In the Hillsborough Football disaster, 95 people were killed and over 400 injured. * Enter a valid Journal (must Does she suffer less shock or grief because it is subsequently discovered that their marriage was invalid? University. They sought damages, some of them for personal injuries by way of nervous shock and some in the light of psychiatric injury having seen the match on television, and knowing that their relatives were in the crowd which was caused by the negligence of the police department who was responsible for the crowd control. But these are factual difficulties and I can see no logic and no policy reason for excluding claims by more remote relatives. Citations:  1 AC 310;  3 WLR 1057;  4 All ER 907;  PIQR P1; (1992) 89(3) LSG 34; (1991) 141 NLJ 166. Moreover, I can visualise great difficulty arising, if this be the law, where the accident, though not solely caused by the primary victim has been materially contributed to by his negligence. So, for instance, in Kirkham v. Boughey  2 Q.B. HOUSE OF LORDS. For this purpose the accident is to be taken to include its immediate aftermath, which in McLoughlin's case was held to cover the scene at the hospital which was experienced by the plaintiff some two hours after the accident. The Court of Appeal found there to be no duty of care owed and no breach. Contents 1 Facts In support of this proposition the plaintiffs relied on Dooley v. Cammell Laird & Co. Ltd. and Chadwick v. British Railways Board as well as upon the following passage from the judgment of Atkin L.J. If I may say so with respect, the views expressed by Lord Bridge are open to the criticism that, on their face, they entirely ignore the critical element of proximity to which reference has been made, taking us back to the "demonstrably too wide" proposition of Brett M.R. in the Court of Appeal in the instant case, ante, pp. A primary victim one actually involved mediate or immediately as a participant and, those who will always have a valid claim. In this House, although the members of the Committee were unanimous in allowing the appeal the speeches displayed distinct differences of approach. Scenes from the ground were broadcast live on television from time to time during the course of the disaster, and recordings were broadcast later. 503, 509 - there is nothing in it which necessarily limits the liability of the tortfeasor to compensating only the primary victim of the event. He has further accepted that each of the plaintiffs has suffered some psychiatric illness. The defendant has throughout contested liability on the ground that, in all the circumstances, he was not in breach of any duty of care owed to the the plaintiffs. To draw such a line would necessarily be arbitrary and lacking in logic. Accordingly their claims must fail, as must those of the other plaintiffs who only learned of the disaster by watching simultaneous television. That such an exception exists is now too well established to be called in question. It must, I think, be from these elements that the essential requirement of proximity is to be deduced, to which has to be added the reasonable foreseeability on the part of the defendant that in that combination of circumstances there was a real risk of injury of the type sustained by the particular plaintiff as a result of his or her concern for the primary victim. Alcock v Chief Constable of South Yorkshire Police  1 AC 310. My Lords, if sympathy alone were to be the determining factor in these claims, then they would never have been contested. The closeness of the tie would, however, require to be proved by a plaintiff, though no doubt being capable of being presumed in appropriate cases. HICKS AND OTHERS(APPELLANTS) v. WRIGHT(SUED AS CHIEF CONSTABLE OF THE SOUTH YORKSHIRE. Whilst not dissenting from the case-by-case approach advocated by Lord Bridge in McLoughlin's case, the ultimate boundaries within which claims for damages in such cases can be entertained must I think depend in the end upon considerations of policy. To use Lord Wilberforce's words in McLoughlin's case  1 AC 410, 422-423: Grief, sorrow, deprivation and the necessity for caring for loved ones who have suffered injury or misfortune must, I think, be considered as ordinary and inevitable incidents of life which, regardless of individual susceptibilities, must be sustained without compensation. Of the four plaintiffs who were unsuccessful before the judge, one who lost his brother-in-law was at the ground, one who lost her fiance saw the disaster on television, another who lost her brother heard initial news while shopping and more details on the wireless during the evening and a third who lost a grandson heard of the disaster on the wireless and later saw a recorded television programme. So I am of the opinion that in addition to reasonable foreseeability liability for injury in the particular form of psychiatric illness must depend in addition upon a requisite relationship of proximity between the claimant and the party said to owe the duty. MILITARY AND POLICE. para5 Hambrook v. Stokes Brothers  1 K.B. In this case, the claimants argued that the police had acted negligently and in contravention of their duty of care owed. Reasonable foreseeability is subject to controls. But see the pre-Alcock approach inHevican v.Ruane  3 All E.R. Since the decision of your Lordships' House in McLoughlin v. O'Brian  1 AC 410, if not earlier, it is established law that (1) a claim for damages for psychiatric illness resulting from shock caused by negligence can be made without the necessity of the plaintiff establishing that he was himself injured or was in fear of personal injury; (2) a claim for damages for such illness can be made when the shock results: (a) from death or injury to the plaintiff's spouse or child or the fear of such death or injury and (b) the shock has come about through the sight or hearing of the event, or its immediate aftermath. In another judgment (Frost v Chief Constable of South Yorkshire Police  2 AC 455), Lord Hoffman said that “the search for principle was called off [in Alcock]”. 's foregoing limitation was disapproved by the majority of the Court of Appeal who held that a mother who had sustained nervous shock as a result of fear for the safety of her three children due to the movement of an unmanned lorry had a cause of action against the owner of the lorry. In support of this proposition I rely on the speech of Lord Wilberforce in McLoughlin v. O'Brian  1 AC 410, 420F-421A and on the carefully reasoned judgment of Deane J. in the High Court of Australia in Jaensch v. Coffey, (1984) 155 C.L.R. Lord Jauncey of Tullichettle . The first of these is proximity of the plaintiff to the accident in time and space. 314E et seq. In each case damages are sought for psychiatric illness, which, for present purposes, must be assumed to have been caused by the nervous impact on the plaintiff of the death or injury of a primary victim with whom he or she had a strong bond of affection. She was held entitled to recover damages for the psychiatric illness she suffered as a result. It was argued for the plaintiffs in the present case that reasonable foreseeability of the risk of injury to them in the particular form of psychiatric illness was all that was required to bring home liability to the defendant. Into the same category, as it seems to me, fall the so called "rescue cases." The Law of Torts (LAWS212) Academic year. Jun 19, 2020 | Case Comments, Editorial Of Contemporary Law. In such circumstances section 1A of the Fatal Accidents Act 1976 (substituted by section 3 of the Administration of Justice Act 1982) gives a limited right of compensation for bereavement. The reason was that the police acted negligently. 549, 552, 578. The defendant appealed to the Court of Appeal in the cases of nine out of the ten successful plaintiffs, and the six unsuccessful plaintiffs also appealed to that court. This House, reversing the Court of Appeal, held that she was entitled to recover damages. To extend the notion of proximity in cases of immediately created nervous shock to this more elongated and, to some extent, retrospective process may seem a logical analogical development. It is a useful illustration of the extreme difficulty of separating the compensatable injury arising from the presence of the plaintiff at the scene of an accident from the non-compensatable consequences flowing from the simple fact that the accident has occurred, but it is of little assistance otherwise, save for a hint in the judgment of Lord Denning M.R. Because "shock" in its nature is capable of affecting such a wide range of persons, Lord Wilberforce in McLoughlin v. O'Brian  1 AC 410, 422, concluded that there was a real need for the law to place some limitation upon the extent of admissible claims and in this context he considered that there were three elements inherent in any claim. Alcock v Chief Constable of South Yorkshire – Case Summary. In Page v. Smith the plaintiff was driving his car at 30 miles an hour when the defendant turned right immediately into his path. they were not "directly affected" as opposed to the primary victims who were either injured or were in danger of immediate injury. The psychiatric injury must be caused by a shocking event. On that basis it is open to serious doubt whether Hevican v. Ruane  3 All E.R. Take, for instance, the case of a mother who suffers shock and psychiatric injury through witnessing the death of her son when he negligently walks in front of an oncoming motor car. witnessing a relative die from a disease over days or weeks. Equally obviously, the foreseeability of such injury to such a person will be more difficult to establish than similar injury to a spouse or parent of the primary victim. The source of the shock and distress in all these cases is the affectionate relationship which existed between the plaintiff and the victim and the traumatic effect of the negligence is equally foreseeable, given that relationship, however the relationship arises. Policy considerations such as this could, I cannot help feeling, be much better accommodated if the rights of persons injured in this way were to be enshrined in and limited by legislation as they have been in the Australian statute law to which my noble and learned friend, Lord Ackner, has referred. In any event only two of them were present in the ground and the remainder saw the scenes on simultaneous or recorded television. Lord Ackner . Case: Alcock v Chief Constable of South Yorkshire Police  UKHL 5 Secondary victim claims: Is the tide turning? Whatever may be the pattern of the future development of the law in relation to this cause of action, the following propositions illustrate that the application simpliciter of the reasonable foreseeability test is, today, far from being operative. that although both the tests of reasonable foreseeability and proximity were satisfied, a duty of care was precluded by considerations of public policy and (Griffiths L.J.) A v Chief Constable of South Yorkshire High Court Brian Harrison lost two brothers, while Robert Alcock lost a brother-in-law and identified the body at the mortuary at midnight. This is no more than the natural and inevitable result of the growing appreciation by modern medical science of recognisable causal connections between shock to the nervous system and physical or psychiatric illness. In the case of those within the sphere of reasonable foreseeability the proximity factors mentioned by Lord Wilberforce in McLoughlin v. O'Brian  1 AC 410, 422, must, however, be taken into account in judging whether a duty of care exists. 394, mourners at a funeral, apparently relatives of the deceased, recovered damages for shock allegedly occasioned by negligence of the defendant's tram driver in damaging the hearse and upsetting the coffin. It was a semi-final of the F.A. Lord Oliver made one of the first attempts to distinguish between secondary and primary victims in tort law. All were agreed that actually witnessing or being present at or near the scene of an accident was not essential to ground liability in an appropriate case, but that the duty might equally be owed to one who comes upon the immediate aftermath of the event. In the case of both Brian Harrison and Robert Alcock, although both were present at the ground and saw scenes which were obviously distressing and such as to cause grave worry and concern, their perception of the actual consequences of the disaster to those to whom they were related was again gradual. 359H-360G. Alcock v. Chief Constable of South Yorkshire Police (1991) 3 WLR 1057 Cases referrred Bourhill v. Young [1943 A.C. 92] para 5 McLoughlin v. O'Brian [(1983) 1 A.C. 410]. Was a duty of care owed by the police department to the spectators present at the match? Unlike the three cases to which I have referred in which the plaintiff was merely an observer of the accident or its immediate aftermath, Dooley was operating the crane and was therefore intimately involved in, albeit in no way responsible for, the accident. I assume that Mr. Harrison's relationship with his brothers was not an abnormal one. The bench drew a clear distinction between primary and secondary victims in order to decide this case. The Chief Constable of South Yorkshire Police Defendants - - - - - - - - - - - - - - - - - ... the police force which polices the South Yorkshire area, which I shall call SYP. In both McLoughlin v. O'Brian  1 A.C. 410 and in Alcock v. Chief Constable of South Yorkshire  1 A.C. 310, members of the House referred to Chadwick with approval. It would, for instance, have made no difference to the result in Hambrook v. Stokes Brothers  1 K.B. AUTHOR: Asmi Chahal, 1st year, THE ICFAI UNIVERSITY, ICFAI LAW SCHOOL, DEHRADUN. What is more difficult to account for is why, when the law in general declines to extend the area of compensation to those whose injury arises only from the circumstances of their relationship to the primary victim, an exception has arisen in those cases in which the event of injury to the primary victim has been actually witnessed by the plaintiff and the injury claimed is established as stemming from that fact. I consider that not only the purpose of the visits to the mortuary but also the times at which they were made take them outside the immediate aftermath of this disaster. In my opinion the viewing of these scenes cannot be equiparated with the viewer being within "sight or hearing of the event or of its immediate aftermath," to use the words of Lord Wilberforce  1 AC 410, 423B, nor can the scenes reasonably be regarded as giving rise to shock, in the sense of a sudden assault on the nervous system. The fact that the defendant's negligent conduct has foreseeably put the plaintiff in the position of being an unwilling participant in the event establishes of itself a sufficiently proximate relationship between them and the principal question is whether, in the circumstances, injury of that type to that plaintiff was or was not reasonably foreseeable. No case prior to the hearing before Hidden J. from which these appeals arise has countenanced an award of damages for injuries suffered where there was not at the time of the event a degree of physical propinquity between the plaintiff and the event caused by the defendant's breach of duty to the primary victim nor where the shock sustained by the plaintiff was not either contemporaneous with the event or separated from it by a relatively short interval of time. In Jaensch v. Coffey (1984) 155 C.L.R. The common features of all the reported cases of this type decided in this country prior to the decision of Hidden J. in the instant case and in which the plaintiff succeeded in establishing liability are, first, that in each case there was a marital or parental relationship between the plaintiff and the primary victim; secondly, that the injury for which damages were claimed arose from the sudden and unexpected shock to the plaintiff's nervous system; thirdly, that the plaintiff in each case was either personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards; and, fourthly, that the injury suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim. Facts This is a particular instance where the law not only considers that the individual responsible for an accident should foresee that persons will come to the rescue and may be shocked by what they see but also considers it appropriate that he should owe to them a duty of care. (2d) 651]. Whilst, therefore, I cannot, for the reasons which I have sought to explain, accept Mr. Woodward's submission that it is for your Lordships to lay down, on grounds of public policy, an arbitrary requirement of the existence of a particular blood or marital relationship as a pre-condition of liability, I equally believe that further pragmatic extensions of the accepted concepts of what constitutes proximity must be approached with the greatest caution. The trial judge having held that the injury complained of was not reasonably foreseeable, his decision was upheld by the Court of Appeal  Q.B. 10 Alcock v Chief Constable of South Yorkshire Police  AC 310. In this chapter, I argue that Alcock was an essentially conservative 599 on the rather different grounds (Stephenson L.J.) The case of a bystander unconnected with the victims of an accident is difficult. Into the same category, I believe, fall those cases such as Dooley v. Cammell Laird & Co. Ltd.  1 Lloyd's Rep. 271, Galt v. British Railways Board (1983) 133 N.L.J. Alcock and others v Chief Constable of the South Yorkshire Police CIVIL But if that be so, the limitation must be based upon policy rather than upon logic for the suffering and shock of a wife or mother at witnessing the death of her husband or son is just as immediate, just as great and just as foreseeable whether the accident be due to the victim's own or to another's negligence and if the claim is based, as it must be, on the combination of proximity and foreseeability, there is certainly no logical reason why a remedy should be denied in such a case. INTRODUCTION 1. Donovan J. drew the inference that the men in the hold were friends of the plaintiff and later stated, at p. 277: Although Donovan J. treated the matter simply as one of reasonable foreseeability, I consider that the case was a very special one. That can be expressed in various ways. He did not altogether close the door to an enlargement of the area of the possible duty but observed: In so far as this constituted an invitation to courts seized of similar problems in the future to draw lines determined by their perception of what public policy requires, it was an invitation accepted by Parker L.J. Ten only of these fifteen plaintiffs now appeal to your Lordships' House, with leave granted in the Court of Appeal. This case represents a further stage in the long and unhappy dispute between the The answer cannot, I think, lie in the greater foreseeability of the sort of damage which the plaintiff has suffered. Alcock v Chief Constable of South Yorkshire House of Lords. For example, in his illuminating judgment in Jaensch v. Coffey, (1984) 155 C.L.R. The claimant has to see or hear the horrific event or its immediate aftermath to succeed in his claim. The underlying logic of allowing claims of parents and spouses is that it can readily be foreseen by the tortfeasor that if they saw or were involved in the immediate aftermath of a serious accident or disaster they would, because of their close relationship of love and affection with the victim be likely to suffer nervous shock. All the plaintiffs claimed damages for nervous shock resulting in psychiatric illness which they alleged was caused by the experiences inflicted on them by the disaster. That injury sustained through nervous shock was capable of grounding a claim for damages was never in doubt, but the pursuer's claim failed because injury of that type to her was not within the area of the deceased's reasonable contemplation. Psychiatric damage rules apply where there is no physical injury. It was argued on their behalf that the law has never excluded strangers to the victim from claiming for nervous shock resulting from the accident. This was the first case in the United Kingdom in which a plaintiff who neither saw nor heard the accident nor saw its aftermath at the locus successfully claimed damages for nervous shock. I would only add that I cannot, for my part, regard the present state of the law as either entirely satisfactory or as logically defensible. No remoter relative has successfully claimed in the United Kingdom. The means by which the shock is caused constitutes a third control, although in these appeals I find it difficult to separate this from proximity. Concurring as I do in that conclusion, I do not consider that it would be helpful to add further observations of my own to what has already been said by your Lordships. Case: Alcock v Chief Constable of South Yorkshire Police  UKHL 5 Secondary victim claims: Is the tide turning? The "control mechanisms" were "more or less arbitrary conditions which a plaintiff had to satisfy and which were intended to keep liability within what was regarded as acceptable bounds". 418 and 419, the position so far reached in the decided cases on nervous shock, he expressed the opinion that foreseeability did not of itself and automatically give rise to a duty of care owned to a person or class of persons and that considerations of policy entered into the conclusion that such a duty existed. 439-443. The other plaintiff who was present at the ground, Robert Alcock, lost a brother-in-law. 421-423: Lord Bridge of Harwich, with whom Lord Scarman agreed, at p. 431D-E, appears to have rested his finding of liability simply on the test of reasonable foreseeability of psychiatric illness affecting the plaintiff as a result of the consequences of the road accident, at pp. That, however, is not to say they must necessarily be excluded. What remains in issue is whether the defendant owed any duty in tort to the plaintiffs to avoid causing the type of injury of which each plaintiff complains. The present position in relation to recognisable claims is that parents and spouses have been held entitled to recover for shock caused by fear for the safety of their children or the other spouse. These appeals seek to extend further the circumstances in which damages for nervous shock may be recovered. View the full article today Register to read this article 40 was a case where the only issue was not recoverability of damages but the correct quantum in the particular circumstances. As I read the evidence, the shock in each case arose not from the original impact of the transmitted image which did not, as has been pointed out, depict the suffering of recognisable individuals. It appears that they were in very much the same condition as they would have been had the mother found them at the scene of the accident. These three all watched scenes from Hillsborough on television, but none of these depicted suffering of recognisable individuals, such being excluded by the broadcasting code of ethics, a position known to the defendant. 2016/2017 2. But such a causal link is assumed for the purposes of these appeals. For this reason Lord Wilberforce said in McLoughlin v. O'Brian  1 AC 410, 421-422: The class of persons with recognisable claims will be determined by the law's approach as to who ought according to its standards of value and justice to have been in the defendant's contemplation: again McLoughlin v. O'Brian, per Lord Wilberforce, at p. 420F. 549, Deane J. expressed the view that no claim could be entertained as a matter of law in a case where the primary victim is the negligent defendant himself and the shock to the plaintiff arises from witnessing the victim's self-inflicted injury. CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE - and - DISCLOSURE AND BANNING SERVICE First Defendant ... Approved Judgment . The Chief Constable of South Yorkshire has admitted liability in negligence in respect of the deaths and physical injuries. A joined action was brought by Alcock and several other claimants against the head of the South Yorkshire Police. They crammed into pens 3 and 4, below the West Stand, and in the resulting crush 95 people were killed and over 400 physically injured. Moreover, this case originally gave the concept of claiming damages as a ‘secondary victim’ and ‘primary victim’. Copoc and others (Appellants) v. Wright (sued as Chief, Constable of the South Yorkshire Police (Respondent), Alcock and others (Appellants) v. Wright (sued as Chief, Constable of the South Yorkshire Police) (Respondent). Appeal from – Alcock and Others v Chief Constable of South Yorkshire Police CA 31-May-1991 The defendant policed a football match at which many people died. All five justices allowed the appeal. In Dooley v. Cammell Laird & Co. Ltd. 1 Lloyd's Rep. 271, Donovan J. awarded damages to a crane driver who suffered nervous shock when a rope connecting a sling to the crane hooks snapped causing the load to fall into the hold of a ship in which men were working. What was there postulated was a simple test of attributed foresight of that which the ordinary person, given the hypothetical situation of his pausing to think about the consequences before acting, would see to be a likely consequence of his conduct. I do not however consider that either of these cases justify the further development of the law sought by the plaintiffs. All five justices allowed the appeal. In Alcock v. Chief Constable of South Yorkshire Police 1 A.C. 310, claims were brought by those who had suffered psychiatric injury as a result of the Hillsborough disaster. 3. To succeed in the present appeals the plaintiffs seek to extend the boundaries of this cause of action by: (1) removing any restrictions on the categories of persons who may sue; (2) extending the means by which the shock is caused, so that it includes viewing the simultaneous broadcast on television of the incident which caused the shock; (3) modifying the present requirement that the aftermath must be "immediate.". Deane J. said, at p. 608: As regards the means by which the shock is suffered, Lord Wilberforce said in McLoughlin v. O'Brian  1 AC 410, 423 that it must come through sight or hearing of the event on or of its immediate aftermath. I say nothing about the special circumstances envisaged by Nolan L.J. The circumstances affecting each of the 10 plaintiffs were thus summarised in the judgment of Parker L.J., ante, pp. The defendant admitted that if he owed such a duty to any plaintiff, and if that plaintiff could show causation, then the defendant was in breach of duty and liable in damages to that plaintiff. Accordingly, I too would dismiss the appeals and it follows from what I have said that I agree that the correctness of the decisions in Hevican v. Ruane  3 All E.R. This may be convenient but in fact the label is misleading if and to the extent that it is assumed to lead to a conclusion that they have more in common than the factual similarity of the medium through which the injury is sustained - that of an assault upon the nervous system of the plaintiff through witnessing or taking part in an event - and that they will, on account of this factor, provide a single common test for the circumstances which give rise to a duty of care. 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