Monk v PC Harrington Contractors Ltd and Others

Hearing dates: 9 – 11 July 2008

Mr G. Leggatt Q.C.:

In this action the Claimant, Mr Stephen Monk, claims damages for psychiatric injury arising out of an accident at work in which he himself was not physically injured.

The Accident

The accident occurred on 15 January 2004 during construction work at the new Wembley Stadium. A temporary working platform known as a peri-platform was dislodged from the top of a concrete core by a tower crane. This happened when a rope dangling from a skip of concrete being carried by the crane snagged on the platform. The platform fell a distance of some 60 feet to the ground and hit two men who were working below. One of the men, Patsy O'Sullivan, was directly underneath the platform and died at the scene shortly afterwards from his injuries. The other man, Martin Carroll, sustained a badly broken leg.

The First Defendant, PC Harrington Limited (“PCH”), is a construction company which was engaged on the Wembley Stadium project. PCH has admitted that the accident was caused by negligence of the crane operator for which it is vicariously liable. In these circumstances no claim is pursued against the Second and Third Defendants and no issue arises with regard to them (except, potentially, in relation to costs).

The Claimant's Injuries

At the time of the accident the Claimant, Mr Monk, was working as a self-employed foreman for PCH at the Wembley Stadium site. Mr Monk heard that there had been an accident on his portable radio immediately after it had occurred (probably at about 8.25 a.m.). He made his way to the scene and crawled underneath the fallen platform to see if, as a first aider, he could help Patsy O'Sullivan. Mr O'Sullivan was gravely injured and there was little or nothing that Mr Monk could do to help him. He therefore turned his attention to the other injured man, Ray Carroll, and did his best to comfort him. At one point Mr Monk went back under the platform and knelt next to Patsy O'Sullivan and shouted his name to see if could get a reaction, but he got none. Mr Monk then went back to Ray Carroll and stayed with him trying to calm him until the ambulance arrived.

I will return later to the details of Mr Monk's involvement, and in particular to those which are contentious; but it is not in dispute that the accident and its aftermath have caused serious harm to Mr Monk. Although he took a week off work after the accident and thought that he would be able to cope when he returned to work, the accident and what Mr Monk had seen kept preying on his mind. This continued even after he moved to another job at White City in October 2004. One of the manifestations of Mr Monk's condition was that he became increasingly obsessed about safety on the site in case another accident should happen. For example, he thought that the stadium was being built on unstable ground; that the council inspectors were insufficiently rigorous about visiting; that on occasions steel fixers working on the core were not up to the job; and that method statements were not being properly followed. His anxiety was made all the worse because his concerns were dismissed as groundless.

In his witness statement Mr Monk has described how he carried on with his work as best he could but inside he was in turmoil. All the time he was feeling scared. His emotions varied but included anger, depression, low mood, and a loss of energy and appetite. He could not concentrate and would often get headaches and be very snappy with people. He had nightmares, and at times had suicidal thoughts.

On 2 March 2005 Mr Monk left work early, and he has not worked since. He has had various treatments, including cognitive behavioural therapy and anti-depressants. In connection with this case, Mr Monk has been assessed by two experts, Professor Michael Trimble (on behalf of the Claimant) and Professor Declan Murphy (on behalf of the Defendants). They have produced a joint statement in which they have agreed that Mr Monk is suffering from post-traumatic stress disorder and associated depression, which amount to a recognisable psychiatric disorder. In the light of this joint statement, it is accepted by PCH that Mr Monk has sustained a recognisable psychiatric illness as a result of the accident, and the medical experts were not called to give evidence at the trial.

The Issue

In these circumstances the sole issue on liability which I have to decide is whether Mr Monk falls within the class of persons to whom English law affords a remedy for psychiatric injury caused by the negligence of the defendant.

The Law

If the injury suffered by Mr Monk had been a direct physical injury, there would be no doubt about the liability of the defendant. However, in cases of 'pure' psychiatric illness, the law restricts the right to recover compensation to claimants who meet certain limiting criteria. These criteria have been established by the House of Lords in recent times in three cases: Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310; Page v Smith[1996] AC 155; and Frost v Chief Constable of South Yorkshire[1999] AC 455.

In these cases a distinction has been drawn between claimants who are regarded as 'primary victims', and others who are classified as 'secondary victims'. Primary victims are entitled to recover damages for psychiatric illness caused by the defendant's negligence provided only that injury to them was reasonably foreseeable. Secondary victims must satisfy certain further conditions before they are eligible to recover.

In Alcock, supra, at 407B-E, Lord Oliver described a primary victim as someone who was directly involved as a participant in the accident which caused the injury. From a review of the decided cases, Lord Oliver identified three situations in which the claimant's involvement brings him or her within this category. The first consists of cases where the claimant was within the actual area of physical danger when the accident occurred and was directly at risk of bodily injury or reasonably believed that this was so. An example is Dulieu v White [1901] 2 KB 669, in which (on the assumed facts) the plaintiff reasonably feared for her own safety when the defendant's runaway vehicle burst into the public house where she was working. The second group of cases involves rescuers who go to the aid of others involved in the accident. In Frost, supra, the House of Lords held that, in order to be regarded as primary victims, rescuers must also have been exposed to danger or reasonably believed that they were in danger.

The third group of cases identified by Lord Oliver in Alcock (at p.408) consists of cases where the claimant was an “unwilling participant” in the accident, in the sense that:

“the negligent act of the defendant has put the plaintiff in the position of being, or of thinking that he is about to be or has been, the involuntary cause of another's death or injury and the illness complained of stems from the shock to the plaintiff of the consciousness of this supposed fact.”

Three cases were cited as examples by Lord Oliver. In Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd's Rep 271 a crane operator at a ship yard who was lowering a sling-load of materials into the hold of a ship suffered psychiatric injury when (through his employer's negligence) the rope attached to the sling broke, and the load fell into the hold where he knew that fellow employees were working. In Galt v British Railways Board (1983) 133 NLJ 870 a train driver saw two men working on the line when his train rounded a bend and it was impossible to stop, and he thought they had been run over by the train. In Wigg v British Railways Board, The Times, 4 February 1986, a train driver went to try to help a passenger who had fallen between the train and the platform (and been killed) after the guard had negligently signalled to the driver to start.

In each of these cases the claimant was present at the scene of the event by which he was, or believed he was, instrumental in causing death or injury to another person. In Hunter v British Coal Corporation[1999] QB 140 a majority of the Court of Appeal refused to extend this category of 'unwilling participants' to a situation where the claimant thought he had been the cause of a fatal accident to a fellow employee but did not witness the accident or its aftermath and was told that his colleague had died about 15 minutes after the accident had occurred. Brooke LJ said (at p.154): “The law requires a greater degree of physical and temporal proximity than was present in this case before [the claimant] could properly be treated as a direct or primary victim”.

In Alcock (at p.408G), Lord Oliver said of this group of cases:

“The fact that the defendant's negligent conduct has foreseeably put the plaintiff in the position of being an unwilling participant in the event establishes of itself a sufficiently proximate relationship between them and the principal question is whether, in the circumstances, injury of that type to that plaintiff was or was not reasonably foreseeable.”

In Frost v Chief Constable of South Yorkshire [1999] AC 455 at 507H-508A, Lord Hoffman described Lord Oliver's explanation of these 'unwilling participant' cases as “an ex post facto rationalisation” and as “an elegant, not to say ingenious, explanation, which owes nothing to the actual reasoning (so...