LORDS DECISIONSLORDS DECISIONS >>LORDSLORD GOFF OF CHIEVELEYLORD GRIFFITHSLORD BROWNE-WILKINSONLORD STEYNLORD HOFFMANNLORDS OF APPEAL FOR JUDGMENT IN THE CAUSELORD BROWNE-WILKINSONLORDS,LORD STEYN AND LORD HOFFMANN. I AGREE THAT FOR THE REASONS THEY GIVE THESE APPEALS SHOULD BE ALLOWED AND THE ACTIONS DISMISSED.LORD GRIFFITHSLORDS,LORDSHIPS BEFORE GIVING MY OWN OPINION. IN THOSE SPEECHES ARE CITED ALL THE RELEVANT AUTHORITIES THAT TRACE THE DEVELOPMENT OF THE COMMON LAW'S ATTITUDE TO PSYCHIATRIC INJURY. THEY SHOW THAT THE COMMON LAW HAS REGARDED CLAIMS FOR PSYCHIATRIC INJURY WITH CAUTION AND HAS NOT UNTIL VERY RECENT TIMES BEEN PREPARED TO TREAT THEM AS ON A PAR WITH PHYSICAL INJURY. I DO NOT THINK I SHALL SERVE ANY USEFUL PURPOSE BY TRAVELLING OVER THAT HISTORIC GROUND AGAIN IN THIS OPINION, AND I SHALL TAKE AS MY STARTING POINT THE TWO RECENT DECISIONS OF THE HOUSE OF LORDS AS STATING THE PRESENT STATE OF THE COMMON LAW.LORD HOFFMANN SETS OUT IN HIS OPINION.LORDS BY A MAJORITY HELD THAT IN CIRCUMSTANCES SUCH AS A ROAD ACCIDENT IN WHICH A DEFENDANT OWES A DUTY OF CARE NOT TO CAUSE PERSONAL INJURY IT MATTERED NOT WHETHER THE INJURY SUFFERED AS A RESULT OF THE DEFENDANT'S NEGLIGENCE WAS PHYSICAL INJURY OR PSYCHIATRIC INJURY AND LIABILITY WOULD BE ESTABLISHED WITHOUT THE NECESSITY TO PROVE AS AN INDEPENDENT PART OF THE CAUSE OF ACTION THAT PSYCHIATRIC INJURY, IN THE ABSENCE OF PHYSICAL INJURY, WAS FORESEEABLE.LORD GOFF OF CHIEVELEYLORDS,LORDSHIPS' HOUSE, WITH THE LEAVE OF THIS HOUSE. MISS SMITH HAS NOT APPEALED.LORD OLIVER OF AYLMERTON PLACED THE RESCUE CASES IN HIS FIRST GROUP OF NERVOUS SHOCK CASES IN WHICH THE PLAINTIFF WAS INVOLVED AS A PARTICIPANT, RATHER THAN IN HIS SECOND GROUP IN WHICH THE PLAINTIFF WAS NO MORE THAN A PASSIVE AND UNWILLING WITNESS OF INJURY CAUSED TO OTHERS: SEE [1992] 1 AC 310, 407C-408G. WHETHER A PARTICULAR PERSON IS A RESCUER IS A QUESTION OF FACT TO BE DECIDED IN THE LIGHT OF ALL THE CIRCUMSTANCES OF THE CASE. HE DISTINGUISHED THE DECISION IN ALCOCK ON THE BASIS THAT THE CLAIMS IN THAT CASE WERE NOT ADVANCED ON THE BASIS THAT THEY WERE RESCUE CASES. ON THE FACTS OF THE CASES BEFORE HIM, HE HELD THAT THREE OF THE CLAIMANTS WERE ENTITLED TO SUCCEED ON THE BASIS THAT THEY WERE RESCUERS, VIZ. P.C. BEVIS, P.C. BAIRSTOW AND INSPECTOR WHITE.JUSTICE TO HENRY L.J.'S JUDGMENT IN A SUMMARY. BUT IN BRIEF HE CONCLUDED THAT THOSE POLICE OFFICERS WHO WERE DIRECTLY INVOLVED WERE PRIMARY VICTIMS BECAUSE THEY WERE ACTIVE PARTICIPANTS IN THE INCIDENTS CAUSED BY THEIR EMPLOYER'S NEGLIGENCE, AND THAT THEY WERE DIRECT VICTIMS BECAUSE THEIR EMPLOYER OWED THEM A DUTY OF CARE TO PROTECT THEM FROM PERSONAL INJURY, INCLUDING PSYCHIATRIC DAMAGE, CAUSED BY HIS NEGLIGENCE. FURTHERMORE THERE WERE NO PUBLIC POLICY REASONS WHY THEY SHOULD NOT SUCCEED IN THEIR CLAIMS. IN THE RESULT, THEREFORE, HE AGREED WITH ROSE L.J. AS TO THE DISPOSAL OF THE APPEALS ON THE ISSUE OF EMPLOYER'S LIABILITY, AS HE DID ON THE ISSUE OF RESCUE.LORDSHIPS' HOUSE IN PAGE V. SMITH [1996] AC 155, AND IN PARTICULAR BY PASSAGES IN THE OPINION OF LORD LLOYD OF BERWICK IN WHICH HE STRESSED THE NEED TO DISTINGUISH BETWEEN PRIMARY AND SECONDARY VICTIMS, AND DESCRIBED A PRIMARY VICTIM AS BEING WITHIN THE RANGE OF PHYSICAL INJURY. HIS CONCLUSION WAS THAT NEITHER THOSE WHO CLAIM AS RESCUERS, NOR THOSE WHO CLAIM AS EMPLOYEES, SHOULD NECESSARILY BE REGARDED AS PRIMARY VICTIMS. NONE OF THE PLAINTIFFS 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. THE PLAINTIFFS WERE THEREFORE ALL SECONDARY VICTIMS TO WHOM THE CONTROL MECHANISMS APPLIED. IN THE CASE OF NONE WAS THE NECESSARY PROXIMITY OF RELATIONSHIP ESTABLISHED; AND, WITH THE ARGUABLE EXCEPTION OF INSPECTOR WHITE, IN THE CASE OF ALL THE NECESSARY PROXIMITY OF TIME AND PLACE WAS ALSO ABSENT. MOREOVER THERE WAS NO BETTER BASIS FOR CONCLUDING THAT PSYCHIATRIC INJURY WAS FORESEEABLE IN THE CASE OF ANY OF THESE PLAINTIFFS THAN IT WAS FOR THE PLAINTIFFS ALL OF WHOSE CLAIMS FAILED IN ALCOCK [1992] 1 AC 310. HE WOULD THEREFORE HAVE DISMISSED ALL THE APPEALS.LORDSHIPS' HOUSE IN PAGE V. SMITH [1996] 1 AC 155. IN DOING SO, AND INDEED IN WRITING THE WHOLE OF THIS OPINION, I HAVE BEEN MUCH ASSISTED BY THE LAW COMMISSION'S REPORT NO.249 DATED MARCH 1998 ON LIABILITY FOR PSYCHIATRIC ILLNESS. THERE ARE TWO BASIC PRINCIPLES. THESE ARE:LORD RUSSELL OF KILLOWEN IN BOURHILL V. YOUNG [1943] AC 92. 101. AS DENNING L.J. SAID IN KING V. PHILLIPS [1953] 1 Q.B. 429, 441: 'THERE CAN BE NO DOUBT THAT THE TEST OF LIABILITY FOR SHOCK IS FORESEEABILITY OF INJURY BY SHOCK.' THEIR LORDSHIPS SUBSTITUTE THE WORD 'FIRE' FOR 'SHOCK' AND ENDORSE THIS STATEMENT OF THE LAW."LORD WRIGHT SAID IN BOURHILL V. YOUNG [1943] AC 92, 109-110:LORDSHIPS' HOUSE THAT THE AMERICAN FIREMAN'S RULE HAD NO PLACE IN ENGLISH LAW. THAT CASE WAS CONCERNED WITH A CLAIM IN RESPECT OF PHYSICAL INJURY, BUT I CAN SEE NO REASON WHY THE SAME CONCLUSION SHOULD NOT BE REACHED IN THE CASE OF A CLAIM FOR PSYCHIATRIC INJURY. AS I UNDERSTAND IT, HOWEVER, IT IS GENERALLY ACCEPTED THAT, IN CONSIDERING WHETHER PSYCHIATRIC INJURY SUFFERED BY A PLAINTIFF IS REASONABLY FORESEEABLE, IT IS LEGITIMATE TO TAKE INTO ACCOUNT THE FACT THAT THE PLAINTIFF IS A PERSON, SUCH AS FOR EXAMPLE A POLICEMAN, WHO MAY BY REASON OF HIS TRAINING AND EXPERIENCE BE EXPECTED TO HAVE MORE RESILIENCE IN THE FACE OF TRAGIC EVENTS IN WHICH HE IS INVOLVED, OR WHICH HE WITNESSES, THAN AN ORDINARY MEMBER OF THE PUBLIC POSSESSES WHO DOES NOT HAVE THE SAME BACKGROUND. THIS IS AS FAR AS IT GOES; AND, AS I SHALL EXPLAIN IN DUE COURSE, IT DOES NOT, IN MY OPINION, AFFECT THE RESULT IN THE WHOLLY EXCEPTIONAL CIRCUMSTANCES OF THE PRESENT CASE. IT FOLLOWS THAT, UNLIKE WALLER J., I WOULD NOT, EXCEPT IN THE LIMITED MANNER I HAVE INDICATED, THINK IT NECESSARY TO IDENTIFY A CLASS OF "PROFESSIONAL" RESCUERS TO WHICH SPECIAL RULES APPLY.LORD OLIVER OF AYLMERTON (AT P. 407) DIVIDED CASES OF LIABILITY FOR WHAT WAS THEN CALLED NERVOUS SHOCK:LORD WILBERFORCE; ALCOCK V. CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE [1992] 1 AC 310, 397-398 PER LORD KEITH OF KINKEL, 402-404 PER LORD ACKNER, 411-417 PER LORD OLIVER OF AYLMERTON, 422-424 PER LORD JAUNCEY OF TULLICHETTLE; AND THE LAW COMMISSION'S REPORT NO.249, PARAS.2-18--2.33.LORD OLIVER IN HIS OPINION IN ALCOCK REFERRED TO VICTIMS IN HIS FIRST CATEGORY AS "PRIMARY" VICTIMS, AND (AS I HAVE INDICATED) DESCRIBED THEM AS THOSE WHO WERE "INVOLVED" AS "PARTICIPANTS," HE DID NOT ATTEMPT ANY DEFINITION OF THIS CATEGORY, BUT SIMPLY REFERRED TO A NUMBER OF EXAMPLES, INCLUDING "RESCUERS"--AN EXAMPLE WHICH IS OF RELEVANCE TO THE PRESENT APPEALS. THIS IS SCARCELY SURPRISING SINCE INTO THIS CATEGORY FALL A NUMBER OF WIDELY DIFFERING CASES IN WHICH RECOVERY IS ALLOWED, OTHER THAN THOSE FALLING INTO THE SECOND CATEGORY WHICH IS CONCERNED TO SEGREGATE THE SPECIAL CASE OF WITNESSES OF INJURY CAUSED TO OTHERS TO WHICH SPECIAL RULES APPLY. IT IS ALSO PLAIN THAT, IN THE CASE OF PRIMARY VICTIMS AS IN THE CASE OF SECONDARY VICTIMS, LORD OLIVER, IN ACCORDANCE WITH THE GENERALLY ACCEPTED VIEW, REGARDED THE TEST OF FORESEEABILITY TO BE ONE OF FORESEEABILITY OF DAMAGE OF A PARTICULAR TYPE, VIZ. INJURY BY WHAT WAS THEN CALLED SHOCK: SEE [1992] 1 AC 310, 408F-G. IT FOLLOWS THAT, WHEN CONSIDERING WHETHER THE PLAINTIFF DOES OR DOES NOT FALL INTO THE CATEGORY OF SECONDARY VICTIMS, THE BASIC QUESTION RELATES TO HIS INVOLVEMENT. THIS IS ESSENTIALLY A QUESTION OF FACT, WHICH I SHALL CONSIDER AT A LATER STAGE. I SHOULD HOWEVER ADD THAT, IN THE PRESENT APPEALS, THE APPELLANTS ARE SAID TO HAVE BEEN PRIMARY VICTIMS, EITHER BECAUSE THEY CAN CLAIM AS EMPLOYEES--OR, MORE ACCURATELY, AS "QUASI-EMPLOYEES" BECAUSE, AS POLICE OFFICERS, THEY ARE NOT STRICTLY SPEAKING EMPLOYEES BUT ARE ABLE TO RELY UPON A SIMILAR DUTY OF CARE--OR BECAUSE THEY CAN CLAIM AS RESCUERS. I SHALL HOWEVER POSTPONE EXAMINATION OF THESE TWO CATEGORIES UNTIL AFTER I HAVE CONSIDERED THE IMPACT OF PAGE V. SMITH UPON THE GENERAL PRINCIPLES I HAVE BRIEFLY DESCRIBED.LORD OLIVER, TO WHOM SPECIAL LIMITING PRINCIPLES APPLY. SINCE HOWEVER THIS PART OF THE LAW IS STILL IN A STATE OF DEVELOPMENT, WE SHOULD NOT EXCLUDE THE POSSIBILITY THAT OTHER CATEGORIES OF CLAIMANT MAY COME TO BE IDENTIFIED WHOSE ABILITY TO CLAIM DAMAGES FOR PSYCHIATRIC INJURY SHOULD ALSO BE LIMITED. FOR EXAMPLE, THE LAW COMMISSION HAS CANVASSED THE POSSIBILITY OF LIMITS APPLYING IN CASES ARISING FROM DAMAGE TO PROPERTY: SEE THEIR REPORT NO. 249, PARAS. 7.24--7.31. THESE MATTERS NEED NOT HOWEVER CONCERN US IN THE PRESENT CASE.LORDSHIPS' HOUSE IN PAGE V. SMITH CONSTITUTED A REMARKABLE DEPARTURE FROM THESE GENERALLY ACCEPTED PRINCIPLES. THE CASE WAS CONCERNED WITH A TRAFFIC ACCIDENT, IN WHICH THE DEFENDANT'S CAR COLLIDED WITH THE PLAINTIFF'S CAR--A COLLISION DESCRIBED AS ONE OF "MODERATE SEVERITY." INDEED NOBODY IN EITHER CAR SUFFERED ANY PHYSICAL INJURY, AND THE PLAINTIFF (WHO WAS NOT EVEN BRUISED BY HIS SEAT BELT) WAS ABLE TO DRIVE HIS DAMAGED CAR AWAY AFTER THE ACCIDENT. HOWEVER THE TRIAL JUDGE, OTTON J., HELD THAT, AS A RESULT OF THE SHOCK OF THE ACCIDENT, THE PLAINTIFF SUFFERED A RECURRENCE OF CHRONIC FATIGUE SYNDROME FROM WHICH HE HAD SUFFERED, WITH DIFFERING DEGREES OF SEVERITY, FOR 20 YEARS, AND THAT FOR THIS HE WAS ENTITLED TO RECOVER DAMAGES FROM THE DEFENDANT. THE COURT OF APPEAL (RALPH GIBSON, FARQUHARSON AND HOFFMANN L.JJ.) REVERSED THE DECISION OF OTTON J. ON THE GROUND THAT IT WAS NOT REASONABLY FORESEEABLE THAT PSYCHIATRIC INJURY TO PERSONS OF ORDINARY FORTITUDE WOULD RESULT FROM SUCH AN ACCIDENT AS THIS, IN WHICH THE PLAINTIFF SUFFERED NO PHYSICAL INJURY. HOWEVER YOUR LORDSHIPS' HOUSE, BY A MAJORITY OF THREE TO TWO (LORD ACKNER, LORD BROWNE-WILKINSON AND LORD LLOYD OF BERWICK; LORD KEITH OF KINKEL AND LORD JAUNCEY DISSENTING) ALLOWED THE PLAINTIFF'S APPEAL BUT REMITTED THE CASE TO THE COURT OF APPEAL ON THE ISSUE OF CAUSATION WHICH HAD BEEN LEFT OPEN BY TWO MEMBERS OF THE COURT.LORD LLOYD OF BERWICK, WHO DELIVERED THE LEADING OPINION WITH WHICH BOTH LORD ACKNER AND MY NOBLE AND LEARNED FRIEND LORD BROWNE-WILKINSON AGREED, DEPARTED FROM THE PREVIOUS UNDERSTANDING OF THE LAW IN A NUMBER OF RESPECTS. BEFORE I TURN TO THESE, HOWEVER, I WISH TO MAKE TWO OBSERVATIONS ABOUT THIS CASE. FIRST, THIS WAS NOT A CASE CONCERNED WITH A SECONDARY VICTIM. THE PLAINTIFF WAS OBVIOUSLY INVOLVED IN THE ACCIDENT, AND THERE WAS NO QUESTION OF HIS BEING AFFECTED BY INJURY OR DEATH SUFFERED BY ANOTHER. THE SPECIAL CONTROL MECHANISMS APPLICABLE IN THE CASE OF SECONDARY VICTIMS DID NOT THEREFORE ARISE FOR CONSIDERATION. ON THE THEN ACCEPTED PRINCIPLES, THE ONLY QUESTION FOR CONSIDERATION WAS WHETHER THE DEFENDANT COULD REASONABLY FORESEE THAT, IN THE CIRCUMSTANCES WHICH IN FACT OCCURRED, A PERSON OF ORDINARY FORTITUDE IN THE POSITION OF THE PLAINTIFF WOULD SUFFER PSYCHIATRIC INJURY. SECOND, AS A SUBSIDIARY GROUND FOR THEIR DECISION, THE MAJORITY OF THE APPELLATE COMMITTEE BRIEFLY FOUND FOR THE PLAINTIFF ON THAT ISSUE, CONTRARY TO THE UNANIMOUS VIEW OF THE COURT OF APPEAL: SEE LORD ACKNER [1996] AC 155, 170, AND LORD LLOYD OF BERWICK (WITH WHOM LORD BROWNE-WILKINSON AGREED) AT P. 197.LORD LLOYD, IN HIS LEADING OPINION, DEPARTED FROM THE PREVIOUS UNDERSTANDING OF THE LAW.LORD LLOYD DETHRONED FORESEEABILITY OF PSYCHIATRIC INJURY FROM ITS CENTRAL POSITION AS THE UNIFYING FEATURE OF THIS BRANCH OF THE LAW. THIS HE DID BY INVOKING THE DISTINCTION BETWEEN PRIMARY AND SECONDARY VICTIMS. IN THE CASE OF THE LATTER, HE RECOGNISED THAT THE LAW INSISTS ON CERTAIN "CONTROL MECHANISMS", TO LIMIT THE NUMBER OF POTENTIAL CLAIMANTS. AMONG THESE HE INCLUDED THE REQUIREMENT THAT THE DEFENDANT WILL NOT BE LIABLE UNLESS PSYCHIATRIC INJURY IS FORESEEABLE IN A PERSON OF NORMAL FORTITUDE, AND HE ALSO RESTRICTED THE USE OF HINDSIGHT TO SECONDARY VICTIM CASES--POINTS TO WHICH I WILL RETURN LATER. HE CONTINUED (AT P. 197G):LORD LLOYD BETWEEN PRIMARY AND SECONDARY VICTIMS IS CONTRARY TO COUNTLESS COMMON LAW CASES, AND THAT THE PRIVY COUNCIL'S UNAMBIGUOUS ENDORSEMENT IN THE WAGON MOUND NO. 1 [1961] AC 388, 426 OF DENNING L.J.'S STATEMENT OF PRINCIPLE WAS "CLEARLY SEEN AS AN ALL-PURPOSE TEST FOR PERSONAL INJURY ACTIONS." IN PARTICULAR, THE PRINCIPLE THAT FORESIGHT OF SHOCK-INDUCED MENTAL DAMAGE IS RELEVANT IN ESTABLISHING A DUTY OF CARE HAD NEVER BEEN DOUBTED IN AUSTRALIA.LORD OLIVER'S OPINION IN ALCOCK [1992] 1 A.C. AT P. 408F-G WHERE HE REGARDED THE PRINCIPLE OF FORESEEABILITY OF PSYCHIATRIC DAMAGE AS APPLICABLE IN CASES CONCERNED WITH PARTICIPANTS, AS IN THE CASE OF SECONDARY VICTIMS. IN AUSTRALIA, DENNING L.J.'S GENERAL STATEMENT OF PRINCIPLE APPEARS TO HAVE BEEN ANTICIPATED BY DIXON J. IN BUNYAN V. JORDAN (1937) 57 C.L.R. 1, 16. IN MOUNT ISA MINES LTD. V. PUSEY (1971) 125 C.L.R. 383, BOTH WINDEYER J. (AT P. 395) AND WALSH J. (AT P. 402) TREATED THE TEST OF FORESEEABILITY OF PSYCHIATRIC INJURY AS GENERALLY APPLICABLE; AND IN JAENSCH V. COFFEY (1985) 155 C.L.R. 549 BRENNAN J. (AT P. 566), DEANE J. (AT P. 595) AND DAWSON J. (AT P. 611) ALL DID LIKEWISE. INDEED MR. MULLANY HAS STATED, CITING MANY CASES, THAT ALL AUSTRALIAN PSYCHIATRIC DAMAGE DECISIONS HAVE PROCEEDED ON THIS BASIS: SEE (1995) 3 JOURNAL OF LAW AND MEDICINE 112, 115.LORD LLOYD APPEARS TO BE INCONSISTENT NOT ONLY WITH THE ADOPTION BY VISCOUNT SIMONDS IN THE WAGON MOUND NO. 1 [1961] AC 388, 426, OF DENNING L.J.'S STATEMENT OF PRINCIPLE, BUT ALSO WITH THE ACTUAL REASONING OF THE PRIVY COUNCIL IN THAT CASE. THERE A PARTICULAR TYPE OF DAMAGE TO PROPERTY, VIZ. DAMAGE BY FIRE, WAS DIFFERENTIATED FROM OTHER TYPES OF DAMAGE TO PROPERTY FOR THE PURPOSE OF DECIDING WHETHER THE DEFENDANT COULD REASONABLY HAVE FORESEEN DAMAGE OF THAT PARTICULAR TYPE, SO AS TO RENDER HIM LIABLE IN DAMAGES IN TORT FOR SUCH DAMAGE. THAT DIFFERENTIATION WAS MADE ON PURELY COMMON SENSE GROUNDS, AS A MATTER OF PRACTICAL JUSTICE. ON EXACTLY THE SAME GROUNDS, A PARTICULAR TYPE OF PERSONAL INJURY, VIZ. PSYCHIATRIC INJURY, MAY, FOR THE LIKE PURPOSE, PROPERLY BE DIFFERENTIATED FROM OTHER TYPES OF PERSONAL INJURY. IT APPEARS TO BE IN NO WAY INCONSISTENT WITH THE MAKING OF THAT COMMON SENSE JUDGMENT, AS A MATTER OF PRACTICAL JUSTICE, THAT SCIENTIFIC ADVANCES ARE REVEALING THAT PSYCHIATRIC ILLNESSES MAY HAVE A PHYSICAL BASE, OR THAT PSYCHIATRIC INJURY SHOULD BE REGARDED AS ANOTHER FORM OF PERSONAL INJURY. MOREOVER THE ABSENCE OF ANY PREVIOUS CHALLENGE TO THE GENERAL APPLICATION OF THE PRINCIPLE STATED BY DENNING L.J., AND ADOPTED BY VISCOUNT SIMONDS, PERHAPS PROVIDES THE STRONGEST ENDORSEMENT OF THAT COMMON SENSE JUDGMENT.LORD LLOYD SAID (AT P. 187A-B):LORD LLOYD ANSWERED IN THE NEGATIVE. YET THE EFFECT OF THE "EGGSHELL SKULL" RULE, I.E. THE RULE THAT A WRONGDOER MUST TAKE HIS VICTIM AS HE FINDS HIM, IS THAT THE ABSENCE (OR, MORE ACCURATELY, THE PRESENCE) OF PHYSICAL INJURY TO THE PLAINTIFF, MAY MAKE ALL THE DIFFERENCE. LORD LLOYD SAID AT P. 193G:LORD WRIGHT'S OPINION IN BOURHILL V. YOUNG WHICH I HAVE ALREADY QUOTED, THAT THAT IS NOT THE ORDINARY RULE. THE MAXIM ONLY APPLIES WHERE LIABILITY HAS BEEN ESTABLISHED. THE CRITICISM IS THEREFORE THAT LORD LLOYD APPEARS TO HAVE TAKEN AN EXCEPTIONAL RULE RELATING TO COMPENSATION AND TREATED IT AS BEING OF GENERAL APPLICATION, THEREBY CREATING A WIDER PRINCIPLE OF LIABILITY.LORDSHIPS DO NOT THEREFORE HAVE TO FORM A VIEW ABOUT THE VALIDITY OF THE CRITICISMS WHICH I HAVE SUMMARISED ABOVE. YOUR LORDSHIPS CAN THEREFORE PROCEED ON THE BASIS THAT, FOR THE PURPOSES OF THE PRESENT APPEALS, THE RELEVANT TEST IS, AS IN THE PAST, THE TEST OF FORESEEABILITY OF PSYCHIATRIC DAMAGE.LORDSHIPS' HOUSE IN PAGE V. SMITH, THE REQUIREMENT OF REASONABLE FORTITUDE WAS REGARDED AS BEING OF GENERAL APPLICATION, IN CASES CONCERNED WITH PRIMARY VICTIMS AS WELL AS THOSE CONCERNED WITH SECONDARY VICTIMS. SEE, E.G., THE LAW COMMISSION'S CONSULTATION PAPER NO. 137, PARA. 2.10; MULLANY AND HANDFORD, OP. CIT., CH. 10; AND MULLANY, (1995) 3 JOURNAL OF LAW AND MEDICINE, 112 AT P. 117. THE DEBATE RELATED NOT TO THE APPLICABILITY OF THE REQUIREMENT IN CASES CONCERNED WITH PRIMARY VICTIMS, BUT TO THE DESIRABILITY OF THE REQUIREMENT AS SUCH: SEE MULLANY AND HANDFORD, UBI SUP. HOWEVER IN PAGE V. SMITH LORD LLOYD, WHO TREATED THIS REQUIREMENT AS A "CONTROL MECHANISM" (SEE PP. 189D AND 197F), HELD THAT IT HAD NO PLACE WHERE THE PLAINTIFF WAS A PRIMARY VICTIM, IN WHICH TYPE OF CASE IT WAS NOT APPROPRIATE TO ASK WHETHER THE VICTIM IS A PERSON OF "ORDINARY PHLEGM." PREVIOUSLY, HOWEVER, THE CONTROL MECHANISMS APPLICABLE IN CASES OF SECONDARY VICTIMS HAD BEEN REGARDED AS LIMITED TO THOSE IDENTIFIED IN THE SPEECHES OF LORD WILBERFORCE IN MCLOUGHLIN V. O'BRIAN [1983] AC 410, 422 ET SEQ., AND LORD OLIVER OF AYLMERTON IN ALCOCK [1992] 1 AC 310, 408-412, AND TO RELATE, AS I HAVE SAID, TO THOSE REFERRED TO IN PARAS. 2.19 ET SEQ. OF THE LAW COMMISSION'S REPORT NO. 249, VIZ. (I) TIE OF LOVE AND AFFECTION WITH THE IMMEDIATE VICTIM; (II) CLOSENESS IN TIME AND SPACE TO THE INCIDENT OR ITS AFTERMATH; AND (III) THE MEANS OF LEARNING OF THE INCIDENT. THESE DID NOT INCLUDE THE REQUIREMENT OF REASONABLE FORTITUDE.LORD LLOYD CONSIDERED THAT IT TOO HAD NO PART TO PLAY WHERE THE PLAINTIFF IS A PRIMARY VICTIM (SEE [1996] 1 A.C. AT P. 197F-G). THIS TOO APPEARS TO BE A DEPARTURE FROM THE LAW AS PREVIOUSLY UNDERSTOOD: SEE MULLANY (1995) 3 JOURNAL OF LAW AND MEDICINE 112, 116. MOREOVER LORD LLOYD GAVE NO REASON FOR THIS DEPARTURE, AND IT IS DIFFICULT TO UNDERSTAND WHY THIS APPROACH SHOULD NOT, TOGETHER WITH THE REASONABLE FORTITUDE TEST, BE OF GENERAL APPLICATION. HOWEVER WHERE, AS HERE, THE COURT IS CONCERNED WITH A PARTICULAR TYPE OF DAMAGE SUCH AS PSYCHIATRIC INJURY:LORDSHIPS IN THE PRESENT APPEALS SHOULD HAVE REGARD TO WHAT HAPPENED WHEN CONSIDERING THE ISSUE OF FORESEEABILITY OF PSYCHIATRIC INJURY BY THE DEFENDANTS.LORD OLIVER OF AYLMERTON IN ALCOCK [1992] 1 AC 310, 407. ALTHOUGH HE IDENTIFIED A SECONDARY VICTIM AS ONE WHO IS "NO MORE THAN THE PASSIVE AND UNWILLING WITNESS OF INJURY TO OTHER," HE MADE NO ATTEMPT TO DEFINE A PRIMARY VICTIM, DESCRIBING HIM SIMPLY AS ONE WHO IS "INVOLVED, EITHER MEDIATELY OR IMMEDIATELY AS A PARTICIPANT," AND GIVING MISCELLANEOUS EXAMPLES OF SUCH PERSONS. IN PAGE V. SMITH, HOWEVER, LORD LLOYD (AT P. 184A-B) SAID OF THE PLAINTIFF IN THAT CASE THAT HE:LORD LLOYD'S OPINION, IN WHICH HE SAID (AT P. 187E-F):LORDSHIPS' HOUSE.LORD LLOYD INTEND TO REACH ANY SUCH CONCLUSION (WHICH WOULD, IN ANY EVENT, HAVE BEEN NO MORE THAN AN OBITER DICTUM). FIRST, AS APPEARS FROM P. 184D-F OF HIS OPINION, LORD LLOYD ACCEPTED THE DISTINCTION BETWEEN PRIMARY AND SECONDARY VICTIMS DRAWN BY LORD OLIVER IN ALCOCK [1992] 1 AC 310, 410-11, WHERE, AS LORD LLOYD SAID, LORD OLIVER "REFERRED TO THOSE WHO ARE INVOLVED IN AN ACCIDENT AS PRIMARY VICTIMS, AND TO THOSE WHO ARE NOT DIRECTLY INVOLVED, BUT SUFFER FROM WHAT THEY HAVE SEEN AND HEARD, AS THE SECONDARY VICTIMS." YET THE EFFECT OF THE PROPOSITION NOW UNDER CONSIDERATION WOULD BE THAT THE CATEGORY OF SECONDARY VICTIMS IS NO LONGER TO BE RESTRICTED TO WITNESSES, OR "BYSTANDERS" AS THEY ARE SOMETIMES CALLED, BUT IS TO BE EXTENDED TO INCLUDE ALL VICTIMS OTHER THAN THOSE WHO WERE WITHIN THE RANGE OF FORESEEABLE PHYSICAL INJURY. FURTHERMORE IT APPEARS FROM LORD OLIVER'S SPEECH IN ALCOCK, WHICH LORD LLOYD HERE INVOKED, THAT HE DID NOT REGARD PRESENCE WITHIN THE RANGE OF FORESEEABLE PHYSICAL INJURY AS A NECESSARY ATTRIBUTE OF A PRIMARY VICTIM. THIS WAS MADE PLAIN BY THE FACT THAT HE INCLUDED AMONG PRIMARY VICTIMS THOSE WHO "COME TO THE AID OF OTHERS INJURED OR THREATENED" (SEE P. 408E), CITING CHADWICK V. BRITISH RAILWAYS BOARD [1967] 1 W.L.R. 912, AND PLAINTIFFS IN CASES SUCH AS DOOLEY V. CAMMELL LAIRD & CO. LTD. [1971] 1 LLOYD'S REP. 271LORD LLOYD IN THE PASSAGES NOW IN QUESTION. IN THIS CONNECTION IT IS SIGNIFICANT THAT NO REASONS WERE GIVEN IN PAGE V. SMITH WHY ANY SUCH LIMITATION SHOULD BE PLACED ON RECOVERY BY PRIMARY VICTIMS; THE POINT WAS NOT EVEN DISCUSSED. HAD IT BEEN CONSIDERED, LORD LLOYD WOULD HAVE HAD TO FACE UP TO THE WELL-KNOWN DECISIONS ALREADY REFERRED TO WHICH ARE INCONSISTENT WITH THE PROPOSITION, AND TO CONSIDER WHETHER HE SHOULD FOLLOW THEM OR WHETHER HE SHOULD DISTINGUISH OR DEPART FROM THEM AND, IF THE LATTER, WHY HE SHOULD DO SO. THE ABSENCE OF ANY REFERENCE BY LORD LLOYD TO THOSE DECISIONS OF ITSELF RENDERS IT INCONCEIVABLE THAT THE PASSAGES IN HIS JUDGMENT NOW IN QUESTION SHOULD HAVE BEEN INTENDED BY HIM TO HAVE THE EFFECT ATTRIBUTED TO THEM. THE MATTER IS, IN MY OPINION, PUT BEYOND ALL DOUBT BY THE SUMMARY OF HIS CONCLUSIONS WITH WHICH LORD LLOYD ENDED HIS OPINION (SEE [1996] AC 155, 197E-H). AFTER STATING CERTAIN PRINCIPLES WHICH HE REGARDED AS APPLICABLE IN THE CASE OF SECONDARY VICTIMS, HE SAID:LORD LLOYD'S OPINION THAT FORESEEABILITY OF PHYSICAL INJURY TO THE PLAINTIFF IS A SUFFICIENT CONDITION OF LIABILITY FOR PSYCHIATRIC INJURY, IS INCONSISTENT WITH THE PROPOSITION THAT IT IS ALSO A NECESSARY CONDITION OF SUCH LIABILITY.LORD LLOYD'S JUDGMENT NOW IN QUESTION WERE INTENDED TO HAVE THAT EFFECT: THE RESULT WOULD BE MOST REMARKABLE. IT WOULD BE THAT ON THE ONE HAND PAGE V. SMITH EXPANDS RECOVERY, BY HOLDING THAT FORESEEABILITY OF PHYSICAL INJURY JUSTIFIES RECOVERY IN RESPECT OF UNFORESEEABLE PSYCHIATRIC INJURY EVEN THOUGH NO PHYSICAL INJURY IS SUFFERED, WHILE ON THE OTHER HAND THE SAME CASE RESTRICTS RECOVERY, BY PRECLUDING RECOVERY IN RESPECT OF FORESEEABLE PSYCHIATRIC INJURY UNLESS PHYSICAL INJURY IS ALSO FORESEEABLE. THIS DOES NOT MAKE SENSE. THE PARADOX UNDERMINES ALL CREDIBILITY IN THE PROPOSITION, WHICH IS THAT WHAT WAS FORMERLY REGARDED AS NEITHER NECESSARY NOR SUFFICIENT (SEE PAGE V. SMITH IN THE COURT OF APPEAL [1994] 4 ALL E.R. 522, 549, PER HOFFMANN L.J.) HAS BECOME NOT ONLY SUFFICIENT BUT ALSO, WITHOUT ANY EXPLANATION, NECESSARY. IT IS PLAIN, IN MY OPINION, THAT LORD LLOYD'S STRATEGY WAS TO EXPAND RECOVERY BY PRIMARY VICTIMS, NOT ONLY IN THE MANNER I HAVE INDICATED BUT ALSO BY RESTRICTING THE APPLICABILITY OF THE "REASONABLE FORTITUDE" AND "HINDSIGHT" TESTS TO SECONDARY VICTIMS; BUT THAT HE HAD NO STRATEGY TO RESTRICT RECOVERY BY PRIMARY VICTIMS, WHETHER BY RESTRICTING RECOVERY TO CASES WHERE PHYSICAL INJURY WAS FORESEEABLE OR OTHERWISE.LORD LLOYD'S OPINION, TO WHICH I HAVE REFERRED, SHOULD BE READ AS MERELY DESCRIPTIVE OF THE POSITION OF THE PLAINTIFF IN PAGE V. SMITH, AND NOT AS HAVING THE EFFECT WHICH HAS BEEN ASCRIBED TO THEM. IT FOLLOWS, HOWEVER, THAT TO THIS EXTENT THE APPELLANTS' CASE MUST BE REGARDED AS HAVING BEEN FRAMED ON A FALSE PREMISE. I UNDERSTAND HOWEVER THAT SOME OF YOUR LORDSHIPS ARE OF THE OPINION THAT, EVEN IF MY UNDERSTANDING OF THESE PASSAGES IN LORD LLOYD'S OPINION IS CORRECT, THE HOUSE SHOULD, AS A MATTER OF POLICY, NEVERTHELESS IMPOSE A REQUIREMENT OF FORESEEABILITY OF PHYSICAL DAMAGE AS AN ARBITRARY LIMIT UPON RECOVERY BY PRIMARY VICTIMS IN RESPECT OF PSYCHIATRIC INJURY SUFFERED BY THEM. I SHALL CONSIDER THIS PROPOSAL AT A LATER STAGE IN THIS OPINION.LORD WRIGHT) AND IN PARTICULAR NOT TO EXPOSE HIS EMPLOYEES TO UNNECESSARY OR UNREASONABLE RISK. IT WAS THIS LATTER DUTY UPON WHICH MR. HYTNER Q.C. FOR THE RESPONDENTS RELIED IN THE PRESENT APPEALS. THIS DUTY, AS MR. HYTNER Q.C. RECOGNISED, IS GENERALLY REGARDED AS TORTIOUS.LORD PRESIDENT, LORD HOPE OF CRAIGHEAD, AT P. 365:LORD ORDINARY HELD THAT THERE WAS NO DUTY OF CARE OWING TO THEM BY THE DEFENDERS, AND GRANTED DECREE OF ABSOLVITUR. THE PURSUERS RECLAIMED AGAINST THAT DECISION, BUT THE FIRST DIVISION OF THE INNER HOUSE REFUSED THEIR RECLAIMING MOTIONS.LORD PRESIDENT. THE ARGUMENT FOR THE PURSUERS WAS ESSENTIALLY THAT THEY WERE SO DIRECTLY INVOLVED IN THE ACCIDENT AS TO BE WITHIN THE AMBIT OF THEIR EMPLOYERS' DUTY OF CARE TO THEM. THIS ARGUMENT WAS HOWEVER REJECTED BY THE LORD PRESIDENT, WHO REGARDED THE CASE NOT AS ONE OF ACTIVE PARTICIPATION IN THE EVENT, BUT AS ONE WHERE THE PURSUERS WERE MERELY BYSTANDERS OR WITNESSES, IN WHICH EVENT THE ORDINARY RULE STATED BY LORD OLIVER IN MCLOUGHLIN V. O'BRIAN MUST APPLY AND, AS THE PURSUERS DID NOT COMPLY WITH THE CONTROL MECHANISMS APPLICABLE IN THE CASE OF CLAIMANTS WHO WERE ONLY WITNESSES, THEIR CLAIM MUST FAIL. THE CASE THEREFORE PROVIDES AUTHORITY THAT, IN A CLAIM BY AN EMPLOYEE AGAINST HIS EMPLOYER FOR DAMAGES FOR PSYCHIATRIC INJURY ARISING FROM THE DEATH OF OR INJURY TO ANOTHER, HIS CLAIM WILL FAIL IF HE IS SIMPLY A BYSTANDER WHO WITNESSES THE EVENT, AND IS NOT AN ACTIVE PARTICIPANT IN IT (OR, I WOULD ADD, ITS AFTERMATH). IT WAS PERHAPS OPEN TO THE LORD PRESIDENT TO TAKE THE VIEW THAT THE TWO PURSUERS WERE AT THE TIME ACTIVELY INVOLVED WITH MR. SMITH IN THE OPERATION OF REMOVING THE SHEET FROM THE BRIDGE, IN WHICH EVENT THE RECLAIMING MOTION WOULD NO DOUBT HAVE BEEN GRANTED; BUT HE TOOK A DIFFERENT VIEW OF THE FACTS OF THE CASE.LORD OLIVER IN ALCOCK [1992] 1 A.C., 310, 407-411, IN THE CASE OF A CLAIMANT WHO IS A BYSTANDER IN THE SENSE OF BEING NO MORE THAN A PASSIVE AND UNWILLING WITNESS OF INJURY CAUSED TO OTHERS; AND I CONSIDER THAT THE SAME COULD BE SAID IF THE EMPLOYER'S DUTY OF CARE WAS EXPRESSED AS AN IMPLIED TERM IN THE CONTRACT OF EMPLOYMENT. IN ACCORDANCE WITH THIS APPROACH STUART-SMITH L.J. (WITH WHOM MCCOWAN AND RALPH GIBSON L.JJ. AGREED) SAID IN MCFARLANE V. E.E. CALEDONIA LTD. [1994] 2 ALL ER 1 (A CASE CONCERNED WITH AN EMPLOYEE'S CLAIM AGAINST HIS EMPLOYER) AT P. 14E:LORD BRIDGE OF HARWICH STATED THAT, AS FAR AS HE KNEW, NO ONE HAD EVER DOUBTED THAT THE CASE WAS RIGHTLY DECIDED. BUT IT IS ALSO PLAIN THAT THE CIRCUMSTANCES WERE WHOLLY EXCEPTIONAL. IT MUST BE VERY RARE THAT A PERSON BRINGING AID AND COMFORT TO A VICTIM OR VICTIMS WILL BE HELD TO HAVE SUFFERED FORESEEABLE PSYCHIATRIC INJURY AS A RESULT.LORD WRIGHT IN BOURHILL V. YOUNG [1943] AC 92, 110 AND BY LORD WILBERFORCE IN MCLOUGHLIN V. O'BRIAN [1983] 1 AC 410, 422, AND APPROVED BY THE HIGH COURT OF AUSTRALIA IN JAENSCH V. COFFEY (1985) 155 C.L.R. 549, ESPECIALLY AT PP. 590-591 PER DEANE J. HOWEVER MR. MULLANY AND DR. HANDFORD HAVE EXPRESSED THE OPINION THAT THIS APPROACH IS NOT PART OF THE MODERN LAW: SEE (1997) 113 L.Q.R. AT P. 417. THE POINT DOES NOT HOWEVER ARISE IN THE PRESENT CASE; THE SOLUTION MAY PERHAPS DEPEND ON THE FACTS OF THE PARTICULAR CASE.LORD OLIVER OF AYLMERTON.LORD ABINGER C.B.; MUNKMAN ON EMPLOYER'S LIABILITY, 12TH ED., (1995) P. 74) HE MAY BE ABLE TO CLAIM DAMAGES SIMPLY ON THE BASIS OF BREACH BY HIS EMPLOYER OF HIS DUTY OF CARE. IF NOT, HOWEVER, HE CAN RELY ON HIS INTERVENTION IN THE CHARACTER OF A RESCUER AS A STRANGER MAY DO. A BORDERLINE CASE, WHICH APPEARS TO HAVE FALLEN ON THE FORMER SIDE OF THE LINE, IS THE IMPORTANT AUSTRALIAN CASE OF MOUNT ISA MINES LTD. V. PUSEY (1971) 125 C.L.R. 383. A TERRIBLE ACCIDENT OCCURRED AT THE DEFENDANTS' POWERHOUSE, WHEN TWO EMPLOYEES WHO WERE TESTING A SWITCHBOARD WERE SEVERELY BURNED BY AN INTENSE ELECTRIC ARC. THIS WAS HELD TO HAVE OCCURRED BECAUSE THE DEFENDANTS HAD NEGLIGENTLY FAILED TO GIVE THE MEN PROPER INSTRUCTIONS. THE PLAINTIFF, WHO WAS A FOREMAN ON THE DEFENDANTS' STAFF AND COULD THEREFORE HAVE REASONABLY BEEN EXPECTED TO GO TO THE SCENE OF THE ACCIDENT, DID SO AND FOUND ONE OF THE MEN VERY SEVERELY BURNED. THE PLAINTIFF SUPPORTED HIM OUT OF THE POWERHOUSE, AND HELPED TO CARRY HIM TO AN AMBULANCE. WITHIN NINE DAYS, HOWEVER, THE MAN DIED OF HIS INJURIES. THE PLAINTIFF SUBSEQUENTLY DEVELOPED A SERIOUS MENTAL DISTURBANCE, DIAGNOSED AS A FORM OF SCHIZOPHRENIA. THE HIGH COURT OF AUSTRALIA UPHELD THE DECISION OF THE TRIAL JUDGE, AFFIRMED BY THE FULL COURT OF THE SUPREME COURT OF QUEENSLAND, THAT THE PLAINTIFF WAS ENTITLED TO SUCCEED IN A CLAIM AGAINST HIS EMPLOYERS IN RESPECT OF HIS PSYCHIATRIC INJURY. IN THE COURSE OF THE JUDGMENTS OF SOME MEMBERS OF THE HIGH COURT, THE PLAINTIFF WAS TREATED AS A RESCUER; BUT I UNDERSTAND THE PREVAILING VIEW OF THE HIGH COURT IN THAT CASE, AND OF THE HIGH COURT WHICH SAT IN THE LATER CASE OF JAENSCH V. COFFEY (1985) 155 C.L.R. 549 IN WHICH THE MOUNT ISA MINES CASE WAS CONSIDERED, TO HAVE BEEN THAT THE DEFENDANTS' LIABILITY AROSE FROM BREACH OF THEIR DUTY AS EMPLOYERS OF THE PLAINTIFF: SEE, IN PARTICULAR, THE JUDGMENTS OF WINDEYER J. IN THE MOUNT ISA MINES CASE AT P. 400, AND OF DEANE J. IN JAENSCH V. COFFEY AT P. 597.LORD LLOYD IN PAGE V. SMITH [1996] 1 AC 155, 184A-B, 187E-F, THAT IT WAS A PREREQUISITE OF THE RIGHT OF RECOVERY BY PRIMARY VICTIMS IN RESPECT OF PSYCHIATRIC INJURY SUFFERED BY THEM THAT THEY SHOULD HAVE BEEN WITHIN THE RANGE OF FORESEEABLE PHYSICAL INJURY. I HAVE ALREADY EXPRESSED THE OPINION THAT NO SUCH CONCLUSION CAN BE DRAWN FROM LORD LLOYD'S OPINION IN PAGE V. SMITH. I UNDERSTAND HOWEVER THAT, EVEN IF MY VIEW ON THAT POINT IS ACCEPTED AS CORRECT, SOME OF YOUR LORDSHIPS NEVERTHELESS CONSIDER THAT A NEW CONTROL MECHANISM TO THE SAME EFFECT SHOULD NOW BE INTRODUCED AND IMPOSED BY THIS HOUSE AS A MATTER OF POLICY.LORDSHIPS' HOUSE IN MCLOUGHLIN V. O'BRIAN [1983] AC 410, 419 PER LORD WILBERFORCE, 424 PER LORD EDMUND-DAVIES, AND 437-8 PER LORD BRIDGE OF HARWICH, AND AGAIN IN ALCOCK [1992] 1 AC 310, 408 PER LORD OLIVER. AS TO THE SECOND CATEGORY, THE MOST RELEVANT CASE IS DOOLEY [1971] 1 LLOYD'S REP. 271 IN WHICH, AS IN OTHER CASES OF THIS KIND, THE PLAINTIFF WAS NEVER IN ANY PERSONAL DANGER. FURTHERMORE, BOTH CATEGORIES OF CASE WERE STATED BY LORD OLIVER IN ALCOCK AT P. 408 TO BE EXAMPLES OF PRIMARY VICTIMS, IN THE CASE OF WHICH HE PLAINLY DID NOT CONSIDER THAT THERE WAS ANY APPLICABLE CONTROL MECHANISM, FOR EXAMPLE ANY REQUIREMENT THAT THE PLAINTIFF SHOULD HAVE BEEN WITHIN THE RANGE OF FORESEEABLE PHYSICAL INJURY. HAVING REGARD IN PARTICULAR TO THE PROMINENCE NOW GIVEN TO LORD OLIVER'S OPINION IN ALCOCK IN SEGREGATING CASES OF SECONDARY VICTIMS AS THOSE CASES TO WHICH SPECIAL CONTROL MECHANISMS APPLY, IT WOULD BE A REMARKABLE DEPARTURE FROM EXISTING AUTHORITY NOW TO CREATE A NEW CONTROL MECHANISM, VIZ. THAT THE PLAINTIFF MUST HAVE BEEN EXPOSED TO THE RISK OF PHYSICAL INJURY, AND TO HOLD THAT THIS MECHANISM IS APPLICABLE IN THE CASE OF PRIMARY VICTIMS. WHAT IS HERE AT ISSUE THEREFORE IS NOT WHETHER WE SHOULD EXTEND LIABILITY FOR PSYCHIATRIC INJURY TO PRIMARY VICTIMS WHO DO NOT COME WITHIN THE RANGE OF FORESEEABLE PHYSICAL INJURY. THE QUESTION IS WHETHER, HAVING REGARD TO EXISTING AUTHORITY, WE SHOULD RESTRICT LIABILITY FOR PSYCHIATRIC INJURY TO PRIMARY VICTIMS WHO ARE WITHIN THE RANGE OF SUCH INJURY.LORD STEYNLORDS,LORD JUSTICE WALLER) AND THE MAJORITY IN THE COURT OF APPEAL ERRED IN REVERSING HIM: FROST V. CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE [1997] 3 W.L.R. 1194.JUSTICE BUT IT IS BY AND LARGE THE BEST THAT THE COMMON LAW CAN DO. THE APPLICATION OF THE REQUIREMENT OF REASONABLE FORESEEABILITY WAS SUFFICIENT FOR THE DISPOSAL OF THE RESULTING CLAIMS FOR DEATH AND PHYSICAL INJURY. BUT THE COMMON LAW REGARDS REASONABLE FORESEEABILITY AS AN INADEQUATE TOOL FOR THE DISPOSAL OF CLAIMS IN RESPECT OF EMOTIONAL INJURY.JUSTICE DEMANDS THAT THEY SHOULD BE COMPENSATED. A CONSTANT THEME OF THE ARGUMENT OF COUNSEL FOR THE POLICE OFFICERS WAS THAT THERE IS NO JUSTIFICATION FOR REGARDING PHYSICAL AND PSYCHIATRIC INJURY AS DIFFERENT KINDS OF DAMAGE, AND IN SO ARGUING HE WAS REPEATING AN OBSERVATION OF LORD LLOYD OF BERWICK IN PAGE V. SMITH [1996] AC 155, AT 197G. IT IS OF SOME IMPORTANCE TO EXAMINE THIS PROPOSITION. COURTS OF LAW MUST ACT ON THE BEST MEDICAL INSIGHT OF THE DAY. NOWADAYS COURTS ACCEPT THAT THERE IS NO RIGID DISTINCTION BETWEEN BODY AND MIND. COURTS ACCEPT THAT A RECOGNIZABLE PSYCHIATRIC ILLNESS RESULTS FROM AN IMPACT ON THE CENTRAL NERVOUS SYSTEM. IN THIS SENSE THEREFORE THERE IS NO QUALITATIVE DIFFERENCE BETWEEN PHYSICAL HARM AND PSYCHIATRIC HARM. AND PSYCHIATRIC HARM MAY BE FAR MORE DEBILITATING THAN PHYSICAL HARM.LORD BRIDGE OF HARWICH. THE ANALOGY OF THE RELATIVELY LIBERAL APPROACH TO RECOVERY OF COMPENSATION FOR PHYSICAL DAMAGE AND THE MORE RESTRICTIVE APPROACH TO THE RECOVERY FOR ECONOMIC LOSS SPRINGS TO MIND. POLICY CONSIDERATIONS ENCAPSULATED BY JUSTICE CARDOZO'S SPECTRE OF LIABILITY FOR ECONOMIC LOSS "IN AN INDETERMINATE AMOUNT FOR AN INDETERMINATE TIME TO AN INDETERMINATE CLASS" PLAYED A ROLE IN THE EMERGENCE OF A JUDICIAL SCEPTICISM SINCE MURPHY V. BRENTWOOD DISTRICT COUNCIL [1991] AC 398 ABOUT AN OVERARCHING PRINCIPLE IN RESPECT OF THE RECOVERY OF ECONOMIC LOSS: SEE STEELE, SCEPTICISM AND THE LAW OF NEGLIGENCE, [1993] C.L.J. 437. THE DIFFERENCES BETWEEN THE TWO KINDS OF DAMAGE HAVE LED TO THE ADOPTION OF INCREMENTAL METHODS IN RESPECT OF THE BOUNDARIES OF LIABILITY FOR ECONOMIC LOSS.JUSTICE ACT 1988 CONTAINS THIS RESTRICTIVE RULE:JUSTICE. ON ITS OWN THIS FACTOR MAY NOT BE ENTITLED TO GREAT WEIGHT AND MAY NOT OUTWEIGH THE CONSIDERATIONS OF JUSTICE SUPPORTING GENUINE CLAIMS IN RESPECT OF PURE PSYCHIATRIC INJURY. SECONDLY, THERE IS THE EFFECT OF THE EXPANSION OF THE AVAILABILITY OF COMPENSATION ON POTENTIAL CLAIMANTS WHO HAVE WITNESSED GRUESOME EVENTS. I DO NOT HAVE IN MIND FRAUDULENT OR BOGUS CLAIMS. IN GENERAL IT OUGHT TO BE POSSIBLE FOR THE ADMINISTRATION OF JUSTICE TO EXPOSE SUCH CLAIMS. BUT I DO HAVE IN MIND THE UNCONSCIOUS EFFECT OF THE PROSPECT OF COMPENSATION ON POTENTIAL CLAIMANTS. WHERE THERE IS GENERALLY NO PROSPECT OF RECOVERY, SUCH AS IN THE CASE OF INJURIES SUSTAINED IN SPORT, PSYCHIATRIC HARM APPEARS NOT TO OBTRUDE OFTEN. ON THE OTHER HAND, IN THE CASE OF INDUSTRIAL ACCIDENTS, WHERE THERE IS OFTEN A PROSPECT OF RECOVERY OF COMPENSATION, PSYCHIATRIC HARM IS REPEATEDLY ENCOUNTERED AND OFTEN ENDURES UNTIL THE PROCESS OF CLAIMING COMPENSATION COMES TO AN END: SEE JAMES V. WOODALL DUCKHAM CONSTRUCTION CO. LTD. [1969] 1 W.L.R. 903 (CA). THE LITIGATION IS SOMETIMES AN UNCONSCIOUS DISINCENTIVE TO REHABILITATION. IT IS TRUE THAT THIS FACTOR IS ALREADY PRESENT IN CASES OF PHYSICAL INJURIES WITH CONCOMITANT MENTAL SUFFERING. BUT IT MAY PLAY A LARGER ROLE IN CASES OF PURE PSYCHIATRIC HARM, PARTICULARLY IF THE CATEGORIES OF POTENTIAL RECOVERY ARE ENLARGED. FOR MY PART THIS FACTOR CANNOT BE DISMISSED.LORDS IN ALCOCK. THE DECISION OF THE COURT OF APPEAL HAS INTRODUCED AN IMBALANCE IN THE LAW OF TORT WHICH MIGHT PERPLEX THE MAN ON THE UNDERGROUND. SINCE THE ANSWER MAY BE THAT THERE SHOULD BE COMPENSATION IN ALL THESE CATEGORIES I MUST PURSUE THE MATTER FURTHER.LORDS IN BOURHILL V. YOUNG [1943] AC 92. THERE ARE DICTA IN THIS CASE WHICH APPEAR TO FAVOUR THE CONFINING OF LIABILITY FOR PSYCHIATRIC INJURY TO THOSE WITHIN THE AREA OF PHYSICAL HARM. BUT THE STATUS OF HAMBROOK V. STOKES BROTHERS WAS LEFT UNCLEAR. THEN CAME THE DECISION IN MCLOUGHLIN V. O'BRIAN [1983] L.A.C. 410. THE PLAINTIFF'S HUSBAND AND CHILDREN WERE INJURED IN A CAR ACCIDENT. SHE WAS INFORMED AND SAW THE SERIOUS INJURIES OF HER HUSBAND AND CHILDREN IN HOSPITAL. SHE ALSO WAS INFORMED THAT ONE OF HER CHILDREN HAD BEEN KILLED. SHE SUFFERED PSYCHIATRIC INJURY. THE HOUSE OF LORDS UPHELD THE PLAINTIFF'S CLAIM. THERE ARE PASSAGES IN THE SPEECHES WHICH TEND TO SUPPORT A WIDE THEORY OF LIABILITY FOR PSYCHIATRIC INJURY. LORD WILBERFORCE COUNTENANCED "THE REAL NEED TO THE LAW TO PLACE SOME LIMITATION UPON THE EXTENT OF ADMISSIBLE CLAIMS": 442A. FOR SOMEWHAT DIFFERENT REASONS LORD RUSSELL OF KILLOWEN, LORD SCARMAN AND LORD BRIDGE OF HARWICH REGARDED LIMITATIONS ON THE GROUND OF POLICY CONSIDERATIONS AS ESSENTIALLY ARBITRARY: SEE ALSO LORD EDMUND DAVIES, 425G. THIS DECISION WAS GIVEN AT THE PEAK OF THE EXPANSION OF TORT LIABILITY IN THE WAKE OF ANNS V. MERTON LONDON BOROUGH COUNCIL [1978] AC 728.LORD WILBERFORCE. THIS ASSUMPTION HAS BEEN FALSIFIED BY THE GROWTH OF CLAIMS FOR PSYCHIATRIC DAMAGE IN THE LAST TEN YEARS. IN FEAR FOR THE FUTURE: LIABILITY FOR INFLICTION OF PSYCHIATRIC DISORDER, ESSAY IN TORTS IN THE NINETIES (1997) ED. NICHOLAS J MULLANY, THE EDITOR HAS ATTESTED TO THE "GROWING APPRECIATION THAT THE SCOPE FOR PSYCHIATRIC SUITS IS MUCH WIDER THAN TRADITIONALLY PERCEIVED" AND HE LISTED THE EXPANSION INTO CLAIMS FOR WORKPLACE STRESS; SUITS BY MEMBERS OF THE ARMED SERVICES IN RESPECT OF MENTAL SUFFERING; CLAIMS FOR PSYCHIATRIC DAMAGE AGAINST MEDICAL PRACTITIONERS AND HEALTH AUTHORITIES; AND SO FORTH. IN ADDITION THE SAME AUTHOR STATED THAT THERE HAS IN RECENT YEARS BEEN A STEADY GROWTH IN AUSTRALIA IN THE MORE COMMON PLACE PSYCHIATRIC INJURY PROCEEDINGS BASED ON THE DEATH, INJURY OR IMPERILMENT OF LOVED ONES OR FEAR OF ONES OWN SAFETY: AT 112. MOREOVER, NOWADAYS IT WOULD BE QUITE UNREALISTIC TO DESCRIBE AWARDS FOR PSYCHIATRIC DAMAGE AS MODEST. IN ANY EVENT, SINCE MCLOUGHLIN THE PENDULUM HAS SWUNG AND THE HOUSE OF LORDS HAVE TAKEN GREATER ACCOUNT OF POLICY CONSIDERATIONS BOTH IN REGARD TO ECONOMIC LOSS AND PSYCHIATRIC INJURY.LORDS IS ALCOCK (1992). BEFORE THIS CASE THE GENERAL RULE WAS THAT ONLY PARENTS AND SPOUSES COULD RECOVER FOR PSYCHIATRIC HARM SUFFERED AS A RESULT OF WITNESSING A TRAUMATIC EVENT. IN ALCOCK THE GROUP OF PLAINTIFFS WHO SUED FOR PSYCHIATRIC INJURY RESULTING FROM THE EVENTS AT HILLSBOROUGH INCLUDED RELATIVES WHO WERE IN THE STADIUM. THE HOUSE DISMISSED ALL THE CLAIMS INCLUDING THE CLAIM OF A PLAINTIFF WHO WAS HIMSELF WITNESSED THE SCENES AT THE FOOTBALL GROUND WHERE TWO OF HIS BROTHERS DIED: SEE LORD ACKNER'S COMMENT, AT P. 406A THAT "THE QUALITY OF BROTHERLY LOVE IS WELL KNOWN TO DIFFER WIDELY" THIS DECISION ESTABLISHED THAT A PERSON WHO SUFFERS REASONABLY FORESEEABLE PSYCHIATRIC ILLNESS AS A RESULT OF ANOTHER PERSON'S DEATH OR INJURY CANNOT RECOVER DAMAGES UNLESS HE CAN SATISFY THREE REQUIREMENTS, VIZ:LORD OLIVER OBSERVED THAT THE LAW WAS NOT ENTIRELY SATISFACTORY OR LOGICALLY DEFENSIBLE BUT HE THOUGHT THAT CONSIDERATIONS OF POLICY MADE IT EXPLICABLE: AT 418. PROFESSOR JANE STAPLETON HAS DESCRIBED THE LAW AS STATED IN ALCOCK AS DIFFICULT TO JUSTIFY: SEE IN RESTRAINT OF TORT, AN ESSAY IN FRONTIERS OF LIABILITY, ED., BY BIRKS, 1994. SHE REMARKED, AT 95:LORDS IN PAGE V. SMITH [1996] AC 155 WAS THE NEXT IMPORTANT DEVELOPMENT IN THIS BRANCH OF THE LAW. THE PLAINTIFF WAS DIRECTLY INVOLVED IN A MOTOR CAR ACCIDENT. HE WAS WITHIN THE RANGE OF POTENTIAL PHYSICAL INJURY. AS A RESULT OF THE ACCIDENT HE SUFFERED FROM CHRONIC FATIGUE SYNDROME. IN THIS CONTEXT LORD LLOYD OF BERWICK ADOPTED A DISTINCTION BETWEEN PRIMARY AND SECONDARY VICTIMS: LORD ACKNER AND LORD BROWNE-WILKINSON AGREED. LORD LLOYD SAID THAT A PLAINTIFF WHO HAD BEEN WITHIN THE RANGE OF FORESEEABLE INJURY WAS A PRIMARY VICTIM. MR PAGE FULFILLED THIS REQUIREMENT AND COULD IN PRINCIPLE RECOVER COMPENSATION FOR PSYCHIATRIC LOSS. IN MY VIEW IT FOLLOWS THAT ALL OTHER VICTIMS, WHO SUFFER PURE PSYCHIATRIC HARM, ARE SECONDARY VICTIMS AND MUST SATISFY THE CONTROL MECHANISMS LAID DOWN IN ALCOCK. THERE HAS BEEN CRITICISM OF THIS CLASSIFICATION: SEE TEFF, LIABILITY FOR NEGLIGENTLY INFLICTED PSYCHIATRIC HARM: JUSTIFICATIONS AND BOUNDARIES, 1998 C.L.J. 91, AT 93. BUT, IF THE NARROW FORMULATION BY LORD LLOYD OF BERWICK OF WHO MAY BE A PRIMARY VICTIM IS KEPT IN MIND, THIS CLASSIFICATION OUGHT NOT TO PRODUCE INCONSISTENT RESULTS. IN ANY EVENT, THE DECISION OF THE HOUSE OF LORDS IN PAGE V. SMITH WAS PLAINLY INTENDED, IN THE CONTEXT OF PURE PSYCHIATRIC HARM, TO NARROW THE RANGE OF POTENTIAL SECONDARY VICTIMS. THE REASONING OF LORD LLOYD AND THE LAW LORDS WHO AGREED WITH HIM WAS BASED ON CONCERNS ABOUT AN EVER WIDENING CIRCLE OF PLAINTIFFS.JUSTICE LAY ON THIS OCCASION. ONE IS CONSIDERING THE CLAIMS OF POLICE OFFICERS WHO SUSTAINED SERIOUS PSYCHIATRIC HARM IN THE COURSE OF PERFORMING AND ASSISTING THEIR DUTIES IN HARROWING CIRCUMSTANCES. THAT IS, A WEIGHTY MORAL ARGUMENT: THE POLICE PERFORM THEIR DUTIES FOR THE BENEFIT OF US ALL. THE DIFFICULTY IS, HOWEVER, TWOFOLD. FIRST, THE PRAGMATIC RULES GOVERNING THE RECOVERY OF DAMAGES FOR PURE PSYCHIATRIC HARM DO NOT AT PRESENT INCLUDE POLICE OFFICERS WHO SUSTAIN SUCH INJURIES WHILE ON DUTY. IF SUCH A CATEGORY WERE TO BE CREATED BY JUDICIAL DECISION, THE NEW PRINCIPLE WOULD BE AVAILABLE IN MANY DIFFERENT SITUATIONS, E.G. DOCTORS AND HOSPITAL WORKERS WHO ARE EXPOSED TO THE SIGHT OF GRIEVOUS INJURIES AND SUFFERING. SECONDLY, IT IS COMMON GROUND THAT POLICE OFFICERS WHO ARE TRAUMATIZED BY SOMETHING THEY ENCOUNTER IN THEIR WORK HAVE THE BENEFIT OF STATUTORY SCHEMES WHICH PERMIT THEM TO RETIRE ON PENSION. IN THIS SENSE THEY ARE ALREADY BETTER OFF THAN BEREAVED RELATIVES WHO WERE NOT ALLOWED TO RECOVER IN ALCOCK. THE CLAIM OF THE POLICE OFFICERS ON OUR SYMPATHY, AND THE JUSTICE OF THE CASE, IS GREAT BUT NOT AS GREAT AS THAT OF OTHERS TO WHOM THE LAW DENIES REDRESS.LORDS IN ALCOCK AND PAGE V. SMITH. THE RESTRICTIVE RULES, AND THE UNDERLYING POLICY CONSIDERATIONS, OF THE DECISIONS OF THE HOUSE ARE GERMANE. THE SPECIFIC DIFFICULTY COUNSEL FACES IS THAT IT IS COMMON GROUND THAT NONE OF THE FOUR POLICE OFFICERS WERE AT ANY TIME EXPOSED TO PERSONAL DANGER AND NONE THOUGHT THAT THEY WERE SO EXPOSED. COUNSEL SUBMITTED THAT THIS IS NOT A REQUIREMENT. HE SOUGHT COMFORT IN THE GENERAL OBSERVATIONS IN ALCOCK OF LORD OLIVER ABOUT THE CATEGORY OF "PARTICIPANTS": SEE 407E. NONE OF THE OTHER LAW LORDS IN ALCOCK DISCUSSED THIS CATEGORY. MOREOVER, THE ISSUE OF RESCUERS ENTITLEMENT TO RECOVER FOR PSYCHIATRIC HARM WAS NOT BEFORE THE HOUSE ON THAT OCCASION AND LORD OLIVER WAS NOT CONSIDERING THE COMPETING ARGUMENTS PRESENTLY BEFORE THE HOUSE. THE EXPLANATION OF LORD OLIVER'S OBSERVATIONS HAS BEEN THE SUBJECT OF MUCH DEBATE. IT WAS ALSO VIGOROUSLY CONTESTED AT THE BAR. IN MY VIEW COUNSEL FOR THE APPELLANT HAS TRIED TO EXTRACT TOO MUCH FROM GENERAL OBSERVATIONS NOT DIRECTED TO THE ISSUE NOW BEFORE THE HOUSE: SEE ALSO THE CAREFUL ANALYSIS OF THE LORD PRESIDENT IN ROBERTSON V. FORTH ROAD BRIDGE JOINT BOARD [1995] SC 364, AT 371G-372B. COUNSEL WAS ONLY ABLE TO CITE ONE ENGLISH DECISION IN SUPPORT OF HIS ARGUMENT NAMELY THE FIRST INSTANCE JUDGMENT IN CHADWICK V. BRITISH RAILWAYS BOARD [1967] 1.Q.B. 912. MR CHADWICK HAD ENTERED A WRECKED RAILWAY CARRIAGE TO HELP AND WORK AMONG THE INJURED. THERE WAS CLEARLY A RISK THAT THE CARRIAGE MIGHT COLLAPSE. WALLER J. (LATER LORD JUSTICE WALLER) SAID (AT 918A)LORD WILBERFORCE; AT 424D-G, PER LORD EDMUND DAVIES: AT 437H--438A, PER LORD BRIDGE OF HARWICH; AND IN ALCOCK AT 408B-D PER LORD OLIVER. I TOO WOULD ACCEPT THAT CHADWICK WAS CORRECTLY DECIDED. BUT IT IS NOT AUTHORITY FOR THE PROPOSITION THAT A PERSON WHO NEVER EXPOSED HIMSELF TO ANY PERSONAL DANGER AND NEVER THOUGHT THAT HE WAS IN PERSONAL DANGER CAN RECOVER PURE PSYCHIATRIC INJURY AS A RESCUER. IN ORDER TO RECOVER COMPENSATION FOR PURE PSYCHIATRIC HARM AS RESCUER IT IS NOT NECESSARY TO ESTABLISH THAT HIS PSYCHIATRIC CONDITION WAS CAUSED BY THE PERCEPTION OF PERSONAL DANGER. AND WALLER J. RIGHTLY SO HELD. BUT IN ORDER TO CONTAIN THE CONCEPT OF RESCUER IN REASONABLE BOUNDS FOR THE PURPOSES OF THE RECOVERY OF COMPENSATION FOR PURE PSYCHIATRIC HARM THE PLAINTIFF MUST AT LEAST SATISFY THE THRESHOLD REQUIREMENT THAT HE OBJECTIVELY EXPOSED HIMSELF TO DANGER OR REASONABLY BELIEVED THAT HE WAS DOING SO. WITHOUT SUCH LIMITATION ONE WOULD HAVE THE UNEDIFYING SPECTACLE THAT, WHILE BEREAVED RELATIVES ARE NOT ALLOWED TO RECOVER AS IN ALCOCK, GHOULISHLY CURIOUS SPECTATORS, WHO ASSISTED IN SOME PERIPHERAL WAY IN THE AFTERMATH OF A DISASTER, MIGHT RECOVER. FOR MY PART THE LIMITATION OF ACTUAL OR APPREHENDED DANGERS IS WHAT PROXIMITY IN THIS SPECIAL SITUATION MEANS. IN MY JUDGMENT IT WOULD BE AN UNWARRANTED EXTENSION OF THE LAW TO UPHOLD THE CLAIMS OF THE POLICE OFFICERS. I WOULD DISMISS THE ARGUMENT UNDER THIS HEADING.LORDS, THE LAW ON THE RECOVERY OF COMPENSATION FOR PURE PSYCHIATRIC HARM IS A PATCHWORK QUILT OF DISTINCTIONS WHICH ARE DIFFICULT TO JUSTIFY. THERE ARE TWO THEORETICAL SOLUTIONS. THE FIRST IS TO WIPE OUT RECOVERY IN TORT FOR PURE PSYCHIATRIC INJURY. THE CASE FOR SUCH A COURSE HAS BEEN ARGUED BY PROFESSOR STAPLETON. BUT THAT WOULD BE CONTRARY TO PRECEDENT AND, IN ANY EVENT, HIGHLY CONTROVERSIAL. ONLY PARLIAMENT COULD TAKE SUCH A STEP. THE SECOND SOLUTION IS TO ABOLISH ALL THE SPECIAL LIMITING RULES APPLICABLE TO PSYCHIATRIC HARM. THAT APPEARS TO BE THE COURSE ADVOCATED BY MULLANY AND HANDFORD, TORT LIABILITY FOR PSYCHIATRIC DAMAGE: THE LAW OF NERVOUS SHOCK, (1993). THEY WOULD ALLOW CLAIMS FOR PURE PSYCHIATRIC DAMAGE BY MERE BYSTANDERS: SEE (1997) 113 L.Q.R. 410, AT 415. PRECEDENT RULES OUT THIS COURSE AND, IN ANY EVENT, THERE ARE COGENT POLICY CONSIDERATIONS AGAINST SUCH A BOLD INNOVATION. IN MY VIEW THE ONLY SENSIBLE GENERAL STRATEGY FOR THE COURTS IS TO SAY THUS FAR AND NO FURTHER. THE ONLY PRUDENT COURSE IS TO TREAT THE PRAGMATIC CATEGORIES AS REFLECTED IN AUTHORITATIVE DECISIONS SUCH AS ALCOCK AND PAGE V. SMITH AS SETTLED FOR THE TIME BEING BUT BY AND LARGE TO LEAVE ANY EXPANSION OR DEVELOPMENT IN THIS CORNER OF THE LAW TO PARLIAMENT. IN REALITY THERE ARE NO REFINED ANALYTICAL TOOLS WHICH WILL ENABLE THE COURTS TO DRAW LINES BY WAY OF COMPROMISE SOLUTION IN A WAY WHICH IS COHERENT AND MORALLY DEFENSIBLE. IT MUST BE LEFT TO PARLIAMENT TO UNDERTAKE THE TASK OF RADICAL LAW REFORM.LORDS, I AM IN SUBSTANTIAL AGREEMENT WITH THE REASONS GIVEN BY WALLER J. FOR DISMISSING THE CLAIMS OF THE POLICE OFFICERS. IN MY JUDGMENT THE COURT OF APPEAL ERRED IN REVERSING WALLER J. IN RESPECT OF THE CLAIMS UNDER CONSIDERATION. FOR THESE REASONS, AS WELL AS THE REASONS GIVEN BY LORD HOFFMANN, I WOULD ALLOW THE APPEALS.LORD HOFFMANNLORDS,LORDSHIPS' HOUSE IN ALCOCK V. CHIEF CONSTABLE OF SOUTH YORKSHIRE [1992] 1 AC 310. FOR REASONS WHICH I SHALL DISCUSS, THEY WERE ALL REJECTED. BUT THE PLAINTIFFS IN THIS APPEAL SAY THAT THE POLICE ARE IN A DIFFERENT POSITION. FIRST, THEY WERE IN A POSITION ANALOGOUS TO EMPLOYEES OF THE CHIEF CONSTABLE AND THEY CLAIM THAT THE EMPLOYMENT RELATIONSHIP GIVES RISE TO DUTIES WHICH ARE NOT OWED TO STRANGERS. SECONDLY, THEY WERE PRESENT AND ASSISTED AT THE CATASTROPHE AND WERE NOT MERELY PASSIVE AND HELPLESS BYSTANDERS. IN ORDER TO EXAMINE THE MERITS OF THESE ARGUMENTS, THE CLAIMS OF THE FIVE MEMBERS OF THE POLICE IN THIS CASE (AS WELL AS SOME OTHERS WHICH ARE NOT THE SUBJECT OF APPEAL) WERE SELECTED AS TEST CASES TO BE TRIED TOGETHER. IT IS ADMITTED THAT THE DISASTER WAS CAUSED BY THE NEGLIGENCE OF PERSONS FOR WHOM THE DEFENDANTS WERE VICARIOUSLY LIABLE. THE ONLY QUESTION IS WHETHER IN SUCH CIRCUMSTANCES THE LAW ALLOWS THE RECOVERY OF COMPENSATION FOR THE TYPE OF INJURY WHICH THE PLAINTIFFS HAVE SUFFERED.COMMISSIONERS V. COULTAS (1883) 13 APP. CAS. 222 THE PRIVY COUNCIL HELD THAT COMPENSATION FOR SUCH INJURY WAS NOT RECOVERABLE AT ALL. THE MAIN REASON WHICH THE BOARD GAVE FOR DENYING RECOVERY WAS THE EVIDENTIAL DIFFICULTY OF DECIDING UPON THE CAUSES OF PSYCHIATRIC SYMPTOMS AT A TIME WHEN VERY LITTLE WAS KNOWN ABOUT THE WORKINGS OF THE MIND. DESPITE SCIENTIFIC ADVANCES, THIS REMAINS A SERIOUS PROBLEM. AS LORD WILBERFORCE NOTED IN 1982, "THE AREA OF IGNORANCE SEEMS TO EXPAND WITH THAT OF KNOWLEDGE" (MCLOUGHLIN V. O'BRIAN [1983] 1 AC 410, 418). AT ANY RATE, THE COURTS HAVE DEVELOPED SUFFICIENT CONFIDENCE IN MEDICAL EXPERTISE TO BE WILLING TO AWARD DAMAGES FOR MENTAL DISTURBANCES WHICH MANIFEST THEMSELVES IN BODILY SYMPTOMS (SUCH AS A MISCARRIAGE) OR IN A "RECOGNISED PSYCHIATRIC ILLNESS." THE LATTER IS DISTINGUISHED FROM SHOCK, FEAR, ANXIETY OR GRIEF WHICH ARE REGARDED AS A NORMAL CONSEQUENCES OF A DISTRESSING EVENT AND FOR WHICH DAMAGES ARE NOT AWARDED. CURRENT MEDICAL OPINION SUGGESTS THAT THIS MAY BE A SOMEWHAT ARBITRARY DISTINCTION; THE LIMITS OF NORMAL REACTION TO STRESSFUL EVENTS ARE WIDE AND DEBATABLE, WHILE FEELINGS OF TERROR AND GRIEF MAY HAVE AS DEVASTATING AN EFFECT UPON PEOPLE'S LIVES AS THE "PAIN AND SUFFERING" CONSEQUENT UPON PHYSICAL INJURY, FOR WHICH DAMAGES ARE REGULARLY AWARDED.LORDS IN BOURHILL V. YOUNG [1943] AC 92, APPEARED TO MANY TO COMBINE WHAT WAS IN THEORY A SIMPLE FORESEEABILITY TEST WITH A ROBUST WARTIME VIEW OF THE ABILITY OF THE ORDINARY PERSON TO SUFFER HORROR AND BEREAVEMENT WITHOUT ILL EFFECT. CASES SOON AFTERWARDS, LIKE KING V. PHILLIPS [1953] 1 Q.B. 429, FOLLOWED THIS APPROACH, TREATING FORESEEABILITY AS A QUESTION OF FACT BUT KEEPING POTENTIAL LIABILITY WITHIN NARROW BOUNDS BY TAKING A HIGHLY RESTRICTIVE VIEW OF THE CIRCUMSTANCES IN WHICH IT WAS FORESEEABLE THAT PSYCHIATRIC INJURY MIGHT BE CAUSED. BUT SUCH DECISIONS WERE CRITICISED AS OUT OF TOUCH WITH REALITY. EVERYONE KNEW THAT SOME PEOPLE DID SUFFER PSYCHIATRIC ILLNESSES AS A RESULT OF WITNESSING DISTRESSING ACCIDENTS IN WHICH OTHER PEOPLE, PARTICULARLY CLOSE RELATIVES, WERE INVOLVED. SOME JUDGES, SYMPATHETIC TO THE PLAINTIFF IN THE PARTICULAR CASE, TOOK THE OPPORTUNITY TO FIND AS A FACT THAT PSYCHIATRIC INJURY HAD INDEED BEEN FORESEEABLE. THIS MADE IT DIFFICULT TO EXPLAIN WHY PLAINTIFFS IN OTHER CASES HAD FAILED. IT SEEMED THAT IF THE FORESEEABILITY TEST WAS TO BE TAKEN LITERALLY AND APPLIED IN THE SAME WAY AS THE TEST FOR LIABILITY FOR PHYSICAL INJURY, IT WOULD BE HARD TO KNOW WHERE THE LIMITS OF LIABILITY COULD BE DRAWN. IN ALL BUT EXCEPTIONAL CASES, THE ONLY QUESTION WOULD BE WHETHER ON THE MEDICAL EVIDENCE, THE PSYCHIATRIC CONDITION HAD BEEN CAUSED BY THE DEFENDANT'S NEGLIGENT CONDUCT.LORDSHIPS' HOUSE IN ALCOCK V. CHIEF CONSTABLE OF SOUTH YORKSHIRE [1992] 1 AC 310, JUDICIAL ATTITUDES HAD CHANGED. THE VIEW WHICH HAD FOR SOME TIME BEEN IN THE ASCENDANCY, THAT THE LAW OF TORTS SHOULD, IN PRINCIPLE ASPIRE TO PROVIDE A COMPREHENSIVE SYSTEM OF CORRECTIVE JUSTICE, GIVING LEGAL SANCTION TO A MORAL OBLIGATION ON THE PART OF ANYONE WHO HAS CAUSED INJURY TO ANOTHER WITHOUT JUSTIFICATION TO OFFER RESTITUTION OR COMPENSATION, HAD BEEN ABANDONED IN FAVOUR OF A CAUTIOUS PRAGMATISM. THE HOUSE DECIDED THAT LIABILITY FOR PSYCHIATRIC INJURY SHOULD BE RESTRICTED BY WHAT LORD LLOYD OF BERWICK (IN PAGE V. SMITH [1996] AC 155, 189) AFTERWARDS CALLED "CONTROL MECHANISMS", THAT IS TO SAY, MORE OR LESS ARBITRARY CONDITIONS WHICH A PLAINTIFF HAD TO SATISFY AND WHICH WERE INTENDED TO KEEP LIABILITY WITHIN WHAT WAS REGARDED AS ACCEPTABLE BOUNDS.LORDSHIPS' HOUSE ON THE GROUND THAT THE FEAR AND TERROR WHICH THEY MUST HAVE FELT IN THE MOMENTS BEFORE DEATH WERE NORMAL HUMAN EMOTIONS FOR WHICH DAMAGES ARE NOT AWARDED: HICKS V. CHIEF CONSTABLE OF THE SOUTH YORKSHIRE POLICE [1992] 2 ALL ER 65. MR. HARRISON, WHO WAS PRESENT ELSEWHERE AT THE GROUND AND WHOSE TWO BROTHERS DIED, FAILED CONDITION (1) BECAUSE THE HOUSE REFUSED TO PRESUME THAT CLOSE TIES OF LOVE AND AFFECTION EXIST BETWEEN BROTHERS AND HE HAD ADDUCED NO EVIDENCE TO PROVE THAT THEY EXISTED IN HIS CASE. MR. AND MRS COPOC, WHOSE SON DIED, FAILED CONDITION (2) BECAUSE THEY WERE NOT PRESENT AT THE GROUND BUT SAW THE SCENES ON TELEVISION. MR. ALCOCK, WHO IDENTIFIED HIS BROTHER-IN-LAW IN THE MORTUARY AT MIDNIGHT, FAILED CONDITION (3) BECAUSE HE WAS NOT IN TIME FOR THE IMMEDIATE AFTERMATH OF THE TRAGEDY. THE CLAIMS OF OTHER RELATIVES WERE DISMISSED ON SIMILAR GROUNDS.LORDS, THIS STORY OF THE EBB AND FLOW OF TORT LIABILITY FOR PSYCHIATRIC INJURY HAS OFTEN BEEN TOLD AND I HAVE RECOUNTED IT AGAIN AT SOME LENGTH ONLY BECAUSE I THINK IT MUST BE BORNE IN MIND WHEN WE COME TO DEAL WITH THE AUTHORITIES. IN ORDER TO GIVE DUE WEIGHT TO THE EARLIER DECISIONS, PARTICULARLY AT FIRST INSTANCE, IT IS NECESSARY TO HAVE REGARD TO THEIR HISTORICAL CONTEXT. THEY CANNOT SIMPLY BE LAID OUT FLAT AND PIECED TOGETHER TO FORM A TIMELESS MOSAIC OF LEGAL RULES. SOME CONTAINED THE EMBRYONIC FORMS OF LATER DEVELOPMENTS; OTHERS ARE BASED ON THEORIES OF LIABILITY WHICH HAD RESPECTABLE SUPPORT AT THE TIME BUT HAVE SINCE BEEN LEFT STRANDED BY THE SHIFTING TIDES.COMMISSIONERS V. COULTAS (1888) 13 APP. CAS. 222: SEE THE ARTICLE TO WHICH I HAVE ALREADY REFERRED.JUSTICE, THEN THERE IS OBVIOUSLY NO VALID DISTINCTION TO BE DRAWN BETWEEN PHYSICAL AND PSYCHIATRIC INJURY. ON THIS VIEW, THE CONTROL MECHANISMS MERELY REFLECT A VULGAR SCEPTICISM ABOUT THE REALITY OF PSYCHIATRIC INJURY OR A BELIEF THAT IT IS LESS WORTHY OF COMPENSATION THAN PHYSICAL INJURY: THEREIN THE PATIENT MUST MINISTER TO HIMSELF. ON THE OTHER HAND, IF ONE STARTS FROM THE IMPERFECT REALITY OF THE WAY THE LAW OF TORTS ACTUALLY WORKS, IN WHICH THE VAST MAJORITY OF CASES OF INJURY AND DISABILITY, BOTH PHYSICAL AND PSYCHIATRIC, GO UNCOMPENSATED BECAUSE THE PERSONS (IF ANY) WHO CAUSED THE DAMAGE WERE NOT NEGLIGENT, OR BECAUSE THE PLAINTIFF LACKS THE EVIDENCE OR THE RESOURCES TO PROVE TO A COURT THAT THEY WERE NEGLIGENT, OR BECAUSE THE POTENTIAL DEFENDANTS HAPPEN TO HAVE NO MONEY, THEN QUESTIONS OF DISTRIBUTIVE JUSTICE TEND TO INTRUDE THEMSELVES. WHY SHOULD X RECEIVE GENEROUS COMPENSATION FOR HIS INJURY WHEN Y RECEIVES NOTHING? IS THE ADMINISTRATION OF SO ARBITRARY AND IMPERFECT A SYSTEM OF COMPENSATION WORTH THE VERY CONSIDERABLE COST? ON THIS VIEW, A UNIFORM REFUSAL TO PROVIDE COMPENSATION FOR PSYCHIATRIC INJURY ADDS LITTLE TO THE EXISTING STOCK OF ANOMALY IN THE LAW OF TORTS AND AT LEAST PROVIDES A RULE WHICH IS EASY TO UNDERSTAND AND CHEAP TO ADMINISTER.LORDSHIPS. IT IS TOO LATE TO GO BACK ON THE CONTROL MECHANISMS AS STATED IN ALCOCK. UNTIL THERE IS LEGISLATIVE CHANGE, THE COURTS MUST LIVE WITH THEM AND ANY JUDICIAL DEVELOPMENTS MUST TAKE THEM INTO ACCOUNT.LORD LLOYD OF BERWICK DESCRIBED SUCH A PLAINTIFF AS A "SECONDARY VICTIM" WHO WAS "IN THE POSITION OF A SPECTATOR OR BYSTANDER." HE DESCRIBED THE PLAINTIFF IN THAT CASE (WHO HAD SUFFERED PSYCHIATRIC INJURY IN CONSEQUENCE OF BEING INVOLVED IN A MINOR MOTOR ACCIDENT) AS A "PRIMARY VICTIM" WHO WAS "DIRECTLY INVOLVED IN THE ACCIDENT AND WELL WITHIN THE RANGE OF FORESEEABLE PHYSICAL INJURY." THE ISSUE IN PAGE V. SMITH WAS WHETHER IT IS SUFFICIENT THAT A PRIMARY VICTIM WHO, IN CONSEQUENCE OF A FORESEEABLE ACCIDENT, HAS SUFFERED PSYCHIATRIC INJURY, SHOULD HAVE BEEN WITHIN THE RANGE OF FORESEEABLE PHYSICAL INJURY OR WHETHER IT MUST HAVE BEEN FORESEEABLE, IN THE LIGHT OF THE CIRCUMSTANCES OF THE ACCIDENT AS IT ACTUALLY HAPPENED, THAT HE WOULD SUFFER PSYCHIATRIC ILLNESS. A MAJORITY OF YOUR LORDSHIPS HELD THAT FORESEEABILITY OF PHYSICAL INJURY WAS ENOUGH TO FOUND A CLAIM FOR ANY PSYCHIATRIC INJURY WHICH THE ACCIDENT CAUSED.LORDS, I SHALL CONSIDER FIRST THE CLAIM TO PRIMARY STATUS BY VIRTUE OF THE EMPLOYMENT RELATIONSHIP. MR. HYTNER Q.C., FOR THE PLAINTIFFS, SAID THAT PRIMA FACIE AN EMPLOYER'S DUTY REQUIRED HIM TO TAKE REASONABLE STEPS TO SAFEGUARD HIS EMPLOYEES FROM UNNECESSARY RISK OF HARM. THE WORD "UNNECESSARY" MUST BE STRESSED BECAUSE OBVIOUSLY A POLICEMAN TAKES THE RISK OF INJURY WHICH IS AN UNAVOIDABLE PART OF HIS DUTY. BUT THERE IS NO REASON WHY HE SHOULD BE EXPOSED TO INJURIES WHICH REASONABLE CARE COULD PREVENT. WHY, IN THIS CONTEXT, SHOULD PSYCHIATRIC INJURY SHOULD BE TREATED DIFFERENTLY FROM PHYSICAL INJURY? HE REFERRED TO WALKER V. NORTHUMBERLAND COUNTY COUNCIL [1995] 1 ALL ER 737 AN EMPLOYEE RECOVERED DAMAGES FOR A MENTAL BREAKDOWN, HELD TO HAVE BEEN FORESEEABLY CAUSED BY THE STRESS AND PRESSURE OF HIS WORK AS A SOCIAL SERVICES OFFICER. THIS, HE SAID, SHOWED THAT NO DISTINCTION COULD BE MADE.LORDS, THAT THIS ARGUMENT REALLY ASSUMES WHAT IT NEEDS TO PROVE. THE LIABILITY OF AN EMPLOYER TO HIS EMPLOYEES FOR NEGLIGENCE, EITHER DIRECT OR VICARIOUS, IS NOT A SEPARATE TORT WITH ITS OWN RULES. IT IS AN ASPECT OF THE GENERAL LAW OF NEGLIGENCE. THE RELATIONSHIP OF EMPLOYER AND EMPLOYEE ESTABLISHES THE EMPLOYEE AS A PERSON TO WHOM THE EMPLOYER OWES A DUTY OF CARE. BUT THIS TELLS ONE NOTHING ABOUT THE CIRCUMSTANCES IN WHICH HE WILL BE LIABLE FOR A PARTICULAR TYPE OF INJURY. FOR THIS ONE MUST LOOK TO THE GENERAL LAW CONCERNING THE TYPE OF INJURY WHICH HAS BEEN SUFFERED. IT WOULD NOT BE SUGGESTED THAT THE EMPLOYMENT RELATIONSHIP ENTITLES THE EMPLOYEE TO RECOVER DAMAGES IN TORT (I PUT ASIDE CONTRACTUAL LIABILITY, WHICH OBVIOUSLY RAISES DIFFERENT QUESTIONS) FOR ECONOMIC LOSS WHICH WOULD NOT ORDINARILY BE RECOVERABLE IN NEGLIGENCE. THE EMPLOYER IS NOT, FOR EXAMPLE, UNDER A DUTY IN TORT TO TAKE REASONABLE CARE NOT TO DO SOMETHING WHICH WOULD CAUSE THE EMPLOYEE PURELY FINANCIAL LOSS, E.G. BY REDUCING HIS OPPORTUNITIES TO EARN BONUSES. THE SAME MUST SURELY BE TRUE OF PSYCHIATRIC INJURY. THERE MUST BE A REASON WHY, IF THE EMPLOYEE WOULD OTHERWISE HAVE BEEN REGARDED AS A SECONDARY VICTIM, THE EMPLOYMENT RELATIONSHIP SHOULD REQUIRE HIM TO BE TREATED AS A PRIMARY ONE. THE EMPLOYEE IN TO WALKER V. NORTHUMBERLAND COUNTY COUNCIL [1995] 1 ALL ER 737 WAS IN NO SENSE A SECONDARY VICTIM. HIS MENTAL BREAKDOWN WAS CAUSED BY THE STRAIN OF DOING THE WORK WHICH HIS EMPLOYER HAD REQUIRED HIM TO DO.LORDS, THAT THE QUESTION VIVIDLY ILLUSTRATES THE DANGERS INHERENT IN APPLYING THE TRADITIONAL INCREMENTALISM OF THE COMMON LAW TO THIS PART OF THE LAW OF TORTS. IF ONE STARTS FROM THE EMPLOYER'S LIABILITY IN RESPECT OF PHYSICAL INJURY, IT SEEMS AN EASY STEP, EVEN RATHER FORWARD-LOOKING, TO EXTEND LIABILITY ON THE SAME GROUNDS TO PSYCHIATRIC INJURY. IT MAKES THE LAW SEEM MORE ATTUNED TO ADVANCED MEDICAL THINKING BY ELIMINATING (OR NOT INTRODUCING) A DISTINCTION WHICH RESTS UPON UNEASY EMPIRICAL FOUNDATIONS. IT IS IMPORTANT, HOWEVER TO HAVE REGARD, NOT ONLY TO HOW THE PROPOSED EXTENSION OF LIABILITY CAN BE ALIGNED WITH CASES IN WHICH LIABILITY EXISTS, BUT ALSO TO THE SITUATIONS IN WHICH DAMAGES ARE NOT RECOVERABLE. IF ONE THEN STEPS BACK AND LOOKS AT THE RULES OF LIABILITY FOR PSYCHIATRIC INJURY AS A WHOLE, IN THEIR RELATIONSHIP WITH EACH OTHER, THE SMOOTHING OF THE FABRIC AT ONE POINT HAS PRODUCED AN UGLY RUCK AT ANOTHER. IN THEIR APPLICATION TO OTHER SECONDARY VICTIMS, THE ALCOCK CONTROL MECHANISMS STAND OBSTINATELY IN THE WAY OF RATIONALISATION AND THE EFFECT IS TO PRODUCE STRIKING ANOMALIES. WHY SHOULD THE POLICEMEN, SIMPLY BY VIRTUE OF THE EMPLOYMENT ANALOGY AND IRRESPECTIVE OF WHAT THEY ACTUALLY DID, BE TREATED DIFFERENT FROM FIRST AID WORKERS OR AMBULANCE MEN? IN THE COURT OF APPEAL, WHERE FOUR OF THE PLAINTIFFS SUCCEEDED ON THIS GROUND, ROSE L.J. DENIED THAT HE WAS GIVING PREFERENCE TO "POLICEMEN OVER LAYMEN." HE SAID THAT THE DISTINCTION EXISTED BECAUSE "THE COURT HAS LONG RECOGNISED A DUTY OF CARE TO GUARD EMPLOYEES AND RESCUERS AGAINST ALL KINDS OF INJURY." FOR THE MOMENT I LEAVE ASIDE THE "RESCUERS", WHERE OBVIOUSLY NO DISTINCTION BASED ON THE EMPLOYMENT RELATIONSHIP NEED BE MADE. BUT WITH RESPECT TO EMPLOYEES AS SUCH, ROSE L.J. STATES A BROAD PROPOSITION AS SETTLED LAW. I THINK IT IS DEBATABLE WHETHER THE AUTHORITIES HAVE GONE SO FAR AS TO RECOGNISE A DUTY TO GUARD EMPLOYEES AGAINST PSYCHIATRIC INJURY SUFFERED AS A RESULT OF INJURY TO OTHERS AND I SHALL DISCUSS THEM IN A MOMENT. APART FROM AUTHORITY, HOWEVER, IT SEEMS TO ME THAT ROSE L.J. IS STATING THE DISTINCTION RATHER THAN EXPLAINING IT.LORD BRIDGE OF HARWICH IN MCLOUGHLIN V. O'BRIAN [1983] 1 AC 410. THIS WAS A VIEW WHICH MIGHT WELL HAVE PREVAILED, BUT THE SUBSEQUENT RETREAT FROM PRINCIPLE IN ALCOCK V. CHIEF CONSTABLE OF SOUTH YORKSHIRE [1992] 1 AC 310 MEANT THAT IT, AND THE OTHER TWO CASES, HAD EITHER TO BE GIVEN UP AS WRONGLY DECIDED OR EXPLAINED ON OTHER GROUNDS. THE SAME IS TRUE OF THE AUSTRALIAN CASE OF MOUNT ISA MINES V. PUSEY [1971] 125 C.L.R. 382, WHOSE INTEREST RESIDES ENTIRELY IN THE JUDGMENT OF WINDEYER J. ONLY ONE OF THE OTHER JUDGES FOUND IT NECESSARY TO DISCUSS THE PRINCIPLES OF LIABILITY FOR PSYCHIATRIC INJURY AND HE EXPRESSLY REFRAINED FROM CONSIDERING WHETHER IT COULD BE BASED UPON THE EMPLOYEE RELATIONSHIP. WINDEYER J. THOUGHT THAT IT COULD, BUT ONLY AS PART OF HIS WIDER THESIS THAT FORESEEABLE PHYSICAL AND FORESEEABLE PSYCHIATRIC INJURY SHOULD NOT BE DISTINGUISHED. HE WAS AT PAINS TO SAY (AT P. 404) THAT ALTHOUGH THE PLAINTIFF WAS OWED A DUTY OF CARE AS EMPLOYEE, HIS POSITION WAS NO DIFFERENT FROM THAT OF ANYONE ELSE TO WHOM INJURY, WHETHER PHYSICAL OR PSYCHIATRIC, WAS REASONABLY FORESEEABLE.LORD OLIVER OF AYLMERTON ATTEMPTED AN EX POST FACTO RATIONALISATION OF THE THREE ENGLISH CASES BY SAYING THAT IN EACH, THE PLAINTIFF HAD BEEN PUT IN A POSITION IN WHICH HE WAS, OR THOUGHT HE WAS ABOUT TO BE OR HAD BEEN, THE IMMEDIATE INSTRUMENT OF DEATH OR INJURY TO ANOTHER. IN WIGG, FOR EXAMPLE, THE PLAINTIFF WAS THE DRIVER OF A TRAIN WHICH HAD CAUSED THE DEATH OF A PASSENGER BY MOVING OFF WHEN HE WAS TRYING TO BOARD. THE DRIVER HAD STARTED BECAUSE THE GUARD, FOR WHOM THE EMPLOYER WAS VICARIOUSLY LIABLE, HAD NEGLIGENTLY GIVEN THE SIGNAL. THIS IS AN ELEGANT, NOT TO SAY INGENIOUS, EXPLANATION, WHICH OWES NOTHING TO THE ACTUAL REASONING (SO FAR AS WE HAVE IT) IN ANY OF THE CASES. AND THERE MAY BE GROUNDS FOR TREATING SUCH A RARE CATEGORY OF CASE AS EXCEPTIONAL AND EXEMPT FROM THE ALCOCK CONTROL MECHANISMS. I DO NOT NEED TO EXPRESS A VIEW BECAUSE NONE OF THE PLAINTIFFS IN THIS CASE COME WITHIN IT. IN ROBERTSON V. FORTH ROAD BRIDGE JOINT BOARD [1995] SC 364 LORD HOPE ADOPTED LORD OLIVER'S EXPLANATION OF THE ENGLISH CASES AND REJECTED A CLAIM FOR PSYCHIATRIC INJURY BY EMPLOYEES WHO HAD WITNESSED THE DEATH OF A FELLOW EMPLOYEE IN THE COURSE OF BEING ENGAGED ON THE SAME WORK. I RESPECTFULLY AGREE WITH THE REASONING OF MY NOBLE AND LEARNED FRIEND, WHICH I REGARD AS A REJECTION OF THE EMPLOYMENT RELATIONSHIP AS IN ITSELF A SUFFICIENT BASIS FOR LIABILITY.LORD GRIFFITHS, WHO HAD BEEN THE SUCCESSFUL COUNSEL FOR MR. CHADWICK. HE SAID:LORD GRIFFITHS SAID, WITHIN THE RANGE OF FORESEEABLE PHYSICAL INJURY, THEN THE CASE IS NO MORE THAN AN ILLUSTRATION OF THE PRINCIPLE APPLIED BY THE HOUSE IN PAGE V. SMITH [1996] AC 155, NAMELY THAT SUCH A PERSON CAN RECOVER EVEN IF THE INJURY HE ACTUALLY SUFFERS IS NOT PHYSICAL BUT PSYCHIATRIC. AND IN ADDITION (UNLIKE PAGE V. SMITH [1996] AC 155) WALLER J. MADE A FINDING THAT PSYCHIATRIC INJURY WAS ALSO FORESEEABLE.LORDSHIPS TAKE THE INCREMENTAL STEP OF EXTENDING LIABILITY FOR PSYCHIATRIC INJURY TO "RESCUERS" (A CLASS WHICH WOULD NOW REQUIRE DEFINITION) WHO GIVE ASSISTANCE AT OR AFTER SOME DISASTER WITHOUT COMING WITHIN THE RANGE OF FORESEEABLE PHYSICAL INJURY? IT MAY BE SAID THAT THIS WOULD ENCOURAGE PEOPLE TO OFFER ASSISTANCE. THE CATEGORY OF SECONDARY VICTIMS WOULD BE CONFINED TO "SPECTATORS AND BYSTANDERS" WHO TAKE NO PART IN DEALING WITH THE INCIDENT OR ITS AFTERMATH. ON THE AUTHORITIES, AS IT SEEMS TO ME, YOUR LORDSHIPS ARE FREE TO TAKE SUCH A STEP.LORDSHIPS SHOULD NOT DO SO. 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 BECOMES DIFFICULT TO DRAW WITH ANY PRECISION. FOR EXAMPLE, ONE OF THE PLAINTIFFS IN ALCOCK, A MR. O'DELL, WENT TO LOOK FOR HIS NEPHEW. "HE SEARCHED AMONG THE BODIES . . . AND ASSISTED THOSE WHO STAGGERED OUT FROM THE TERRACES." ([1992] 1 A.C., 354.) HE DID NOT CONTEND THAT HIS CASE WAS DIFFERENT FROM THOSE OF THE OTHER RELATIVES AND IT WAS ALSO DISMISSED. SHOULD HE HAVE PUT HIMSELF FORWARD AS A RESCUER?JUSTICE. HE WOULD THINK IT UNFAIR BETWEEN ONE CLASS OF CLAIMANTS AND ANOTHER, AT BEST NOT TREATING LIKE CASES ALIKE AND, AT WORST, FAVOURING THE LESS DESERVING AGAINST THE MORE DESERVING. HE WOULD THINK IT WRONG THAT POLICEMEN, EVEN AS PART OF A GENERAL CLASS OF PERSONS WHO RENDERED ASSISTANCE, SHOULD HAVE THE RIGHT TO COMPENSATION FOR PSYCHIATRIC INJURY OUT OF PUBLIC FUNDS WHILE THE BEREAVED RELATIVES ARE SENT AWAY WITH NOTHING.JUSTICE. AN EXTENSION OF LIABILITY TO RESCUERS AND HELPERS WOULD BE A MODEST INCREMENTAL DEVELOPMENT IN THE COMMON LAW TRADITION AND, AS BETWEEN THESE PLAINTIFFS AND THESE DEFENDANTS, PRODUCE A JUST RESULT. MY LORDS, I DISAGREE. IT SEEMS TO ME THAT IN THIS AREA OF THE LAW, THE SEARCH FOR PRINCIPLE WAS CALLED OFF IN ALCOCK V. CHIEF CONSTABLE OF SOUTH YORKSHIRE [1992] 1 AC 310. NO ONE CAN PRETEND THAT THE EXISTING LAW, WHICH YOUR LORDSHIPS HAVE TO ACCEPT, IS FOUNDED UPON PRINCIPLE. I AGREE WITH JANE STAPLETON'S REMARK THAT: (SEE THE FRONTIERS OF LIABILITY ED. PETER BIRKS, O.U.P. (1994) VOLUME 2, P. 87.LORDSHIPS ARE NOW ENGAGED, NOT IN THE BOLD DEVELOPMENT OF PRINCIPLE, BUT IN A PRACTICAL ATTEMPT, UNDER ADVERSE CONDITIONS, TO PRESERVE THE GENERAL PERCEPTION OF THE LAW AS SYSTEM OF RULES WHICH IS FAIR BETWEEN ONE CITIZEN AND ANOTHER.LORDSHIPS' HOUSE IN OGWO V. TAYLOR [1988] 1 A.C. 431. THIS WOULD BE TOO GREAT AN AFFRONT TO THE IDEALISED MODEL OF THE LAW OF TORTS AS A SYSTEM OF CORRECTIVE JUSTICE BETWEEN EQUALS. BUT THE QUESTION HERE IS RATHER DIFFERENT. IT IS NOT WHETHER A POLICEMAN SHOULD BE DISQUALIFIED IN CIRCUMSTANCES IN WHICH HE WOULD ORDINARILY HAVE A RIGHT OF ACTION, BUT WHETHER THERE SHOULD BE LIABILITY TO RESCUERS AND HELPERS AS A CLASS. AND IN CONSIDERING WHETHER LIABILITY FOR PSYCHIATRIC INJURY SHOULD BE EXTENDED TO SUCH A CLASS, I THINK IT IS LEGITIMATE TO TAKE INTO ACCOUNT THE FACT THAT, IN THE NATURE OF THINGS, MANY OF ITS MEMBERS WILL BE FROM OCCUPATIONS IN WHICH THEY ARE TRAINED AND REQUIRED TO RUN SUCH RISKS AND WHICH PROVIDE FOR APPROPRIATE BENEFITS IF THEY SHOULD SUFFER SUCH INJURIES.LORDSHIPS SHOULD REJECT THEM. I HAVE ALSO READ IN DRAFT THE SPEECH OF MY NOBLE AND LEARNED FRIEND LORD STEYN AND AGREE WITH HIS REASONS FOR TAKING THE SAME COURSE, WHICH SEEM TO ME SUBSTANTIALLY THE SAME AS MY OWN. I WOULD THEREFORE ALLOW THESE APPEALS AND DISMISS THE ACTIONS.