Re-establishing the Search for Principle Lord Goff's Dissent in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455

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CHAPTER 2

RE-ESTABLISHING THE SEARCH FOR PRINCIPLE

Lord Goff’s Dissent in

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455

Neal Geach

2.1 Background 21
2.2 Decision of the majority 23
2.3 Lord Goff’s dissent 28
2.4 Restricting recovery on policy grounds 31
2.4.1 Imposition contrary to authority 31
2.4.2 Another artificial barrier 33
2.4.3 Misconceived concerns by the majority 33
2.5 Conclusion 35

2.1 BACKGROUND

According to Lord Hoffmann in White v Chief Constable of South Yorkshire Police, ‘the search for principle was called off in Alcock v Chief Constable of South Yorkshire Police’¹ and, as a result, the majority in White² were:

engaged, not in the bold development of principle, but in a practical attempt, under adverse conditions, to preserve the general perception of the law as system of rules which is fair between one citizen and another.³

¹ White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 511A–B.

² Lord Hoffmann, Lord Steyn and Lord Browne-Wilkinson.

³ Above, n 1, at p 511C.

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22 Part I – Tort Law

Both cases are, of course, fundamentally intertwined, resulting as they do from the Hillsborough Football Stadium disaster, where 96 people lost their lives with hundreds more injured and requiring hospital treatment. The facts of that tragic day do not need much elaboration. However, the main, and contested, issue in Alcock⁴ was whether a duty of care was owed to the relatives of those who died at Hillsborough for the psychiatric injuries which befell them, with the defendant Chief Constable admitting negligence if this was deemed to be the case. The House of Lords, in a decision which sparked huge outrage and controversy, held that a duty of care was not owed.

Three years later, police officers who were on duty that day brought their own claim for the psychiatric injury⁵ which they had suffered from their involvement at the stadium. The claims of the officers were dismissed at first instance, but the appeal by four officers was allowed by a majority of the Court of Appeal as a duty of care was owed to the officers, irrespective of whether they were classified as primary or secondary victims. In turn, the Chief Constable was granted leave to appeal to the House of Lords on two grounds:

(a) That no duty of care was owed on the basis of the employment relationship between the officers and the Chief Constable.

(b) That the officers were not owed a duty of care as rescuers.

It was contended before the House of Lords that the officers could not, and should not, be classified as a special category outside the recognised classification groups of primary and secondary victims; and, further, that the officers did not satisfy the requirements of primary victims. As such, as they clearly did not satisfy the control mechanisms for secondary victims, they were owed no duty of care.

Ultimately, the decision of the House of Lords can be said to have been heavily influenced by policy considerations and a battle between ideas of distributive and corrective justice. The majority’s upholding of both grounds of the Chief Constable’s appeal certainly had one eye firmly on the controversy which surrounded the decision in Alcock. Notwithstanding the view of Lord Hoffmann noted above, one judge in the case sought to decide the case firmly in line with principle and existing authorities. Lord Goff argued that the majority were wrong in what they saw as the issue to be determined in the case and their interpretation of the relevant authorities. Further, he felt the majority were ‘misconceived’⁶ with their concerns in allowing the appeal. This chapter seeks

⁴ Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

⁵ Under the case name of Frost v Chief Constable of South Yorkshire, (1995) The Times, 3 July.

⁶ Above, n 1, at pp 486 et seq.

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to highlight how Lord Goff’s opinion should be preferred to the majority’s for not only reasserting principle in this controversial area of law, but also as it would have created a fairer regime for future claimants.

2.2 DECISION OF THE MAJORITY

As indicated above, it was obvious the officers in White were never going to satisfy the Alcock control mechanisms for secondary victims, and thus the issue was whether they could be classified as primary victims or given special category status due to being employees of the Chief Constable or by being analogous to rescuers.

The question can be asked why the police officers needed to argue that their position as officers on duty at the scene meant they were a special category falling between the two standard categories. Why could they not simply be primary victims as claimants who were ‘involved mediately or immediately, as participants’?⁷ The reason was obviously the House of Lords’ interpretation of Page v Smith⁸ which had, since Alcock, endorsed the victim distinction and offered more detailed judicial insight than Lord Oliver as to whom a primary victim was. Lord Steyn felt that the adoption of the primary/secondary victim distinction by Lord Lloyd in Page v Smith and the categorisation of Mr Page as a primary victim on the basis that he was within the range of foreseeable physical injury meant that:

it follows that all other victims, who suffer pure psychiatric injury, are secondary victims and must satisfy the control mechanisms in the Alcock case … the decision … in Page v Smith was plainly intended, in the context of pure psychiatric harm, to narrow the range of potential secondary victims.⁹

Therefore, Lord Steyn took the matter as being settled, without further discussion, that Lord Lloyd had created a situation whereby reasonable foreseeability of physical injury was a necessity for establishing primary victim status. He was persuaded, therefore, that recognising the police officer’s claims ‘would substantially expand the existing categories in which compensation can be recovered for pure psychiatric harm’.¹⁰ As Lord Goff showed in his dissent, and as is clear from the opinion of Lord Lloyd himself, this was not the case and if Lord Lloyd was narrowing the potential people who could be secondary

⁷ Above, n 4, at p 407D, per Lord Oliver.

⁸ Page v Smith [1996] AC 155.

⁹ Above, n 1, at p 497A.

¹⁰ Above, n 1, at p 495A.

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24 Part I – Tort Law

victims it was, in fact, by expanding the scope of people who could be primary victims.¹¹ Having acknowledged that Page did not have the present question in mind when it was heard, Lord Hoffmann chose not to enter debate over the classification of primary and secondary victims, feeling that it had been ‘debated at length’.¹² Instead, he chose to simply frame the argument as whether the officers could be distinguished from the category of secondary victims, having admitted that support for both sides could be drawn from Lord Lloyd’s opinion.¹³ It is perhaps interesting that the third judge in the majority, Lord Browne-Wilkinson, simply stated his agreement with Lord Steyn and Lord Hoffmann. This is because in Page v Smith he stated his agreement with the opinion of Lord Lloyd, including the dangers in distinguishing physical and psychiatric injury. Indeed, his Lordship stated:

The law has therefore been established both in England and Scotland for many years that a plaintiff who is a participant in an accident is entitled to recover damages for shock even though he or she has not suffered any tangible physical injury. I can see no good reason to modify this law.¹⁴

In relation to the arguments advanced by the officers as to why they were more than mere bystanders and thus should not in any event be classified as secondary victims, both were quickly disregarded. On the employee argument, even if a duty of care was owed to the officers not to cause them physical injury, this would not automatically mean that a duty not to cause psychiatric injury would arise. The matter would have to be dealt with under tort law and this restricted the imposition of such a duty.¹⁵ However, the rigid adherence to the rules of tort were then departed from by Lord Steyn with regards to imposing such a duty of care as he argued it would contribute to a floodgate of claims and was not required for justice, as police officers benefit from a statutory scheme which permits them to retire and collect their pension. The question is whether that should matter. It cannot really be said to be double recovery and it also does away with the idea that negligence imposes fault-based liability and awards compensation where the defendant is at fault for the claimant’s injury.

¹¹ This is expanded on below.

¹² Above, n 1, at p 505A.

¹³ This in itself could be said to be significant and would weaken the matter of fact stance adopted by Lord Steyn. Arguably, it also suggests that if there is support from Lord Lloyd’s opinion for the officers’ claims to be primary victims, then far more engagement should have been given to this point in determining the matter.

¹⁴ Above, n 8, at p 182B; clearly, there was an argument to be made that the officers were not participants in this case.

¹⁵ This point was also raised by Lord Hoffmann; above, n 1, at pp 505–506. His Lordship felt that the Court of Appeal was wrong to decide that it was settled law that the duty owed by an employer covered psychiatric injury.

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On the rescuer ground, Lord Steyn gave this equally short shrift. His Lordship stated that the argument was based on too many general observations from the dicta of Lord Oliver in Alcock where he discussed the category of participants. Lord Oliver had stated that rescuers would fall into the same category as what is now considered primary victims,¹⁶ but this was down-played by Lord Steyn because the other members of the House of Lords had not discussed the same category.

It is respectfully...