, and that person (although unhurt) then suffered an entirely unforeseeable psychiatric illness.

¹³¹ [1999] 2 A.C. 455 (HL), 473. See also ibid., p. 474 (“the revolutionary thesis in Page v. Smith”); Law Com No. 249, note 69 above, para. 5.11 (“a radical departure from the previously understood position”); Mullany, Nicholas J., “English Psychiatric Injury Law—Chronically Depressing” (1999) 115 L.Q.R. 30Google Scholar, 32, 35 (Page “clouded settled issues … of foresight of harm” and represented an “unprecedented departure from orthodox reasoning”). Cf. Lord Griffiths' defence of Page in White as a “sensible development of the law” ([1999] 2 A.C. 455 (HL), 463).

¹³² Mullany, note 2 above, p. 116. See also Jones, note 119 above, p. 26 (arguing that Page has produced distortions to “basic legal principle by permitting claimants … to recover for unforeseeable psychiatric harm”).

¹³³ McBride and Bagshaw, note 120 above, pp. 573–574.

¹³⁴ Sprince, note 130 above, p. 129. See also Mulheron, note 93 above, p. 108.

¹³⁵ [2002] HCA 35, (2002) 211 C.L.R. 317.

¹³⁶ [2008] SCC 27, [2008] 2 S.C.R. 114.

¹³⁷ Tame v. New South Wales [2002] HCA 35, (2002) 211 C.L.R. 317, at [110].

¹³⁸ Ibid., at [111]–[113]. See also at [273], where Hayne J. describes the benchmark of ordinary fortitude as a “very important limit to the duty of care to prevent psychiatric injury”, which should not be abandoned.

¹³⁹ [2008] SCC 27, [2008] 2 S.C.R. 114, at [16].

¹⁴⁰ Dan Dobbs, The Law of Torts (St Paul, Minn. 2000), pp. 851–852.

¹⁴¹ Although Lord Steyn relied on a restrictive view of this aspect of Page v. Smith in White, Lord Hoffmann did not, and ultimately the limitation on rescuer recovery in that case was based on special considerations of policy (see Scot Law Com No. 196, note 64 above, para. 3.52). It follows that departure from Page on the primary victim point would not require that the decision in White be reconsidered.

¹⁴² Scot Law Com No. 196, note 64 above, para. 3.44.

¹⁴³ Ibid., para. 3.36.

¹⁴⁴ Law Com No. 249, note 69 above, para. 5.15.

¹⁴⁵ Rothwell v. Chemical & Insulating Co. Ltd [2007] UKHL 39, [2008] 1 A.C. 28, at [52].

¹⁴⁶ Ibid., at [104].

¹⁴⁷ Ibid., at [32].

¹⁴⁸ [2008] UKHL 13, [2008] A.C. 884, at [54].

¹⁴⁹ Ibid., at [46].