Alexandra Penk (and Others) (Appellants (Plaintiffs) v Peter Wright (sued as the Chief Constable of South Yorkshire Police) (Respondent

JurisdictionEngland & Wales
JudgeLORD JUSTICE PARKER,LORD JUSTICE STOCKER,LORD JUSTICE NOLAN
Judgment Date03 May 1991
Judgment citation (vLex)[1991] EWCA Civ J0503-2
CourtCourt of Appeal (Civil Division)
Docket Number91/0446
Date03 May 1991

[1991] EWCA Civ J0503-2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

LIVERPOOL DISTRICT REGISTRY

(MR. JUSTICE HIDDEN)

Royal Courts of Justice

Before:

Lord Justice Parker

Lord Justice Stocker

and

Lord Justice Nolan

91/0446

Between:
Alexandra Penk (And Others)
Appellants (Plaintiffs)
and
Peter Wright (sued as the Chief Constable of South Yorkshire Police)
Respondent (Defendant)
And Between:
Alexandra Penk And Others
Respondents (Plaintiffs)
and
Peter Wright (sued as Chief Constable of South Yorkshire Police)
Appellant (Defendant)

MR. B. HYTNER QC and MR. T.R.A. KING QC (instructed by Messrs Brian Thompson & Partners, Liverpool) appeared on behalf of the Appellants (Plaintiffs) (Respondents).

MR. W.C. WOODWARD QC and MR. P. LIMB (instructed by Messrs Hammond Suddards, Bradford) appeared on behalf of the Respondent (Defendant) (Plaintiff).

LORD JUSTICE PARKER
1

We have before us for determination appeals in fifteen cases in which the plaintiffs claim to be entitled to damages for "nervous shock" alleged to have been sustained as a result of negligence on the part of the police leading to the disaster at the Hillsborough Football Stadium which occurred on the occasion of the F. A. Cup semi-final between Liverpool and Nottingham Forest on the 15th April 1989. The defendant in each case is the Chief Constable of Yorkshire Police.

2

I have used the expression "nervous shock" at the outset because it has been used in many earlier cases. It is, however, necessary at once to point out that that which attracts damages is not the shock itself but any recognizable psychiatric illness or disorder resulting from the shock which, in appropriate cases, has that effect. It is nevertheless convenient to use the term "nervous shock" as a term embracing both elements which have, amongst others, to be established in order successfully to ground a claim of this type.

3

At the trial before Hidden J. in July 1990 sixteen cases were considered. Ten of the plaintiffs succeeded and six failed. The six who failed appeal. The defendant appeals in the cases of nine of the ten who succeeded. Their success is however limited. This is because the issue before the judge was, and before us is, a narrow one. It was and is admitted by the defendant that the deaths and injuries suffered by those in pens 3 and 4 at the West End of the ground occurred as a result of the negligence of the police culminating in the opening of a gate known as gate C at the south west corner of the ground when pens 3 and 4 were already full. This action permitted the masses then outside the ground to gain access to those pens through a tunnel under the West Stand and create thereby a developing crush situation which led to the tragic result of some 95 people being killed and more than 400 being injured, some very seriously. It was, further, assumed by the judge, for reasons which he identified and which are not challenged, and is assumed before us that each of the plaintiffs did suffer nervous shock leading to psychiatric illness as a result of the facts upon which they based their claims. The issue decided by the judge and to be determined by us is therefore whether on the basis of such admission and assumption any and which of the fifteen plaintiffs who are parties to the appeals are entitled in law to recover damages should they hereafter prove that they suffered psychiatric illness from the facts set up. Any plaintiff who succeeds in his or her appeal or successfully repels the defendant's appeal may therefore yet fail. All questions of causation will remain open.

4

The fifteen cases with which we are concerned have been described as being test cases, but it is common ground that this is not strictly accurate. They are better described as cases, the resolution of which will probably enable most if not all of very many other claims for psychiatric illness to be settled by agreement.

5

The basic background facts.

6

Pens 3 and 4 at the west or Leppings Lane end of the stadium are immediately behind the goal at that end of the ground. They, their adjacent pens and the West Stand immediately behind them together with the North Stand were reserved for Liverpool supporters. The lower seats of the West Stand are separated from the pens in front of them by a wall several feet high.

7

The match was an all ticket match and was a sell out. It was intended that a BBC television recording of the match should be broadcast in the evening, but the system was that events at any ground where there was some significant event would be shown live on the BBC afternoon programme "Grandstand".

8

In the event live broadcasts of the scene in pens 3 and 4 were shown on television as the crush developed to its disastrous and horrifying conclusion and, as I understand it, the scenes or some of them were repeated as recorded news items from time to time thereafter.

9

In addition to those suffering death and injuries in pens 3 and 4 there were of course thousands in such pens involved in the crush and its horror but who, happily, escaped injury, either physical or psychiatric. Many thousands more who attended the match witnessed what was going on with varying degrees of comprehension according to their position in the ground, those in the West Stand, particularly in the front rows, having the greatest appreciation of the scale of what was happening. Many millions more saw what was happening on live television or thereafter saw what had happened by viewing later recorded broadcasts. Amongst those who were at the ground, but not in pens 3 and 4 or who watched television, there were of course many who knew or believed that relations or others dear to them were or might be in those pens and might be amongst those dead or injured.

10

The basic facts of the individual cases

11

A. The nine successful plaintiffs

12

Only one, Brian Harrison, was at the ground. He was in the West Stand. He knew both of his brothers would be in the pens behind the goal. He saw the horrifying scene as it developed and realised that people in the two pens had been either killed or injured. When, six minutes after the start, the match was abandoned he tried to find his brothers. He failed to do so. He stopped up all night waiting for news. At 6 a.m. he learnt that his family were setting off for Sheffield. At 11 a.m. he was informed by telephone that both his brothers were dead.

13

The remaining eight saw the scenes on live television and heard the commentary. All were related to persons whom they knew to be or believed to be in the pens behind the goal. All knew that there had been deaths or injuries suffered by many in those pens.

14

The relationships and fate of the relatives were as follows:

15

Mr. and Mrs. Copoc lost their son. They saw the scenes on live television. Mrs. Copoc was up all night. She was informed by police officers at 6 a.m. that her son was dead. Mr. Copoc went to Sheffield at 4 a.m. with his nephew. He was informed at 6.10 a.m. of his son's death and later identified the body.

16

Mrs. Mullaney's two sons were both injured. She knew they were at the match. When watching television she identified both in the part of the crowd where there were casualties. At 7 p.m. one of her sons telephoned to say he was in hospital. She did not hear until 10 p.m. that her other son was safe, albeit slightly injured.

17

Mrs. Hankin lost her husband. She knew he was at the match and would be at the Leppings Lane end. She expected he would be behind the goal. She watched television at about 3 p.m. She was not then worried because she thought there was just crowd trouble in which her husband would not be involved. Some 15 minutes later she again watched and learned that there had been deaths and injuries and that there was an emergency number. She was informed that her husband was dead at 2 a.m.

18

Brenda Hennessy lost her brother. She watched television from about 3.30 p.m. and, although she then realized there had been deaths and injuries in the pens, she was not worried because she believed her brother to be in a stand seat. However, at about 5 p.m. she learnt from her brother's wife that he had a ticket in the Leppings Lane terrace. At 6 p.m. she learnt from members of the family who had gone to Sheffield that her brother was dead.

19

Denise Hough lost her brother. She was 11 years older than her brother and had fostered him for several years although he no longer lived with her. She knew he had a ticket at the Leppings Lane end and would be behind the goal. She was told by a friend that there was trouble at the game. She watched television. At 4.40 a.m. she was informed by her mother that her brother was dead. Two days later on the 17th April, she went with her mother to Sheffield and confirmed an earlier identification of the body. His face was bruised and swollen.

20

Stephen Jones lost his brother. He knew that his brother was at the match. He watched television and saw bodies and believed them to be dead. He did not know his brother was dead until 2.45 a.m. when, having gone to the temporary mortuary at Hillsborough he found his parents there in tears.

21

Robert Spearitt lost a nephew aged 14 and his brother suffered severe crushing injuries. He knew both would be at the match behind the goal at the Leppings Lane end. He watched television from about 3 p.m. He knew as a result that there were many dead and injured. In the late evening he went to Sheffield. He found his brother in the intensive care unit in hospital. He finally found his nephew in the temporary mortuary at Hillsborough.

22

B. The unsuccessful plaintiffs.

23

Robert Alcock lost his brother-in-law....

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