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Alcock and Others -v- Chief Constable of South Yorkshire Police

Court: Queen's Bench Division

Date: 31 July 1990

Coram: Mr Justice Hidden

References: [1991] 2 WLR 814]


31 July. Hidden J. read the following judgment. Just over 15 months ago on Saturday, 15 April 1989, a football match was to be played at Hillsborough Stadium, the ground of Sheffield Wednesday Football Club. Though it was their ground the match did not involve their team, but was to be played between Liverpool and Nottingham Forest Football Clubs. It was a semi-final of the F.A. Cup, and therefore had to be played on a neutral ground.

Simply because it was a semi-final, and because of the support attracted by the two particular clubs, it was a match which was bound to attract a great deal of interest. It was a sell-out as an all ticket match; it was also to be televised by the B.B.C. later in the evening.

The match that afternoon was begun but not finished. It began shortly after 3 p.m. The players had been on the pitch for a little under six minutes when the match kicked off, and ironically they had only played for just the same period - a little under six minutes - when the match was stopped. A superintendent of police, Mr. Greenwood, ran on to the pitch to the referee who brought the game to a halt.

The tragic reason for the stopping of the game is now common knowledge. The press of people in the Leppings Lane pens had created such intense pressure that some spectators were becoming trapped. They were unable to move voluntarily in any direction, and were losing the ability to breathe. Spectators in pens 3 and 4 were receiving crushing injuries from the forces being exerted on their bodies. From such injuries the horrifying total of 95 people were to die, and more than 400 others were to need hospital treatment. Still more, to be counted in their thousands, were luckier in that they were not to be injured but were, nonetheless, caught up in the events as spectators present at, and involved in, the disaster.

Still more - this time to be counted in millions who were not at the scene - were to witness what was happening in live broadcasts through the medium of their television screens, or were to hear on their radios what was going on at Hillsborough. Among those millions were a number who were already aware, or quickly became aware, that they had loved ones at the match. Some actually knew the position where their loved ones would be standing; some thought they knew. The knowledge or presumed knowledge led them to fear that, at best, their loved ones might be having a dreadful time, or, at worst, as the events unfolded, that they might be facing the prospect of injury, or even of losing their lives.

The 95 who died, the hundreds who were injured, and the thousands who emerged unscathed had many loved ones who observed what was happening, either from their presence elsewhere in the ground, their presence outside the ground, or their position as viewers of television broadcasts either simultaneous or recorded. Still others listened to their radios. Of these loved ones of the dead, the injured and the unscathed, 16 are before the court as plaintiffs in separate actions which are brought as test cases. In all of these actions the defendant is the Chief Constable of South Yorkshire Police. He it was who was responsible for the policing arrangements for Hillsborough Stadium on the day in question. It is against him that each of the 16 plaintiffs by their respective writs, allege a cause of action in negligence and/or breach of statutory duty.

The course of these actions has been speedy. On 14 May 1990 it was ordered by Rose J. that each plaintiff serve an amended statement of facts, with a generic medical report related to the post traumatic stress disorder, and an individual medical report. The judge ordered that the trial proceed without pleadings pursuant to R.S.C., Ord. 18, r. 21, and that all 16 actions be consolidated. So it was that I began to hear these 16 actions on Tuesday, 19 June, and concluded the hearings the following Monday, 25 June.

Each plaintiff claims damages for personal injuries and/or physical harm, and consequential losses and expenses. In each plaintiff's case the damages alleged concern what the law has conventionally known as "nervous shock," but is more accurately described as "psychiatric illness." That is something more than the sad, but inevitable, human emotions of grief, sorrow, compassion and anxiety which occur in all bereavements. All these emotions are felt as sharply and deeply in such a situation as any human emotion can be. For these emotions, however, the law gives no compensation. It is important to realise that it is only for a defined psychiatric illness, which actually causes psychiatric damage, that the law may give a recompense, and only in certain circumstances at that.

These test cases are brought by the plaintiffs in order to seek to establish that in the case of each separate plaintiff the circumstances are such that the law permits him or her to obtain an award of damages for psychiatric illness which it is asserted that he or she has suffered. Each case is defended by the defendant on the basis that there is in law no such liability to compensate the particular plaintiff in the particular circumstances. The defendant says that either no such damage has, in fact, been proved or, alternatively, if it has been proved, then it was not foreseeable by the defendant and is too remote.

For the purposes of these actions the defendant has admitted negligence - that is to say a breach of duty of care - in certain specific circumstances. It was formally admitted on behalf of the defendant that he was in breach of his duty of care to those who died, or were injured by crushing, at Hillsborough on 15 April 1989.

A further admission was to this effect; on production by each plaintiff of a medical report to the effect that, on or after 15 April 1989, that plaintiff had suffered some such psychiatric illness which was caused, at least in part, by the plaintiff's awareness of the events at Hillsborough, and, provided that the defendant owed the plaintiff a duty of care in relation to nervous shock, and that the plaintiff could show causation, then the defendant admits liability for the breach of duty of care involved.

Other admissions as to evidential matters were made by the parties, which have reduced the oral evidence before me to that of a single witness. Those admissions were that: (1) the facts, but not opinions, contained in the proofs of evidence of the plaintiffs, in so far as they are relevant and admissible, were admitted by the defendant; (2) the statements of Detective Inspector Charles and Detective Inspector Timms were likewise admitted; (3) chapters 1 to 5 of the Interim Report of the Inquiry by Taylor L.J. into the Hillsborough Stadium Disaster were agreed so far as they related to the facts therein set out; (4) extracts from B.B.C. and I.T.V. television guidelines were admitted without formal proof, and (5) photographs of the physical layout of the Medico-Legal Centre at Sheffield were admitted without formal proof.

It is in these circumstances that I have to try the issue of liability - and of liability only - in respect of these 16 plaintiffs in actions which are said to be representative of some 150 similar claims. I am told by counsel that the trial of these 16 cases will enable the settlement of the liability issue in respect of each one of those 150 claims.

The sole witness I heard was Dr. Morgan O'Connell, who is a Surgeon Commander in the Royal Navy, and a consultant psychiatrist at the Royal Naval Hospital, Hasler, at Gosport in Hampshire. He has extensive experience in the recognition and management of cases of post traumatic stress disorder, in particular during the Falklands conflict in 1982 and thereafter. I accept both his expertise and his evidence.

He produced a single "Generic Report on Psychological Casualties Resulting from the Hillsborough Disaster" as well as 16 separate individual reports, one on each plaintiff. He then gave oral evidence before me. That then is the totality of the evidence which I have, and upon which to decide these 16 claims.

I have referred to the expertise and the evidence of Dr. O'Connell. It would probably be helpful if, at the outset, I identified the particular form of "nervous shock" (which I shall hereafter refer to as "psychiatric illness") which he said was produced in all save one of these cases.

Dr. O'Connell's generic report stated that: "The most common diagnosis made was post-traumatic stress disorder . . . a new concept [1980] for an old problem," and he indicated earlier names such as neurasthenia, shell shock and nastalgia.

"It is classified as an anxiety disorder. It follows on a painful event which is outside the range of normal human experience, the disorder includes preoccupation with the event - that is intrusive memories - with avoidance of reminders of the experience. At the same time there are persistent symptoms of increased arousal -these symptoms not being present before the event. The symptoms may be experienced in the form of sleep difficulty, irritability or outburst of anger, problems with memory or concentration, startle responses, hypervigilance and over-reaction to any reminder of the event. The characteristics of post traumatic stress disorder identified amongst the casualties seen included apprehension, with the person being on edge, tense and jumpy. There appears to be a need to talk a great deal about the incident and where physical pain or injury was experienced in association with the disaster, it appears to have become disproportionate to the actual injury incurred. Almost all the casualties suffering post-traumatic stress disorder complained of sleep disturbance, with associated tiredness and fatigue. Flashbacks and nightmares of the event with similar emotional reactions as if the disaster was actually happening again, were commonly recorded. Many described an inability or difficulty in carrying out normal life activities such as work, family responsibilities or any activity normally engaged in before the disaster. Phobia or an irrational fear leading to avoidance behaviour was commonly reported and in particular, any queuing activity was avoided if at all possible - especially with those who were involved in the crush. All those in whom post-traumatic stress disorder was identified appear to have undergone a personality change, the significant features of which were that of being moody, irritable, forgetful and withdrawn within themselves, frequent unprovoked outbursts of anger and quarrelsome behaviour was reported. The majority of cases were either depressed or had experienced significant depression at some time and I wrote to a number of general practitioners drawing attention to a need for more active treatment of this depression."

Dr. O'Connell also identified a further psychiatric illness known as pathological grief which he defined as: "grief of greater intensity and duration than normal grief, it is more likely to occur where death is sudden, unexpected and brutal in nature." He noted that of the people he had seen all but one had more than one illness. Thus he identified in respect of each of the plaintiffs a specific psychiatric illness suffered by them. In the case of every plaintiff there was, in addition, an indi- vidual medical report by Dr. O'Connell. Some of the plaintiffs filed additional medical reports from other practitioners. The defendant called no medical evidence and filed no medical reports, but instead relied simply on cross-examination of Dr. O'Connell when he gave evidence. It follows that it is upon that evidence that I have to come to the conclusion in the case of each separate plaintiff as to whether it is proved that psychiatric illness was in fact suffered.

I say at once that for the purposes of this judgment I am going to make the assumption that this matter is in fact proved by each plaintiff. I was not asked to make this assumption, I was asked to try the issue but for reasons I will now identify it seems to me that at this stage in what is going to be protracted litigation, it is in all ways, and for all parties, preferable that I make the assumption rather than find the facts.

There are good reasons for dealing with the finding of the causation of a psychiatric illness in each plaintiff on the basis of assumptions. These are 16 test cases and I have been told by counsel on both sides, not in any sense in terrorem (to frighten me) that, whatever my findings, there will be appeals to the Court of Appeal. They added, realistically, that it is almost inevitable that the cases will reach the House of Lords.

In those circumstances it would be an intolerable burden for any court having to consider this judgment, if the judgment were to be cluttered up with (and weighed down by) a detailed analysis in relation to each of the plaintiffs' individual psychiatric symptoms and progress. Since I should have to review all the evidence and make such findings for each of the 16 plaintiffs, whether I were finding in their favour or not, in order to provide findings for any successful appeal, a judgment which should be a judgment of principle on test cases would become even more verbose than it already is, and hugely unwieldy. Further, in the interests of the plaintiffs themselves, it cannot help their mental states to have their psychiatric conditions minutely examined in a judgment that is bound to have so public a circulation. These are novel cases and I have attempted to adopt a sensible course accommodating to the circumstances. If any problem were to arise in the future as a result of this approach, then the matter can always come back before me, or can be incorporated into any trial of psychiatric issues which may take place in relation to the assessment of damages.

That then is the first issue which a plaintiff has to prove in seeking to establish liability against the defendant in negligence. Is it proved that actual damage of a type for which the law allows recompense has been suffered by the individual plaintiff? I stress again, because it does need stress, that it is not enough that emotional hurt - even of the sharpest degree - has been inflicted. What must be proved by each plaintiff is that he or she has suffered actual psychiatric illness. That is the first hurdle which the plaintiff must surmount. On the assumptions I have made, each of them has proved the infliction of the actual psychiatric illness.

Next the plaintiff must establish that it was the defendant's actions which caused the infliction of that psychiatric illness. That is the second hurdle which the plaintiff has to surmount, namely, the proof of the chain of causation between the defendant's actions and the damage suffered by the plaintiff. Again on the assumptions I have made, that second hurdle has been cleared by all the plaintiffs.

It might seem, at first, as though a plaintiff who had successfully cleared both those hurdles had now proved all that was necessary to entitle him to succeed in a claim for damages in negligence against the defendant. That, however, is not so. It is not enough in law to prove only that damage to a plaintiff has been done by the actions of the defendant. If that were so our system of law would call for the payment of damages to a plaintiff by a defendant against whom no fault at all had ever been proved. The fault which has to be proved is known in our system of law as negligence.

To establish liability against a defendant in respect of damage which has undoubtedly been caused by the defendant's acts, the plaintiff must additionally prove that the defendant has been guilty of negligence. This really means that the plaintiff must establish three further things: (1) that the plaintiff comes within the range of persons to whom the defendant owes a duty of care, (2) that the defendant has breached that duty of care to the plaintiff, and (3) that it was reasonably foreseeable that such a breach would cause damage to the plaintiff.

As to the first, that the plaintiff comes within the range of persons to whom the defendant owes a duty of care, it is vital to realise that it is a fundamental concept of our law that a defendant does not owe a duty of care to the world at large. It is important to stress at this stage that none of these plaintiffs sues for physical injuries done to their person by direct actions of the defendant. Rather, they sue in respect of mental injuries done to them as a result of physical injuries actually inflicted, or feared to have been inflicted on someone else, whom I have described as "a loved one." It is thus not the injury, actual or perceived, caused to the original victim, but the subsequent and consequent psychiatric illness of the plaintiff which must fall squarely within the ambit of the defendant's duty of care to the plaintiff, and of his reasonable foreseeability of the consequences of his actions.

I have tried to set out these basic principles of English law, which are as familiar to lawyers as they are unfamiliar to others, in order to demonstrate at the outset that a defendant does not owe a duty of care to the world at large, but only to a category of persons which the law strictly defines.

The central question which arises in all of these 16 cases is: does the plaintiff fall within that category? As the law stands at present, the common law draws a line between those who are related by various ties to the victim of a defendant's negligence. The line is drawn in order to decide whether or not those so related should be able to claim damages for psychiatric illness which they have suffered consequent upon that negligence to that loved one.

That line is at present drawn to permit claims which, in the words of Lord Wilberforce in McLoughlin v. O'Brian [1983] 1 A.C. 410, 418: "do not extend beyond the spouse or children of the plaintiff." These 16 claims seek to have that line extended and drawn elsewhere in order to include plaintiffs in other relationships to the victims. Even with the line drawn here, it is not every spouse or parent of such a victim who can succeed in an action for psychiatric illness consequent upon the defendant's negligence. The law has evolved slowly over the last 100 years or so, and I shall have later to look, I hope reasonably concisely, at the way in which it has progressed, and at some of the cases which have been the milestones upon that road.

Suffice it to say for the moment that in addition to being within the category of the particular relationship, there had to be some immediacy of observation by the plaintiff of the infliction of the injury upon the loved one, immediacy of observation such as presence at, or near the scene of injury, or, as the law developed, some close involvement with its immediate aftermath, before a spouse or parent of a victim could recover. Again, in these cases the plaintiffs seek to have that line drawn elsewhere in order to include awareness, not as an eye witness, but through the medium of simultaneous television of the circumstances of the infliction of the injury. There are claims also in relation to participation in the events, by reason of live radio broadcasting and/or recorded television.

These are, therefore, in every sense test cases, and that is why I have sought to set out in simple terms what I understand existing law to be, and what the plaintiffs would wish it to be at the end of this judgment. It will now be my task to decide where that line should be drawn in relation to these 16 actions. It goes without saying that although so far I have been trying to talk in general terms about all 16 of the actions, no two are the same. Each has its individual characteristics and distinctions. The plaintiffs differ from each other in many different ways, but they differ particularly in three important categories in relation to their own particular loved one.

The first is the fate of the loved one. The second is their relationship to the loved one, and the third is the medium through which they became involved in the events happening to their loved one. As to the first category it is a tragic fact that in all but three cases the plaintiffs' loved ones died; two were injured, and one happily emerged safely from the disaster.

As to the second category, the respective relationships to the loved one, five fell within the closeness of relationships already known to the law, that is to say within the category of spouse or parent: there was a wife, two mothers, and two fathers.

Of the categories of relationship where the English law so far has not produced a case of a successful claim, there were seven different relationships. There were sisters of three different victims, brothers of two, uncles of two, a grandfather of one, a brother-in-law of one, a fiancee - unofficial as it was said - of one, and a friend.

As to the third category - the medium through which the events were perceived - here, too, there were many variations. Four plaintiffs witnessed the occurrence as eye witnesses sitting in the West Stand at Hillsborough, and a fifth was sitting in a coach outside the ground and saw the events, or some of them, on the coach's television. There were a further nine plaintiffs who saw the disaster as it evolved, not as eye witnesses at the scene, but by watching television. Another plaintiff became aware of what was happening by hearing it broadcast simultaneously on the radio, and later saw it through the medium of recorded film broadcast on television. The final plaintiff was first told in conversation, then heard a news item broadcast by radio, and lastly saw it when recorded film was put out on television.

It follows that within these 16 cases there is a multiplicity of permutations of factual situations to which the law must be applied. I have already said that the law in relation to this particular aspect of the tort of negligence, namely that dealing with damages for psychiatric illness in one person caused as a result of injury or apprehended injury to another, has evolved gradually over the last 100 years or so. I must go straight to the leading case on the subject, as the law stands today.

The leading case in our jurisdiction is McLoughlin v. O'Brian [1983] 1 A.C. 410 in which the House of Lords dealt comprehensively with the history and development of the subject. I cannot hope to achieve, nor would it be sensible to embark upon, an equivalent exercise, and I expressly do not seek so to do. However, I have to remind myself that there is no reason why the plaintiffs in these cases, and the many others interested in their outcome, should be familiar with McLoughlin v. O'Brian and its predecessors. Therefore, for this judgment to be at all comprehensive to those who are actually listening to it today, and for it not to have the effect of being given almost in a foreign language, it might be helpful if I seek first to set in its proper context the law as I understand it to be. That, and only that, is the limited exercise upon which I now seek to embark.

The first thing to say is that, though we sit here in Liverpool in the summer of 1990, the journey will take us around the world and back over the years. It will involve Australian buggies, Irish trains, and even Canadian snowmobiles. It may be asked: "What have these to do with Hillsborough?" The answer is, "Surprisingly, everything."

Just over a century ago, and in a far away place, there happened what to a bystander would have been not so much an accident as a near miss. In the State of Victoria in Australia in 1886 a railway level crossing keeper permitted a buggy to cross the line in the path of an approaching train. The buggy got across in the nick of time, but the pregnant lady passenger suffered, "a severe nervous shock," and a subsequent miscarriage. She brought a case in Australia; she lost but appealed the decision to the Privy Council in London. The case was Victorian Railways Commissioners v. Coultas (1888) 13 App.Cas. 222. Her appeal failed too, the Privy Council holding, at p. 225:

That is where the line was held to be in 1888. The court was refusing to extend the line for fear that the floodgates might open. Two years later in another railway case, this time in Ireland, a different result was achieved. The Irish court declined to follow the decision of the Privy Council in the Australian case.

The plaintiff in Bell v. Great Northern Railway Co. of Ireland (1890) 26 L.R.Ir. 428 was again a lady and she was unfortunate enough to be a passenger in a railway carriage which ran backwards downhill in terrifying circumstances. Medical witnesses testified that she was suffering from fright and nervous shock, one of them describing it as "profound impression on the nervious system" and stating that the shock from which she suffered would be a natural consequence of the fright. Another said he was unable to detect any physical damage, and put down her symptoms to nervous shock. The court held that the negligent management by the defendants of the carriage in which she was seated was admittedly the cause of the injury she sustained. Murphy J. said, at p. 443: "It appears . . . immaterial whether the injuries may be called nervous shock, brain disturbance, mental shock, or bodily injury." Thus, that lady was awarded damages for her "nervous shock," although she had suffered no physical damage in the accident. The line had been moved on to include a plaintiff who would not have succeeded in the earlier Australian case.

Back in England, and moving into this century, 11 years later in 1901 a pregnant lady plaintiff obtained damages as a result of nervous shock occasioned by fright. In Dulieu v. White & Sons [1901] 2 K.B. 669, 674, Kennedy J. considered the argument put before him "both unreasonable and contrary to the weight of authority." That was an argument that fright, where physical injury is directly produced by it, cannot be a ground of action merely because of the absence of any accompanying impact. He thought that argument, as I have indicated, unreasonable and contrary to the weight of authority.

However, he limited the type of shock for which damages were recoverable to that suffered from fear for oneself only. He said, at p. 675: "The shock, where it operates through the mind, must be a shock which arises from a reasonable fear of immediate personal injury to oneself." Thus the line had moved, but not that far. On the basis of the law as stated by Kennedy J. in 1901 the 16 plaintiffs in the case before me would not have been able to succeed because their nervous condition did not arise "from a reasonable fear of an immediate personal injury to themselves," but from such a fear in relation to their loved ones.

Nearly a quarter of a century later the law moved on again, and the line was redrawn in Hambrook v. Stokes Brothers [1925] 1 K.B. 141. A mother who saw an empty lorry running downhill towards her round a bend past which her children had just disappeared was able to recover damages for shock produced by fear, not for her own safety, but for the safety of her children. The court held that the damages were recoverable on the basis that the shock was caused by what she saw with her own eyes, as distinguished from what she was told by bystanders. In what might be regarded as a prophetic passage, Atkin L.J. said, at p. 158:

The 16 plaintiffs in this case do indeed seek to make the duty of care "extend to other relations of life also involving intimate associations," but they do not seek to extend it to bystanders.

It is important to note exactly what was the shock to Mrs. Hambrook which her counsel was relying upon in that case. He was one of the ablest and most loved counsel of his day, and Sargant L.J. quoted him thus, at pp. 160-161:

So counsel, in that case was not seeking to rely on anything else that happened after the accident, such as going to a hospital or matters of that sort. Later on we shall see that the law moved on in that direction, and matters of that sort came to be known as the doctrine of the aftermath.

In Hambrook v. Stokes Brothers [1925] 1 K.B. 141 it should also be noted that that particular judge, Sargant L.J., who was in the minority, would have sought to keep the line resting on the basis of shock caused by fear of injury to oneself, and not to have extended it to that caused by fear of injury to another. He said, at p. 163:

He would not have allowed Mrs. Hambrook to win; however, she did win. It is interesting, too, that he went on to say, at p. 163:

And then he asked this question, at pp. 163-164:

The questions posed in those last two sentences arise to be answered in the cases before me today, both in the relationship of sister to brother, and in relation to a plaintiff's loved one who had, "never been in imminent danger at all." And that judge, disagreeing with the majority of his fellow judges, was using those questions to demonstrate why he believed that the line should stay where it was, and not be moved.

The questions which were troubling him centred upon, "the extent of the duty of the defendant towards the public in or near the highway." The next case in point of time had nothing to do with accidents, whether of the railway or highway variety. It concerned the unpleasant discovery of the decomposed remains of a snail in a bottle of ginger beer. It was Donoghue v. Stevenson [1932] A.C. 562. Lord Atkin stated in a celebrated passage, at p. 580:

He went on to deal with the notion of proximity - an important word -which he expressed in the words of Lord Esher M.R. in Le Lievre v. Gould [1893] 1 Q.B. 491, 497:

In the same case A. L. Smith L.J. had referred to the principle, at p. 504:

Lord Atkin then went on [1932] A.C. 562, 581: