Case No: B3/2007/2661
Neutral Citation Number: [2008] EWCA Civ 368
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE SIMPKISS)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 3rd April 2008

Before:

LADY JUSTICE SMITH  DBE

- - - - - - - - - - - - - - - - - - - - -

Between:

	BOUMEDIEN	Respondent/Claimant
	
	- and -		
	
DELTA DISPLAY LTD	
Applicant/
Defendant

- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

Mr J Picton (instructed by Messrs Beachcroft) appeared on behalf of the Applicant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

- - - - - - - - - - - - - - - - - - - - -
Judgment
Lady Justice Smith  DBE:

1.	This is a renewed application for permission to appeal an order of HHJ Simpkiss at the Central London County Court in November 2007.  The judge found the defendant liable for psychiatric injury suffered by the claimant following an incident in December 2002. 

2.	The circumstances of the incident were that the claimant was in bed asleep in his ground floor bedroom in the middle of the night, when the defendant’s car crashed into the front garden wall of that and the adjacent property.  The claimant was not physically injured but was very shocked.  His immediate thoughts were that something was falling from upstairs or from the roof or that there had been an earthquake and that maybe the house was falling down.  He got out of bed, saw that his room was not damaged; went upstairs, found no damage there; looked out, saw two vehicles collided in the middle of the road;  went downstairs and outside and saw what had occurred at the front of his property.  The evidence showed that the defendant’s car had gone through the front garden wall by about half a metre but had then veered off across the road into collision with another vehicle.  It had not made contact with the bedroom window.  However, debris from the wall had collapsed towards the house and there was some, albeit not serious, damage to the window sill and window frame.  

3.	The judge held that this had been a frightening incident, particularly as the claimant was asleep at the time. The judge accepted expert evidence that the claimant had suffered shock leading to psychiatric illness and that finding in itself is not challenged.

4.	At the hearing, the defendant made much of the point that the claimant had not at first thought that his life was in danger.  His recollection was that he felt shocked when he saw the damage and realised what had happened: in other words, he felt shocked retrospectively.  However, the judge did not place much reliance on that and at paragraph 19 he said: 

“In the circumstances, it is difficult to place much reliance on the Claimant’s evidence about what he felt and when during the course and in the immediate aftermath of this accident, nor do I think it much matters.  He was involved in a scaring incident being woken up by a loud, unexplained bang from an impact that demolished the wall into the front of his house and caused damage to the sill of the bay window of the room in which he was sleeping.  His initial reaction on waking was that he had been involved in an earthquake.  He got up and investigated, not knowing whether the house had been hit and, if so, by what.  When he went outside he saw the damage and thought that he might have been killed.  At which stage he felt shock and what degree of shock he felt it is impossible for anyone, including the Claimant, to say.”
	
5.	The judge then considered the legal issues and said that there were two.  They were whether the claimant was a primary or a secondary victim and whether or not he was within the range of foreseeable physical injury?  He answered both of those questions in favour of the claimant, in effect holding that the defendant owed the claimant a duty of care because he was within the range of foreseeable injury.  Mr Picton submits that the judge erred in his application of the legal test.  He says that the judge reduced matters to a single question of foreseeability when he should have asked two separate questions.  These two questions were developed by reference to the speeches of  Lord Oliver in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 and that of Lord Lloyd in Page v Smith [1996] 1 AC 155.  The two questions which it is said should have been asked and answered are: 
(1) Was the injured claimant mediately or immediately involved in the accident as a participant? (2) Ought the defendant reasonably to have foreseen that his negligence would expose the claimant to the risk of personal injury, whether physical or psychiatric?

6.	I refused permission to appeal on paper saying that there was no real prospect of upsetting the judge’s conclusion that the claimant was a primary victim.  This morning, I have had an interesting discussion with Mr Picton but I remain of the view that his submission on this point is ill-founded.  Alcock is concerned with the question of “secondary victims”: that is, claimants who allege that they have suffered psychiatric harm as a result of seeing or hearing of an injury or death of a loved person.  This case is not concerned with any such issue.  I think that Mr Picton now accepts that, if this claimant was a victim of the defendant’s negligence it was as a primary or ordinary victim; no question arose of him being a secondary victim.  He could not claim to be a secondary victim caused by seeing or hearing damage to a wall.  

7.	In my view the judge was right when he said, as he did at paragraph 26 quoting Lord Browne-Wilkinson from Page v Smith, that the approach in all such cases as this should be the same: namely, whether the defendant can reasonably foresee that his conduct will expose the plaintiff to risk of personal injury, whether physical or psychiatric.  If the answer is yes then the duty is established even though the physical injury does not occur.  Mr Picton is not of course critical of that as a statement of the law but he submits that the test there set out does not sufficiently deal with the issue of proximity.  He does not accept that reasonable foreseeability of personal injury is essentially the same concept as proximity whereas my view is that the two are the same.  My view is that if the judge had answered the question as Lord Browne‑Wilkinson put it he could not have gone wrong in law. 

8.	However, as the result of the application this morning, greater emphasis has been placed on the judge’s consideration of that question at paragraph 28.  I have come to the conclusion that it is arguable that the judge did not properly apply his mind to the test as set out by Lord Browne-Wilkinson of reasonable foreseeability of personal injury.  He seems to have focussed only on the risk of physical injury.  For that reason and that reason alone I propose to grant permission.  

9.	I propose therefore to limit the grounds of appeal to paragraph 4.3 of Mr Picton’s most recent skeleton argument, which is his submission in response to my rejection of his written application. This ground is expressed much more clearly in the recent skeleton than it was in the original grounds of appeal or skeleton argument. 

Mr Picton: 

10.	My Lady, may I in that case invite the court to give me permission in precisely those terms?

Lady Justice Smith: 

11.	Yes.

Mr Picton: 

12.	And my apologies for not having immediately found the document I need to assist your Ladyship, but if your Ladyship limits it to 4.3?

Lady Justice Smith: 

12.	Permission to appeal is granted on the following ground, that the judge was wrong in law to conclude in paragraph 28 of his judgment that the circumstances of the accident gave rise to a reasonably foreseeable risk of injury to the claimant.  

13.	I add that although I am granting permission I do so because I do not think that the judge approached the question correctly in paragraph 28.  Whether the same conclusion would inevitably have been reached had he done so is a different matter.  
Order: Application granted.