Victorian Railways Commissioners v Coultas

“Liability for negligence was framed in the days when there were no railway trains, and the nerves of our ancestors were stouter than ours.” ¹

For Heaven’s Sake, Go Back, the Train is Coming!

In May 1886, James Coultas—a tailor from Melbourne—was driving his pregnant wife Mary, and Mary’s brother John, in a horse-drawn buggy between Hawthorn and Melbourne. It was a dark and rainy night, and the three travellers were soon to be placed in a position of imminent peril.

As the buggy approached a level crossing in East Richmond, Patrick McDonough, the gatekeeper responsible for checking for any oncoming trains, sprang into action. Lamp in hand, Patrick opened the railway gate for the trio. As James started the buggy across the railway tracks, he was shocked to see a train approaching at rapid speed. Realising his error, Patrick shouted: “For heaven’s sake, go back, the train is coming!” If the trio had followed this imprudent advice and attempted to turn the horse-drawn buggy around, they may have all been killed. Instead, James shouted at Patrick to open the opposite gate and urged his horse on. With the train bearing down upon them, Mary fainted and fell into her brother’s arms. With mere seconds to spare, Patrick opened one side of the opposite gate and James managed to frantically manoeuvre the buggy clear of the railway line.

While the trio managed to make it clear of the train by the narrowest of margins on this occasion, it was a very different story a mere two months later when Patrick the gatekeeper was killed by a train in the exact same location.²

In the weeks following her near miss with the oncoming train, Mary suffered an impaired memory and impaired eyesight. Medical evidence showed that she had received a severe nervous shock from the fright. Her severe shock also brought on a miscarriage. Mary and her husband James sued the gatekeeper’s employer, arguing it was responsible for the injuries Mary sustained as a result of Patrick’s negligence. The defendant pointed to the fact that neither the plaintiffs, nor their property, was struck by the train, and argued that the alleged damage arising from Mary’s shock was too remote.

The jury found that the gatekeeper had negligently opened the gate and invited the plaintiffs to drive over the level crossing when it was dangerous to do so. The jury awarded Mary £400 and awarded her husband approximately £342 for the loss of his wife’s services. The defendant’s appeal was rejected by the Full Court of the Supreme Court of Victoria, before whom Mr Pennefather—junior counsel for Mary and James Coultas—successfully argued that the gatekeeper’s invitation to cross the tracks was equivalent to a circus owner inviting patrons into a tent with an unchained lion.³ The defendant appealed to the Privy Council.

Fear of the Imaginary – The Privy Council’s Decision

The Privy Council refused to allow Mary Coultas to recover for nervous shock. It held that nervous shock, unaccompanied by physical injury, was too remote a consequence of a negligent accident to sound in damages. It could not be considered ‘a consequence which, in the ordinary course of things, would flow from the negligence of the gatekeeper.’ Further, their Lordships believed that allowing Mary’s claim for nervous shock would result in ‘a wide field opened for imaginary claims’:

“in every case where an accident caused by negligence had given a person serious nervous shock, there might be a claim for damages on account of mental injury. The difficulty which now often exists in the case of alleged physical injuries of determining whether they were caused by the negligent act would be greatly increased, and a wide field opened for imaginary claims.”

A Law more Willing to Protect Beasts than Humans: Problems with the Privy Council’s Decision

In the weeks following the Privy Council’s decision, Mr Pennefather wrote to a Melbourne newspaper, attempting to articulate the injustice of the situation by comparing the sudden appearance of a train to that of a ghost:

“An analogous case to the present is that where a man, to humour some fancy, dresses himself up as a ghost, and suddenly startles a woman in the dead of night, and frightens her into a severe illness – perhaps into her grave. Would not that man be liable in damages? The intent, which is the only element of difference between that case and this, does not affect the right to damages at all, and yet it would seem a monstrous proposition in law to say that such an action would not lie.” ⁴

The Privy Council’s decision was also greeted with sharp criticism from academic writers who identified a number of problems with the Privy Council’s refusal to allow Mary Coultas to recover for her nervous shock.

The fear of women as ‘hysterical victims’

The decision in Coultas has been identified as a prime example of tort law’s failure to deal with the gendered harms suffered by women.⁵ Implicit in their Lordships judgment was a fear of women as ‘hysterical victims’, with nervous shock regarded as an irrational or imaginary condition for which compensation should not lie.⁶ Here, it is important to contrast the Privy Council’s decision with that of the Supreme Court of Victoria which had found in favour of Mary Coultas. The judges in the Supreme Court had used the term ’nervous shock’ to denote a mental injury resulting from an actual physical disturbance to the nervous system. The Privy Council, by contrast, erroneously equated ’nervous shock’ with ‘mental shock’, the latter referring to a purely emotional occurrence (such as grief or anguish) which is not compensable.⁷ This was central to the Privy Council’s denial of Mary Coultas’ claim on the basis that she had not sustained any actual physical injury.

It is important to view the Privy Council’s decision in light of the limited knowledge of mental illness in 1888. At the time of Mary Coultas’ case, there was a school of thought which regarded mental conditions as a form of hysteria caused by personal characteristics rather than exposure to trauma.⁸ It is evident from the Privy Council’s judgment that Mary’s injury was viewed as ‘unusual’ or ‘abnormal’, and that this is what led the Privy Council to conclude that her injury was too remote, rather than any consideration of the temporal or spatial connection between the defendant’s negligence and Mary’s injuries.⁹

In 1896, on the other side of the Pacific Ocean, American woman Annie Mitchell found herself in an almost identical situation to Mary Coultas.¹⁰ While Annie was waiting to board a street-car at the bottom of a steep incline, a horse-drawn car driven by the defendant’s employee came down the hill, straight towards her. The horse-drawn car came so close to hitting Annie that ‘she stood between the horses’ heads when they were stopped.’ The fright caused Annie to lose consciousness and, just liked Mary Coultas, she suffered a miscarriage. The Court of Appeals of the State of New York rejected Annie’s claim for the same reasons the Privy Council denied Mary Coultas compensation: The horses did not physically touch Annie, and her miscarriage was deemed to be ’the result of an accidental or unusual combination of circumstances, which could not have been reasonably anticipated.’ Further, the court expressed concern that allowing Annie to recover would ‘result in a flood of litigation’, with plaintiffs feigning injury to gain compensation.

In their article ‘Women, Mothers, and the Law of Fright: A History’, Chamallas and Kerber argue that the legal reasoning in cases such as that of Mary Coultas and Annie Mitchell, was influenced by an erroneous belief ’that only supersensitive or abnormally delicate persons could suffer physical harms from fright.’ ¹¹ William Prosser, one of the most influential tort law scholars, once observed that cases of this nature evidence ‘a distinctly masculine astonishment that any woman should ever be so silly as to allow herself to be frightened or shocked into a miscarriage.’ ¹²

The Privy Council’s rejection of Mary Coultas’ claim led to the bizarre situation where ’the law seemed to take a more lenient view of recovery for consequences of fright where beasts rather than humans are concerned.’ ¹³ In the 1875 case of Sneesby v The Lancashire and Yorkshire Railway Co,¹⁴ the defendant railway company negligently allowed several train cars to run down the tracks where the plaintiff’s cattle were being driven across a level crossing. The cattle ‘became infuriated’, rushed away from the control of the drover, and were eventually found lying dead further down the railway. Like Mary Coultas, the cattle were only frightened and not physically injured by the oncoming train cars, but unlike in Mary’s Coultas’ case, the defendant railway company was held liable in negligence.

The floodgates argument

The Privy Council’s decision in Coultas can also be criticised for its reliance on the policy-based floodgates principle. The Privy Council’s fear was that imposing liability for negligently caused nervous shock would open the floodgates of litigation, leading to a wide field for ‘imaginary claims’.

During the 19th Century, the majority of people who used the railways ‘belonged to the poorer strata of society’ and it has been speculated that the judges may have thus feared that the majority of potential plaintiffs making claims against railway companies would actually be ‘healthy people who were not motivated by genuine suffering, but by the hope of enrichment through compensation.’ ¹⁵ It is possible to attribute this perceived high risk of fraud to the poor understanding and diagnosis of mental injury that existed at the time.¹⁶ In relation to the specific harm suffered by Mary Coultas and Annie Mitchell, Chamallas and Kerber remind us that miscarriages are ’empirically verifiable events’, meaning ’the distrust in this class of cases is hard to fathom.’ ¹⁷

The Law Marches with Medicine (but in the Rear and Limping a Little)

In the years following Coultas, the courts were only able to award damages for negligently caused nervous shock if they could find a way to distinguish the Privy Council’s decision. In 1906, the Western Australian Court of Appeal found in favour of a plaintiff who was a passenger on the defendant’s train and suffered nervous shock when the train derailed after colliding with a runaway horse.¹⁸ Importantly, the woman had also sustained physical injuries in the accident, providing the judges with a way to circumvent the Privy Council’s decision in Coultas.¹⁹

In the aftermath of World War I, societal recognition and understanding of nervous shock improved dramatically.²⁰ The law slowly began to move beyond the ‘social Darwinism’ present in the Privy Council’s decision in Coultas, as the courts began to recognise that mental injuries were real.²¹ In 1939, Evatt J in the High Court of Australia made the following observation in a powerful dissenting judgment:

“the decision [in Coultas] laid down only that damages due to “mere sudden terror unaccompanied by any actual physical injury” were too remote. It must always be a question of fact whether shock to the nerves causes “actual physical injury.” Today it is known that it does. In 1888 it was widely assumed that it did not.” ²²

By the 1970s, it was widely accepted that an illness of the mind was no less an injury, with Windeyer J observing in the High Court of Australia that the law had come a long way since the decision in Coultas:

“Law, marching with medicine but in the rear and limping a little, has today come a long way since the decision in Victorian Railways Commissioners v. Coultas (1888) 13 App Cas 222, which in recent times has been regularly by-passed by courts. An illness of the mind set off by shock is not the less an injury because it is functional, not organic, and its progress is psychogenic.” ²³

Today, 133 years since the Privy Council’s decision in Coultas, it is uncontroversial that a plaintiff who found themselves in the position of the terrified Mary Coultas would be able to recover damages for pure mental harm.²⁴ In another part of the world, however, the judiciary did not wait around for advancements in medicine, or a shift in societal attitudes, before rejecting the Privy Council’s decision in Coultas. The Irish courts demonstrated a progressive attitude towards mental injury at a time when it was being treated with much scepticism in other jurisdictions. As early as 1890—just two years after the decision in Coultas—the Irish Exchequer Division was prepared to reject the Privy Council’s reasoning and find in favour of a woman who suffered nervous shock following what was, at the time, the worst rail disaster in European history. Stay tuned for next month’s post on this fascinating case!

Postscript: After the publication of this post, a very interesting article on the ‘untold story’ of Mary and James Coultas was published in the American Journal of Legal History. In this article, it is revealed that the statement in the Victorian Law Reports that Mary Coultas suffered a miscarriage following the near collision with the train was incorrect. In fact, seven weeks after the near miss, Mary gave birth to her sixth child at her home in Hawthorn.²⁵