Recent Judicial Decisions

AuthorRob R. Jerrard
Published date01 April 1999
Date01 April 1999
Subject MatterArticle
Legal Correspondent for The Police Journal
Police Cannot Recover over Hillsborough
Frost and Others
Chief Constable
South Yorkshire Police and
Others House of Lords
(1998) The Times, December 4
At Volume LXX, Number 2 (April-June 1997) The Police Journal
reported the Court of Appeal Decision in Frost and Others
South Yorkshire Police (1996) The Times November 6,
Court of Appeal, which carried the headline, "Some rescuers can
recover - even police officers".
The Court
Appeal decision
This was a majority decision of 2 to 1. In that case we reported that all
except PC Glave were found to be rescuers but he, being at the ground
in the course of duty, and within the area of risk of physical or
psychiatric injury, was by the first defendant's negligence, exposed to
the horrific events whichensued. There was thus a breach of duty to him
by the first defendant. The appeal of Sergeant Janet Smith, who was
employed only on mortuary duties after the event, was dismissed.
Whereas in cases outside the master and servant relationship the
courts had found it necessary, in identifying those to whom a duty of
care was owed, to draw a distinction between primary and secondary
victims and to impose limiting criteria to determine those within the
second category whocould recover,in the master and servant context, a
duty of care existed solely by reason of that relationship.
The standard of care required in the discharge of that duty and the
degree of proximity would vary from case to case according, among
other matters, to the nature of the job and the degree of fortitude to be
expected of theemployee. Soa rescuer, whether a policeman or layman,
might recover against a tortfeasor for physical or psychiatric injury
caused in the course of his employment by the employer's negligence.
A mere bystander, whether a policeman or a layman, who was not a
rescuer and to whom no duty such as that arising from the master and
servant relationship was owed by the tortfeasor, would not generally
recover (McFarlane
E. E. Caledonia
and would only be able to
do so if he was linked by ties of love and affection to a primary victim
and otherwise fulfilled the criteria enunciated in McLoughlin v.
O'Brian; Alcock
Chief Constable
South Yorkshire Police and Page
v. Smith. The Court of Appeal so stated allowing, by a majority, appeals
by four police officers, Inspector White, PC Bairstow, PC Bevis and PC
168 The Police Journal April 1999
Glave, from the dismissal (1995) The Times, July 3 of their claims for
psychiatric injury sustained as a result of tending victims of their
employer's negligence arising out of the disaster at Hillsborough
Stadium, Sheffield on April 15, 1989.
The appeal reached the House of Lords, where they allowed the
The House
Lords decision
Lord Steyn said that in an ideal world all those who suffered as a result
of the negligence ought to be compensated. But we lived in a practical
world where the tort system imposed limits to the classes of claim that
ranked for consideration as well as to the heads of recoverable damages.
That resulted of course in imperfect justice, but it was by and large the
best the common law could do.
The application of the requirement of reasonable foreseeability was
sufficient for the disposal
the resulting claims for death and physical
injury. But the common law regarded reasonable foreseeability as an
inadequate tool for the disposal of claims in respect of emotional injury.
The different categories
The law divided those who were mentally scarred by the events of
Hillsborough in different categories. There were those whose mental
suffering was a concomitant
physical injury. That type
suffering was routinely recovered as "pain and suffering".
Next there were those who did not suffer any physical injuries but
sustained mental suffering. For present purposes that category had to be
subdivided into two groups:
those who suffered from extreme grief,
including cases where the sufferer's condition was debilitating; and (ii)
those whose suffering amounted to a recognizable psychiatric illness.
Diagnosing a case as falling within the first or second category was
often difficult. The symptoms could be substantially similar and equally
severe. Yet the law denied redress in the first case. But grief constituting
pathological grief disorder was a recognizable psychiatric illness and
was recoverable. Only recognizable psychiatric harm ranked for
consideration. Where the line was to be drawn was a matter for expert
psychiatric evidence. That distinction served to demonstrate how the
law could not compensate for all emotional suffering even if it was acute
and truly debilitating.
The four police officers were actively helping to deal with the
human consequences of the tragedy and as a result suffered from post
traumatic stress disorder. They put in the forefront of their case that they
suffered harm as a result
a tort and that justice demanded that they
should be compensated. A constant theme of argument for the police
officers was that there was no justification for regarding physical and
psychiatric injury as different kinds of damage, and in so arguing
counsel was repeating an observation made in Page v. Smith [1996] AC
155, 197G.
The Police Journal 169

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