With the benefit of foresight

The old saying 'More haste less speed' has a topical ring to it in legal circles following the recent House of Lords ruling in the case of road crash victim Ronald Page.

Page is seeking compensation over the condition myalgic ecephalomyelitis (ME) which he claims was brought on as a result of the road accident. The Law Lords have ruled that ME was a foreseeable outcome of the accident, and the courts should not distinguish between physical and psychiatric problems suffered by primary accident victims.

In doing so they overturned an Appeal Court ruling last year which stripped Page, a former teacher, of a £162,000 award made to him in the High Court in 1992.

Page's fight for compensation is far from over, however. And the extra time and expense it could now incur may ironically be attributable to a bid by the Appeal judges to speed up the legal process.

When they decided the foreseeability issue against Page last year, his claim was effectively brought to an end and other aspects of the appeal centring on causation were not considered; they became an irrelevance because the foreseeability decision disposed of the matter. Now that the Law Lords have overruled on foreseeability, however, causation has become relevant again and the case could well return to the Appeal Court for a further hearing on that point.

Solicitor Anthony Collins, of Edward Lewis, represented Page and believes the situation should perhaps be taken as a warning. While he accepts there is a strong emphasis on speeding up justice, he says the case also shows that there is a need, once an action is up and running, for courts to look ahead and maybe decide points which could assume new significance in the future.

As far as judicial speed is concerned Collins points out that the case highlights an unsatisfactory situation for the victim of this accident.

Eight years on from his accident, Page still has little certainty about the chances of gaining compensation. He has had money in his hands – £62,000 paid after the original award – and then had to pay it back after the Appeal ruling. Now he faces the prospect of a further court fight.

Collins believes there is no question but that the Lords' decision was a landmark ruling.

Lord Lloyd said in the House of Lords that in such a case, once it was established the defendant was under a duty of care to avoid causing personal injury to the plaintiff, it did not matter whether the injury

sustained was physical or psychiatric.

"It was enough to ask whether the defendant should have reasonably foreseen that the plaintiff might suffer physical injury as a result of the defendant's negligence," he said.

"It was unnecessary to ask, as a separate question, whether the defendant should reasonably have foreseen injury by shock; and it is irrelevant that the plaintiff did not, in fact,

suffer any external physical

injury."

He added: "In my opinion the Court of Appeal was wrong to find that psychiatric illness, in some form, was not a foreseeable consequence of the

accident in a person of normal fortitude."

In his judgment Lord Lloyd laid out a five-point guide for the future approach in cases involving psychiatric illness stemming from accidents.

He said that in cases of nervous shock it was necessary to distinguish between primary and secondary victims, the latter being those such as witnesses of horrific accidents; in claims by a secondary victim control mechanisms which have no place in primary victim cases imposed limits on the number of potential claimants; while hindsight had no part to play in cases involving primary victims it did in claims by secondary victims; subject to those qualifications the approach should be to decide whether a defendant could reasonably foresee his conduct would expose a plaintiff to risk of physical or psychiatric injury; a defendant was not liable for damages for nervous shock unless the shock resulted in some recognised psychiatric illness.