[1924]	548
1 K.B.

[KING'S BENCH DIVISION]

BRANDON AND ANOTHER v. OSBORNE GARRETT AND COMPANY, LIMITED, AND OTHERS.

[1922. B. 4861.]

1924 Jan. 16, 17.

SWIFT J.

Negligence - Injury without actual Impact - Strain caused to Wife in attempting to rescue Husband from Danger - Remoteness of Damage.

While the plaintiffs, husband and wife, were in a shop as customers a skylight in the roof of the shop was broken, owing to the negligence of contractors engaged in repairing the roof, and a portion of the glass fell and struck the husband, causing him a severe shock. His wife, who was standing close to him at the time, was not touched by the falling glass, but, reasonably believing her husband to be in danger, she instinctively clutched his arm, and tried to pull him from the spot. In doing this she strained her leg in such a way as to bring about a recurrence of thrombosis. In an action to recover damages from the contractors:-

Held, that the husband was entitled to damages, and that the wife was also entitled to damages, inasmuch as what she did was, in the circumstances, a natural and proper thing to do.

Jones v. Boyce (1816) 1 Stark. 493 followed.

Woods v. Caledonian Ry. Co. (1886) 13 R. 1118; Wilkinson v. Kinneil Cannel and Coking Coal Co. (1897) 24 R. 1001; and Eckert v. Long Island Railroad Co. (1871) 43 N. Y. 502 referred to.

ACTION tried by Swift J.

The plaintiffs, husband and wife, claimed damages for injuries sustained by them while they were in a shop occupied by the first defendants.

On July 25, 1922, the plaintiffs were shopping in the premises in question. On that date the second defendants, George Parker & Sons, Ld., were carrying out repairs to the roof of the department to which the plaintiffs were directed. While the plaintiffs were in that department a portion of the skylight, forming part of the roof, fell, and a piece of glass struck the male plaintiff, and although it did not cut him it caused him a severe shock. He was naturally of a nervous disposition, and had suffered for some years from neurasthenia, and in consequence he suffered a greater shock than a normal person would have done. At the moment when the male plaintiff was struck by the falling glass his wife was standing quite close to him. She was not struck or touched by the

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1 K.B.	BRANDON v. OSBORNE GARRETT & CO.

falling glass, but on seeing it falling she immediately and instinctively put out her hand and clutched her husband's arm and tried to pull him away from the spot. In this effort to pull her husband out of danger, which she reasonably believed to exist, she strained her leg in such a way as to bring about a recurrence of thrombosis from which she had at one time suffered, but from which she had been free for some years.

The judge found as a fact that the fall of glass on to the male plaintiff was due to the negligence of the second defendants' workmen in allowing a piece of wood to fall on to the glass roof, which they had not protected, as they ought to have done. The judge further found that the male plaintiff's injuries were caused by that negligence, and therefore that he was entitled to damages.

Before the trial the plaintiffs intimated that they would not claim damages against the first defendants, but the action was not discontinued against them.

Morle and Groves for the plaintiffs.

Liversidge for the first defendants.

Compston K.C. and Harold Simmons for the second defendants. As to the claim of the female plaintiff, it is submitted that it is not maintainable. She was not touched by the falling glass, was never in danger, and was under no reasonable apprehension of danger, and her injury is too remote a consequence of the alleged negligence. There is no reported authority upon the point, but the unreported case of Smith v. Johnson & Co. (1), referred to by Wright J. in Wilkinson v. Downton (2), supports the defendants' contention. Wright J. said: "In Smith v. Johnson & Co., decided in January last, Bruce J. and I held that where a man was killed in the sight of the plaintiff by the defendant's negligence, and the plaintiff became ill, not from the shock from fear of harm to himself, but from the shock of seeing another person killed, this harm was too remote a consequence of the negligence."

(1) Unreported.

(2) [1897] 2 Q. B. 57, 61.

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1 K.B.	BRANDON v. OSBORNE GARRETT & CO.

In Sharp v. Powell (1) Bovill C.J. said that, generally speaking, a person who commits a wrongful act "is not liable for damage which is not the natural or ordinary consequence of such an act, unless it be shown that he knows, or has reasonable means of knowing, that consequences not usually resulting from the act are, by reason of some existing cause, likely to intervene so as to occasion damage to a third person. Where there is no reason to expect it, and no knowledge in the person doing the wrongful act that such a state of things exists as to render the damage probable, if injury does result to a third person it is generally considered that the wrongful act is not the proximate cause of the injury, so as to render the wrongdoer liable to an action." Here there is no evidence that the alleged negligent workman knew that a man under the skylight had his wife standing near him and ought to have supposed that if glass fell the wife would do something which might result in injury to her. If a man is thrown into the sea owing to the negligence of those on board the ship in which he is a passenger, and another person jumps in to save him and as a consequence of doing so contracts pneumonia, he could not recover damages from the shipowners. Like the female plaintiff in this case, he voluntarily encountered the peril.

[SWIFT J. There appears to be direct authority in the Scottish and American Courts in favour of the female plaintiff's contention.]

Those cases are inconsistent with Sharp v. Powell (2), and should not be followed. They are clearly not binding authorities.

[They also cited Clinton v. Lyons & Co. (3)]

Groves in reply. The causa causans of the mischief was the negligence of the second defendants' workmen: Hill v. New River Co. (4) But for that negligence the female plaintiff would have done nothing. It is not correct to say that she never was under a reasonable apprehension of danger. In

(1) (1872) L. R. 7 C. P. 253, 258. [But see Polemis' Case [1921] 3 K. B. 560. - F. P.]

(2) L. R. 7 C. P. 253.

(3) [1912] 3 K. B. 198.

(4) (1868) 9 B. & S. 303.

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1 K.B.	BRANDON v. OSBORNE GARRETT & CO.

Dulieu v. White & Sons (1), where it was held that the wife of a publican who was serving behind the bar was entitled to maintain an action in respect of a nervous shock occasioned by fright, unaccompanied by actual impact, the shock being caused by the defendants' servants negligently driving a van into the public-house, Kennedy J. said (2): "I should not be prepared in the present case to hold that the plaintiff was entitled to maintain this action if the nervous shock was produced, not by the fear of bodily injury to herself, but by horror or vexation arising from the sight of mischief being threatened or done either to some other person, or to her own or her husband's property, by the intrusion of the defendants' van and horses." In this case the female plaintiff had not merely the sight of mischief, she feared for herself, and, further, she acted reasonably in trying to save her husband from further danger. If a person is guilty of negligence causing danger to a person he must be taken to anticipate that others will come forward and endeavour to rescue the person in danger.

[He referred to Pollock on Torts, 12th ed., pp. 38, 39.]

SWIFT J. In this case the two plaintiffs claim damages for personal injuries which each of them sustained, and sustained, it is alleged, through the negligence of the defendants, Parker & Sons, while they by their servants were working on the premises of the first defendants, Osborne Garrett & Co. [His Lordship stated the facts and continued:] It is argued for the defendants, Parker & Sons, that the female plaintiff is not entitled to recover, because nothing was done to her by the negligent act of the defendants' servants, her injury being caused by her intervening to pull her husband out of the danger she thought was threatening him. No danger, it is said, was threatening her. If she had been trying to escape from danger threatening herself it is not disputed that she would have been entitled to recover, but it is said that what brought about her injury was her own voluntary

(1) [1901] 2 K. B. 669.

(2) [1901] 2 K. B. 676.

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1 K.B.	BRANDON v. OSBORNE GARRETT & CO.	Swift J.

act in trying to assist her husband, whom she believed to be in danger. I have come to the conclusion that she is entitled to damages, notwithstanding that the injury was caused by her own intervention to save her husband, unless, indeed, it can be shown that her act amounted to contributory negligence. In such circumstances as these it would be for the jury to say whether, where the primary cause of the injury was the negligence of the defendants in breaking the glass roof so that portions of it fell on the male plaintiff and close to her, the injury to her leg was caused by an improper act of hers which contributed to the mischief. If she did something which a reasonable person in the circumstances ought not to have done she would not be entitled to damages, but if what she did was done instinctively and was in the circumstances a natural and proper thing to do, I think she is entitled to recover.

In my opinion this case is covered in principle by the statement of the law in Jones v. Boyce. (1) Lord Ellenborough there in substance directed the jury that if a person is placed by the negligence of the defendant in a position in which he acts under a reasonable apprehension of danger and in consequence of so acting is injured, he is entitled to recover damages, unless his conduct in all the circumstances of the case amounts to contributory negligence. If a person is not to be held guilty of contributory negligence because he, acting instinctively for his own preservation, does that which a reasonable man under those conditions would do, I cannot see why he should be any more held to be guilty of contributory negligence if he does his instinctive act for the preservation of his wife or child or even of a friend or stranger. Questions of this kind have arisen in other countries, and the cases there may properly be looked at for the purpose of seeing how they have been dealt with; and although those decisions are not binding upon me I am glad to find that they confirm the view which I hold is the law of England. In the Scottish case of Woods v. Caledonian Ry. Co. (2) a young woman was killed while endeavouring to drag a companion out of danger from an

(1) 1 Star. 493.

(2) 13 R. 1118; 23 S. L. R. 798.

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1 K.B.	BRANDON v. OSBORNE GARRETT & CO.	Swift J.

approaching train. Counsel for the railway company asked the judge to direct the jury that if the young woman went into a seen danger she was not entitled to recover damages, even if her object was to rescue her companion. This direction the judge refused to give, and exception was taken to his refusal. On a bill of exceptions it was held that the question what the object of the young woman was in being upon the line, and whether she was guilty of contributory negligence in being there, were not matters for direction in point of law, but were properly left for the consideration of the jury. A later case in the Scottish Courts was Wilkinson v. Kinneil Cannel and Coking Coal Co. (1) There damages were claimed from the defendant company for injury received by a boy while in their employment. It was averred that while the boy and a man, also in the company's employment, were standing on a stationary truck trimming coal, the boy observed an uncontrolled waggon approaching them with great speed on the same line of rails; that he in a moment of hurry and confusion incident to his surroundings and the extreme danger to himself and his fellow-workman jumped from the stationary truck, and seizing a wooden pit prop, attempted to stop the approaching waggon by inserting the prop between the spokes of one of the wheels; that the waggon was stopped within three or four feet of the stationary truck, but by reason of the sudden jerk caused by the stopping, the boy was thrown down and received serious injury; and that but for the insertion of the prop the two waggons would have come into violent collision, which would have been attended with great danger to the boy and his fellow-workman. There was a relevant averment of fault on the part of the company or those for whom they were responsible in allowing the waggon to run down under no control and at an improper rate of speed. It was there held by a majority of the judges that an issue should be allowed for the trial of the action, the three judges forming the minority being of opinion that the action was irrelevant, as the pursuer's averments showed that the boy, having got out of danger,

(1) 24 R. 1001; 34 S. L. R. 533.

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1 K.B.	BRANDON v. OSBORNE GARRETT & CO.	Swift J.

voluntarily performed an act outside the scope of his employment which resulted in his injury. There, it will be observed, it was left to the jury to say whether the boy in doing what he did, in the circumstances, was doing something which should be imputed to him as negligence contributing to the accident, which was caused in part and primarily by the company's negligence.

In the American case of Eckert v. Long Island Railroad Co. (1) the facts were that the plaintiff's husband, seeing a little child on the railway track and a train swiftly approaching, ran on to the track and threw the child clear, but was himself caught by the train and killed. The jury found negligence on the part of the railway company. It was contended that the deceased's negligence contributed to the injury. The majority of the Court held that the deceased "owed a duty of important obligation to this child to rescue it from its extreme peril, if he could do so without incurring great danger to himself." Two members of the Court dissented on the ground that "principles of law cannot yield to particular cases" and that the act of the deceased was "a voluntary act, the performance of a self-imposed duty, with full knowledge and apprehension of the risk incurred." I do not go as far as the majority of the Court there did in holding that there is a legal duty upon a person to save life if he can, although it is to be observed that Cockburn C.J. in Scaramanga & Co. v. Stamp (2) said that "the impulsive desire to save human life when in peril is one of the most beneficial instincts of humanity." I do not say that there is a legal duty to risk one's own life to save that of a stranger; indeed, I should unhesitatingly say there was not, but there may be a nearer approach to such a duty to save the life of one's child or wife or husband. In any event there may be a moral obligation which would so act upon the mind of any ordinary reasonable man that he would instinctively rush to the assistance of one in immediate peril through the negligent act of a third party. If he were injured by that negligent act of the third party and sued him, I think the real question

(1) 43 N. Y. 502; 3 Am. Rep. 721.

(2) (1880) 5 C. P. D. 295, 304.

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1 K.B.	BRANDON v. OSBORNE GARRETT & CO.	Swift J.

would be for a jury to decide, and that question would be - was the plaintiff in all the circumstances guilty of contributory negligence?

Without, however, determining these questions, it seems to me that where a person sustains injury through a combination of acts, some done by the defendants and some by himself, it is for the jury to say, having regard to the whole of the circumstances, whether (1.) the injury is the natural and probable consequence of the defendants' act, and (2.) whether the plaintiff has been guilty of contributory negligence. If in this case the female plaintiff had been standing in a place of perfect safety, and saw, as she says she did (although in this I think she exaggerated), the "glass raining down upon her husband," and had time to think what was the wisest thing to do, it might possibly be said that she was guilty of negligence by going into the danger; but, having regard to the place she was in and the frightening nature of the accident (for it was undoubtedly frightening even for people of steady nerves and strong legs), I think that acting instinctively as she did in clutching her husband's arm and trying to drag him out of danger, she did nothing wrong or anything that can be called contributory negligence. I therefore find in favour of the plaintiffs, and I assess the damages payable to the husband at 35l. and those payable to the wife at 25l.

Judgment for plaintiffs.

Solicitors for plaintiffs: Stanley Robinson & Commin.

Solicitors for both defendants: Leader, Plunkett & Leader.

J. S. H.