Police can claim damages over Hillsborough

LAW REPORT: 5 November 1996

Frost and others v Chief Constable of South Yorkshire Police and others; Duncan v British Coal Corporation; Court of Appeal (Lord Justice Rose, Lord Justice Henry, Lord Justice Judge) 31 October 1996

Police officers exposed to the horrific aftermath of the Hillsborough disaster, either as employees acting in the course of their employment or as rescuers, were owed a duty of care by their chief constable not to expose them to the risk of psychiatric injury, and were entitled to claim damages if such injuries were suffered as a result of the his negligence.

The Court of Appeal by a majority (Lord Justice Judge dissenting) allowed an appeal by Constables Mark Bairstow, Anthony Bevis and Geoffrey Glave, and Inspector Henry White, against the decision of Mr Justice Waller who, on 10 April 1995, dismissed their claims for damages for post traumatic stress disorder arising out of the disaster at Hillsborough Stadium in Sheffield on 15 April 1989.

But the court dismissed the appeal in relation to a fifth officer, Sergeant Janet Smith. The court also dismissed a second appeal, by Walter Duncan, a pit deputy employed by the British Coal Corporation, against the refusal of his claim for damages for psychiatric injury suffered after attempting to resuscitate a miner injured as a result of the corporation's negligence.

Benet Hytner QC, Graham Platts (Russel Jones & Walker, Leeds) for the officers; Andrew Collender QC, Patrick Limb (Hammond Suddards, Leeds) for the chief constable; William Phillips (Keeble Hawson, Sheffield) for Duncan; Richard Maxwell QC (Nabarro Nathanson) for the corporation.

Lord Justice Rose said the cause of the disaster, in which 96 spectators were crushed to death and many more injured, was a senior police officer's decision to open an outer gate without cutting off access to the pens. Liability for those deaths and injuries was admitted by the defendants, including the plaintiffs' chief constable, who also admitted negligence in the present proceedings but disputed the existence of any duty to these plaintiffs.

Two grounds of liability were put forward. First, breach of a duty of care by the chief constable, arising from the plaintiffs' service as police officers acting under his direction and control, not to expose them to unnecessary risk of physical or psychiatric injury. Second, breach of a similar duty owed to them as rescuers.

It had long been recognised that the ambit of persons affected by negligence might extend beyond those actually subject to physical impact, particularly to rescuers, who were in a special category (see Chadwick v British Railways Board [1967] 1 WLR 912). Whether a particular plaintiff was a rescuer was in each case a question of fact to be decided in the light of all the circumstances.

Once it was accepted that there was no justification for regarding physical and psychiatric injuries as different kinds of injury, when an employer negligently caused physical injury to one employee, it seemed impossible to contend that he was not equally liable to a fellow employee of normal fortitude working on the same task who sustained psychiatric injury, whether through fear for himself or through witnessing what happened to his fellow workman.

The standard of care and the degree of proximity would vary from case to case according to the nature of the job and degree of fortitude to be expected of the employee. A rescuer, whether a policeman or layman, might recover against a tortfeasor for physical or psychiatric injury sustained during a rescue. An employee might, depending on the circumstances, recover against his employer for physical or psychiatric injury caused in the course of his employment by the employer's negligence.

A mere bystander who was not a rescuer and to whom no duty was owed by the tortfeasor as his employer, would not generally recover unless he fulfilled the more stringent critera for "secondary victims" enunciated in McLoughlin v O'Brien [1983] 1 AC 410, Alcock v Chief Constable [1992] 1 AC 310 and Page v Smith [1996] 1 AC 155. (It was because they failed these more stringent criteria that the relatives of the Hillsborough victims failed in their claims in Alcock.)

In the circumstances of this case, having regard to each officer's role after the disaster, a duty of care was owed by the chief constable to each of them, either as employees or as rescuers, except for Sgt Smith, whose involvement was insufficiently proximate.