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

JurisdictionEngland & Wales
JudgeLORD JUSTICE ROSE,LORD JUSTICE HENRY,LORD JUSTICE JUDGE
Judgment Date31 October 1996
Judgment citation (vLex)[1996] EWCA Civ J1031-12
Docket NumberQBENF 95/0658/C
CourtCourt of Appeal (Civil Division)
Date31 October 1996

[1996] EWCA Civ J1031-12

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION

ON APPEAL FROM ORDER OF MR JUSTICE WALLER

ON APPEAL FROM ORDER OF HIS HONOUR JUDGE STEPHEN

Royal Courts of Justice

Strand

London WC2

Before:

Lord Justice Rose

Lord Justice Henry

and

Lord Justice Judge

QBENF 95/0658/C

CCRTF 95/0136/C

Frost and Others
Plaintiffs
and
The Chief Constable of South Yorkshire Police and Ors
Defendants
and
Walter Mein Duncan
Plaintiff
and
The British Coal Board Defendants

MR B HYTNER QC and MR G PLATTS (Instructed by Russell Jones & Walker, Leeds LS1 2HA) appeared on behalf of the Appellant.

MR A COLLENDER QC and MR P LIMB (Instructed by Hammond Suddards, Bradford BD1 3LR) appeared on behalf of the Respondent.

MR WB PHILLIPS (Instructed by Keeble Hawson, Sheffield S1 1XA) appeared on behalf of the Appellant.

MR R MAXWELL QC (Instructed by Nabarro Nathanson, Doncaster DN1 2DQ, agents for Nabarro Nathanson, London N1X 6NX) appeared on behalf of the Respondent.

1

Thursday, 31st October 1996

LORD JUSTICE ROSE
2

These two appeals raise questions as to the circumstances in which an employee can recover damages for psychiatric injury sustained as a result of tending a victim of his employer's negligence.

3

In the first appeal, 5 police officers challenge the decision of Mr Justice Waller who, on 10th April 1995, dismissed their claims arising out of the disaster at Hillsborough Stadium in Sheffield on 15th April 1989. In the second appeal, a pit deputy challenges the decision of Deputy Judge Stephen who on 4th January 1995, at Sheffield County Court, dismissed his claim arising from treating a man crushed to death by the admitted negligence of his employers.

4

It is convenient to deal first with the police officers' action.

5

The events at Hillsborough Stadium were horrific. Shortly after 3 pm, 96 football match spectators died and very many more were injured by crushing, sustained in pens 3 and 4 at the Leppings Lane end of the ground. The immediate cause of the disaster was a senior police officer's decision to open an outer gate without cutting off access to the pens. Liability for the deaths and injuries of those spectators has been admitted by the 3 defendants the first of whom is the plaintiffs' Chief Constable. The defendants admit negligence in the present proceedings but dispute the existence of any duty to these plaintiffs.

6

By agreement, causation was not dealt with below. If, by reason of this court's decision on duty, it arises, causation will be remitted to a trial judge. However, as I understand the position, it is not in issue that the plaintiffs all sustained Post Traumatic Stress Disorder. The Law Commission (Consultation Paper 137 para 3.6) says that PTSD is unique in psychiatric classification in that it contains an explicit assumption that the cause of the disorder is known. If this is correct (and we have heard no submissions on the point, though we heard rival contentions as to whether the plaintiffs' injuries were shock-induced) it appears, at least prima facie, that causation seems likely to be established. Waller J made no specific finding as to whether psychiatric injury was foreseeable. However, the first defendant admits that, prior to April 1989, "some police officers of ordinary fortitude suffered psychiatric illness without physical injury as a result of attending incidents involving death or serious injury or risk thereof". It is also common ground that, from July 1988, the first defendant had a standing order in relation to the management of Post Traumatic Stress Disorder, which identified the difficulty of predicting how any particular officer would react to an extreme incident. A force Welfare Officer and Psychologist were at the stadium. Accordingly, in itself, foreseeability of psychiatric injury, at least by the first defendant, would appear to present no problem to the Plaintiffs and, before us, it was not contended otherwise on behalf of the defendants. Accordingly, it is to the existence and breach of duty that I direct my consideration.

7

In his interim report on the disaster, Lord Justice Taylor described the scene of carnage. "It was truly gruesome. The victims were blue, cyanotic, incontinent their mouths open, vomiting: their eyes staring. A pile of bodies lay and grew outside gate 3. Extending further and further onto the pitch the injured were laid down and attempts made to revive them…. The scene was emotive and chaotic as well as gruesome". A temporary mortuary was opened in the stadium's gymnasium. Police officers played differing roles in different places. 37 brought claims. Liability has been admitted and damages assessed in relation to the 14 who either entered the pens or were active at the pens' fence. The roles played by the present plaintiffs represent the different types of activity carried out by the remaining 23 claimants. It was contended on behalf of each plaintiff, apart from Sergeant Janet Smith who was in the hospital mortuary, that he was a rescuer, but this was disputed by the defendants. Waller J found that only one of the plaintiffs, Inspector White, was a rescuer and this is now challenged by the defendants.

8

Two grounds for founding liability were argued on appeal: first, breach of a duty of care by the Chief Constable, arising from the plaintiffs' service as police officers when acting under his direction and control; secondly, breach of a duty owed to them as rescuers. The Plaintiffs did not pursue before us a third possibility canvassed unsuccessfully before the judge, namely that the Plaintiffs were "conduit pipes"lead to believe that their own conduct had helped to bring about the disaster. The judge found, as to the first ground, that a relationship analogous to master and servant existed between the Chief Constable and the appellants, giving rise to a duty of care, embracing psychiatric illness, but that duty did not arise where the police officer was a "secondary victim", unless he could succeed as a rescuer and such a duty could not place a police officer in a better position than a bystander. As to the second ground, only Inspector White was a rescuer in law and he could not recover since, being a professional rescuer not intimately participating in the incident itself or in the immediate aftermath, it would be "unattractive" and not "just and reasonable" that he could recover whereas a bystander could not: something akin to the "fireman's rule" should apply in relation to psychiatric damage.

9

As to the first ground, Mr Hytner QC submitted that the scope of the duty owed by an employer and a Chief Constable in the position of an employer is the same whatever the nature of the employment, namely, to take reasonable care to avoid exposing the employee to unnecessary risk of physical or psychiatric injury. The normal work of steel erectors and stevedores, like that of police officers, exposes them to the risk of death and serious injury. This is part of the hazard of the particular job: but it does not exonerate the employer from the need to take reasonable care towards his employees. Mr Hytner accepts that a police officer injured when deployed to prevent a riot or summoned to the scene of an accident cannot complain against his Chief Constable. But he can complain if his injury whether physical or psychiatric, is due to antecedent negligence by the Chief Constable. It is for this reason that the plaintiff succeeded in Knightley v Johns 1982 1 WLR 349 to which, he submits, Mr Justice Waller had inadequate regard. Where the duty exists, its scope cannot artificially be restricted by excluding from it psychiatric injury: see Dooley v Camel Laird 1951 1 Lloyds Report 271, Mount Isa Mines v Pusey 1970 125 CLR 383 and Page v Smith 1996 1 AC 155 in particular per Lord Browne Wilkinson at 181 D-F and per Lord Lloyd of Berwick at 190D. Robertson and Rough v Forth Road Bridge a decision of the Inner House of the Court of Session on 2nd March 1995, where it was held that an employer did not owe a duty of care to an employee who suffered nervous shock when he saw a fellow employee with whom he had been working on a joint task blown off the bridge to his death, was wrongly decided.

10

As to the second ground, Mr Hytner submitted that a rescuer is in a primary relationship with the tortfeasor (see Cardozo J in Wagner v International Railway Company 1921 232 NY 176 "The wrong that imperils life is a wrong to the imperilled victim;it is a wrong also to the rescuer… The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had"). In Ogwo v Taylor 1988 AC 431 the House of Lords rejected, as having no place in English Law, the American "firemans rule" (see per Lord Bridge of Harwich at 449C), approved the decision of Woolf J in Salmon v Seafarer Restaurants 1983 1 WLR 1264 and specifically approved a passage in Woolf J's judgment where he said "there seems no reason why a fireman should be at any disadvantage when the question of compensation for his injuries arises" (see per Lord Bridge at 448D). Waller J was wrong to rely on Caparo v Dickman 1990 2AC 605 to conclude that it would not be just, fair and reasonable for a professional rescuer to have a remedy. Such a question only arises when consideration is being given to the creation of a new category of plaintiff to whom a duty is owed, whereas, in the present case, rescuers are an existing category. The only difference between professional and non-professional rescuers is that the former are more hardened and therefore it may be more difficult to foresee psychiatric injury to them, but this does not change the scope of...

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