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

(back to preceding text)

Thus far and no further

My Lords, the law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify. There are two theoretical solutions. The first is to wipe out recovery in tort for pure psychiatric injury. The case for such a course has been argued by Professor Stapleton. But that would be contrary to precedent and, in any event, highly controversial. Only Parliament could take such a step. The second solution is to abolish all the special limiting rules applicable to psychiatric harm. That appears to be the course advocated by Mullany and Handford, Tort Liability for Psychiatric Damage: The Law of Nervous Shock, (1993). They would allow claims for pure psychiatric damage by mere bystanders: see (1997) 113 L.Q.R. 410, at 415. Precedent rules out this course and, in any event, there are cogent policy considerations against such a bold innovation. 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.


My Lords, I am in substantial agreement with the reasons given by Waller J. for dismissing the claims of the police officers. In my judgment the Court of Appeal erred in reversing Waller J. in respect of the claims under consideration. For these reasons, as well as the reasons given by Lord Hoffmann, I would allow the appeals.


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 in a position analogous to 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. In order to examine the merits of these arguments, the claims of the five members of the police in this case (as well as some others which are not the subject of appeal) were selected as test cases to be tried together. 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. In Victorian Railway Commissioners v. Coultas (1883) 13 App. Cas. 222 the Privy Council held that compensation for such injury was not recoverable at all. The main reason which the Board gave for denying recovery was the evidential difficulty of deciding upon the causes of psychiatric symptoms at a time when very little was known about the workings of the mind. Despite scientific advances, this remains a serious problem. As Lord Wilberforce noted in 1982, "the area of ignorance seems to expand with that of knowledge" (McLoughlin v. O'Brian [1983] 1 A.C. 410, 418). At any rate, the courts have developed sufficient confidence in medical expertise to be willing to award damages for mental disturbances which manifest themselves in bodily symptoms (such as a miscarriage) or in a "recognised psychiatric illness." The latter is distinguished from shock, fear, anxiety or grief which are regarded as a normal consequences of a distressing event and for which damages are not awarded. Current medical opinion suggests that this may be a somewhat arbitrary distinction; the limits of normal reaction to stressful events are wide and debatable, while feelings of terror and grief may have as devastating an effect upon people's lives as the "pain and suffering" consequent upon physical injury, for which damages are regularly awarded.

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. It seemed that if the foreseeability test was to be taken literally and applied in the same way as the test for liability for physical injury, it would be hard to know where the limits of liability could be drawn. In all but exceptional cases, the only question would be whether on the medical evidence, the psychiatric condition had been caused by the defendant's negligent conduct.

There was a time when it seemed that English law might arrive at this position. It came within a hair's breadth of doing so in McLoughlin v. O'Brian [1983] 1 A.C. 410, one of those cases in which one feels that a slight change in the composition of the Appellate Committee would have set the law on a different course. But the moment passed and when the question next came before your Lordships' House in Alcock v. Chief Constable of South Yorkshire [1992] 1 A.C. 310, judicial attitudes had changed. The view which had for some time been in the ascendancy, that the law of torts should, in principle aspire to provide a comprehensive system of corrective justice, giving legal sanction to a moral obligation on the part of anyone who has caused injury to another without justification to offer restitution or compensation, had been abandoned in favour of a cautious pragmatism. 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, as I have said, 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. Mr. Hicks, whose two teenage daughters died, failed in limine and did not make a personal claim because his grief had not given rise to recognised psychiatric illness. His attempt to make a symbolic claim on behalf of his daughters was dismissed by your Lordships' House on the ground that the fear and terror which they must have felt in the moments before death were normal human emotions for which damages are not awarded: Hicks v. Chief Constable of the South Yorkshire Police [1992] 2 All E.R. 65. Mr. Harrison, who was present elsewhere at the ground and whose two brothers died, failed condition (1) because the House refused to presume that close ties of love and affection exist between brothers and he had adduced no evidence to prove that they existed in his case. Mr. and Mrs Copoc, whose son died, failed condition (2) because they were not present at the ground but saw the scenes on television. Mr. Alcock, who identified his brother-in-law in the mortuary at midnight, failed condition (3) because he was not in time for the immediate aftermath of the tragedy. The claims of other relatives were dismissed on similar grounds.

My Lords, this story of the ebb and flow of tort liability for psychiatric injury has often been told and I have recounted it again at some length only because I think it must be borne in mind when we come to deal with the authorities. In order to give due weight to the earlier decisions, particularly at first instance, it is necessary to have regard to their historical context. They cannot simply be laid out flat and pieced together to form a timeless mosaic of legal rules. Some contained the embryonic forms of later developments; others are based on theories of liability which had respectable support at the time but have since been left stranded by the shifting tides.

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 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": see The Frontiers of Liability ed. Peter Birks, O.U.P. (1994) Volume 2, p. 84. Equally, the spectacle of a plaintiff, who has, ex hypothesi, 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: see the Law Commission Report on Liability for Psychiatric Illness (Law Com. No. 249) at para. 6.24).

Academic writers have made contradictory but equally radical suggestions for reform. Mullany and Handford, in their excellent book The Liability for Psychiatric Damage (Sydney, 1993), advocate getting rid of the control mechanisms and, in the light of advances in psychiatric knowledge, equating psychiatric injury to physical injury. Jane Stapleton, on the other hand, would abolish recovery for psychiatric injury altogether and revert to the law as stated in Victorian Railway Commissioners v. Coultas (1888) 13 App. Cas. 222: see the article to which I have already referred.

The appeal of these two opposing proposals rather depends upon where one starts from. If one starts from the proposition that in principle the law of torts is there to give legal force to an Aristotelian system of corrective justice, then there is obviously no valid distinction to be drawn between physical and psychiatric injury. On this view, the control mechanisms merely reflect a vulgar scepticism about the reality of psychiatric injury or a belief that it is less worthy of compensation than physical injury: therein the patient must minister to himself. On the other hand, if one starts from the imperfect reality of the way the law of torts actually works, in which the vast majority of cases of injury and disability, both physical and psychiatric, go uncompensated because the persons (if any) who caused the damage were not negligent, or because the plaintiff lacks the evidence or the resources to prove to a court that they were negligent, or because the potential defendants happen to have no money, then questions of distributive justice tend to intrude themselves. Why should X receive generous compensation for his injury when Y receives nothing? Is the administration of so arbitrary and imperfect a system of compensation worth the very considerable cost? On this view, a uniform refusal to provide compensation for psychiatric injury adds little to the existing stock of anomaly in the law of torts and at least provides a rule which is easy to understand and cheap to administer.

The Law Commission in its recent Report (supra) inclines somewhat to the Mullany and Handford point of view by recommending that the condition of close ties of love and affection for secondary victims be retained in a modified form but that the other two be abolished. The reason given for retention of any control mechanism was that:

     "a review of the medical literature has led us to believe that the adoption of a simple foreseeability test would or could result in a significant increase in the number of claims which, at least at this point in time, would be unacceptable."

I shall in due course return to this concept of unacceptability and try to analyse what it means. But I shall not enter further into the merits of the various proposals for reform because neither of the radical solutions, or indeed the Law Commission solution, is open to your Lordships. 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 (or apprehended to have been suffered or as likely to be suffered) by someone else. In Page v. Smith [1996] A.C. 155, 184 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." The issue in Page v. Smith was whether it is sufficient that a primary victim who, in consequence of a foreseeable accident, has suffered psychiatric injury, should have been within the range of foreseeable physical injury or whether it must have been foreseeable, in the light of the circumstances of the accident as it actually happened, that he would suffer psychiatric illness. 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." Both arguments have some support from the speeches in Page v. Smith [1996] A.C. 155, which did not have the present question in mind. Essentially, however, as I said at the beginning of this speech, the plaintiffs draw two distinctions between their position and that of spectators or bystanders. The first is that they had a relationship analogous to employment with the Chief Constable. Although constitutionally a constable holds an office rather than being employed, there is no dispute that his Chief Constable owes him the same duty of care which he would to an employee. The plaintiffs say that they were therefore owed a special duty as which required the Chief Constable and those for whom he was vicariously liable to take reasonable care not to expose them to unnecessary risk of injury, whether physical or psychiatric. Secondly, the plaintiffs (and in this respect there is no difference between the police and many others in the crowd that day) did more than stand by and look. They actively rendered assistance and should be equated to "rescuers", who, it was said, always qualify as primary victims.

My Lords, I shall consider first the claim to primary status by virtue of the employment relationship. Mr. Hytner Q.C., for the plaintiffs, said that prima facie an employer's duty required him to take reasonable steps to safeguard his employees from unnecessary risk of harm. The word "unnecessary" must be stressed because obviously a policeman takes the risk of injury which is an unavoidable part of his duty. But there is no reason why he should be exposed to injuries which reasonable care could prevent. Why, in this context, should psychiatric injury should be treated differently from physical injury? He referred to Walker v. Northumberland County Council [1995] 1 All E.R. 737 an employee recovered damages for a mental breakdown, held to have been foreseeably caused by the stress and pressure of his work as a social services officer. This, he said, showed that no distinction could be made.

I think, my Lords, that this argument really assumes what it needs to prove. 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. It would not be suggested that the employment relationship entitles the employee to recover damages in tort (I put aside contractual liability, which obviously raises different questions) for economic loss which would not ordinarily be recoverable in negligence. The employer is not, for example, under a duty in tort to take reasonable care not to do something which would cause the employee purely financial loss, e.g. by reducing his opportunities to earn bonuses. The same must surely be true of psychiatric injury. There must be a reason why, if the employee would otherwise have been regarded as a secondary victim, the employment relationship should require him to be treated as a primary one. The employee in to Walker v. Northumberland County Council [1995] 1 All E.R. 737 was in no sense a secondary victim. His mental breakdown was caused by the strain of doing the work which his employer had required him to do.

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? I think, my Lords, that the question vividly illustrates the dangers inherent in applying the traditional incrementalism of the common law to this part of the law of torts. If one starts from the employer's liability in respect of physical injury, it seems an easy step, even rather forward-looking, to extend liability on the same grounds to psychiatric injury. It makes the law seem more attuned to advanced medical thinking by eliminating (or not introducing) a distinction which rests upon uneasy empirical foundations. It is important, however to have regard, not only to how the proposed extension of liability can be aligned with cases in which liability exists, but also to the situations in which damages are not recoverable. If one then steps back and looks at the rules of liability for psychiatric injury as a whole, in their relationship with each other, the smoothing of the fabric at one point has produced an ugly ruck at another. In their application to other secondary victims, the Alcock control mechanisms stand obstinately in the way of rationalisation and the effect is to produce striking anomalies. Why should the policemen, simply by virtue of the employment analogy and irrespective of what they actually did, be treated different from first aid workers or ambulance men? In the Court of Appeal, where four of the plaintiffs succeeded on this ground, Rose L.J. denied that he was giving preference to "policemen over laymen." He said that the distinction existed because "the court has long recognised a duty of care to guard employees and rescuers against all kinds of injury." For the moment I leave aside the "rescuers", where obviously no distinction based on the employment relationship need be made. But with respect to employees as such, Rose L.J. states a broad proposition as settled law. I think it is debatable whether the authorities have gone so far as to recognise a duty to guard employees against psychiatric injury suffered as a result of injury to others and I shall discuss them in a moment. Apart from authority, however, it seems to me that Rose L.J. is stating the distinction rather than explaining it.

Henry L.J. said that employees were in a different position because their contracts of employment (or the analogous duties of policemen) required them to stay at the ground. Other people could avert their eyes and go but the police had to stay. I do not find this a satisfactory distinction from the cases of other people (such as St John's Ambulance workers) who were presumably also under an obligation to stay but could not sue their employer or even those who had no legal duties (such as doctors who happened to be in the crowd) but stayed out of a sense of moral obligation to see if there was anything they could do to help.

In principle, therefore, 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.

The plaintiffs rely upon four cases as establishing the right of an employee to recover for psychiatric injury caused by witnessing or apprehending injury which his employer's negligence has caused to others. Three are English and the other is a case in the High Court of Australia. Only one of the English cases (Dooley v. Cammell Laird & Co. Ltd. [1951] 1 Lloyd's L.R. 271 is reported in full; the reasoning in Galt v. British Railways Board [1983] 113 N.L.J. 870 has been condensed to a single sentence and that of Wiggs v. British Railways Board (The Times, 4 February 1986) is also abbreviated. All appear to have been ex tempore first instance judgments given on circuit. I think that on a fair reading, they were each regarded by the judges who decided them as raising one question of fact, namely whether psychiatric injury to the plaintiff was a foreseeable consequence of the defendant's negligent conduct. This was in accordance with the law as it was thought to be at the time. There was no reference to the control mechanisms, which had not yet been invented. In Wigg, Tucker J. expressly said that the only question was that of foreseeability, referring to the speech of Lord Bridge of Harwich in McLoughlin v. O'Brian [1983] 1 A.C. 410. This was a view which might well have prevailed, but the subsequent retreat from principle in Alcock v. Chief Constable of South Yorkshire [1992] 1 A.C. 310 meant that it, and the other two cases, had either to be given up as wrongly decided or explained on other grounds. The same is true of the Australian case of Mount Isa Mines v. Pusey [1971] 125 C.L.R. 382, whose interest resides entirely in the judgment of Windeyer J. Only one of the other judges found it necessary to discuss the principles of liability for psychiatric injury and he expressly refrained from considering whether it could be based upon the employee relationship. Windeyer J. thought that it could, but only as part of his wider thesis that foreseeable physical and foreseeable psychiatric injury should not be distinguished. He was at pains to say (at p. 404) 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.

In Alcock itself, Lord Oliver of Aylmerton attempted an ex post facto rationalisation of the three English cases by saying that in each, the plaintiff had been put in a position in which he was, or thought he was about to be or had been, the immediate instrument of death or injury to another. In Wigg, for example, the plaintiff was the driver of a train which had caused the death of a passenger by moving off when he was trying to board. The driver had started because the guard, for whom the employer was vicariously liable, had negligently given the signal. This is an elegant, not to say ingenious, explanation, which owes nothing to the actual reasoning (so far as we have it) in any of the cases. And there may be grounds for treating such a rare category of case as exceptional and exempt from the Alcock control mechanisms. I do not need to express a view because none of the plaintiffs in this case come within it. In Robertson v. Forth Road Bridge Joint Board [1995] S.C. 364 Lord Hope adopted Lord Oliver's explanation of the English cases and 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.

The second way in which the plaintiffs put their case is that they were not "bystanders or spectators" but participants in the sense that they actually did things to help. They submit that there is an analogy between their position and that of a "rescuer", who, on the basis of the decision of Waller J. in Chadwick v. British Railways Board [1967] 1 W.L.R. 912, is said to be treated as a primary victim, exempt from the control mechanisms.

In Chadwick, the plaintiff suffered psychiatric injury as a result of his experiences in assisting the victims of a railway accident. He spent twelve hours crawling in the wreckage, helping people to extricate themselves and giving pain killing injections to the injured. Waller J. said (at p. 921) that it was foreseeable that "somebody might try to rescue passengers and suffer injury in the process." The defendants therefore owed a duty of care to the plaintiff. He went on to say that it did not matter that the injury suffered was psychiatric rather than physical but in any event "shock was foreseeable and . . . rescue was foreseeable." Thus the judge's reasoning is based purely upon the foreseeability of psychiatric injury in the same way as in other cases of that time. And I think there can be no doubt that if foreseeability was the only question, the judge's conclusion was unexceptionable.

References in the authorities to rescuers sometimes give the impression that they are a category of persons who would not qualify for compensation under the strict rules of the law of negligence but receive special treatment on grounds of humanity and as a reward for altruism. A florid passage by Cardozo J. in Wagner v. International Railway Company 232 N.Y. 176, 180 (1921) is frequently quoted. If rescuers formed a specially privileged category of plaintiff, one would expect that the rule would give rise to a definitional problem about who countedóKóóK as a rescuer and so qualified for special treatment. In fact, as one can see from the absence of any such problem in the cases, 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 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. In the same way, its causal effect is not negatived by an unsuccessful attempt of the person in peril, whose freedom of choice has been limited by the position into which the defendant has put him, to extricate himself from danger: see The Oropesa [1943] 140.

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. And it is no criticism of the excellent judgment of Waller J. in Chadwick v. British Railways Board [1967] 1 W.L.R. 912 to say that such a question obviously never entered his head. Questions of such nicety did not arise until the Alcock control mechanisms had been enunciated.

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. It would of course be possible to create such a rule by an ex post facto rationalisation of Chadwick v. British Railways Board [1967] 1 W.L.R. 912. In both McLoughlin v. O'Brian [1983] 1 A.C. 410 and in Alcock v. Chief Constable of South Yorkshire [1992] 1 A.C. 310, members of the House referred to Chadwick with approval. But I do not think that too much should be read into these remarks. In neither case was it argued that the plaintiffs were entitled to succeed as rescuers and anything said about the duty to rescuers was therefore necessarily obiter. If one is looking for an ex post facto rationalisation of Chadwick, I think that the most satisfactory is that offered in the Court of Appeal in McLoughlin v. O'Brian [1981] 1 Q.B. 599, 622 by my noble and learned friend Lord Griffiths, who had been the successful counsel for Mr. Chadwick. He said:

     "Mr. Chadwick might have been injured by a wrecked carriage collapsing on him as he worked among the injured. A duty of care is owed to a rescuer in such circumstances . . . ."

If Mr. Chadwick was, as Lord Griffiths said, within the range of foreseeable physical injury, then the case is no more than an illustration of the principle applied by the House in Page v. Smith [1996] A.C. 155, namely that such a person can recover even if the injury he actually suffers is not physical but psychiatric. And in addition (unlike Page v. Smith [1996] A.C. 155) Waller J. made a finding that psychiatric injury was also foreseeable.

Should then your Lordships take the incremental step of extending liability for psychiatric injury to "rescuers" (a class which would now require definition) who give assistance at or after some disaster without coming within the range of foreseeable physical injury? It may be said that this would encourage people to offer assistance. The category of secondary victims would be confined to "spectators and bystanders" who take no part in dealing with the incident or its aftermath. On the authorities, as it seems to me, your Lordships are free to take such a step.

In my opinion there are two reasons why your Lordships should not do so. The less important reason is the definitional problem to which I have alluded. The concept of a rescuer as someone who puts himself in danger of physical injury is easy to understand. But once this notion is extended to include others who give assistance, the line between them and bystanders becomes difficult to draw with any precision. For example, one of the plaintiffs in Alcock, a Mr. O'Dell, went to look for his nephew. "He searched among the bodies . . . and assisted those who staggered out from the terraces." ([1992] 1 A.C., 354.) He did not contend that his case was different from those of the other relatives and it was also dismissed. Should he have put himself forward as a rescuer?

But the more important reason for not extending the law is that in my opinion the result would be quite unacceptable. I have used this word on a number of occasions and the time has come to explain what I mean. I do not mean that the burden of claims would be too great for the insurance market or the public funds, the two main sources for the payment of damages in tort. The Law Commission may have had this in mind when they said that removal of all the control mechanism would lead to an "unacceptable" increase in claims, since they described it as a "floodgates" argument. These are questions on which it is difficult to offer any concrete evidence and I am simply not in a position to form a view one way or the other. I am therefore willing to accept that, viewed against the total sums paid as damages for personal injury, the increase resulting from an extension of liability to helpers would be modest. But I think that such an extension would be unacceptable to the ordinary person because (though he might not put it this way) it would offend against his notions of distributive justice. He would think it unfair between one class of claimants and another, at best not treating like cases alike and, at worst, favouring the less deserving against the more deserving. He would think it wrong that policemen, even as part of a general class of persons who rendered assistance, should have the right to compensation for psychiatric injury out of public funds while the bereaved relatives are sent away with nothing.

To some extent this opinion would be based upon notions which the law would not accept. Many people feel that the statutory £7,500 (see s.1A of the Fatal Accidents Act 1976) is an inadequate payment to someone like Mr. Hicks, who lost his two daughters in such horrifying circumstances. óKóóKAnd on the other side of the comparison, there is the view that policemen must expect to encounter harrowing experiences in the course of their duties and that their conditions of employment provide for ill-health pensions and injury pensions if they suffer injuries, physical or psychiatric, which result in their having to leave the force before normal retirement age. There may be other reasons also, from which I do not exclude ignorance about the nature of mental illness, but, all in all, I have no doubt that most people would regard it as wrong to award compensation for psychiatric injury to the professionals and deny compensation for similar injury to the relatives.

It may be said that the common law should not pay attention these feelings about the relative merits of different classes of claimants. It should stick to principle and not concern itself with distributive justice. An extension of liability to rescuers and helpers would be a modest incremental development in the common law tradition and, as between these plaintiffs and these defendants, produce a just result. My Lords, I disagree. It seems to me that in this area of the law, the search for principle was called off in Alcock v. Chief Constable of South Yorkshire [1992] 1 A.C. 310. No one can pretend that the existing law, which your Lordships have to accept, is founded upon principle. I agree with Jane Stapleton's remark that: (see The Frontiers of Liability ed. Peter Birks, O.U.P. (1994) Volume 2, p. 87.

     "once the law has taken a wrong turning or otherwise fallen into an unsatisfactory internal state in relation to a particular case of action, incrementalism cannot provide the answer."

Consequently your Lordships are now engaged, not in the bold development of principle, but in a practical attempt, under adverse conditions, to preserve the general perception of the law as system of rules which is fair between one citizen and another.

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. This would be too great an affront to the idealised model of the law of torts as a system of corrective justice between equals. But 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 allow these appeals and dismiss the actions.


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