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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Hicks v Chief Constable of the South Yorkshire Police [1991] UKHL 9 (05 March 1992)
URL: http://www.bailii.org/uk/cases/UKHL/1991/9.html
Cite as: [1992] 2 All ER 65, [1991] UKHL 9, [1992] PIQR P433

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JISCBAILII_CASE_TORT

    Parliamentary Archives,
    HL/PO/JU/18/252

    Hicks and others (Appellants) v. Wright (sued as Chief
    Constable
    of the South Yorkshire Police) (Respondent)

    JUDGMENT

    Die Jovis 5° Martii 1992

    Upon Report from the Appellate Committee to whom was
    referred the Cause Hicks and others against Wright (sued as
    Chief Constable of the South Yorkshire Police), That the
    Committee had heard Counsel on Wednesday the 29th day of
    January last, upon the Petition and Appeal of Sarah Louise
    Hicks (suing by the joint Administrators o£ her Estate, Trevor
    Hicks of Falrigg Cottage, 7 Moor Lane, Grassington, Skipton,
    Yorks, BD25 5BD and Jennifer Hicks of 2 Grange Mews, Grange
    Lane, Woolton, Liverpool, 25) and Victoria Jane Hicks (suing
    by the Joint Administrators of her Estate, Trevor Hicks and
    Jennifer Hicks of the above mentioned addresses) and James
    Wafer of 82 Ince Avenue, Liverpool, L4 7JY (suing as
    Administrator of the Estate of the Late Colin Wafer), praying
    that the matter of the Order set forth in the Schedule
    thereto, namely an Order of Her Majesty's Court of Appeal of
    the 3rd day of May 1991, might be reviewed before Her Majesty
    the Queen in Her Court of Parliament and that the said Order
    might be reversed, varied or altered or that the Petitioners
    might have such other relief in the premises as to Her Majesty
    the Queen in Her Court of Parliament might seem meet; as upon
    the case of Peter Wright lodged in answer to the said Appeal;
    and due consideration had this day of what was offered on
    either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of Her Majesty's Court of
    Appeal of the 3rd day of May 1991 complained of in the said
    Appeal be, and the same is hereby, Affirmed and that the said
    Petition and Appeal be, and the same is hereby, dismissed this
    House: And it is further Ordered, That the Appellants do pay
    or cause ho be paid to the said Respondent the Costs incurred
    by him in respect of the said Appeal, the amount thereof to be
    certified by the Clerk of the Parliaments if not agreed
    between the parties.

    Cler: Parliamentor :

    Judgment: 5.3.92

    HOUSE OF LORDS

    HICKS AND OTHERS
    (APPELLANTS)

    v.

    WRIGHT
    (SUED AS CHIEF CONSTABLE OF THE SOUTH YORKSHIRE

    POLICE)
    (RESPONDENT)

    Lord Templeman
    Lord Bridge of Harwich
    Lord Griffiths
    Lord Goff of Chieveley
    Lord Browne-Wilkinson


    LORD TEMPLEMAN

    My Lords,

    For the reasons given by my noble and learned friend Lord
    Bridge of Harwich I would dismiss this appeal.

    LORD BRIDGE OF HARWICH

    My Lords,

    The appellants are the parents of two girls, Sarah and
    Victoria Hicks, who died in the disaster at Hillsborough Football
    Stadium on 15 April 1989 when they were respectively 19 and 15
    years of age. In this action they claim damages under the Law
    Reform (Miscellaneous Provisions) Act 1934 for the benefit of the
    estate of each daughter of which they are in each case the
    administrators. The respondent is the Chief Constable of South
    Yorkshire who does not contest his liability to persons who
    suffered damage in the disaster. The basis of the claim advanced
    here is that at the moment of death Sarah and Victoria each had
    an accrued cause of action for injuries suffered prior to death
    which survived for the benefit of their respective estates. The
    action was tried by Hidden J. who held that the plaintiffs had
    failed to prove that either girl suffered before death any injury
    for which damages fell to be awarded. His decision was affirmed
    by the Court of Appeal (Parker, Stocker and Nolan L.JJ.). Appeal
    is now brought to your Lordships' House by leave of the Court of
    Appeal.

    No one can feel anything but the greatest sympathy for the
    relatives of those who died in the disaster, the circumstances of
    which are now all too well known. The anguish of parents caused
    by the death in such a horrifying event of sons and daughters who
    were on the very threshold of life must indeed have been almost
    unbearable. But the common law has never awarded damages for
    the pain of bereavement. The Administration of Justice Act 1982
    section 3(1), by substitution of section 1A of the Finance Act
    1976, introduced such a claim for the first time in the fixed sum
    of £3,500 (subsequently increased by statutory instrument to
    £7,500) but only for the benefit of a spouse in respect of the
    death of the other spouse or for the benefit of parents in respect
    of the death of a minor child. The same Act, by section 1,
    abolished the right to an award of damages in a conventional sum
    for the benefit of the estate of the deceased under the Act of
    1934 in respect of the deceased's loss of expectation of life, save
    to the limited extent provided by section l(l)(b), which is not here
    relevant. Such conventional awards had long been felt to be
    anomalous. In respect of the deaths of Sarah and Victoria there
    was no dependency and hence no claim under the Fatal Accidents
    Acts. Thus, apart from a bereavement claim under the Act of
    1982 in respect of Victoria, a claim for damages in respect of
    injuries suffered before death was the only claim which Mr. and
    Mrs. Hicks could bring.

    This action and another action tried by Hidden J. at the
    same time, which also failed and has not been pursued beyond the
    Court of Appeal, were said to be test cases which would afford
    guidance in relation to other similar claims arising out of the
    Hillsborough disaster. We were assured by counsel, and I have no
    reason to doubt it, that the action was not brought for the sake
    of the money that may be awarded but rather to mark the anger
    of these parents and other bereaved relatives at what occurred.
    But whatever justification there may be for that anger has no
    relevance to damages in a civil action for negligence, which are
    compensatory, not punitive.

    The difficulty which immediately confronts the appellants in
    this House is that the question what injuries Sarah and Victoria
    suffered
    before death was purely one of fact and Hidden J.'s
    conclusion on the evidence that the plaintiffs had failed to
    discharge the onus of proving any such injury sufficient to attract
    an award of damages was a finding of fact affirmed by the Court
    of Appeal. The appellants must therefore persuade your Lordships
    to reverse those concurrent findings if they are to succeed. Mr.
    Hytner says that the primary facts were not in dispute and
    submits, therefore, that the House is in as good a position as the
    courts below to draw the proper inferences from those primary
    facts. But this submission ignores the special restraint with which
    the House approaches findings of fact which are concurrent. In
    Higgins v. J. & C. M. Smith (Whiteinch) Ltd., 1990 S.C. (H.L.) 63,
    Lord 3auncey of Tullichettle, in a speech with which the rest of
    their Lordships agreed, said at p. 82:

    "Where there are concurrent findings of fact in the courts
    below generally this House will interfere with those findings
    only where it can be shown that both courts were clearly
    wrong. It is nothing to the point that this House might on
    the evidence have reached a different conclusion, . . . The
    principle does not depend upon the advantage possessed by
    the judge of first instance of seeing and hearing the

    - 2 -

    witnesses - that advantage will already have been reflected
    in the decision of the lower appellate court to confirm the
    findings of the judge."

    This statement of principle in a Scottish appeal accurately
    reflects previous authority to the like effect in an English appeal
    (see The Owners of the "P. Caland" and Freight v. Glamorgan
    Steamship Co. Ltd.
    [1893] A.C. 207) and clearly applies to
    concurrent inferences of fact whether or not the primary facts are
    in dispute.

    The evidence here showed that both girls died from
    traumatic asphyxia. They were in the pens at one end of the
    Hillsborough Stadium to which access was through a tunnel some
    23 metres in length. When the pens were already seriously
    overcrowded a great number of additional spectators, anxious to
    see the football match which was about to start, were admitted
    through the turnstiles and surged through the tunnel causing the
    dreadful crush in the pens in which 95 people died. Medical
    evidence which the judge accepted was to the effect that in cases
    of death from traumatic asphyxia caused by crushing the victim
    would
    lose consciousness within a matter of seconds from the
    crushing of the chest which cut off the ability to breathe and
    would die within 5 minutes. There was no indication in the post
    mortem reports on either girl of physical injuries attributable to
    anything other than the fatal crushing which caused the asphyxia,
    save, in the case of Sarah, some superficial bruising which, on the
    evidence, could have occurred either before or after loss of
    consciousness. Hidden J. was not satisfied that any physical injury
    had been sustained before what he described as the "swift and
    sudden [death] as shown by the medical evidence." Unless the law
    were to distinguish between death within seconds of injury and
    unconsciousness within seconds of injury followed by death within
    minutes, which I do not understand to be suggested, these findings,
    as Hidden J. himself said "with regret," made it impossible for him
    to award any damages.

    Mr. Hytner sought to persuade your Lordships, as he sought
    to persuade the Court of Appeal, that on the whole of the
    evidence the judge ought to have found on a balance of
    probabilities that there was a gradual build up of pressure on the
    bodies of the two girls causing increasing breathlessness,
    discomfort and pain from which they suffered for some 20 minutes
    before the final crushing injury which produced unconsciousness.
    This should have led, he submitted, to the conclusion that they
    sustained injuries which caused considerable pain and suffering
    while they were still conscious and which should attract a
    substantial award of damages. The Court of Appeal, in a
    judgment delivered by Parker L.J. with which both Stocker and
    Nolan L.JJ. agreed, carefully reviewed the evidence and concluded,
    in agreement with Hidden J., that it did not establish that any
    physical injury was caused before the fatal crushing injury. I do
    not intend myself to embark on a detailed review of the evidence.
    In the circumstances I think it sufficient to say that, in my
    opinion, the conclusion of fact reached by Hidden J. and the Court
    of Appeal was fairly open to them and it is impossible to say that
    they were wrong.

    - 3 -

    A good deal of argument in the courts below and before
    your Lordships was addressed to the question whether damages for
    physical injuries should be increased on account of the terrifying
    circumstances in which they were inflicted. This may depend on
    difficult questions of causation. But on the facts found in this
    case the question does not arise for decision. It is perfectly clear
    law that fear by itself, of whatever degree, is a normal human
    emotion for which no damages can be awarded. Those trapped in
    the crush at Hillsborough who were fortunate enough to escape
    without injury have no claim in respect of the distress they
    suffered in what must have been a truly terrifying experience. It
    follows that fear of impending death felt by the victim of a fatal
    injury before that injury is inflicted cannot by itself give rise to a
    cause of action which survives for the benefit of the victim's
    estate.

    I would dismiss the appeal.

    LORD GRIFFITHS

    My Lords,

    For the reasons given by my noble and learned friend Lord
    Bridge of Harwich I would dismiss this appeal.

    LORD GOFF OF CHIEVELEY

    My Lords,

    For the reasons given by my noble and learned friend Lord
    Bridge of Harwich I too would dismiss this appeal.

    LORD BROWNE-WILKINSON

    My Lords,

    For the reasons given by my noble and learned friend Lord
    Bridge of Harwich I too would dismiss this appeal.

    -4-


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