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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> McFarlane v EE Caledonia Ltd  EWCA Civ 13 (29 July 1993)
Cite as:  EWCA Civ 13,  1 Lloyd's Rep 16,  1 LLR 16
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MRS. JUSTICE SMITH)
B e f o r e :
LORD JUSTICE STUART SMITH
LORD JUSTICE MCCOWAN
|E E CALEDONIA LTD|
Telephone No: 071 404 7464
Official Shorthand Writers to the Court)
by Ince & Co. of London EC3R 5EN) appeared on behalf of the Appellant
MR. NIGEL WILKINSON Q.C. and MISS ANNA GUGGENHEIM (instructed by Levinson Gray of London SW1H 9JA) appeared on behalf of the Respondent
Crown Copyright ©
Thursday, 29th July, 1993
Lord Justice STUART-SMITH: On the night of 6th July 1988 a disastrous fire broke out on the oil rig "Piper Alpha" in the North Sea. The fire spread and over the next hour or so totally engulfed the rig. 164 men lost their lives and many more were seriously injured. Vessels in the area went to assist in the fire fighting and rescue operations. One of these was the "Tharos"; the Plaintiff was on board the "Tharos". He sustained no physical injury; but as a result of his experiences that night he suffered psychiatric injury for which he claims damages.
The matter came before Mrs Justice Smith on a preliminary issue as to whether the Defendants, who were the owners and operators of the "Piper Alpha", owed the Plaintiff a duty to exercise reasonable care to avoid causing him psychiatric injury. For the purpose of the trial of that issue, two assumptions were to be made:
"(a) That the defendant was in breach of a duty owed to those persons on board the 'Piper Alpha' at the time of the explosion to exercise reasonable care to avoid causing physical injury or death to such persons and were thereby liable for damages in negligence to those persons on the 'Piper Alpha' at the time of the explosion who were killed or injured as a result of the explosion; and
(b) That the plaintiff has suffered psychiatric injuries which were caused as a result of the explosion of the 'Piper Alpha' and the breach by the defendant of its duty of care owed to those persons on board the 'Piper Alpha' at the time of the explosion."
The Judge answered the question in favour of the Plaintiff. Although the preliminary issue does not extend to the question of breach of the duty of care to the Plaintiff, I think it must follow or have been assumed that if the duty was owed to the Plaintiff, the Defendants were in breach of it. The Defendants now appeal the Judge's decision.
At the trial counsel for the Plaintiffs advanced three bases on which it was submitted that the Plaintiff was entitled to succeed. First on the ground that he was reasonably in fear for his life and safety and the fear had caused the shock which led to his injury. He was therefore a participant in the event. The Judge accepted the submission. Secondly that he was a rescuer and consequently even if he was not reasonably in fear for his safety, he could recover because the impact of the horrifying events had caused his shock. The Judge rejected this submission. Thirdly, it was submitted that even if he was only a bystander or witness to the events, they were so horrendous that it was reasonably to be foreseen that they would cause psychiatric injury in such a person. The Judge expressed no opinion on this. By his Respondent's notice the Plaintiff submits that the Judge's decision should, in the event that the appeal is allowed, be upheld on one of these grounds.
The Defendants were the owners and operators of the "Piper Alpha", an off-shore oil and gas platform situated about 120 miles north-east of Aberdeen. The platform was a huge structure whose main function was to pump ashore oil and gas brought in by pipelines from adjacent fields. There were four pipelines leading into the platform; these were from the Tartan, Claymore, MCP-01 and Chanter fields, although this last was not operative at the date of the disaster.
At the end of the horizontal section of each incoming pipeline, close to the platform there was a vertical section of piping known as a riser, which carried the oil or gas up into the pumping equipment. The platform also had a drilling rig, an accommodation section, a helideck and other ancillary facilities. At any one time, between two and three hundred men would work on the platform. Not all had living accommodation on the platform itself; some lived in quarters on board the "Tharos".
The "Tharos" is a semi-submersible multi-function vessel designed to provide support for off-shore installations. It provides living accommodation, well-kill equipment and construction support, machine shop, fabrication shop and diving facilities. The equipment on board includes fire monitors, an hydraulically operated gangway for platform access, a heavy duty crane, a helicopter and helideck. The vessel is also equipped to shield itself from fire or heat hazard by means of a water spray which is thrown up close to the vessel itself.
In the summer of 1988, "Tharos" was stationed in the vicinity of "Piper Alpha" for the purpose of fitting a riser to the Chanter pipeline. However, at all times the vessel had a secondary function, which was to offer assistance in emergencies. In such emergencies the extendable gangway could be used for the evacuation of personnel. The helicopter could be used for rescue purposes. There were medical and hospital facilities on board. The vessel was not designed to respond rapidly in emergencies as when ballasted she could travel at only 2.5 knots. She was intended to provide assistance in the later stage of an emergency when her fire-fighting capabilities could be used to kill a burning well.
The vessel's standing procedures provided that all non-essential personnel should be evacuated before any fire-fighting or rescue operation began. Non-essential personnel included men like the plaintiff who were not members of the "Tharos" crew.
On the evening of 6th July 1988, "Tharos" was lying partially anchored about 550 metres south-west of the "Piper Alpha" platform.
In July 1988, the Plaintiff was nearly 40 years old, a married men with five children. He had been employed as a painter almost all his working life. He had worked for various off-shore employers for about seven years and had undergone regular medical examinations as required. He did a strenuous job and was in good physical condition.
He had in the past suffered from two episodes of depressive illness. The first had occurred in 1978 following the death of his father, to whom he had been very close. His medical records indicate that this episode had lasted for about six weeks. The second episode, which occurred in 1980 and 1981, had lasted about five months and had had no obvious cause. It seems there had been matrimonial problems and the Plaintiff had been drinking to excess. However, the Plaintiff had suffered no recurrence of psychiatric illness since 1981.
The Judge found that the Plaintiff was probably not a person of average fortitude or customary phlegm and that he was probably more susceptible to psychiatric injury than the average man.
The Plaintiff first began work on the "Piper Alpha" platform in June 1988. He was employed by the Wood Group Engineering (Off-Shore) Ltd. On 6th July he was on his second tour of duty on the "Piper Alpha". He completed his shift at about 18.30 hours and was transferred to his living accommodation on board "Tharos" soon afterwards. By 22.00 hours he was lying on his bunk, reading.
The first explosion and fire on the "Piper Alpha" occurred at 22.00 hours. It was readily visible on the "Tharos". Within a few minutes, "Tharos" began to move towards the "Piper" to give assistance. Being ballasted and partially anchored, she was only able to move slowly. As she went, preparations were made to operate the hydraulic gangway and fire-fighting equipment. The helicopter took off and the rescue boat was launched. The obvious urgency was such that "Tharos" did not wait to evacuate her non-essential personnel before going to the rescue.
At 22.20 hours a huge explosion occurred on the platform. This is now known to have been caused by the rupture of the Tartan gas riser. A massive high pressure gas fire ensued. "Tharos" was about 250 metres away but was still approaching the platform.
The Plaintiff had gone onto the walkway of the accommodation block soon after the alarm was sounded. The "Tharos" was proceeding stern first. The accommodation walkway, which was the nearest point that the Plaintiff got to the fire is about 50 metres from the stern of the "Tharos". He said that this explosion caused him to be very afraid, he was shaking and retched.
At about 22.31 hours the fire monitors on the "Tharos" began to deliver water, although they were still out of range of the platform. Ten minutes later the heat shield was operating. By 22.45 "Tharos" was about 60-70 metres west of the platform and still moving closer. By 22.50 hours she was about 50 metres from the platform; this was the closest she came.
At 22.52 a second major explosion occurred caused by the rupture of the MCP-01 riser. Flames shot high into the air. A fast rescue vessel from the "Sandhaven", which had moved in close to one of the legs of the platform was engulfed in a fireball, causing the death of most of the occupants.
This explosion caused men to attempt to escape from the platform by jumping from the helideck and other parts of the structure. This must have entailed, in some cases, the jumping of a distance in excess of 100 feet. The structure of the platform began to collapse in the heat.
Soon after this explosion, the "Tharos" withdrew to a position about 100 metres from the platform, still operating her fire monitors, but by now spraying water onto the sea in front of the platform.
At about 23.05 hours "Tharos" began to move back towards the "Piper Alpha" until she again reached a distance of about 70 metres from it. She remained in that position until about 23.19 hours. At 23.14 the "Piper Alpha" drilling derrick collapsed inwards onto the platform. At about 23.l8, having been advised of danger from the escape of hydrogen sulphide gas, the Master of "Tharos" decided to withdraw his vessel. Within a minute or two and before that withdrawal had been effected, a third major explosion occurred. This is now known to have been due to the rupture of the Claymore gas riser and was the largest of all the explosions. It caused further structural collapse of the platform, which tilted towards the east. The withdrawal of "Tharos" then continued and the vessel thereafter operated at a distance of about 200 metres from the platform.
At about 23.38 hours the evacuation by helicopter of non-essential personnel from "Tharos" was commenced. It is likely that the Plaintiff was taken off at about 23.45.
The Plaintiff was therefore on board "Tharos" for about one and three quarter hours during the fire. For about half that time the vessel was within 100 metres of the platform; of which forty minutes were within 70 metres and a few minutes as close as 50 metres. At no time was the Plaintiff closer than 100 metres from the platform.
The Judge summarised the Plaintiff's evidence of what he did and how he felt after the initial major explosion as follows:
"Soon afterwards he returned to his earlier position and asked members of the crew if there was anything he could do to help. He was told to collect blankets from a store and to help prepare the helihangar for the reception of the casualties which were expected. He says that the did this for some time and when that was finished 'Tharos' had moved in close to the fire. He said he was very afraid at this time as there were things exploding on the platform and debris was being thrown off. He was fearful that there could be further explosions coming perhaps from under the sea, where he knew there were pipelines. He said he was praying and thinking of his family.
He could see men on the platform trying to escape, some climbing the derrick, some trying to climb down the platform supports, some on the decks waving for help, some were on fire, some were jumping into the sea. He could not identify these men but the sight caused him distress. He saw a lifeboat suspended before it fell into the sea, throwing the occupants out. He spoke of the temperature and the deafening noise, which he said was terrifying.
He recalled at one stage meeting two survivors who had just come aboard the 'Tharos'. They were able to walk but were confused and their faces were blackened. He helped them to the hospital area, where they were taken in. Soon after that he saw another explosion. He saw a fireball come towards the 'Tharos' and said that he ducked in fear. He claimed to have seen the destruction of the 'Sandhaven' rescue boat engulfed in a fire. He said that a while later he saw the sea on fire. He went to a radio room as he wanted to suggest that the 'Tharos's Clyde crane should be used to pick up survivors rather than trying to fight the fire, which he thought was hopeless.
Then he, he said, there was another massive explosion. That must have been the rupture of the claymore riser. He thought that was not long before he was lifted off by helicopter. He recalled that by that time the 'Tharos' had pulled back from the fire. He claimed that he knew that this was because of the danger from gas. He spoke of his friends and colleagues on the platform and of the distress, anger and grief that he had felt at what had happened."
The Defendants made a strong attack on the Plaintiff's credibility, not so much that he had deliberately said things he knew to be untrue, but rather that because of his illness and the fact that he had read and discussed the events of the night at great length he was confused and was unable to distinguish between what he had experienced and what he had subsequently learnt. The Judge accepted this criticism. In particular she did not believe that the Plaintiff had seen combustible materials being transferred by the overhead crane on the "Tharos" to a place of safety as she approached the fire; she did not accept that the Plaintiff appreciated that the reason why the "Tharos" withdrew at 23.18 was because of the danger of H2S gas or that he had seen the rescue boat from the "Sandhaven" consumed by a fireball. She said that she approached his evidence with extreme caution and was prepared to accept it only where it was supported by evidence from other sources or was inherently likely to be true.
The Plaintiff called no other evidence. The Defendants called two witnesses. Captain Letty, the Master of the "Tharos" whose evidence the Judge accepted. And Mr Robinson the barge clerk and helicopter landing officer on "Tharos" whose duties included mustering and evacuating the non-essential personnel. The Judge was not impressed by his evidence. In addition there were photographs taken from the "Tharos" which do not really assist in conveying a picture of conditions as seen from that vessel, and two video films. The longer of the two was taken from a vessel the "Maersk Leader". This was taken throughout the fire, though not continuously, from various positions as the vessel moved about. The Judge was obviously much impressed by the film. I think she plainly must have relied upon it to reach the conclusion which she did that many, probably most of the men on board the "Tharos" must have been afraid for their own safety, at least while the vessel was close to the platform. The judge summarised her impression thus:
"... The evidential value of this film is that it conveys vividly the colossal size and the awesome power and intensity of the conflagration. It gives some impression of the noise, which although by no means deafening on the soundtrack is reminiscent of the sound of a Bunsen burner magnified many times. The film also shows the billowing smoke, mercifully being blown away from the 'Tharos'. Had there been a sudden change in the direction of the wind, it is easy to see how the 'Tharos' could have been enveloped in smoke and flame. Even on film, even four years after the event this is a profoundly disturbing spectacle."
The Defendants criticise the Judge's speculation about the change in wind direction. I think there is force in the criticism. There was no evidence that anyone thought a change of wind direction likely. The wind was blowing from south to north; the "Tharos" was opposite the side of the platform which faced south-west. The shifting of the wind by a few points would have been quite immaterial; it would have had to change at least 90 degrees and probably more before it affected the "Tharos". Not even the Plaintiff said he feared this.
Each member of this court has seen the videos. Mr Wilkinson QC accepted that if our reaction was not the same as that of the Judge, he might be in difficulty. I must therefore summarise what this video film shows. The sight of the fire on the platform is awesome and horrendous. The flames are obviously going a substantial distance into the sky. The size and intensity of the fire increases with the ruptures of the risers and at any rate after 22.52 with the explosion of the MCP-01 riser the whole platform appears to be engulfed. On the other hand the smoke and flame is being blown away from the "Tharos", the wind evidently being quite strong. There is no sign of a fireball approaching the "Tharos" , still less engulfing it. There is no evidence of flying debris, and certainly none coming near "Tharos". Other vessels are shown considerably nearer to the fire, even at times on the leewards side. When the "Maersk Leader" is on the far side of the platform to "Tharos", there is foreshortening and she appears closer to the platform than she is. The heat screen from the "Tharos" can clearly be seen, as can the high level jet or spray coming from the crane which is spraying water towards the platform and the sea between it and "Tharos".
The second video film was taken by an ITN news team who were on an RAF rescue helicopter. It is of little assistance. The helicopter lands on the helideck of the "Tharos" at about 23.45, near the time when the Plaintiff was evacuated. Operations appear to be being conducted in an orderly and controlled manner. For my part I do not think that these films provide any evidence that a man of reasonable fortitude would be in reasonable fear of his life and safety in the position in which the Plaintiff was.
The Judge summarised Captain Letty's evidence as follows:
"...He said that no one on board the 'Tharos' suffered any physical injury that night and that the vessel itself was undamaged save for some blistering of paint on the end of the Clyde crane, which had projected further towards the fire than any other part of the vessel. Nor, he said, had any debris from the fire been found on board.
He himself was in the aft control room for virtually the whole period in question. That control room was the part of the vessel closest to the burning platform. He did not consider that his vessel was in danger. It was his duty to do what he could for the 'Piper Alpha' without endangering his vessel. He said: 'We came very close to being in danger, but we did not cross the line.' That was his professional judgment based upon a high degree of skill and many years of experience. He was not worried that there might be a major explosion from under the sea. He knew where the pipelines were and knew that they were not directly under the 'Tharos'.
However, he did accept that this had been the most horrifying spectacle that he had ever seen. He did not rule out the possibility of further unforeseen explosions occurring during the course of the night. Indeed, he accepted that after the Tartan riser had exploded he continued his advance in 'Tharos', not realising that another riser might rupture. When it did, it took him by surprise. He agreed that the heat, glare and noise from the fire might be frightening to some. He acknowledged that after one of the explosions a fireball had come towards 'Tharos'. He said that his entire field of vision became orange and that other officers in the control room had fallen to the floor at that moment. Even the helmsman had dropped to his knees.
He had seen the sea on fire, although not immediately adjacent to the 'Tharos'. He said that he himself had not been affected by fear during the emergency, but he had been affected afterwards by a sense of great relief that 'Tharos' had escaped unscathed. He agreed that he had probably been less fearful than others because of his experience and knowledge and also because he was so busy during the emergency. When giving evidence to the Cullen Inquiry, he had said: 'It must be remembered that on the night of the disaster all those who witnessed it experienced the disaster first-hand as it was unfolding, without knowledge of what was to happen next.' He continued: 'I personally do not believe that anybody who was not there on that night can imagine the magnitude and speed at which events took place.'"
The Judge posed the question of law that she had to answer in these terms at page 17H-18B:
"...The question to be determined is whether the defendant owed the plaintiff a duty to exercise reasonable care to avoid causing the plaintiff psychiatric injury. The existence of a duty of care depends upon the tests of foreseeability of harm and a proximity of relationship between the plaintiff and the defendant."
Although this formulation is correct so far as it goes, the Judge does not specifically remind herself that it is the foreseeability of the reasonable man in the position of the Defendant that is material. The question is an objective one. What ought the reasonable owner and operator of a drilling rig and platform in the position of the Defendants to have foreseen in the light of the facts which were known or ought to have been known to the Defendants? Specifically should he have foreseen that a person of ordinary fortitude in the position of the Plaintiff would reasonably be in such fear of his life and safety as to suffer psychiatric shock? The way in which the judge answered the question she had posed, leads me to the conclusion that she did not correctly apply the test. She reached her conclusion by a three stage process. First, she held that the Plaintiff had a fear for his own safety. This was a subjective fear. At page 17E-G she said:
"In my judgment, given the plaintiff's limited understanding of the circumstances, the heat, the noise and his proximity to an apparently uncontrollable fire, his fear for his life was entirely understandable and therefore reasonable. In my view, the test of whether the plaintiff's fear was reasonable must be a subjective one, based on what he knew and believed at the time. It cannot be based on a rational and objective appraisal made with the benefit of hindsight."
Although the Plaintiff, in order to succeed, had to establish that he in fact had such a fear, something which the Defendants challenge in this appeal, it was irrelevant to the foresight of the reasonable man in the Defendant's position. Secondly, that because of his limited knowledge and understanding his fear was understandable and therefore reasonable and that the presence of such a person was foreseeable; accordingly his subjective fear resulting from those circumstances was also foreseeable. But this does not answer the question which I have set out in the previous paragraph.
The final stage of the Judge's reasoning was to hold that it was plainly foreseeable that a man of reasonable fortitude may suffer psychiatric injury if exposed to the shock of being put in fear of his life. But this takes the matter no further. It is true that the Judge had earlier held that most men on the "Tharos" must have been afraid for their own safety, at least when the vessel was close to the platform and that for non-essential personnel who had no specific tasks to perform and a lesser understanding of what was involved, it must have been a very frightening experience. This is a finding that Mr Hamilton QC criticises, but even if correct, it still does not answer the question of what the Defendants ought reasonably to have foreseen.
In Alcock v Chief Constable of South Yorkshire (1992) AC 310 Lord Oliver of Aylmerton at page 407D identified two categories of those who suffered nervous shock through fear of injury. First, those involved mediately or immediately as a participant in the event who feared injury to themselves and secondly, those who are no more than passive and unwilling witnesses of injury caused to others. In the present case the Judge held that the Plaintiff was a participant.
There are I think basically three situations in which a plaintiff may be a participant when he sustains psychiatric injury through fear of physical injury to himself. First, where he is in the actual area of danger created by the event, but escapes physical injury by chance or good fortune. Such a person would be one who while actually on the "Piper Alpha" rig at the time of the fire, escaped physical injury, but might well be in fear for his life or safety.
Secondly, where the plaintiff is not actually in danger, but because of the sudden and unexpected nature of the event he reasonably thinks that he is. An example of this is Dulieu v White & Sons (1901)2 KB 669 where the plaintiff was put in fear for her safety when the defendants' runaway vehicle burst into the public house where she was serving behind the bar. She was not in fact at risk of physical injury; but she naturally was put in fear for her own safety. This was something that plainly ought to be in the contemplation of the defendant who negligently allows his vehicle to career out of control. It is not only those who may be able to fling themselves out of its path and so escape physical injury (who would fall into category 1), but those in the agony of the moment who reasonably believe they are in danger.
A case on the other side of the line is Bourhill v Young (1943) AC 92. The plaintiff was too far from the scene of the crash and it was held that the defendant could not reasonably foresee that she might be injured by his failure to exercise care. She was not within the area of potential danger arising as a result of the motorcyclist's negligence.
Thirdly, the situation may arise where the plaintiff who is not originally within the area of danger comes into it later. In the ordinary way, such a person, who is a volunteer, cannot recover if he has freely and voluntarily entered the area of danger. This is not something that the tortfeasor can reasonably foresee, and the plaintiff may also be met with a defence of volenti no fit injuria. However if he comes as a rescuer, he can recover. This is because a tortfeasor who has put A in peril by his negligence must reasonably foresee that B may come to rescue him, even if it involves risking his own safety.
A rescuer is entitled to put his own safety at risk, but not that of others, unless they too consent to be part of the rescue. I agree with Mr Hamilton QC that Captain Letty's duty was to ensure the safety of his vessel and those on it. If he acted negligently and in breach of this duty, he and the Defendants who employed him would be liable. There is no suggestion of this in this case and no criticism has been made of the handling or operation of the "Tharos". In my judgment this is an important consideration. The analysis can be tested by assuming that the "Tharos" had no connection with the Defendants. If Captain Letty had negligently and in breach of his duty taken the vessel into a position of danger where those on board were injured or reasonably feared injury this would be a novus actus interveniens and not something for which the Defendants would be liable.
But what is the position if the captain of a rescue vessel takes what seems to be a justified risk, and in doing so his vessel comes into actual danger with the result that it is damaged and personal injury sustained by those on board? In such circumstances the owners of the rig would be liable to an injured plaintiff on the rescue vessel in respect of both physical injury and psychiatric injury resulting from a reasonable fear of personal injury. But in these circumstances the captain, although with hindsight it will be seen that he committed an error of judgment, is not negligent. A reasonable man in the position of the Defendant should foresee that if his negligence caused such a catastrophic emergency, those in charge of rescue vessels may not be able to judge to a nicety exactly how near it is safe to bring their vessels. The Plaintiff does not come into either of the first two categories, and Mr Hamilton submits that he does not come into the third.
"Tharos" never was in actual danger. This was Captain Letty's appreciation at the time and it is borne out by events. She sustained no damage, save minimal paint blistering on the crane which projected nearest the platform; no debris fell on her; although there was one incident when a fireball may have approached fairly near, her heat shield was never turned to steam. No one sustained any physical injury, and there is no evidence that anyone other than the Plaintiff sustained psychiatric injury. In my judgment it cannot be said that the Defendants ought reasonably to have foreseen that the Plaintiff or other non-essential personnel on board her would suffer such injury. The "Tharos" was a well found vessel, equipped with a heat shield, and under the control of an experienced and competent captain. If indeed the Plaintiff had felt himself to be in any danger, he could have taken refuge in or behind the helicopter hangar, which was where non-essential personnel were required to muster. The Judge thought it was entirely understandable that the Plaintiff and other non-essential personnel should wish to see what was happening on the "Piper Alpha". I agree with this. What I do not agree with, is that someone who was in truth in fear of his life from spread of the fire and falling debris should not take shelter. Only someone who is rooted to the spot through fear would be unable to do so. The Plaintiff never suggested that; he accepted that he had moved about quite freely and could have taken shelter had he wished.
Mr Hamilton strongly criticised the Judge's finding that the Plaintiff was actually in fear for his safety or that such fear was reasonable, even on a subjective basis.
The Plaintiff associated his fear with certain specific events. The first was the explosion of the Tartan riser. "Tharos" was then 250 metres from the rig. No one has suggested that he reasonably thought he was in danger at that stage. Then he attributed his fear to the transportation of combustible materials overhead by the crane on "Tharos", and at a later stage when she drew back from the platform, he said he was afraid of the H2S gas. But the Judge did not accept the factual basis of these fears. The Plaintiff said he was frightened of debris from the platform falling on him. But he accepted that he never saw any falling on the "Tharos"; there is no evidence that any was falling near it and the absence of damage or debris afterwards confirms that there was no danger from this source. He said he was worried about subsea explosions. It is far from clear what he meant by this. There could not be explosions in the pipelines running under the sea. Mr Wilkinson submitted that what he was really afraid of was large explosions from the ruptured risers, which were not under the sea, and that this would give rise to an uncontrollable fire which might engulf the "Tharos" in what was described in argument as Armageddon. But the Plaintiff never said this as appears from a comment of the Judge in argument; at Day 3 page 74F she said:
"...In a sense the most remarkable thing about his evidence was the fact that he never said, I think, that he was simply terrified at being so close to such a huge fire, which I think perhaps would have been my own reaction, but I have already said I do not think my own reaction is very germane."
Her recollection was not dissented from by Mr Wilkinson and it is borne out by the evidence.
Mr Hamilton submits that the factual basis of his professed fears does not exist and his case is not based upon what he actually saw and felt but on ex post facto rationalisation. Much force is given to this submission by the complete absence of any allegation in the Statement of Claim of fear for his own safety. The whole case was pleaded on the basis of his witnessing the terrible events happening to others on the "Piper Alpha". That pleading was served in December 1989; it was amended in June 1991, but no relevant amendment was made as to the cause of his injury. It is true that in further and better particulars, served in May 1991, there is a reference to the Plaintiff feeling in danger at 22.20 when the Tartan riser ruptured and he saw combustible materials being transported overhead and there is later a brief reference to being exposed to danger himself. In cross-examination the Plaintiff accepted that he had not told his lawyers about these fears for his own safety in 1989; he said this was due to confusion. I cannot therefore accept Mr Wilkinson's suggested explanation, namely that the Plaintiff's lawyers chose to base the case initially on the ground of the Plaintiff witnessing the suffering of others and inadvertently or wrongfully omitted to plead the case that the shock was due to fear for his own safety and that it was only after the decision of the Court of Appeal in Alcock's case that it was realised that the case as then pleaded was not so robust as it was at first thought and the scope should be widened. No attempt was made by production of a statement dated in 1989 to show that this had all the time been the Plaintiff's case. A statement, undated, was exchanged shortly before trial, in which the Plaintiff does speak of fears for his own safety, linked as I have said to specific factual matters.
The Judge recognised the force of this criticism. But she negatived the effect of it because she said that it was inherently likely that the Plaintiff would have been afraid. With all respect to the Judge I cannot see how this probability can make good what is obviously an afterthought in the Plaintiff's evidence derived from the very process of discussion and rationalisation which the judge herself recognised the Plaintiff had indulged in.
Mr Hamilton also submitted that the Plaintiff's failure to seek the protection available to him strongly suggests that he was not genuinely in fear of his safety. As I have already said, I agree with this submission.
This court is always slow to differ from the trial Judge on findings of fact, especially where they are based on the Judge's assessment of the credibility of the witness. See Powell v Streatham Manor Nursing Home (1935) AC 243, Yuill v Yuill (1945) P 15 and Watt v Thomas (1947) AC 484. But in this case the Judge found the Plaintiff's evidence was unreliable; she was only prepared to accept it in so far as it was supported by other evidence or was inherently likely to be true. For the reasons I have given I do not think it was supported by other evidence nor was it inherently likely to be true on this point. Accordingly I do not think her judgment can be supported on these grounds.
I turn then to the matters raised in the Respondent's notice.
It is submitted by Mr Wilkinson that the Plaintiff was a rescuer and that even if his injury did not result from fear for his own safety he was entitled to recover because it was due to his experiences in rescuing the survivors. In Chadwick v British Railways Board (1967) 1 WLR 912 the Plaintiff's deceased husband had gone to the assistance of those involved in the Lewisham train disaster. For twelve hours he gave valuable help at very close quarters to those injured in the carnage. He was entitled to recover damages in respect of the psychoneurotic condition that resulted from his experiences. But the Judge held that the Plaintiff was not a rescuer even though he was on board "Tharos" which went to assist in rescue operations. I agree with the Judge's conclusions. The Plaintiff was never actively involved in the operation beyond helping to move blankets with a view to preparing the helihangar to receive casualties and encountering and perhaps assisting two walking injured as they arrived on "Tharos".
This is no criticism of him, he had no role to play, and there is no reason to doubt that he would have given more help if he could. But since the Defendant's liability to a rescuer depends upon his reasonable foreseeability, I do not think that a Defendant could reasonably foresee that this very limited degree of involvement could possibly give rise to psychiatric injury.
Secondly, it is submitted that the Plaintiff was obliged to witness the catastrophe at close range and that it was of such a horrendous nature that even as a bystander the Defendants owed him a duty of care. Mr Wilkinson relies on dicta of three of their Lordships in Alcock's case. At page 403 C-E Lord Ackner said:
"I respectfully share the difficulty expressed by Atkin LJ in Hambrook v Stokes Brothers (1925) 1 KB 141, 158-159 - how do you explain why the duty is confined to the case of parent or guardian and child and does not extend to other relations of life also involving intimate associations; and why does it not eventually extend to bystanders? As regards the latter category, while it may be very difficult to envisage a case of a stranger, who is not actively and foreseeably involved in a disaster or its aftermath, other than in the role of rescuer, suffering shock-induced psychiatric injury by the mere observation of apprehended or actual injury of a third person in circumstances that could be considered reasonably foreseeable, I see no reason in principle why he should not, if in the circumstances, a reasonably strong-nerved person would have been so shocked. In the course of argument your Lordships were given, by way of an example, that of a petrol tanker careering out of control into a school in session and bursting into flames. I would not be prepared to rule out a potential claim by a passer-by so shocked by the scene as to suffer psychiatric illness."
Lord Oliver at page 416 B-C said:
"Equally, I would not exclude the possibility envisaged by my noble and learned friend, Lord Ackner, of a successful claim given circumstances of such horror as would be likely to traumatise even the most phlegmatic spectator, by a mere bystander."
Lord Keith at page 397E said:
"...The case of a bystander unconnected with the victims of an accident is difficult. Psychiatric injury to him would not ordinarily, in my view, be within the range of reasonable foreseeability, but could not perhaps be entirely excluded from it if the circumstances of a catastrophe occurring very close to him were particularly horrific."
Mr Wilkinson submits that it is hardly possible to imagine anything more horrific than the holocaust on the "Piper Alpha", especially to the Plaintiff who knew that some of his mates were on board.
I share Lord Keith's difficulty. The whole basis of the decision in Alcock's case is that where the shock is caused by fear of injury to others as opposed to fear of injury to the participant, the test of proximity is not simply reasonable foreseeability. There must be a sufficiently close tie of love and affection between the Plaintiff and the victim. To extend the duty to those who have no such connection, is to base the test purely on foreseeability.
It seems to me that there are great practical problems as well. Reactions to horrific events are entirely subjective; who is to say that it is more horrific to see a petrol tanker advancing out of control on a school, when perhaps unknown to the plaintiff none of the children are in the building but are somewhere safe, than to see a child or group of children run over on a pedestrian crossing? There must be few scenes more harrowing than seeing women and children trapped at the window of a blazing building, yet many people gather to witness these calamities.
In my judgment both as a matter of principle and policy the Court should not extend the duty to those who are mere bystanders or witnesses of horrific events unless there is a sufficient degree of proximity, which requires both nearness in time and place and a close relationship of love and affection between plaintiff and victim.
Even if I am wrong in this view, I think the Plaintiff faces insuperable difficulty in this case. Not only is there no finding that it was reasonably foreseeable that a man of ordinary fortitude and phlegm would be so affected by what he saw, a finding which I would certainly decline to make on the evidence, but there is the finding that the Plaintiff was probably not such a person. I think this is fatal to this submission
I would therefore allow the appeal
LORD JUSTICE McCOWAN: I agree.
LORD JUSTICE RALPH GIBSON: I also agree.