The Gazette 1992

GAZETTE

JANUARY/FEBRUARY 1992

Psychiatric claims by

plaintiff; nervous shock;

proximity test for liability

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,

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.

It was common knowledge that

such ties existed and reasonably

foreseeable that those bound by

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.

As regards the means by which the

shock

was

s u f f e r ed,

Lord

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