LIM Seminar 6- Dworkin, pragmatism and beyond (7/2/18)
Task 1-
McLoughlin v O’Brian case summary
Citation- McLoughlin v O’Brian [1983] 1 AC 410
Parties- McLoughlin (appellant), O’Brian (respondent)
Nature of case- Negligence, psychiatric harm, proximity, duty of care, public policy considerations,
nervous shock, recovery of damages
Status of court- House of Lords, 5 Judges
Facts- McLoughlin suffered severe shock, organic depression and a personality change because of
seeing her relatives suffering before treatment or being cleared up after a road accident caused by the
negligence of the respondent. One of her children dies because of the accident at the scene. She
sought damages from the respondent for the psychiatric illnesses caused. Both the Trail and Court of
appeal held no duty of care owed to her so she appealed to the HofL.
Legal issue(s)- was the possibility of her suffering injury by shock reasonably foreseeable? Does duty
or care extend further than just those effected directly by the negligence (i.e. the fact she was 2 miles
away at the time and didn’t learn of it until 2 hours later(proximity))? Should duty of care be limited
as a matter of public policy (policy considerations)?
Outcome- Allowed unanimously
Reasoning- the nervous shock suffered was reasonably foreseeable, “policy considerations should not
inhibit a decision in her favour”.
Lord Wilberforce- laid out the test for damages recovery for personal injury from nervous shock;
close familial relationship (not an ordinary bystander), must be in close proximity (time and place,
includes witnessing the aftermath) and shock suffered must “come through sight or hearing of the
event or its immediate aftermath”. (para 422) Cites Chadwick v British Railways Board ([1967] 1
WLR 912) for this last point. Courts proceed in a logical way- examined past cases (incremental
common law) policy isn’t strong enough to deny this claim
Lord Edmund-Davis- similar to Wilberforce- looks at previous and policy issues. Floodgate
argument nor strong enough but public policy is justiciable. Policy argument not strong enough to
deny the claim
Lord Scarman- looks at principles (leave policy to parliament) (para 430)- like Dworkin
Lord Bridge- public policy, legislature (not courts) to extend liability (para 441) policy arguments
don’t restrict this case
Principle v policy- principle more backward looking (precedence and looking at past
harm/infringement of rights to be corrected) corrective justice (rectifying harms between two parties
regardless of extra, external considerations. Past wrongs), policy is forward looking (parliament
legislates the approach to a legal subject- consequences in the future (floodgate argument))
distributive justice (how to allocate resources amongst society, come up in claims against public
authorities (e.g. police, ambulance etc.))
Dworkin also looks at this
Task 2-
New judgement for the Speluncean Explorers
Dworkin- morality and principles
Hutchinson- easy v hard cases (rejection), dependant on the circumstances after looking at
background and context. Pragmatic manner- look at outcome first then authorities to back this up (ex
post facto rationalisation)
Task 1-
McLoughlin v O’Brian case summary
Citation- McLoughlin v O’Brian [1983] 1 AC 410
Parties- McLoughlin (appellant), O’Brian (respondent)
Nature of case- Negligence, psychiatric harm, proximity, duty of care, public policy considerations,
nervous shock, recovery of damages
Status of court- House of Lords, 5 Judges
Facts- McLoughlin suffered severe shock, organic depression and a personality change because of
seeing her relatives suffering before treatment or being cleared up after a road accident caused by the
negligence of the respondent. One of her children dies because of the accident at the scene. She
sought damages from the respondent for the psychiatric illnesses caused. Both the Trail and Court of
appeal held no duty of care owed to her so she appealed to the HofL.
Legal issue(s)- was the possibility of her suffering injury by shock reasonably foreseeable? Does duty
or care extend further than just those effected directly by the negligence (i.e. the fact she was 2 miles
away at the time and didn’t learn of it until 2 hours later(proximity))? Should duty of care be limited
as a matter of public policy (policy considerations)?
Outcome- Allowed unanimously
Reasoning- the nervous shock suffered was reasonably foreseeable, “policy considerations should not
inhibit a decision in her favour”.
Lord Wilberforce- laid out the test for damages recovery for personal injury from nervous shock;
close familial relationship (not an ordinary bystander), must be in close proximity (time and place,
includes witnessing the aftermath) and shock suffered must “come through sight or hearing of the
event or its immediate aftermath”. (para 422) Cites Chadwick v British Railways Board ([1967] 1
WLR 912) for this last point. Courts proceed in a logical way- examined past cases (incremental
common law) policy isn’t strong enough to deny this claim
Lord Edmund-Davis- similar to Wilberforce- looks at previous and policy issues. Floodgate
argument nor strong enough but public policy is justiciable. Policy argument not strong enough to
deny the claim
Lord Scarman- looks at principles (leave policy to parliament) (para 430)- like Dworkin
Lord Bridge- public policy, legislature (not courts) to extend liability (para 441) policy arguments
don’t restrict this case
Principle v policy- principle more backward looking (precedence and looking at past
harm/infringement of rights to be corrected) corrective justice (rectifying harms between two parties
regardless of extra, external considerations. Past wrongs), policy is forward looking (parliament
legislates the approach to a legal subject- consequences in the future (floodgate argument))
distributive justice (how to allocate resources amongst society, come up in claims against public
authorities (e.g. police, ambulance etc.))
Dworkin also looks at this
Task 2-
New judgement for the Speluncean Explorers
Dworkin- morality and principles
Hutchinson- easy v hard cases (rejection), dependant on the circumstances after looking at
background and context. Pragmatic manner- look at outcome first then authorities to back this up (ex
post facto rationalisation)
