Judgment - White and Others v. Chief Constable of South Yorkshire and Others  continued

(back to preceding text)
 

I am compelled to say that I am unable to accept this suggestion because in my opinion (1) the proposal is contrary to well-established authority; (2) the proposed control mechanism would erect an artificial barrier against recovery in respect of foreseeable psychiatric injury and as such is undesirable; and (3) the underlying concern is misconceived. I will consider each of these objections in turn.

(1) The proposal is contrary to well-established authority.

I have here in mind the cases to which I have previously referred, concerned (a) with rescuers, and (b) with those who have, as a result of another's negligence, been put in the position of being, or of thinking that they are, the involuntary cause of another's death or injury. As I have already recorded, the most relevant cases concerned with the first category (rescuers) are Chadwick [1967] 1 W.L.R. 912 (in which the trial judge treated the fact that there was some danger of physical injury as irrelevant), and (on one view) Mount Isa Mines Ltd. v. Pusey (1970) 125 C.L.R. 383 (in which the plaintiff was not in physical danger). In this connection it is important that the decision in Chadwick was approved, without qualification, in your Lordships' House in McLoughlin v. O'Brian [1983] A.C. 410, 419 per Lord Wilberforce, 424 per Lord Edmund-Davies, and 437-8 per Lord Bridge of Harwich, and again in Alcock [1992] 1 A.C. 310, 408 per Lord Oliver. As to the second category, the most relevant case is Dooley [1971] 1 Lloyd's Rep. 271 in which, as in other cases of this kind, the plaintiff was never in any personal danger. Furthermore, both categories of case were stated by Lord Oliver in Alcock at p. 408 to be examples of primary victims, in the case of which he plainly did not consider that there was any applicable control mechanism, for example any requirement that the plaintiff should have been within the range of foreseeable physical injury. Having regard in particular to the prominence now given to Lord Oliver's opinion in Alcock in segregating cases of secondary victims as those cases to which special control mechanisms apply, it would be a remarkable departure from existing authority now to create a new control mechanism, viz. that the plaintiff must have been exposed to the risk of physical injury, and to hold that this mechanism is applicable in the case of primary victims. What is here at issue therefore is not whether we should extend liability for psychiatric injury to primary victims who do not come within the range of foreseeable physical injury. The question is whether, having regard to existing authority, we should restrict liability for psychiatric injury to primary victims who are within the range of such injury.

(2) The proposed control mechanism would erect a new artificial barrier against recovery in respect of foreseeable psychiatric injury and as such is undesirable.

The control mechanisms now in force are those established in Alcock to be applicable in the case of secondary victims, viz. (a) a close tie of love and affection to the immediate victim, (b) proximity in time and space to the incident or its aftermath, and (c) perception by sight or hearing, or its equivalent, of the event or its aftermath. These rules, being arbitrary in nature, are widely perceived to create unjust and unacceptable distinctions: see, in particular, the criticisms of Professor Jane Stapleton in In Restraint of Tort (Frontiers of Liability ed. Peter Birks 1994) at pp. 95-96. To introduce the control mechanism now proposed in the case of primary victims would in the same way create distinctions regarded as unjust and unacceptable.

To illustrate the point, let me take the always useful extreme example. Suppose that there was a terrible train crash and that there were two Chadwick brothers living nearby, both of them small and agile window cleaners distinguished by their courage and humanity. Mr. A. Chadwick worked on the front half of the train, and Mr. B. Chadwick on the rear half. It so happened that, although there was some physical danger present in the front half of the train, there was none in the rear. Both worked for 12 hours or so bringing aid and comfort to the victims. Both suffered P.T.S.D. in consequence of the general horror of the situation. On the new control mechanism now proposed, Mr. A would recover but Mr. B would not. To make things worse, the same conclusion must follow even if Mr. A was unaware of the existence of the physical danger present in his half of the train. This is surely unacceptable. May I stress that, although I have taken an extreme example, the contrast I have drawn could well arise in real life; and the new control mechanism now proposed could provoke criticisms of the same kind as those which have been made of the mechanisms recognised in Alcock.

(3) The underlying concern is misconceived.

I sense that the underlying concern, which has prompted a desire to introduce this new control mechanism, is that it is thought that, without it, the policemen who are plaintiffs in the present case would be "better off" than the relatives in Alcock who failed in their claims, and that such a result would be undesirable. To this, there are at least three answers. First, the control mechanisms which excluded recovery by the relatives in Alcock would, in my opinion, have been equally applicable to the policemen in the present case if on the facts they had (like the relatives) been no more than witnesses of the consequences of the tragedy. Second, the question whether any of the relatives might be able to recover because he fell within the broad category of rescuer is still undecided; and, strangely, the control mechanism now proposed to exclude the claims of the policemen in the present case would likewise exclude the claims of relatives if advanced on the basis that they were rescuers. Third, however, it is in any event misleading to think in terms of one class of plaintiffs being "better off" than another. Tort liability is concerned not only with compensating plaintiffs, but with awarding such compensation against a defendant who is responsible in law for the plaintiff's injury. It may well be that one plaintiff will succeed on the basis that he can establish such responsibility, whereas another plaintiff who has suffered the same injury will not succeed because he is unable to do so. In such a case, the first plaintiff will be "better off" than the second, but it does not follow that the result is unjust or that an artificial barrier should be erected to prevent those in the position of the first plaintiff from succeeding in their claims. The true requirement is that the claim of each plaintiff should be judged by reference to the same legal principles.

For all these reasons I am unable to accept the need for, or indeed the desirability of, the new control mechanism now proposed.

The present appeals

(1) The medical evidence

Like Henry L.J., I have read with interest and profit the account of P.T.S.D. in the Law Commission's Report No. 249 at paras. 3.4-3.14, and in Mullany and Handford at pp. 33 et seq.; and like him I have also read Professor Sims' "generic report" relating to a psychiatric examination and assessment carried out upon 70 police officers involved in the Hillsborough tragedy, including the plaintiffs in the present proceedings. This material provides a clear description of the nature of P.T.S.D., its causes and effects. I quote from paras. 3.4 and 3.5 of the Law Commission's Report:

      "3.4 The phrase 'post-traumatic stress disorder' was coined in the 1970s and was officially recognised with the publication of DSM-III [the American Diagnostic and Statistical Manual of Mental Disorders] in 1980. Veterans returning from the Vietnam War were found to be suffering from severe stress and in need of treatment, yet there was no diagnosis to fit their syndrome. P.T.S.D. was a concept created to meet that need. However, the acceptance of P.T.S.D. among psychiatrists has not been universal and the diagnosis remains controversial . . .

      "3.5 The diagnostic criteria for P.T.S.D. in DSM-IV require that the person develop characteristic symptoms following exposure to a traumatic event (frequently referred to as the 'stressor') in which (i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, and (ii) the person's response involved intense fear, helplessness, or horror. A diagnosis of P.T.S.D. under ICD-10 [the International Classification of Diseases) requires that the individual have been exposed to a stressful event or situation (either short- or long-lasting) of an exceptionally threatening or catastrophic nature, which is likely to cause pervasive distress in almost anyone."

Mullany and Handford refer (at p. 35) to the American literature currently defining P.T.S.D. as requiring "exposure to a psychologically distressing external event that is outside the range of usual human experience." It comes as no surprise therefore that Professor Sims regarded the Hillsborough tragedy as a P.T.S.D. stressor. Moreover, as Henry L.J. observed ( [1997] 3 W.L.R. 1194, 1207E-H), Professor Sims stressed that the trauma in the present case was prolonged exposure to horrifying and uncontrollable circumstances, and that in general the longer the exposure to the traumatic situation, the greater was the degree of psychological distress subsequently. Recurring themes in the police officers' accounts were inability to take useful action, and so feelings of helplessness and guilt; the sheer number of the deaths and the youth of the victims; hostility and abuse from the crowd, and shame that police decisions had caused or contributed to the disaster. I add in parenthesis that the nature of P.T.S.D. illustrates very clearly the need to abandon the requirement of nervous shock in these cases, and to concentrate on the requirement that the plaintiff should have suffered from a recognised psychiatric illness.

(2) The responsibility in law of the appellants to each of the respondent police officers.

Henry L.J. concluded ([1997] 3 W.L.R. 1194, 1209A) that the risk of psychiatric damage to police officers on duty at the ground as a result of negligent crowd control was plainly foreseeable. In a general sense, this is no doubt true. In particular, the fact that the plaintiffs are police officers and as such might, by reason of their training and experience, be regarded as less likely to suffer psychiatric injury as a result of their involvement in this terrible event and its aftermath is, in my opinion, offset by a combination of the nature and scale of the catastrophe and the hostility and shame resulting from police responsibility for the tragedy, for which these individual plaintiffs were in no way responsible. However, in accordance with the "hindsight" test which, in my opinion, is as applicable to primary victims as it is to secondary victims, the question of foreseeability has to be considered in relation to each respondent, having regard to the nature and circumstances of his involvement.

The involvement of the individual police officers who are respondents to these appeals is described in their written statements. I do not propose, however, to summarise each of their statements. To do so would be to overburden this already long opinion; and in any event it is no use just picking out particular events from these statements--they have to be read as a whole. Reading them as a whole, it is plain to me that each of them was, in the course of his duty as a police officer, involved in the aftermath of the terrible crushing which took place in Pens 3 and 4, which brought death or injury to a large number of spectators. It is true that, as a result of the chaos, relatively few instructions were received by individual officers; to a large extent they were acting on their own initiative, but that does not alter the fact that they were acting in the course of their duty. Sometimes they were involved in specific actions in relation to victims of the disaster--trying to find out if a victim was still alive and, in the belief or hope that he was, applying mouth to mouth resuscitation or cardiac massage; transporting, or helping to transport bodies on makeshift stretchers to the gymnasium; laying out the bodies; standing by an individual body; identifying bodies, which involved looking into their eyes and mouths; dealing with enquiries from distraught relatives, which was described by one officer as appalling; and so on. Some of their actions could be described as acts of rescue, but in my opinion that is not important, having regard to the nature and extent of the involvement of the officers in the present case. In one or two cases the actual activities of this kind by a particular officer were relatively few; but for the rest of the time on the ground he was still involved in the course of his duty, looking for useful tasks to perform. It is also true that, during his involvement, each of them saw, and was much affected by, terrible sights; but that does not mean that they should be regarded as bystanders and so treated as secondary offenders, or that what they witnessed should be put on one side. This is because, in a case such as this, what they saw was part and parcel of their involvement in the aftermath of the event.

Moreover, in judging whether psychiatric illness was foreseeable in any particular case, we have to have regard not only to the nature of each officer's involvement, but also to the context in which that involvement took place. Although we get glimpses of the context from the statements--of the chaos, the hysteria, the breakdown of crowd control, the threatening behaviour of the crowd, which was described as shouting and screaming--each statement is very largely devoted to the actual movements of the officer concerned, what he did and what he saw. The background is mostly taken for granted. Yet it is not difficult for us to grasp that the atmosphere of this wholly exceptional tragedy, in the aftermath of which the officers became involved, and the length of time during which the officers were exposed to the consequences of the tragedy, were potent forces which are highly relevant to the question whether, in each of their cases, psychiatric injury was a consequence of their involvement which was reasonably foreseeable by their "employer" who was responsible for their safety at work. Looking at the picture as a whole, I have come to the conclusion that, in the case of each of the five respondents, that question must be answered in the affirmative, as it must also be in the case of officers in the position of Mr. Hallam, and that the appellant Chief Constable was in breach of his duty to them.

(3) Conclusion.

For these reasons I would dismiss all the appeals with costs, and remit the issue of causation to a trial judge.

LORD STEYN

My Lords,

In my view the claims of the four police officers were rightly dismissed by Waller J. (now Lord Justice Waller) and the majority in the Court of Appeal erred in reversing him: Frost v. Chief Constable of South Yorkshire Police [1997] 3 W.L.R. 1194. Different kinds of harm

The horrific events of 15 April 1989 at the Hillsborough Football Stadium in Sheffield resulted in the death of 96 spectators and physical injuries to more than 700. It also scarred many others for life by emotional harm. It is admitted by the Chief Constable that the events were caused by the negligence of the police in allowing the overcrowding of two spectator pens. In an ideal world all those who have suffered as a result of the negligence ought to be compensated. But we do not live in Utopia: we live in a practical world where the tort system imposes limits to the classes of claims that rank for consideration as well as to the heads of recoverable damages. This results, of course, in imperfect justice but it is by and large the best that the common law can do. The application of the requirement of reasonable foreseeability was sufficient for the disposal of the resulting claims for death and physical injury. But the common law regards reasonable foreseeability as an inadequate tool for the disposal of claims in respect of emotional injury.

The law divides those who were mentally scarred by the events of Hillsborough in different categories. There are those whose mental suffering was a concomitant of physical injury. This type of mental suffering is routinely recovered as "pain and suffering". Next, there are those who did not suffer any physical injuries but sustained mental suffering. For present purposes this category must be subdivided into two groups. First, there are those who suffered from extreme grief. This category may include cases where the condition of the sufferer is debilitating. Secondly, there are those whose suffering amounts to a recognizable psychiatric illness. Diagnosing a case as falling within the first or second category is often difficult. The symptoms can be substantially similar and equally severe. The difference is a matter of aetiology: see the explanation in Munkman, Damages for Personal Injuries and Death, 10th ed., 118, note 6. Yet the law denies redress in the former case: see Hinz v. Berry [1970] 2 Q.B. 40, at 42 but compare the observations of Thorpe L.J. in Vernon v. Bosley [1997] 1 All E.R. 577, at 610, that grief constituting pathological grief disorder is a recognizable psychiatric illness and is recoverable. Only recognizable psychiatric harm ranks for consideration. Where the line is to be drawn is a matter for expert psychiatric evidence. This distinction serves to demonstrate how the law cannot compensate for all emotional suffering even if it is acute and truly debilitating.

The four police officers were actively helping to deal with the human consequences of the tragedy and as a result suffered from post traumatic stress disorder. The police officers put in the forefront of their case that they suffered harm as a result of a tort and that justice demands that they should be compensated. A constant theme of the argument of counsel for the police officers was that there is no justification for regarding physical and psychiatric injury as different kinds of damage, and in so arguing he was repeating an observation of Lord Lloyd of Berwick in Page v. Smith [1996] A.C. 155, at 197G. It is of some importance to examine this proposition. Courts of law must act on the best medical insight of the day. Nowadays courts accept that there is no rigid distinction between body and mind. Courts accept that a recognizable psychiatric illness results from an impact on the central nervous system. In this sense therefore there is no qualitative difference between physical harm and psychiatric harm. And psychiatric harm may be far more debilitating than physical harm.

It would, however, be an altogether different proposition to say that no distinction is made or ought to be made between principles governing the recovery of damages in tort for physical injury and psychiatric harm. The contours of tort law are profoundly affected by distinctions between different kinds of damage or harm: see Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605, at 618E, per Lord Bridge of Harwich. The analogy of the relatively liberal approach to recovery of compensation for physical damage and the more restrictive approach to the recovery for economic loss springs to mind. Policy considerations encapsulated by Justice Cardozo's spectre of liability for economic loss "in an indeterminate amount for an indeterminate time to an indeterminate class" played a role in the emergence of a judicial scepticism since Murphy v. Brentwood District Council [1991] A.C. 398 about an overarching principle in respect of the recovery of economic loss: see Steele, Scepticism and the Law of Negligence, [1993] C.L.J. 437. The differences between the two kinds of damage have led to the adoption of incremental methods in respect of the boundaries of liability for economic loss.

Similarly, in regard to the distinction between physical injury and psychiatric harm it is clear that there are policy considerations are at work. That can be illustrated by reference to the Criminal Injuries Compensation Scheme. Section 109(2) of the Criminal Justice Act 1988 contains this restrictive rule:

      "Harm to a person's mental condition is only a criminal    injury if it is attributable -   (a) to his having been put in fear of immediate physical injury to himself or another; or   (b) to his being present when another sustained a criminal injury other than harm to his mental condition."

The reason for the restriction is that Parliament was fearful that a more liberal rule would impose an intolerable burden on the public purse. Parliament has also decided that the only persons who can claim bereavement damages are parents and spouses: section 1(A)(7) of the Fatal Accidents Act 1976. The spectre of a wide a class of claimants in respect of bereavement led to an arbitrary but not necessarily irrational rule.

Policy Considerations and Psychiatric Harm

Policy considerations have undoubtedly played a role in shaping the law governing recovery for pure psychiatric harm. The common law imposes different rules for the recovery of compensation for physical injury and psychiatric harm. Thus it is settled law that bystanders at tragic events, even if they suffer foreseeable psychiatric harm, are not entitled to recover damages: Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310. The courts have regarded the policy reasons against admitting such claims as compelling.

It seems to me useful to ask why such different rules have been created for the recovery of the two kinds of damage. In his Casebook on Tort, 7th ed., Weir gives the following account (at 88):

     ". . . . there is equally no doubt that the public . . . draws a distinction between the neurotic and the cripple, between the man who loses his concentration and the man who loses his leg. It is widely felt that being frightened is less than being struck, that trauma to the mind is less than lesion to the body. Many people would consequently say that the duty to avoid injuring strangers is greater than the duty not to upset them. The law has reflected this distinction as one would expect, not only by refusing damages for grief altogether, but by granting recovery for other psychical harm only late and grudgingly, and then only in very clear cases. In tort, clear means close--close to the victim, close to the accident, close to the defendant.".

I do not doubt that public perception has played a substantial role in the development of this branch of the law. But nowadays we must accept the medical reality that psychiatric harm may be more serious than physical harm. It is therefore necessary to consider whether there are other objective policy considerations which may justify different rules for the recovery of compensation for physical injury and psychiatric harm. And in my view it would be insufficient to proceed on the basis that there are unspecified policy considerations at stake. If, as I believe, there are such policy considerations it is necessary to explain what the policy considerations are so that the validity of my assumptions can be critically examined by others.

My impression is that there are at least four distinctive features of claims for psychiatric harm which in combination may account for the differential treatment. Firstly, there is the complexity of drawing the line between acute grief and psychiatric harm: see Hedley, Nervous Shock: Wider Still and Wider, 1997 C.L.J. 254. The symptoms may be the same. But there is greater diagnostic uncertainty in psychiatric injury cases than in physical injury cases. The classification of emotional injury is often controversial. In order to establish psychiatric harm expert evidence is required. That involves the calling of consultant psychiatrists on both sides. It is a costly and time consuming exercise. If claims for psychiatric harm were to be treated as generally on a par with physical injury it would have implications for the administration of justice. On its own this factor may not be entitled to great weight and may not outweigh the considerations of justice supporting genuine claims in respect of pure psychiatric injury. Secondly, there is the effect of the expansion of the availability of compensation on potential claimants who have witnessed gruesome events. I do not have in mind fraudulent or bogus claims. In general it ought to be possible for the administration of justice to expose such claims. But I do have in mind the unconscious effect of the prospect of compensation on potential claimants. Where there is generally no prospect of recovery, such as in the case of injuries sustained in sport, psychiatric harm appears not to obtrude often. On the other hand, in the case of industrial accidents, where there is often a prospect of recovery of compensation, psychiatric harm is repeatedly encountered and often endures until the process of claiming compensation comes to an end: see James v. Woodall Duckham Construction Co. Ltd. [1969] 1 W.L.R. 903 (CA). The litigation is sometimes an unconscious disincentive to rehabilitation. It is true that this factor is already present in cases of physical injuries with concomitant mental suffering. But it may play a larger role in cases of pure psychiatric harm, particularly if the categories of potential recovery are enlarged. For my part this factor cannot be dismissed.

The third factor is important. The abolition or a relaxation of the special rules governing the recovery of damages for psychiatric harm would greatly increase the class of persons who can recover damages in tort. It is true that compensation is routinely awarded for psychiatric harm where the plaintiff has suffered some physical harm. It is also well established that psychiatric harm resulting from the apprehension of physical harm is enough: Page v. Smith [1996] A.C. 155. These two principles are not surprising. In built in such situations are restrictions on the classes of plaintiff who can sue: the requirement of the infliction of some physical injury or apprehension of it introduces an element of immediacy which restricts the category of potential plaintiffs. But in cases of pure psychiatric harm there is potentially a wide class of plaintiffs involved. Fourthly, the imposition of liability for pure psychiatric harm in a wide range of situations may result in a burden of liability on defendants which may be disproportionate to tortious conduct involving perhaps momentary lapses of concentration, e.g. in a motor car accident.

The wide scope of potential liability for pure psychiatric harm is not only illustrated by the rather unique events of Hillsborough but also by of accidents involving trains, coaches and buses, and the everyday occurrence of serious collisions of vehicles all of which may result in gruesome scenes. In such cases there may be many claims for psychiatric harm by those who have witnessed and in some ways assisted at the scenes of the tragic events. Moreover, protagonists of very wide theories of liability for pure psychiatric loss have suggested that "workplace claims loom large as the next growth area of psychiatric injury law", the paradigm case being no doubt a workman who has witnessed a tragic accident to an employee: Mullany and Handford, Hillsborough Replayed (1997) 113 L.Q.R. 410, at 415.

The police officers claims

In the present case, the police officers were more than mere bystanders. They were all on duty at the stadium. They were all involved in assisting in the course of their duties in the aftermath of the terrible events. And they have suffered debilitating psychiatric harm. The police officers therefore argue, and are entitled to argue, that the law ought to provide compensation for the wrong which caused them harm. This argument cannot be lightly dismissed. But I am persuaded that a recognition of their claims would substantially expand the existing categories in which compensation can be recovered for pure psychiatric harm. Moreover, as the majority in the Court of Appeal was uncomfortably aware, the awarding of damages to these police officers sits uneasily with the denial of the claims of bereaved relatives by the decision of the House of Lords in Alcock. The decision of the Court of Appeal has introduced an imbalance in the law of tort which might perplex the man on the Underground. Since the answer may be that there should be compensation in all these categories I must pursue the matter further.

The case law

In order to understand the law as it stands it is necessary to trace in outline its development. In Dulieu v. White & Sons [1901] 2 K.B. 669 the Court of Appeal enunciated a narrow and relatively simple rule: psychiatric injury was only actionable if it arose from the plaintiff's reasonably apprehended fear for his safety. But in Hambrook v. Stokes Brothers [1925] l.K.B. 141 the Court of Appeal rejected the limitation laid down in Dulieu v. White & Sons in favour of a mother who suffered psychiatric injury as a result an apprehension of an injury to her child from whom she had just parted. The mother was described as "courageous and devoted to her child" and was allowed to recover. The next development was the decision of the House of Lords in Bourhill v. Young [1943] A.C. 92. There are dicta in this case which appear to favour the confining of liability for psychiatric injury to those within the area of physical harm. But the status of Hambrook v. Stokes Brothers was left unclear. Then came the decision in McLoughlin v. O'Brian [1983] l.A.C. 410. The plaintiff's husband and children were injured in a car accident. She was informed and saw the serious injuries of her husband and children in hospital. She also was informed that one of her children had been killed. She suffered psychiatric injury. The House of Lords upheld the plaintiff's claim. There are passages in the speeches which tend to support a wide theory of liability for psychiatric injury. Lord Wilberforce countenanced "the real need to the law to place some limitation upon the extent of admissible claims": 442A. For somewhat different reasons Lord Russell of Killowen, Lord Scarman and Lord Bridge of Harwich regarded limitations on the ground of policy considerations as essentially arbitrary: see also Lord Edmund Davies, 425G. This decision was given at the peak of the expansion of tort liability in the wake of Anns v. Merton London Borough Council [1978] A.C. 728.

In 1982 in McLoughlin the House acted on the reassuring picture that the ". . . scarcity of cases which have occurred in the past, and the modest sums recovered, give some indication that fears of the flood of litigation may be exaggerated . . .": at 421H, per Lord Wilberforce. This assumption has been falsified by the growth of claims for psychiatric damage in the last ten years. In Fear for the Future: Liability for Infliction of Psychiatric Disorder, essay in Torts in the Nineties (1997) ed. Nicholas J Mullany, the editor has attested to the "growing appreciation that the scope for psychiatric suits is much wider than traditionally perceived" and he listed the expansion into claims for workplace stress; suits by members of the armed services in respect of mental suffering; claims for psychiatric damage against medical practitioners and health authorities; and so forth. In addition the same author stated that there has in recent years been a steady growth in Australia in the more common place psychiatric injury proceedings based on the death, injury or imperilment of loved ones or fear of ones own safety: at 112. Moreover, nowadays it would be quite unrealistic to describe awards for psychiatric damage as modest. In any event, since McLoughlin the pendulum has swung and the House of Lords have taken greater account of policy considerations both in regard to economic loss and psychiatric injury.

The leading decision of the House of Lords is Alcock (1992). Before this case the general rule was that only parents and spouses could recover for psychiatric harm suffered as a result of witnessing a traumatic event. In Alcock the group of plaintiffs who sued for psychiatric injury resulting from the events at Hillsborough included relatives who were in the stadium. The House dismissed all the claims including the claim of a plaintiff who was himself witnessed the scenes at the football ground where two of his brothers died: see Lord Ackner's comment, at p. 406A that "the quality of brotherly love is well known to differ widely" This decision established that a person who suffers reasonably foreseeable psychiatric illness as a result of another person's death or injury cannot recover damages unless he can satisfy three requirements, viz: (i) that he had a close tie of love and affection with the person killed, injured or imperilled; (ii) that he was close to the incident in time and space; (iii) that he directly perceived the incident rather than, for example, hearing about it from a third person.

Lord Oliver observed that the law was not entirely satisfactory or logically defensible but he thought that considerations of policy made it explicable: at 418. Professor Jane Stapleton has described the law as stated in Alcock as difficult to justify: see In Restraint of Tort, an essay in Frontiers of Liability, ed., by Birks, 1994. She remarked, at 95:

     "That at present claims can turn on the requirement of 'close ties of love and affection' is guaranteed to produce outrage. Is it not a disreputable sight to see brothers of Hillsborough victims turned away because they had no more than brotherly love towards the victim?

     "In future cases will it not be a grotesque sight to see relatives scrabbling to prove their especial love for the deceased in order to win money damages and for the defendant to have to attack that argument?"

But Alcock is the controlling decision.

The decision of the House of Lords in Page v. Smith [1996] A.C. 155 was the next important development in this branch of the law. The Plaintiff was directly involved in a motor car accident. He was within the range of potential physical injury. As a result of the accident he suffered from chronic fatigue syndrome. In this context Lord Lloyd of Berwick adopted a distinction between primary and secondary victims: Lord Ackner and Lord Browne-Wilkinson agreed. Lord Lloyd said that a plaintiff who had been within the range of foreseeable injury was a primary victim. Mr Page fulfilled this requirement and could in principle recover compensation for psychiatric loss. In my view it follows that all other victims, who suffer pure psychiatric harm, are secondary victims and must satisfy the control mechanisms laid down in Alcock. There has been criticism of this classification: see Teff, Liability for Negligently inflicted Psychiatric Harm: Justifications and Boundaries, 1998 C.L.J. 91, at 93. But, if the narrow formulation by Lord Lloyd of Berwick of who may be a primary victim is kept in mind, this classification ought not to produce inconsistent results. In any event, the decision of the House of Lords in Page v. Smith was plainly intended, in the context of pure psychiatric harm, to narrow the range of potential secondary victims. The reasoning of Lord Lloyd and the Law Lords who agreed with him was based on concerns about an ever widening circle of plaintiffs.

The proceedings below

Waller J. rejected the claims of the police officers. The majority in the Court of Appeal upheld their claims. The first route followed by the majority was to allow some claims because the police officers were on duty in the stadium when they witnessed the gruesome events. The second route was to allow some claims because the police officers were said to be rescuers.

The employment argument

The majority in the Court of Appeal upheld the argument of counsel for two police officers that they fall into a special category. That argument was again deployed on appeal to the House. The argument was that the present case can be decided on conventional employer's liability principles. And counsel relies on the undoubted duty of an employer to protect employers from harm through work. It is true that there is no contract between police officers and a chief constable. But it would be artificial to rest a judgment on this point: the relationship between the police officers and the chief constable is closely analogous to a contract of employment. And I am content to approach the problem as if there was an ordinary contract of employment between the parties. Approaching the matter in this way it became obvious that there were two separate themes to the argument. The first rested on the duty of an employer to care for the safety of his employees and to take reasonable steps to safeguard them from harm. When analysed this argument breaks down. It is a non sequitur to say that because an employer is under a duty to an employee not to cause him physical injury, the employer should as a necessary consequence of that duty (of which there is no breach) be under a duty not to cause the employee psychiatric injury: see Hilson, Nervous Shock and Categorization of Victims, [1998] Tort L.R. 37, at 42. The rules to be applied when an employee brings an action against his employer for harm suffered at his workplace are the rules of tort. One is therefore thrown back to the ordinary rules of the law of tort which contain restrictions on the recovery of compensation for psychiatric harm. This way of putting the case does not therefore advance the case of the police officers. The duty of an employer to safeguard his employees from harm could also be formulated in contract. In that event, and absent relevant express provisions, a term is implied by law into the contract as an incident of a standardized contract: see Scally v. Southern Health and Social Services Board [1992] 1.A.C. 294. But such a term could not be wider in scope than the duty imposed by the law of tort. Again one is thrown back to the ordinary rules of the law of tort. The first way of formulating the argument based on the duty of an employer does not therefore assist the police officers.

The second theme is on analysis an argument as to where the justice lay on this occasion. One is considering the claims of police officers who sustained serious psychiatric harm in the course of performing and assisting their duties in harrowing circumstances. That is, a weighty moral argument: the police perform their duties for the benefit of us all. The difficulty is, however, twofold. First, the pragmatic rules governing the recovery of damages for pure psychiatric harm do not at present include police officers who sustain such injuries while on duty. If such a category were to be created by judicial decision, the new principle would be available in many different situations, e.g. doctors and hospital workers who are exposed to the sight of grievous injuries and suffering. Secondly, it is common ground that police officers who are traumatized by something they encounter in their work have the benefit of statutory schemes which permit them to retire on pension. In this sense they are already better off than bereaved relatives who were not allowed to recover in Alcock. The claim of the police officers on our sympathy, and the justice of the case, is great but not as great as that of others to whom the law denies redress.

The rescue argument

The majority in the Court of Appeal held that three of the police officers could be classed as rescuers because they actively gave assistance in the aftermath of the tragedy: the majority used the concept of rescuer in an undefined but very wide sense: see Rose L.J., at 1220; Henry L.J. expressly agreed with this passage. This reasoning was supported by counsel for the appellant on the appeal.

The law has long recognized the moral imperative of encouraging citizens to rescue persons in peril. Those who altruistically expose themselves to danger in an emergency to save others are favoured by the law. A rescue attempt to save someone from danger will be regarded as foreseeable. A duty of care to a rescuer may arise even if the defendant owed no duty to the primary victim, for example, because the latter was a trespasser. If a rescuer is injured in a rescue attempt, a plea of volenti non fit injuria will not avail a wrongdoer. A plea of contributory negligence will usually receive short shrift. A rescuer's act in endangering himself will not be treated as a novus actus interveniens. The meaning given to the concept of a rescuer in these situations is of no assistance in solving the concrete case before the House. Here the question is: who may recover in respect of pure psychiatric harm sustained as a rescuer?

Counsel for the appellant is invoking the concept of a rescuer as an exception to the limitations recognized by the House of Lords in Alcock and Page v. Smith. The restrictive rules, and the underlying policy considerations, of the decisions of the House are germane. The specific difficulty counsel faces is that it is common ground that none of the four police officers were at any time exposed to personal danger and none thought that they were so exposed. Counsel submitted that this is not a requirement. He sought comfort in the general observations in Alcock of Lord Oliver about the category of "participants": see 407E. None of the other Law Lords in Alcock discussed this category. Moreover, the issue of rescuers entitlement to recover for psychiatric harm was not before the House on that occasion and Lord Oliver was not considering the competing arguments presently before the House. The explanation of Lord Oliver's observations has been the subject of much debate. It was also vigorously contested at the bar. In my view counsel for the appellant has tried to extract too much from general observations not directed to the issue now before the House: see also the careful analysis of the Lord President in Robertson v. Forth Road Bridge Joint Board [1995] S.C. 364, at 371G-372B. Counsel was only able to cite one English decision in support of his argument namely the first instance judgment in Chadwick v. British Railways Board [1967] 1.Q.B. 912. Mr Chadwick had entered a wrecked railway carriage to help and work among the injured. There was clearly a risk that the carriage might collapse. Waller J. (later Lord Justice Waller) said (at 918A)

     "although there was clearly an element of personal danger in what Mr. Chadwick was doing, I think I must deal with this case on the basis that it was the horror of the whole experience which caused his reaction."

On the judge's findings the rescuer had passed the threshold of being in personal danger but his psychiatric injury was caused by "the full horror of his experience" when he was presumably not always in personal danger. This decision has been cited with approval: see McLoughlin v. O'Brian, at 419B, per Lord Wilberforce; at 424D-G, per Lord Edmund Davies: at 437H--438A, per Lord Bridge of Harwich; and in Alcock at 408B-D per Lord Oliver. I too would accept that Chadwick was correctly decided. But it is not authority for the proposition that a person who never exposed himself to any personal danger and never thought that he was in personal danger can recover pure psychiatric injury as a rescuer. In order to recover compensation for pure psychiatric harm as rescuer it is not necessary to establish that his psychiatric condition was caused by the perception of personal danger. And Waller J. rightly so held. But in order to contain the concept of rescuer in reasonable bounds for the purposes of the recovery of compensation for pure psychiatric harm the plaintiff must at least satisfy the threshold requirement that he objectively exposed himself to danger or reasonably believed that he was doing so. Without such limitation one would have the unedifying spectacle that, while bereaved relatives are not allowed to recover as in Alcock, ghoulishly curious spectators, who assisted in some peripheral way in the aftermath of a disaster, might recover. For my part the limitation of actual or apprehended dangers is what proximity in this special situation means. In my judgment it would be an unwarranted extension of the law to uphold the claims of the police officers. I would dismiss the argument under this heading.

 
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