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:
"Damages arising from mere sudden terror unaccompanied by any actual physical injury, but occasioning a nervous or mental shock, cannot under such circumstances, their Lordships think, be considered a consequence which, in the ordinary course of things, would flow from the negligence of the gate-keeper. If it were held that they can, it appears to their Lordships that it would be extending the liability for negligence much beyond what that liability has hitherto been held to be."
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:
"In my opinion it is not necessary to treat this cause of action as based upon a duty to take reasonable care to avoid administering a shock to wayfarers. The cause of action, as I have said, appears to be created by breach of the ordinary duty to take reasonable care to avoid inflicting personal injuries, followed by damage, even though the type of damage may be unexpected - namely, shock. The question appears to be as to the extent of the duty, and not as to remoteness of damage. If it were necessary, however, I should accept the view that the duty extended to the duty to take care to avoid threatening personal injury to a child in such circumstances as to cause damage by shock to a parent or guardian then present, and that the duty was owed to the parent or guardian; but I confess that upon this view of the case I should find it difficult to explain why the duty was confined to the case of parent or guardian and child, and did not extend to other relations of life also involving intimate associations; and why it did not eventually extend to bystanders."
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:
"But Serjeant Sullivan, in his able argument before us, expressly disclaimed any suggestion that the shock to Mrs. Hambrook, which is said to have been the cause of her subsequent death, was due to or aggravated by her finding that the little girl was missing from the school, or by her afterwards tracing her to and seeing her in the hospital. He relied upon the shock occasioned to Mrs. Hambrook by the original apprehension of the imminent danger to her little girl, or rather perhaps of the imminent danger to her three children; . . ."
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:
"In my judgment, it would be a considerable and unwarranted extension of the duty of owners of vehicles towards others in or near the highway, if it were held to include an obligation not to do anything to render them liable to harm through nervous shock caused by the sight or apprehension of damage to third persons."
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:
"It seems to me that, when once the requirement is relaxed, that the shock is to be one caused by the plaintiff's apprehension of damage to himself, the defendant is exposed to liability for a consequence which is only reached by a new and quite unusual link in the chain of causation, and which cannot therefore properly be held to have been within his ordinary and reasonable expectation. And the extent of this extra liability is necessarily both wide and indefinite, in as much as it may vary with the precise degree of connection between the person injured and the plaintiff, and also, perhaps, with the circumstances attending the realisation by the plaintiff of actual or apprehended injury to the third person."
And then he asked this question, at pp. 163-164:
"For instance, should it extend to a shock occasioned to a daughter by apprehended danger to a mother, or to a sister by apprehended danger to a brother? And where, as in this case, the apprehended danger is out of the sight of the plaintiff, ought the plaintiff to be entitled to recover for the illness by shock, if the facts were that the person whose safety was in question had turned off the dangerous highway, or had for some other reason never been in imminent danger at all?"
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:
"the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - 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."
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:
"If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property."
In the same case A. L. Smith L.J. had referred to the principle, at p. 504:
"that a duty to take due care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other."
Lord Atkin then went on [1932] A.C. 562, 581:
"I think that this sufficiently states the truth if proximity be not confined to mere physical proximity, but be used, as I think it was intended, to extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act."
Thus, in a case involving a ginger beer bottle, Lord Atkin was historically defining who, in law, was to be regarded as a defendant's neighbour, and ruling that the principle of proximity was not to be confined to mere physical proximity, but was to be extended to include proximity of relationships between people.
That classical exposition of the "neighbour" principle fell to be considered in Bourhill v. Young [1943] A.C. 92, when yet another lady plaintiff, who was pregnant at the time of an accident, sued for damages in respect of fright resulting in severe nervous shock occasioned by being in the vicinity of a fatal crash to a motor cyclist. She became immortalised in the law reports and the text books, somewhat unfairly, as the "pregnant fishwife," and she failed in her action. The reason she failed was that since she was not within the area of potential danger arising as a result of the motor cyclist's negligence, she was not within the ambit of such persons he, the motorcyclist, could reasonably foresee might be injured by his failure to exercise his duty of care. Lord Porter said, at p. 117:
"In the present case the appellant was never herself in any bodily danger nor reasonably in fear of danger either for herself or others. She was merely a person who, as a result of the action, was emotionally disturbed and rendered physically ill by that emotional disturbance. The question whether emotional disturbance or shock, which a defender ought reasonably to have anticipated as likely to follow from his reckless driving, can ever form the basis of a claim is not in issue. 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."
That expression, "the customary phlegm" is an expression which we shall come across again in other cases. Lord Porter concluded his speech by holding, at p. 120, that "shock occasioned by reasonable apprehension of injury to oneself or others, at any rate, if those others are closely connected with the claimant," affords a valid ground of claim.
Despite that, in King v. Phillips [1953] 1 Q.B. 429, 10 years on in 1953, a mother still failed in her action against a cab driver who backed his cab into her small boy. The boy was only slightly damaged, as was his tricycle, but the mother had heard his scream and had looked out of an upstairs window 70 to 80 yards away only to see the tricycle under the cab, and no sign of the boy. It was held in King v. Phillips, applying the test in Bourhill v. Young [1943] A.C. 92, that the driver owed the mother no duty and was not negligent. The reason was said to be that no "hypothetical reasonable observer" could reasonably or probably have anticipated injury being caused to the mother, whether physical or nervous, by the backing of the taxi without due attention to where it was going.
Eleven years later - and we are now in the 1960s - as the law developed an opposite result was achieved in Boardman v. Sanderson [1964] 1 W.L.R. 1317 when the defendant backed his car out of the garage and negligently injured a young boy whose father was, to the defendant's knowledge, within earshot of his son's screams and who naturally ran to his assistance. Ormrod L.J. said, at p. 1322:
"I think I need say no more than that if the facts of this particular case are fitted to the concept of negligence, it is clear that a duty was owed by the defendant not only to the infant but also to the near relatives of the infant who were, as he knew, on the premises, within earshot, and likely to come upon the scene if any injury or ill befell the infant."
It is interesting to note that while it was not necessary for the particular judgment, Ormrod L.J. was extending the duty to "near relatives of the infant," who, while not actually witnessing the accident, were close by and likely to come upon the scene.
In Hinz v. Berry [1970] 2 Q.B. 40, a picnicking mother heard a crash which killed her husband, and injured her children. She turned round and saw the scene of the disaster. She recovered damages for the recognisable psychiatric illness caused by her shock. The manner in which the law had moved on in the previous quarter of a century, and the fact that the line had been drawn in a different place was emphasised by Lord Denning M.R. when he said, at p. 42:
"The law at one time said that there could not be damages for nervous shock: but for these last 25 years, it has been settled that damages can be given for nervous shock caused by the sight of an accident, at any rate to a close relative. . . . In English law no damages are awarded for grief or sorrow caused by a person's death. No damages are to be given for the worry about the children, or for the financial strain or stress, or the difficulties of adjusting to a new life. Damages are, however, recoverable for nervous shock, or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of duty by the defendant."
Twelve years on from Hinz v. Berry brings us to 1982, and McLoughlin v. O'Brian [1983] 1 A.C. 410, which I have already indicated set out the state of English law as their Lordships found it to be.
I hope that this short survey of some important cases has shown that seeking to find where the line should fall between those who are entitled to succeed and those who are not in an action such as this, is no easy task. In the result there must be, indeed, some hard cases, and hard results. It is often said that hard cases make bad law. Indeed, in some states of Australia once the courts have come to their decisions in what may have been felt to be particularly hard cases, the legislatures of those states have enacted laws to specify to what degrees of relationship the law allows a remedy.
It is not for me to make any comment on whether or not that course is appropriate in this country. I have already indicated that at the very outset of this case I was told politely, but firmly, by counsel on both sides that, whatever I decided in these 16 cases, there would inevitably be appeals from my judgment to higher courts. I find that to be totally understandable. As a result I can be confident that it will be for others to consider the questions raised in the House of Lords by their Lordships in McLoughlin v. O'Brian [1983] 1 A.C. 410 as to whether policy limitations are indeed justiciable, that is, capable of being decided by the courts at all, or whether they must be left to Parliament. It is significant that early on in his speech in McLoughlin v. O'Brian, Lord Bridge of Harwich said, at p. 431:
"The impression with which I am left, after being taken in argument through all the relevant English authorities, a number of Commonwealth authorities, and one important decision of the Supreme Court of California, is that this whole area of English law stands in urgent need of review."
In the landmark case, if I may so call it, of McLoughlin v. O'Brian, Mrs. McLoughlin was at home two miles away from the scene of an accident involving her husband and three children. More than an hour after the accident she was told of it by a neighbour who drove her from Suffolk to Addenbrooke's Hospital at Cambridge. There she learned that her youngest daughter had been killed, and she actually saw her husband and the other children and witnessed the nature and extent of their injuries. She had failed before the High Court, the trial judge holding that the defendants owed her no duty of care because it was not reasonably foreseeable that she would suffer injury by nervous shock.
The Court of Appeal disagreed, holding that this was reasonably foreseeable, but they still dismissed her appeal on the basis that it was settled law that a driver's duty of care was limited to persons or owners of property at or near the scene of an accident, and directly affected by his negligence. They held that considerations of policy limited the duty of care, and required that it be not extended, and that accordingly, since the plaintiff had been two miles from the accident and had not heard of it until some time later, and had not seen its consequences until still later, she was not entitled to recover damages for nervous shock. That was what the Court of Appeal decided. The case went to the House of Lords.
The House of Lords found in her favour and allowed the appeal, holding that the nervous shock assumed to have been suffered by her had been the reasonably foreseeable result of the injuries to her family caused by the defendant's negligence. Their Lordships held that policy considerations should not inhibit a decision in her favour, and that accordingly she was entitled to recover damages. Their Lordships made powerful observations upon the state of English law in relation to such claims, in cases to which I shall shortly have to refer.
Before I do that, however, it is necessary to see how the courts of some other countries have in this century been dealing with the problems thrown up by such cases in their own jurisdictions.
Three months before the outbreak of the Second World War, the High Court of Australia came to a majority decision in Chester v. Waverley Corporation (1939) 62 C.L.R. 1, which denied a plaintiff mother damages. Her seven-year-old son had gone out to play and had not returned. A long search eventually found his body floating in a trench. The search had lasted for some hours, but the mother was only present for the last half hour when the body was recovered. As a result of her experiences she suffered shock which impaired her health. The majority decision of the court was that the defendant council had no duty of care towards her. In words which today, 50 years on, might sound a touch unrealistic, not to say unfeeling, Latham C.J. said, at p. 10:
"it cannot be said that such damage (that is, nervous shock) resulting from a mother seeing the dead body of her child should be
A powerful, and for my part, totally convincing judgment of Evatt J., would have found the other way, and have awarded the plaintiff damages.
In Canada in 1967, the Saskatchewan Court of Appeal dealt in Abramzik v. Brenner (1968) 65 D.L.R. (2d) 651 with the claim of a mother who suffered nervous shock and resulting physical illness on being told that two of her children had been killed as a result of the defendant's driving. The court held that the defendant had no duty of care because a reasonable man in the defendant's position would not have foreseen nervous shock resulting to her from his conduct.
Culliton C.J.S. held, at p. 658, that the plaintiff could only recover damages in respect of nervous shock "if it can be proved that the defendant ought, as a reasonable man, to have foreseen nervous shock (as opposed to physical injury) to the plaintiff as the result of his conduct."
However, in America in 1968 we see a case of much more importance. In Dillon v. Legg (1968) 29 A.L.R. 3d 1316 the Supreme Court of California decided in favour of a mother who had sustained emotional shock and physical injury from witnessing in close proximity the death of her child, as the result of the defendant motorist's negligent driving. Tobriner J. recognised past American decisions had barred the mother's recovery, but after a masterly survey of American, English and Commonwealth decisions, concluded, at p. 1332:
"To deny recovery would be to chain this state to an outmoded rule of the 19th century which can claim no current credence. No good reason compels our captivity to an indefensible orthodoxy."
So far as the Californian courts were concerned, the line was being firmly redrawn.
In Canada in 1971 Marshall v. Lionel Enterprises Inc. [1972] 2 O.R. 177 decided that where a husband suffered grievous injury when the clutch on a snowmobile broke, and his wife suffered severe nervous shock when she came upon him badly injured shortly after the accident, it could be said that nervous shock to the wife was reasonably foreseeable by a defendant.
Haines J. in the Ontario High Court held that the test must be the foreseeability of nervous shock itself, and went on to say, at pp. 186-187:
"There should exist a duty not to cause nervous shock to others when it can be foreseen as the likely result of certan conduct. Since our state of knowledge is constantly broadening, the scope of the duty of care must expand accordingly. Since it is the knowledge of an average man that is to be attributed to the defendant and since his knowledge is constantly changing, it is to be expected that earlier judges will have discovered no duty where one is found to exist today. . . . Questions will no doubt arise, as they have throughout the history of cases like these, as to how far the law can go in compensating victims of nervous shock. Close relatives will no doubt pose little problem but what of sweethearts, fiancees or perhaps even close friends? And too, what about the unrelated bystander who merely witnesses the carnage? In answer to these nagging worries, I can do little better than to quote the statement of Lord Wright in Bourhill v. Young: 'The lawyer likes to draw fixed and definite lines and is apt to ask where the thing is to stop. I should reply it should stop where in the particular case the good sense of the jury or of the judge decides.' The 'good sense' of the judge or jury must, of course, take into account the knowledge of the time. It is this type of inquiry which has kept the common law a vibrant and vital force for so many centuries."
The following year, 1972, in Australia, and, indeed, in the State of Victoria where this historical journey began, Benson v. Lee [1972] V.R. 879, dealt with the claim of a mother who was at her home approximately 100 yards away from the scene of an accident in which her son was left unconscious in the roadway as a result of the driving of the defendant. She did not see or hear the accident, but her eldest son ran home and told her about it. She then ran to the scene and saw the victim unconscious and went with him in an ambulance to a hospital, where she was informed that he was dead. She instituted proceedings for damages for nervous shock, and the court held that the defendant did owe a duty of care.
The judgment of Lush J. in Benson v. Lee was expressly approved by Lord Wilberforce in the House of Lords in McLoughlin v. O'Brian [1983] 1 A.C. 410, 422. He found the result of the case "correct and indeed inescapable," and the conclusion of the Australian court "to reflect developments in the law." He adopted, at p. 422, the words of the Australian judge, Lush J., in finding the decision 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."
I shall break off this exercise to point out that one of the cases to which reference was made in Benson v. Lee [1972] V.R. 879 deserves to be mentioned at this stage. It was not referred to in McLoughlin v. O'Brian [1983] 1 A.C. 410, nor was it cited in argument in the instant case, but it is worthy of note in that it is the only case that I have been able to discover which deals with the relationship between brother and sister in a claim for nervous shock. It is Storm v. Geeves [1965] Tas. S.R. 252, a Tasmanian case. The plaintiff's three children were waiting for a school bus outside their home, a lorry hit and killed one of the plaintiff's daughters, another daughter and brother were standing close to their sister, saw the accident but were themselves physically uninjured. The boy ran into the house and told his mother who rushed out and saw the daughter who had been hit pinned underneath the lorry.
In the action mother, brother and sister of the dead child claimed damages for nervous shock. Burbury C.J. summed up the factual and legal situation in these words, at pp. 266-267:
"It needs no imagination to realise how the terrible picture of the child's body squashed underneath the truck with no hope of quick relief must have burned into the brains of the child's mother, brother and sister and the anguish and grief they must have suffered. But the law wisely stops short of any attempt to assess human grief and anguish in terms of money - these things cannot be the subject of compensation in money. It remains true that death of itself is not a cause of action. A bereft relative in a case like the present is only entitled to damages if it is established by acceptable evidence that he or she has suffered from some form of medically recognisable neurosis or damage to the mind going beyond ordinary human grief or anguish. Where one begins and the other ends may be a difficult task for the judge or psychiatrist - to say nothing of the task of attempting to disentangle the two for the purpose of assessing a proper amount for damages."
The judge had already found, at p. 266, that injury by nervous shock was reasonably foreseeable, as was the fact that:
"a mother, brother or sister of a beloved child as a result of witnessing its sudden and tragic death in an accident of this kind would suffer a deep psychic impact resulting in some kind of injury to the mind."
After a careful review of common law authorities he awarded damages for nervous shock in relation to the mother and the brother. Interestingly he found otherwise in relation to the sister, saying, at p. 270:
"As to the girl Elsina I am not satisfied that she suffered any assignable neurosis or mental injury. Her condition and behaviour subsequent to the accident is I think consistent with ordinary emotional upset from seeing the accident. The evidence falls short of establishing anything further in her case."
This case is of significance, not only in demonstrating that a court in a common law jurisdiction has widened the categories of relationship where damages can be recovered for nervous shock caused by injury to a loved one beyond the conventional relationships of spouse and parent, to include also those of brother and sister. Interestingly, it is a further demonstration that it is not merely the fact of the relationship which will suffice to sustain a claim for damages, but that there must also be proved nervous shock in the sense of psychiatric illness, rather than an understandable emotional reaction, and that such illness may be proved to be present in the brother of a deceased but not similarly proved in the case of the sister. This may be a timely reminder of the way in which courts can deal with such problems when they are presented with them, and the way in which, even when the lines as to particular relationships is extended by a court, that court can nevertheless differentiate between genuine and unestablished claims.
This case, therefore, where there was a difference between the finding as to the brother from the finding as to the sister, has relevance when arguments against extending the line fall to be considered, and in particular the "floodgates" argument, that to extend the line at all will open the floodgates to permit a torrent of dubious claims.
Storm v. Geeves [1965] Tas. S.R. 252 is, therefore, a convenient bridge between the starting point of this review, Victorian Railways Commissioners v. Coultas, 13 App.Cas. 222 and McLoughlin v. O'Brian [1983] 1 A.C. 410. The floodgates argument was central to the thinking of their Lordships in the 1888 Privy Council case in refusing to award damages, "arising from mere sudden terror unaccompanied by an actual physical injury, but occasioning a nervous or mental shock:" 13 App.Cas. 222, 225. Sir Richard Couch had used the words which I have already quoted, at p. 226:
"The difficulty which now often exists in cases of alleged physical injuries of determining whether they were caused by the negligent act would be greatly increased, and a wide field opened for imaginary claims."
It was entirely upon that basis that the Privy Council held that the damages were too remote.
In McLoughlin v. O'Brian [1983] 1 A.C. 410 Lord Edmund-Davies joined with Lord Wilberforce to reject the floodgates argument. Lord Russell of Killowen joined with them both in being unimpressed by a fear of floodgates opening, and Lord Bridge of Harwich, at p. 442, affirmed his belief that the argument, "is, as it always has been, greatly exaggerated."
Their Lordships' attitude appeared to them to be encapsulated in the words of Kennedy J. in Dulieu v. White & Sons [1901] 2 K.B. 669 which commended themselves particularly strongly to Lord Edmund-Davies. Kennedy J. had said, at p. 681:
"I should be sorry to adopt a rule which would bar all such claims on grounds of policy alone, and in order to prevent the possible success of unrighteous or groundless actions. Such a course involves the denial of redress in meritorious cases, and it necessarily implies a certain degree of distrust, which I do not share, in the capacity of legal tribunals to get at the truth in this class of claim."
Lord Bridge expressed strong approval of the judgment of Tobriner J. in Dillon v. Legg, 29 A.L.R. 3d 1316 which I have recently read, and went on to deal with the question of whether it is right on the grounds of policy, to draw a strict line excluding a plaintiff from his remedy and leaving to Parliament to legislate for a change in the law. He said, [1983] 1 A.C. 410, 441:
"To attempt to draw a line at the furthest point which any of the decided cases happen to have reached, and to say that it is for the legislature, not the courts, to extend the limits of liability any further, would be, to my mind, an unwarranted abdication of the court's function of developing and adapting principles of the com-mon law to changing conditions, in a particular corner of the common law which exemplifies, par excellence, the important and indeed necessary part which that function has to play."
He concluded, at p. 443:
"My Lords, I have no doubt that this is an area of the law of negligence where we should resist the temptation to try yet once more to freeze the law in a rigid posture which would deny justice to some who, in the application of the classic principles of negligence derived from Donoghue v. Stevenson . . . ought to succeed, in the interests of certainty, where the very subject matter is uncertain and continuously developing, or in the interests of saving defendants and their insurers from the burden of having sometimes to resist doubtful claims."
From their Lordships speeches in McLoughlin v. O'Brian [1983] 1 A.C. 410 I deduce the important principle that a court of first instance, when facing this problem, is entitled not to conclude that a line restricting a potential liability of a defendant is already firmly and inexorably drawn, but, rather, is entitled to redraw that line where, in the particular case, the court, enlightened by progressive awareness of mental illness, decides.
From the speeches of their Lordships in McLoughlin v. O'Brian, it is clear that it is not only in the proximity of the relationship between the plaintiff and the victim of the accident that the common law must be free to move on, it is also in the degree of proximity in time and space to the accident, and also the medium by which the shock deriving from the accident is communicated. But if the common law has the licence to move on with changing times, then that licence must also be subject to a certain degree of limitation if the defendant who is guilty of some negligence is not to be made liable to the world at large.
If the common law is entitled to extend the right to recovery for damages for nervous shock, or rather psychiatric illness, then one is forced to consider the three elements which are right for extension, namely: (1) the relationship between the plaintiff and the original victim of the defendant's negligence - the loved one, (2) the relationship in time and space between the plaintiff and the scene of the original negligence, (3) the medium through which the plaintiff becomes conscious of the original negligence.
Just as McLoughlin v. O'Brian shows that the common law should not remain frozen but should consider in any given case whether it is right to extend the line in relation to any of these elements, so must it in consequence be right to consider what and where new limitations should be put upon the right to recover damages for psychiatric illness.
Lord Wilberforce set out the position in such cases. He said, at pp. 418-419:
"As the result of that and other cases, assuming that they are accepted as correct, the following position has been reached: 1. While damages cannot, at common law, be awarded for grief and sorrow, a claim for damages for 'nervous shock' caused by negligence can be made without the necessity of showing direct impact or fear of immediate personal injuries for oneself. The reservation made by Kennedy J. in Dulieu v. White & Sons . . . though taken up by Sargant L.J. in Hambrook v. Stokes Brothers. . . has not gained acceptance, and although the respondents, in the courts below, reserved their right to revive it, they did not do so in argument. I think that it is now too late to do so . . . 2. A plaintiff may recover damages for 'nervous shock' brought on by injury caused not to him or herself but to a near relative, or by the fear of such injury. So far (subject to 5 below), the cases do not extend beyond the spouse or children of the plaintif . . . including foster children . . . 3. Subject to the next paragraph, there is no English case in which a plaintiff has been able to recover nervous shock damages where the injury to the near relative occurred out of sight and earshot of the plaintiff. In Hambrook v. Stokes Brothers an express distinction was made between shock caused by what the mother saw with her own eyes and what she might have been told by bystanders, liability being excluded in the latter case. 4. An exception from, or I would prefer to call it an extension of, the latter case, has been made where the plaintiff does not see or hear the incident but comes upon its immediate aftermath."
And he referred to a number of cases I have referred to already.
"5. A remedy on account of nervous shock has been given to a man who came upon a serious accident involving numerous people immediately thereafter and acted as a rescuer of those involved. (Chadwick v. British Railways Board [1967] 1 W.L.R. 912) 'Shock' was caused neither by fear for himself nor by fear or horror on account of a near relative. The principle of 'rescuer' cases was not challenged by the respondents and ought, in my opinion, to be accepted. But we have to consider whether, and how far, it can be applied to such cases as the present."
Then he went on, at p. 419:
"Throughout these developments, as can be seen, the courts have proceeded in the traditional manner of the common law from case to case, upon a basis of logical necessity. If a mother, with or without accompanying children, could recover on account of fear for herself, how can she be denied recovery on account of fear for her accompanying children? If a father could recover had he seen his child run over by a backing car, how can he be denied recovery if he is in the immediate vicinity and runs to the child's assistance? If a wife and mother could recover if she had witnessed a serious accident to her husband and children, does she fail because she was a short distance away and immediately rushes to the scene. . . . I think that unless the law is to draw an arbitrary line at the point of direct sight and sound, these arguments require acceptance of the extension mentioned above under 4 in the interest of justice."
Lord Wilberforce then followed the process of logical progression, and concluded, at p. 419, in the case of Mrs. McLoughlin that her claim was "upon the margin of what the process of logical progression would allow." He went on to say:
"To argue from one factual situation to another and to decide by analogy is a natural tendency of the human and the legal mind. But the lawyer still has to inquire whether, in so doing, he has crossed some critical line behind which he ought to stop."
Thereafter Lord Wilberforce reviewed the various policy arguments against a wider extension, and accepted that there was a real need for the law to place some limitation upon the extent of admissible claims. As to the degrees of relationship he said, at p. 422:
"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 opinions 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 to proximity to the scene in time and place, he accepted, at p. 422, that:
"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."
He went on, at p. 422, to include within the scope of sight and duty people "of whom it could be said that one could expect nothing else than what he or she would come immediately to the scene - normally a parent or a spouse . . ." and concluded: "Subject only to these qualifications, I think that a strict test of proximity by sight or hearing should be applied by the courts." Finally, as to the third element, namely the manner of communication of the shock inducing material, Lord Wilberforce firmly excluded communication by a third party and said, in words which have since proved to be tragically prophetic, 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."
Lord Bridge gave similar helpful guidance as to where he saw the line to be at the time he was speaking, and as to where it might move in the future. Having dealt with the various arguments put forward in relation to limitations dictated by policy he considered what was the correct criterion of liability. He said, at p. 442:
"On the one hand, if the criterion of liability is to be reasonable foreseeability simpliciter, this must, precisely because questions of causation in psychiatric medicine give rise to difficulty and uncertainty, introduce an element of uncertainty into the law and open the way to a number of arguable claims which a more precisely fixed criterion of liability would exclude. I accept that the element of uncertainty is an important factor. I believe that the 'floodgates' argument, however, is, as it has always been, greatly exaggerated. On the other hand, it seems to me inescapable that any attempt to define the limit of liability by requiring, in addition to reasonable foreseeability, that the plaintiff claiming damages for psychiatric illness should have witnessed the relevant accident, should have been present at or near the place where it happened, should have come upon its aftermath and thus have had some direct perception of it, as opposed to merely learning of it after the event, should be related in some particular degree to the accident victim - to draw a line by reference to any of these criteria must impose a largely arbitrary limit of liability. I accept, of course, the importance of the factors indicated in the guidelines suggested by Tobriner J. in Dillon v. Legg as bearing upon the degree of foreseeability of the plaintif's psychiatric illness."
Having set out the problems there, Lord Bridge then went on to give examples of what might be the position in a particular case. He said, at p. 442:
"But let me give two examples to illustrate what injustice would be wrought by any such hard and fast lines of policy as have been suggested. First, consider the plaintiff who learned after the event of the relevant accident. Take the case of a mother who knows that her husband and children are staying in a certain hotel. She reads in her morning newspaper that it has been the scene of a disastrous fire. She sees in the paper a photograph of unidentifiable victims trapped on the top floor waving for help from the windows. She learns shortly afterwards that all her family have perished. She suffers an acute psychiatric illness. That her illness in these circumstances was a reasonably foreseeable consequence of the events resulting from the fire is undeniable. Yet, is the law to deny her damages as against a defendant whose negligence was responsible for the fire simply on the ground that an important link in the chain of causation of her psychiatric illness was supplied by her imagination of the agonies of mind and body in which her family died, rather than by direct perception of the event?"
Mr. Hytner, for the plaintiffs, rightly points out that this is a more extreme example than the case of any of the plaintiffs in the cases before me.
I have quoted extensively from McLoughlin v. O'Brian [1983] 1 A.C. 410 for the purpose of indicating what, as I see it, are the guiding principles which should direct my approach to the complex problems facing me in this case. It would serve no useful purpose for me to cite at greater length from that important and helpful authority, but I have all the speeches of their Lordships firmly in mind.
I turn, therefore, to consider how those principles should affect my decision in these 16 cases where negligence is admitted on behalf of the defendant, in relation to the actual victims who were killed or injured in the Hillsborough disaster. I have to look beyond those victims, and at what is the reasonable foreseeability possessed by the defendant in relation to the loved ones of those victims. As I have already indicated, I deal with my findings on the assumption that it is proved in each case that, in particular, they did suffer a form of psychiatric illness consequent upon the events that befell a loved one in the course of the Hillsborough disaster. It follows that if I make that assumption at this stage, I must move to the consideration of whether the relationship of the plaintiff to that loved one was sufficient in law for the plaintiff to fall within that class of persons entitled to succeed in a claim for damages for psychiatric illness.
English law, as we have seen, permits only those within the relationship of spouse and parent so to recover. The reasons for this are abundantly clear. It is only in cases where the relationship is of the closest known to man that it is reasonably foreseeable that the doing of physical harm to the one may cause mental harm amounting to true psychiatric illness to the other. It has, until now, been considered that in the spectrum of human relationships ranging from the closest of ties known to man, through all degrees of relationship to that of the mere bystander, it is only in the former in which it is reasonably foreseeable that such damage may follow. For all other relationships it is reasonably foreseeable that the possession of "reasonable phlegm," as the law puts it, will prevent the onset of a psychiatric illness. I have to ask myself, and then answer the question: "Ought that still to be the position in the light of modern knowledge and modern circumstances, and in particular in the circumstances of this case?"
On the basis of where the line is at present drawn, it is sensible first to consider the closest relationship which falls immediately outside that line, that of brother and sister. For a number of reasons I have concluded that the line should include the brother or sister of the victim of negligence. I can see no basis in logic, or in law, why that relationship should be excluded. If we take, as an example, a family of four consisting of a mother, father, son and daughter, each of the four is already within the line for certain purposes. The mother and father are within that line downward towards their children. They are also within that line in their relationship as husband and wife. The son and daughter are, again, within that line in that their relationship upwards to their parents entitles their parents to come within the line. Although no case was cited to me where a child had succeeded in a claim for psychiatric illness occasioned by the injury or death of a parent caused by the defendant's negligence, the mirror image of claims by a parent for such damage to a child, I cannot think that the principle would be different.
They are, therefore, human beings in the relationship of the one entity, the family, who for certain purposes already fall within the line drawn by the law. While it is trite to say that a family can exist where there is only one child, so soon as a second child is born he becomes every bit as much a member of the nuclear family as the first born. The same is true of those born later, by which use of language I hope to avoid the use of the word "sibling" elsewhere in this judgment. Once there are two or more children of a family it is the normal and hoped for (though realistically not inevitable) course of events, that they grow up together through their years as tiny tots on into their teems, and further on into adulthood. It is the normal course of events that they are extremely close within the family. Of course, as in any family situation, there are "spats" between one child and another, so there are in most marriages, and most relationships between parent and child. It is the normal instance of family life as to which any defendant is properly fixed with reasonable foreseeability, that the relationships between mothers and fathers, sons and daughters are of the closest known to mankind. Further, when children have grown up together and have got to their late teens or early twenties, their brothers and sisters will usually be the very people with whom they have spent virtually their entire lives; the human beings they know best apart from their parents. That is a general remark which can be applied to all groups. But when we consider the particular groups in these cases, it is all the more true.
It goes without saying that a goodly proportion of the crowd at any major football match will consist of young unmarried men. Those young men there who are married will have known their wives a far shorter length of time than they have known their brothers or sisters. All those young men will be at the stage in their lives when their ties to their family - their original family - not just to their fathers and mothers, but also to their brothers and sisters, will be of the strongest. They will have had the longest number of years to grow into adulthood, and the least number of years to go their separate ways as the fresh and competing demands of their own now working and married lives develop.
To go from the general to the particular, it was a sad fact noted in the Taylor Inquiry, that of the 95 people who were killed at Hillsborough 38 were under 20 years of age, and 39 were between 20 and 29 years; that is, 77 were in their teens or twenties. Those figures, and the proportions they represent are probably representative on a very rough basis of the overall age ranges of those at the match. Eighty-eight of the victims were male, and seven female. Those figures, too, tell their own story.
I consider that it was reasonably foreseeable that a large proportion of those attending the match would be young males. I consider that it was reasonably foreseeable that the brothers and/or sisters of any such victims of the disaster might be so affected by the death or injury of their loved one as to suffer psychiatric illness.
I turn now to other degrees of relationship, and it is right that I say at once that I have concluded, as a result of my deliberations, that the line should not be extended any further. Once it is extended to include brother and sister, I consider it has reached the margin of what the process of logical progression would allow. I appreciate the closeness, the fondness, the love and affection which can flow in all of the other relationships before me. Such love can be strong and compelling, but the various relationships are not so immediate, in my view, as to make it reasonably foreseeable to a defendant that psychiatric illness, rather than grief and sorrow, would follow death or damage to the loved one. I realise this finding may seem harsh and hard, but, as I conceive it, the law has to draw lines of limitation, and that is the duty of a judge. It follows that I conclude that the law, as it stands today, allows the claim of a sister or a brother, but not that of a grandfather, an uncle, a fiancee, a brother-in-law or a friend. I stress that nobody doubts the love of the latter group. It is a question of law, of the reasonable foreseeability of the defendant, of the reasonable phlegm of the individual, of concepts of remoteness of damage, and/or of the defendant's duty of care.
Mr. Woodward referred me to Caparo Industries Plc. v. Dickman [1990] A.C. 605 a case relating to negligent mis-statement in financial matters for the criteria for the imposition of a duty of care, namely foreseeability of damage, proximity of relationship, and the reasonableness or otherwise of imposing a duty. While that case is of considerable interest I do not think it affects the principles laid down in McLoughlin v. O'Brian [1983] 1 A.C. 410.
I turn now to the question of proximity of time and place. I consider first the four plaintiffs who were actually attending the match, and were seated in the West Stand above the pens at the Leppings Lane end. I hold that such a position complied in this case with the requirements of proximity of time and space, to the scene of the negligence towards the loved one. However, of the four plaintiffs who were in that stand only one, Brian Harrison, possessed the required degree of proximity of relationship. He was the brother of Gary and Stephen Harrison, both of whom sadly died in the disaster.
One plaintiff, William Pemberton, was actually at the match but not inside the ground. He had travelled with his son, Roy Pemberton, to Hillsborough by coach and had stayed on the coach intending to watch its television, but fell asleep 20 minutes before the kick off. As a result of what he was told soon after 3 p.m., he watched the events on the coach television, and made the search for his son (in the circumstances clearly set out in his statement of facts), which was to culminate in his identification of the body of his son at the temporary mortuary some time after midnight. I will not refer further to that statement of facts, but I wish to say that it is an example of the agonies into which many of these plaintiffs were propelled. I conclude that Mr. Pemberton is within the requisite degree of proximity of time and place.
Nine of the 16 plaintiffs in the cases before me saw the disaster unfold as it was happening, not as eye witnesses, but through the medium of television broadcasts. I shall soon come to consider their cases, but it is convenient first to deal with the final two plaintiffs. Mr. Kehoe heard the news of the Hillsborough disaster on the radio during the live broadcast of another football match. He later saw recorded footage of the disaster broadcast on the television. His grandson, Tommy, was at the match, as was Tommy's father, Mr. Kehoe's son-in-law. Sadly both died in the disaster. I have already indicated that I cannot include the relationship of grandfather within the line of proximity of relationship. I have to say, even if I had been able so to do, I could not find that Mr. Kehoe was within the requisite proximity of time and place, and his claim accordingly fails.
The last plaintiff, Catherine Jones, is the sister of Gary Jones, who lost his life at Hillsborough. She learned of some trouble at Hillsborough while she was out shopping at about 3.30 p.m. but nothing to indicate that anyone had been injured. An hour later, while still shopping, she heard that there had been some deaths. She got home about 5.15 p.m. and listened to the radio; the television was not turned on because she did not wish to see the scenes. At about 10 p.m. she saw recorded pictures on television. She learned of her brother's death at 5 a.m. on the Sunday morning, from her parents. Her statement of facts sets out that her nervous shock is consequent upon the scenes she saw on television, that is to say, recorded television at 10 p.m. that night, and knowing that her brother was in an area of the ground where the death toll had risen to 85 by approximately 5.30 p.m. I have, regretfully, to conclude that this plaintiff, though as a sister within the degree of proximity or relationship, is not within the proximity of time and space which would give rise to a valid claim. It follows that her claim too fails.
I turn now to consider the cases of the nine plaintiffs who observed the events through the medium of their television screens. They were seeing the events as they happened through the simultaneous broadcasting of pictures captured by a television camera. Do their cases fall within the necessary degree of proximity in time and space to the events at Hillsborough which so affected their loved ones? No case in any common law jurisdiction has yet had to grapple with the question. Indeed, Lord Wilberforce in McLoughlin v. O'Brian [1983] 1 A.C. 410, in words I have recently read, expressly identified the problem as one for the future. These tragic cases, however, have made it one for the present. It is therefore necessary to approach the new question from old principles and, therefore, to travel back to first principles.
From the review of the various authorities which I have sought to make, it can be seen that, once it was established that a claim for damages lay for nervous shock resulting from a fear not for one's own safety, but for that of someone else, the courts originally demanded of the plaintiff both presence at the scene and sight of the event. Gradually those rigid requirements were relaxed to extend to presence near the scene without any actual sight of the accident. As time and the law moved on even that requirement of presence at or near the accident was relaxed, until, by the time it came to the case of Mrs. McLoughlin, she was two miles and more than an hour away from the accident when she was told of it, and she was still further away from the scene of the accident, both in time and space, before she saw the terrible after effects of the accident upon her husband and children once she got to the hospital.
In his speech in McLoughlin v. O'Brian [1983] 1 A.C. 410 Lord Bridge was, moreover, prepared to consider favourably the example of the mother to which I have recently referred. That hypothetical mother was at a far greater remove in both time and space than is the position in this case.
Further, since then there has been the Australian case Jaensch v. Coffey (1984) 54 A.L.R. 417, in which again the female plaintiff had her first visual awareness of the effects of the accident on her husband, not at the scene of the accident, but hours later at a hospital.
I would venture to think it beyond peradventure that the common law has moved on to the stage where it no longer requires in such cases presence at the scene of the accident and actual sight of it. The line has been moved to incorporate into the accident its immediate aftermath as defined and explained by Lord Wilberforce in McLoughlin v. O'Brian [1983] 1 A.C. 410. If that be the case, what guidance can that give in a world in which simultaneous television transmission of events into the living rooms of that world is now an everyday event?
Again, it is necessary to go back to first principles and to analyse exactly what it is that is being observed by an eye witness, and what it is that is being observed by a watcher of television. The eye witness receives images at the back of his eye of events that are taking place immediately before him in his presence. The watcher of television does not. For the eye witness those images are seen as life size, for the television viewer they are not. The eye witness can change those images by altering his field of vision, by the turn of a head or the movement of his body by, for instance, moving closer to the scene. The watcher of television is unable to do that, for whichever way he moves, the images on the screen will be the same, albeit seen at a different angle. The eye witness is seeing something which is taking place actually where he is. The television watcher is enhancing his sight by "borrowing" the images collected by the lens of a camera somewhere else. That camera lens, metaphorically, transports him from his actual physical position to the different location of the camera, and allows him to receive at the back of his eyes the images he would receive were he standing in the position of the camera. He may, in fact, metaphorically be slightly nearer than the camera when one makes allowance for the power to focus. In a sense his metaphorical feet are mid-way between the camera and the image.
His is a similar situation to that of the watcher through binoculars, or a telescope, whose metaphorical feet have been moved closer to the object than his actual feet, and who is seeing a picture which he could not possibly receive from his actual position. I accept at once that in the case of the watcher through binoculars, or a telescope, it may be said that it is only the detail of what he is seeing which he could not see from his actual position. That detail, however, may disclose to his sight something which he could not see without the binoculars, such as the concealed figure of a man. Hence, binoculars, like television, may allow a person to see something in a distant position which he could not have seen with his own unaided eyesight.
If the television watcher has set up or switched on that camera himself in, for instance, the next room or the next house his brain will tell him that what his eyes are seeing is actually happening at the moment his eyes see it. This is the familiar situation of the security monitoring camera used against shoplifters or intruders. The television watcher's brain will have the same information about the immediacy of what is being seen by his eyes, whether it comes from the brain's own knowledge, as in the instance of the security camera, or from the brain's perception of a statement by a commentator that, for instance, "These pictures are coming live from Hillsborough." In either case the brain of the watcher will tell him that what he is watching is what is happening at the time he watches.
Thus, the television watcher in those circumstances is aware that he is augmenting his own eyesight by the lens of a camera in a distant position, but that his eyes are receiving, through the intervention of that camera lens, images of what is actually happening as he sees them. Just as the store detective sees the goods being put in the pocket and not in the basket, although he is not physically present at the scene of the theft, so it is that the television watcher sees the crowds surge forward in pen 3 at the Leppings Lane end, though he is not at Hillsborough.
I note, in passing, the way in which the criminal law has approached the problem of the value and effect of observation of events on a video screen. In Taylor v. Chief Constable of Cheshire [1986] 1 W.L.R. 1479, it was held that there was no effective distinction for the purpose of admissibility between a direct view of the actions of an alleged offender by a witness, and a view of those actions on a visual display unit of a camera, or on a video recording, of what the camera recorded, provided that what was seen on the visual display unit or video recording was connected by sufficient evidence to the alleged action of the accused at the time and place in question.
The court referred to Reg. v. Maqsud Ali [1966] 1 Q.B. 688, 701, where Marshall J. commented that: "Evidence of things seen through telescopes or binoculars which otherwise could not be picked up by the naked eye have been admitted . . ." Though not, of course, in any way decisive of the issue before me, these cases are interesting examples of the approach of the criminal law.
It is argued by Mr. Woodward, on behalf of the defendant, that what is transmitted, even when it is transmitted live, is not what is happening at the scene, and not what the observer there would have observed. He submits that perception via a television broadcast, though it be live, is not the direct perception of the event by the plaintiff, but is as seen through the eye of a third party - the cameraman. He says it may be enhanced or rendered presentable and interesting by close-up or by panning shots, and is likely to be attended by extraneous commentary which can colour the visual impression.
He submits further, that the reception of such a broadcast is in a context outside the control of a tortfeasor. He argues that the plaintiff must show both a sudden and direct sensory involvement with the event, or its immediate aftermath, for such engagement of his senses and emotions arising from his close family relationship (parent or spouse) with the victim of the event, and from his own physical involvement therein.
He argues that, therefore, there is a distinction between the happenings at Hillsborough and that which is received instantly on television or through another medium. He points out that a radio broadcast might, on the one hand, represent the matter in a more graphic form than it really justified, or might, alternatively, sanitise it so as to make it bland.
He further argues that since the law allows no recovery of damages for nervous shock induced by merely hearing of the death or injury of a loved one from a messenger, then the same considerations should apply to hearing the message from a radio broadcast, since what is broadcast goes from the mouth of a reporter or newsreader. He goes on from there to make the further jump to apply the same principle as to what is broadcast on television, and to conclude that the law should not afford a remedy in such circumstances.
So far as simultaneous television is concerned I am not impressed by such arguments, ably and attractively put though they were. It is in my view the visual image which is all important. It is what is fed to the eyes which makes the instant effect upon the emotions, and the lasting effect upon the memory. This was confirmed by the evidence of Dr. O'Connell on this matter, which I entirely accept. I am satisfied that the observation through simultaneous television of the scenes of what was happening during the disaster at Hillsborough is sufficient to satisfy the test of proximity of time and space required in such actions as these.
Mr. Woodward also relied on the "floodgates" argument in relation to the question of simultaneous television. He said that the events were broadcast to millions, and here there were real floodgates, rather than any figures involved in the question of a road traffic accident. He said that there was the potential not only to identify the floodgates argument, but also to open the floodgates. With those propositions, again, I cannot agree. There will not, under our system of law, be suddenly opened to the millions who were watching television that day an opportunity to obtain damages, as the defendant's submission suggests. Those millions will have no proximity of relationship, and, therefore, any claim by them would fall at the first fence, or fall of its own inanition as it has elsewhere been put. Again, there would be the hurdle of reasonable forseeability to be cleared, as it must in any event, even in those cases where I have already found there is proximity of relationship and proximity of time and space.
Let us look, then, at that hurdle of reasonable foreseeability. Was it reasonably foreseeable to the defendant that any negligence of his in respect of persons killed or injured at Hillsborough might lead to psychiatric illness in loved ones of theirs who saw the events live on television? I am satisfied that it was, and will explain why. It is accepted that to the defendant it was not merely reasonably foreseeable that the television crews would be at Hillsborough for the semi final, but that, in fact of course, he had full knowledge that they would be there. It must be accepted, and I so find,, that it was reasonably foreseeable that the cameras would be turning long before the match, collecting footage which might be used later. It was reasonably foreseeable, as I find, that if unfortunate events took place which changed the event from a joyful sporting occasion to a tragic piece of disastrous news, those cameras would, or might be, used to transmit live pictures. It was also reasonably foreseeable that those live pictures would be seen by many of the nearest and dearest of those involved in the disaster. It was not merely reasonably foreseeable, it was a pound to a penny that on the afternoon of two F.A. Cup semi-finals in which Liverpool and Everton Football Clubs were both separately engaged, the television sets of the city would have been switched on and eagerly watched for the latest news, even though the matches themselves were not to be transmitted live. In those circumstances I find that all those who saw the disaster live on television do come within the line of proximity of time and space, and I can, therefore, bring together the effect of my findings so far.
I began by making the assumption that it was proved that each of these plaintiffs had suffered psychiatric illness as the result of the death of, injury to, or apprehended injury to their loved one caused by the negligence of the defendant. I then considered where it was necessary to draw the line in relation to the need to prove proximity of relationship and made my findings accordingly. I then moved on to consider where it was necessary to draw the line in relation to proximity of time and space, and have made my findings.
It follows that by this stage, on the important assumption that the psychiatric illness be proved,, that there would be established liability in the case of the plaintiff, Brian Harrison, who was in the West stand, in the case of the plaintiff, William Pemberton, who was at the match but in a coach outside the ground, and in the case of eight out of nine who saw the disaster on live television, namely: Stephen Jones, Maureen Mullaney, Karen Hankin, Agnes Copoc, Denise Hough, Robert Spearrit, Harold Copoc and Brenda Hennessey. There are, however, first, some other matters to deal with before I conclude finally the question of liability.
I have come to my conclusion in relationship to proximity of time and space on the basis that such proximity has been established through the medium of simultaneous television. Had I been unable to reach such a finding it would have been necessary for me to consider the submissions made by Mr. Hytner in relation to the doctrine of "the aftermath," dealt with by Lord Wilberforce in McLoughlin v. O'Brian [1983] 1 A.C. 410.
Mr. Hytner made various submissions to me in relation to the effect on specific plaintiffs of their activities in trying to discover what had happened to their loved ones, whether by telephone inquiries or by travelling from Liverpool to Sheffield, or in the harrowing experience of having to attend at the mortuary to seek to find out what had happened to their loved ones, and in the worst cases to identify the body. Five of the plaintiffs had that unenviable task. Mr. Hytner equated the search for information by telephone with the search for a body, and argued that there was no difference in law between them, and he asserted that "the search for the truth" was a fact tending to precipitate post traumatic stress disorder.
Mr. Woodward, on the other hand, asserted that Mr. Hytner's label, "search for the truth" was a misuse of the language. He argued that the aftermath only extended the length of time taken by the accident to a period which he would have expressed as the time "while the dust is in the air." For reasons which I have indicated already, I find it unnecessary to make any pronouncement on this subject. Indeed, it would be positively unwise, since the aftermath for any particular incident will depend entirely on the circumstances of that incident, and no pronouncements of mine on the subject of the aftermath are likely to assist in relation to cases as yet unbrought.
I should also refer to other problems with which it is not necessary for me to deal. An example occurs in the case of the plaintiff Robert Spearrit whose brother, Edward Spearrit, received sever crushing injuries in the disaster. Robert, as brother to Edward, was therefore also the uncle of Edward's son Adam, who was, sadly, killed. In this case the plaintiff saw the events unfold on television, and thereafter attempted unsuccessfully, to contact the emergency telephone numbers. Thereafter he travelled to Sheffield, and spent two hours searching for his brother, and nephew, before eventually discovering his brother in the intensive care unit of a Sheffield hospital some hours later. At the temporary mortuary, still later, he first identified a photograph of his nephew, and he then identified his nephew's body.
His statement of facts pleads that his condition was caused by:
"(a) seeing the events live on television, (b) finding his brother in the intensive care unit at the Sheffield Hospital, (c) identifying the body of his nephew at the temporary mortuary."
On the assumption which I make that the plaintiff is suffering from psychiatric illness which is the consequence of the negligence of the defendant, in relation to both his loved ones the situation would be thus: (1) the relationship with his brother who was injured would fall within the necessary degree of proximity; (2) the relationship with his 14-year-old nephew who was killed would be outside the necessary degree of proximity. The exercise of seeking to analyse what part of the plaintiff's psychiatric illness was brought on by his reaction to the events befalling his brother, and what to those befalling his nephew, would be as unattractive as it would be pointless. While it might form an interesting part of an academic exercise for examination in psychiatry, the distinction could and should have no place in the common law.
I am fortified by the decisions of the House of Lords in Bonnington Castings Ltd. v. Wardlaw [1956] A.C. 613 and in Wilsher v. Essex Area Health Authority [1988] A.C. 1074, that such an exercise is unnecessary. The proper test is whether the plaintiff's psychiatric illness was caused, or materially contributed to, by the relevant breach of duty of the defendant. Quite clearly in this plaintiff's case his illness was caused, or materially contributed to, by the defendant's breach of duty in relationship to his brother.
I have not, of course, attempted to refer to each and every one of the many authorities cited to me, nor do I seek to set out on that exercise now. However, I am conscious that I have found against several of the plaintiffs upon the basis that their relationship with the loved one who was the victim of the defendant's negligence is too remote.
I am conscious that many of the plaintiffs to whom I have refused a remedy will be aware of the arguments addressed to me in relation to various authorities where plaintiffs have won damages for nervous shock, despite their not being within the line as I have drawn it. Indeed, plaintiffs have won damages for nervous shock where there has been no relationship at all of blood, marriage, or of any other kind. It would not be right for me to leave this judgment where it is without indicating how I have approached those various cases, so that those that I have held must fail in their claims should at least know, today, the basis upon which I hold that they do fail.
In my view each of those cases, when properly looked at, is not strictly speaking a case where the plaintiff wins damages by reason of a particular relationship, but, rather, where the damages fall to be awarded because of the plaintiff's particular activity. The first activity I look at is the activity of rescue. In Haynes v. Harwood [1935] 1 K.B. 146 a policeman actually in a police station saw what was happening outside in a Stepney Street and ran out to stop a runaway horse which might have hit women and children in the street outside. He was therefore on an act of rescue. His action was an errand of mercy, and it was by reason of that activity that he fell within the categories of persons for whom the defendant owed a duty of care.
In Chadwick v. British Railways Board [1967] 1 W.L.R. 912, Mr. Chadwick lived close to the Lewisham railway line where there was a disaster in December 1957. As soon as he heard of the disaster he rushed to the scene and spent the whole night amid horrific surroundings doing what he could to help. His was an errand of mercy, an act of rescue, which caused in him nervous shock. It was that activity which brought him, together with passengers on the train, into the category of those to whom the defendants owed a duty of care.
A different category of case was cited to me by Mr. Hytner, in support of the submission that there were cases where a relationship of nothing more than friendship had entitled the plaintiff to succeed. For reasons I shall indicate shortly, I do not consider that it was a relationship with a person but, rather, again, a relationship with an activity which caused these plaintiffs to be successful.
Let us take, for instance, Dooley v. Cammell Laird & Co. Ltd. [1951] 1 Lloyd's Rep. 271. There the plaintiff was a crane driver whose load, without any fault on his part, fell into the hold of a ship. No one was actually injured but the plaintiff knew that fellow workers were then in the hold, and he suffered nervous shock. In the course of his judgment Donovan J. said, at p. 277: "I suppose I may reasonably infer that his fellow workmen down the hold were his friends," but it would seem that the real basis for his finding for the plaintiff was that Mr. Dooley was the unwitting agent of the defendant's negligence. He was the crane driver who, without any fault, was party to an accident which could have killed his fellow workers. It was his activity in operating the crane which caused the actual and potential damage. It was that activity which brought him into the category of persons for whom the defendants owed a duty of care, not really any question of relationships of friendships.
Again, in Galt v. British Railways Board (1983) 133 N.L.J. 870, the plaintiff was a train driver who rounded a bend at a proper speed of 65 miles per hour and suddenly saw two railway men in front of him. He thought he had killed them, but fortunately he had not. The defendants were held liable for his nervous shock because they owed him a duty to take reasonable care not to expose him to that injury. Again, it was the activity of driving the train which he believed had killed his fellow workers that brought him within the category, not any degree of relationship.
In Wigg v. British Railways Board, The Times, 4 February 1986, the plaintiff, similarly, was a train driver, who this time looked after a passenger who had been hit by the door of his train.
In all these cases it can be seen that the courts are really dealing with a plaintiff who is engaged on the activity of operating some sort of equipment in circumstances where, if there is negligence on the part of the defendant it is reasonably foreseeable that there will be an accident involving that equipment in which there will be injury or death to persons, caused in the sight and hearing of the plaintiff. It is, therefore, reasonably foreseeable that the plaintiff may suffer nervous shock. That, I believe, to be the true extent and basis for the decisions on this line of cases.
Next, Currie v. Wardrop, 1927 S.C. 538, a case from Scotland, where the fiancee, who was walking arm in arm with her young man, recovered damages for nervous shock involving apprehension for her own safety and the safety of her fiance, though he was hit and she was not, by a vehicle. Those circumstances are, of course, very different indeed from those of a plaintiff in this case, Alexandra Penk, who was unofficially engaged to one of the deceased. Miss Currie was not only at the scene, but suffered nervous shock through anxiety for her own safety. It would have been a task as Herculean as hopeless, to attempt to work out what proportion of her nervous shock flowed from anxiety for herself, and what for her fiance.
It is probably appropriate that I deal last of all with Owens v. Liverpool Corporation [1939] 1 K.B. 394. It was a macabre case in which a hearse was hit by a tramcar, the coffin was overturned and the mourners suffered shock. They were of various relationships to the deceased, some of them outside the line that I have drawn. Suffice it to say that, while I regard it as an interesting case, it did not involve injury to a fellow human being. It has been heavily criticised in the past, and in seeking to deal with questions that were hypothetical, such as the loss of the life of a beloved dog, it moved into realms which cannot, I think, with respect, assist me in this case.
I conclude this judgment by indicating that I have the greatest of human sympathy with all these 16 plaintiffs and all the other persons and families who have suffered in similar ways. The human tragedy that afternoon represented can never be over emphasised. My task, however, is to attempt to interpret the law, and I hope that it will be clearly understood that sympathy alone is not enough.
May I also indicate what I am sure is already manifest. In the cases where I have not found for the plaintiff, but have found for the defendant, there is no suggestion that there is anything false or insincere about the nature of the claim advanced. These are test cases. The law itself has to be tested and this can only be done by the bringing of an action. There is no shame, no ignominy, no lack of respect of the dead in the bringing of any of these actions.
It follows that in these test cases on liability I find for the plaintiff in the cases of Brian Harrison, Stephen Jones, Maureen Mullaney,, Karen Hankin, Agnes Copoc, Denise Hough, Robert Spearrit, William Pemberton, Harold Copoc and Brenda Hennessey. There will be judgment accordingly for the plaintiffs in those cases on the question of liability, and the cases will be adjourned for damages to be assessed.
In the remaining six cases there will be judgment for the defendant in each case.
ORDER
Order accordingly.