MILITARY AND POLICE
Fourth of a series of four papers
by GILLIAN KELLY B.L.
THE LEGACY OF HILLSBOROUGH
It is now ten years since the disaster at Hillsborough stadium in Sheffield (15th April, 1989), and the judgment of the House of Lords In White & Ors v. The Chief Constable Of South Yorkshire Police, delivered on 3rd December, 1998 is the culmination of a decade of legal precedent arising from that disaster. Hillsborough has given rise to an extensive body of case law and has brought the law of torts in England into stark perspective with regard to Post Traumatic Stress Disorder (PTSD) both on a civilian and on a "professional" level.
The above judgment in White v The Chief Constable allowed the defendants' appeal against the 1997 Court of Appeal decision in Frost & Ors. v The Chief Constable Of South Yorkshire Police ( 1 All E R.540), their Lordships holding by a majority of 3 to 2 that the claims of the police officers had been rightly dismissed by the trial judge Waller J., and that the majority in the Court of Appeal had erred in reversing him.
THE FACTS, briefly, of the Hillsborough disaster were that, through an admittedly negligent police decision at a major football match in April 1989, two spectator pens were allowed to become overcrowded, resulting in the crushing to death of 95 spectators and the personal injury of hundreds more, either physical or psychiatric, or both.
The law governing damages for psychiatric injury among civilian claimants has been clearly stated in Alcock v The Chief Constable Of South Yorkshire Police ( 4 All E R.907).
In Alcock, the House of Lords held ten civilian plaintiffs who had suffered PTSD as a result of the Hillsborough disaster (all of whom had lost a relative) not to be entitled to recover damages as against the defendants; each of them having failed the control mechanisms laid down in that case to be applied to plaintiffs in their situation. These are as follows:
(i) that there must be a close tie of love and affection between the plaintiff and the victim or potential victim,
(ii) that the plaintiff must have been present at the accident or its immediate aftermath,
(iii) that the psychiatric injury must have been caused by direct perception of the accident or its immediate aftermath and not by hearing about it from someone else.
The above control mechanisms were applied by the majority of their Lordships to the plaintiff police officers in White v The Chief Constable, in an attempt to treat like cases alike.
This article attempts to explore the law as it now stands with regard to the recovery of damages for PTSD among members of the professional services, and although White concerned members of the police force, their Lordships would appear to have laid down what is now a general rule of tort law governing such plaintiffs. The article further explores how the English courts view the disorder among this category of plaintiff, and the liability in negligence therein on the part of defendants, who are frequently (though not always) their employers.
Finally, the article poses the question as to whether the Irish and English jurisdictions are taking different views on the issue of the duty of care owed by an employer to his employees in the area of psychiatric injury, particularly in the light of the recent Irish High Court decision of Budd J. in Mc Hugh v The Minister For Defence & Ors. (1994.8066p) delivered on 28th January 1999, which is also discussed.
The subject of a defendant’s liability in tort for psychiatric injury to rescuers will be discussed in part 2 of this article.
WHITE & ORS. V THE CHIEF CONSTABLE of SOUTH YORKSHIRE:
The background to this case was the Court of Appeal decision in Frost & Ors. V The Chief Constable Of South Yorkshire Police ( 1 All E R.540), in which it was held that five police officers who had been on duty at Hillsborough on the day in question and who, it was accepted, had suffered PTSD as a result of the scenes they had witnessed and in which they had been involved, were entitled to recover damages for their condition as against the defendants. Two of the police officers had succeeded in their capacity as rescuers, two succeeded because the defendants were held to be in breach of the duty of care owed to them by virtue of the employer/employee relationship that existed between them, and one police officer was held to be entitled to recover under both headings.
The House of Lords, in its judgment in White & Ors. V The Chief Constable, reversing the above decision, deciding that the claims of the police officers had been rightly dismissed by the trial judge, Waller J. and that the majority in the Court of Appeal had erred in reversing him,
HELD:Lord Steyn, illustrating in his judgment how the law cannot compensate for all emotional suffering even if acute and truly debilitating, said: (@p.30)
(Lord Goff dissenting) An employee who suffered psychiatric injury in the course of his employment had to prove liability under the general rules of tort. The mere fact that his relationship with the tortfeasor was that of employer/employee did not make him a primary victim, and hence did not give him an advantage over an ordinary civilian claimant (Lord Griffiths and Lord Goff dissenting) The proximity requirement in the special situation of psychiatric harm suffered by a rescuer was satisfied by showing actual or apprehended physical danger. Accordingly, in order to recover compensation for pure psychiatric injury suffered as a rescuer the plaintiff had at least to satisfy the threshold requirement that he had objectively exposed himself to physical danger or reasonably believed that he was doing so. It followed that the police officers were not entitled to recover damages as against the Chief Constable for psychiatric injury suffered as a result of assisting in the aftermath of a disaster, either as employees or as rescuers. Accordingly the defendants’ appeals would be allowed. A majority of their Lordships also decided that reasonable foreseeability was no longer an adequate tool for the disposal of claims in respect of psychiatric injury.
" In an ideal world all those who have suffered as a result of the negligence ought to be compensated. But we do not live in utopia; we live in a practical world where the tort system imposes limits to the classes of claims that rank for consideration as well as to the heads of recoverable damages. This results, of course, in imperfect justice but it is by and large the best that the common law can do. The application of the requirement of reasonable foreseeability was sufficient for the disposal of the resulting claims for death and physical injury. But the common law regards reasonable foreseeability as an inadequate tool for the disposal of claims in respect of emotional injury."
THE EMPLOYER/EMPLOYEE RELATIONSHIP:
Rose L.J. had pointed out in Frost v The Chief Constable ( 1 All E R.540), that :
"..the court has long recognised a duty of care to guard employees and rescuers against all kinds of injury."
The first of two crucial arguments for their Lordships in White concerned that of the duty of an employer to take reasonable care for the safety of his employees and to take reasonable steps to safeguard them from injury, both physical and psychiatric, in the course of their employment.
This argument, in Lord Steyn’s opinion, breaks down on analysis, his Lordship considering it :
"…a non sequitur to say that because an employer is under a duty to an employee not to cause him physical injury, the employer should as a necessary consequence of that duty be under a duty not to cause the employee psychiatric injury."
A majority of their Lordships held that the rules to be applied in such a situation are the ordinary rules of tort.
Applying the Alcock decision then, and following what are now known as the "Alcock Control Mechanisms" (cited ante), Lord Steyn, while acknowledging that the claim of the police officers on the court’s sympathy, and the justice of the case, was great, qualified it nonetheless as "…not as great as that of others to whom the law denies redress" – a direct reference to the case of the unsuccessful civilian plaintiffs in Alcock who were themselves held to have failed one or more of the control mechanisms.
Lord Hoffmann, while acknowledging that compensation for personal injury caused by negligence is ordinarily recoverable if the defendant ought reasonably to have foreseen that his conduct might cause such injury, added that:
" …the common law has been reluctant to equate psychiatric injury with other forms of personal injury."
And reverting to an almost Coultas type ratio, his Lordship pointed to the evidential difficulty in deciding upon the causes of psychiatric symptoms which, despite scientific advances, remained, in his opinion, a serious problem.
"The liability of an employer to his employees for negligence….....Lord Hoffmann continued (@ p.43/44)…is not a separate tort with its own rules. It is an aspect of the general law of negligence. The relationship of employer and employee establishes the employee as a person to whom the employer owes a duty of care. But this tells us nothing about the circumstances in which he will be liable for a particular type of injury. For this one must look to the general law concerning the type of injury which has been suffered. It would not be suggested that the employment relationship entitles the employee to recover damages in tort for economic loss which would not ordinarily be recoverable in negligence…."
And using what Windeyer J. referred to as a "Cartesian distinction" his Lordship concluded that..
"..The same must surely be true of psychiatric injury."
Windeyer J. in Mount Isa Mines v Pusey ( 125 C.L.R.382 @ 405) had observed that:
"The Cartesian distinction between mind and matter for a long time had an obdurate influence on men’s thinking. The interrelation of mind and body was little understood and often unacknowledged. But this position has given way in medicine and should, I think, give way in law."
Lord Hoffmann’s key question was as to whether the employer/employee relationship should be a reason for allowing an employee to recover damages for psychiatric injury in circumstances in which he would otherwise be a secondary victim and not satisfy the Alcock control mechanisms. Referring to what his Lordship perceived as the dangers inherent in applying the traditional incrementalism of the common law to this area of the law of torts, and noting by way of analogy that..
"…the smoothing of the fabric at one point has produced an ugly ruck at the other.",
his Lordship said of the control mechanisms in their application to other secondary victims, that they "stand obstinately in the way of rationalisation and the effect is to produce striking anomalies."
He also considered Rose L.J. in his statement (ante) to have stated a broad proposition as settled law, and considered it debatable whether the authorities had gone so far as to recognise a duty to guard employees against psychiatric injury as a result of injury to others.
"In principle, therefore,…his Lordship concluded…I do not think it would be fair to give police officers the right to a larger claim merely because the disaster was caused by the negligence of other policemen. In the circumstances in which the injuries were caused, I do not think that this is a relevant distinction and if it were to be given effect, the law would not be treating like cases alike."
The plaintiffs relied on four cases: Dooley v Cammell Laird & Co. Ltd. (  1 Lloyd’s Rep.271) – Galt v British Railways Board (  133 N.L.J.870 ) – Wigg v British Railways Board (The Times, 4/2/86), and the Australian decision in Mount Isa Mines Ltd. v Pusey (  125 C.L.R. 382.).
Lord Hoffmann felt in regard to the above that, given the subsequent retreat from principle in Alcock, the above three cases had either to be given up as wrongly decided or explained on other grounds.
Classed by most of the leading authorities as special cases, it is not difficult to explain the three English decisions on other grounds:
Cases involving pure injury by shock, one of which resulted in no physical injuries whatsoever, they clearly illustrate the concepts of foreseeability and causation of such injury, and the extent of an employer’s liability therein. In each case, the plaintiff was directly and intimately involved in the event; they all were or believed they were, the instrument of the disaster. Such a conviction, which to the plaintiff was a horrible reality, was a sufficient assault on the nervous system to cause severe PTSD in two, and to lead to a shock-induced heart-attack in a third.
In Dooley v Cammell Laird, particularly illustrative in its simplicity, the plaintiff crane driver successfully sued his employers for damages for psychiatric injury after a crane’s load came crashing down into the hold of a ship. A defective rope which snapped, releasing a sling, and for which the defendants were responsible, was the cause of the accident, and the plaintiff had every reason to believe that the falling load had flattened his workmates. As it happened, nobody was physically hurt at all, but the plaintiff’s certainty – even for a few minutes – that he had been the instrument of the death of his colleagues, was the jolt which unhinged him psychiatrically. The issue was one of foreseeability, and in the words of Donovan J. @ p.277:
"…if the driver of the crane concerned fears that the load may have fallen upon some of his fellow workmen, and that fear is not baseless or extravagant, then it is, I think, a consequence reasonably to have been foreseen that he may himself suffer a nervous shock."
The plaintiff was intimately involved in, though in no way responsible for, the accident, and, in the words of Windeyer J. some twenty years later:
"The shock-producing event is a tort to the plaintiff. It does not matter whether the person hurt or endangered could himself have succeeded in an action."
Foreseeability again was the issue in Wigg, in which the plaintiff train driver successfully sued his employers for damages for psychiatric injury, sustained as a result of witnessing the distressing sight of a passenger who had been killed while attempting to board, and in the knowledge that he, the driver, had been the one who moved the train off, albeit on foot of a negligently given signal to do so.
Galt concerned a reasonably foreseeable injury by shock in the form of a heart-attack sustained by a train driver who, coming around a bend at speed, observed two railway workers on the track ahead of him. Neither worker was injured, but the plaintiff was awarded damages as against his employers for his condition, which was the result of their negligence in allowing the situation to arise.
Lord Hoffmann proposed that the decision in Mount Isa Mines Ltd. v Pusey be treated with similar caution to the above English decisions. The interest of Mount Isa Mines, in his Lordship’s opinion, resided entirely in the judgment of Windeyer J.. His Lordship interpreted the judge’s words in Mount Isa Mines (@ p 404) as saying that although the plaintiff was owed a duty of care as employee, his position was no different from that of anyone else to whom injury, whether physical or psychiatric, was reasonably foreseeable.
Windeyer J. said in that case that the duty of care was based not simply on duty to a neighbour, but that it arose also independently from the legal relationship between plaintiff and defendant, and continued:
"Foreseeable harm caused by a master to the mind of his servant is just as much a breach of his duty of care for him as harm to his body would be.
…But I do not wish to be taken as saying that where a duty of care springs only from foreseeability of harm to a ‘neighbour’ and not out of a relationship of status or of contract such as master and servant, a different result would follow."
FACTS of MOUNT ISA MINES LTD. v PUSEY:
The defendant employed the plaintiff as an engineer in its powerhouse. While the plaintiff was on duty, two fellow employees who were testing a switchboard were severely burned by an intense electric arc caused by their negligence. The defendant had not properly instructed them in their duties. The plaintiff went to the scene and saw one of the electricians with whom he was not acquainted, severely burned. The plaintiff aided him and assisted in carrying him to an ambulance. The electrician died about nine days later. For about four weeks the plaintiff continued working without any apparent impairment of his health, but thereafter he developed a serious mental disturbance normally comprehended in the term schizophrenia. Although the trial judge (Skerman J.) did not find that this particular reaction was a foreseeable consequence of the defendant’s conduct, he held that it was a particular manifestation within a broad category of injuries
Which were foreseeable.
HELD: by the High Court of Australia on appeal by the defendants from the Supreme Court of Queensland:
It was not necessary that the particular injury from which the claim arose should have been foreseeable; it was sufficient to found liability that the class of injury, mental disorder, was foreseeable as a possible consequence of particular conduct. Accordingly the defendant was liable.
Although not referred to in White, the decision in Duncan V British Coal Corporation ( 1 All E R.540) specifically acknowledged the duty of care owed by an employer to his employee not to cause him injury by shock through negligence. Duncan failed on its facts, no breach of duty having been established.
FACTS of DUNCAN v BRITISH COAL:
The plaintiff was a pit deputy. One of the workers on his shift was crushed to death between the blade of a Webster bucket and the drive guard on a conveyor. The plaintiff was some 275 metres away but arrived at the scene of the accident within four minutes. The worker was dead. There was no sign of any injury or blood. The plaintiff and others spent over two hours attempting to resuscitate him. The plaintiff subsequently developed a psychiatric illness.
HELD, by the Court of Appeal, that:
he was not a rescuer, not having been geographically proximate when the incident occurred; the first aid he administered was "plainly within the normal scope of his employment as pit deputy and was not attended by any unusually distressing features.
And although it was clearly acknowledged by the court that the defendants owed the plaintiff a duty of care, it was held that the incident had not been of sufficient gravity to warrant the award of damages.
In Robertson v Forth Road Bridge Joint Board ( S.C.364 ) Lord Hope, adopting Lord Oliver of Aylmerton’s explanation of the English cases in Alcock , rejected a claim for psychiatric injury by employees who had witnessed the death of a colleague who was blown over the Forth Road bridge during a gale. The plaintiff, and his colleague Mr.Rough (who took a separate action with the same outcome), were travelling on a truck when the victim was blown over. He landed on a girder but was killed instantly. It is notable here, as in Duncan, that there were no distressing features and no mutilation. Their colleague was not disfigured in any way.
And although the duty of care not to cause psychiatric injury was acknowledged as in Duncan, the defendants were held not to have been in breach of that duty to Mr.Robertson or Mr.Rough, who had failed the proximity tests as follows:-
they did not have sufficiently close emotional ties to the deceased, they were not rescuers, they were not in fear for their own lives, the employer/employee cases (notably Dooley,Galt,Wigg) when properly understood, were limited to cases where the plaintiff may have either caused the death or injury, or believed that he had or was about to,
"It is difficult to see why the bystander in the case of a road accident
should be denied his claim when a bystander who happens to be an employee
but has nothing whatsoever to do with causing the incident is allowed to
recover damages for this type of injury."
His Lordship concluded that:
"…where the employees are merely bystanders or witnesses, as the pursuers
were in this case, the ordinary rule must apply. They must be assumed to
be possessed of sufficient fortitude to enable them to endure the shock
caused by witnessing accidents to their fellow employees. Unless they can
bring themselves within one of the other recognised categories, their claim
for damages for this kind of illness must be refused."
Lord Hoffmann in his judgment in White, regarded the Robertson
"a rejection of the employment relationship as in itself a sufficient
basis for liability."
However, Rose L.J. said in Frost V The Chief Constable:
"For my part, I doubt whether the English courts would today reach the
same decision as that reached by the Scottish court in Robertson’s case.
Once it is accepted that there is no justification for regarding physical
and psychiatric injuries as different kinds of injury, when an employer
negligently causes physical injury to one employee, it seems to me to be
impossible to contend that he is not equally liable to a fellow employee
of normal fortitude working on the same task who sustains psychiatric injury,
whether through fear for himself or through witnessing what happens to
his fellow workman."
Accordingly, and based on the above precedents, the majority of the
House of Lords held in White that those police officers who had
based their claim on the employer/employee relationship must fail.
The Decision in McHUGH v THE MINISTER FOR DEFENCE & ORS.
With regard to the Irish jurisdiction, there could arguably be a parting
of the ways with the House of Lords on the substantive issue of an employer’s
liability to his employee for psychiatric injury caused by the negligence
of the former.
Eight weeks after the House of Lords decision in White, came the Irish High court decision of Budd J. in McHugh v The Minister For Defence & Ors. (High Court 8066P/1994 Budd J.28/1/99).
The plaintiff was awarded damages as against the Defendants for personal injury in the form of PTSD sustained by him during a tour of duty with UNIFIL forces in the Lebanon. It is to be noted at the onset – and the fact was stressed by Budd J. – that the plaintiff was not claiming, nor would he have been entitled to, damages for personal injury sustained in his capacity as a member of the Irish defence forces on a professional assignment.
An experienced judge who, since 1991 has dealt with a considerable number of such claims in his capacity as nominated judge under the Garda Compensation Acts, Budd J. stressed that, as was elementary, the plaintiff was not entitled to compensation because in his work in the Lebanon he had been exposed to stress or because he had developed PTSD, but rather:
"He must prove, on the balance of probabilities, that his injury was caused by the fault of his employer…."
And Budd J. continued (@p2):
"These are happenings which are to be expected by Irish soldiers serving with UNIFIL in the Lebanon."
Between November 1992 and February 1993, the plaintiff, while on his third tour of duty in the Lebanon, was exposed to three situations, all of which had a cumulative effect on his psychiatric persona. The last of these incidents occurred while the plaintiff, as part of an Engineer Special Search Team (ESST) performing high risk search and recovery work, was involved in the recovery and removal of badly mutilated corpses. The plaintiff was unacquainted with the deceased. This, together with two previous experiences – one a perceived threat to his life which, having regard to the evidence proffered and to the literature on PTSD was, the judge was satisfied, a significant theme that appeared to underpin events that lead to such a condition – resulted in the plaintiff manifesting unmistakable symptoms of the disorder including sleep disturbance which caused him to walk about at night keeping his fellow soldiers awake. The plaintiff also engaged in incessant and obsessive recounting of the incidents while all the time maintaining a fixed stare, and was prone to bouts of weeping. In short, the plaintiff’s behaviour was completely out of character with his original personality.
The plaintiff, having undergone psychiatric treatment which included hospitalisation, resigned his position as a member of the defence forces on medical advice on 23rd March,1997.
The defendants, as employers of the plaintiff, were found to be in breach of the duty of care owed by them to the plaintiff, in that, although adequate counselling and debriefing services were in place, the plaintiff’s deteriorating psychiatric condition went either unnoticed or ignored by his superior officers until it was too late and his condition had developed into an acute form of PTSD which Budd J. described as hitherto "resistant to therapy and remedy."
"The plaintiff’s strange and out of character behaviour…..and his manifest symptoms should have been noted and his obviously stressed condition brought to the attention of the medical officers. The failure to recognise and treat his symptoms was due to culpable negligence on the part of his superiors."
The learned judge also found that the plaintiff’s condition would more than likely have been relieved had he received counselling therapy in early 1993, neither would he have become subject to the "long running and persistent PTSD which has so adversely affected him in his working, social and domestic life."
Accordingly, the judge HELD:
that the plaintiff was entitled to recover damages as against his employers, by reason of the injury caused him through their negligence, and breach of the duty of care they owed him as his employers to take reasonable care not to expose him to unnecessary risks, be they physical or psychiatric.
The judge found that:
although knowledge about PTSD was available from the mid-1980s,
and from 1986 the resident psychologist had been raising awareness of stress and PTSD in the army, and all officers embarking on tours of duty to the Lebanon attended lectures on stress and awareness of the symptoms of PTSD and the need for treatment thereof,
that the army psychologist’s "excellent book of notes" which described likely symptoms in crystal clear terms, had been given to each officer, and
"by the diligent dissemination of information about PTSD…the army was acting appropriately as a caring employer"
Nonetheless (@p45) :
"…the knowledge imparted by Colonel Goggin (army psychologist) regrettably was ignored and his advice was negligently not acted upon by the plaintiff’s superiors both in the Lebanon and on his return to Dublin. The plaintiff’s strange and out of character behaviour, while he was based at Tibnin, and his manifest symptoms, should have been noted and his obviously stressed condition brought to the attention of the medical officers."
The judge also accepted the medical evidence which confirmed that the earlier the mental health intervention the more rapid and satisfactory the recovery is likely to be.
It was argued on behalf of the defendants that:
the plaintiff himself ought to have recognised his condition and sought medical help:
"This suggestion…..said the judge (@p42)…is refuted by [the expert medical evidence] to the effect that an individual who is suffering from stress often tries to suppress this and is not aware of the fact that he is suffering from a medical condition." He pointed out that:
"In the army culture of manliness, the plaintiff would not want to embarrass himself by revealing a weakness." He also accepted that the plaintiff himself did not appreciate the significance of his behaviour.
The defence also contended that the plaintiff’s perceived threat to his life – the unexpected and negligent discharge of a rifle close beside him – was occasioned by his own rifle and that guilt had been the cause of his distress.
On the evidence the judge did not accept that this was so.
Budd J. said at p. 45 of his judgment:
"The defendants as employer are under a duty to take reasonable care for the safety of their employees and must keep abreast with contemporary knowledge in the field of reduction in the effects of potential afflictions to which soldiers are inevitably exposed in the course of their duty."
"In my view there was a negligent failure to take appropriate care for the health of the plaintiff in that once he became subject to stress, as was likely to happen and eminently foreseeable in the dangerous and macabre situation in the Lebanon, the defendants failed to spot the obvious manifestation of post traumatic stress or else negligently failed to recognise the significance of the symptoms and also negligently failed to obtain remedial therapy for the plaintiff."
Pending likely appeal to the Supreme Court of the McHugh decision, there is clearly a difference in approach between the Irish and English jurisdictions at present, regarding:
The House of Lords has now held that the law regarding an employer’s liability for psychiatric injury to his employee is to be governed by the ordinary rules of tort; that the employer/employee relationship does not put a plaintiff at any advantage over and above that of an ordinary civilian; that an employer’s duty of care to his employee does not extend beyond the avoidance of physical injury, and that with regard to liability for psychiatric injury in general, the concept of reasonable foreseeability of injury by shock is no longer an adequate tool with which to determine liability for pure psychiatric injury.
A majority of their Lordships advocated the exercise of caution in extending the limits of potential claimants, in that (per Lord Steyn) " The imposition of liability for pure psychiatric harm in a wide range of situations may result in a burden of liability on defendants which may be disproportionate to tortious conduct…"
And with regard to the instant case, "…the awarding of damages to these police officers sits uneasily with the denial of the claims of bereaved relatives by the decision of the House of Lords in Alcock." A majority of their Lordships also expressed the fear of an intolerable burden on the public purse.
The Irish High Court on the other hand, did not address the above issues as such; Budd J. having made his decision on an ex post facto basis , on the facts of the case and based on expert medical evidence. Which meant that he was able to cut through to the issues, which were:
On the issue of reasonable foreseeability, Budd J.said ( @ p42) that stress was:
"..likely to happen and eminently foreseeable .." in the situation in which the plaintiff found himself.
As to their Lordships’ fear of a flood of claims proving a burden on public funds, it may be apt to quote Budd J. in his judgment (@ p.12) in that he was:
"…well aware of the views of the school of thought which regards ‘accident neurosis’ or ‘compensation neurosis’ as the basis for emotional damage caused by trauma where there is no obvious physical pathology. There is however a contrary school of thought which holds that the psychological consequences of such injuries are similar in jurisdictions where there is no possibility of litigation seeking compensation…to the effects seen where legal proceedings are relatively common."
Two seminal decisions in the area of Post Traumatic Stress Disorder,
involving admittedly different circumstances, and arrived at by different
means in separate common law jurisdictions - can McHugh and White
said to contradict each other ? The answer will not be clear until either
the High Court or Supreme Court of Ireland is invited to consider the issues
decided by their Lordships regarding the ambit of the employer’s duty of
care, and reasonable foreseeability of injury by shock as an adequate tool
for the determination of such liability.
WHITE v THE CHIEF CONSTABLE: THE CASE OF THE RESCUERS
Apart from the Alcock decision, two further authorities were relied upon throughout the judgments in White:
The case of Page v Smith ( 2 All E R.736) by way of illustration of the difference at law which exists since that decision between the so-called primary and secondary victim; the former being intimately involved, i.e. a party to the accident and therefore within the range of foreseeable physical injury, and the latter being no more than an unwilling observer thereto and outside the said area of risk. A majority in the House of Lords held in Page v Smith that, if you are a primary victim, foreseeability of physical injury is sufficient to found a claim for any psychiatric injury which ensues from the accident. A secondary victim, on the other hand, would have to fulfil the Alcock control mechanisms (ante), and:
The case of Chadwick v British Transport Commission ( 2 All E R.945)
It will be remembered that in Frost v The Chief Constable, a majority in the Court of Appeal had held that three of the Hillsborough police officers could be classed as rescuers in that they actively gave assistance in the aftermath of the tragedy.
Lord Steyn, however, in his judgment in White, felt that the majority in the Court of Appeal had used the concept of rescuer in an undefined but very wide sense. And although acknowledging the fact that the law has long recognised the moral imperative of encouraging citizens to rescue persons in peril, he posed the question as to who may recover in respect of pure psychiatric harm sustained as a rescuer. The specific difficulty was, in his Lordship's opinion, that none of the police officers in question was at any time exposed to personal danger and none thought that he was so exposed. And like his colleague Lord Hoffmann, he relied on the decision in Robertson V Forth Road Bridge Joint Board ( S.C.364) and differentiated the seminal rescue case of Chadwick v British Transport Commission by pointing out that in the latter case there was clearly a risk that the carriage in which Mr.Chadwick was engaged in his rescue operations might collapse. This augured his Lordship’s final conclusion that in order to be considered a rescuer at law, the plaintiff had to be within the area of risk of physical injury to himself, or reasonably believe so. And it is notable that the trial judge in Chadwick, (Waller J.) considered this element of physical danger to be irrelevant in the circumstances and did not base his judgment upon it:
"[a]lthough there was clearly an element of personal danger in what Mr.Chadwick was doing, I think I must deal with this case on the basis that it was the horror of the whole experience which caused his reaction." ( P949)
FACTS: CHADWICK : In December, 1957, immediately following a collision between two trains a short distance from his home in Lewisham, Mr.Chadwick voluntarily took an active part throughout the night in rescue operations at the scene of the accident, in which 90 people were killed and many more trapped and injured. As a result of his experiences at the scene of the accident, Mr.Chadwick suffered a prolonged and disabling anxiety neurosis necessitating hospital treatment.
HELD, by Waller J., awarding damages to the plaintiff, that:
"..not authority for the proposition that a person who never exposed himself to any personal danger and never thought that he was in personal danger can recover [for] pure psychiatric injury as a rescuer."
His Lordship said further that in order to contain the concept of rescuer in reasonable bounds for the purposes of the recovery of compensation for pure psychiatric harm,
"the plaintiff must at least satisfy the threshold requirement that he objectively exposed himself to danger or reasonably believed that he was doing so."
"Without such limitation.....his Lordship continued....one would have the unedifying spectacle that, while bereaved relatives are not allowed to recover as in Alcock, …ghoulishly curious spectators (my italics) who assisted in some peripheral way in the aftermath of a disaster, might recover. For my part the limitation of actual or apprehended dangers is what proximity in this special situation means. In my judgment it would be an unwarranted extension of the law to uphold the claims of the police officers."
Lord Hoffmann acknowledged that the plaintiffs actively rendered assistance and should be equated to "rescuers" who, on the basis of Waller J's decision in Chadwick are to be treated as primary victims and exempt from the control mechanisms laid down in Alcock. Their Lordships, however, saw the crucial factor as being whether or not the rescuer had put himself in physical danger or the possibility thereof, as had Mr.Chadwick.
The well known quote from the great Judge Cardozo (Wagner v International Rly.Co.  232 NY 176 @180).....
"Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognises them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer."
....his Lordship dismisses as "a florid passage", adding that rescuers can be accommodated without difficulty in the general principles of the law of negligence. The cases on rescuers are, he said, quite simple illustrations of the application of general principles of foreseeability and causation to particular facts. Nor, he maintained, was there any authority which decides that a rescuer is in any special position in relation to liability for psychiatric injury.
His Lordship here drew an analogy with the principle laid down in Page v Smith ( A.C.155) namely that a primary victim can recover even if the injury he actually suffers is not physical but psychiatric. This is presumably because rescuers have been held to be primary victims
It is submitted here that the difficulty which such an analogy presents lies in the fact that the plaintiff in Page was actually a party to the accident - albeit a very minor one - whereas Mr.Chadwick was manifestly not; his role being that of a rescuer in the aftermath of a horrific accident of intensely greater proportions. The analogy above can possibly be explained by the already thin argument that Mr.Chadwick was in danger of the carriage falling on him, thereby bringing him into a category already being hollowed out for future such plaintiffs - that of the rescuer in physical danger, actual or perceived, and hence a primary victim.
Lord Hoffmann told his colleagues in the House of Lords that, on the authorities, they were free to take the incremental step of extending liability for psychiatric injury to "rescuers" - a class which, he said would now require definition- who gave assistance at or after some disaster without coming within the range of foreseeable physical injury, but counselled:
"It may be said that this would encourage people to offer assistance."
Suffice it to say by way of observation on this last conjecture and in the spirit of Cardozo J. (above) that rescue does not work like that. The act of rescue is automatic. It does not qualify as a decision, but rather a split-second reaction to an immediate situation. A rescuer does not address the possibility of physical danger to himself; there is no time. Even less time is there to ponder on the question of damages in the event that he might suffer psychiatrically as a result. And were such a feat of wisdom and foresight to be performed then the moment is gone and he is not, and never was, a rescuer.
His Lordship cited two reasons why the aforementioned incremental step
should be avoided:
In regard to the first point, it is submitted that in this area of personal injury it is unhelpful to draw a precise line between "rescuer" and "bystander"; that the line should be an evidentiary one and should lie between those who suffer a recognisable psychiatric illness as a result of another's negligence - and those who do not, rescue being an important factor to be considered.
The second point is a direct reference to the civilian claimants who suffered PTSD after Hillsborough. (the Alcock decision) and it is submitted here that Alcock was correctly decided on a case-by-case basis each on its own facts. This is not to express any agreement with the ratio decidendi in the case of the two plaintiffs (Mr.Alcock and Mr.Harrison) who were present at the ground.
Of the ten plaintiffs in Alcock only two were present at Hillsborough stadium; the remainder having learned of the disaster through general television and radio coverage or by word of mouth, thereby immediately failing the proximity tests of time and space, and of the means of communication of the accident (control mechanisms (ii) and (iii) ante). As regards the two plaintiffs who attended the match, it was accepted that they had witnessed the distressing scenes unfolding in pens 3 and 4 from their seats in the West Stand, however it is a moot point now as their claims were based on the loss of family members outwith the category of spouse, child or parent and they were held to have failed control mechanism (i) (ante) .
The policemen were, it is submitted, in a different situation, and in the words of Henry L.J. in Frost v The Chief Constable (@p560):
"They had no choice but to be there and to be involved. It was that involvement which led to...the long hours of exposure to horrors from which any mere spectator could simply have averted his eyes......No such course was open to those on duty. And on the medical evidence, the longer the exposure, the greater the risk of psychiatric damage......they were not 'passive and unwilling witnesses of injury caused to others' nor persons 'not directly involved as an actor' nor 'persons unconnected with the event precipitated by [the] defendant's negligence."
In addition, not only did the policemen witness the immediate and horrific
aftermath of the disaster but they remained at the scene long after civilians
were free to leave (some until well after midnight). They actively rescued,
carried, and consoled. They resuscitated. Much of their efforts were in
vain. Such was not the basis of the Alcock claims. They were plainly
rescuers who suffered psychiatrically from the whole horror of the situation
(See Waller J's decision in Chadwick above)
And where proximity is not provided by the master and servant relationship, then, according to Deane J. in Jaensch v Coffey ( 155 C.L.R. 549 @ 610) "..'.mere uninvolved observation' of injury to a person who was not a close relative would not found a duty unless the plaintiff was 'actively and foreseeably involved in an accident or its aftermath in a role such as that of a rescuer' "
And per Windeyer and Walsh JJ. in Mount Isa Mines v Pusey (@ p.383):
"It is not a prerequisite to a plaintiff's right to recover damages for a mental or psychological disorder occasioned by nervous shock at the sight of an injured person that there be a family relationship between the plaintiff and the injured person."
According to the above, the three policemen (Det.Insp.White, P.C.Bairstow
and P.C.Bevis) should have fulfilled all the Alcock control mechanisms,
but did not recover damages because they failed to satisfy yet another
control mechanism - that a rescuer must objectively have put himself within
the area of physical danger before he can recover damages for psychiatric
In White,Lord Griffiths dissented from his colleagues on the question of rescuers ( and it is notable that his Lordship, then Hugh Griffiths,S.C., had been successful counsel for the plaintiff in Chadwick):
"It seems to me that it would be a very artificial and unnecessary control, to say a rescuer can only recover if he was in fact in physical danger."
Lord Griffiths preferred to follow Rose L.J.'s identification of those
three police officers as rescuers and accordingly entitled to recover damages
for their condition.. Neither did his Lordship agree that the public would
find it in some way offensive that those who suffered disabling psychiatric
illness as a result of their efforts to rescue victims should receive compensation,
but that those who suffered the grief of bereavement should not. Bereavement
and grief, his Lordship said, "..are part of the common condition of mankind
which we will all endure at some time in our lives.....different in kind
from psychiatric illness and the law has never recognised it as a head
By way of illustration of the new control mechanism governing rescuers, Lord Goff of Chieveley, in his dissenting judgment in White, availed of the "always useful extreme example" in which there might be two Chadwick brothers living near to the scene of a train disaster. Mr.A Chadwick worked on the front half of the train, and Mr.B.Chadwick on the rear half. It so happened that there was some physical danger present in the front half of the train, but none in the rear. Both worked with the victims. Both suffered PTSD in consequence. On the new control mechanism now proposed, Mr.A would recover but Mr.B would not.
"To make things worse, the same conclusion must follow even if Mr.A was unaware of the existence of the physical danger. This is surely unacceptable" said his Lordship.
There are countless scenarios like that of Lord Goff, and as many questions: like what constitutes an "area of risk of physical danger" ? - must the risk of danger be in the physical surroundings - or could it be part of the characteristics, inherent or acquired, of the rescuer himself; was he a strong swimmer and hence in no physical danger, or was he a poor swimmer and hence in danger in the same waters ? And can any structure, before or after an accident, be said to be completely sound ? Admittedly extreme examples, these questions and subtleties are going to arise, and in the words of Lord Goff:
"..the contrast I have drawn could well arise in real life; and the
new control mechanisms now proposed could provoke criticisms of the same
kind as those which have been made of the mechanisms recognised in Alcock."
One final dilemma remains after an intensive analysis of the White
and it is this: Three police officers, psychiatrically injured at
Hillsborough, have been found to be "bystanders" at law. Admittedly a legal
term, it nonetheless raises the question, had they really behaved like
unwilling bystanders, they would certainly have been called to answer to
their employer on the following morning. Why then, after ten years, has
their employer not been answerable to them?
Gillian Kelly, Barrister-at-Law, Dublin. 15th April, 1999.
© G. Kelly, 1999