Scottish Court of Session Decisions

Mrs Elizabeth Ross, with consent of her husband as her curator and administrator-in-law, pursuer, brought an action against the Corporation of Glasgow, defenders, concluding for decree for £500 damages for personal injuries.

The pursuer averred, inter alia—“(Cond. 2) On the afternoon of 14th February 1918, at about 4 o'clock, the pursuer was a passenger on a tramcar belonging to the defenders which was proceeding from Glasgow to Uddingston, and she occupied a seat at the front on the upper deck of the said car. (Cond. 3) The said tramcar came to a standstill near the Tollcross terminus. There cars which are coming from Glasgow in an easterly direction turn by means of points and proceed by a set of rails running to Glasgow in a westerly direction. When the said tramcar on which the pursuer was travelling came to a standstill the eastgoing rails were blocked by a Tollcross car which had not passed over the points on to the west-going rails. (Cond. 4) The driver of the said Tollcross car was leaning against the south side of his car smoking. On the approach of the Uddingston car on which the pursuer was a passenger the driver of the said Tollcross car jumped on the driving platform and set his car in motion. He proceeded with considerable speed towards the Uddingston car, but he had not, as was his duty, shifted the points so as to take his car on to the west-going set of rails, and he drove over the points towards the Uddingston car. The pursuer, who saw that he had not shifted the points and that the Tollcross car was coming at an increasing speed towards her car, was justifiably alarmed as to what would happen. She thought that a serious accident was inevitable, and she was greatly agitated and in terror of personal bodily injury from a collision of the cars. The action of the driver of the Tollcross car was such as to reasonably excite in her as it did the fear that a serious collision was about to take place, especially as the Tollcross car did not stop until it was about one yard from the Uddingston car in which she was travelling, although there was a distance of 30 feet between the points and the front of the Uddingston car.… Explained that even if the driver did shift the points, which is denied, he failed in his duty to drive slowly over them and to have his car under such control that he could draw it up almost immediately in the event of it not taking the points. As above averred, when he started the car he proceeded with it at considerable speed and did not draw it up till it was within about one yard of the car in which the pursuer was seated. The result was to put the pursuer in reasonable fear that a collision was about to take place. (Cond. 5) Through the careless and reckless action of the driver of the Tollcross car, for whom the defenders are responsible, the pursuer, owing to her apprehension of an accident, received a serious mental and nervous shock, which has resulted in permanent injury to her health. She had to go

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to bed immediately and was confined to bed for six weeks. She was constantly attended by her medical adviser, and suffered from sleeplessness, serious pains in the head, prostration, general weakness, and vomiting. She also suffered from numbness of the limbs and giddiness. After she was able to get out of bed she continued to suffer from the effects of the shock. She has not yet fully recovered her health and suffers from loss of memory. It was necessary that she should go for a change of scene and air to an English watering place, where she resided for weeks, but the change did not completely cure her. The sum sued for is a reasonable estimate of the loss and damage which the pursuer has sustained through the shock to her nervous system. (Cond. 6) The pursuer's injuries are entirely due to the fault and negligence of the defenders' servant. The driver of the Tollcross car before starting his car should have altered the points so as to get on to the west-going set of rails. When he without altering the points or when the car did not take the points, and came at a considerable speed on to the set of rails on which the Uddingston car was standing and to within about a yard of it, he gave the pursuer reasonable cause to apprehend that a serious accident to herself was inevitable. Had he altered the points before proceeding to drive his tram-car, or had he driven slowly and carefully and stopped his car when it did not take the points, the pursuer would not have been put in any apprehension for her personal safety, and she would not have received the serious shock to her nervous system which was the consequence of the said driver's careless and reckless conduct in proceeding over the points and coming at a considerable speed very nearly up to the stationary car.”

The defenders pleaded, inter alia—“1. The pursuer's averments being irrelevant and insufficient to support the conclusions of the summons the action should be dismissed.”

On 12th November 1918 the Lord Ordinary ( Anderson) approved of an issue.

The defenders reclaimed, and argued—The pursuer's averments were irrelevant. In stating that the defenders' servant had failed to shift the points she no doubt had relevantly averred negligence, but her alternative averments, which proceeded upon the assumption that the points were shifted but that the car failed to take them, were irrelevant, for negligence on the part of the driver could not be inferred from them, neither could any breach of duty towards the pursuer. But even if there was negligence on the part of the defenders' servant the injuries averred were too remotely connected with the negligence to entitle the pursuer to recover damages for them. The pursuer did not aver what put her into a state of terror. It was not enough to say in the circumstances of the case that she dreaded a collision. No doubt terror wrongfully induced and inducing physical mischief gave a cause of action— Dulieu v. White & Sons, [1901] 2 KB 669, per Phillimore, J., at p. 683, but the pursuer's alarm was not reasonable in the circumstances and could not be held to be the near and natural result of the negligence alleged, and if so she could not recover damages— Brown v. John Watson, Limited, 1914 S.C. (H.L.) 44, per Lord Shaw at p. 50, 51 S.L.R. 492, disapproving of Victorian Railways Commissioners v. Coultas, 1888, 13 AC 222; Cooper v. Caledonian Railway Company, 1902, 4 F. 880, per Lord Stormonth Darling, Ordinary, at p. 881, 39 S.L.R. 660; Allan v. Barclay, 1864, 2 Macph. 873; Gilligan v. Robb, 1910 SC 856, 47 S.L.R. 733; Fowler v. North British Railway Company, 1914 S.C. 866, 51 S.L.R. 745; Glegg on Reparation, p. 39; Pollock on Torts, p. 40; Salmond on Torts, p. 126. The King v. Harvey, 1823, 2 B. & C. 257, per Bayley, J., at p. 264, was also referred to.

Argued for the pursuer—The Lord Ordinary was right. The connection between the negligence averred and the injuries in question was not too remote— Dulieu's case ( cit.), per Kennedy, J., at pp. 672, 675, and 679; Bell v. Great Northern Railway Company, 1890, 26 L.R. Ir. 428; Glegg on Reparation, pp. 39 and 40.