McFarlane v Wilkinson and Another ; Hegarty v E E Caledonia Ltd

JurisdictionEngland & Wales
JudgeLORD JUSTICE BROOKE:,LORD JUSTICE HUTCHISON,LORD JUSTICE SAVILLE
Judgment Date05 February 1997
Judgment citation (vLex)[1997] EWCA Civ J0205-13
Docket NumberQBENI 95/141/C
CourtCourt of Appeal (Civil Division)
Date05 February 1997

[1997] EWCA Civ J0205-13

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(MR JUSTICE RIX)

(MR JUSTICE POPPLEWELL)

Royal Courts Of Justice

Strand

London W2A 2LL

Before

Lord Justice Saville

Lord Justice Hutchison

Lord Justice Brooke

QBENI 95/141/C

QBENF 96/0001/C

Francis Mcfarlane
Respondent
and
(1) Nigel Wilkinson
(2) Anna Guggenheim
Appellants
William Hegarty
Appellant
and
E E Caledonia Limited
Respondent

MR RUPERT JACKSON QC and MR ROGER STEWART (instructed by Messrs Reynolds Porter Chamberlain) appeared on behalf of the Appellants (Defendants) in the first case.

MR BENET HYTNER QC and MR PAUL LONERGAN (instructed by Messrs Evill & Coleman) appeared on behalf of the Respondent (Plaintiff) in the first case.

MR CHRISTOPHER GARDNER QC and MR JONATHAN WAITE (instructed by Messrs Levinson Gray) appeared on behalf of the Appellant (Plaintiff) in the second case.

MR ADRIAN HAMILTON QC and MR ALISTAIR SCHAFF (instructed by Messrs Ince & Co) appeared on behalf of the Respondent (Defendant) in the second case.

LORD JUSTICE BROOKE:
1

Introductory

2

These two appeals raise issues of very great contemporary interest not only to lawyers but also to members of the lay public who interest themselves in the business of the courts. For the purposes of obtaining a ruling on a preliminary issue, in each case it was taken as an agreed fact that the Plaintiff had suffered psychiatric injury as a result of witnessing horrifying events in the North Sea at the time of the Piper Alpha disaster in July 1988. 164 men died in that disaster, and many others suffered serious injuries. Both men were employed as painters on that rig during the day, and at night they were housed in quarters on board the MV Tharos. On the night in question this vessel was lying partially anchored about 550 metres south-west of the Piper Alpha platform when the first explosion occurred at about 10pm. Psychiatric injury of the intensity in question is often described as post-traumatic stress disorder ("PTSD"), and it can have a completely debilitating effect on the life of someone who suffers from it.

3

The first issue to which I have referred arises from the problem, with which the courts are now having to grapple on a case by case basis, of identifying the type of person who should be entitled to recover compensation in respect of this now well-recognised syndrome. The Law Commission has recently summarised the present state of psychiatric understanding about this syndrome and the factors which may trigger it off in intelligible lay language in Part III of its Consultation Paper No 137, "Liability for Psychiatric Injury", which was published in March 1995. I suggested during argument that this 13-page chapter should be compulsory reading for judges and legal practitioners who are concerned with this type of case today, because it contains a clear, dispassionate account of PTSD and the sort of events that have been known to trigger off this kind of illness. In Mr Hegarty's appeal we have to decide whether Popplewell J was wrong in holding that Mr Hegarty was not entitled to compensation for what he has suffered, whether for a breach of a duty of care recognised by the common law or for a breach of duty created by statutory authority.

4

The other issue of contemporary interest arises from the fact that Mr McFarlane's original claim, pleaded only in negligence, was dismissed by the Court of Appeal in July 1993, and his present action is a claim for damages against the barristers who were then instructed to act for him. He asserts that they were negligent in not ensuring that a claim for damages for breach of statutory duty was pleaded on his behalf, and he claims financial compensation for what he says he has lost by reason of their alleged negligence. (He has made other assertions against them which Mr Hytner accepts are not open for argument in courts below the House of Lords). The tendency for disappointed or dissatisfied clients to sue their former professional advisers has developed apace during the last 15 years. One measure of this growth may be seen in the fact that a leading textbook on Professional Negligence doubled in size between its first edition in 1982 and its third edition just ten years later. Very few cases involving barristers have, however, been the subject of decision by this court or the House of Lords. This is because of their immunity from suit in relation to court-related work.

5

The very rapid growth of novel types of compensation claim in recent years prompted Stuart-Smith LJ to say at the end of his recent judgment in A B & Ors v John Wyeth Brothers & Another (unreported, 13th December 1996):

"… Not all victims of misfortunes in life fall to be compensated by someone else, although it appears to be a widely held view in this increasingly litigious age that they should be."

6

Considerations of this kind give rise to passionate controversy. They should not, however, lead the court to decide appeals of this kind in any different way from the manner in which it has traditionally decided them: applying (or developing) established principles of law to new factual situations on a case by case basis, or interpreting statutory materials according to well tried principles of construction. Misapplying legal principle through sympathy for a plaintiff or through concern about the actual or potential cost of a decision to defendants is no part of the function of a court of law.

7

The background to both appeals

8

Mr McFarlane and Mr Hegarty have both had their lives ruined as a result of their experiences in the North Sea that night. Because claims of this type are sometimes written off by uninformed commentators as being merely claims for grief and anxiety and nothing more, it is, I believe, pertinent to quote a short passage from a witness statement signed by Mr Hegarty in October 1995, over 7 years after the disaster:

"Following the events that occurred that night, I experienced difficulty in sleeping due to nightmares though they are now less frequent than they used to be. Every time I receive a letter about this case it revives my memories and the feelings I have about it. I have experienced flashbacks which are triggered off by a smoking chimney across the river I can see from my window at home. I have suffered from an ulcer which I have been told is due to stress.

I have done no work since 1988. I have no motivation. I am now scared of the sea and heights. I am aware of every danger, particularly when travelling. I can no longer work at heights. I do not know what I will do in the future."

9

In May of the same year his wife described him as suffering from deep depression with wide mood swings: "when he is at his darkest he has very black moods indeed and deep depression and is almost at the point of being unapproachable". He is still only 44.

10

After the disaster both men, and a number of others who had been on Tharos at the time, entrusted the conduct of their claims to a Scottish company which had been incorporated by a practising lawyer in 1988 for the purpose of handling claims to compensation on a contingency fee basis (for details of Mr McFarlane's arrangements see the judgment of Longmore J in McFarlane v E E Caledonia (No 2) [1995] 1 W.L.R. 366 at pp 368-9). Some of these men started proceedings in Scotland, and in due course accepted offers of compensation made in the course of those proceedings. Mr McFarlane and Mr Hegarty, however, issued proceedings in England where their cases both came to court for a decision. Mr McFarlane's English solicitors instructed Ms Guggenheim, as junior counsel, and Mr Wilkinson, as leading counsel, to act for him, and since the claim against each of them is based on an assertion that his claim should have been pleaded as a breach of statutory duty as well as in negligence it will be necessary in this introductory passage to say a little about the differences between these two types of claim.

11

At all events Mr McFarlane's claim succeeded on a preliminary issue of liability before Smith J in December 1992. She found that he was probably more susceptible to psychiatric injury than the ordinary man. However she held that the Defendants' assumed negligence had put him in fear for his life.

12

Stuart-Smith LJ gave the only judgment when this court allowed the defendants' appeal in July 1993 (see McFarlane v E E Caledonia Ltd [1994] 2 All ER 1). He said that the judge should have asked herself the question: What ought the reasonable owner and operator of a drilling rig and platform in the position of the defendants to have foreseen in the light of the facts which were known or ought to have been known to the defendants? He went on to say at p 10:

"In my judgment it cannot be said that the defendants ought reasonably to have foreseen that the plaintiff or other non-essential personnel on board [Tharos] would suffer [psychiatric] injury. The Tharos was a well-found vessel, equipped with a heat shield, and under the control of an experienced and competent captain. If indeed the plaintiff had felt himself to be in any danger, he could have taken refuge in or behind the helicopter hangar, which was where non-essential personnel were required to muster. The judge thought it was entirely understandable that the plaintiff and other non-essential personnel would wish to see what was happening on the Piper Alpha. I agree with this. What I do not agree with, is that someone who was in truth in fear of his life from spread of the fire and falling debris should not take shelter. Only someone who is rooted to the spot through fear would be unable to do so. The plaintiff never suggested that;...

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7 cases
  • Dow v Amec Group Ltd
    • United Kingdom
    • Court of Session (Inner House)
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    ...209; 2016 SCLR 203; [2016] 1 WLR 597; [2016] ICR 325; [2016] PIQR P9; 149 BMLR 17 McFarlane v Wilkinson; Hegarty v EE Caledonia Ltd[1997] 2 Lloyd's Rep 259; [1997] PNLR 578 McGowan v W & JR Watson Ltd [2006] CSIH 62; 2007 SC 272; 2007 SLT 169; 2007 SCLR 147; 2007 Rep LR 18 McLoughlin v O'Br......
  • Arthur J S Hall & Company (Respondent/Plaintiff) v Melvyn Keith Simons
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    ...Jenkins) v Jenkins [1985] AC 424, [1985] 1 All ER 106, [1985] 2 WLR 47, HL. McFarlane v Wilkinson [1996] 1 Lloyd’s Rep 406; rvsd [1997] 2 Lloyd’s Rep 259, CA. Marrinan v Vibart [1963] 1 QB 528, [1962] 3 All ER 380, [1962] 3 WLR 912, CA; affg [1963] 1 QB 234, [1962] 1 All ER 869, [1962] 2 WL......
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  • Monk v PC Harrington Contractors Ltd and Others
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    • Queen's Bench Division
    • 31 July 2008
    ...victim, unless the belief is reasonable. Thus, in Hegarty v EE Caledonia Ltd, decided at the same time as McFarlane v Wilkinson [1997] 2 Lloyd's Rep 259, the claimant was on a support vessel when a series of explosions destroyed the oil rig, Piper Alpha. At one point, when the support vesse......
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1 books & journal articles
  • Liability for Psychiatric Illness: Advancing Cautiously
    • United Kingdom
    • The Modern Law Review No. 61-6, November 1998
    • 1 November 1998
    ...3 JLM 112; F.A. Trindade, ‘Nervous Shock and Negligent Conduct’ (1996) 112LQR 22.47 Frost, n 2 above; Hegarty vEE Caledonia Ltd [1997] 2 Lloyd’s Rep 259; Young vCharles Church(Southern) Ltd, n 3 above, Hunter vBritish Coal Corporation, n 3 above.48 Page vSmith, n 12 above, 184. And see Hunt......

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