Police cannot recover over Hillsborough trauma
(1998) The Times, December 4 HOUSE OF LORDS
Frost and Others v Chief Constable of South Yorkshire Police and Others
At Volume LXX, Number 2 April-June 1997 Police Journal reported the Court of Appeal Decision in Frost and Others v Chief Constable of South Yorkshire Police, (1996) The Times November 6 Court of Appeal, which carried the headline, "Some rescuers can recover - even police officers".
The Court of Appeal Decision.
This was a Majority decision of 2 to 1. In that case we reported that all except PC Glave were found to be rescuers but he, being at the ground in the course of duty, and within the area of risk of physical or psychiatric injury, was by the first defendant's negligence, exposed to the horrific events which ensued. There was thus a breach of duty to him by the first defendant. The appeal of Sergeant Janet Smith, who was employed only on mortuary duties after the event, was dismissed.
Whereas in cases outside the master and servant relationship the courts had found it necessary, in identifying those to whom a duty of care was owed, to draw a distinction between primary and secondary victims and to impose limiting criteria to determine those within the second category who could recover, in the master and servant context, a duty of care existed solely by reason of that relationship.
The standard of care required in the discharge of that duty and the degree of proximity would vary from case to case according, among other matters, to the nature of the job and the degree of fortitude to be expected of the employee. So a rescuer, whether a policeman or layman, might recover against a tortfeasor for physical or psychiatric injury caused in the course of his employment by the employer's negligence.
A mere bystander, whether a policeman or a layman, who was not a rescuer and to whom no duty such as that arising from the master and servant relationship was owed by the tortfeasor, would not generally recover McFarlane v E. E. Caledonia Ltd
and would only be able to do so if he was linked by ties of love and affection to a primary victim and otherwise fulfilled the criteria enunciated in McLoughlin v O'Brian; Alcock v Chief Constable of South Yorkshire Police and Page v Smith.
The Court of Appeal so stated allowing, by a majority, appeals by four police officers, Inspector White, PC Bairstow, PC Bevis and PC Glave, from the dismissal (The Times July 3, 1995) of their claims for psychiatric injury sustained as a result of tending victims of their employer's negligence arising out of the disaster at Hillsborough Stadium, Sheffield on April 15, 1989.
The appeal has now reached the House of Lords, where they allowed the Appeal.
The House of Lords Decision.
Lord Steyn said, in an ideal world all those who suffered as a result of the negligence ought to be compensated. But we lived in a practical world where the tort system imposed limits to the classes of claim that ranked for consideration as well as to the heads of recoverable damages. That resulted of course in imperfect justice, but it was by and large the best the common law could do.
The application of the requirement of reasonable foreseeability was sufficient for the disposal of the resulting claims for death and physical injury. But the common law regarded reasonable foreseeability as an inadequate tool for the disposal of claims in respect of emotional injury.
The Different Categories of persons.
The law divided those who were mentally scarred by the events of Hillsborough in different categories. There were those whose mental suffering was a concomitant of physical injury. That type of mental suffering was routinely recovered as "pain and suffering".
Next there were those who did not suffer any physical injuries but sustained mental suffering. For present purposes that category had to be subdivided into two groups:
(i) those who suffered from extreme grief, including cases where the sufferer's condition was debilitating; and
(ii) those whose suffering amounted to a recognisable psychiatric illness.
Diagnosing a case as falling within the first or second category was often difficult. The symptoms could be substantially similar and equally severe. Yet the law denied redress in the first case.
But grief constituting pathological grief disorder was a recognisable psychiatric illness and was recoverable. Only recognisable psychiatric harm ranked for consideration.
Where the line was to be drawn was a matter for expert psychiatric evidence. That distinction served to demonstrate how the law could not compensate for all emotional suffering even if it was acute and truly debilitating.
The four police officers were actively helping to deal with the human consequences of the tragedy and as a result suffered from post traumatic stress disorder.
They put in the forefront of their case that they suffered harm as a result of a tort and that justice demanded that they should be compensated.
A constant theme of argument for the police officers was that there was no justification for regarding physical and psychiatric injury as different kinds of damage, and in so arguing counsel was repeating an observation made in Page v Smith [1996] AC 155, 197G.
Nowadays courts accepted that there was no rigid distinction between body and mind, and that a recognizable psychiatric illness resulted from an impact on the central nervous system.
In that sense therefore there was no qualitative difference between physical and psychiatric harm. And the latter harm might be far more debilitating than the former.
It would however be an altogether different proposition to say that no distinction was made or ought to be made between principles governing the recovery of damages in tort for physical injury and psychiatric harm. The contours of tort law were profoundly affected by distinctions between different kinds of damage or harm.
Policy considerations had undoubtedly played a role in shaping the law governing compensation for pure psychiatric harm. It was settled law that bystanders at tragic events, even if they suffered foreseeable psychiatric harm were, for compelling policy reasons, not entitled to recover damages: see Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.
The police officers in the present case were more than mere bystanders. They were all involved in assisting in the course of their duties in the aftermath of the events. And they had suffered debilitating psychiatric harm.
His Lordship was persuaded that a recognition of their claims would substantially expand the existing categories in which compensation could be recovered for pure psychiatric harm. Moreover, the awarding of damages to them sat uneasily with the denial of the claims to bereaved relatives by the decision in the Alcock case.
The Law Pre Alcock v Chief Constable of South Yorkshire Police
[1992] 1 AC 310
Before that case the general rule was that only parents and spouses could recover for psychiatric harm suffered as a result of witnessing a traumatic event.
That case established that a person who suffered reasonably foreseeable psychiatric injury as a result of another person's death or injury could not recover damages unless he could satisfy the requirements that:
(i) he had a close tie of love and affection with the person killed, injured or imperilled,
(ii) that he was close to the incident in time and space, and
(iii) that he directly perceived the incident, rather than, for example, hearing about it from a third person.
Primary or Secondary Victim?
The next important development was Page v Smith [1996] AC 155, where a distinction was drawn between primary and secondary victims.
To be a primary victim one must have been within the zone of physical, as opposed to psychiatric, injury. The plaintiff who was directly involved in a motor car accident fulfilled that requirement and could, in principle, recover compensation for psychiatric loss.
In his Lordship's view it followed that all other victims who suffered pure psychiatric harm were secondary victims and had to satisfy the control mechanisms set down in the Alcock case.
The employment argument.
The instant case was also argued on conventional employer's liability principles. Counsel relied on the undoubted duty of an employer to protect employees from harm through work.
Although there was no contract between a police officer and a chief constable, the relationship was closely analogous to a contract of employment and his Lordship was content to approach the problem as if there was such a contract.
The two separate themes to the argument:
The first rested on an employer's duty to care for the safety of his employees and to take reasonable steps to safeguard them from harm. When analysed that argument broke down.
It was a non-sequitur to say that because an employer was under a duty to an employee not to cause him physical injury, the employer should as a necessary consequence of that duty, of which there was no breach, be under a duty not to cause the employee psychiatric injury.
The rules to be applied to an action against an employer for harm suffered at the workplace were the rules of tort. One was therefore thrown back to the ordinary rules of the law of tort which contained restrictions on the recovery of compensation for psychiatric harm.
If the employer's duty to safeguard his employees from harm was formulated in contract as a term implied by law, such a term could not be wider than the duty imposed by the law of tort. Therefore the argument based on an employer's duty did not assist the police officers.
The second theme was an argument as to where justice lay on this occasion. One was considering the claims of police officers who sustained serious psychiatric harm in the course of performing their duties in harrowing circumstances.
That was a weighty moral argument: the police performed their duties for the benefit of us all.
The twofold Difficulty.
First, the pragmatic rules governing the recovery of compensation for pure psychiatric harm did not at present include police officers who sustained such injuries while on duty.
If such a category were to be created by judicial decision, the new principle would be available in many different situations, for example doctors and hospital workers who were exposed to the sight of grievous injuries and suffering.
Second, it was common ground that police officers who were traumatised by something they encountered in their work had the benefit of statutory schemes which permitted them to retire on pension.
In that sense they were better off than bereaved relatives who were not allowed to recover in the Alcock case.
The claims of the police on our sympathy, and the justice of the case, were great but not as great as that of others to whom the law denied redress.
The rescue argument.
The majority in the Court of Appeal held that three of the police officers could be classed as rescuers because they actively gave assistance in the aftermath of the tragedy, and used the concept of rescuer in an undefined and very wide sense.
The law had long recognised the moral imperative of encouraging citizens to rescue persons in peril. Those who altruistically exposed themselves to danger in an emergency to save others were favoured by the law.
A rescue attempt to save someone from danger would be regarded as foreseeable. The question in the present case was: who could recover damages in respect of pure psychiatric harm sustained as a rescuer?
Counsel for the police officers supported the Court of Appeal's reasoning, and invoked the concept of a rescuer as an exception to the limitations recognised by the House of Lords in the Alcock case and Page v Smith.
His Lordship said that the specific difficulty counsel faced was that none of the four police officers was at any time exposed to personal danger and none thought he was so exposed.
In order to recover compensation for pure psychiatric harm as rescuer it was not necessary to establish that the psychiatric condition was caused by the perception of personal danger.
But in order to contain the concept of rescuer in reasonable bounds for the purposes of the recovery of compensation for pure psychiatric harm the plaintiff must at least satisfy the threshold requirement that he objectively exposed himself to danger or reasonably believed that he was doing so.
Without such limitation one would have the unedifying spectacle that, while bereaved relatives were not allowed to recover, ghoulishly curious spectators who assisted in some peripheral way in the aftermath of a disaster might recover.
It would be an unwarranted extension of the law to uphold the claims of the police officers.
Lord Hoffmann delivered a concurring judgment; Lord Browne-Wilkinson agreed with Lord Steyn and Lord Hoffmann. Lord Goff delivered a dissenting judgment.
LORD GRIFFITHS, (dissenting in part), said he would allow the appeals in so far as the plaintiffs relied on their status as employees but would dismiss the appeals in respect of those who came within the special category of rescuers.
The Decision.
Police officers who suffered psychiatric injury as a result of being involved in the aftermath when several spectators were killed and others severely injured at Hillsborough Football Stadium in Sheffield were NOT entitled to recover damages against the chief constable either as employees or as rescuers.
The House of Lords so held by a majority, when allowing an appeal by the Chief Constable of South Yorkshire Police, from a decision of the Court of Appeal (The Times November 6, 1996; [1997] 3 WLR 1194 allowing an appeal by the plaintiff police officers, Henry White, Edward Bairstow, Anthony Bevis and Geoffrey Arthur Glave, from Mr Justice Waller (The Times July 3, 1995) who had dismissed the plaintiffs' action against the chief constable and other defendants, namely Sheffield Wednesday Football Club and Eastwood & Partners (a firm), for damages for personal injuries suffered on April 15, 1989 due to the defendants' negligence and/or breach of statutory duty.
Comment
The case commentary at Police Journal LXX , Number 2 page 174, stated, inter alia, "The dissenting Judgment may be held to reflect the belief by many, as expressed by the courts generally, that each case must be judged on its merits, none of us joined the Police, Fire Service, or Armed Forces for an easy time, however there are limits and the Court of Appeal are searching for that happy medium, as such they need the wisdom of Solomon or the House of Lords to assist them."
What do we ask of our police officers? Detective Sergeant Alec J Comrym writing in 1947, "Your Policemen are Wondering", had this to say, "He (the police officer) comes in on the very peak of tragedy, often, in fact, bringing it with him. When the employer has shaken his head, the stethoscope been put away, the house burnt itself out, the crowd finished gasping, the dirtiest work has yet to be done. Somebody must knock on the door and arrest the embezzling clerk, do something with the girl of the streets taken in labour, remove the charred remains to the mortuary, inform the wife of the husband's perfidy, the mother of the child's death, and so on.
It falls to the lot of the policeman. Having that in mind that he is after all, a creature of flesh and blood and not a buff envelope, how does he react to those moments"?
In 1999 your Police men and women are still wondering.
Not Solomon; but five Law Lords sat in judgment, one who would have found in part for the police, LORD GRIFFITHS said he would allow the appeals in so far as the plaintiffs relied on their status as EMPLOYEES but would dismiss the appeals in respect of those who came within the special category of rescuers.
His Lordship did not share the view that the public would find it in some way offensive that those who suffered disabling psychiatric illness as a result of their efforts to rescue the victims should receive compensation but that those who suffered the grief of bereavement should not.
Bereavement and grief were part of the common condition of mankind which everyone would endure at some time in life. It could be an appalling experience but it was different in kind from psychiatric illness, and the law had never recognised it as a head of damage.
Part of the price of our humanity was the suffering of bereavement, for which no sum of money could provide solace or comfort. His Lordship thought better of his fellow men than to believe that they would, although bereaved, look like dogs in the manger upon those who went to the rescue at Hillsborough.
Accordingly his Lordship WOULD have allowed the appeal only in respect of PC Glave, who was not a rescuer but relied upon his status as an employee.
Rob Jerrard