White and Others v Chief Constable of South Yorkshire Police and Others

JurisdictionUK Non-devolved
JudgeLORD BROWNE-WILKINSON,LORD GRIFFITHS,LORD GOFF OF CHIEVELEY,LORD STEYN,LORD HOFFMANN
Judgment Date03 December 1998
Judgment citation (vLex)[1998] UKHL J1203-4
Date03 December 1998
CourtHouse of Lords
White

And Others

(Respondents)
and
Chief Constable of South Yorkshire

And Others

(Appellants)

[1998] UKHL J1203-4

Lord Goff of Chieveley

Lord Griffiths

Lord Browne-Wilkinson

Lord Steyn

Lord Hoffmann

HOUSE OF LORDS

LORD BROWNE-WILKINSON

My Lords,

1

I have read in draft the speeches of my noble and learned friends, Lord Steyn and Lord Hoffmann. I agree that for the reasons they give these appeals should be allowed and the actions dismissed.

LORD GRIFFITHS

My Lords,

2

I have had the advantage of reading the speeches of your Lordships before giving my own opinion. In those speeches are cited all the relevant authorities that trace the development of the common law's attitude to psychiatric injury. They show that the common law has regarded claims for psychiatric injury with caution and has not until very recent times been prepared to treat them as on a par with physical injury. I do not think I shall serve any useful purpose by travelling over that historic ground again in this opinion, and I shall take as my starting point the two recent decisions of the House of Lords as stating the present state of the common law.

3

In Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310, claims were brought by those who had suffered psychiatric injury as a result of the Hillsborough disaster. Two of the plaintiffs were spectators in the ground, but not in the pens where the disaster occurred, the remainder of the plaintiffs learned of the disaster through radio or television broadcasts. All the plaintiffs lost, or feared they might have lost, a relative or fiance in the disaster. Thus it will be seen that two of the plaintiffs were witnesses to the disaster, but not in peril themselves, the remainder were not in the ground when the accident occurred. One of the plaintiffs gave some assistance to the injured but the case was not argued on the basis that he should be treated as a rescuer. The two plaintiffs at the ground were treated as bystanders who witnessed the disaster. All the plaintiffs lost their cases because they did not fulfil one or other of the control mechanisms, all of which the present law requires in cases where damages for psychiatric injury are claimed by plaintiffs who were not directly threatened by the accident but learned of it through sight or hearing of it. These control mechanisms are as Lord Hoffmann sets out in his opinion.

"1. There must be a close tie of love and affection between the plaintiff and the victim. 2. The plaintiff must have been present at the accident or its immediate aftermath. 3. The psychiatric injury must have been caused by direct perception of the accident or its immediate aftermath and not by hearing about it from somebody else."

4

There is a further requirement in the bystander case and that is that psychiatric injury was reasonably foreseeable as a likely consequence of exposure to the trauma of the accident or its immediate aftermath. The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals. This is not to be confused with the "eggshell skull" situation, where as a result of a breach of duty the damage inflicted proves to be more serious than expected. It is a threshold test of breach of duty; before a defendant will be held in breach of duty to a bystander he must have exposed them to a situation in which it is reasonably foreseeable that a person of reasonable robustness and fortitude would be likely to suffer psychiatric injury. However, as in the situation we are considering, namely the bystander who is seeing or hearing of the event from a safe distance, the only injury that he could suffer would be psychiatric injury so we can substitute personal injury for psychiatric injury, and this will fit more easily with Page v. Smith [1996] A.C. 155 to which I now turn.

5

In Page v. Smith the plaintiff was driving his car at 30 miles an hour when the defendant turned right immediately into his path. The consequence was an accident in which both cars suffered considerable damage but the occupants all escaped physical injury. The Plaintiff, however, had suffered for 20 years from a condition known as chronic fatigue syndrome, which manifested itself from time to time. The judge held that the shock of the accident reactivated this condition which was now in all probability permanent and that it was unlikely that the plaintiff would be able to return to full-time employment, and he awarded damages of £162,153. The Court of Appeal allowed the defendants appeal on the ground that psychiatric injury was not a foreseeable consequence of the accident. The House of Lords by a majority held that in circumstances such as a road accident in which a defendant owes a duty of care not to cause personal injury it mattered not whether the injury suffered as a result of the defendant's negligence was physical injury or psychiatric injury and liability would be established without the necessity to prove as an independent part of the cause of action that psychiatric injury, in the absence of physical injury, was foreseeable.

6

For my part I regard this as a sensible development of the law and I note from the Law Commission Report on Liability for Psychiatric Illness (1998) (Law Com. No. 249) that it has been supported by the majority of practitioners. If some very minor physical injury is suffered and this triggers a far more serious psychiatric disorder no one questions that damages are recoverable for the psychiatric disorder. If the victim of the negligence escapes minor physical injury but the shock or fear of the peril in which he is placed by the defendant's negligent conduct causes psychiatric injury I can see no sensible reason why he should not recover for that psychiatric damage.

7

As medical science advances we realise how difficult it is to separate out the physical and psychiatric consequences of trauma, and I believe the law would do better to regard both as personal injury as Page v. Smith requires in the case of primary victims, that is victims who are imperilled or reasonably believe themselves to be imperilled by the defendant's negligence. Insofar as secondary victims are concerned, that is those who are bystanders, we can still ask the question was personal injury reasonably foreseeable if we regard psychiatric damage as personal injury. For as I have pointed out no question of physical injury arises in the case of the bystander.

8

Having set out my understanding of the present state of the law I turn to consider the position of the plaintiffs in the appeal. They were all police officers and it is agreed that as such they are to be considered for the purposes of the law as though they were employees of the Chief Constable. The case for the police officers is put in two ways. First it is said that they are entitled to recover for a breach of the duty owed to them as employees and secondly that at least some of them are entitled to recover as rescuers.

9

Their case as employees is put thus: they were all at the ground in the course of their duty, as employees. The Chief Constable owed them a duty to take reasonable care not to expose them to unnecessary risk of injury during the course of their employment. The Chief Constable is vicariously liable for the negligence of the police officer who caused the catastrophe by admitting the crowd in to the pens. It was the impact of the horror of the situation on the minds of the police officers that caused them psychiatric injury. By the negligent creation of the horrific situation the Chief Constable was in breach of his duty not to expose the police to unnecessary risk of injury and is consequently liable for their injuries.

10

If this approach is right it means that the police will be entitled to recover damages whereas spectators and others on duty in the ground who were exposed to the same horror and risk of psychiatric injury will not be able to do so. I can not believe that this would be a fair or acceptable state of the law. If anything one would expect the police to be at a disadvantage. The police are trained to deal with catastrophic incidents and reasonably well compensated under the terms of their service if they do suffer injury in the course of their duties.

11

The law of master and servant is not a discrete and separate branch of the law of tort, but is to be considered in relation to actions in tort generally. Here we are considering the tort of negligence and the nature of the duty of care owed by one who negligently creates a catastrophic situation. In order that there shall be some limits to the consequence of the negligence for which the defendant is to be made liable the law imposes the controls I have discussed in Alcock.

12

In my view these should apply to all those not directly imperilled or who reasonably believe themselves to be imperilled, irrespective of whether they are employees or not. Accordingly, I would allow the appeals insofar as the police rely upon their status as employees.

13

I turn last to the special category known as "rescuers." If a tort feasor creates a dangerous situation he can foresee that others will attempt to rescue the victims, or potential victims of his negligence. It is well settled that if a rescuer suffers physical injury in the rescue attempt he will be entitled to damages from the tort feasor. If it is foreseeable that the rescuer may suffer personal injury in the form of psychiatric injury rather than physical injury, why should he not recover for that injury. The fear is expressed that if foreseeability of psychiatric injury is sufficient it will open the floodgates to claims, many of an unmeritorious kind, from those who give assistance at any accident. I believe that the courts are well capable of controlling any such flood of...

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