Young v Charles Church (Southern) Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EVANS:,LORD JUSTICE HOBHOUSE,LORD JUSTICE HUTCHISON |
| Judgment Date | 24 April 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0424-21 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No QBENF 96/0920/C |
| Date | 24 April 1997 |
[1997] EWCA Civ J0424-21
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF SIR MAURICE DRAKE
Royal Courts of Justice
Strand
London WC2
Lord Justice Evans
Lord Justice Hobhouse
Lord Justice Hutchison
No QBENF 96/0920/C
MR M PORTER (Instructed by Larcomes of Waterlooville, Hampshire) appeared on behalf of the Appellant
MR G ANTHONY (Instructed by Berrymans of London) appeared on behalf of the Respondent MISS L MULCAHY appeared on 24th April 1997
The plaintiff claims damages for a severe psychiatric illness which he has suffered since 25 May 1989. A dreadful accident occurred at his place of work and his workmate alongside him was electrocuted and killed. The workmate, Andrew Cook, was a scaffolder. He was engaged in erecting a structure which consisted of four 20-foot scaffold poles each held upright by a tripod of three shorter 8 foot poles. The upright poles represented the four corners of a house which was proposed to be built on the site. When they were erected, they were to be joined by coloured ribbon which would show in a rough and ready way the size and outline of the intended house and which therefore could be viewed for demonstration and planning purposes.
The plaintiff and another man, Keith Smith, were labourers who were assisting Mr Cook by carrying the scaffold poles to him as he needed them. Three of the four uprights were erected. The plaintiff brought the 20 foot pole which was to be the fourth upright and he transferred it to Mr Cook. As he turned away to fetch another of the shorter poles, Mr Cook raised the 20 foot pole vertically. It came into contact with an overhead power line carrying 33000 volts of electrical current on pylons across the site.
The judge, Sir Maurice Drake, described what happened next:—
"…..the plaintiff was about 6 or 10 feet from [Mr Cook] turning away to fetch the support poles. He heard a loud bang and a hissing noise and looked up and saw that the pole held by Mr Cook had struck and stuck to the electric wiring. He saw that the ground around Mr Cook had burst into flames.
Mr Young said that the hissing seemed to continue for ages but in fact it could have been for 10 seconds or less before Andrew Cook fell to the ground with the pole still in his hand. The plaintiff heard Heath Smith scream. Mr Smith was about 10 feet way from Mr Cook and had himself been struck by electricity and knocked back some 10 feet. He had a mark from it on his arm".
The action
The plaintiff issued the writ on 21 May 1992 against two defendants. The first was Charles Church (Southern) Ltd., who were the builders and would-be developers whom he sued as occupiers of the site. Secondly, Southern Construction Services, a firm, whom he alleged were his employers. He claimed damages for negligence and breach of statutory duty against both defendants. In their defences, each defendant made similar allegations against the other, with the first defendants adding a claim that the second defendants were vicariously liable for negligence by Mr Cook, the deceased, who they said had failed to take any or sufficient care for his own or, presumably, the plaintiff's safety.
Soon afterwards, the defendants reached some agreement between themselves, the precise terms of which are not before us and are not relevant to this appeal. On 31 March 1993 the solicitors now acting for both defendants wrote in the following terms:—
"For the purpose of these proceedings and for no other, we confirm that the issue of liability for this accident will not be in dispute. For the avoidance of any doubt please note it will still be the Defendants contention that your client does not come within the class of persons entitled to make a claim for nervous shock and the issues of causation and quantum remain live".
It was then ordered by consent that "the question of liability of the defendants to the Plaintiff in this action be tried as a preliminary issue" (7 February 1996).
That issue was tried by Sir Maurice Drake sitting as a deputy judge of the Queen's Bench Division on 13 June 1996. He recorded that "the defendants have admitted liability for the accident resulting in the death of one Andrew Cook, a fellow employee of the plaintiff. They have also admitted that, as a result of witnessing the accident to Mr Cook, the plaintiff has suffered nervous shock, but they deny that he falls within the category of persons entitled to recover damages for nervous shock. Similarly, the defendants admit that in respect of Mr Cook they were in breach of statutory duty, but they deny any such breach in respect of the plaintiff."
The judge held that the plaintiff's claim for damages failed, both in negligence and for breach of statutory duty. What he decided in essence was that the plaintiff, who suffered no physical injury, was not entitled as a matter of law to recover damages for the kind of injury "commonly referred to as nervous shock".
The issue was never defined more precisely than as the question of liability. The defendants having agreed between themselves that if either or both of them is liable to the plaintiff then the liability will be shared between them, it is immaterial to them on what basis the liability is established. The argument before the judge and before us has proceeded on the basis of the defendants' submission that the plaintiff is not entitled to succeed against either defendant because, and only because, he suffered no physical injury in the accident. In addition, before us, in response to the plaintiff's reliance on the recent judgments in Frost v. Chief Constable of South Yorkshire [1997] 1 All E.R. 540, Mr Anthony has raised the further issue whether the plaintiff was an employee of the second defendants, as the plaintiff alleges that he was.
Whilst therefore the defendants have not admitted any of the precise allegations of negligence which are made against them in the Statement of Claim, it is sufficient for present purposes to accept their admission of liability for "the accident" and, it appears, to the deceased, if he was a plaintiff, as meaning that between them they were negligent in failing to ensure that the plaintiff and Mr Cook were both safeguarded by warning or otherwise (e.g. by causing the electric current to be switched off, if that could be done) from the risk of the scaffolding poles coming into contact with the live overhead wires, exactly as occurred.
Negligence
It is now clearly established, most recently by Page v. Smith [1996] 1 A.C. 155, that shock-induced psychiatric injury can found an action for damages at law; it is a kind of damage which is recognised by the law as a proper subject for compensatory damages. Indeed, having regard to the development of medical knowledge, the courts ought not to distinguish as a matter of principle between physical and mental injury, though of course their different characteristics make it inevitable that different considerations apply as regards the evidence which proves that injury has occurred, and how it was caused (see e.g. Lord Oliver in Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310 at 407A). This was emphasised by Lord Lloyd in Page v. Smith at 188F, and underlined by Lord Browne-Wilkinson at 180–1.
Four judgments of the House of Lords are milestones in the development of the law, specifically the law of negligence, showing how rules which were devised in relation to physical injury came to be applied to mental injury also. These were Bourhill v. Young [1943] A.C. 92McLoughlin v. O'Brien [1983] 1 A.C. 410Alcock in 1992, and most recently Page v. Smith. In none of those cases was the plaintiff an employee of the defendant. For the claim for damages for negligence to succeed, the plaintiff has to establish a legal relationship between himself and the defendant on the basis of proximity. That is the concept derived from Heaven v. Pender which was embodied in the common law as the cornerstone of the tort of negligence by Donoghue v. Stevenson itself. This is in addition to showing that injury to the plaintiff, not the plaintiff personally but someone situated as the plaintiff was, was reasonably foreseeable as a consequence of the negligent act or omission for which the defendant is responsible.
Alcock and Page v. Smith each presented the court with different problems. The plaintiffs in Alcock were members of the families of the victims of the Hillsborough football stadium disaster, who saw the horrendous scenes, knowing that their family members were present. Some of them were present in other parts of the ground and they saw and heard for themselves what occurred. Others were television viewers. There was no question of any of them being victims in any physical sense, or of suffering any mental injury except by reason of what they saw and heard directly or through the medium of television.
The House of Lords held that shock-induced mental injury to those who were present at the ground was reasonably foreseeable as the result of negligent crowd control, for which the defendant was liable, but that the necessary 'proximity' which the law requires before a claim for damages can succeed was not present in any of the cases. To recover damages, the plaintiffs had to sustain injury through their own senses of sight and hearing of the accident or its immediate aftermath, and they had to have a close and loving relationship with a victim, broadly equivalent to parents and child or husband and wife. So the television viewers also failed, even when a close relationship existed. Unless both conditions were...
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