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Session 1998-99
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Judgments

Judgments -- White and Others v. Chief Constable of South Yorkshire and Others

HOUSE OF LORDS

  Lord Goff of Chieveley   Lord Griffiths   Lord Browne-Wilkinson
  Lord Steyn   Lord Hoffmann

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

WHITE AND OTHERS
(RESPONDENTS)

v.

CHIEF CONSTABLE OF SOUTH YORKSHIRE AND OTHERS
(APPELLANTS)

ON 3 DECEMBER 1998

LORD BROWNE-WILKINSON

My Lords,

I have read in draft the speeches of my noble and learned friends, Lord Steyn and Lord Hoffmann. I agree that for the reasons they give these appeals should be allowed and the actions dismissed.

LORD GRIFFITHS

My Lords,

I have had the advantage of reading the speeches of your Lordships before giving my own opinion. In those speeches are cited all the relevant authorities that trace the development of the common law's attitude to psychiatric injury. They show that the common law has regarded claims for psychiatric injury with caution and has not until very recent times been prepared to treat them as on a par with physical injury. I do not think I shall serve any useful purpose by travelling over that historic ground again in this opinion, and I shall take as my starting point the two recent decisions of the House of Lords as stating the present state of the common law.

In Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310, claims were brought by those who had suffered psychiatric injury as a result of the Hillsborough disaster. Two of the plaintiffs were spectators in the ground, but not in the pens where the disaster occurred, the remainder of the plaintiffs learned of the disaster through radio or television broadcasts. All the plaintiffs lost, or feared they might have lost, a relative or fiance in the disaster. Thus it will be seen that two of the plaintiffs were witnesses to the disaster, but not in peril themselves, the remainder were not in the ground when the accident occurred. One of the plaintiffs gave some assistance to the injured but the case was not argued on the basis that he should be treated as a rescuer. The two plaintiffs at the ground were treated as bystanders who witnessed the disaster. All the plaintiffs lost their cases because they did not fulfil one or other of the control mechanisms, all of which the present law requires in cases where damages for psychiatric injury are claimed by plaintiffs who were not directly threatened by the accident but learned of it through sight or hearing of it. These control mechanisms are as Lord Hoffmann sets out in his opinion.

     "1. There must be a close tie of love and affection between the plaintiff and the victim.  2. The plaintiff must have been present at the accident or its immediate aftermath.  3. The psychiatric injury must have been caused by direct perception of the accident or its immediate aftermath and not by hearing about it from somebody else."

There is a further requirement in the bystander case and that is that psychiatric injury was reasonably foreseeable as a likely consequence of exposure to the trauma of the accident or its immediate aftermath. The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals. This is not to be confused with the "eggshell skull" situation, where as a result of a breach of duty the damage inflicted proves to be more serious than expected. It is a threshold test of breach of duty; before a defendant will be held in breach of duty to a bystander he must have exposed them to a situation in which it is reasonably foreseeable that a person of reasonable robustness and fortitude would be likely to suffer psychiatric injury. However, as in the situation we are considering, namely the bystander who is seeing or hearing of the event from a safe distance, the only injury that he could suffer would be psychiatric injury so we can substitute personal injury for psychiatric injury, and this will fit more easily with Page v. Smith [1996] A.C. 155 to which I now turn.

In Page v. Smith the plaintiff was driving his car at 30 miles an hour when the defendant turned right immediately into his path. The consequence was an accident in which both cars suffered considerable damage but the occupants all escaped physical injury. The Plaintiff, however, had suffered for 20 years from a condition known as chronic fatigue syndrome, which manifested itself from time to time. The judge held that the shock of the accident reactivated this condition which was now in all probability permanent and that it was unlikely that the plaintiff would be able to return to full-time employment, and he awarded damages of £162,153. The Court of Appeal allowed the defendants appeal on the ground that psychiatric injury was not a foreseeable consequence of the accident. The House of Lords by a majority held that in circumstances such as a road accident in which a defendant owes a duty of care not to cause personal injury it mattered not whether the injury suffered as a result of the defendant's negligence was physical injury or psychiatric injury and liability would be established without the necessity to prove as an independent part of the cause of action that psychiatric injury, in the absence of physical injury, was foreseeable.

For my part I regard this as a sensible development of the law and I note from the Law Commission Report on Liability for Psychiatric Illness (1998) (Law Com. No. 249) that it has been supported by the majority of practitioners. If some very minor physical injury is suffered and this triggers a far more serious psychiatric disorder no one questions that damages are recoverable for the psychiatric disorder. If the victim of the negligence escapes minor physical injury but the shock or fear of the peril in which he is placed by the defendant's negligent conduct causes psychiatric injury I can see no sensible reason why he should not recover for that psychiatric damage.

As medical science advances we realise how difficult it is to separate out the physical and psychiatric consequences of trauma, and I believe the law would do better to regard both as personal injury as Page v. Smith requires in the case of primary victims, that is victims who are imperilled or reasonably believe themselves to be imperilled by the defendant's negligence. Insofar as secondary victims are concerned, that is those who are bystanders, we can still ask the question was personal injury reasonably foreseeable if we regard psychiatric damage as personal injury. For as I have pointed out no question of physical injury arises in the case of the bystander.

Having set out my understanding of the present state of the law I turn to consider the position of the plaintiffs in the appeal. They were all police officers and it is agreed that as such they are to be considered for the purposes of the law as though they were employees of the Chief Constable. The case for the police officers is put in two ways. First it is said that they are entitled to recover for a breach of the duty owed to them as employees and secondly that at least some of them are entitled to recover as rescuers.

Their case as employees is put thus: they were all at the ground in the course of their duty, as employees. The Chief Constable owed them a duty to take reasonable care not to expose them to unnecessary risk of injury during the course of their employment. The Chief Constable is vicariously liable for the negligence of the police officer who caused the catastrophe by admitting the crowd in to the pens. It was the impact of the horror of the situation on the minds of the police officers that caused them psychiatric injury. By the negligent creation of the horrific situation the Chief Constable was in breach of his duty not to expose the police to unnecessary risk of injury and is consequently liable for their injuries.

If this approach is right it means that the police will be entitled to recover damages whereas spectators and others on duty in the ground who were exposed to the same horror and risk of psychiatric injury will not be able to do so. I can not believe that this would be a fair or acceptable state of the law. If anything one would expect the police to be at a disadvantage. The police are trained to deal with catastrophic incidents and reasonably well compensated under the terms of their service if they do suffer injury in the course of their duties.

The law of master and servant is not a discrete and separate branch of the law of tort, but is to be considered in relation to actions in tort generally. Here we are considering the tort of negligence and the nature of the duty of care owed by one who negligently creates a catastrophic situation. In order that there shall be some limits to the consequence of the negligence for which the defendant is to be made liable the law imposes the controls I have discussed in Alcock.

In my view these should apply to all those not directly imperilled or who reasonably believe themselves to be imperilled, irrespective of whether they are employees or not. Accordingly, I would allow the appeals insofar as the police rely upon their status as employees.

I turn last to the special category known as "rescuers." If a tort feasor creates a dangerous situation he can foresee that others will attempt to rescue the victims, or potential victims of his negligence. It is well settled that if a rescuer suffers physical injury in the rescue attempt he will be entitled to damages from the tort feasor. If it is foreseeable that the rescuer may suffer personal injury in the form of psychiatric injury rather than physical injury, why should he not recover for that injury. The fear is expressed that if foreseeability of psychiatric injury is sufficient it will open the floodgates to claims, many of an unmeritorious kind, from those who give assistance at any accident. I believe that the courts are well capable of controlling any such flood of claims. Whether or not a person is to be regarded as a rescuer will be a question of fact to be decided on the particular facts of the case. Trivial or peripheral assistance will not be sufficient see McFarlane v. E.E. Caledonian Limited [1994] 2 All E.R.1.

If the rescuer is in no physical danger it will only be in exceptional cases that personal injury in the form of psychiatric injury will be foreseeable for the law must take us to be sufficiently robust to give help at accidents that are a daily occurrence without suffering a psychiatric breakdown. But where the accident is of a particular horrifying kind and the rescuer is involved with the victims in the immediate aftermath it may be reasonably foreseeable that the rescuer will suffer psychiatric injury as Mr. Chadwick did when trying to bring relief and comfort to the victims of the Lewisham train disaster. Mr. Chadwick suffered his injury because of the terrible impact on his mind of the suffering he witnessed in his rescue attempt, and not because of any fear for his own safety, see Chadwick v. British Railways Board [1967] 1 W.L.R. 912. What rescuer ever thinks of his own safety? It seems to me that it would be a very artificial and unnecessary control, to say a rescuer can only recover if he was in fact in physical danger. A danger to which he probably never gave thought, and which in the event might not cause physical injury.

A line has to be drawn in rescue cases between rescue in the sense of immediate help at the scene of the disaster, and treatment of the victims after they are safe. I do not believe that this will be difficult to recognize on the facts of a particular case.

After a careful analysis of the evidence, Rose L.J. identified three of the police officers as rescuers. I would myself dismiss the appeals in respect of those officers, namely White, Bairstow and Bevis. I would add that I do not share the view that the public would find it in some way offensive that those who suffered disabling psychiatric illness as a result of their efforts to rescue the victims should receive compensation, but that those who suffered the grief of bereavement should not. Bereavement and grief are a part of the common condition of mankind which we will all endure at some time in our lives. It can be an appalling experience but it is different in kind from psychiatric illness and the law has never recognized it as a head of damage. We are human and we must accept as a part of the price of our humanity the suffering of bereavement for which no sum of money can provide solace or comfort. I think better of my fellow men than to believe that they would, although bereaved, look like dogs in the manger upon those who went to the rescue at Hillsborough.

I would, however, allow the appeal in respect of P.C. Glave who was not a rescuer, but relied only upon his status as an employee.

LORD GOFF OF CHIEVELEY

My Lords,

These appeals arise from further proceedings following the tragic events which occurred at the Hillsborough Football Stadium in Sheffield on 15 April 1989, when 95 spectators died and hundreds more were injured, one fatally, as a result of crushing sustained in Spectator Pens 3 and 4 at the Leppings Lane end of the Stadium. The immediate cause of the disaster was a senior police officer's decision at 2.32 p.m. to open an outer gate (gate C) without cutting off access to Pens 3 and 4. As a result, spectators in those Pens suffered crushing as more spectators entered the ground through gate C.

The present case is concerned with claims by members of the South Yorkshire Police Force who were on duty at Hillsborough that afternoon, and who claim to have suffered psychiatric damage in consequence. Of the 52 serving police officers who commenced proceedings, 15 plaintiffs appear to have abandoned their actions, and the defendants consented to judgment in the case of 14 plaintiffs who went into Pens 3 and 4 and were actively engaged in the removal of fans who were being crushed. Of the remainder, the cases of six plaintiffs who performed different tasks on the afternoon of the Hillsborough tragedy were selected for trial on the issue of liability, for which purpose it was admitted that these plaintiffs had suffered psychiatric damage. The six plaintiffs, and their ranks at the relevant time, are Inspector Henry White, Police Constable Mark Bairstow, Police Constable Anthony Bevis, Police Constable Geoffrey Glave, Sergeant Janet Smith, and Detective Constable Ronald Hallam. There are three defendants to the proceedings, who have admitted that the deaths and physical injuries suffered by those in Pens 3 and 4 occurred as a result of their negligence. The issue of liability has however been tried with reference only to the first defendant, the Chief Constable of South Yorkshire. There was no dispute as to what the six plaintiffs saw and did at the Hillsborough Stadium on the day of the disaster. This is set out in written statements of the plaintiffs, to which I will have to refer in due course.

The issue of liability came on for trial before Waller J. Evidence was restricted to the agreed statements and medical evidence, and a short section of agreed video film footage shown to the court. The issue of causation was not dealt with, it being agreed that if, by reason of the Court's decision, it arose, the issue would be remitted to a trial judge. Waller J. dismissed the claims of all six plaintiffs. All of them except Mr. Hallam appealed to the Court of Appeal. Although Mr. Hallam did not appeal, the Court of Appeal was invited to rule whether there was a breach of duty to police officers in the position of Mr. Hallam. The Court of Appeal (Rose and Henry L.JJ., Judge L.J. dissenting) allowed the appeals of all except Miss Smith, and held that persons in the position of Mr. Hallam too should be entitled to succeed. Judge L.J. would have dismissed all the appeals. It is against that decision that the defendants now appeal to your Lordships' House, with the leave of this House. Miss Smith has not appealed.

Waller J.

There are two essential strands in Waller J.'s judgment.

(1) He rejected the argument that the plaintiffs could recover damages as primary victims simply on the basis that the Chief Constable was in breach of the duty of care owed by him to the police officers which was analogous to that owed by an employer to his employees. He recognised that there were cases in which an employee could recover damages from his employer in respect of psychiatric injury caused by breach of the latter's duty of care. But in his view the position of a Chief Constable was quite different from that of an ordinary employer. It could not be said to be a Chief Constable's duty not to expose a police officer to injury by nervous shock; indeed there will be many situations in which a Chief Constable will deploy officers at incidents which will be horrific and which will thus carry the risk of nervous shock. Here there was no allegation that there was any breach of duty in deploying the officers at the scene either at the beginning of the match or once the disaster had commenced. The case rested purely on the vicarious liability of the senior officers in relation to causing the incidents which killed and injured victims. In this context, the plaintiffs were secondary victims; and the nature of their relationship with the Chief Constable did not give them an advantage over bystanders whose presence was clearly foreseeable, unless it was by virtue of carrying out an operation such as rescue.

(2) So far as rescue was concerned, police officers must be regarded as professional rescuers. They will not be persons of ordinary phlegm, but of extraordinary phlegm hardened to events which would to ordinary persons cause distress; and, if their activity of rescuing is to ground recovery, it must make it just and reasonable that they should recover when bystanders should not. There should be something akin to the fireman's rule so far as psychiatric damage is concerned. The activity and involvement in the incident or its immediate aftermath must be such as to make it fair and reasonable that the plaintiff should recover when a bystander would not. In particular, "immediate" should be construed narrowly; it was unlikely that it should cover anybody not attending the actual scene.

As a result, he held that all the plaintiffs' claims must fail. None of them could establish that he was a primary victim simply by reference to the relationship between himself and the Chief Constable. None of them qualified as a rescuer, except Inspector White, who joined the end of a line bringing victims out of the Pens. Even so, he was not performing a task which would make it just and reasonable to place him within the area of proximity when a spectator who simply viewed the horrific scene would not be. In addition, it was doubtful whether the psychiatric injury suffered by the plaintiffs could be described as "shock-induced," if that was (as the Judge thought) a necessary requirement.

The Court of Appeal

In the Court of Appeal Rose L.J. first of all singled out rescuers as a special category, pointing out in particular that in Alcock [1992] 1 A.C. 310 Lord Oliver of Aylmerton placed the rescue cases in his first group of nervous shock cases in which the plaintiff was involved as a participant, rather than in his second group in which the plaintiff was no more than a passive and unwilling witness of injury caused to others: see [1992] 1 A.C. 310, 407C-408G. Whether a particular person is a rescuer is a question of fact to be decided in the light of all the circumstances of the case. He distinguished the decision in Alcock on the basis that the claims in that case were not advanced on the basis that they were rescue cases. On the facts of the cases before him, he held that three of the claimants were entitled to succeed on the basis that they were rescuers, viz. P.C. Bevis, P.C. Bairstow and Inspector White.

Rose L.J. however also held that in the master and servant context a duty of care exists by reason of that relationship; and that an employee may depending on the circumstances recover against his employer for physical or psychiatric injury caused in the course of his employment by the employer's negligence. On this basis he held that P.C. Glave, and those in the position of D.C. Hallam, were entitled to recover because they were at the ground in the course of duty, within the area of risk of physical or psychiatric injury and were thus exposed, by the first defendant's negligence, to excessively horrific events such as were likely to cause psychiatric illness even in a police officer.

Henry L.J. agreed with Rose L.J. on the issue of rescuers; but he devoted his judgment to deciding that those police officers who were directly involved as active participants were entitled to recover as employees. I cannot do full justice to Henry L.J.'s judgment in a summary. But in brief he concluded that those police officers who were directly involved were primary victims because they were active participants in the incidents caused by their employer's negligence, and that they were direct victims because their employer owed them a duty of care to protect them from personal injury, including psychiatric damage, caused by his negligence. Furthermore there were no public policy reasons why they should not succeed in their claims. In the result, therefore, he agreed with Rose L.J. as to the disposal of the appeals on the issue of employer's liability, as he did on the issue of rescue.

Judge L.J. dissented. He was much influenced by the decision of your Lordships' House in Page v. Smith [1996] A.C. 155, and in particular by passages in the opinion of Lord Lloyd of Berwick in which he stressed the need to distinguish between primary and secondary victims, and described a primary victim as being within the range of physical injury. His conclusion was that neither those who claim as rescuers, nor those who claim as employees, should necessarily be regarded as primary victims. None of the plaintiffs was at any time present in an area where he or she was exposed to the risk (actual or apprehended) of physical injury arising from the chief constable's negligence. The plaintiffs were therefore all secondary victims to whom the control mechanisms applied. In the case of none was the necessary proximity of relationship established; and, with the arguable exception of Inspector White, in the case of all the necessary proximity of time and place was also absent. Moreover there was no better basis for concluding that psychiatric injury was foreseeable in the case of any of these plaintiffs than it was for the plaintiffs all of whose claims failed in Alcock [1992] 1 A.C. 310. He would therefore have dismissed all the appeals.

The main principles applicable to claims for damages in tort (i.e., in negligence) in respect of psychiatric injury

In the present case we are concerned with claims for liability in negligence in respect of psychiatric injury suffered by persons who claim that they fall into one or other, or both, of two categories--first, the category of employee, and second the category of rescuer. I shall have in due course to examine each of these two categories in some detail. But it is, of course, impossible to consider them in isolation. In order to understand them properly, we must place them within a framework of legal principle. Only if we do that can we understand why these categories exist and what their function is, and identify what are the principles of law applicable to them.

I shall first outline these principles as generally understood before the decision of your Lordships' House in Page v. Smith [1996] 1 A.C. 155. In doing so, and indeed in writing the whole of this opinion, I have been much assisted by the Law Commission's Report No.249 dated March 1998 on Liability for Psychiatric Illness. There are two basic principles. These are:

(1) The Plaintiff must have suffered psychiatric injury in the form of a recognised psychiatric illness

The function of this principle is to exclude claims in respect of normal emotions such as grief or distress. Since it is not in issue that the claimants in the cases presently under appeal did indeed suffer from such an illness, viz. post-traumatic stress disorder (P.T.S.D.), I need say no more on this subject.

(2) Damage to the plaintiff in the form of psychiatric injury must have been reasonably foreseeable by the defendant

Here the central question relates to the nature of the foreseeability which is required to render the defendant liable. The development of the law on this subject has been recounted so often that it is unnecessary for me to repeat it yet again in this opinion. Until Page v. Smith, it was generally understood that what is required in all cases of this kind is foreseeability of psychiatric injury, which used to be called injury by shock. How this came about is summarised most clearly by Mullany and Handford in their scholarly and comprehensive treatise on Tort Liability for Psychiatric Damage: The Law of Nervous Shock (1993), to which I wish to express my indebtedness. They state, at pp. 69-70:

      "In the early shock cases the need for foreseeability of injury by shock was not made clear. The courts were most hesitant to recognise shock as a kind of damage in its own right, and even after repudiating the need for contemporaneous physical impact retained, for a time, the requirement that the plaintiff must be within the area of possible injury by impact . . . rather than by shock--a theory which has been labelled the 'impact theory. . . .'"

      "However, the courts gradually began to appreciate that shock was a distinct kind of damage in itself, different from conventional cases of personal injury. This process was assisted by the recognition, in Hambrook v. Stokes Bros. [1925] 1 K.B. 141 and subsequent cases, that persons outside the zone of physical danger were owed a duty of care, because injury by shock was the only kind of injury that was foreseeable in such circumstances. . . . The 'shock theory' has thus replaced the 'impact theory,' and all the modern psychiatric damage cases affirm that the test is whether injury by shock was foreseeable."

For this last proposition, over 20 cases (from this country, Canada and Australia) are cited. The same understanding of the legal position was expressed by the Law Commission in their Consultation Paper on Liability for Psychiatric Illness (1995) (Law Com. No. 137) at paras.2.3 and 2.9-11.

The formulation of this principle is attributable to a much-quoted statement by Denning L.J. in King v. Phillips [1953] 1 Q.B. 429, 441, that "there can be no doubt since Bourhill v. Young that the test of liability for shock is foreseeability of injury by shock." This principle has been accepted on numerous occasions, but most prominently by Viscount Simonds when delivering the judgment of the Privy Council in Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (The Wagon Mound No. 1) [1961] A.C. 388, 426. In that case, when differentiating damage by fire from other types of physical damage to property for the purposes of liability in tort, he said (at p. 426):

     "We have come back to the plain common sense stated by Lord Russell of Killowen in Bourhill v. Young [1943] A.C. 92. 101. As Denning L.J. said in King v. Phillips [1953] 1 Q.B. 429, 441: 'there can be no doubt that the test of liability for shock is foreseeability of injury by shock.' Their Lordships substitute the word 'fire' for 'shock' and endorse this statement of the law."

The principle of foreseeability of damage by shock, or psychiatric injury as it is now more correctly described, has been held to be subject to the qualification that, where the psychiatric injury suffered by the plaintiff is consequential upon physical injury for which the defendant is responsible in law, the defendant will be bound to compensate the plaintiff in respect of the former even if unforeseeable (see Malcolm v. Broadhurst [1970] 3 All E.R. 508). This is an application of the rule that a wrongdoer must take his victim as he finds him--sometimes called the "talem qualem" rule or, more colloquially, the "eggshell skull" rule. This is a principle of compensation, not of liability. As Lord Wright said in Bourhill v. Young [1943] A.C. 92, 109-110:

     "No doubt, it has long ago been stated and often  restated that if the wrong is established the wrongdoer must take the victim as he finds him. That, however, is only true . . . on the condition that the wrong has been established or admitted. The question of liability is anterior to the question of the measure of the consequences  which go with the liability."

Likewise, in cases where no physical damage has been suffered by the plaintiff, Mullany and Handford state (op. cit. at p. 230), that:

     ". . . a claim for nervous shock is not actionable until the plaintiff incurs psychiatric damage caused, or contributed to, by the tortfeasor as a result of a breach of a duty or duties owed by him or her to the plaintiff. Only once this has been proved is the defendant bound to take the victim as he or she finds him or her."

See, e.g., Brice v. Brown [1984] 1 All E.R. 997. It is right that I should record the doubts on this point expressed by Mr. Tony Weir in his review of Mullany and Handford in [1993] C.L.J. 520, 521.

At all events, the principle of foreseeability of psychiatric injury has long been held to be subject to two special qualifications. First, in assessing whether psychiatric injury is reasonably foreseeable, it is assumed that the plaintiff is a person of reasonable fortitude. Second, as a concomitant of the first, the question of foreseeability of psychiatric injury is addressed with hindsight; as the Law Commission has put it (Report No. 249 at para.2.8), "foreseeability of the psychiatric illness is considered ex post facto in the light of all that has happened." Although it has been recognised that these qualifications raise their own problems, both have, until Page v. Smith, been understood to be of general application.

Finally, in this context, I must mention the position of people such as policemen or firemen, who might be thought to be less prone to suffer psychiatric injury at the sight of the sufferings of others than members of the general public. In two States of the United States there has developed a principle of policy known as the fireman's rule, under which it has been held that there is no "duty owed to the fireman to exercise care so as not to require the special services for which he is trained and paid:" see Krauth v. Geller (1960) 157 A. 2d. 129 N.J. p. 131, per Weintraub C.J. The fireman's rule was subsequently affirmed by the Supreme Court of California in Walters v. Sloan (1977) 571 P. 2d 609. In Ogwo v. Taylor [1988] A.C. 448, however, it was held by your Lordships' House that the American fireman's rule had no place in English law. That case was concerned with a claim in respect of physical injury, but I can see no reason why the same conclusion should not be reached in the case of a claim for psychiatric injury. As I understand it, however, it is generally accepted that, in considering whether psychiatric injury suffered by a plaintiff is reasonably foreseeable, it is legitimate to take into account the fact that the plaintiff is a person, such as for example a policeman, who may by reason of his training and experience be expected to have more resilience in the face of tragic events in which he is involved, or which he witnesses, than an ordinary member of the public possesses who does not have the same background. This is as far as it goes; and, as I shall explain in due course, it does not, in my opinion, affect the result in the wholly exceptional circumstances of the present case. It follows that, unlike Waller J., I would not, except in the limited manner I have indicated, think it necessary to identify a class of "professional" rescuers to which special rules apply.

In this connection I should also add, in relation to Waller J.'s judgment, that, while I agree with him that a police officer may have to take the risk of injury which arises in the course of his employment, there is no reason why he should be exposed to unnecessary risk of injury, i.e. to injury which could be avoided by the exercise of reasonable care by the Chief Constable, or by those for whose negligence he may be vicariously liable. This is a matter to which I will return at a later stage.

It is right that I should conclude this section of this opinion with the observation that foreseeability of psychiatric injury, while constituting a unifying principle of this branch of the law, cannot be regarded as providing a universal touchstone of liability. In this, as in other areas of tortious liability in which the law is in a state of development, the courts proceed cautiously from one category of case to another. We should be wise to heed the words of Windeyer J. spoken nearly 30 years ago in Mount Isa Mines Ltd. v. Pusey (1970) 125 C.L.R. 383, 396:

     "The field is one in which the common law is still in  course of development. Courts must therefore act in company and not alone. Analogies in other courts, and persuasive precedents as well as authoritative pronouncements, must be  regarded."

I will have these words particularly in mind when I come to consider the case of Page v. Smith [1996] 1 A.C. 155.

Secondary victims

Having set out the two basic principles, I now turn to the special position of secondary victims.

In his opinion in Alcock v. Chief Constable of Yorkshire [1992] 1 A.C. at pp. 310, 406 et seq., Lord Oliver of Aylmerton (at p. 407) divided cases of liability for what was then called nervous shock:

     "[b]roadly . . . into two categories, that is to say, those cases  in which the injured plaintiff was involved, either mediately or immediately, as a participant, and those in which the plaintiff was no more than the passive and unwilling witness of injury caused to others."

A plaintiff in the latter category he found it convenient to describe as a "secondary" victim (no doubt having in mind cases such as Best v. Samuel Fox & Co. Ltd. [1952] A.C. 716), while reminding us (at p. 411) that:

     "that description must not be permitted to obscure the  absolute essentiality of establishing a duty owed by the defendant directly to him--a duty which depends not only upon the reasonable foreseeability of damage of the type which has in fact occurred to the particular plaintiff but also upon the proximity or directness of the relationship between the plaintiff and the defendant."

It has become settled that, to establish the necessary proximity, a secondary victim must show (1) a close tie of love and affection to the immediate victim; (2) closeness in time and space to the incident or its aftermath; and (3) perception by sight or hearing, or its equivalent, of the event or its aftermath. See generally McLoughlin v. O'Brian [1983] A.C. 410, 422-423, per Lord Wilberforce; Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310, 397-398 per Lord Keith of Kinkel, 402-404 per Lord Ackner, 411-417 per Lord Oliver of Aylmerton, 422-424 per Lord Jauncey of Tullichettle; and the Law Commission's Report No.249, paras.2-18--2.33.

I wish to stress that, although Lord Oliver in his opinion in Alcock referred to victims in his first category as "primary" victims, and (as I have indicated) described them as those who were "involved" as "participants," he did not attempt any definition of this category, but simply referred to a number of examples, including "rescuers"--an example which is of relevance to the present appeals. This is scarcely surprising since into this category fall a number of widely differing cases in which recovery is allowed, other than those falling into the second category which is concerned to segregate the special case of witnesses of injury caused to others to which special rules apply. It is also plain that, in the case of primary victims as in the case of secondary victims, Lord Oliver, in accordance with the generally accepted view, regarded the test of foreseeability to be one of foreseeability of damage of a particular type, viz. injury by what was then called shock: see [1992] 1 A.C. 310, 408F-G. It follows that, when considering whether the plaintiff does or does not fall into the category of secondary victims, the basic question relates to his involvement. This is essentially a question of fact, which I shall consider at a later stage. I should however add that, in the present appeals, the appellants are said to have been primary victims, either because they can claim as employees--or, more accurately, as "quasi-employees" because, as police officers, they are not strictly speaking employees but are able to rely upon a similar duty of care--or because they can claim as rescuers. I shall however postpone examination of these two categories until after I have considered the impact of Page v. Smith upon the general principles I have briefly described.

I have referred to the category of secondary victims, as identified by Lord Oliver, to whom special limiting principles apply. Since however this part of the law is still in a state of development, we should not exclude the possibility that other categories of claimant may come to be identified whose ability to claim damages for psychiatric injury should also be limited. For example, the Law Commission has canvassed the possibility of limits applying in cases arising from damage to property: see their Report No. 249, paras. 7.24--7.31. These matters need not however concern us in the present case.

The impact of Page v. Smith [1996] A.C. 155

As I have already foreshadowed, the decision of your Lordships' House in Page v. Smith constituted a remarkable departure from these generally accepted principles. The case was concerned with a traffic accident, in which the defendant's car collided with the plaintiff's car--a collision described as one of "moderate severity." Indeed nobody in either car suffered any physical injury, and the plaintiff (who was not even bruised by his seat belt) was able to drive his damaged car away after the accident. However the trial judge, Otton J., held that, as a result of the shock of the accident, the plaintiff suffered a recurrence of chronic fatigue syndrome from which he had suffered, with differing degrees of severity, for 20 years, and that for this he was entitled to recover damages from the defendant. The Court of Appeal (Ralph Gibson, Farquharson and Hoffmann L.JJ.) reversed the decision of Otton J. on the ground that it was not reasonably foreseeable that psychiatric injury to persons of ordinary fortitude would result from such an accident as this, in which the plaintiff suffered no physical injury. However your Lordships' House, by a majority of three to two (Lord Ackner, Lord Browne-Wilkinson and Lord Lloyd of Berwick; Lord Keith of Kinkel and Lord Jauncey dissenting) allowed the plaintiff's appeal but remitted the case to the Court of Appeal on the issue of causation which had been left open by two members of the court.

 
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