(1996) The Times November 6 Court of Appeal
Some rescuers can recover - even police officers.
Frost and Others v Chief Constable of South Yorkshire Police and Others
The Facts
ROSE LJ (HENRY LJ,, agreeing) said that the immediate cause of the disaster was a senior police officer's decision to open an outer gate without cutting off access to the pens. Liability for the deaths and injuries of the spectators was admitted by the defendants, the first of whom was the plaintiffs' chief constable.
The defendants admitted negligence but disputed the existence of any duty to the plaintiffs. It was not in issue that the plaintiffs all sustained post traumatic stress disorder.
Liability had been admitted and damages assessed in relation to 14 police officers who either entered the pens or were active at the fence. The roles played by the present plaintiffs represented the different types of activity carried out by the remaining 23 claimants.
Two grounds were argued on appeal: first, breach of duty of care by the chief constable, arising from the plaintiffs' service as police officers when acting under his direction and control; second, breach of a duty owed to them as rescuers.
The judge had found, (See (1995) The Times, July 3) as to the first ground, that a relationship analogous to master and servant existed between the chief constable and the plaintiffs, giving rise to a duty of care embracing psychiatric illness, but that duty did not arise where the police officer was a secondary victim, unless he could succeed as a rescuer and such a duty could not place a police officer in a better position than a bystander.
As to the second ground, he had found that only Inspector White was a rescuer in law and he could not recover since, being a professional rescuer not intimately participating in the rescue itself or in the immediate aftermath, it would be unattractive and not just and reasonable that he could recover whereas a bystander could not.
Lord Lloyd categorisation of primary and secondary victims in Page v Smith [1966] 1 AC 155 did not expressly or by implication have the rescue cases in mind: indeed none of them was cited either in the speeches or in argument.
In any event the present plaintiffs, apart from Smith who was not at the ground until long after the event, being directly involved in the course of their employment, in the consequences flowing from their employer's negligence, were primary victims.
Lord Lloyd's observation "There is no justification for regarding physical and psychiatric injury as different 'kinds' of injury" was a generally applicable statement of the current law.
If firemen should not be at any disadvantage in relation to compensation for injury Ogwo v Taylor [1988] AC 431, 448 per Lord Bridge there was no reason why policemen should be at a disadvantage.
Whether a particular plaintiff was a rescuer was, in each case, a question of fact to be decided in all the circumstances of the case.
Among the factors to be considered, although none was in itself decisive, were the following: the character and extent of the initial incident caused by the tortfeasor; whether that incident was finished or was continuing; whether there was any danger, continuing or otherwise, to the victim or to the plaintiff; the character of the plaintiff's conduct, in itself and in relation to the victim; and how proximate, in time and place, the plaintiff's conduct was to the incident.
In none of the cases before the House of Lords since Ogwo v Taylor [1988] AC 431 was the plaintiff either a servant of the defendant or a rescuer and although, in McFarlane v E. E. Caledonia [1994] 2 ALL E.R 2 the plaintiff was a servant, he was off duty at the time and no claim was made on the basis that his employers owed him a duty of care.
That was a crucial matter which explained why some of the present plaintiffs might succeed where the plaintiffs in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 failed.
The distinction was not due to any preference being given by the courts to policemen over laymen. It existed because the court had long recognised a duty of care to guard employees and rescuers against all kinds of injury, whereas in deciding whether any duty of care existed towards plaintiffs who were not employees, rescuers, or primary victims, the courts had, in recent years, imposed specific criteria in relation to claims for psychiatric injury.
Dissenting Judgment
JUDGE,LJ dissenting-, said, that without repeating Rose LJ'sanalysis of the parts played by each individual plaintiff, he had considered each claim in the light of the principles set out in the judgments and on the assumption that each plaintiff suffered psychiatric illness consequent on his, or her respective involvement in the disaster.
The involvement of each plaintiff had been brought about by the necessary efforts to mitigate the earlier negligence by police officers for whom the chief constable was responsible and, save for Smith, each came within the rescue principle in its broad unrestricted sense.
Save in the limited sense that some of the plaintiffs were concerned about possible violent reactions from individuals in the crowd, none was at any time present in an area where he, or she was exposed to the risk, actual or apprehended, of physical injury arising from the chief constable's negligence.
Accordingly, the control mechanism applied. In each case the necessary proximity of relationship between the plaintiff and any person suffering injury or death was not established.
Moreover, with the arguable exception of Inspector White, the necessary proximity in time and place was also absent.
Finally, despite Counsel for the plaintiff's contentions to the contrary, there was no better basis for concluding that psychiatric injury was foreseeable in the case of any of the plaintiffs in the present appeal than it was for the plaintiffs all of whose claims failed in Alcock in the Court of Appeal or the House of Lords or both.
The Decision (Majority of 2 to 1)
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.
COMMENT
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.
For accounts of what people experienced that day see, "The Day of the Hillsborough Disaster" A Narrative account by R Taylor, A Ward & T Newburn published by the Liverpool University Press 1995.
NEW WITNESS CLAIMS FOOTAGE ON VIDEO CONTRADICTS POLICE
It may be that the Granada TV program "Hillsborough", a preview of which was shown to the families (26th November 1996) will rekindle the Hillsborough dispute
Families of the supporters who died at Hillsborough are to seek legal advice after seeing the preview of a drama-documentary which claims to have unearthed new evidence about the disaster.
Granada Television, the maker of Hillsborough, said that a sworn affidavit from a "new witness" conflicted with police accounts.
The Granada programme, written by Jimmy McGovern, the creator of Cracker.
The allegation is that footage from the video camera disappeared before the damning inquiry report by Lord Justice Taylor.
It is understood (Per the Report in The Times) that South Yorkshire Police and the Coroner's Office concerned declined to participate in research for the programme. A police spokeswoman said that there would be no comment on Hillsborough until the programme had been broadcast. "We take the view that this is just opening up old wounds and upsetting the families."
Trial by Television has never been seen as giving a fair balance of the truth.
BY WAY OF ADDITIONAL COMMENT it is intriguing to compare the result of a recent Scottish case involving damages, also at a football ground, In Gillon v Chief Constable of Strathclyde Police and Another (1996) The Times, 22 November it was held that the risk of injury to constable at match was too remote. There was a foreseeable risk that a police constable watching the spectators at a football match would be injured by a player who was impelled off the pitch in the course of the game, but the risk was so small that a reasonable man would not guard against it.
In any event, it would be unreasonable to require the proprietors of the football ground to erect a barrier between the players and the pitch-side track.
Lord Johnston, so held, absolving the Chief Constable of Strathclyde Police and the Airdrieonians' Football Club of liability to make reparation to Mrs Gillon.
Mrs Giiion, in the course of her duties as a police sergeant, had been engaged in crowd control duties at a football match when she had suffered certain injuries, for which damages had been agreed.
The event had been recorded on video and accordingly there was little dispute as to the precise circumstances. The enclosure had been separated from the pitch by a track approximately eight feet wide and a strip of turf to the by-line approximately 30in wide.
Gillon had charge of 10 officers spaced around the track. She had patrolled the whole area.
While she was standing with her back to the pitch, a Celtic player, in endeavouring to control the ball, had departed from the pitch and had cannoned into the back of the Gillon with such force that she was propelled from her standing position at the pitch-side edge of the track right across it, and into the barrier at the bottom of the enclosure.
General standing orders of the constabulary provided that one of the Gillon's duties had been not to be a spectator at the match, but to police the crowd. It was clear that neither the police nor the club had ever even addressed the question of whether there was any risk to stewards or police patrolling the track of collisions with players.
Gillon's case was that the chief constable should have qualified the standing orders with a general warning to keep an eye on the pitch in the interests of their own safety, and that the club should have erected a barrier between the pitch and the track.
In addressing the nature and quantification of the risk of such an accident to the Gillon, his Lordship had concluded that it had been foreseeable, but sufficiently small as not to warrant any precautions from a reasonable man addressing it.
He did so having regard to the absence of previous incidents and the extraordinary concatenation of circumstances that led to this most unfortunate incident: namely, the facts that the gillon was looking at the crowd because of an incident taking place involving her men; that the player came off the pitch at such speed out of control; and that he did so with sufficient force actually to cause injury.
Even if the risk was generally identifiable, so that the precise mechanisms need not be foreseen, there had been evidence of a lack of any previous such incident across the whole spectrum of football.
The literally thousands of hours police officers had to spend in positions similar to the Gillon rendered the risk so minimal that it could be ignored: see Bolton v Stone [1951] AC 850, 869 per Lord Radcliffe.
On the whole matter, Gillon's case failed, no doubt she had sustained a genuine injury while carrying out conscientiously her duties in accordance with her instructions, but the accident, unfortunate and tragic as it had been, had to be regarded as such and no more.
Rob Jerrard