Fourth  of a series of four papers




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 ( [1997]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 ([1991] 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.


The background to this case was the Court of Appeal decision in Frost & Ors. V The Chief Constable Of South Yorkshire Police ([1997] 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,


  • (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.
  • Lord Steyn, illustrating in his judgment how the law cannot compensate for all emotional suffering even if acute and truly debilitating, said: (@p.30)

    " 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."


    Rose L.J. had pointed out in Frost v The Chief Constable ([1997] 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 ([1971] 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. ( [1951] 1 Lloyd’s Rep.271) – Galt v British Railways Board ( [1983] 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 ( [1971] 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."


    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 ([1997] 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.


    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 ([1995] 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,