\
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
IN
THE SUPREME COURT OF JUDICATURE
97/0522/C
COURT
OF APPEAL (CIVIL DIVISION)
ON
APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S
BENCH DIVISION
(Sir
William Macpherson of Cluny)
Royal
Courts of Justice
Thursday,
14th May 1998
Before:
LORD
JUSTICE HIRST
LORD
JUSTICE HUTCHISON
LORD
JUSTICE THORPE
-
- - - - - - -
PETER
NOBES
Appellant
ALIGN="LEFT">
LYNNE
SCHOFIELD
Respondent
-
- - - - - - -
(Transcript
of the Handed Down Judgment of
Smith
Bernal Reporting Limited
180
Fleet Street, London, EC4A 2HD
Telephone
No: 0171-421 4040
Official
Shorthand Writers to the Court)
-
- - - - - - -
MR.
B. NOLAN Q.C. and MR. D. HALL
(instructed by Messrs Russell Jones & Walker, Leeds) appeared on behalf of
the Respondent.
APPROVED
JUDGMENT
Crown
Copyright
Lord
Justice Hutchison: On 28th September 1989 the respondent, Mrs. Schofield,
then a
police constable in the West
Yorkshire Police Force, went in the course
of her duties to a house in Huddersfield because a Mrs. Hodgson had reported
finding four guns there. The house belonged to Mrs. Hodgson’s elderly
uncle and Mrs. Hodgson and her mother, Mrs. King, had found the guns while
engaged in tidying up. Mrs. Schofield was
accompanied by
Acting Sergeant
Dodding. At the house Mrs. King gave into Mrs. Schofield’s hands a
Beretta handgun, which she passed to Sergeant Dodding. He picked up and then
put down a 1914 service revolver. He then picked up a Colt Eley revolver and,
pointing it into some folded bedding materials, pulled the trigger six times.
The revolver was loaded with six rounds of ammunition, three of which were
discharged, passing through the bedding and the bed and doing some damage to
the floor and the ceiling beneath. The other three rounds were not detonated.
Sergeant
Dodding had uttered no warning of his intention to perform this extraordinary
and admittedly unlawful and inexcusable
action but Mrs. Schofield, who was
standing in the room by the foot of the bed within a few feet of him,
appreciating a second or so before the first shot what the Sergeant was about
to do, extended her hands backwards in what seems to have been a protective
gesture towards Mrs. Hodgkin and Mrs. King, who were standing close behind her.
She said in evidence more than once that she herself did not at the time feel
in any fear or danger, but that her ears rang from the noise and that she felt
numb and shocked by the Sergeant’s
act, which she regarded as
unbelievable and unprofessional.
The
following were the material findings of fact made on 28th February 1997 by the
judge, Sir William MacPherson of Cluny sitting as deputy judge of the High Court:
1.
The circumstances of the occurrence were as I have described them.
2.
Sergeant Dodding’s
action in firing the gun as he did gave rise to a
danger of physical injury or even death to those in the room. It is implicit,
in my
view, that the judge found that that
action was negligent.
3.
At the material time the plaintiff was
acting in the course of her duties as
a
police officer and was engaged jointly with Sergeant Dodding in collecting
and removing the guns from the house.
4.
The plaintiff was thus a participant in the incident giving rise to her
alleged injury.
5.
That injury was in fact caused by Sergeant Dodding’s
actions.
1.
If his finding was that the plaintiff was suffering from shock induced
post-traumatic
stress disorder, that was against the weight of the evidence; alternatively
2.
the judge failed to make a finding on these matters, and was
accordingly
wrong in holding that the plaintiff was entitled to recover damages.
3.
The judge was wrong to characterise the plaintiff as a primary
victim.
4.
If the judge found that the plaintiff was at any foreseeable risk of physical
injury, that finding was against the weight of the evidence.
5.
He was wrong to conclude that, on the facts of this case, foreseeability of
physical injury sufficed to entitle the plaintiff to recover for psychiatric
injury (said in this ground to have been unforeseeable).
6.
The judge failed to consider whether there was a foreseeable risk of
psychiatric injury (which this ground asserts there was not) when
foreseeability of psychiatric injury was a prerequisite to liability.
7.
He failed to consider, properly or at all, the plaintiff’s previous
psychological condition, in particular whether she had been a person of
ordinary fortitude.
8.
The judge wrongly attached importance to the relationship between the
defendant and the plaintiff being one analogous to that of master and servant,
which he should not have done particularly when the
act complained of was one
of a fellow employee rather than of the defendant himself.
9.
The judge should have held that the plaintiff was a mere bystander who
witnessed an incident which gave rise to no foreseeable risk of and did not
cause any psychiatric injury, and was
accordingly not entitled to recover.
It
is convenient, because it is a distinct point which can be dealt with quite
shortly, to consider first the argument of Mr. Brown Q.C. that the judge erred
in finding that physical injury was not reasonably foreseeable. He described
it as his worst point and, whether or not he was right in saying that, it is in
my
view certainly one that should be rejected. Mr. Brown, recognising that
there was uncontradicted evidence from the firearms expert called for the
plaintiff, Mr. Spencer and his own witness Sergeant Robertson, a trained
firearms officer, that there were risks of physical injury, suggested that the
judge’s error was in never applying his mind to what was the relevant
question, namely what a reasonable man in the position of Sergeant Dodding
(not himself a firearm’s expert) would have thought.
It
is true that, in the passage in his judgment in which the judge dealt with the
question of foreseeability of injury, he did not in terms state that the issue
involved the perceptions of a reasonable man in the Sergeant’s position.
However, I am confident both that he must have had that in mind, having no
doubt been addressed by counsel about it, and also that the evidence before him
established that a reasonable man in Sergeant Dodding’s position would
have appreciated the risk of physical injury. It is only necessary to quote
three passages from the evidence of Sergeant Robinson. In evidence in
chief
when asked about his perception of the state of mind of the plaintiff on her
return to the
police station, he said:
"I
found myself being in a position of disbelief as to what had taken place and I
considered that her condition at the time was similar to my own; some kind of
disbelief as to what had taken place.... [I shared her disbelief because it
was obviously a
very irregular thing to have done]"
In
cross-examination he said:
"That
[i.e. total surprise and disbelief at what Sergeant Dodding had done] is the
impression that I got, and the impression was her dismay was the same as my
own...... I honestly could not believe that an officer of such standing and
experience had done what I had been told had taken place."
Later
he said:
"The
stupidity initially lay in the fact that he picked them up and started touching
them and using the weapons when he [was unauthorised to do so]. It was
compounded by the fact that he went ahead and then fired the gun in the house.
Q:
What was the danger of that, in your opinion?
A:
Well, there are any number of possibilities that may have taken place by
firing a gun in a house.... you have got to consider range, ricochet,
penetration and a number of other options which may have occurred.... It had
posed a danger to anybody who was in the room."
In
my
view Sergeant Robinson was not talking about what only an expert would have
foreseen and realised, but about what someone in the position of Sergeant
Dodding would have foreseen and recognised. As the judge, having referred to
Sergeant Robinson’s and Mr. Spencer’s evidence, observed (13F):
"There
is really only evidence one way in this case, namely that there was a
likelihood of injury being caused if a gun was fired in a confined space. That
can be tested by ordinary common sense. If a gun is fired down through a bed,
on to a hard floor, there must be a risk, as Mr. Spencer indicated to me, of
the bullet hitting either a floorboard or a metal projection from the bed and
flying off in any direction, so that as to the foreseeability of risk I am
persuaded that the evidence shows that that is established by the plaintiff."
Mr.
Brown’s central submission, and the one on which I consider that his
entire case on this appeal depends, is that the judge was in error in making
the finding that Mrs. Schofield was a participant: the only proper finding
would have been that she was no more than a mere spectator or bystander as, he
submits, were Mrs. Hodgson and Mrs. King. The reason the submission is crucial
is that, if the judge was entitled to characterise Mrs. Schofield as a primary
victim, his findings (i) that physical injury to her was reasonably
foreseeable and (ii) that Sergeant Dodding’s negligent
act in fact
caused her psychiatric injury, were sufficient to entitle her to succeed in her
claim for damages, whether or not her psychiatric injury was a reasonably
foreseeable consequence of that
act; and irrespective of the fact that Mrs.
Schofield in fact suffered no purely physical injury.
It
is important to have clearly in mind what was the subject matter of each of
those cases and what it is that, factually, distinguishes one from the other.
Alcock’s
case was the first of those arising out of the Hillsborough disaster. The
plaintiffs were all relatives or friends of spectators involved in the
disaster. None of the plaintiffs had himself been within the area of physical
danger, and none asserted that he had , though not in fact within that area,
reasonably believed that he was. The case therefore involved two main
questions - (1) the width of the category of persons who, on
policy grounds,
should be recognised as entitled to recover damages for psychiatric injury
sustained as a result of shock occasioned by injury to others and (2) the
circumstances in which persons within that category were entitled to recover
for such psychiatric injury. The trial, which had been on the issue of
liability, originally resulted in ten of the sixteen plaintiffs succeeding.
The defendant appealed in nine of those ten cases and the six unsuccessful
plaintiffs appealed. All the plaintiffs failed in the Court of Appeal, as did
the ten who appealed to the House of Lords. The two questions mentioned above
were answered as follows. (1) The class of persons who might maintain such a
claim was not limited by particular relationships such as husband and wife or
parent and child but was based as ties of love and affection and (2) a
plaintiff who fell within that class (a question of fact in each case) had
additionally to establish a sufficient proximity in time and space to the event
giving rise to the psychiatric injury or its immediate aftermath. Insofar as
the case of
Alcock
is material to the present case it is the answer to the second question which
is important. It is to the speech of Lord Oliver of Aylmerton that reference
is most frequently made, and it is there that the concept of a primary and
secondary
victim has its origin. I cite the well-known passage to be found at
page 406H:
"There
is, to begin with, nothing unusual or peculiar in the recognition by the law
that compensatable injury may be caused just as much by a direct assault upon
the mind or the nervous system as by direct physical contact with the body.
This is no more than the natural and inevitable result of the growing
appreciation by modern medical science of recognisable causal connections
between shock to the nervous system and physical or psychiatric illness. Cases
in which damages are claimed for directly inflicted injuries of this nature may
present difficulties of proof but they are not, in their essential elements,
any different from cases where the damages claimed arise from direct physical
injury and they present no
very difficult problems of analysis where the
plaintiff has himself been directly involved in the
accident from which the
injury is said to arise. In such a case he can be properly said to be the
primary
victim of the defendant’s negligence and the fact that the injury
which he sustains is inflicted through the medium of an assault on the nerves
or senses does not serve to differentiate the case, except possibly in the
degree of evidentiary difficulty, from a case of direct physical injury.
It
is customary to classify cases in which damages are claimed for injury
occasioned in this way under a single generic label as cases of
“liability for nervous shock”. This may be convenient but in fact
the label is misleading if and to the extent that it is assumed to lead to a
conclusion that they have more in common than the factual similarity of the
medium through which the injury is sustained - that of an assault upon the
nervous system of the plaintiff through witnessing or taking part in an event -
and that they will on
account of this factor, provide a single common test for
the circumstances which give rise to a duty of care. Broadly they divide into
two categories, that is to say, those cases in which the injured plaintiff was
involved, either mediately or immediately, as a participant, and those in which
the plaintiff was no more than the passive and unwilling witness of injury
caused to others. In the context of the instant appeals the cases of the
former type are not particularly helpful, except to the extent that they yield
a number of illuminating dicta, for they illustrate only a directness of
relationship ( and thus a duty) which is almost self-evident from a mere
recital of the facts."
The
present case, on the judge’s finding was within Lord Oliver’s first
category, whereas all the plaintiffs in
Alcock
fell within the second category, as his concluding words show. The class with
which
Alcock
was concerned was, however, one where (if only by reason of the definition of
the category of persons capable of falling within it) there would seldom if
ever be difficulties in relation to foreseeability of psychiatric injury,
assumed in that case to be a necessary prerequisite to establishing liability
in all cases of psychiatric injury which was not consequent upon physical
injury. That assumption was shown to be incorrect by the later decision in
Page
v Smith
.
Lord
Lloyd pointed out (184B) that, unlike the claimants in
Alcock’s
case, the plaintiff was a participant, “directly involved in the
accident
and well within the range of foreseeable physical injury”. He referred
to Lord Oliver’s distinction between primary and secondary
victims and,
approving what he characterised as “the simplicity of the judge’s
approach”, went on to state the relevant principles as follows (187E):
Then,
after a number of paragraphs in which he commended his
view as having the
additional attraction of ensuring that the law did not limp too far behind
medical science (where the “distinction between physical and psychiatric
injury, which may already seem somewhat artificial.... may soon be altogether
outmoded”) Lord Lloyd said:
"Liability
for physical injury depends on what was reasonably foreseeable by the defendant
before the event. It could not be right that a negligent defendant should
escape liability for psychiatric injury just because, though serious physical
injury was foreseeable, it did not in fact transpire. Such a result in the
case of a primary
victim is neither necessary, logical nor just. To introduce
hindsight into the trial of an ordinary running-down
action would do the law no
service."
"None
of these mechanisms are required in the case of a primary
victim. Since
liability depends on foreseeability of physical injury, there could be no
question of the defendant finding himself liable to all the world. Proximity
of relationship cannot arise, and proximity in time and space goes without
saying.
Nor
in the case of a primary
victim is it appropriate to ask whether he is a person
of “ordinary phlegm”. In the case of physical injury there is no
such requirement. The negligent defendant, or more usually his insurer, takes
him
victim as he finds him. The same should apply in the case of psychiatric
injury. There is no difference in principle, as Geoffrey Lane J. pointed out in
Malcolm
v Broadhurst
[1970] 3 All ER 508, between an eggshell skull and an eggshell personality.
Since the number of potential claimants is limited by the nature of the case,
there is no need to impose any further limit by reference to a person of
ordinary phlegm. Nor can I see any justification for doing so."
There
follows in Lord Lloyd’s speech a review of authority, which satisfied him
that the contrary
view of the Court of Appeal was wrong. He also said
(a
conclusion articulated still more positively by Lord
Ackner) that the Court of
Appeal, in Page, had been “wrong to find that psychiatric illness is
some form was not a foreseeable consequence of the
accident in a person of
normal fortitude”. But, he said, “I do not regard that as the
relevant test” He then summarised his
views in the form of five
propositions:
"In
conclusion, the following propositions can be supported.
4.
Subject to the above qualifications, the approach in all cases should be the
same, namely, whether the defendant can reasonably foresee that his conduct
will expose the plaintiff to the risk of personal injury, whether physical or
psychiatric. If the answer is yes, then the duty of care is established, even
though physical injury does not, in fact, occur. There is no justification for
regarding physically and psychiatric injury as different “kinds of
damage”.
5.
A defendant who is under a duty of care to the plaintiff, whether as primary
or secondary
victim, is not liable for damages for nervous shock unless the
shock results in some recognised psychiatric illness. It is no answer that the
plaintiff was predisposed to psychiatric illness. Nor is it relevant that the
illness takes a rare form or is of unusual severity. The defendant must take
his
victim as he finds him"
Mr.
Brown, relying on
McFarlane v EE Caledonian Ltd.
,
argued that to qualify as a primary
victim the plaintiff had to show that she
had been in fear of physical injury to herself. He relied on a passage in the
judgment of Stuart-Smith L.J. at page 101 where the learned Lord Justice
formulated what he considered were the “three situations in which a
plaintiff may be a participant when he sustains psychiatric injury through fear
of physical injury to himself”. I need not cite them - they are, in
summary, a person in the
actual area of danger who escapes physical injury by
good fortune; a person not in that area but who reasonably believes that he is;
and a rescuer. Mr. Brown
accepted, however, that this formulation was not
exhaustive, and I would reject Mr. Brown’s argument which seems to me to
be founded on a misapprehension of what Stuart-Smith L.J. said. As his
introductory words show, he was seeking to identify the situations in which a
plaintiff may be a participant when he sustains psychiatric injury
through
fear of physical injury to himself
.
He was not saying that fear of physical injury to himself was in every case a
necessary prerequisite to being regarded as a participant in the event which is
said to have caused psychiatric but not direct physical injury. Not only is
Page
authority against Mr. Brown’s submission, but so also is the decision of
this court in
McFarlane
v Wilkinson & another and Hegarty v E.E. Caledonia Ltd.
[1997] 2 Lloyds R 259 where, at 266, Brooke L.J. said:
"The
other way in which a plaintiff as a primary
victim can now recover damage for
psychiatric injury not associated with physical injury will arise if he or he
can bring the case within the parameters identified by the House of Lords in
Page
v Smith
[1996] 1 AC 155. To succeed on this test a plaintiff must in fact be
directly involved in the “
accident” in question and well within the
range of foreseeable physical injury (per Lord Lloyd of Berwick at page 184
B)”."
"In
all these cases the plaintiff was the secondary
victim of the defendant’s
negligence. He or she was in the position of a spectator or bystander. In the
present case, by contrast, the plaintiff was a participant. He was himself
directly involved in the
accident, and well within the range of foreseeable
physical injury. He was the primary
victim. This is thus the first occasion
on which your Lordships have had to decide whether in such a case, the
foreseeability of physical injury is enough to enable the plaintiff to recover
damages for nervous shock."
However,
assuming that, in cases where fear for his own safety is not advanced as the
cause of psychiatric damage unaccompanied by physical damage, it is necessary
for the plaintiff to establish that he was himself directly involved in the
“
accident”
and
that he was at risk of physical injury, I consider that on the judge’s
findings Mrs. Schofield had established both of those requirements. Involved
in the “
accident” cannot mean “involved in the
act of
negligence which caused the damage”. It must surely be understood to be
a reference to being involved in the
very event in the course of which the
negligent
act relied on occurs: that is what is to be contrasted with being a
bystander. In
Young’s
case the plaintiff who had just turned away to go and fetch another pole after
handing one scaffold pole to his fellow employee, who received an electric
shock when he raised it to the
vertical was held (by a majority) to be a
participant: and I would similarly hold that Mrs. Schofield, taking part as she
was with her colleague in collecting the guns, was a participant. I observe
that in argument Mr. Brown
accepted that the decision in
Young’s
case was correct on the facts, because “the plaintiff was plainly a
participant”.
LORD
JUSTICE THORPE
I
agree.
LORD
JUSTICE HIRST
I
also agree.
Order:
Appeal dismissed; orders as per agreed minute of order
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1998/838.html