The Gazette 1992

GAZETTE

JANUARY/FEBRUARY 1992

Psychiatric claims by plaintiff; nervous shock; proximity test for liability In Alcock and Others -v- Chief Constable of South Yorkshire Police, [1991] 4 All ER 907, the House of Lords held that liability for psychiatric illness depended on foreseeability and a relationship of proximity between the claimant and the defendant. The House of Lords stated that psychiatric claims by plaintiffs in close family relationships w i th the victims of the Hillsborough disaster were recognisable. They were based on the rebuttable presump- tion of love and affection normally associated w i t h t hat relation- ship. But such claims were not to be confined to those relation- ships. The Court held that it was not reasonable to regard v i ew i ng scenes of a disaster on live tele- vision broadcasts as giving rise to shock, in the sense of a sudden assault on the nervous system. Lord Keith said that the litigation arose out of the disaster at Hillsborough Stadium, Sheffield, on April 15, 1989 when 95 people died in t he c r ush and more t han 4 0 0 were injured. South Yorkshire Police were responsible for crowd control and the chief constable had admitted liability in negligence in respect of the deaths and physical injuries. Sixteen separate actions were brought against the chief constable by persons none of wh om was present in the area where the disaster occurred, although four of t h em we re e l sewhe re in t he ground. All of them were con- nec t ed in various ways w i t h persons who were in that area, being related to such persons or, in one case, being a fiancé. In most cases, the person with wh om the plaintiff was concerned was killed, in other cases that person was injured, and in one case turned out to be uninjured. All the

plaintiffs claimed damages for nervous shock resulting in psy- chiatric illness which they alleged was caused by the experiences inflicted on them by the disaster. The question of liability in negli- gence for what was commonly, if inaccurately, described as "ner- vous shoc k" has only twi ce been considered by the House of Lords, in Bourhill-v- Young [1943] AC 92, and in McLoughlin -v- O'Brian, [1983] 1 AC 410, 421-423 where Lord Wilberforce expressed the opinion that foreseeability did not of itself and automatically give rise to a duty of care owed to a person or class of persons and that considerations of policy entered into the conclusion that such a duty existed. In addition to reasonable fore- seeability, Lord Keith considered that liability for injury in the particular form of psychiatric illness must depend also on a relationship of proximity between the claimant and the party said to owe the duty. As regards the class of persons to whom a duty might be owed to take reasonable care to avoid inflicting psychiatric illness through nervous shock sustained by reason of physical injury or peril to another, it was sufficient that reasonable foreseeability should be the guide. However, the class would not be limited by reference to particular relationships such as husband and wife or parent and child. The kinds of relationship which might involve close ties of love and affection were numerous, stated Lord Keith, and it was the existence of such ties which led to mental disturbance when the loved one suffered a catastrophe. They might be present in family relationships or those of close friendship, and might be stronger in the case of engaged couples than in that of persons who had been married to each other for many years.

them might in certain circum- stances be at real risk of psychiatric illness if the loved one was injured or put in peril. The closeness of the tie would, however, be required to be proved by a plaintiff, although no doubt would be capable of being presumed in appropriate cases. Wilberforce had said in McLoughlin -v- O'Brian (at p434) that it must come through sight or hearing of the event or of its immediate after- math. He also said that it was surely right that the law should not compensate shock brought about by commun i ca t i on by a third party. Of the present plaintiffs, Lord Keith said that Brian Harrison and Robert A l c o ck we re p r esent at t he Hillsborough ground, both of them in the West Stand, from which they witnessed the scenes in pens 3 and 4. Brian Harrison lost t wo brothers, while Robert Alcock lost a brother- in-law and identified the body at the mortuary at midnight. In neither of those cases was there any evidence of particularly close ties of love or affection w i th the brothers or brother-in-law. The mere f a ct of t he pa r t i cu l ar relationship was insufficient to place the plaintiff within the class of persons to wh om a duty of care could be owed by defendant as being foreseeably at risk of psy- chiatric illness by reason of injury or peril to the individual concerned. Lord Keith said the same was true of other plaintiffs who were not present at the ground and who lost brothers, or in one case a grandson. However, Mr and Mrs Copoc, whose son was killed, would be placed in the category of members of which risk of psychiatric illness was reasonably foreseeable. Alexandra Perk, who lost her fiancé, would be in the same category. In each of those cases the closest ties of love and affection fell to be presumed from the fact of the particular relationship, and there As regards the means by which the shock was s u f f e r ed, Lord

It was common knowledge that such ties existed and reasonably foreseeable that those bound by

27