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Published: Fri, 02 Feb 2018
The police men in white
The issue in question is whether the police men in white V chief constable of south Yorkshire, should have been successful in their claim for their psychiatric injuries on the notion that it would be incremental development of the law on psychiatric injury. In turn, the answer depends on critical analysis of the law of psychiatric injury and its development with case of White V Chief constable of South Yorkshire (White).
To answer the question at hand one must play a closer look to the fact of the case of White V Chief Constable of South Yorkshire#( 2 A.C. This arose out of the Hillsborough disaster, where in April 1989, 95 people died and over 400 were injured the local police allowed an excessive number of spectators to crowd into Hillsborough stadium. Claimants were police officers who claimed damages for psychiatric injuries they suffered as a result of their direct involvement in the Hillsborough disaster, were people were literary crushed. Five of the six claimants assisted the injured and sought to ensure that, no further danger to those leaving the ground. The sixth claimant was on duty at the mortuary. Note that none of the officers were exposed to any personal risk of physical injury. The court of appeal held by 2-1 that the police officers who were present in the ground itself had a claim in tort for psychiatric injury, but the not the officer who was at the mortuary.
The court of appeal in this instance did not abide by the doctrine of stare decisis, for the case of Alcock V Chief Constable of South Yorkshire#(1 A.C. 310. ) Facts to be discussed later, where the House of Lords denied the claimant any damages for the Hillsborough disaster. Note that court of appeal would have been influenced by the fact that in Alcock, the claimants were relatives of the victims and had no involvement in the disaster. However on the hand claimants in White were police officers who directly involved in the disaster (except one officer who was in the mortuary) and could be categorised as rescuers. For the reasons above and any other best known to the court if appeal, it decided not to follow precedent set in Alcock.
The decision of court of appeal, that police officers (except one) could claim provoked many claimants of Alcock whom were denied of the same. When the case came to the House of Lords, the Lordships reversed the decision of the lower court and openly admitting that it would be unacceptable for the police officers to be compensated while denying any antidote to the brothers and sisters who saw their relatives die horrifically#( 1 All ER 1 at 48 per Lord Hoffman).
Let us now focus on the issue, why did House of Lords reject the claims in White? First the House of Lords by the majority of 4-1 held that claimants were not primary victims. As to the first argument by the claimants that it was the employers duty to safe guard the employees from personal injuries was not accepted by the House of Lords. The claimants rested their argument on the basis that their relationship with the chief constable was similar to a contract of employment. This too was unaccepted the Lordships and the Lordships held that claimants position was no better than a normal bystander to sue in respect of the psychiatric injury on the virtue of the relationship. However the House of Lords did recognise that the employers absolutely owed a duty of care to the employee where a burden some work load is given and it is foreseeable that it will lead to stress- related illness# (Walker v Northumberland County Council  1 All ER 737 facts: employee, a social services manager suffered a nervous breakdown because of the overload of work. He returned to work after his employer gave him a promise to give him some extra assistance. The promise was broken and as result the manager suffered a second breakdown in just six months. This permanently disables his from working. Held his employers were liable for the consequences of the second breakdown.). In White the House of Lords held that where it is a form of psychiatric injury and not mere distress, that a risen not by actions of the employer to the employee, but by a traumatic experience of an third party, then the employee to be held as a secondary victim. In White, though the police officers did witness the event very closely, but they lacked the proximity of relationship, which meant that they did not have the close ties of love and affection to the victims.
In White, the claimants also argued that they were owed a duty of care as rescuer. This too was rejected by the House of Lords and insisted that a rescuer also need to full fill certain conditions such as to be in zone of physical danger or suffice conditions as secondary victim.
It should be noted that prior to the decision in White, the law on where a rescuer could have action in tort for psychiatric harm was different. In the case of Haynes V Harwood # ( 1 K.B. 146), it was held that a rescuer can claim for physical injuries that he suffers. Facts were that claimant was a police officer who was on duty in a busy streets, where he noticed the defendants horses with a van attached coming down the street. He eventually stopped it, but sustained injuries. Held that the claimant (police officer) to be compensated. The question, then arises is whether the principle in Haynes can be applied to psychiatric injury as well. This principle in Haynes was adapted in the case of Chadwick V British Transport Commission# ( 1 W.L.R. 912). Facts were that the claimant was a volunteer helper at the scene of a rail disaster and suffered mental trauma as a result. Here the court approved the claim for psychiatric injury# (Chadwick’s case was regarded as correctly decided on the basis that the claimant had been in physical danger from the collapse of the wreckage even though the judge found that it was the horrific nature of the experience rather than the fear for himself that had affected him.). This position changed after the case of White, where the House of Lords held that a rescuer can only claim if he was in actual zone of danger or satisfy the controls mechanisms set out in Alcock. In other words the House was saying to rescuer was to either bring himself under a primary victim or a secondary victim.
Lord Hoffman in his speech in White, point out two reasons why in his opinion why the rescuers should not be allowed to claim for psychiatric injury where they were not in any physical danger and suffer psychiatric injury. “The less important reason is the definitional problem to which i have alluded. The concept of a rescuer as someone who puts himself in danger of physical injury is easy to understand. But once this notion is extended to include others who give assistance, the line between them and bystanders become difficult to draw with any precision…. But the more important reason for not extending the law is that in my opinion the result would be quite unacceptable….. such extension would be unacceptable to the ordinary person because (though he might not put it this way) it would offend against his notions of distributive justice. He would think it unfair between one class of claimants and another, at best not treating like cases alike, and, at worse favouring the less deserving against the more deserving”# (at 510 in White V Chief Constable of South Yorkshire  2 A.C.) . The first reason according to Lord Hoffman is that if the law was ever extended, how can the law draw a line and distinguish which are the actual rescuers from all the claimants (bystanders who offer to help). According to the thinking of Lord Hoffman, he believes that if the duty was extended, then people not only rescuers will be demanding compensation. The second point Lord Hoffman makes is that he believes that by extending the duty to rescuers, it will go against the notion of distributive justice. Lord Hoffman reasons it out as; it would be unfair between one class of claimants over another. What it means is that it would not be the principle of distributive justice to allow one class of claimants to benefit and leave the rest of the others out.
Lord Griffith, disagreed on both points and suggested that on the definition problem could be determined on the facts of each case and on the second opinion of Lord Hoffman, he explained that the public would not find it offensive rescuers who suffer from psychiatric injury get compensated. However he went on to say “If the rescuer is in no physical danger it will only be in exceptional cases that a personal ijury in this form of psychiatric injury will be foreseeable for the law must take us to be sufficiently robust to give help at accidents that are a daily occurrence without suffering a psychiatric breakdown. But where the accident is particularly horrifying kind and the rescuer is involved with the victims in the immediate aftermath it may be reasonably foreseeable that the rescuer will suffer psychiatric injury ….” # (465 in White V Chief Constable of South Yorkshire  2 A.C.). What Lord Griffith is trying to say is that mere outside help will not be sufficient to raise a claim in psychiatric injury. The example he gives is that law cannot allow a rescuer who assist accidents on a motor way to claim for each and every accident he get himself involved. But the rescuers may have some action if they witness something particularly horrific or came across the immediate aftermath, and then he may bring an action for psychiatric injury. Because of Lord Griffith’s strong dissenting opinion, the majority at House of Lords felt that by insisting that a rescuer who only suffers from a psychiatric injury must at least reasonably foresee danger of physical injury (place himself in the zone of physical danger i.e. primary victim). Which can be quite odd, not necessarily rescuers but would anybody, go to rescue someone if they could foresee there will be physical injury?
It is very important to understand the dilemma that this decision causes. One side is that if the duty is extended then out to which extend are the courts willing to extend it? Will it open flood gates? Next is, will it cause other classes of claimants to lose its respect for the judicial system, a system which favours one class over another. On the other hand if rescuers are not allowed will they be willing to work as rescuers any longer? By not allowing rescuers to claim are the courts preventing the floodgates from opening? Should the police officers allowed to be compensated as a development of the law on psychiatric injury? The answer to all the above questions can be derived by looking at the development of the law on psychiatric injury as whole.
Psychiatric Injury can be defined as: ‘a sudden assault on the nervous system’ or ‘a sudden appreciation of a horrifying event, which violently agitates the mind’# (Lord Keith and Oliver Alcock V Chief Constable of South Yorkshire  1 AC 310).It is well established that claims for physical damage is entertained in a court of tort, but the question is whether the same is possible for a claim of psychiatric injury. Historically psychiatric injury was referred as nervous shock. However it is not the case anymore following the decision of the Court of appeal in Atlia v British Gas Plc1 (1987 3 All ER 455, 462), where it stated that psychiatric injury to be used instead of the nervous shock. Facts were that a woman saw her house burning down and received damages for psychiatric injury. The term nervous shock itself can be misleading, since it implies that the claimant can seek damages because they were due to the defendant’s negligent actions. However note that today a claimant cannot claim for mere grief and sorrow, and it has to more than mere grief and sorrow as seen the case of Hinz V Berry#( Q.B. 40.
Traditionally the courts have been unwilling to grant any compensation to claimants for psychiatric injury and it was considered as a ‘Grey Area’2 (pg 37 Ntroden Tort Law, 7th edition by Vivenne Harpwood) of the tort law. The courts gave the rational that these claims were not allowed. Initially the courts had difficulty of distinguishing a genuine claim form a fraudulent one. They were also hiding behind ‘flood gates’ stating that allowing such claims will open far too many flood gates. This meant that if they allowed one claimant to sue and get compensation for psychiatric injury then a lot of people will follow that suit. However there are other policy reasons which the courts used not to recognise psychiatric injury. Most of these policy reasons were out lined by Lord Steyn in White V Chief Constable of South Yorkshire#( 2 A.C. 455 at 493) . One was that the line between grief and psychiatric injury is difficult to draw. Establishing psychiatric injury would itself a hurdle since it involves hiring costly experts to give evidence. Secondly compensation could itself act as a deterrent to rehabilitation, which is not healthy to the claimant. Thirdly he stated that by allowing claims psychiatric injury, it would raise the class of people who will be claiming (floodgates). Fourthly he stated that extending the liability to the defendant would be disproportionate where he has only have had a momentary loss of concentration.
Though historically the courts were reluctant to award compensation to claimants of psychiatric injury, there was a development in the law in the early 1900’s. The courts were becoming aware of the need to incorporate the compensation for psychiatric injury. In the case of Dulieu V White and Sons3( 2 KB 669), the claimant was allowed to recover for psychiatric injuries, having been put in fear for her own physical safety when the defendant crashed through. In Dulieu, the claimant ho a pregnant woman who was working behind the bar, the defendants servants crashed a horse driven carriage in to the public house window Similarly in the case of Hambrook V strokes Brothers4(1925), the court again was complacent of the facts, awarded compensation to the claimant for psychiatric injury. Facts are that the claimant saw a driverless lorry heading towards her children’s school. However the courts in 1900’s were keen enough to award damages to the psychiatric injury victims, there were some instances where the courts were reluctant to do so. In the case of Bourhill v Young#(A.C. 92) where the courts refused award compensation for the claimant. In Bourhill, the claimant was a woman who seen but hard of an accident involving a cyclist unrelated to her and the court denied compensation for psychiatric injury. Though court’s recognise this duty of care and was willing to compensate victims, it was not willing to compensate on a regular basis. This can be illustrated by the Bourhill case which shows us that courts were still some times resultant to award damages for psychiatric injury.
In order to claim psychiatric injury, the claimant must show a recognised psychiatric injury such as post traumatic stress disorder, as held in the case of Vernon V Bosley# (no 1 1 All E.R. 577). In Vernon the claimant’s two children and their nanny were involved in car accident. Claimant though did not witness the original accident was called to the site immediately and watch many unsuccessful attempts to save them. Claimant claim damagers for an illness not arising from the nervous shock, but for the pathological grief disorder. Courts in this case compensated even though the claimant was claiming an abnormal grief (pathological grief disorder). The case of Mcloughlin v O’Brien#( 1 A.C. 405) is authority to say that where the claimant is suffering from organic depression and personality change, can be compensated for psychiatric injury. In O’Brien’s case, the claimant was told by a friend that members of her family were involved in a car accident, after few hours it had actually happened. Claimant then rushed to the hospital and saw the members of her family, as they would have if they were left in road just after the accident. The court held that she could be compensated for the change of personality she suffered as a result of she witnessing the family members in that state. From the facts we can comprehend that law has developed its own methods to distinguish mere grief from something above and beyond of grief.
However the position today is that if a claimant is bringing an action for psychiatric injury, he should bring himself under two categories, which is either a primary victims or a secondary victim. A primary victim is a victim who has suffered injury after being placed in danger by the defendant, rather than suffering from psychiatric injury from witnessing the act. Primary victim has to suffice two conditions in order to have successful claim. One such condition is that he must be placed zone of physical danger. This condition was upheld in the case of Page v Smith # ( A.C. 155, claimant involved in collision car drown by the defendant). This means that the claimant need to show that even that physical injury does not occur; it was reasonably foreseeable that the claimant could suffer physical injury due to the negligent acts of the defendant. Lord Lloyd in Page reasoned the decision by stating if the claimant is allowed to sue for psychiatric injury if he gets physically injured, then he should be allowed to do so even where he has fortunately escaped the physical injury. The decision in page was criticised by the Lord Ships in White. However notwithstanding the criticisms the decision in Page has been upheld in subsequent cases as correctly decided. However in the resent case of Rothwell v Chemical Cleaning and Insulating Co. # (UKHL 39.) Lord states at paragraph 95, that the principle of Page, should be limited to where the claimant had been exposed to but not where he has avoided the physical injury.
Second condition is that there must be actual danger. In most situations the claimant would have been in actual danger. This is an issue where claimant surfers psychiatric injury believing that there was actual danger but in reality there was no such danger. The law relating to such situations is vague give the contradiction opinions by Lords Ships in the White’s case. Lord Steyn states that the claimant only needs to show that he has been objectively exposed to or reasonably believed that he was#(at 499). Lord Hoffman, states that claimants need to within the range of foreseeable physical injury# (at 504). Lord Steyn’s opinion was in line with the case of Mcfarlane V E.E. Caledonia, where the claimant was neither in the zone of danger nor was there any to foresee.
Secondary victims are all those failed to be classified as primary victims. Secondary victims has control mechanisms set in the case of Alcock v Chief Constable of South Yorkshire#(1 A.C. 310). In Alcock, the claimants were family members of the Hillsborough disaster and watched in the television. In this case House of Lords had two questions to answer one was whether relatives other than parents or spouses bring an action for psychiatric harm? Second is whether the claimants who witnessed the event on the television could claim? Lordships in denying all the claimants, gave the control mechanisms. One such mechanism is the proximity of relationship, which means that there must be a close tie of love and affection to the immediate victim. House of Lords held here there was a presumption that relationship could only exit to spouses and parents and not to any other types of relationships, however if evidence can be shown to prove that such closeness excited the presumption may be rebutted. This even allows a bystander to sue if he can show evidence of closeness. This error was corrected in the case of McFarlane v E.E. Caledonia Ltd# ( 2 All E.R. 1). The second mechanism is the proximity of time and space, which means that the claimant has to witness the accident in real time. However in the case of Mcloughlin V O’Brien#( 1 A.C. 405) held that coming across the immediate aftermath is sufficient. Third and final mechanism is the proximity of perception, which means that the claimant must witness the accident or the aftermath in his own senses. Through Alcock, the courts have found a way to limit the number of secondary victims who can claim, as result keeping flood gates close.
In conclusion, considering all the above facts, in my opinion White, was correctly held by dining the police men of compensation to their claims of psychiatric injury. As seen above the police men failed to come under either primary victims or secondary victims. The Scottish Law Commission, suggest that inability for the rescuers to claim is unreasonable restriction, and the commission goes on to suggest that direct involvement in the immediate aftermath should be sufficient# (The Scottish Law Commission, Discussion Paper (No 120) on Damages for Psychiatric Injury 13 August 2002). Should the police offices be compensated for their psychiatric injuries as a development to the law on psychiatric harm? In considering the factors discussed above we can observe that the law has immensely evolved to the percent stage, historically it was not even recognised by the courts and the law on the area is very clear. As to the point on distributive justice, Lord Hoffamns opinion in White, makes it clear that by give the rescuers the chance to get compensation will create in equality among the classes of claimants.
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