My Lords, on 15 April 1989 there was a horrifying disaster at the Hillsborough Football Stadium in Sheffield. The pressure of crowds trying to get into the ground crushed 95 people on the terraces to death and injured many more. On that day the plaintiffs (respondents to this appeal) were serving members of the South Yorkshire Police Force on duty at the stadium or elsewhere in Sheffield. Each became in some way involved in the dreadful aftermath. Two helped to carry the dead and dying. Two tried unsuccessfully to give resuscitation to those who had been laid out on the ground. One assisted at the hospital mortuary.
As a result of their experiences, the plaintiffs have suffered from what has been diagnosed as post-traumatic stress disorder, a medically recognised psychiatric illness. The symptoms have affected their ability to work and their private lives. They claim damages in negligence against Chief Constable of South Yorkshire and two other defendants. There were of course many people at the stadium that day who also tried as best they could to help the victims: other policemen, first aid workers, ambulance men and members of the public. Some of them, together with bereaved relatives and friends, have also developed psychiatric illnesses.
The claims of some of the relatives were considered by your Lordships' House in Alcock v. Chief Constable of South Yorkshire [1992] 1 A.C. 310. For reasons which I shall discuss, they were all rejected.
But the plaintiffs in this appeal say that the police are in a different position. First, they were ... employees of the Chief Constable and they claim that the employment relationship gives rise to duties which are not owed to strangers. Secondly, they were present and assisted at the catastrophe and were not merely passive and helpless bystanders [i.e. they were rescuers].
... It is admitted that the disaster was caused by the negligence of persons for whom the defendants were vicariously liable. The only question is whether in such circumstances the law allows the recovery of compensation for the type of injury which the plaintiffs have suffered.
Compensation for personal injury caused by negligence is ordinarily recoverable if the defendant ought reasonably to have foreseen than his conduct might cause such injury. But the common law has been reluctant to equate psychiatric injury with other forms of personal injury.
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For a long time during this century it remained unclear whether the basis of liability for causing a recognised psychiatric illness was simply a question of foreseeability of that type of injury in the same way as in the case of physical injury. The decision of the House of Lords in Bourhill v. Young [1943] A.C. 92, appeared to many to combine what was in theory a simple foreseeability test with a robust wartime view of the ability of the ordinary person to suffer horror and bereavement without ill effect. Cases soon afterwards, like King v. Phillips [1953] 1 Q.B. 429, followed this approach, treating foreseeability as a question of fact but keeping potential liability within narrow bounds by taking a highly restrictive view of the circumstances in which it was foreseeable that psychiatric injury might be caused.
But such decisions were criticised as out of touch with reality. Everyone knew that some people did suffer psychiatric illnesses as a result of witnessing distressing accidents in which other people, particularly close relatives, were involved. Some judges, sympathetic to the plaintiff in the particular case, took the opportunity to find as a fact that psychiatric injury had indeed been foreseeable. This made it difficult to explain why plaintiffs in other cases had failed ...
In Alcock v. Chief Constable of South Yorkshire [1992] 1 A.C. 310 ... the House decided that liability for psychiatric injury should be restricted by what Lord Lloyd of Berwick (in Page v. Smith [1996] A.C. 155, 189) afterwards called 'control mechanisms', that is to say, more or less arbitrary conditions which a plaintiff had to satisfy and which were intended to keep liability within what was regarded as acceptable bounds.
Alcock was ... a case which also arose out of the Hillsborough disaster. The plaintiffs were persons who had seen the events from other parts of the stadium or on television, or heard about it from others and then found that their relatives were among the dead. It was assumed for the purposes of the appeal that these experiences had caused them psychiatric injury.
The House established certain additional conditions to be satisfied for a successful claim. I state them in a summary form which I think is sufficiently accurate for the purposes of the present discussion but it may for other purposes require qualification and does not purport to be a complete description.
(1) The plaintiff must have close ties of love and affection with the victim. Such ties may be presumed in some cases (e.g. spouses, parent and child) but must otherwise be established by evidence.
(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 upon hearing about it from someone else.
The result of these various control mechanisms was that none of the Hillsborough relatives was held entitled to recover.
The position which the law has reached as a result of Alcock v. Chief Constable of South Yorkshire [1992] 1 A.C. 310 has not won universal approval. The control mechanisms have been criticised as drawing distinctions which the ordinary man would find hard to understand. Jane Stapleton [The Frontiers of Liability (1994)] has said that a mother who suffers psychiatric injury after finding her child's mangled body in a mortuary 'might wonder why the law rules her child's blood too dry to found an action'. Equally, the spectacle of a plaintiff, who has ... suffered psychiatric illness in consequence of his brother's death or injury, being cross-examined on the closeness of their ties of love and affection and then perhaps contradicted by the evidence of a private investigator, might not be to everyone's taste ...
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But ... it is too late to go back on the control mechanisms as stated in Alcock. Until there is legislative change, the courts must live with them and any judicial developments must take them into account.
The control mechanisms were plainly never intended to apply to all cases of psychiatric injury. They contemplate that the injury has been caused in consequence of death or injury suffered ... by someone else. In Page v. Smith Lord Lloyd of Berwick described such a plaintiff as a 'secondary victim' who was 'in the position of a spectator or bystander'. He described the plaintiff in that case (who had suffered psychiatric injury in consequence of being involved in a minor motor accident) as a 'primary victim' who was 'directly involved in the accident and well within the range of foreseeable physical injury'.
... A majority of your Lordships held that foreseeability of physical injury was enough to found a claim for any psychiatric injury which the accident caused.
This question does not arise in the present case, but the classification into primary and secondary victims has been debated at length. The plaintiffs say that they were primary victims because they were not 'spectators or bystanders'. The defendants say that the plaintiffs were secondary victims because they were not 'within the range of foreseeable physical injury'.
... Essentially ... the plaintiffs draw two distinctions between their position and that of spectators or bystanders. The first is that they [were employees, and] they were therefore owed a special duty, [by those] vicariously liable, to take reasonable care not to expose them to unnecessary risk of injury, whether physical or psychiatric.
Secondly, the plaintiffs ... [were] ... rescuers, who, it was said, always qualify as primary victims.
Employees
... I shall consider first the claim to primary status by virtue of the employment relationship ... The liability of an employer to his employees for negligence, either direct or vicarious, 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 one 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 ...
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Should the employment relationship 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? ... In principle ... 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.
I must therefore consider whether the authorities require a contrary conclusion. And in examining them, it is important to bear in mind, as I said earlier, that they are not contemporaneous statements of the law but represent legal thinking at different points in half a century of uneven development.
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... In Robertson v. Forth Road Bridge Joint Board [1995] S.C. 364 [a Scottish case] Lord Hope ... rejected a claim for psychiatric injury by employees who had witnessed the death of a fellow employee in the course of being engaged on the same work. I respectfully agree with the reasoning of my noble and learned friend, which I regard as a rejection of the employment relationship as in itself a sufficient basis for liability.
Rescuers
... Rescuers can be accommodated without difficulty in the general principles of the law of negligence. There are two questions which may arise.
The first is whether injury to the rescuer was foreseeable. There is usually no difficulty in holding that if it was foreseeable that someone would be put in danger, it was also foreseeable that someone would go to look for him or try to rescue him or otherwise help him in his distress.
The second question is [causation] - whether the voluntary act of the rescuer, searcher or helper in putting himself in peril negatives the causal connection between the original negligent conduct and his injury. Again, the courts have had equally little difficulty in holding that such a person, acting out of a sense of moral obligation, does not make the free choice which would be necessary to eliminate the causal effect of the defendant's conduct ...
The cases on rescuers are therefore quite simple illustrations of the application of general principles of foreseeability and causation to particular facts. There is no authority which decides that a rescuer is in any special position in relation to liability for psychiatric injury.
There does not seem to me to be any logical reason why the normal treatment of rescuers on the issues of foreseeability and causation should lead to the conclusion that, for the purpose of liability for psychiatric injury, they should be given special treatment as primary victims when they were not within the range of foreseeable physical injury and their psychiatric injury was caused by witnessing or participating in the aftermath of accidents which caused death or injury to others.
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I should say in passing that I do not suggest that someone should be unable to recover for injury caused by negligence, in circumstances in which he would normally be entitled to sue, merely because his occupation required him to run the risk of such injury. Such a rule, called 'the fireman's rule' obtains in some of the United States but was rejected by your Lordships' House in Ogwo v. Taylor [1988] 1 A.C. 431.
... The question here is rather different. It is not whether a policeman should be disqualified in circumstances in which he would ordinarily have a right of action, but whether there should be liability to rescuers and helpers as a class. And in considering whether liability for psychiatric injury should be extended to such a class, I think it is legitimate to take into account the fact that, in the nature of things, many of its members will be from occupations in which they are trained and required to run such risks and which provide for appropriate benefits if they should suffer such injuries.
Naturally I feel great sympathy for the plaintiffs, as I do for all those whose lives were blighted by that day at Hillsborough. But I think that fairness demands that your Lordships should reject them. I have also read in draft the speech of my noble and learned friend Lord Steyn and agree with his reasons for taking the same course, which seem to me substantially the same as my own. I would therefore ... dismiss the actions.
LORD STEYN:
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Policy Considerations and Psychiatric Harm
Policy considerations have undoubtedly played a role in shaping the law governing recovery for pure psychiatric harm. The common law imposes different rules for the recovery of compensation for physical injury and psychiatric harm. Thus it is settled law that bystanders at tragic events, even if they suffer foreseeable psychiatric harm, are not entitled to recover damages: Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310. The courts have regarded the policy reasons against admitting such claims as compelling.
It seems to me useful to ask why such different rules have been created for the recovery of the two kinds of damage. In his Casebook on Tort, 7th ed., Weir gives the following account (at 88): '... there is equally no doubt that the public...draws a distinction between the neurotic and the cripple, between the man who loses his concentration and the man who loses his leg. It is widely felt that being frightened is less than being struck, that trauma to the mind is less than lesion to the body. Many people would consequently say that the duty to avoid injuring strangers is greater than the duty not to upset them. The law has reflected this distinction as one would expect, not only by refusing damages for grief altogether, but by granting recovery for other psychical harm only late and grudgingly, and then only in very clear cases. In tort, clear means close - close to the victim, close to the accident, close to the defendant'.
I do not doubt that public perception has played a substantial role in the development of this branch of the law. But nowadays we must accept the medical reality that psychiatric harm may be more serious than physical harm. It is therefore necessary to consider whether there are other objective policy considerations which may justify different rules for the recovery of compensation for physical injury and psychiatric harm. And in my view it would be insufficient to proceed on the basis that there are unspecified policy considerations at stake. If, as I believe, there are such policy considerations it is necessary to explain what the policy considerations are so that the validity of my assumptions can be critically examined by others.
My impression is that there are at least four distinctive features of claims for psychiatric harm which in combination may account for the differential treatment. Firstly, there is the complexity of drawing the line between acute grief and psychiatric harm ... The symptoms may be the same. But there is greater diagnostic uncertainty in psychiatric injury cases than in physical injury cases. The classification of emotional injury is often controversial. In order to establish psychiatric harm, expert evidence is required. That involves the calling of consultant psychiatrists on both sides. It is a costly and time consuming exercise. If claims for psychiatric harm were to be treated as generally on a par with physical injury it would have implications for the administration of justice. On its own this factor may not be entitled to great weight and may not outweigh the considerations of justice supporting genuine claims in respect of pure psychiatric injury.
Secondly, there is the effect of the expansion of the availability of compensation on potential claimants who have witnessed gruesome events. I do not have in mind fraudulent or bogus claims. In general it ought to be possible for the administration of justice to expose such claims. But I do have in mind the unconscious effect of the prospect of compensation on potential claimants. Where there is generally no prospect of recovery, such as in the case of injuries sustained in sport, psychiatric harm appears not to obtrude often. On the other hand, in the case of industrial accidents, where there is often a prospect of recovery of compensation, psychiatric harm is repeatedly encountered and often endures until the process of claiming compensation comes to an end ...
The litigation is sometimes an unconscious disincentive to rehabilitation. It is true that this factor is already present in cases of physical injuries with concomitant mental suffering. But it may play a larger role in cases of pure psychiatric harm, particularly if the categories of potential recovery are enlarged. For my part this factor cannot be dismissed.
The third factor is important. The abolition or a relaxation of the special rules governing the recovery of damages for psychiatric harm would greatly increase the class of persons who can recover damages in tort. It is true that compensation is routinely awarded for psychiatric harm where the plaintiff has suffered some physical harm. It is also well established that psychiatric harm resulting from the apprehension of physical harm is enough: Page v. Smith [1996] A.C. 155. These two principles are not surprising. In built in such situations are restrictions on the classes of plaintiff who can sue: the requirement of the infliction of some physical injury or apprehension of it introduces an element of immediacy which restricts the category of potential plaintiffs. But in cases of pure psychiatric harm there is potentially a wide class of plaintiffs involved.
Fourthly, 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 involving perhaps momentary lapses of concentration, e.g. in a motor car accident.
The wide scope of potential liability for pure psychiatric harm is not only illustrated by the rather unique events of Hillsborough but also by of accidents involving trains, coaches and buses, and the everyday occurrence of serious collisions of vehicles all of which may result in gruesome scenes. In such cases, there may be many claims for psychiatric harm by those who have witnessed and in some ways assisted at the scenes of the tragic events ...
The police officers claims
In the present case, the police officers were more than mere bystanders. They were all on duty at the stadium. They were all involved in assisting in the course of their duties in the aftermath of the terrible events. And they have suffered debilitating psychiatric harm.
The police officers therefore argue, and are entitled to argue, that the law ought to provide compensation for the wrong which caused them harm.
This argument cannot be lightly dismissed. But I am persuaded that a recognition of their claims would substantially expand the existing categories in which compensation can be recovered for pure psychiatric harm. Moreover ... 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.
The case law
In order to understand the law as it stands it is necessary to trace in outline its development.
In Dulieu v. White & Sons [1901] 2 K.B. 669 the Court of Appeal enunciated a narrow and relatively simple rule: psychiatric injury was only actionable if it arose from the plaintiff's reasonably apprehended fear for his safety.
But in Hambrook v. Stokes Brothers [1925] l.K.B. 141 the Court of Appeal rejected the limitation laid down in Dulieu v. White & Sons in favour of a mother who suffered psychiatric injury as a result an apprehension of an injury to her child from whom she had just parted. The mother was described as 'courageous and devoted to her child' and was allowed to recover.
The next development was the decision of the House of Lords in Bourhill v. Young [1943] A.C. 92 ... favour[ing] the confining of liability for psychiatric injury to those within the area of physical harm. But the status of Hambrook v. Stokes Brothers was left unclear.
Then came the decision in McLoughlin v. O'Brian [1983] A.C. 410. The leading decision of the House of Lords is Alcock (1992). Before this case the general rule was that only parents and spouses could recover for psychiatric harm suffered as a result of witnessing a traumatic event.
In Alcock the group of plaintiffs who sued for psychiatric injury resulting from the events at Hillsborough included relatives who were in the stadium. The House dismissed all the claims and established that a person who suffers reasonably foreseeable psychiatric illness as a result of another person's death or injury cannot recover damages unless he can satisfy three requirements, viz: (i) that he had a close tie of love and affection with the person killed, injured or imperilled; (ii) that he was close to the incident in time and space; (iii) that he directly perceived the incident rather than, for example, hearing about it from a third person.
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The decision of the House of Lords in Page v. Smith [1996] A.C. 155 was the next important development in this branch of the law. The Plaintiff was directly involved in a motor car accident. He was within the range of potential physical injury. As a result of the accident he suffered from chronic fatigue syndrome.
... Lord Lloyd of Berwick adopted a distinction between primary and secondary victims: Lord Ackner and Lord Browne-Wilkinson agreed. Lord Lloyd said that a plaintiff who had been within the range of foreseeable injury was a primary victim. Mr Page fulfilled this requirement and could in principle recover compensation for psychiatric loss. In my view, it follows that all other victims who suffer pure psychiatric harm are secondary victims and must satisfy the control mechanisms laid down in Alcock.
... The decision of the House of Lords in Page v. Smith was plainly intended, in the context of pure psychiatric harm, to narrow the range of potential secondary victims. The reasoning of Lord Lloyd and the Law Lords who agreed with him was based on concerns about an ever widening circle of plaintiffs.
The employment argument
... The rules to be applied when an employee brings an action against his employer for harm suffered at his workplace are the rules of tort. One is therefore thrown back to the ordinary rules of the law of tort which contain restrictions on the recovery of compensation for psychiatric harm. This way of putting the case does not therefore advance the case of the police officers ...
The rescue argument
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The law has long recognised the moral imperative of encouraging citizens to rescue persons in peril. Those who altruistically expose themselves to danger in an emergency to save others are favoured by the law. A rescue attempt to save someone from danger will be regarded as foreseeable ... If a rescuer is injured in a rescue attempt, a plea of volenti non fit injuria will not avail a wrongdoer. A plea of contributory negligence will usually receive short shrift. A rescuer's act in endangering himself will not be treated as a novus actus interveniens.
... Here the question is: who may recover in respect of pure psychiatric harm sustained as a rescuer? ... The specific difficulty ... is that it is common ground that none of the four police officers was at any time exposed to personal danger and none thought that he was so exposed ... 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 one would have the unedifying spectacle that, while bereaved relatives are not allowed to recover as in Alcock, ghoulishly curious spectators, 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. I would dismiss the argument under this heading.
Thus far and no further
... In my view the only sensible general strategy for the courts is to say thus far and no further. The only prudent course is to treat the pragmatic categories as reflected in authoritative decisions such as Alcock and Page v. Smith as settled for the time being but by and large to leave any expansion or development in this corner of the law to Parliament. In reality there are no refined analytical tools which will enable the courts to draw lines by way of compromise solution in a way which is coherent and morally defensible. It must be left to Parliament to undertake the task of radical law reform.
