1 A Collection of Essays published in two volumes, entitled Foreign Law and Comparative Methodology: A Subject and a Thesis (Oxford 1997) and Always on the Same Path, Essays on Foreign Law and Comparative Methodology (Oxford 2001) have striven to construct a workable approach.

2 A beautifully phrased but not entirely convincing formulation can be found in Sir Robert Megarry's judgment in Cordell v. Second Clanfield Properties [1969] 2 Ch. 9, 16ff.

3 [2000] 1 W.L.R. 1976.

4 Peter Handford, “Psychiatric Damage Where the Defendant is the Immediate Victim” (2001) 117 L.Q.R. 397, comparing the result with the more generous Australian law.

5 [1995] 2 A.C. 207, 252ff.

6 For doubts about the practical utility of the foreign law references in Lord Goff's judgment, see Lord Rodger of Earlsferry, “Savigny in the Strand”, in The Maurice Kelly Memorial Lecture 1995, esp. pp. 24-25; Neil Duxbury, Jurists and Judges (Oxford 2001), p. 107.

7 BGHZ 56, 163 = NJW 1971, 1883 = VersR 1971, 905, 1140, taken from the third edition of Markesinis, The German Law of Torts: A Comparative Introduction (1994) (translation by Tony Weir). The German decision is still the subject of controversy not so much for its result but for the way it chose to justify it. Its status as “good law” has also been thrown into doubt after the decision of the Federal Court of 1 March 1988, BGHZ 103, 338, which is mentioned several times in the discussion that follows. For a summary of the academic views, see Staudinger/Hager, Kommentar zum BGB, Unerlaubte Handlungen, B39.

8 D2 is the primary victim of the accident; but because he may, through his own negligence, also have contributed to his hurt and the loss of P (secondary victim), he may be sued by the main tortfeasor (D1) for a contribution or an indemnity. In Germany D2 can also be referred to as the “privileged defendant”, for he may benefit from an exemption clause arising from his relations with the plaintiff or he may enjoy an immunity ex lege because of his family relationship with P. As we shall note later, one of the questions that may arise in such cases is whether D2's “immunity” from action by P can also protect him against an action brought by D1—the joint tortfeasor.

9 In principle, German law allows recovery for “distant” psychiatric injury. In practice, however, such claims are kept under control by judges—no juries exist in German law— rigorously checking their standard requirement that the “shock be an appropriate and understandable consequence” of the accident that befell the primary victim. In practice a close relationship (Schicksalsgemeinshaft) between the plaintiff's shock and the primary victim is of paramount importance. A further restriction can be seen from the reasoning of the court given below.

10 Attia v. British Gas Plc [1988] Q.B. 304, 317 per Bingham L.J. (as he then was).

11 This, at least, seems to be the view of Lord Steyn who argued that the subject might have now passed the stage of redemption by the courts and needs legislative intervention. See his opinion in Frost v. Chief Constable of South Yorkshire Police [1999] 2 A.C. 455, 500. It is submitted that W v. Essex County Council [2001] 2 A.C. 592, has compounded the uncertainty.

12 Markesinis, , The German Law of Torts: A Comparative Treatise, 4th ed. by Basil Markesinis and Hannes Unberath, (Oxford 2002), pp. 45ffGoogle Scholar. Note, however, that this was a case of “distant shock” which would thus not be compensated by English and (most) American courts.

13 In such factual situations the court can normally rely on § 1359 BGB to bar any action by the wife against her husband (or, in this case, his estate). This is because § 1359 states that one spouse is liable to the other only if he (or she) failed to attain “the degree of care which they are accustomed to exercise in their own affairs”. So the spouse sued can avoid liability if he can show that in his own affairs he would have displayed a lower standard of care than that required by ordinary negligence. (A similar rule can be found in § 1664 1 BGB dealing with the parent/child relations). The rationale of both provisions is to avoid legal disputes between persons who are in such close family relationships and in many respects draws on the policy reasons, which were also touched upon by Cazalet J. in Greatorex. The immunity rule just described does not, however, apply where D2's fault amounted to gross negligence. Another limitation on this rule is that it is not applicable in car accident cases. For these points and the effect they may have had on the reasoning of the German court see section VI below.

14 See Medicus, Schuldrecht, Besonderer Teil, 9th ed. (Munich 1999) p. 302.

15 So long as the rescue can be rendered without any danger to the rescuer: § 323c StGB.

16 Presumably, the same argument could be advanced in other systems (such as the French) which also recognise affirmative duties of rescue but, to my knowledge, the point has not been settled by their courts. The Scottish case of A v. B's Trustees (1906) 13 S.L.T 830 allowed a claim in very similar circumstances but the successful claim has been generally seen to be based on breach of contract. See Lord Johnston's words at p. 831, apparently thus interpreted by Lord Porter in Bourhill v. Young [1943] A.C. 92 at p. 120. In Reg. v. Criminal Injuries Compensation Board, Ex parte Webb [1986] Q.B. 184, 196, Watkins L.J. also appeared to take the view that a “person attempting to commit suicide may well be in breach of a duty of care owed to [others]”. But the observation was obiter; and in Greatorex Cazalet J. brushed the point aside as irrelevant on the facts before him. An American case has, however, held that a mentally distressed man who tried to commit suicide in his garage is under a duty towards his son who came to his rescue and was, in the process, physically injured: Talbert v. Talbert 199 N.Y.S. 2d 212 (1960).

17 But see Handford's note, cited in footnote 4 above. In English law, the most interesting obiter dicta come from Lord Oliver's opinion in Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310, 418.

18 441 P. 2d 912 (1968). In Dillon the majority, at p. 916, asked the question whether the contributory negligence of the victim and the plaintiffs should affect their claims; whereas the minority, at p. 928, asked the very different question whether the deceased child's negligence can affect the living plaintiffs’ claims.

19 In Germany, we have noted that the rescue variant has been considered in the context of suicide. Since loss of consortium claims are not known in German law, the most litigated type of American case finds no parallel in Germany.

20 BGHZ 56, 163.

21 The owner of the car was also joined as a defendant by the second defendants—the MIB—on the grounds that he had allowed his friend, the first defendant (D2), to drive the car without insurance. But neither the owner of the car nor the first defendant appeared in court or were represented by counsel.

22 See also the Law Commission's report on Liability for Psychiacric Illnsss (1998) (Law Com No. 249) para. [5.34]-[5.44].

23 Similarly, in BGH ZIP 1990, 1485, the court held that as a general rule a lessor did not owe a contractual duty to the lessee not to commit suicide and as a result the estate was not answerable for the termination of the lease. To impose such a duty would have amounted to an unjustifiable intrusion upon the right to self-determination of the lessor.

24 See A v. B's Trustees (1906) 13 S.L.T. 830.

25 Thus see BGH JR 1989, 60, and cf. BGHZ 12, 213.

26 Approximately the same considerations apply easily if we replace the legal immunity with an exclusion clause contained in a contract between D2 and P.

27 See § 421 BGB.

28 Albeit the risk of insolvency of the primary victim (D2) would be transferred from P to D1.

29 Cf. Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310, 418 per Lord Oliver.

30 The point made by Lord Oliver, note 29 above, but rejected (obiter) by Cazalet J. in Greatorex.

31 As already stated, it is here that we find an abundance of cases in the United States.

32 BGH 1 March 1988, BGHZ 103, 338, 346ff. Palandt, Bürgerliches Gesetzbuch, 60th ed. Munich 2001, no. 426.

33 BGH 27 June 1961, BGHZ 35, 317, 323-324 (though this earlier case law may still apply to other factual instances).

34 This may be the reason why, in the context of psychiatric injury the Law Commission took a somewhat negative position. See Law Commission Report on Liability for Pcychiatcii ttlnsss (1998) (Law Com No. 249) para. [5.39]. But the Law Commission does not appear to have considered the various alternatives canvassed in Germany on this point.

35 For a review of the case law, see Blagg v. Illinois F.W.D. Truck and Equipment Company 572 NE 2d, 920 (1991), with references at p. 925. See, also, Mallett v. Dunn [1949] 2 K.B. 180 (England); Feltch v. General Rental Co., 383 Mass. 603, 421 NE 2d 67 (1981), reviewing the contradictory American case law, and Handeland v. Brown, 216 NW 2d 574 (Iowa, 1974) where the conflicting views of the majority and the dissent repay careful reading and reveal that many of the problems in US law may be linked with the differing views adopted towards contributory and comparative negligence. Imputed contributory negligence is discussed in detail in Gregory, Kalven, and Epstein, 716ff., especially 730ff., and Harper, Fleming James Jr and Gray, vol. II, ch. 8.8 and 8.9.

36 For references see note 47 below. But like all such statements about American law this, too, has to be qualified by mentioning the fact that decisions do exist suggesting that the tortfeasor (main defendant) can sue the primary victim for his share of the plaintiff's harm. See, for instance, American Motorcycle Assn. v. Superior Court 20 Cal. 3r 578, 591, 578 P. 2d 899 (1978); Lantis v. Condon 95 Cal. App. 3r 152, 157 Cal. Rptr. 22 (1979). The Lands facts, with the primary victim being 80 per cent. responsible for his injuries, illustrate the need to shield the tortfeasor from the risk of carrying the entire loss. But as stated in the text, the solution of sharing the cost with the primary victim may not be the best since it, essentially, defeats any immunity that the law (or contract) may have given him towards the secondary victim. For an American case that makes precisely this point see: Feltch v. General Rental Co. 421 NE 2d 67, 92 (1981, Mass).

37 216 NW 2d 574 (1974).

38 Ibid., at p. 578.

39 “Such a result seems unjust. Application of comparative negligence would most adequately rectify the injustice, but we do not have comparative negligence in such cases” I have deliberately italicised the last few words of the quotation because to a foreign reader they seem to be confusing insofar as they imply that in the early 1970s Iowa knew the rule of comparative negligence in other types of cases. So far as I know, this was not the case, so the end of the judicial dictum seems unfortunately phrased.

40 Conveniently collected in ALR 4th, vol 25. Michael DiSabatino, the author of the annotation, thus remarks on page 9: “The reason most often advanced for denying a spouse or parent recovery for loss of consortium where the physically injured spouse or child has been contributorily negligent is that the consortium action is derived from the physically injured spouse or child's cause of action…”(Italics supplied.) The ALR annotation is up to date to September 2000.

41 46 Ill App. 2d 266, 197 NE 2d 68 (1964).

42 103 Ill. App. 3rd 740, 748, 431 NE 2d 1175.

43 Alvis v. Ribar 85 Ill. 2d 1, 421 NE 2d 886 (1981).

44 143 Ill. 2d 188, 572 NE 2d 920 (1991).

45 Conveniently collected by the court at page 925 of its judgment.

46 Ibid., at p. 926. A similar statement, significantly tucked away in a footnote, can be found in the judgment of the Supreme Court of Colorado in Lee v. Colorado Department of Health 718 P. 2d 221, 231, text and note 8. (Colo. 1986).

47 See, for instance: Eggert v. Working 599 P. 2d. 1389 (Alaska 1979); Turnbow v. Wasden 608 F. Supp. 237 (D. Nev. 1985); Lee v. Colorado Department of Health 718 P. 2d 221 (Colo. 1986); Quadrone v. Pasco Petroleum Co. 156 Ariz. 415, 752 P. 2d 504. (1988); Blagg v. Illinois F.W.D. Truck and Equipment Company 572 NE 2d 920 (Ill. 1991). But cf. the cases cited in note 36 above.

48 The shift from the full liability to a “proportional liability” rule was considered and rejected by the Law Commission in a paper it did in 1966 for the DTI entitled Feasibility Invsstigation of Joint and Several Liability.

49 It will be remembered from note 13 above that § 1359 BGB could, in some instances, have served as another way of ensuring the immunity of D2 towards P, this immunity being based on the policy reasons appropriate to the D2/P relationship. These reasons figured in Cazalet J.'s judgment; but not in the German judgment, which chose to justify the non-liability rule by reference to human autonomy. One (further) consequence of this justification is that it ensures that the non-liability rule applies even where there is no family relationship between D2 and P. This is exactly what happened in the Australian case of FAI General Insurance Co. v. Lucre [2000] N.S.W.C.A. 346; and the verdict there was for the plaintiff.

50 See note 13 above. There is a problem, however, with the immunity rule contained in § 1359 BGB: its application depends on the status of marriage and not the closeness of the relationship between P and D2.

51 My German friends, however, warn me that this is not the kind of reasoning that would appeal to a German judge.

52 [2000] N.S.W.C.A. 346 (decision of 29 November 2000). In the Australian case the car accident between D1 and D2 was, again, entirely due to D2's fault. In this case, however, there was no family or other relationship between P and D2; P's claim for his post-traumatic stress disorder succeeded.

53 For instance Larenz Lehrbuch des Schuldrechts, I, 13th edn. (Munich 1982) § 37; Thiele, Gesamtschuld und Gesamtschuldnerausgleich, JuS 68, 149; Medicus, Haftungsbefreiung und Gesamtschuldnerausgleich, JZ 67, 398; Medicus, Schuldrecht I, AUgemeiner Teil, 10th ed. (Munich 1998), Rn. 793.

54 [1991] 1 A.C. 398.

55 Sir Robin (now Lord) Cooke in his “An Impossible Distinction” (1991) 107 L.Q.R. 46ff.

56 BGHZ 103, 338.

57 Contrary to the early decision of BGHZ 35, 317 which had allowed D1 to claim a contribution against D2. It must be remembered that BGHZ 56, 163—the 1971 nervous shock case that guided the English decision—was decided against the background of BGHZ 35, 317 decided in 1961.

58 Which was not the case in Greatorex but was considered by the German Federal Court in BGHZ 12, 213; NJW 1972, 942.