Robertson v Forth Bridge Joint Board (No.2)
| Jurisdiction | Scotland |
| Judgment Date | 02 March 1995 |
| Date | 02 March 1995 |
| Docket Number | No 42 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
ReparationNegligenceRemoteness of damageForeseeabilityDuty of carePsychiatric injury sustained by pursuers' witnessing death of fellow employeePursuers not otherwise involved in accidentWhether pursuers within scope of duty of care owed by defenders
The pursuers and a workmate were working in the course of their employment on the Forth Road Bridge. A large piece of metal sheeting had been found lying on the south-bound carriageway. During the course of its removal, one pursuer was driving a pick-up van on which the metal sheet had been placed and the workmate was sitting on top of it. The other pursuer was following a few feet behind in a small patrol van. In the course of the journey a sudden and violent gust of wind caused the sheet and the workmate to be thrown violently off the back of the van and over the side of the bridge. Both pursuers then raised actions against their employers claiming to have suffered nervous shock as a result of witnessing the accident. The employers admitted that the workmate's death had been caused by their negligence out denied that, in the circumstances, they had owed any duty of care to the pursuers. The Temporary Lord Ordinary (Wheatley, QC) assoilzied the defenders. The pursuers reclaimed.
Held (1) that the test was one of reasonable foreseeability and, although the employers ought to have anticipated the presence of the pursuers at the accident, the question remained whether they should have anticipated that they might sustain nervous shock caused by the injury to the workmate; (2) that there had to be shown to have existed the requisite relationship of proximity between the pursuers and the defenders if the defenders were to be held liable to the pursuers in damages for their psychiatric illnesses, but the relationship of employer and employee was not in itself sufficient to establish such a relationship in a case where the employee was a bystander who witnessed the death of a fellow employee and who had no other involvement in the accident or any close tie of love and affection with the deceased; (3) that the pursuers' psychiatric illnesses were not caused by participation in the incident nor was there any basis for attributing their illnesses to a belief that they had been the unwitting cause of the workmate's death; and (4) that an employee who was merely a bystander or witness to the death of a fellow employee was in no different position from that of a bystander or witness to that death who was not a fellow employee and must therefore be assumed to possess sufficient fortitude to enable him to endure the shock caused by witnessing the accident concerned; and reclaiming motionrefused.
Authorities considered.
Arnott Robertson brought an action against his employers, Forth Road Bridge Joint Board, in respect of personal injuries allegedly sustained by him as a result of witnessing an accident on 29 January 1989 on the Forth Road Bridge whereby his fellow employee, George Smith, was blown off the bridge and subsequently died. A similar action was raised by Derek Rough against the same defenders.
The cause came to proof before answer before the Temporary Lord Ordinary (J F Wheatley, QC).
At advising, the Temporary Lord Ordinary assoilzied the defenders.
The pursuers reclaimed.
Cases referred to:
Alcock v Chief Constable of South Yorkshire PoliceELR[1992] 1 AC 310
Attia v British Gas plcELR [1988] 1 QB 304
Bourhill v YoungSC 1942 SC (HL) 78
Brown v John Watson Ltd 1914 SC (HL) 44
Chadwick v British Railways BoardWLR [1967] 1 WLR 912
Dillon v British Railways Board, The Times18th January 1995
Donoghue v Stevenson 1932 SC (HL)
Dooley v Cammell Laird & Co and Mersey Insulation Co LtdUNK [1951] 1 Lloyd's Rep 271
Gait v British Railways Board (1983) 133 New LJ 870
McFarlane v EE Caledonia LtdUNK [1994] 2 All ER 1
McLoughlin v O'BrianELR [1983] 1 AC 410
Mount Isa Mines Ltd v PuseyUNK (1970) 126 CLR 383
Wigg v British Railways Board, The Times 4th February 1986
Yates v South Kirkby etc Collieries LtdELR [1910] 2 KB 538
The cause called before the First Division, comprising the Lord President (Hope), Lord Allanbridge and Lord Cowie, for a hearing.
At advising, on 2 March 1995
LORD PRESIDENT (Hope)The pursuers in these two actions of damages have reclaimed against the interlocutors of the temporary Lord Ordinary by which, after a proof before answer, he granted decree of absolvitor. The actions arose out of a tragic accident which occurred on the Forth Road Bridge on 29 January 1989. The pursuers and a workmate named George Smith were working together in the course of their employment with the defenders, whose function is to maintain and operate the bridge. The winds were blowing at gale force during their shift that day. The accident occurred while the men were in the course of removing a large thin piece of metal sheeting which had been found lying on the south-bound carriageway. It was being taken off the bridge on the open platform of a Ford Transit pick-up van. Smith was sitting on the top of the metal sheet on the back of the van, Robertson was driving the van and Rough was following a few feet behind in a small patrol van which he was driving. In the course of their journey to the south end of the bridge a sudden and violent gust of wind caused the sheet and Smith to be thrown violently off the back of the van and over the side of the bridge. This occurred close to the main southeast tower where the carriageway is high above the water, and no one who fell that distance could be expected to survive. As it happened Smith fell only a few feet on to a girder below the carriageway, but he was killed by the force of the impact.
Robertson and Rough claimed to have suffered nervous shock as a result of witnessing the accident. The Lord Ordinary held that there was no duty of care arising out of the relationship between the pursuers and the deceased in these circumstances and that there was thus no relevant basis upon which the defenders could be held liable to them in damages. It is against that decision that the pursuers have now reclaimed. As the actions were heard together, these reclaiming motions were heard together also and the views which I express in this opinion relate to both actions.
Cases of nervous shock, or of psychiatric illness as this type of injury has been described more accurately in the recent authorities, raise questions of unusual difficulty for the court. But there is now no doubt, as Lord Wilberforce pointed out in McLoughlin v O'Brian at p 418C, about the legitimacy in principle of claims for damages for an illness of this character. In Bourhill v Young at p 83 Lord Thankerton said, in regard to the range of duty of a motorcyclist on the public road towards other passengers on the road: Clearly this duty is to drive the cycle with such reasonable care as will avoid the risk of injury to such persons as he can reasonably foresee might be injured by failure to exercise such reasonable care. It is now settled that such injury includes injury by shock, although no direct physical impact or lesion occur.
In McLoughlin v O'Brian at p 418B Lord Wilberforce observed that it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind and that there may thus be produced what is as identifiable an illness as any that may be caused by direct physical impact. He went on at pp 421H-422B, however, to say that, although some of the fears about the consequences of recognising that there is a duty of care to avoid causing another to suffer an illness of this kind could be discounted, there remained, because shock in its nature is capable of affecting so wide a range of people a real need for the law to place some limitation upon the extent of admissible claims. It is necessary to consider three elements inherent in any claim: the class of persons whose claims should be recognised; the proximity of such persons to the accident; and the means by which the shock is caused.
In the present case we are concerned with the question whether the pursuers are within the class of persons whose claims should be recognised. The issue of proximity in the sense used by Lord Wilberforce in that passage does not arise, because it is clear that the pursuers were both present at the time of the accident. Rough saw it happen and Robertson was driving the van from which Smith was blown off the bridge. As to the means, questions were raised in the course of the argument as to whether the pursuers had established that their psychiatric illness was caused at all by Smith's accident, which the defenders admit was the result of their fault and negligence. I shall return to this point at a later stage in this opinion. In regard to the class of persons, it is important to note that we are not dealing here with the ordinary case of a direct physical injury suffered by these two workmen. Nor are we dealing with a case where the psychiatric illness is said to have been caused by their being exposed themselves to the risk of death or serious injury. Neither of them are said to have been exposed to that risk at any stage in the operation which led to Smith's death. Their case is that their psychiatric illnesses were caused by the fact that they witnessed Smith's accident. That is the way in which the case is pled in the last sentence of art 3 of the condescendence in both actions.
In Alcock v Chief Constable of South Yorkshire Policeat p 396H Lord Keith of Kinkel said of this type of case, which he described as that of a secondary sort of injury brought about by the infliction of physical injury, or the risk of physical injury, upon another person that, in addition to reasonable foreseeability, liability for injury in the particular form of psychiatric...
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