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	United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Alcock v Chief Constable of South Yorkshire [1991] UKHL 5 (28 November 1991) URL: http://www.bailii.org/uk/cases/UKHL/1991/5.html Cite as: [1991] UKHL 5, [1992] 1 AC 310, [1991] 4 All ER 907, [1992] AC 310

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Parliamentary Archives,
HL/PO/JU/18/251

Copoc and others (Appellants) v. Wright (sued as Chief

Constable of the South Yorkshire Police (Respondent)

Alcock and others (Appellants) v. Wright (sued as Chief

Constable of the South Yorkshire Police) (Respondent)

(Consolidated Appeals)

JUDGMENT

Die Jovis 28° Novembris 1991

Upon Report from the Appellate Committee to whom was
referred the Cause Alcock and others against Wright (sued as
Chief Constable of the South Yorkshire Police) and Copoc and
others against Wright (sued as Chief Constable of the South
Yorkshire Police), That the Committee had heard Counsel as
well on Monday the 7th as on Tuesday the 8th, Wednesday the
9th, Thursday the 10th and Monday the 14th days of October
last upon the Petitions and Appeals of Robert Alcock, of 5,
Hayes Drive, Melling, Merseyside; Catherine Marea Jones, of
9, Empress Close, Green Park, Maghull, Merseyside; Joseph
Kehoe, of 48, Blackhorse Lane, Liverpool; and Alexandra Penk,
of 58 Carr Lane, West Derby, Liverpool; and of Agnes and
Harold Copoc, of 4, Greenleigh Road, Mossley Hill, Allerton,
Liverpool; Brian Harrison, of 42, Kiln Croft, Brookvale,
Runcorn, Cheshire; Brenda Julie Hennessey, of 85, Stonedale
Crescent, Liverpool; Denise Hough, of 97, Bark Road,
Litherland, Liverpool; and Stephen Jones, of 53, Ashgrove,
Bradford, South Yorkshire praying that the matter of the
Orders set forth in the Schedule thereto, namely Orders of Her
Majesty's Court of Appeal of the 3rd day of May 1991, might be
reviewed before Her Majesty the Queen in Her Court of
Parliament and that the said Orders might be reversed, varied
or altered or that the Petitioners might have such other
relief in the premises as to Her Majesty the Queen in Her
Court of Parliament might seem meet; as upon the case of Peter
Wright lodged in answer to the said Appeals; which said
Appeals were by an Order of this House of the 1st day of July
1991 Consolidated; and due consideration had this day of what
was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Orders of Her Majesty's Court of
Appeal of the 3rd day of May 1991 complained of in the said
Appeals be, and the same are hereby, Affirmed, except insofar
as they relate to costs awarded against those plaintiffs who
were legally aided in that Court and who appealed to this
House; and that the said Petitions and Appeals be, and the
same are hereby, dismissed this House: And it is further
Ordered, That the costs of the respondent in this House, and
his costs in the Court of Appeal so far as there awarded
against those plaintiffs who were legally aided in that Court
and who appealed to this House, be paid out of the Legal Aid
Fund, such order to be suspended for four weeks to allow the
Legal Aid Board to object if they wish: And it is also
further Ordered, That the costs of the appellants be taxed in
accordance with the Legal Aid Act 1988.

Cler: Parliamentor:

Judgment: 28 November 1991

HOUSE OF LORDS

COPOC (A. P. ) AND OTHERS (A. P. )
(APPELLANTS)

v.

WRIGHT

(SUED AS CHIEF CONSTABLE OF THE SOUTH YORKSHIRE

POLICE)
(RESPONDENT)

and

ALCOCK (A. P. ) AND OTHERS (A. P. )
(APPELLANTS)

v.

WRIGHT
(SUED AS CHIEF CONSTABLE OF THE SOUTH YORKSHIRE

POLICE)
(RESPONDENT)

(CONSOLIDATED APPEALS)

Lord Keith of Kinkel
Lord Ackner
Lord Oliver of Aylmerton
Lord Jauncey of Tullichettle
Lord Lowry




LORD KEITH OF KINKEL




My Lords, the litigation with which these appeals are concerned arose out of the disaster at Hillsborough Stadium, Sheffield, which occurred on 15 April 1989. On that day a football match was arranged to be played at the stadium between the Liverpool and the Nottingham Forest football clubs. It was a semi-final of the F.A. Cup. The South Yorkshire police force, which was responsible for crowd control at the match, allowed an excessively large number of intending spectators to enter the ground at the Leppings Lane end, an area reserved for Liverpool supporters. They crammed into pens 3 and 4, below the West Stand, and in the resulting crush 95 people were killed and over 400 physically injured. Scenes from the ground were broadcast live on television from time to time during the course of the disaster, and recordings were broadcast later. The Chief Constable of South Yorkshire has admitted liability in negligence in respect of the deaths and physical injuries. Sixteen separate actions were brought against him by persons none of whom was present in the area where the disaster occurred, although four of them were elsewhere in the ground. All of them were connected in various ways with persons who were in that area, being related to such persons or, in one case, being a fiancée. In most cases the person with whom the plaintiff was concerned was killed, in other cases that person was injured, and in one case turned out to be uninjured. All the plaintiffs claimed damages for nervous shock resulting in psychiatric illness which they alleged was caused by the experiences inflicted on them by the disaster.

The actions came on for trial before Hidden J. on 19 June 1990, and he gave judgment on 31 July 1990, ante, pp. 314E et seq. That judgment was concerned with the question whether the defendant owed a duty of care in relation to nervous shock to any, and if so to which, of the plaintiffs. The defendant admitted that if he owed such a duty to any plaintiff, and if that plaintiff could show causation, then the defendant was in breach of duty and liable in damages to that plaintiff. For purposes of his judgment Hidden J. assumed in the case of each plaintiff that causation was established, leaving that matter to be dealt with, if necessary, in further proceedings. In the result, he found in favour of ten out of the sixteen plaintiffs before him and against six of them. The defendant appealed to the Court of Appeal in the cases of nine out of the ten successful plaintiffs, and the six unsuccessful plaintiffs also appealed to that court. On 3 May 1991 the Court of Appeal (Parker, Stocker and Nolan L.JJ.) gave judgment allowing the defendant's appeals in the cases of the nine formerly successful plaintiffs and rejecting the appeals of the six unsuccessful ones. Ten only of these fifteen plaintiffs now appeal to your Lordships' House, with leave granted in the Court of Appeal.

The circumstances affecting each of the 10 plaintiffs were thus summarised in the judgment of Parker L.J., ante, pp. 352-354:

"one, Brian Harrison, was at the ground. He was in the West Stand. He knew both of his brothers would be in the pens behind the goal. He saw the horrifying scene as it developed and realised that people in the two pens had been either killed or injured. When, six minutes after the start, the match was abandoned he tried to find his brothers. He failed to do so. He stopped up all night waiting for news. At 6 a.m. he learnt that his family were setting off for Sheffield. At 11 a.m. he was informed by telephone that both his brothers were dead ....

"Mr. and Mrs. Copoc lost their son. They saw the scenes on live television. Mrs. Copoc was up all night. She was informed by police officers at 6 a.m. that her son was dead. Mr. Copoc went to Sheffield at 4 a.m. with his nephew. He was informed at 6.10 a.m. of his son's death and later identified the body ....

"Brenda Hennessey lost her brother. She watched television from about 3.30 p.m. and, although she then realised there had been deaths and injuries in the pens, she was not worried because she believed her brother to be in a stand seat. However, at about 5 p.m. she learnt from her brother's wife that he had a ticket in the Leppings Lane terrace. At 6 p.m. she learnt from members of the family who had gone to Sheffield that her brother was dead.

"Denise Hough lost her brother. She was 11 years older than her brother and had fostered him for several years although he no longer lived with her. She knew he had a ticket at the Leppings Lane end and would be behind the goal. She was told by a friend that there was trouble at the game. She watched television. At 4.40 a.m. she was informed by her mother that her brother was dead. Two days later, on 17 April, she went with her mother to Sheffield and confirmed an earlier identification of the body. His face was bruised and swollen.

"Stephen Jones lost his brother. He knew that his brother was at the match. He watched television and saw bodies and believed them to be dead. He did not know his brother was dead until 2.45 a.m. when, having gone to the temporary mortuary at Hillsborough, he found his parents there in tears ....

"Robert Alcock lost his brother-in-law. He was in the West Stand, with his nephew, the brother-in-law's son. He witnessed the scenes from the West Stand and was sickened by what he saw but was not then concerned for his brother-in-law whom he believed to be in the stand because, on the way to the match, he had swapped a terrace ticket which he held for a stand ticket. Tragically, however, the brother-in-law had, unknown to the plaintiff, returned to the terrace. After the match the plaintiff left the ground for a rendezvous with the brother-in-law who did not arrive. He and his nephew became worried and searched without success. At about midnight they went to the mortuary where the plaintiff identified the body which was blue with bruising and the chest of which was red. The sight appalled him ....

"Catherine Jones lost a brother. She knew he was at the match and would normally be behind the goal. At 3.30 p.m. whilst shopping she heard that there was trouble at the match and at 4.30 p.m. that there were deaths. At 5.15 p.m. she went home and heard on the radio that the death toll was mounting. At 7 p.m. a friend telephoned from Sheffield to say that people at the hospital were describing someone who might be her brother. At 9 p.m. her parents set off for Sheffield. At 10 p.m. she watched recorded television in the hope of seeing her brother alive. She thought, mistakenly, she saw him collapsed on the pitch. At 5 a.m. her father returned from Sheffield and told her that her brother was dead.

"Joseph Kehoe lost a 14-year-old grandson, the son of his daughter and her divorced husband. Unknown to the grandfather the boy had gone to the match with his father. In the afternoon the plaintiff heard on the radio that there had been deaths at Hillsborough. He later saw scenes of the disaster on recorded television. He later still learnt that his grandson was at the match. He became worried. At 3 a.m. he was telephoned by another daughter to say that both the boy and his father were dead ....

"Alexandra Penk lost her fiancée, Carl Rimmer. They had known each other for four years and recently became engaged. They planned to marry in late 1989 or at the latest early in 1990. She knew he was at the match and would be on the Leppings Lane terraces. She saw television in her sister's house and knew instinctively that her fiancée was in trouble. She continued to watch in the hope of seeing him but did not do so. She was told at about 11 p.m. that he was dead."

The question of liability in negligence for what is commonly, if inaccurately, described as "nervous shock" has only twice been considered by this House, in Bourhill v. Young [1943] AC 92 and in McLoughlin v. O'Brian [1983] 1 AC 410. In the latter case the plaintiff, after learning of a motor accident involving her husband and three of her children about two hours after it had happened, went to the hospital where they had been taken. There she was told that one of the children had been killed, and saw her husband and the other two in a distressed condition and bearing on their persons the immediate effects of the accident. She claimed to have suffered psychiatric illness as a result of her experience, and at the trial of her action of damages against those responsible for the accident this was assumed to be the fact. This House, reversing the Court of Appeal, held that she was entitled to recover damages. The leading speech was delivered by Lord Wilberforce. Having set out, at pp. 418 and 419, the position so far reached in the decided cases on nervous shock, he expressed the opinion that foreseeability did not of itself and automatically give rise to a duty of care owned to a person or class of persons and that considerations of policy entered into the conclusion that such a duty existed. He then considered the arguments on policy which had led the Court of Appeal to reject the plaintiff's claim, and concluded, at p. 421, that they were not of great force. He continued, at pp. 421-423:

"But, these discounts accepted, there remains, in my opinion, just because 'shock' in its nature is capable of affecting so wide a range of people, a real need for the law to place some limitation upon the extent of admissible claims. It is necessary to consider three elements inherent in any claim: the class of persons whose claims should be recognised; the proximity of such persons to the accident; and the means by which the shock is caused. As regards the class of persons, the possible range is between the closest of family ties - of parent and child, or husband and wife - and the ordinary bystander. Existing law recognises the claims of the first: it denies that of the second, either on the basis that such persons must be assumed to be possessed of fortitude sufficient to enable them to endure the calamities of modern life, or that defendants cannot be expected to compensate the world at large. In my opinion, these positions are justifiable, and since the present case falls within the first class, it is strictly unnecessary to say more. I think, however, that it should follow that other cases involving less close relationships must be very carefully scrutinised. I cannot say that they should never be admitted. The closer the tie (not merely in relationship, but in care) the greater the claim for consideration. The claim, in any case, has to be judged in the light of the other factors, such as proximity to the scene in time and place, and the nature of the accident.

"As regards proximity to the accident, it is obvious that this must be close in both time and space. It is, after all, the fact and consequence of the defendant's negligence that must be proved to have caused the 'nervous shock.' Experience has shown that to insist on direct and immediate sight or hearing would be impractical and unjust and that under what may be called the 'aftermath' doctrine one who, from close proximity, comes very soon upon the scene should not be excluded ....

"Finally, and by way of reinforcement of 'aftermath' cases, I would accept, by analogy with 'rescue' situations, that a person of whom it could be said that one could expect nothing else than that he or she would come immediately to the scene - normally a parent or a spouse - could be regarded as being within the scope of foresight and duty. Where there is not immediate presence, account must be taken of the possibility of alterations in the circumstances, for which the defendant should not be responsible.

"Subject only to these qualifications, I think that a strict test of proximity by sight or hearing should be applied by the courts.

"Lastly, as regards communication, there is no case in which the law has compensated shock brought about by communication by a third party. In Hambrook v. Stokes Brothers [1925] 1 K.B. 141, indeed, it was said that liability would not arise in such a case and this is surely right. It was so decided in Abramzik v. Brenner (1967) 65 D.L.R. (2d) 651. The shock must come through sight or hearing of the event or of its immediate aftermath. Whether some equivalent of sight or hearing, e.g. through simultaneous television, would suffice may have to be considered."

Lord Bridge of Harwich, with whom Lord Scarman agreed, at p. 431D-E, appears to have rested his finding of liability simply on the test of reasonable foreseeability of psychiatric illness affecting the plaintiff as a result of the consequences of the road accident, at pp. 439-443. Lord Edmund-Davies and Lord Russell of Killowen both considered the policy arguments which had led the Court of Appeal to dismiss the plaintiff's claim to be unsound: pp. 428, 429. Neither speech contained anything inconsistent with that of Lord Wilberforce.

It was argued for the plaintiffs in the present case that reasonable foreseeability of the risk of injury to them in the particular form of psychiatric illness was all that was required to bring home liability to the defendant. In the ordinary case of direct physical injury suffered in an accident at work or elsewhere, reasonable foreseeability of the risk is indeed the only test that need be applied to determine liability. But injury by psychiatric illness is more subtle, as Lord Macmillan observed in Bourhill v. Young [1943] AC 92, 103. In the present type of case it is a secondary sort of injury brought about by the infliction of physical injury, or the risk of physical injury, upon another person. That can affect those closely connected with that person in various ways. One way is by subjecting a close relative to the stress and strain of caring for the injured person over a prolonged period, but psychiatric illness due to such stress and strain has not so far been treated as founding a claim in damages. So I am of the opinion that in addition to reasonable foreseeability liability for injury in the particular form of psychiatric illness must depend in addition upon a requisite relationship of proximity between the claimant and the party said to owe the duty. Lord Atkin in Donoghue v. Stevenson [1932] AC 562, 580 described those to whom a duty of care is owed as being:

"persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

The concept of a person being closely and directly affected has been conveniently labelled "proximity," and this concept has been applied in certain categories of cases, particularly those concerned with pure economic loss, to limit and control the consequences as regards liability which would follow if reasonable foreseeability were the sole criterion.

As regards the class of persons to whom a duty may be owed to take reasonable care to avoid inflicting psychiatric illness through nervous shock sustained by reason of physical injury or peril to another, I think it sufficient that reasonable foreseeability should be the guide. I would not seek to limit the class by reference to particular relationships such as husband and wife or parent and child. The kinds of relationshp which may involve close ties of love and affection are numerous, and it is the existence of such ties which leads to mental disturbance when the loved one suffers a catastrophe. They may be present in family relationships or those of close friendship, and may be stronger in the case of engaged couples than in that of persons who have been married to each other for many years. It is common knowledge that such ties exist, and reasonably foreseeable that those bound by them may in certain circumstances be at real risk of pyschiatric illness if the loved one is injured or put in peril. The closeness of the tie would, however, require to be proved by a plaintiff, though no doubt being capable of being presumed in appropriate cases. The case of a bystander unconnected with the victims of an accident is difficult. Psychiatric injury to him would not ordinarily, in my view, be within the range of reasonable foreseeability, but could not perhaps be entirely excluded from it if the circumstances of a catastrophe occurring very close to him were particularly horrific.

In the case of those within the sphere of reasonable foreseeability the proximity factors mentioned by Lord Wilberforce in McLoughlin v. O'Brian [1983] 1 AC 410, 422, must, however, be taken into account in judging whether a duty of care exists. The first of these is proximity of the plaintiff to the accident in time and space. For this purpose the accident is to be taken to include its immediate aftermath, which in McLoughlin's case was held to cover the scene at the hospital which was experienced by the plaintiff some two hours after the accident. In Jaensch v. Coffey (1984) 155 C.L.R. 549, the plaintiff saw her injured husband at the hospital to which he had been taken in severe pain before and between his undergoing a series of emergency operations, and the next day stayed with him in the intensive care unit and thought he was going to die. She was held entitled to recover damages for the psychiatric illness she suffered as a result. Deane J. said, at p. 608:

"the aftermath of the accident extended to the hospital to which the injured person was taken and persisted for so long as he remained in the state produced by the accident up to and including immediate post-accident treatment. ... Her psychiatric injuries were the result of the impact upon her of the facts of the accident itself and its aftermath while she was present at the aftermath of the accident at the hospital."

As regards the means by which the shock is suffered, Lord Wilberforce said in McLoughlin v. O'Brian [1983] 1 AC 410, 423 that it must come through sight or hearing of the event on or of its immediate aftermath. He also said that it was surely right that the law should not compensate shock brought about by communication by a third party. On that basis it is open to serious doubt whether Hevican v. Ruane [1991] 3 All E.R. 65 and Ravenscroft v. Rederiaktiebølaget Transatlantic [1991] 3 All E.R. 73 were correctly decided, since in both of these cases the effective cause of the psychiatric illness would appear to have been the fact of a son's death and the news of it.

Of the present plaintiffs two, Brian Harrison and Robert Alcock, were present at the Hillsborough ground, both of them in the West Stand, from which they witnessed the scenes in pens 3 and 4. Brian Harrison lost two brothers, while Robert Alcock lost a brother-in-law and identified the body at the mortuary at midnight. In neither of these cases was there any evidence of particularly close ties of love or affection with the brothers or brother-in-law. In my opinion the mere fact of the particular relationship was insufficient to place the plaintiff within the class of persons to whom a duty of care could be owed by the defendant as being foreseeably at risk of psychiatric illness by reason of injury or peril to the individuals concerned. The same is true of other plaintiffs who were not present at the ground and who lost brothers, or in one case a grandson. I would, however, place in the category to members of which risk of psychiatric illness was reasonably foreseeable Mr. and Mrs. Copoc, whose son was killed, and Alexandra Penk, who lost her fiancée. In each of these cases the closest ties of love and affection fall to be presumed from the fact of the particular relationship, and there is no suggestion of anything which might tend to rebut that presumption. These three all watched scenes from Hillsborough on television, but none of these depicted suffering of recognisable individuals, such being excluded by the broadcasting code of ethics, a position known to the defendant. In my opinion the viewing of these scenes cannot be equiparated with the viewer being within "sight or hearing of the event or of its immediate aftermath," to use the words of Lord Wilberforce [1983] 1 AC 410, 423B, nor can the scenes reasonably be regarded as giving rise to shock, in the sense of a sudden assault on the nervous system. They were capable of giving rise to anxiety for the safety of relatives known or believed to be present in the area affected by the crush, and undoubtedly did so, but that is very different from seeing the fate of the relative or his condition shortly after the event. The viewing of the television scenes did not create the necessary degree of proximity.

My Lords, for these reasons I would dismiss each of these appeals.

LORD ACKNER




My Lords, if sympathy alone were to be the determining factor in these claims, then they would never have been contested. It has been stressed throughout the judgments in the courts below and I would emphasise it yet again in your Lordships' House that the human tragedy which occurred on the afternoon of 15 April 1989 at the Hillsborough Stadium when 95 people were killed and more than 400 others received injuries from being crushed necessitating hospital treatment, remains an utterly appalling one.

It is, however, trite law that the defendant, the Chief Constable of South Yorkshire, is not an insurer against psychiatric illness occasioned by the shock sustained by the relatives or friends of those who died or were injured, or were believed to have died or to have been injured. This is, of course, fully recognised by the appellants, the plaintiffs in these actions, whose claims for damages to compensate them for their psychiatric illnesses are based upon the allegation that it was the defendant's negligence, that is to say his breach of his duty of care owed to them as well as to those who died or were injured in controlling the crowds at the stadium, which caused them to suffer their illnesses. The defendant, for the purposes of these actions, has admitted that he owed a duty of care only to those who died or were injured and that he was in breach of only that duty. He has further accepted that each of the plaintiffs has suffered some psychiatric illness. Moreover for the purpose of deciding whether the defendant is liable to pay damages to the plaintiffs in respect of their illnesses, the trial judge, Hidden J., made the assumption that the illnesses were caused by the shocks sustained by the plaintiffs by reason of their awareness of the events at Hillsborough. The defendant has throughout contested liability on the ground that, in all the circumstances, he was not in breach of any duty of care owed to the the plaintiffs.

Since the decision of your Lordships' House in McLoughlin v. O'Brian [1983] 1 AC 410, if not earlier, it is established law that (1) a claim for damages for psychiatric illness resulting from shock caused by negligence can be made without the necessity of the plaintiff establishing that he was himself injured or was in fear of personal injury; (2) a claim for damages for such illness can be made when the shock results: (a) from death or injury to the plaintiff's spouse or child or the fear of such death or injury and (b) the shock has come about through the sight or hearing of the event, or its immediate aftermath.

To succeed in the present appeals the plaintiffs seek to extend the boundaries of this cause of action by: (1) removing any restrictions on the categories of persons who may sue; (2) extending the means by which the shock is caused, so that it includes viewing the simultaneous broadcast on television of the incident which caused the shock; (3) modifying the present requirement that the aftermath must be "immediate."

A recital of the cases over the last century show that the extent of the liability for shock-induced psychiatric illness has been greatly expanded. This has largely been due to a better understanding of mental illness and its relation to shock. The extension of the scope of this cause of action sought in these appeals is not on any such ground but, so it is contended, by the application of established legal principles. Mr. Hytner for the plaintiffs relies substantially upon the speech of Lord Bridge of Harwich in McLoughlin v. O'Brian [1983] 1 AC 410, 431, and on the judgment of Brennan J. in the Australian High Court decision Jaensch v. Coffey, (1984) 155 C.L.R. 549, 558, for the proposition that the test for establishing liability is the unfettered application of the test of reasonable foreseeability - viz. whether the hypothetical reasonable man in the position of the defendant, viewing the position ex post facto, would say that the shock-induced psychiatric illness was reasonably foreseeable. Mr. Woodward for the defendant relies upon the opinion expressed by Lord Wilberforce supported by Lord Edmund-Davies in McLoughlin v. O'Brian [1983] 1 AC 410, 420F, that foreseeability does not of itself, and automatically, lead to a duty of care:

"foreseeability must be accompanied and limited by the law's judgment as to persons who ought, according to its standards of value or justice, to have been in contemplation."

He also relies on similar views expressed by Gibbs C.J. and Deane J. in Jaensch v. Coffey, (1984) 155 C.L.R. 549, 552, 578.

The nature of the cause of action




In Bourhill v. Young [1943] AC 92, 103, Lord Macmillan said:

"in the case of mental shock there are elements of greater subtlety than in the case of an ordinary physical injury and these elements may give rise to debate as to the precise scope of the legal liability."

It is now generally accepted that an analysis of the reported cases of nervous shock establishes that it is a type of claim in a category of its own. Shock is no longer a variant of physical injury but a separate kind of damage. Whatever may be the pattern of the future development of the law in relation to this cause of action, the following propositions illustrate that the application simpliciter of the reasonable foreseeability test is, today, far from being operative.

(1) Even though the risk of psychiatric illness is reasonably foreseeable, the law gives no damages if the psychiatric injury was not induced by shock. Psychiatric illnesses caused in other ways, such as by the experience of having to cope with the deprivation consequent upon the death of a loved one, attracts no damages. Brennan J. in Jaensch v. Coffey, (1984) 155 C.L.R. 549, 569, gave as examples, the spouse who has been worn down by caring for a tortiously injured husband or wife and who suffers psychiatric illness as a result, but who, nevertheless, goes without compensation; a parent made distraught by the wayward conduct of a brain-damaged child and who suffers psychiatric illness as a result also has no claim against the tortfeasor liable to the child.

(2) Even where the nervous shock and the subsequent psychiatric illness caused by it could both have been reasonably foreseen, it has been generally accepted that damages for merely being informed of, or reading, or hearing about the accident are not recoverable. In Bourhill v. Young [1943] AC 92, 103, Lord Macmillan only recognised the action lying where the injury by shock was sustained "through the medium of the eye or the ear without direct contact." Certainly Brennan J. in his judgment in Jaensch v. Coffey, (1984) 155 C.L.R. 549, 567, recognised:

"A psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception by the plaintiff of the distressing phenomenon is essential."

That seems also to have been the view of Bankes L.J. in Hambrook v. Stokes Brothers [1925] 1 K.B. 141, 152. I agree with my noble and learned friend, Lord Keith of Kinkel, that the validity of each of the recent decisions at first instance of Hevican v. Ruane [1991] 3 All E.R. 65 and Ravenscroft v. Rederiaktiebølaget Transatlantic [1991] 3 All E.R. 73 is open to serious doubt.

(3) Mere mental suffering, although reasonably foreseeable, if unaccompanied by physical injury, is not a basis for a claim for damages. To fill this gap in the law a very limited category of relatives are given a statutory right by the Administration of Justice Act 1982, section 3 inserting a new section 1A into the Fatal Accidents Act 1976, to bring an action claiming damages for bereavement.

(4) As yet there is no authority establishing that there is liability on the part of the injured person, his or her estate, for mere psychiatric injury which was sustained by another by reason of shock, as a result of a self-inflicted death, injury or peril of the negligent person, in circumstances where the risk of such psychiatric injury was reasonably foreseeable. On the basis that there must be a limit at some reasonable point to the extent of the duty of care owed to third parties which rests upon everyone in all his actions, Lord Robertson, the Lord Ordinary, in his judgment in the Bourhill case, 1941 S.C. 395, 399, did not view with favour the suggestion that a negligent window-cleaner who loses his grip and falls from a height, impaling himself on spiked railings, would be liable for the shock-induced psychiatric illness occasioned to a pregnant woman looking out of the window of a house situated on the opposite side of the street.

(5) "Shock," in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system.

I do not find it surprising that in this particular area of the tort of negligence, the reasonable foreseeability test is not given a free rein. As Lord Reid said in McKew v. Holland & Hannen & Cubitts (Scotland) Ltd.[1969] 3 All ER 1621, 1623:

"A defender is not liable for a consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee."

Deane J. pertinently observed in Jaensch v. Coffey, (1984) 155 C.L.R. 549, 583:

"Reasonable foreseeability on its own indicates no more than that such a duty of care will exist if, and to the extent that, it is not precluded or modified by some applicable overriding requirement or limitation. It is to do little more than to state a truism to say that the essential function of such requirements or limitations is to confine the existence of a duty to take reasonable care to avoid reasonably foreseeable injury to the circumstances or classes of case in which it is the policy of the law to admit it. Such overriding requirements or limitations shape the frontiers of the common law of negligence."

Although it is a vital step towards the establishment of liability, the satisfaction of the test of reasonable foreseeability does not, in my judgment, ipso facto satisfy Lord Atkin's well known neighbourhood principle enuniciated in Donoghue v. Stevenson [1932] AC 562, 580. For him to have been reasonably in contemplation by a defendant he must be:

"so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

The requirement contained in the words "so closely and directly affected ... that" constitutes a control upon the test of reasonable foreseeability of injury. Lord Atkin was at pains to stress, at pp. 580-582, that the formulation of a duty of care, merely in the general terms of reasonable foreseeability, would be too wide unless it were "limited by the notion of proximity" which was embodied in the restriction of the duty of care to one's "neighbour."

The three elements




Because "shock" in its nature is capable of affecting such a wide range of persons, Lord Wilberforce in McLoughlin v. O'Brian [1983] 1 AC 410, 422, concluded that there was a real need for the law to place some limitation upon the extent of admissible claims and in this context he considered that there were three elements inherent in any claim. It is common ground that such elements do exist and are required to be considered in connection with all these claims. The fundamental difference in approach is that on behalf of the plaintiffs it is contended that the consideration of these three elements is merely part of the process of deciding whether, as a matter of fact, the reasonable foreseeability test has been satisfied. On behalf of the defendant it is contended that these elements operate as a control or limitation on the mere application of the reasonable foreseeability test. They introduce the requirement of "proximity" as conditioning the duty of care.

The three elements are (1) the class of persons whose claims should be recognised; (2) the proximity of such persons to the accident - in time and space; (3) the means by which the shock has been caused.

I will deal with those three elements seriatim.

(1) The class of persons whose claim should be recognised

When dealing with the possible range of the class of persons who might sue, Lord Wilberforce in McLoughlin v. O'Brian [1983] 1 AC 410 contrasted the closest of family ties - parent and child and husband and wife - with that of the ordinary bystander. He said that while existing law recognises the claims of the first, it denied that of the second, either on the basis that such persons must be assumed to be possessed with fortitude sufficient to enable them to endure the calamities of modern life, or that defendants cannot be expected to compensate the world at large. He considered that these positions were justified, that other cases involving less close relationships must be very carefully considered, adding, at p. 422:

"The closer the tie (not merely in relationship, but in care) the greater the claim for consideration. The claim, in any case, has to be judged in the light of the other factors, such as proximity to the scene in time and place, and the nature of the accident."

I respectfully share the difficulty expressed by Atkin L.J. in Hambrook v. Stokes Brothers [1925] 1 K.B. 141, 158-159 - how do you explain why the duty is confined to the case of parent or guardian and child and does not extend to other relations of life also involving intimate associations; and why does it not eventually extend to bystanders? As regards the latter category, while it may be very difficult to envisage a case of a stranger, who is not actively and foreseeably involved in a disaster or its aftermath, other than in the role of rescuer, suffering shock-induced psychiatric injury by the mere observation of apprehended or actual injury of a third person in circumstances that could be considered reasonably foreseeable, I see no reason in principle why he should not, if in the circumstances, a reasonably strong-nerved person would have been so shocked. In the course of argument your Lordships were given, by way of an example, that of a petrol tanker careering out of control into a school in session and bursting into flames. I would not be prepared to rule out a potential claim by a passer-by so shocked by the scene as to suffer psychiatric illness.

As regards claims by those in the close family relationships referred to by Lord Wilberforce, the justification for admitting such claims is the presumption, which I would accept as being rebuttable, that the love and affection normally associated with persons in those relationships is such that a defendant ought reasonably to contemplate that they may be so closely and directly affected by his conduct as to suffer shock resulting in psychiatric illness. While as a generalisation more remote relatives and, a fortiori, friends, can reasonably be expected not to suffer illness from the shock, there can well be relatives and friends whose relationship is so close and intimate that their love and affection for the victim is comparable to that of the normal parent, spouse or child of the victim and should for the purpose of this cause of action be so treated. This was the opinion of Stocker L.J. in the instant appeal, ante, p. 376E-G, and also that of Nolan L.J. who thus expressed himself, ante, pp. 384-385:

"For my part, I would accept at once that no general definition is possible. But I see no difficulty in principle in requiring a defendant to contemplate that the person physically injured or threatened by his negligence may have relatives or friends whose love for him is like that of a normal parent or spouse, and who in consequence may similarly be closely and directly affected by nervous shock ... The identification of the particular individuals who come within that category, like that of the parents and spouses themselves, could only be carried out ex post facto, and would depend upon evidence of the 'relationship' in the broad sense which gave rise to the love and affection."

It is interesting to observe that when, nearly 50 years ago, the New South Wales legislature decided to extend liability for injury arising wholly or in part from "mental or nervous shock" sustained by a parent or husband or wife of the person killed, injured or put in peril, or any other member of the family of such person, it recognised that it was appropriate to extend significantly the definition of such categories of claimants. Section 4 (5) of the Law Reform (Miscellaneous Provisions) Act 1944 provides:

"'Member of the family' means the husband, wife, parent, child, brother, sister, half-brother or half-sister of the person in relation to whom the expression is used. 'Parent' includes father, mother, grandfather, grandmother, stepfather, stepmother and any person standing in loco parentis to another. 'Child' includes son, daughter, grandson, granddaughter, stepson, stepdaughter and any person to whom another stands in loco parentis."

Whether the degree of love and affection in any given relationship, be it that of relative or friend, is such that the defendant, in the light of the plaintiff's proximity to the scene of the accident in time and space and its nature, should reasonably have foreseen the shock-induced psychiatric illness, has to be decided on a case by case basis. As Deane J. observed in Jaensch v. Coffey, (1984) 155 C.L.R. 549, 601:

"While it must now be accepted that any realistic assessment of the reasonably foreseeable consequences of an accident involving actual or threatened serious bodily injury must, in an appropriate case, include the possibility of injury in the form of nervous shock being sustained by a wide range of persons not physically injured in the accident, the outer limits of reasonable foreseeability of mere psychiatric injury cannot be identified in the abstract or in advance. Much may depend upon the nature of the negligent act or omission, on the gravity or apparent gravity of any actual or apprehended injury and on any expert evidence about the nature and explanation of the particular psychiatric injury which the plaintiff has sustained."

(2) The proximity of the plaintiff to the accident

It is accepted that the proximity to the accident must be close both in time and space. Direct and immediate sight or hearing of the accident is not required. It is reasonably foreseeable that injury by shock can be caused to a plaintiff, not only through the sight or hearing of the event, but of its immediate aftermath.

Only two of the plaintiffs before us were at the ground. However, it is clear from McLoughlin v. O'Brian [1983] 1 AC 410 that there may be liability where subsequent identification can be regarded as part of the "immediate aftermath" of the accident. Mr. Alcock identified his brother-in-law in a bad condition in the mortuary at about midnight, that is some eight hours after the accident. This was the earliest of the identification cases. Even if this identification could be described as part of the "aftermath," it could not in my judgment be described as part of the immediate aftermath. McLoughlin's case was described by Lord Wilberforce as being upon the margin of what the process of logical progression from case to case would allow. Mrs. McLoughlin had arrived at the hospital within an hour or so after the accident. Accordingly in the post-accident identification cases before your Lordships there was not sufficient proximity in time and space to the accident.

(3) The means by which the shock is caused

Lord Wilberforce concluded that the shock must come through sight or hearing of the event or its immediate aftermath but specifically left for later consideration whether some equivalent of sight or hearing, e.g. through simultaneous television, would suffice: see p. 423. Of course it is common ground that it was clearly foreseeable by the defendant that the scenes at Hillsborough would be broadcast live and that amongst those who would be watching would be parents and spouses and other relatives and friends of those in the pens behind the goal at the Leppings Lane end. However he would also know of the code of ethics which the television authorities televising this event could be expected to follow, namely that they would not show pictures of suffering by recognisable individuals. Had they done so, Mr. Hytner accepted that this would have been a "novus actus" breaking the chain of causation between the defendant's alleged breach of duty and the psychiatric illness. As the defendant was reasonably entitled to expect to be the case, there were no such pictures. Although the television pictures certainly gave rise to feelings of the deepest anxiety and distress, in the circumstances of this case the simultaneous television broadcasts of what occurred cannot be equated with the "sight or hearing of the event or its immediate aftermath." Accordingly shocks sustained by reason of these broadcasts cannot found a claim. I agree, however, with Nolan L.J. that simultaneous broadcasts of a disaster cannot in all cases be ruled out as providing the equivalent of the actual sight or hearing of the event or its immediate aftermath. Nolan L.J. gave, ante, pp. 386G-387A, an example of a situation where it was reasonable to anticipate that the television cameras, whilst filming and transmitting pictures of a special event of children travelling in a balloon, in which there was media interest, particularly amongst the parents, showed the balloon suddenly bursting into flames. Many other such situations could be imagined where the impact of the simultaneous television pictures would be as great, if not greater, than the actual sight of the accident.

Conclusion




Only one of the plaintiffs, who succeeded before Hidden J., namely Brian Harrison, was at the ground. His relatives who died were his two brothers. The quality of brotherly love is well known to differ widely - from Cain and Abel to David and Jonathan. I assume that Mr. Harrison's relationship with his brothers was not an abnormal one. His claim was not presented upon the basis that there was such a close and intimate relationship between them, as gave rise to that very special bond of affection which would make his shock-induced psychiatric illness reasonably foreseeable by the defendant. Accordingly, the judge did not carry out the requisite close scrutiny of their relationship. Thus there was no evidence to establish the necessary proximity which would make his claim reasonably foreseeable and, subject to the other factors, to which I have referred, a valid one. The other plaintiff who was present at the ground, Robert Alcock, lost a brother-in-law. He was not, in my judgment, reasonably foreseeable as a potential sufferer from shock-induced psychiatric illness, in default of very special facts and none was established. Accordingly their claims must fail, as must those of the other plaintiffs who only learned of the disaster by watching simultaneous television. I, too, would therefore dismiss these appeals.

LORD OLIVER OF AYLMERTON




My Lords, in each of these appeals the question raised is whether the defendant is to be held responsible for psychiatric injury suffered by a plaintiff who was not himself or herself directly involved in the accident (for which, for present purposes, the defendant accepts responsibility) but who was connected to a victim by the bonds of an affectionate relationship such that he or she suffered extreme shock or anguish leading to the condition of which the plaintiff complains.

The tragic circumstances out of which the present appeals arise have already been set out in the speech of my noble and learned friend, Lord Keith of Kinkel, and no purpose would be served by repeating them. In each case damages are sought for psychiatric illness, which, for present purposes, must be assumed to have been caused by the nervous impact on the plaintiff of the death or injury of a primary victim with whom he or she had a strong bond of affection. In each case it is admitted for the purposes of these proceedings that the defendant was in breach of a tortious duty of care owed to the primary victim and that each plaintiff has suffered psychiatric illness. It is in issue whether the illness of which each plaintiff complains is causally attributable to the circumstances in which he or she became aware of the death of the primary victim. But such a causal link is assumed for the purposes of these appeals. What remains in issue is whether the defendant owed any duty in tort to the plaintiffs to avoid causing the type of injury of which each plaintiff complains. In essence this involves answering the twin questions of (a) whether injury of this sort to each particular plaintiff was a reasonably foreseeable consequence of the acts or omissions constituting the breach of duty to the primary victim and (b) whether there existed between the defendant and each plaintiff that degree of directness or proximity necessary to establish liability.

There is, to begin with, nothing unusual or peculiar in the recognition by the law that compensatable injury may be caused just as much by a direct assault upon the mind or the nervous system as by direct physical contact with the body. This is no more than the natural and inevitable result of the growing appreciation by modern medical science of recognisable causal connections between shock to the nervous system and physical or psychiatric illness. Cases in which damages are claimed for directly inflicted injuries of this nature may present greater difficulties of proof but they are not, in their essential elements, any different from cases where the damages claimed arise from direct physical injury and they present no very difficult problems of analysis where the plaintiff has himself been directly involved in the accident from which the injury is said to arise. In such a case he can be properly said to be the primary victim of the defendant's negligence and the fact that the injury which he sustains is inflicted through the medium of an assault on the nerves or senses does not serve to differentiate the case, except possibly in the degree of evidentiary difficulty, from a case of direct physical injury.

It is customary to classify cases in which damages are claimed for injury occasioned in this way under a single generic label as cases of "liability for nervous shock." This may be convenient but in fact the label is misleading if and to the extent that it is assumed to lead to a conclusion that they have more in common than the factual similarity of the medium through which the injury is sustained - that of an assault upon the nervous system of the plaintiff through witnessing or taking part in an event - and that they will, on account of this factor, provide a single common test for the circumstances which give rise to a duty of care. Broadly they divide into two categories, that is to say, those cases in which the injured plaintiff was involved, either mediately or immediately, as a participant, and those in which the plaintiff was no more than the passive and unwilling witness of injury caused to others. In the context of the instant appeals the cases of the former type are not particularly helpful, except to the extent that they yield a number of illuminating dicta, for they illustrate only a directness of relationship (and thus a duty) which is almost self-evident from a mere recital of the facts.

Thus, Dulieu v. White & Sons [1901] 2 KB 669 where the plaintiff was naturally and obviously put in fear for her own safety when a runaway vehicle broke through the front of the public house where she was employed, is, at any rate to modern eyes, a tolerably obvious case. Had she sustained bodily injury from the incursion there could never have been the slightest doubt about the defendant's liability and the fact that what brought about the injury was not an actual contact but the imminent threat to her personally posed by the defendant's negligence could make no difference to the result. As the person directly threatened, she was quite clearly in a sufficiently direct and proximate relationship with him. The principal interest of the case lies in the view expressed by Kennedy J., apparently following an earlier, unreported decision of Wright J., that illness caused by fear for the safety of anyone other than the plaintiff herself was not capable of grounding liability - a view clearly now unsustainable in the light of subsequent authority. The earlier Irish case of Bell v. Great Northern Railway Co. of Ireland (1890) 26 L.R.Ir. 428, where the plaintiff was personally threatened by a terrifying experience, was similarly a case where there was no difficulty at all in ascertaining the existence of a proximate relationship. There was, indeed, in that case, a contractual relationship as well, for the event occurred in the course of the carriage of the plaintiff as a passenger on the defendant's railway. So too Schneider v. Eisovitch [1960] 2 Q.B. 430, where the plaintiff was herself directly involved as a victim in the accident in which her husband was killed.

Into the same category, as it seems to me, fall the so called "rescue cases." It is well established that the defendant owes a duty of care not only to those who are directly threatened or injured by his careless acts but also to those who, as a result, are induced to go to their rescue and suffer injury in so doing. The fact that the injury suffered is psychiatric and is caused by the impact on the mind of becoming involved in personal danger or in scenes of horror and destruction makes no difference.

"Danger invites rescue. The cry of distress is the summons to relief ... the act, whether impulsive or deliberate, is the child of the occasion:" Wagner v. International Railway Co. (1921) 232 N.Y. 176, 180-181, per Cardozo J.

So in Chadwick v. British Railways Board [1967] 1 W.L.R. 912, the plaintiff recovered damages for the psychiatric illness caused to her deceased husband through the traumatic effects of his gallantry and self-sacrifice in rescuing and comforting victims of the Lewisham railway disaster.

These are all cases where the plaintiff has, to a greater or lesser degree, been personally involved in the incident out of which the action arises, either through the direct threat of bodily injury to himself or in coming to the aid of others injured or threatened. Into the same category, I believe, fall those cases such as Dooley v. Cammell Laird & Co. Ltd. [1951] 1 Lloyd's Rep. 271, Galt v. British Railways Board (1983) 133 N.L.J. 870, and Wigg v. British Railways Board, The Times, 4 February 1986, where the negligent act of the defendant has put the plaintiff in the position of being, or of thinking that he is about to be or has been, the involuntary cause of another's death or injury and the illness complained of stems from the shock to the plaintiff of the consciousness of this supposed fact. The fact that the defendant's negligent conduct has foreseeably put the plaintiff in the position of being an unwilling participant in the event establishes of itself a sufficiently proximate relationship between them and the principal question is whether, in the circumstances, injury of that type to that plaintiff was or was not reasonably foreseeable.

In those cases in which, as in the instant appeals, the injury complained of is attributable to the grief and distress of witnessing the misfortune of another person in an event by which the plaintiff is not personally threatened or in which he is not directly involved as an actor, the analysis becomes more complex. The infliction of injury on an individual, whether through carelessness or deliberation, necessarily produces consequences beyond those to the immediate victim. Inevitably the impact of the event and its aftermath, whether immediate or prolonged, is going to be felt in greater or lesser degree by those with whom the victim is connected whether by ties of affection, of blood relationship, of duty or simply of business. In many cases those persons may suffer not only injured feelings or inconvenience but adverse financial consequences as, for instance, by the need to care for the victim or the interruption or non-performance of his contractual obligations to third parties. Nevertheless, except in those cases which were based upon some ancient and now outmoded concepts of the quasi-proprietorial rights of husbands over their wives, parents over their children or employers over their menial servants, the common law has, in general, declined to entertain claims for such consequential injuries from third parties save possibly where loss has arisen from the necessary performance of a legal duty imposed on such party by the injury to the victim. Even the apparent exceptions to this, the old actions for loss of a husband's right to consortium and for loss of servitium of a child or menial servant, were abolished by the Administration of Justice Act 1982.

So, for instance, in Kirkham v. Boughey [1958] 2 Q.B. 338, a husband, whose wife had been severely injured in a road accident as a result of the defendant's negligence, failed to recover damages for a reduction in his earnings due to his having, because of his anxiety for his wife, declined to resume more remunerative employment abroad; although in that case Diplock J. was prepared to allow his claim for the expenses incurred in providing medical care for his wife on the ground that the plaintiff was under a legal duty to provide it. So too in Best v. Samuel Fox & Co. Ltd. [1952] A.C. 716, 734, Lord Morton of Henryton observed:

"it has never been the law of England that an invitor, who has negligently but unintentionally injured an invitee, is liable to compensate other persons who have suffered, in one way or another, as a result of the injury to the invitee. If the injured man was engaged in a business, and the injury is a serious one, the business may have to close down and the employees be dismissed; a daughter of the injured man may have to give up work which she enjoys and stay at home to nurse a father who has been transformed into an irritable invalid as a result of the injury. Such examples could be easily multiplied. Yet the invitor is under no liability to compensate such persons, for he owes them no duty and may not even know of their existence."

A fortiori the law will not compensate such a person for the mental anguish and even illness which may flow from having lost a wife, parent or child or from being compelled to look after an invalid, although there is a statutory exception to this where the victim dies as a result of the accident and the plaintiff is his widow or minor unmarried child. In such circumstances section 1A of the Fatal Accidents Act 1976 (substituted by section 3 of the Administration of Justice Act 1982) gives a limited right of compensation for bereavement.

Beyond this, however, the law in general provides no remedy, however severe the consequences of the distress or grief may be to the health or well-being of the third party and however close his relationship to the victim. I doubt whether the reason for this can be found by an appeal to logic, for there is, on the face of it, no readily discernible logical reason why he who carelessly inflicts an injury upon another should not be held responsible for its inevitable consequences not only to him who may conveniently be termed "the primary victim" but to others who suffer as a result. It cannot, I think, be accounted for by saying that such consequences cannot reasonably be foreseen. It is readily foreseeable that very real and easily ascertainable injury is likely to result to those dependent upon the primary victim or those upon whom, as a result of negligently inflicted injury, the primary victim himself becomes dependent. If one goes back to what may be regarded as the genesis of the modern law of tortious negligence - that is to say, the judgment of Sir Baliol Brett M.R. in Heaven v. Pender (1883) 11 Q.B.D. 503, 509 - there is nothing in it which necessarily limits the liability of the tortfeasor to compensating only the primary victim of the event. What was there postulated was a simple test of attributed foresight of that which the ordinary person, given the hypothetical situation of his pausing to think about the consequences before acting, would see to be a likely consequence of his conduct. That simple test, described by Lord Atkin in his classical exposition in Donoghue v. Stevenson [1932] AC 562, 580 as "demonstrably too wide" - as indeed it clearly was - was, however, refined by him into the more restricted "neighbour" test which introduced, in addition to the element of reasonable foreseeability, the essential but illusive concept of "proximity" or "directness." Citation of a principle so familiar may justly be described as trite but it is, I think, of critical importance in the context of the instant appeals.

The failure of the law in general to compensate for injuries sustained by persons unconnected with the event precipitated by a defendant's negligence must necessarily import the lack of any legal duty owed by the defendant to such persons. That cannot, I think, be attributable to some arbitrary but unenunciated rule of "policy" which draws a line as the outer boundary of the area of duty. Nor can it rationally be made to rest upon such injury being without the area of reasonable foreseeability. It must, as it seems to me, be attributable simply to the fact that such persons are not, in contemplation of law, in a relationship of sufficient proximity to or directness with the tortfeasor as to give rise to a duty of care, though no doubt "policy," if that is the right word, or perhaps more properly, the impracticability or unreasonableness of entertaining claims to the ultimate limits of the consequences of human activity, necessarily plays a part in the court's perception of what is sufficiently proximate.

What is more difficult to account for is why, when the law in general declines to extend the area of compensation to those whose injury arises only from the circumstances of their relationship to the primary victim, an exception has arisen in those cases in which the event of injury to the primary victim has been actually witnessed by the plaintiff and the injury claimed is established as stemming from that fact. That such an exception exists is now too well established to be called in question. What is less clear, however, is the ambit of the duty in such cases or, to put it another way, what is the essential characteristic of such cases that marks them off from those cases of injury to uninvolved persons in which the law denies any remedy for injury of precisely the same sort.

Although it is convenient to describe the plaintiff in such a case as a "secondary" victim, that description must not be permitted to obscure the absolute essentiality of establishing a duty owed by the defendant directly to him - a duty which depends not only upon the reasonable foreseeability of damage of the type which has in fact occurred to the particular plaintiff but also upon the proximity or directness of the relationship between the plaintiff and the defendant. The difficulty lies in identifying the features which, as between two persons who may suffer effectively identical psychiatric symptoms as a result of the impression left upon them by an accident, establish in the case of one who was present at or near the scene of the accident a duty in the defendant which does not exist in the case of one who was not. The answer cannot, I think, lie in the greater foreseeability of the sort of damage which the plaintiff has suffered. The traumatic effect on, for instance, a mother on the death of her child is as readily foreseeable in a case where the circumstances are described to her by an eye witness at the inquest as it is in a case where she learns of it at a hospital immediately after the event. Nor can it be the mere suddenness or unexpectedness of the event, for the news brought by a policeman hours after the event may be as sudden and unexpected to the recipient as the occurrence of the event is to the spectator present at the scene. The answer has, as it seems to me, to be found in the existence of a combination of circumstances from which the necessary degree of "proximity" between the plaintiff and the defendant can be deduced. And, in the end, it has to be accepted that the concept of "proximity" is an artificial one which depends more upon the court's perception of what is the reasonable area for the imposition of liability than upon any logical process of analogical deduction.

The common features of all the reported cases of this type decided in this country prior to the decision of Hidden J. in the instant case and in which the plaintiff succeeded in establishing liability are, first, that in each case there was a marital or parental relationship between the plaintiff and the primary victim; secondly, that the injury for which damages were claimed arose from the sudden and unexpected shock to the plaintiff's nervous system; thirdly, that the plaintiff in each case was either personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards; and, fourthly, that the injury suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim. Lastly, in each case there was not only an element of physical proximity to the event but a close temporal connection between the event and the plaintiff's perception of it combined with a close relationship of affection between the plaintiff and the primary victim. It must, I think, be from these elements that the essential requirement of proximity is to be deduced, to which has to be added the reasonable foreseeability on the part of the defendant that in that combination of circumstances there was a real risk of injury of the type sustained by the particular plaintiff as a result of his or her concern for the primary victim. There may, indeed, be no primary "victim" in fact. It is, for instance, readily conceivable that a parent may suffer injury, whether physical or psychiatric, as a result of witnessing a negligent act which places his or her child in extreme jeopardy but from which, in the event, the child escapes unharmed. I doubt very much, for instance, whether King v. Phillips [1953] 1 Q.B. 429, where a mother's claim for damages for shock caused by witnessing a near accident to her child was rejected, would be decided in the same way today in the light of later authorities. It would, for instance, have made no difference to the result in Hambrook v. Stokes Brothers [1925] 1 K.B. 141, if the plaintiff's child had not, as she did in fact, suffered any injury at all. In that case, the Court of Appeal, by a majority, held that a plaintiff who, while using the highway, had seen a runaway lorry which threatened, and indeed subsequently caused, injury to her child, was entitled to recover so long as the shock from which she claimed to be suffering was due to her own visual perception and not to what she had been subsequently told by third persons. The primary difficulty here was that of establishing the foreseeability of the injury which the plaintiff suffered rather than the proximity of her relationship to the defendant, who owed her the same duty as he owed to any other users of the highway. It is interesting to note, however, that Atkin L.J. (at p. 158) clearly contemplated the possibility of a successful action at the suit of a mere bystander given sufficiently horrifying circumstances. In Owens v. Liverpool Corporation [1939] 1 K.B. 394, mourners at a funeral, apparently relatives of the deceased, recovered damages for shock allegedly occasioned by negligence of the defendant's tram driver in damaging the hearse and upsetting the coffin. Although this lends support to the suggestion that such damages may be recoverable by a mere spectator, it is doubtful how far the case, which was disapproved by three members of this House in Bourhill v. Young [1943] AC 92, 100, 110 and 116, can be relied upon.

In Bourhill v. Young the pursuer was neither related to or known to the deceased cyclist, who was the victim of his own negligence, nor did she witness the accident, although she heard the crash from some 50 feet away and some time later saw blood on the road. She had no apprehension of injury to herself but simply sustained a nervous shock as a result of the noise of the collision. That injury sustained through nervous shock was capable of grounding a claim for damages was never in doubt, but the pursuer's claim failed because injury of that type to her was not within the area of the deceased's reasonable contemplation. The physical proximity of the pursuer to the point of collision was outside the area in which the deceased could reasonably have contemplated any injury to her and that answered both the question of whether there was reasonable foresight and whether there was any relationship with the deceased inferring a duty of care. The case is thus a good illustration of the coalescence of the two elements of reasonable foreseeability and proximity, but otherwise it affords little assistance in establishing any criterion for the degree of proximity which would establish the duty of care, save that it implies necessity for a closer degree of physical propinquity to the event than has been thought necessary in subsequent cases. It is, however, worth noting that the pursuer's claim was not dismissed in limine on the ground that she was no more than, at highest, a mere spectator.

Hinz v. Berry [1970] 2 Q.B. 40 was a case where the only issue was not recoverability of damages but the correct quantum in the particular circumstances. It is a useful illustration of the extreme difficulty of separating the compensatable injury arising from the presence of the plaintiff at the scene of an accident from the non-compensatable consequences flowing from the simple fact that the accident has occurred, but it is of little assistance otherwise, save for a hint in the judgment of Lord Denning M.R. that an award of damages for shock caused by the sight of an accident may be restricted to cases where the plaintiff is "a close relative."

The principal argument in the appeal has centred round the question whether, as the plaintiffs contend, the decision of this House in McLoughlin v. O'Brian [1983] 1 AC 410, establishes as the criterion of a duty owed by the defendants to the plaintiff a simple test of the foreseeability of injury of the type in fact sustained or whether, as the defendant maintains, that case imports also a necessary requirement, either as a matter of public policy or as a measure of proximity, of the existence of some close blood or marital relationship between the appellants and the victims of the negligent conduct. In that case the primary victims of the accident caused by the respondent's negligence were the husband and two children of the appellant, who were injured, and another child of hers who was killed. At the time of the accident she was some two miles away but she was taken about an hour later to the hospital where the injured were being treated and saw them in more or less the state in which they had been brought in. She claimed damages for the psychiatric injury which she alleged to be the result. The trial judge having held that the injury complained of was not reasonably foreseeable, his decision was upheld by the Court of Appeal [1981] Q.B. 599 on the rather different grounds (Stephenson L.J.) that although both the tests of reasonable foreseeability and proximity were satisfied, a duty of care was precluded by considerations of public policy and (Griffiths L.J.) that no duty was owed to those who are nowhere near the scene of an accident when it occurs. In this House, although the members of the Committee were unanimous in allowing the appeal the speeches displayed distinct differences of approach. All were agreed that actually witnessing or being present at or near the scene of an accident was not essential to ground liability in an appropriate case, but that the duty might equally be owed to one who comes upon the immediate aftermath of the event. Thus such a person, given always the reasonable foreseeability of the injury in fact sustained and of such persons witnessing it, may be within the area of proximity in which a duty of care may be found to exist.

The diversity of view arose at the next stage, that is to say that of ascertaining whether the relationship between the plaintiff and the primary victim was such as to support the existence of such a duty. That can be expressed in various ways. It may be asked whether, as a matter of the policy of the law, a relationship outside the categories of those in which liability has been established by past decisions can be considered sufficiently proximate to give rise to the duty, quite regardless of the question of foreseeability. Or it may be asked whether injury of the type with which these appeals are concerned can ever be considered to be reasonably foreseeable where the relationship between the plaintiff and the primary victim is more remote than that of an established category. Or, again, it may be asked whether, even given proximity and foreseeability, nevertheless the law must draw an arbitrary line at the boundary of the established category or some other wider or narrower category of relationships beyond which no duty will be deemed to exist. Lord Wilberforce, at p. 422, appears to have favoured the last of these three approaches, but found it, in the event, unnecessary to determine the boundary since the case then before the House concerned a claim within a category which had already been clearly established. He did not altogether close the door to an enlargement of the area of the possible duty but observed:

"other cases involving less close relationships must be very carefully scrutinised. I cannot say that they should never be admitted. The closer the tie (not merely in relationship, but in care) the greater the claim for consideration. The claim, in any case, has to be judged in the light of the other factors, such as proximity to the scene in time and place, and the nature of the accident."

In so far as this constituted an invitation to courts seized of similar problems in the future to draw lines determined by their perception of what public policy requires, it was an invitation accepted by Parker L.J. in the Court of Appeal in the instant case, ante, pp. 359H-360G. It was his view that liability should, as a matter of policy, determine at the relationship of parent or spouse and should be restricted to persons present at or at the immediate aftermath of the incident from which injury arose. The approach of Lord Edmund-Davies and Lord Russell of Killowen, as I read their speeches, was similar to that of Lord Wilberforce. On the other hand, Lord Bridge of Harwich, with whom Lord Scarman agreed, rejected an appeal to policy considerations as a justification for fixing arbitrary lines of demarcation of the duty in negligence. Lord Bridge propounded simply a criterion of the reasonable foreseeability by the defendant of the damage to the plaintiff which had occurred without necessarily invoking physical presence at or propinquity to the accident or its aftermath or any particular relationship to the primary victim as limiting factors, although, of course, clearly these elements would be important in the determination of what, on the facts of any given case, would be reasonably foreseeable. He expressed himself as in complete agreement with Tobriner J. in Dillon v. Legg (1968) 29 A.L.R. 3d 1316, 1326, that the existence of the duty must depend on reasonable foreseeability and

"must necessarily be adjudicated only upon a case-by-case basis. We cannot now predetermine defendant's obligation in every situation by a fixed category; no immutable rule can establish the extent of that obligation for every circumstance of the future."

Counsel for the plaintiffs and for the defendant respectively have invited your Lordships to accept or reject one or other of these two approaches on the footing that they represent mutually exclusive alternatives and to say on the one hand that the only criterion for the establishment of liability is the reasonable foreseeability of damage in accordance with the views expressed by Lord Bridge (which, it is urged, existed in the case of each of the plaintiffs) or, on the other hand, that liability must, as a matter of public policy, be decreed to stop at the case of a spouse or parent and in any event must be restricted to injury to a person who was physically present at the event or at its aftermath and witnessed one or the other.

My Lords, for my part, I have not felt able to accept either of these two extreme positions nor do I believe that the views expressed in McLoughlin v. O'Brian [1983] 1 AC 410, are as irreconcilable as has been suggested. If I may say so with respect, the views expressed by Lord Bridge are open to the criticism that, on their face, they entirely ignore the critical element of proximity to which reference has been made, taking us back to the "demonstrably too wide" proposition of Brett M.R. in Heaven v. Pender, 11 Q.B.D. 503. But the critical part played by this element is very clearly expressed by Lord Bridge himself in his speech in Caparo Industries Plc. v. Dickman [1990] 2 AC 605, 618, 621, 623, and I do not believe for one moment that, in expressing his view with regard to foreseeability in McLoughlin v. O'Brian [1983] 1 AC 410, he was overlooking that element which is, after all, implicit in any discussion of tortious negligence based upon Lord Atkin's classical statement of principle, or was doing more than meeting the argument which had been advanced that, even given foreseeability, an immutable line either had been or ought to be drawn by the law at the furthest point reached by previously decided cases. Equally, I do not read Lord Wilberforce (whose remarks in this context were, in any event, obiter since the question of fixing lines of demarcation by reference to public policy did not in fact arise) as excluding altogether a pragmatic approach to claims of this nature. In any event, there is in many cases, as for instance cases of direct physical injury in a highway accident, an almost necessary coalescence of the twin elements of foreseeability and proximity, the one flowing from the other. But where such convergence is not self evident, the question of proximity requires separate consideration. In deciding it the court has reference to no defined criteria and the decision necessarily reflects to some extent the court's concept of what policy - or perhaps common sense - requires.

My Lords, speaking for myself, I see no logic and no virtue in seeking to lay down as a matter of "policy" categories of relationship within which claims may succeed and without which they are doomed to failure in limine. So rigid an approach would, I think, work great injustice and cannot be rationally justified. Obviously a claim for damages for psychiatric injury by a remote relative of the primary victim will factually require most cautious scrutiny and faces considerable evidentiary difficulties. Equally obviously, the foreseeability of such injury to such a person will be more difficult to establish than similar injury to a spouse or parent of the primary victim. But these are factual difficulties and I can see no logic and no policy reason for excluding claims by more remote relatives. Suppose, for instance, that the primary victim has lived with the plaintiff for 40 years, both being under the belief that they are lawfully married. Does she suffer less shock or grief because it is subsequently discovered that their marriage was invalid? The source of the shock and distress in all these cases is the affectionate relationship which existed between the plaintiff and the victim and the traumatic effect of the negligence is equally foreseeable, given that relationship, however the relationship arises. Equally, I would not exclude the possibility envisaged by my noble and learned friend, Lord Ackner, of a successful claim, given circumstances of such horror as would be likely to traumatise even the most phlegmatic spectator, by a mere bystander. That is not, of course, to say that the closeness of the relationship between plaintiff and primary victim is irrelevant, for the likelihood or unlikelihood of a person in that relationship suffering shock of the degree claimed from the event must be a most material factor to be taken into account in determining whether that consequence was reasonably foreseeable. In general, for instance, it might be supposed that the likelihood of trauma of such a degree as to cause psychiatric illness would be less in the case of a friend or a brother-in-law than in that of a parent or fiancée.

But in every case the underlying and essential postulate is a relationship of proximity between plaintiff and defendant and it is this, as it seems to me, which must be the determining factor in the instant appeals. No case prior to the hearing before Hidden J. from which these appeals arise has countenanced an award of damages for injuries suffered where there was not at the time of the event a degree of physical propinquity between the plaintiff and the event caused by the defendant's breach of duty to the primary victim nor where the shock sustained by the plaintiff was not either contemporaneous with the event or separated from it by a relatively short interval of time. The necessary element of proximity between plaintiff and defendant is furnished, at least in part, by both physical and temporal propinquity and also by the sudden and direct visual impression on the plaintiff's mind of actually witnessing the event or its immediate aftermath. To use Lord Wilberforce's words in McLoughlin's case [1983] 1 AC 410, 422-423:

"As regards proximity to the accident, it is obvious that this must be close in both time and space. ... The shock must come through sight or hearing of the event or of its immediate aftermath."

Grief, sorrow, deprivation and the necessity for caring for loved ones who have suffered injury or misfortune must, I think, be considered as ordinary and inevitable incidents of life which, regardless of individual susceptibilities, must be sustained without compensation. It would be inaccurate and hurtful to suggest that grief is made any the less real or deprivation more tolerable by a more gradual realisation, but to extend liability to cover injury in such cases would be to extend the law in a direction for which there is no pressing policy need and in which there is no logical stopping point. In my opinion, the necessary proximity cannot be said to exist where the elements of immediacy, closeness of time and space, and direct visual or aural perception are absent. I would agree with the view expressed by Nolan L.J. that there may well be circumstances where the element of visual perception may be provided by witnessing the actual injury to the primary victim on simultaneous television, but that is not the case in any of the instant appeals and I agree with my noble and learned friend, Lord Keith of Kinkel, that, for the reasons which he gives, the televised images seen by the various plaintiffs cannot be equiparated with "sight or hearing of the event." Nor did they provide the degree of immediacy required to sustain a claim for damages for nervous shock. That they were sufficient to give rise to worry and concern cannot be in doubt, but in each case other than those of Brian Harrison and Robert Alcock, who were present at the ground, the plaintiff learned of the death of the victim at secondhand and many hours later. As I read the evidence, the shock in each case arose not from the original impact of the transmitted image which did not, as has been pointed out, depict the suffering of recognisable individuals. These images provided no doubt the matrix for imagined consequences giving rise to grave concern and worry, followed by a dawning consciousness over an extended period that the imagined consequence had occurred, finally confirmed by news of the death and, in some cases, subsequent visual identification of the victim. The trauma is created in part by such confirmation and in part by the linking in the mind of the plaintiff of that confirmation to the previously absorbed image. To extend the notion of proximity in cases of immediately created nervous shock to this more elongated and, to some extent, retrospective process may seem a logical analogical development. But, as I shall endeavour to show, the law in this area is not wholly logical and whilst having every sympathy with the plaintiffs, whose suffering is not in doubt and is not to be underrated, I cannot for my part see any pressing reason of policy for taking this further step along a road which must ultimately lead to virtually limitless liability. Whilst, therefore, I cannot, for the reasons which I have sought to explain, accept Mr. Woodward's submission that it is for your Lordships to lay down, on grounds of public policy, an arbitrary requirement of the existence of a particular blood or marital relationship as a pre-condition of liability, I equally believe that further pragmatic extensions of the accepted concepts of what constitutes proximity must be approached with the greatest caution. McLoughlin v. O'Brian [1983] 1 AC 410 was a case which itself represented an extension not, as I think, wholly free from difficulty and any further widening of the area of potential liability to cater for the expanded and expanding range of the media of communication ought, in my view, to be undertaken rather by Parliament, with full opportunity for public debate and representation, than by the process of judicial extrapolation.

In the case of both Brian Harrison and Robert Alcock, although both were present at the ground and saw scenes which were obviously distressing and such as to cause grave worry and concern, their perception of the actual consequences of the disaster to those to whom they were related was again gradual. In my judgment, the necessary proximity was lacking in their cases too, but I also agree with my noble and learned friend, Lord Keith of Kinkel, that there is also lacking the necessary element of reasonable foreseeability. Accordingly, I too would dismiss the appeals and it follows from what I have said that I agree that the correctness of the decisions in Hevican v. Ruane [1991] 3 All E.R. 65 and Ravenscroft v. Rederiaktiebølaget Transatlantic [1991] 3 All E.R. 73 must be seriously doubted.

I would only add that I cannot, for my part, regard the present state of the law as either entirely satisfactory or as logically defensible. If there exists a sufficient degree of proximity to sustain a claim for damages for nervous shock, why it may be justifiably be asked, does not that proximity also support that perhaps more easily foreseeable loss which the plaintiff may suffer as a direct result of the death or injury from which the shock arises. That it does not is, I think, clear from Hinz v. Berry [1970] 2 Q.B. 40 (see particularly the judgment of Lord Pearson, at p. 44). But the reason why it does not has, I think, to be found not in logic but in policy. Whilst not dissenting from the case-by-case approach advocated by Lord Bridge in McLoughlin's case, the ultimate boundaries within which claims for damages in such cases can be entertained must I think depend in the end upon considerations of policy. For example, in his illuminating judgment in Jaensch v. Coffey, (1984) 155 C.L.R. 549, Deane J. expressed the view that no claim could be entertained as a matter of law in a case where the primary victim is the negligent defendant himself and the shock to the plaintiff arises from witnessing the victim's self-inflicted injury. The question does not, fortunately, fall to be determined in the instant case, but I suspect that an English court would be likely to take a similar view. But if that be so, the limitation must be based upon policy rather than upon logic for the suffering and shock of a wife or mother at witnessing the death of her husband or son is just as immediate, just as great and just as foreseeable whether the accident be due to the victim's own or to another's negligence and if the claim is based, as it must be, on the combination of proximity and foreseeability, there is certainly no logical reason why a remedy should be denied in such a case. Indeed, Mr. Hytner, for the plaintiffs, has boldly claimed that it should not be. Take, for instance, the case of a mother who suffers shock and psychiatric injury through witnessing the death of her son when he negligently walks in front of an oncoming motor car. If liability is to be denied in such a case such denial can only be because the policy of the law forbids such a claim, for it is difficult to visualise a greater proximity or a greater degree of forseeability. Moreover, I can visualise great difficulty arising, if this be the law, where the accident, though not solely caused by the primary victim has been materially contributed to by his negligence. If, for instance, the primary victim is himself 75 per cent. responsible for the accident, it would be a curious and wholly unfair situation if the plaintiff were enabled to recover damages for his or her traumatic injury from the person responsible only in a minor degree whilst he in turn remained unable to recover any contribution from the person primarily responsible since the latter's negligence vis-à-vis the plaintiff would not even have been tortious. Policy considerations such as this could, I cannot help feeling, be much better accommodated if the rights of persons injured in this way were to be enshrined in and limited by legislation as they have been in the Australian statute law to which my noble and learned friend, Lord Ackner, has referred.

LORD JAUNCEY OF TULLICHETTLE




My Lords, for some 90 years it has been recognised that nervous shock sustained independently of physical injury and resulting in psychiatric illness can give rise to a claim for damages in an action founded on negligence. The law has developed incrementally. In Dulieu v. White & Sons [1901] 2 KB 669, a plaintiff who suffered nervous shock as a result of fears for her own safety caused by the defendant's negligence was held to have a cause of action. However Kennedy J. said, at p. 675, that if nervous shock occasioned by negligence was to give a cause of action it must arise "from a reasonable fear of immediate personal injury to oneself." In Hambrook v. Stokes Brothers [1925] 1 K.B. 141, Kennedy J.'s foregoing limitation was disapproved by the majority of the Court of Appeal who held that a mother who had sustained nervous shock as a result of fear for the safety of her three children due to the movement of an unmanned lorry had a cause of action against the owner of the lorry. Until 1983 however there had in England been no case in which a plaintiff had been able to recover damages for nervous shock when the event giving rise to the shock had occurred out of sight and out of earshot. I use the word "event" as including the accident and its immediate aftermath. In McLoughlin v. O'Brian [1983] 1 AC 410, a wife and a mother suffered nervous shock after seeing her husband and children in a hospital to which they had been taken after a road accident. The wife was not present at the locus but reached the hospital before her husband and son and daughter had been cleaned up and when they were all very distressed. This was the first case in the United Kingdom in which a plaintiff who neither saw nor heard the accident nor saw its aftermath at the locus successfully claimed damages for nervous shock. These appeals seek to extend further the circumstances in which damages for nervous shock may be recovered.

I start with the proposition that the existence of a duty of care on the part of the defendant does not depend on foreseeability alone. Reasonable foreseeability is subject to controls. In support of this proposition I rely on the speech of Lord Wilberforce in McLoughlin v. O'Brian [1983] 1 AC 410, 420F-421A and on the carefully reasoned judgment of Deane J. in the High Court of Australia in Jaensch v. Coffey, (1984) 155 C.L.R. 549, 578-586. In a case of negligence causing physical injury to an employee or to a road user reasonable foreseeability may well be the only criterion by which liability comes to be judged. However in the case of negligence causing shock different considerations apply because of the wide range of people who may be affected. For this reason Lord Wilberforce said in McLoughlin v. O'Brian [1983] 1 AC 410, 421-422:

"there remains ... a real need for the law to place some limitation upon the extent of admissible claims. It is necessary to consider three elements inherent in any claim: the class of persons whose claims should be recognised; the proximity of such persons to the accident; and the means by which the shock is caused."

The class of persons with recognisable claims will be determined by the law's approach as to who ought according to its standards of value and justice to have been in the defendant's contemplation: again McLoughlin v. O'Brian, per Lord Wilberforce, at p. 420F. The requisite element of proximity in the relation of the parties also constitutes an important control on the test of reasonable foreseeability: Jaensch v. Coffey, (1984) 155 C.L.R. 549, 578-586, per Deane J. The means by which the shock is caused constitutes a third control, although in these appeals I find it difficult to separate this from proximity.

The present position in relation to recognisable claims is that parents and spouses have been held entitled to recover for shock caused by fear for the safety of their children or the other spouse. No remoter relative has successfully claimed in the United Kingdom. However a rescuer and a crane driver have recovered damages for nervous shock sustained as a result of fear for the safety of others in circumstances to which I must now advert.

In Dooley v. Cammell Laird & Co. Ltd.[1951] 1 Lloyd's Rep. 271, Donovan J. awarded damages to a crane driver who suffered nervous shock when a rope connecting a sling to the crane hooks snapped causing the load to fall into the hold of a ship in which men were working. The nervous shock resulted from the plaintiff's fear that the falling load would injure or kill some of his fellow workmen. Donovan J. drew the inference that the men in the hold were friends of the plaintiff and later stated, at p. 277:

"Furthermore, if the driver of the crane concerned fears that the load may have fallen upon some of his fellow workmen, and that fear is not baseless or extravagant, then it is, I think, a consequence reasonably to have been foreseen that he may himself suffer a nervous shock."

Although Donovan J. treated the matter simply as one of reasonable foreseeability, I consider that the case was a very special one. Unlike the three cases to which I have referred in which the plaintiff was merely an observer of the accident or its immediate aftermath, Dooley was operating the crane and was therefore intimately involved in, albeit in no way responsible for, the accident. In these circumstances the defendants could readily have foreseen that he would be horrified and shocked by the failure of the rope and the consequent accident which he had no power to prevent. I do not consider that this case is of assistance where, as here, the plaintiffs were not personally involved in the disaster. In Chadwick v. British Railways Board [1967] 1 W.L.R. 912, the plaintiff recovered damages for nervous shock sustained as a result of his prolonged rescue efforts at the scene of a serious railway accident which had occurred near his home. The shock was caused neither by fear for his own safety nor for that of close relations. The position of the rescuer was recognised by Cardozo J. in Wagner v. International Railway Co., 232 N.Y. 176, 180:

"Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognises them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer."

Lord Wilberforce in McLoughlin v. O'Brian [1983] 1 AC 410, 419B considered that the principle of rescuers ought to be accepted. This is a particular instance where the law not only considers that the individual responsible for an accident should foresee that persons will come to the rescue and may be shocked by what they see but also considers it appropriate that he should owe to them a duty of care. I do not however consider that either of these cases justify the further development of the law sought by the plaintiffs.

Of the six plaintiffs who were successful before Hidden J. only one, who lost two brothers, was present at the ground. The others saw the disaster on television, two of them losing a son and the remaining three losing brothers. Of the four plaintiffs who were unsuccessful before the judge, one who lost his brother-in-law was at the ground, one who lost her fiance saw the disaster on television, another who lost her brother heard initial news while shopping and more details on the wireless during the evening and a third who lost a grandson heard of the disaster on the wireless and later saw a recorded television programme. Thus all but two of the plaintiffs were claiming in respect of shock resulting from the deaths of persons outside the categories of relations so far recognised by the law for the purposes of this type of action. It was argued on their behalf that the law has never excluded strangers to the victim from claiming for nervous shock resulting from the accident. In support of this proposition the plaintiffs relied on Dooley v. Cammell Laird & Co. Ltd. and Chadwick v. British Railways Board as well as upon the following passage from the judgment of Atkin L.J. in Hambrook v. Stokes Brothers [1925] 1 K.B. 141, 157:

"Personally I see no reason for excluding the bystander in the highway who receives injury in the same way from apprehension of or the actual sight of injury to a third party."

However the suggested inclusion of the bystander has not met with approval in this House. In Bourhill v. Young [1943] AC 92, 117, Lord Porter said:

"It is not every emotional disturbance or every shock which should have been foreseen. The driver of a car or vehicle, even though careless, is entitled to assume that the ordinary frequenter of the streets has sufficient fortitude to endure such incidents as may from time to time be expected to occur in them, including the noise of a collision and the sight of injury to others, and is not to be considered negligent towards one who does not possess the customary phlegm."

In McLoughlin v. O'Brian [1983] 1 AC 410 Lord Wilberforce said, at p. 422, that existing law denied the claims of the ordinary bystander:

"either on the basis that such persons must be assumed to be possessed of fortitude sufficient to enable them to endure the calamities of modern life, or that defendants cannot be expected to compensate the world at large."

While it is not necessary in these appeals to determine where stands the ordinary bystander I am satisified that he cannot be prayed in aid by the plaintiffs.

Should claims for damages for nervous shock in circumstances such as the present be restricted to parents and spouses or should they be extended to other relatives and close friends and, if so, where, if at all, should the line be drawn? In McLoughlin v. O'Brian Lord Wilberforce in the context of the class of persons whose claim should be recognised said:

"As regards the class of persons, the possible range is between the closest of family ties - of parent and child, or husband and wife - and the ordinary bystander. Existing law recognises the claims of the first: it denies that of the second ... In my opinion, these positions are justifiable, and since the present case falls within the first class, it is strictly unnecessary to say more. I think, however, that it should follow that other cases involving less close relationships must be very carefully scrutinised. I cannot say that they should never be admitted. The closer the tie (not merely in relationship, but in care) the greater the claim for consideration. The claim, in any case, has to be judged in the light of the other factors, such as proximity to the scene in time and place, and the nature of the accident."

I would respectfully agree with Lord Wilberforce that cases involving less close relatives should be very carefully scrutinised. That, however, is not to say they must necessarily be excluded. The underlying logic of allowing claims of parents and spouses is that it can readily be foreseen by the tortfeasor that if they saw or were involved in the immediate aftermath of a serious accident or disaster they would, because of their close relationship of love and affection with the victim be likely to suffer nervous shock. There may, however, be others whose ties of relationship are as strong. I do not consider that it would be profitable to try and define who such others might be or to draw any dividing line between one degree of relationship and another. To draw such a line would necessarily be arbitrary and lacking in logic. In my view the proper approach is to examine each case on its own facts in order to see whether the claimant has established so close a relationship of love and affection to the victim as might reasonably be expected in the case of spouses or parents and children. If the claimant has so established and all other requirements of the claim are satisfied he or she will succeed since the shock to him or her will be within the reasonable contemplation of the tortfeasor. If such relationship is not established the claim will fail. I turn to the question of proximity which arises in the context of those plaintiffs who saw the disaster on television either contemporaneously or in later recorded transmissions and of those who identified their loved ones in the temporary mortuary some nine or more hours after the disaster had taken place. I refer once again to a passage in the speech of Lord Wilberforce in McLoughlin v. O'Brian, at p. 422:

"As regards proximity to the accident, it is obvious that this must be close in both time and space. It is, after all, the fact and consequence of the defendant's negligence that must be proved to have caused the 'nervous shock.' Experience has shown that to insist on direct and immediate sight or hearing would be impractical and unjust and that under what may be called the 'aftermath' doctrine one who, from close proximity, comes very soon upon the scene should not be excluded. In my opinion, the result in Benson v. Lee [1972] V.R. 879 was correct and indeed inescapable. It was based, soundly, upon 'direct perception of some of the events which go to make up the accident as an entire event, and this includes ... the immediate aftermath ...' (p. 880)"

Lord Wilberforce expressed the view, at p. 422H, that a "strict test of proximity by sight or hearing should be applied by all courts." Later, he said, at p. 423:

"The shock must come through sight or hearing of the event or of its immediate aftermath. Whether some equivalent of sight or hearing, e.g. through simultaneous television, would suffice may have to be considered."

My Lords, although Lord Wilberforce in McLoughlin v. O'Brian did not close the door to shock coming from the sight of simultaneous television I do not consider that a claimant who watches a normal television programme which displays events as they happen satisfies the test of proximity. In the first place a defendant could normally anticipate that in accordance with current television broadcasting guidelines shocking pictures of persons suffering and dying would not be transmitted. In the second place, a television programme such as that transmitted from Hillsborough involves cameras at different viewpoints showing scenes all of which no one individual would see, edited pictures and a commentary superimposed. I do not consider that such a programme is equivalent to actual sight or hearing at the accident or its aftermath. I say nothing about the special circumstances envisaged by Nolan L.J. in his judgment in this case, ante, pp. 386G-387A. If a claimant watching a simultaneous television broadcast does not satisfy the requirements of proximity it follows that a claimant who listens to the wireless or sees a subsequent television recording falls even further short of the requirement.

What constitutes the immediate aftermath of an accident must necessarily depend upon the surrounding circumstances. To essay any comprehensive definition would be a fruitless exercise. In McLoughlin v. O'Brian the immediate aftermath extended to a time somewhat over an hour after the accident and to the hospital in which the victims were waiting to be attended to. It appears that they were in very much the same condition as they would have been had the mother found them at the scene of the accident. In these appeals the visits to the mortuary were made no earlier than nine hours after the disaster and were made not for the purpose of rescuing or giving comfort to the victim but purely for the purpose of identification. This seems to me to be a very different situation from that in which a relative goes within a short time after an accident to rescue or comfort a victim. I consider that not only the purpose of the visits to the mortuary but also the times at which they were made take them outside the immediate aftermath of this disaster.

Only two plaintiffs, Mr. and Mrs. Copoc, lost a son, but they saw the disaster on television and Mr. Copoc identified the body on the following morning having already been informed that his son was dead. No plaintiff lost a spouse. None of the other plaintiffs who lost relatives sought to establish that they had relationships of love and affection with a victim comparable to that of a spouse or parent. In any event only two of them were present in the ground and the remainder saw the scenes on simultaneous or recorded television. In these circumstances none of the plaintiffs having satisfied both the tests of reasonable foreseeability and of proximity I would dismiss all the appeals.

LORD LOWRY




My Lords, I have enjoyed the advantage of reading in draft the speeches of your Lordships, all of whom have reached the same conclusion, namely, that these appeals should be dismissed. Concurring as I do in that conclusion, I do not consider that it would be helpful to add further observations of my own to what has already been said by your Lordships.