Judgment - White and Others v. Chief Constable of South Yorkshire and Others  continued

(back to preceding text)

In reaching that conclusion Lord Lloyd of Berwick, who delivered the leading opinion with which both Lord Ackner and my noble and learned friend Lord Browne-Wilkinson agreed, departed from the previous understanding of the law in a number of respects. Before I turn to these, however, I wish to make two observations about this case. First, this was not a case concerned with a secondary victim. The plaintiff was obviously involved in the accident, and there was no question of his being affected by injury or death suffered by another. The special control mechanisms applicable in the case of secondary victims did not therefore arise for consideration. On the then accepted principles, the only question for consideration was whether the defendant could reasonably foresee that, in the circumstances which in fact occurred, a person of ordinary fortitude in the position of the plaintiff would suffer psychiatric injury. Second, as a subsidiary ground for their decision, the majority of the Appellate Committee briefly found for the plaintiff on that issue, contrary to the unanimous view of the Court of Appeal: see Lord Ackner [1996] A.C. 155, 170, and Lord Lloyd of Berwick (with whom Lord Browne-Wilkinson agreed) at p. 197.

I now turn to the respects in which Lord Lloyd, in his leading opinion, departed from the previous understanding of the law.

(1) Foreseeability of psychiatric injury. First and foremost, Lord Lloyd dethroned foreseeability of psychiatric injury from its central position as the unifying feature of this branch of the law. This he did by invoking the distinction between primary and secondary victims. In the case of the latter, he recognised that the law insists on certain "control mechanisms", to limit the number of potential claimants. Among these he included the requirement that the defendant will not be liable unless psychiatric injury is foreseeable in a person of normal fortitude, and he also restricted the use of hindsight to secondary victim cases--points to which I will return later. He continued (at p. 197G):

      "Subject to the above qualifications, the approach in all cases should be the same, namely, whether the defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury, whether physical or psychiatric. If the answer is yes, then the duty of care is established, even though physical injury does not, in fact, occur. There is no justification for regarding physical and psychiatric injury as different 'kinds of damage'."

The last statement in this passage he had previously sought to justify (at p. 188F) on the ground that:

      "In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded."

In para. 5.12 of their Report No. 249 the Law Commission record that "on the whole the responses, especially from practitioners, were very favourable to the decision" in Page v. Smith. It appears however that the responses from practitioners were simply expressions of view, unsupported by any analysis. Furthermore, as the Law Commission record in para. 5.14 of their Report, the revolutionary thesis in Page v. Smith has provoked severe criticism by a number of scholars with a special interest in this branch of the law, notably by Mr. Nicholas Mullany in (1995) 3 Journal of Law and Medicine 112, and Dr. Peter Handford in (1996) 4 Tort L. Rev. 5; but also by Professor Tan Keng Feng in [1995] Singapore Journal of Legal Studies 649; Mr. F.A. Trindade in (1996) 112 L.Q.R. 22; and Mr. Alan Sprince in (1995) 11 Professional Negligence 124. Most of them deplore the abandonment of the previously accepted general requirement of foreseeability of psychiatric injury. Mr. Mullany asserts that the distinction thus drawn by Lord Lloyd between primary and secondary victims is contrary to countless common law cases, and that the Privy Council's unambiguous endorsement in The Wagon Mound No. 1 [1961] A.C. 388, 426 of Denning L.J.'s statement of principle was "clearly seen as an all-purpose test for personal injury actions." In particular, the principle that foresight of shock-induced mental damage is relevant in establishing a duty of care had never been doubted in Australia.

In summary the basic grounds of criticism appear to be threefold.

(a) There has been no previous support for any such approach, and there is authority in England and Australia to the contrary. In England, see Lord Oliver's opinion in Alcock [1992] 1 A.C. at p. 408F-G where he regarded the principle of foreseeability of psychiatric damage as applicable in cases concerned with participants, as in the case of secondary victims. In Australia, Denning L.J.'s general statement of principle appears to have been anticipated by Dixon J. in Bunyan v. Jordan (1937) 57 C.L.R. 1, 16. In Mount Isa Mines Ltd. v. Pusey (1971) 125 C.L.R. 383, both Windeyer J. (at p. 395) and Walsh J. (at p. 402) treated the test of foreseeability of psychiatric injury as generally applicable; and in Jaensch v. Coffey (1985) 155 C.L.R. 549 Brennan J. (at p. 566), Deane J. (at p. 595) and Dawson J. (at p. 611) all did likewise. Indeed Mr. Mullany has stated, citing many cases, that all Australian psychiatric damage decisions have proceeded on this basis: see (1995) 3 Journal of Law and Medicine 112, 115.

(b) The approach favoured by Lord Lloyd appears to be inconsistent not only with the adoption by Viscount Simonds in The Wagon Mound No. 1 [1961] A.C. 388, 426, of Denning L.J.'s statement of principle, but also with the actual reasoning of the Privy Council in that case. There a particular type of damage to property, viz. damage by fire, was differentiated from other types of damage to property for the purpose of deciding whether the defendant could reasonably have foreseen damage of that particular type, so as to render him liable in damages in tort for such damage. That differentiation was made on purely common sense grounds, as a matter of practical justice. On exactly the same grounds, a particular type of personal injury, viz. psychiatric injury, may, for the like purpose, properly be differentiated from other types of personal injury. It appears to be in no way inconsistent with the making of that common sense judgment, as a matter of practical justice, that scientific advances are revealing that psychiatric illnesses may have a physical base, or that psychiatric injury should be regarded as another form of personal injury. Moreover the absence of any previous challenge to the general application of the principle stated by Denning L.J., and adopted by Viscount Simonds, perhaps provides the strongest endorsement of that common sense judgment.

(c) The majority in Page v. Smith may have misunderstood the so-called eggshell skull rule. In the course of his opinion, Lord Lloyd said (at p. 187A-B):

      "We now know that the plaintiff escaped without external injury. Can it be the law that this makes all the difference? Can it be the law that the fortuitous absence of actual physical injury means that a different test has to be applied?"

These rhetorical questions Lord Lloyd answered in the negative. Yet the effect of the "eggshell skull" rule, i.e. the rule that a wrongdoer must take his victim as he finds him, is that the absence (or, more accurately, the presence) of physical injury to the plaintiff, may make all the difference. Lord Lloyd said at p. 193G:

      "There is nothing in Bourhill v. Young to displace the ordinary rule that where the plaintiff is within the range of foreseeable physical injury the defendant must take his victim as he finds him."

However, it appears from the passage from Lord Wright's opinion in Bourhill v. Young which I have already quoted, that that is not the ordinary rule. The maxim only applies where liability has been established. The criticism is therefore that Lord Lloyd appears to have taken an exceptional rule relating to compensation and treated it as being of general application, thereby creating a wider principle of liability.

I recognise that the impact of this new statement of principle is likely to be relatively slight, in that it does no more than extend liability for psychiatric damage to those cases where physical damage is reasonably foreseeable (though none is suffered) but psychiatric damage is not. In any event, however, this situation does not arise in the present appeals, since none of the claimants was within the range of foreseeable physical injury; and your Lordships do not therefore have to form a view about the validity of the criticisms which I have summarised above. Your Lordships can therefore proceed on the basis that, for the purposes of the present appeals, the relevant test is, as in the past, the test of foreseeability of psychiatric damage.

(2) I now turn to two aspects of the reformulation of principle in Page v. Smith, which are relevant to the present appeals.

(a) Reasonable fortitude. Before the decision of your Lordships' House in Page v. Smith, the requirement of reasonable fortitude was regarded as being of general application, in cases concerned with primary victims as well as those concerned with secondary victims. See, e.g., the Law Commission's Consultation Paper No. 137, para. 2.10; Mullany and Handford, op. cit., ch. 10; and Mullany, (1995) 3 Journal of Law and Medicine, 112 at p. 117. The debate related not to the applicability of the requirement in cases concerned with primary victims, but to the desirability of the requirement as such: see Mullany and Handford, ubi sup. However in Page v. Smith Lord Lloyd, who treated this requirement as a "control mechanism" (see pp. 189D and 197F), held that it had no place where the plaintiff was a primary victim, in which type of case it was not appropriate to ask whether the victim is a person of "ordinary phlegm." Previously, however, the control mechanisms applicable in cases of secondary victims had been regarded as limited to those identified in the speeches of Lord Wilberforce in McLoughlin v. O'Brian [1983] A.C. 410, 422 et seq., and Lord Oliver of Aylmerton in Alcock [1992] 1 A.C. 310, 408-412, and to relate, as I have said, to those referred to in paras. 2.19 et seq. of the Law Commission's Report No. 249, viz. (i) tie of love and affection with the immediate victim; (ii) closeness in time and space to the incident or its aftermath; and (iii) the means of learning of the incident. These did not include the requirement of reasonable fortitude.

No reason is given in Page v. Smith for now including the test of reasonable fortitude among the control mechanisms relating to secondary victims, thereby restricting the test to claims by this class of claimant. In any event since, as I see it, the test of reasonable fortitude constitutes part of the enquiry whether psychiatric injury is reasonably foreseeable, it should logically also arise in cases concerned with primary victims. This is relevant in the present appeals, with reference to the fact that the claimants are police officers who may be said to possess greater fortitude than ordinary citizens. There is certainly debate about the proper role of this test in cases of psychiatric injury, though none of this is reflected in Page v. Smith. At all events, for the purposes of the present appeals, which are concerned with primary victims, I am content to proceed on the basis proposed by the Law Commission (Report No. 249, para. 5.26) that the reasonable fortitude (or "customary phlegm") test is

     "best interpreted as meaning nothing more than that, in deciding whether psychiatric illness was reasonably foreseeable . . . one can take into account the robustness of the population at large to psychiatric illness."

(b) Hindsight. Although he did not treat this element as a "control mechanism," Lord Lloyd considered that it too had no part to play where the plaintiff is a primary victim (see [1996] 1 A.C. at p. 197F-G). This too appears to be a departure from the law as previously understood: see Mullany (1995) 3 Journal of Law and Medicine 112, 116. Moreover Lord Lloyd gave no reason for this departure, and it is difficult to understand why this approach should not, together with the reasonable fortitude test, be of general application. However where, as here, the court is concerned with a particular type of damage such as psychiatric injury:

     ". . . the court has to assess culpability by reference to what has actually happened; if you do not know the outcome of an accident it is impossible to determine whether what occurred should have been foreseen."

See Mullany, (1995) 3 Journal of Law and Medicine, 112, 116. It follows that it is, in my opinion, appropriate that your Lordships in the present appeals should have regard to what happened when considering the issue of foreseeability of psychiatric injury by the defendants.

(3) Primary and secondary victims. This is a matter which has a direct bearing on the outcome of the present appeals. As I have already recorded, we owe the distinction between primary and secondary victims to the opinion of Lord Oliver of Aylmerton in Alcock [1992] 1 A.C. 310, 407. Although he identified a secondary victim as one who is "no more than the passive and unwilling witness of injury to other," he made no attempt to define a primary victim, describing him simply as one who is "involved, either mediately or immediately as a participant," and giving miscellaneous examples of such persons. In Page v. Smith, however, Lord Lloyd (at p. 184A-B) said of the plaintiff in that case that he:

     "was a participant. He was himself directly involved in the accident, and well within the range of foreseeable physical injury. He was the primary victim."

As the Law Commission have pointed out in their Report (see Law Com. 249 at paras. 2.52--2.60), the words which I have underlined have led to considerable confusion. So indeed has a further passage in Lord Lloyd's opinion, in which he said (at p. 187E-F):

     "Foreseeability of psychiatric injury remains a crucial ingredient when the plaintiff is the secondary victim, for the very reason that the secondary victim is almost always outside the area of physical impact, and therefore outside the range of foreseeable physical injury. But where the plaintiff is the primary victim of the defendant's negligence, the nervous shock cases, by which I mean the cases following on from Bourhill v. Young, are not in point. Since the defendant was admittedly under a duty of care not to cause the plaintiff foreseeable physical injury, it was unnecessary to ask whether he was under a separate duty of care not to cause foreseeable psychiatric injury."

The words which I have underlined in these two passages have led many--the Court of Appeal on a number of occasions (e.g., in the case of Young v. Charles Church (Southern) Ltd. (unreported) 24 April 1997, Court of Appeal Transcript No. 810 of 1997) and in the present case); the Law Commission in their Report No. 249 at para. 5.46; at least one textbook writer (see Munkman on Employers' Liability, 12th ed. at p. 125); and a number of commentators on Page v. Smith--to understand that case to have laid down that presence within the range of foreseeable physical injury is a necessary attribute of a primary victim; see also, in particular, the judgments of Henry L.J. and Judge L.J. in the present case in [1997] 3 W.L.R. 1194 at pp. 1213F-G and pp. 1224F-1226A respectively. In the result this point was, not surprisingly, placed by Mr. Collender Q.C. at the forefront of the appellants' case before your Lordships' House.

I am however satisfied that in neither of these passages did Lord Lloyd intend to reach any such conclusion (which would, in any event, have been no more than an obiter dictum). First, as appears from p. 184D-F of his opinion, Lord Lloyd accepted the distinction between primary and secondary victims drawn by Lord Oliver in Alcock [1992] 1 A.C. 310, 410-11, where, as Lord Lloyd said, Lord Oliver "referred to those who are involved in an accident as primary victims, and to those who are not directly involved, but suffer from what they have seen and heard, as the secondary victims." Yet the effect of the proposition now under consideration would be that the category of secondary victims is no longer to be restricted to witnesses, or "bystanders" as they are sometimes called, but is to be extended to include all victims other than those who were within the range of foreseeable physical injury. Furthermore it appears from Lord Oliver's speech in Alcock, which Lord Lloyd here invoked, that he did not regard presence within the range of foreseeable physical injury as a necessary attribute of a primary victim. This was made plain by the fact that he included among primary victims those who "come to the aid of others injured or threatened" (see p. 408E), citing Chadwick v. British Railways Board [1967] 1 W.L.R. 912, and plaintiffs in cases such as Dooley v. Cammell Laird & Co. Ltd. [1971] 1 Lloyd's Rep. 271

     "where the negligent act of the defendant has put the plaintiff in the position of being, or, thinking that he is about to be or has been, the involuntary cause of another's death or injury"

with the result that he has suffered psychiatric illness (see p. 408E-G). In the latter group of cases there is ordinarily no question of the plaintiff having been within the range of foreseeable physical injury, and in Chadwick that factor was treated as irrelevant by the trial judge, George Waller J. Indeed cases such as Dooley, and rescue cases such as Chadwick and the well-known Australian case of Mount Isa Mines Ltd. v. Pusey (1970) 125 C.L.R. 383 (in which the successful plaintiff was never in any physical danger), are in direct conflict with the conclusion which has been attributed to Lord Lloyd in the passages now in question. In this connection it is significant that no reasons were given in Page v. Smith why any such limitation should be placed on recovery by primary victims; the point was not even discussed. Had it been considered, Lord Lloyd would have had to face up to the well-known decisions already referred to which are inconsistent with the proposition, and to consider whether he should follow them or whether he should distinguish or depart from them and, if the latter, why he should do so. The absence of any reference by Lord Lloyd to those decisions of itself renders it inconceivable that the passages in his judgment now in question should have been intended by him to have the effect attributed to them. The matter is, in my opinion, put beyond all doubt by the summary of his conclusions with which Lord Lloyd ended his opinion (see [1996] A.C. 155, 197E-H). After stating certain principles which he regarded as applicable in the case of secondary victims, he said:

     "Subject to the above qualifications, the approach in all cases should be the same, namely, whether the defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury, whether physical or psychiatric."

This proposition, plainly designed to express Lord Lloyd's opinion that foreseeability of physical injury to the plaintiff is a sufficient condition of liability for psychiatric injury, is inconsistent with the proposition that it is also a necessary condition of such liability.

But let it be assumed that the passages in Lord Lloyd's judgment now in question were intended to have that effect: the result would be most remarkable. It would be that on the one hand Page v. Smith expands recovery, by holding that foreseeability of physical injury justifies recovery in respect of unforeseeable psychiatric injury even though no physical injury is suffered, while on the other hand the same case restricts recovery, by precluding recovery in respect of foreseeable psychiatric injury unless physical injury is also foreseeable. This does not make sense. The paradox undermines all credibility in the proposition, which is that what was formerly regarded as neither necessary nor sufficient (see Page v. Smith in the Court of Appeal [1994] 4 All E.R. 522, 549, per Hoffmann L.J.) has become not only sufficient but also, without any explanation, necessary. It is plain, in my opinion, that Lord Lloyd's strategy was to expand recovery by primary victims, not only in the manner I have indicated but also by restricting the applicability of the "reasonable fortitude" and "hindsight" tests to secondary victims; but that he had no strategy to restrict recovery by primary victims, whether by restricting recovery to cases where physical injury was foreseeable or otherwise.

For all these reasons I am satisfied that the passages in Lord Lloyd's opinion, to which I have referred, should be read as merely descriptive of the position of the plaintiff in Page v. Smith, and not as having the effect which has been ascribed to them. It follows, however, that to this extent the appellants' case must be regarded as having been framed on a false premise. I understand however that some of your Lordships are of the opinion that, even if my understanding of these passages in Lord Lloyd's opinion is correct, the House should, as a matter of policy, nevertheless impose a requirement of foreseeability of physical damage as an arbitrary limit upon recovery by primary victims in respect of psychiatric injury suffered by them. I shall consider this proposal at a later stage in this opinion.

I wish, however, to add in this connection that in some cases, in particular those in which the plaintiff is claiming damages in respect of psychiatric injury caused by fear of injury to himself, it may indeed be relevant to enquire whether he was within the range of foreseeable physical injury: see, e.g., McFarlane v. EE Caledonia Ltd. [1994] 1 All E.R. 1. But, as I have said, it is inconsistent with existing authority that any such requirement should be applicable in all cases concerned with primary victims.

The impact of Page v. Smith on the present appeals. In the light of the foregoing I have to consider the relevance of the decision of Page v. Smith to the present appeals. For the reasons I have already given I have reached the conclusion that point (1) (reasonable foreseeability of psychiatric injury is no longer required where the plaintiff is within the range of foreseeable physical injury) does not arise on the facts of the present case; that point (2)(a) (the reasonable fortitude test is now to be limited to secondary victim cases) can be regarded as immaterial, because I am content for present purposes to proceed on the basis proposed by the Law Commission (Report No. 249, para. 5.26); that point 2(b) (the hindsight test is now also to be limited to secondary victim cases) is an obiter dictum which I am disinclined to follow; and that, for the reasons I have given, point (3) (primary victims can only recover if they are within the area of foreseeable physical danger) does not arise, because I do not read the relevant passages in the judgment as having that effect.

Employees and Rescuers

(1) Employees

An employee (I will for present purposes include in this category a "quasi-employee" such as a police officer who, although he holds an office and is not therefore strictly an employee, is owed the same duty by his "employer"--here the Chief Constable of South Yorkshire) may recover damages from his employer in respect of psychiatric injury suffered by him by reason of his employer's breach of duty to him. The basic obligation of the employer arises from the relationship between him and his employee, under which the employer is under a duty to take reasonable care for the safety of his employee at work (see, e.g., Wilsons and Clyde Coal Co. Ltd. v. English [1938] A.C. 57, 84-85 per Lord Wright) and in particular not to expose his employees to unnecessary or unreasonable risk. It was this latter duty upon which Mr. Hytner Q.C. for the respondents relied in the present appeals. This duty, as Mr. Hytner Q.C. recognised, is generally regarded as tortious.

However all the employer's duties "are connected in some sense to what happens to the employee while at work" (see Munkman on Employers' Liability, 12th ed., (1995) at p. 33); and it is with cases arising in this context that we are concerned. I put on one side those cases in which an employee is seeking damages from his employer in respect of stress at work, as to which see Munkman, op. cit., at pp. 128-130, and Walker v. Northumberland County Council [1995] 1 All E.R. 737 (commented on by the Law Commission in its Consultation Paper No. 137, paras. 2.49--2.50). But in the authorities relating to the recovery by an employee from his employer of damages for psychiatric injury, arising from the death or physical injury of another, we find a distinction being drawn between those cases in which the employee has in the course of his employment been involved in the event which resulted in the other's physical injury or death, to which I would add involvement in the aftermath of that event, and other cases in which he has, while at work, incidentally witnessed that event and its outcome.

As to the former, a useful example is to be found in the unreported case of Young v. Charles Church (Southern) Ltd. 24 April 1997. There the victim of the accident, Mr. Cook, was erecting a structure consisting of scaffolding poles. He was assisted by two labourers, one of them being the plaintiff, Mr. Young. As the plaintiff turned away to fetch another pole, Mr. Cook raised a 20 foot pole vertically and it came into contact with an overhead power cable carrying 33,000 volts of electrical current. The plaintiff heard a loud bang and a hissing noise. He looked up and saw that the pole held by Mr. Cook had struck and stuck to the electric wiring. He saw that the ground around Mr. Cook had burst into flames. Mr. Cook fell to the ground; he had been electrocuted. The plaintiff heard the other labourer, Mr. Smith, scream. He too had been struck by electricity. The plaintiff was not injured physically, but he suffered a psychiatric illness (P.T.S.D.) as a result of the accident. He claimed damages from two defendants, one being his employer. Both defendants agreed not to dispute liability for the purposes of the proceedings, but contended that the plaintiff did not come within the class of persons entitled to make a claim for nervous shock, because he had suffered no injury in the accident. The Court of Appeal held that the plaintiff was entitled to recover. As a result of Page v. Smith, the Court of Appeal was concerned with the question whether the plaintiff was within the range of physical injury, and were able on the facts of the case to hold that he was. But for present purposes the important finding of the majority, Evans and Hutchison L.JJ., was that the plaintiff was involved as a participant in the accident. Hutchison L.J. put the matter very clearly at p. 32 of the transcript:

     "[The plaintiff] had just given the pole to Cook and was within six feet or so of the latter when Cook received the fatal shock. Though he had turned away to get the shorter support poles to be used to maintain the long pole in a vertical position, he could in my view properly be regarded as still participating in the erection of that long pole at the moment it touched the electric cable . . ."

The circumstances of that case can be compared to those of the two Scottish cases of Robertson and Rough v. Forth Road Bridge Joint Board [1995] S.C. 364. I take the facts from the opinion of the Lord President, Lord Hope of Craighead, at p. 365:

     "The actions arose out of a tragic accident which occurred on the Forth Road Bridge on 29 January 1989. The pursuers and a workmate named George Smith were working together in the course of their employment with the defenders, whose function is to maintain and operate the bridge. The winds were blowing at gale force during their shift that day. The accident occurred while the men were in the course of removing a large thin piece of metal sheeting which had been found lying on the south-bound carriageway. It was being taken off the bridge on the open platform of a Ford Transit pick-up van. Smith was sitting on the top of the metal sheet on the back of the van, Robertson was driving the van and Rough was following a few feet behind in a small patrol van which he was driving. In the course of their journey to the south end of the bridge a sudden and violent gust of wind caused the sheet and Smith to be thrown violently off the back of the van and over the side of the bridge."

Mr. Smith fell only a few feet onto a girder, but was killed by the force of the impact. The two pursuers claimed to have suffered nervous shock as a result of witnessing the accident. The Lord Ordinary held that there was no duty of care owing to them by the defenders, and granted decree of absolvitur. The pursuers reclaimed against that decision, but the First Division of the Inner House refused their reclaiming motions.

The principal opinion was delivered by the Lord President. The argument for the pursuers was essentially that they were so directly involved in the accident as to be within the ambit of their employers' duty of care to them. This argument was however rejected by the Lord President, who regarded the case not as one of active participation in the event, but as one where the pursuers were merely bystanders or witnesses, in which event the ordinary rule stated by Lord Oliver in McLoughlin v. O'Brian must apply and, as the pursuers did not comply with the control mechanisms applicable in the case of claimants who were only witnesses, their claim must fail. The case therefore provides authority that, in a claim by an employee against his employer for damages for psychiatric injury arising from the death of or injury to another, his claim will fail if he is simply a bystander who witnesses the event, and is not an active participant in it (or, I would add, its aftermath). It was perhaps open to the Lord President to take the view that the two pursuers were at the time actively involved with Mr. Smith in the operation of removing the sheet from the bridge, in which event the reclaiming motion would no doubt have been granted; but he took a different view of the facts of the case.

It is, in my opinion, consistent with the tortious basis of the employer's duty in these cases that it should, in cases concerned with a claim by an employee for damages in respect of psychiatric injury, be subject to the limits set out in the opinion of Lord Oliver in Alcock [1992] 1 A.C., 310, 407-411, in the case of a claimant who is a bystander in the sense of being no more than a passive and unwilling witness of injury caused to others; and I consider that the same could be said if the employer's duty of care was expressed as an implied term in the contract of employment. In accordance with this approach Stuart-Smith L.J. (with whom McCowan and Ralph Gibson L.JJ. agreed) said in McFarlane v. E.E. Caledonia Ltd. [1994] 2 All E.R. 1 (a case concerned with an employee's claim against his employer) at p. 14E:

     "In my judgment both as a matter of principle and policy the court should not extend the duty to those who are mere bystanders or witnesses of horrific events unless there is a sufficient degree of proximity, which requires both nearness in time and place and a close relationship of love and affection between plaintiff and victim."

The importance of this conclusion is that it avoids what otherwise might be regarded as an unacceptable distinction between employees on the one hand, and relatives on the other. This is of particular relevance in the present case, where a number of relatives of victims at Hillsborough failed in claims for damages in respect of psychiatric injury which they advanced in the case of Alcock [1992] 1 A.C. 310, and it has been suggested that it would be unacceptable if police officers were entitled to a wider basis of recovery as employees. However this is not, in my opinion, the position at law. The difference between the two categories arises not from the applicability of special rules in the case of secondary victims (which, in my opinion, apply to both categories) but from the fact that, whereas police officers who became involved on the ground in the aftermath of the disaster can claim against the Chief Constable as "employees", strangers who intervened will have to justify their intervention, for example by bringing themselves within the broad category of "rescuers", to which I will turn in a moment. In this connection I wish to record that the claims of the plaintiffs in Alcock were not advanced on the basis that they were rescuers, a fact which must be borne in mind when comparisons are drawn between those plaintiffs and the plaintiffs in the present case.

(2) Rescuers

I turn next to the category of rescuers. This category is of particular importance for outsiders who intervene in a situation created by a wrongdoer. The fact that an outsider may intervene in such a situation to rescue a victim of the wrongdoing is reasonably foreseeable by a person in the position of the wrongdoer. The intervention is justified by the necessity of the moment, and so is not unlawful. It does not break the chain of causation between the wrongful act of the defendant and injury suffered by the intervener by reason of his act of rescue, whether the rescue is successful or not. Compensation for such an injury may be recovered by the intervener from the wrongdoer, whether the injury is physical as in the classic rescue cases such as Baker v. T.E. Hopkins & Sons Ltd. [1959] 1 W.L.R. 966, or psychiatric as in Chadwick v. British Railways Board [1967] 1 W.L.R. 912.

Chadwick is important in another respect. It shows that we must not be prisoners of our concepts, here the concept of rescue. Mr. Chadwick was not attempting to rescue anybody. He was a small and agile man, who lived close to the railway line in Lewisham, on which two trains collided with catastrophic results. Many passengers were killed or injured; and many of the injured were trapped in the wreckage for a long time during the night before they could be rescued. Mr. Chadwick worked for many hours during the night, crawling under the wreckage of the train and bringing aid and comfort to the victims, some of them severely injured, who were trapped in the wreckage. He was exposed to some physical danger, but the trial judge (George Waller J.) treated that as irrelevant. It was, he held, the whole horror of the situation which affected Mr. Chadwick, who as a result suffered psychiatric injury in a form which would nowadays probably be classified as P.T.S.D. When we contemplate the full horror of the disaster--the terrible injuries suffered by some of the victims, dead and alive, and the cries of the living for help; the long hours of darkness; the claustrophobic conditions in which Mr. Chadwick worked--it is scarcely surprising that the judge treated the physical danger as irrelevant; and it is scarcely surprising too that, in McLoughlin v. O'Brian [1983] 1 A.C. 410, 438, Lord Bridge of Harwich stated that, as far as he knew, no one had ever doubted that the case was rightly decided. But it is also plain that the circumstances were wholly exceptional. It must be very rare that a person bringing aid and comfort to a victim or victims will be held to have suffered foreseeable psychiatric injury as a result.

In this connection, I should record that there is controversy on the question whether "searchers" may qualify as rescuers. That they may do so is supported by the most famous of all rescue cases, Wagner v. International Railways Co. (1921) 232 N.Y. 176, in which the judgment of the court was delivered by Cardozo J.; and the same view was expressed by Evatt J. in his dissenting judgment in Chester v. Waverley Council (1939) 62 C.L.R. 1, 14 et seq.--a judgment later to be commended by Lord Wright in Bourhill v. Young [1943] A.C. 92, 110 and by Lord Wilberforce in McLoughlin v. O'Brian [1983] 1 A.C. 410, 422, and approved by the High Court of Australia in Jaensch v. Coffey (1985) 155 C.L.R. 549, especially at pp. 590-591 per Deane J. However Mr. Mullany and Dr. Handford have expressed the opinion that this approach is not part of the modern law: see (1997) 113 L.Q.R. at p. 417. The point does not however arise in the present case; the solution may perhaps depend on the facts of the particular case.

I wish also to add that, obviously, a rescuer will normally come on the scene after the disastrous event has occurred. It is most unlikely that he will be involved in that event itself. He is involved in the aftermath of that event, and is concerned with its consequences. That involvement is, however, sufficient to bring him within the category of primary victims, so far as liability for psychiatric injury is concerned: see Alcock [1992] 1 A.C. 310, 408, per Lord Oliver of Aylmerton.

(3) Employees and rescuers

It is of course perfectly possible for an employee of the tortfeasor to be a rescuer. If so, the basis on which he may claim damages from his employer in respect of any psychiatric injury which he may suffer by reason of his involvement will depend on the circumstances of the case. Where he becomes involved in the course of his employment (see Priestley v. Fowler (1837) 3 M. & W. 1, 6, per Lord Abinger C.B.; Munkman on Employer's Liability, 12th ed., (1995) p. 74) he may be able to claim damages simply on the basis of breach by his employer of his duty of care. If not, however, he can rely on his intervention in the character of a rescuer as a stranger may do. A borderline case, which appears to have fallen on the former side of the line, is the important Australian case of Mount Isa Mines Ltd. v. Pusey (1971) 125 C.L.R. 383. A terrible accident occurred at the defendants' powerhouse, when two employees who were testing a switchboard were severely burned by an intense electric arc. This was held to have occurred because the defendants had negligently failed to give the men proper instructions. The plaintiff, who was a foreman on the defendants' staff and could therefore have reasonably been expected to go to the scene of the accident, did so and found one of the men very severely burned. The plaintiff supported him out of the powerhouse, and helped to carry him to an ambulance. Within nine days, however, the man died of his injuries. The plaintiff subsequently developed a serious mental disturbance, diagnosed as a form of schizophrenia. The High Court of Australia upheld the decision of the trial judge, affirmed by the Full Court of the Supreme Court of Queensland, that the plaintiff was entitled to succeed in a claim against his employers in respect of his psychiatric injury. In the course of the judgments of some members of the High Court, the plaintiff was treated as a rescuer; but I understand the prevailing view of the High Court in that case, and of the High Court which sat in the later case of Jaensch v. Coffey (1985) 155 C.L.R. 549 in which the Mount Isa Mines case was considered, to have been that the defendants' liability arose from breach of their duty as employers of the plaintiff: see, in particular, the judgments of Windeyer J. in the Mount Isa Mines case at p. 400, and of Deane J. in Jaensch v. Coffey at p. 597.

In some cases, however, the circumstances may be such that an employee is involved in the aftermath of the relevant event when acting in the course of his employment with the tortfeasor, and that a part of his involvement may fall within the description of rescue and the remainder not. If as a result of his involvement the employee suffers psychiatric injury, it will be necessary to have regard to his involvement as a whole, including his actions of rescue, when deciding whether or not such psychiatric injury is a reasonably foreseeable consequence of a breach by his employer of his duty to him. That is, in my opinion, the position in the present case. It follows that if, as in the present case, there is a group of employees who were involved in the aftermath of the event, and only some of them were involved in acts of rescue, it does not follow that the latter only will be entitled to recover. It is the involvement of each as a whole which has to be considered; and if the involvement is such that the acts of rescue were no more than incidental parts of a wider involvement which caused the psychiatric injury, there is no reason why those employees who were involved in acts of rescue should be singled out as those who alone are entitled to recover. This is because, in such a case as in the case of Chadwick, it is the whole horror of the situation which is the cause of the psychiatric injury suffered by all of the employees so involved.

A new control mechanism?

As I have already recorded, it was submitted by Mr. Collender Q.C. on behalf of the appellants, relying on certain passages in the opinion of Lord Lloyd in Page v. Smith [1996] 1 A.C. 155, 184A-B, 187E-F, that it was a prerequisite of the right of recovery by primary victims in respect of psychiatric injury suffered by them that they should have been within the range of foreseeable physical injury. I have already expressed the opinion that no such conclusion can be drawn from Lord Lloyd's opinion in Page v. Smith. I understand however that, even if my view on that point is accepted as correct, some of your Lordships nevertheless consider that a new control mechanism to the same effect should now be introduced and imposed by this House as a matter of policy.