lawindexpro - Case Law

Alcock and Others -v- Chief Constable of South Yorkshire Police

Court: Court of Appeal

Coram: Lords Justices Parker, Stocker and Nolan

References: [1991] 3 WLR 1057

Curia adv vult.

PARKER L.J.

We have before us for determination appeals in 15 cases in which the plaintiffs claim to be entitled to damages for "nervous shock" alleged to have been sustained as a result of negligence on the part of the police leading to the disaster at the Hillsborough Football Stadium which occurred on the occasion of the F.A. Cup semi-final between Liverpool and Nottingham Forest on 15 April 1989. The defendant in each case is the Chief Constable of South Yorkshire Police. I have used the expression "nervous shock" at the outset because it has been used in many earlier cases. It is, however, necessary at once to point out that that which attracts damages is not the shock itself but any recognisable psychiatric illness or disorder resulting from the shock which, in appropriate cases, has that effect. It is nevertheless convenient to use the term "nervous shock" as a term embracing both elements which have, amongst others, to be established in order successfully to ground a claim of this type.

At the trial before Hidden J. in July 1990 [1991] 2 W.L.R. 814, 16 cases were considered. Ten of the plaintiffs succeeded and six failed. The six who failed appeal. The defendant appeals in the cases of nine of the ten who succeeded. Their success is however limited. This is because the issue before the judge was, and before us is, a narrow one. It was and is admitted by the defendant that the deaths and injuries suffered by those in pens 3 and 4 at the West End of the ground occurred as a result of the negligence of the police culminating in the opening of a gate known as gate C at the south west corner of the ground when pens 3 and 4 were already full. This action permitted the masses then outside the ground to gain access to those pens through a tunnel under the West Stand and create thereby a developing crush situation which led to the tragic result of some 95 people being killed and more than 400 being injured, some very seriously. It was, further, assumed by the judge, for reasons which he identified and which and not challenged, and is assumed before us that each of the plaintiffs did suffer nervous shock leading to psychiatric illness as a result of the fact upon which they based their claims. The issue decided by the judge and to be determined by us is therefore whether on the basis of such admission and assumption any and which of the 15 plaintiffs who are parties to the appeals are entitled in law to recover damages should they hereafter prove that they suffered psychiatric illness from the facts set up. Any plaintiff who succeeds in his or her appeal or successfully repels the defendant's appeal may therefore yet fail. All questions of causation will remain open.

The 15 cases with which we are concerned have been described as being test cases, but it is common ground that this is not strictly accurate. They are better described as cases, the resolution of which will probably enable most if not all of very many other claims for psychiatric illness to be settled by agreement.

The basic background facts

Pens 3 and 4 at the west or Leppings Lane end of the stadium are immediately behind the goal at that end of the ground. They, their adjacent pens and the West Stand immediately behind them together with the North Stand were reserved for Liverpool supporters. The lower seats of the West Stand are separated from the pens in front of them by a wall several feet high.

The match was an all ticket match and was a sell out. It was intended that a B.B.C. television recording of the match should be broadcast in the evening, but the system was that events at any ground where there was some significant event would be shown live on the B.B.C. afternoon programme "Grandstand."

In the event live broadcasts of the scene in pens 3 and 4 were shown on television as the crush developed to its disastrous and horrifying conclusion and, as I understand it, the scenes or some of them were repeated as recorded news items from time to time thereafter.

In addition to those suffering death and injuries in pens 3 and 4 there were of course thousands in such pens involved in the crush and its horror but who, happily, escaped injury, either physical or psychiatric. Many thousands more who attended the match witnessed what was going on with varying degrees of comprehension according to their position in the ground, those in the West Stand, particularly in the front rows, having the greatest appreciation of the scale of what was happening. Many millions more saw what was happening on live television or thereafter saw what had happened by viewing later recorded broadcasts. Amongst those who were at the ground, but not in pens 3 and 4 or who watched television, there were of course many who knew or believed that relations or others dear to them were or might be in those pens and might be amongst those dead or injured.

The basic facts of the individual cases

A. The nine successful plaintiffs

Only one, Brian Harrison, was at the ground. He was in the West Stand. He knew both of his brothers would be in the pens behind the goal. He saw the horrifying scene as it developed and realised that people in the two pens had been either killed or injured. When, six minutes after the start, the match was abandoned he tried to find his brothers. He failed to do so. He stopped up all night waiting for news. At 6 a.m. he learnt that his family were setting off for Sheffield. At 11 a.m. he was informed by telephone that both his brothers were dead. The remaining eight saw the scenes on live television and heard the commentary. All were related to persons whom they knew to be or believed to be in the pens behind the goal. All knew that there had been deaths or injuries suffered by many in those pens. The relationships and fate of the relatives were as follows. Mr. and Mrs. Copoc lost their son. They saw the scenes on live television. Mrs. Copoc was up all night. She was informed by police officers at 6 a.m. that her son was dead. Mr. Copoc went to Sheffield at 4 a.m. with his nephew. He was informed at 6.10 a.m. of his son's death and later identified the body.

Mrs. Mullaney's two sons were both injured. She knew they were at the match. When watching television she identified both in the part of the crowd where there were casualties. At 7 p.m. one of her sons telephoned to say he was in hospital. She did not hear until 10 p.m. that her other son was safe, albeit slightly injured.

Mrs. Hankin lost her husband. She knew he was at the match and would be at the Leppings Lane end. She expected he would be behind the goal. She watched television at about 3 p.m. She was not then worried because she thought there was just crowd trouble in which her husband would not be involved. Some 15 minutes later she again watched and learned that there had been deaths and injuries and that there was an emergency number. She was informed that her husband was dead at 2 a.m. Brenda Hennessy lost her brother. She watched television from about 3.30 p.m. and, although she then realised there had been deaths and injuries in the pens, she was not worried because she believed her brother to be in a stand seat. However, at about 5 p.m. she learnt from her brother's wife that he had a ticket in the Leppings Lane terrace. At 6 p.m. she learnt from members of the family who had gone to Sheffield that her brother was dead.

Denise Hough lost her brother. She was 11 years older than her brother and had fostered him for several years although he no longer lived with her. She knew he had a ticket at the Leppings Lane end and would be behind the goal. She was told by a friend that there was trouble at the game. She watched television. At 4.40 a.m. she was informed by her mother that her brother was dead. Two days later on 17 April, she went with her mother to Sheffield and confirmed an earlier identification of the body. His face was bruised and swollen.

Stephen Jones lost his brother. He knew that his brother was at the match. He watched television and saw bodies and believed them to be dead. He did not know his brother was dead until 2.45 a.m. when, having gone to the temporary mortuary at Hillsborough he found his parents there in tears.

Robert Spearitt lost a nephew aged 14 and his brother suffered severe crushing injuries. He knew both would be at the match behind the goal at the Leppings Lane end. He watched television from about 3 p.m. He knew as a result that there were many dead and injured. In the late evening he went to Sheffield. He found his brother in the intensive care unit in hospital. He finally found his nephew in the temporary mortuary at Hillsborough.

B. The unsuccessful plaintiffs

Robert Alcock lost his brother-in-law. He was in the West Stand, with his nephew, the brother-in-law's son. He witnessed the scenes from the West Stand and was sickened by what he saw but was not then concerned for his brother-in-law whom he believed to be in the stand because, on the way to the match, he had swapped a terrace ticket which he held for a stand ticket. Tragically, however, the brother-in-law had, unknown to the plaintiff, returned to the terrace. After the match the plaintiff left the ground for a rendezvous with the brother-in-law who did not arrive. He and his nephew became worried and searched without success. At about midnight they went to the mortuary where the plaintiff identified the body which was blue with bruising and the chest of which was red. The sight appalled him.

Peter Coldicutt's particular friend, a Mr. Carny, suffered minor crushing injuries. Mr. Coldicutt was in the West Stand and knew Mr. Carny would be in the Leppings Lane terraces. From the West Stand he could see that there were bodies. He heard a rumour that Mr. Carny had been crushed to death. As a result he did not sleep all night. He later discovered this was not so.

Catherine Jones lost a brother. She knew he was at the match and would normally be behind the goal. At 3.30 p.m. whilst shopping she heard that there was trouble at the match and at 4.30 p.m. that there were deaths. At 5.15 p.m. she went home and heard on the radio that the death toll was mounting. At 7 p.m. a friend telephoned from Sheffield to say that people at the hospital were describing someone who might be her brother. At 9 p.m. her parents set off for Sheffield. At 10 p.m. she watched recorded television in the hope of seeing her brother alive. She thought, mistakenly, she saw him collapsed on the pitch. At 5 p.m. her father returned from Sheffield and told her that her brother was dead.

Joseph Kehoe lost a 14 year old grandson, the son of his daughter and her divorced husband. Unknown to the grandfather the boy had gone to the match with his father. In the afternoon the plaintiff heard on the radio that there had been deaths at Hillsborough. He later saw scenes of the disaster on recorded television. He later still learned that this grandson was at the match. He become worried. At 3 a.m. he was telephoned by another daughter to say that both the boy and his father were dead.

John O'Dell was in the West Stand. He knew his nephew Roy Creighton was on the Leppings Lane terraces. He saw what was happening. He went to the rear of the West Stand to search for his nephew. He searched amongst the bodies there and assisted those who staggered out from the terraces. He continued his search. He later found his nephew uninjured.

Alexandra Penk lost her fiance, Carl Rimmer. They had known each other for four years and recently became engaged. They planned to marry in late 1989 or at the latest early in 1990. She knew he was at the match and would be on the Leppings Lane terraces. She saw television in her sister's house and knew instinctively that her fiance was in trouble. She continued to watch in the hope of seeing him but did not do so. She was told at about 11 p.m. that he was dead.

The above brief facts are taken from an agreed statement provided for us. There can be no doubt whatever that all the plaintiffs suffered a period of acute anxiety or fear for the safety of someone dear to them until that person was found safe or known to be dead, nor can there be any doubt that, where knowledge of death came through identification of the body, there must have been added distress, particularly in cases where the condition of the body was itself distressing. Further there can be no doubt that each one of those who lost the person held dear suffered great grief and, if it is different, a sense of loss. I have deliberately excluded the details which establish this, because it is not necessary to do so for the purpose of these appeals and because to do so could only cause further distress to the plaintiffs. I turn now to the law.

The law

The law as to the liability for damages for nervous shock had developed over about a century from a rejection of any such claim through a serious of stages until it came to be considered by the House of Lords in McLoughlin v. O'Brian [1983] 1 A.C. 410. In that case the plaintiff was at home some two miles from a road accident in which, owing to the negligence of a lorry driver, his lorry collided with a car driven by her husband in which three of her children, George, aged 17, Kathleen, aged 7, and Gillian, aged nearly 3, were passengers. Another child, Michael, aged 11, was in a following car which was not involved in the collision.

Lord Wilberforce said, at pp. 416-417:

"It is necessary to state what followed in full detail. As a result of the accident, the appellant's husband suffered bruising and shock; George suffered injuries to his head and face, cerebral concussion, fractures of the both scapulae and bruising and abrasions; Kathleen suffered concussion, fracture of the right clavicle, bruising, abrasions and shock; Gillian was so seriously injured that she died almost immediately. At the time, the appellant was at her home about two miles away; an hour or so afterwards the accident was reported to her by Mr. Pilgrim, who told her that he thought George was dying, and that he did not know the whereabouts of her husband or the condition of her daughter. He then drove her to Addenbrooke's Hospital, Cambridge. There she saw Michael, who told her that Gillian was dead. She was taken down a corridor and through a window she saw Kathleen, crying, with her face cut and begrimed with dirt and oil. She could hear George shouting and screaming. She was taken to her husband who was sitting with his head in his hands. His shirt was hanging off him and he was covered in mud and oil. He saw the appellant and started sobbing. The appellant was then taken to see George. The whole of his left face and left side was covered. He appeared to recognise the appellant and then lapsed into unconsciousness. Finally, the appellant was taken to Kathleen who by now had been cleaned up. The child was too upset to speak and simply clung to her mother. There can be no doubt that these circumstances, witnessed by the appellant, were distressing in the extreme and were capable of producing an effect going well beyond that of grief and sorrow."

I have set out the above passage because the detailed facts are of importance not only for the purpose of determining what is the true ambit of the decision in the case but because they can, and in my view must, be borne in mind in determining the impact of that case upon the appeals now before this court.

Lord Wilberforce summarised the position in law as it then stood, saying, at pp. 418-419:

"Although in the only case which has reached this House (Bourhill v. Young [1943] A.C. 92) a claim for damages in respect of 'nervous shock' was rejected on its facts, the House gave clear recognition to the legitimacy, in principle, of claims of that character. As the result of that and other cases, assuming that they are accepted as correct, the following position has been reached: 1. While damages cannot, at common law, be awarded for grief and sorrow, a claim for damages for 'nervous shock' caused by negligence can be made without the necessity of showing direct impact or fear of immediate personal injuries for oneself. The reservation made by Kennedy J. in Dulieu v. White & Sons [1901] 2 K.B. 669, though taken up by Sargant L.J. in Hambrook v. Stokes Brothers [1925] 1 K.B. 141, has not gained acceptance, and although the respondents, in the courts below, reserved their right to revive it, they did not do so in argument. I think that it is now too late to do so. The arguments on this issue were fully and admirably stated by the Supreme Court of California in Dillon v. Legg (1968) 29 A.L.R. 3d 1316. 2. A plaintiff may recover damages for 'nervous shock' brought on by injury caused not to him or herself but to a near relative, or by the fear of such injury. So far (subject to 5 below), the cases do not extend beyond the spouse or children of the plaintiff (Hambrook v. Stokes Brothers [1925] 1 K.B. 141, Boardman v. Sanderson [1964] 1 W.L.R. 1317, Hinz v. Berry [1970] 2 Q.B. 40 - including foster children - (where liability was assumed) and see King v. Phillips [1953] 1 Q.B. 429). 3. Subject to the next paragraph, there is no English case in which a plaintiff has been able to recover nervous shock damages where the injury to the near relative occurred out of sight and earshot of the plaintiff. In Hambrook v. Stokes Brothers an express distinction was made between shock caused by what the mother saw with her own eyes and what she might have been told by bystanders, liability being excluded in the latter case. 4. An exception from, or I would prefer to call it an extension of, the latter case, has been made where the plaintiff does not see or hear the incident but comes upon its immediate aftermath. In Boardman v. Sanderson the father was within earshot of the accident to his child and likely to come upon the scene: he did so and suffered damage from what he then saw. In Marshall v. Lionel Enterprises Inc. [1972] 2 O.R. 177, the wife came immediately upon the badly injured body of her husband. And in Benson v. Lee [1972] V.R. 879, a situation existed with some similarity to the present case. The mother was in her home 100 yards away, and, on communication by a third party, ran out to the scene of the accident and there suffered shock. Your Lordships have to decide whether or not to validate these extensions. 5. A remedy on account of nervous shock has been given to a man who came upon a serious accident involving numerous people immediately thereafter and acted as a rescuer of those involved (Chadwick v. British Railways Board [1967] 1 W.L.R. 912). 'Shock' was caused neither by fear for himself nor by fear or horror on account of a near relative. The principle of 'rescuer' cases was not challenged by the respondents and ought, in my opinion, to be accepted. But we have to consider whether, and how far, it can be applied to such cases as the present."

With one qualification I respecfully accept and adopt that summary. The qualification which it is necessary to make is that Lord Wilberforce's numbered paragraph 2 overlooks the decision in Dooley v. Cammell Laird & Co. Ltd. [1951] 1 Lloyd's Rep. 271, a decision of Donovan J. at first instance. That case was cited in argument in McLoughlin's case [1983] 1 A.C. 410 but was not mentioned in any of the speeches of their Lordships. I assume therefore that all considered it was rightly decided. The plaintiff was a crane driver employed by the first defendants who had loaned the crane and driver to the second defendants for the purpose, inter alia, of hoisting certain materials weighing 32 cwt. from the quay and lowering them into No. 2 hold of the vessel "Ceramic" which was being fitted out at the first defendant's yard. For the purpose of the operation the materials were loaded into a canvas and manila sling which was attached to the crane by a rope known as a snotter. The materials having been loaded into the sling the plaintiff hoisted the load from the quay and swung it into position over No. 2 hold. He knew people were working there. He could not see into the hold, so, having positioned the load, he awaited instructions to lower. Whilst so waiting he saw that the snotter was about to break. He started to swing the load away from the hold and over the vessel's side but before he could do so the snotter snapped and the load fell into the hold. He stayed in the crane in case he might be required to hoist any injured men from the hold. No one was in fact injured. He suffered nervous shock. He claimed damages against the first defendants on the basis that the shock was caused by their breach of certain statutory regulations and against the second defendant on the ground that it was due to the breach of a duty of care owed to him. The plaintiff was held entitled to recover under both heads, although he was not within the categories set out in Lord Wilberforce's numbered paragraph 2.

It will be seen from my earlier recital of the facts that in each of the cases of both the successful and unsuccessful plaintiffs the claim went beyond the law as it stood in 1983. Of the nine successful plaintiffs one only was at the scene of the catastrophe but he was not within the category of those then recognised as being entitled to claim in respect of nervous shock brought about for fear or another, nor did he witness the death of his brothers or subsequently identify their bodies. Of the remainder of those successful none was at or near the scene of the catastrophe but they were put in fear by what they saw on television many miles from the scene. Only four were within the categories then recognised as being entitled to claim, and only two identified the bodies of the victims. One of those was within the recognised categories but had been told of death prior to identification, the other was not within such categories. Of the six unsuccessful plaintiffs, only two were at the scene, none was in the recognised categories, only one identified the victim's body. It is thus clear that for any of the plaintiffs to succeed involves an extension of the law as it stood in 1983.

I return to McLoughlin v. O'Brian [1983] 1 A.C. 410. That which had to be considered in that case was whether the plaintiff who was within the recognised categories was entitled to succeed although she was not at or near the scene of the accident when it happened. She had been told of it about one hour later. She had not then gone to the scene of the accident but to the hospital where she had seen her family in the appalling condition described by Lord Wilberforce.

Their Lordships, reversing the decision of the trial judge and the unanimous decision of this court all held that she was so entitled. This decision clearly established that neither presence at or near the catastrophe, nor immediate resort to the scene on being told, whether as a rescuer or not, are essential elements of a successful claim but that resort to a hospital to find what can, as I think, only be described as the immediate aftermath by a person in a recognised category is sufficient. I regard the scene at the hospital in that case as part of the catastrophe itself for none of the victims had been cleaned up or attended to.

Although their Lordships' decision was unanimous there were considerable differences in approach and substance between them. Not only have these differences not been resolved by later decisions of this court and courts of first instance but to some extent they have, as it seems to me, led to a situation when it is of vital importance that the law on the subject should again be reviewed by their Lordships in the light of the facts in the cases before us. In Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605 for example, a case involving financial damages, their Lordships, and in particular perhaps Lord Bridge of Harwich, have somewhat changed direction in their approach to problems of the ascertainment of a duty of care from that taken by the majority in McLoughlin's case [1983] 1 A.C. 410. Furthermore the decisions of Mantell J. in Hevican v. Ruane [1991] 3 All E.R. 65 and Ward J. in Ravenscroft v. Rederiaktiebolaget Transatlantic [1991] 3 All E.R. 73 have gone further in extending the permissible ambit of a claim for nervous shock than has any previous case either in this court or in their Lordships' House.

The authorities have been extensively reviewed and analysed by their Lordships in McLoughlin v. O'Brian [1983] 1 A.C. 410, in Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605 and in the only previous case on nervous shock which reached them, namely Bourhill v. Young [1943] A.C. 92. They have also been considered in this court in Attia v. British Gas Plc. [1988] Q.B. 304 and in the judgments of Hidden J. in the present case [1991] 2 W.L.R. 814, of Mantel J. in Hevican v. Ruane [1991] 3 All E.R. 65 and Ward J. in Ravenscroft's case [1991] 3 All E.R. 73. It would in my view serve no useful purpose were I to repeat the process in this judgment. I shall instead go directly to consider each of the issues which fall for determination in these appeals and express my conclusions upon them together with brief mention of the basis upon which I have reached such conclusions.

Issue 1

Can anyone who is not either within the already recognised categories of parent or spouse of a victim or potential victim or a rescuer bring a claim?

Mr. Hytner submits that anyone at all can claim, even a bystander if the scene is sufficiently horrific. Support for this view can be found in particular in the speech of Lord Bridge of Harwich in McLoughlin's case [1983] 1 A.C. 410. It is also supported, he submits, by the decision in Dooley v. Cammell Laird & Co. Ltd. [1951] 1 Lloyd's Rep. 271. I do not accept this. Dooley was the employee of the defendant. It was therefore plain that a duty of care was owed towards him. Furthermore he was directly involved in the accident there in question. For the defendant it is submitted that no extension at all should be made.

It is, I think, necessary first to consider the basis upon which parents and spouses are permitted to claim. It can in my view only be on the basis that, normally, the parent-child and the husband-wife relationship can be presumed to be so close that fear for the child or spouse can be reasonably foreseen by the wrongdoer as likely to result in nervous shock to a parent or spouse of ordinary phelgm who witnesses or comes upon the immediate aftermath of catastrophe involving, or which appears likely to involve, the child or other spouse. This however is a presumption and is not based on expert evidence as to the susceptibility of parents or spouses of ordinary phlegm to suffer shock followed by psychiatric illness from such situations.

In McLoughlin's case [1983] 1 A.C. 410, 422 Lord Wilberforce said:

"As regards the class of persons, the possible range is between the closest of family ties - of parent and child, or husband and wife -and the ordinary bystander. Existing law recognises the claims of the first: it denies that of the second, either on the basis that such persons must be assumed to be possessed of fortitude sufficient to enable them to endure the calamities of modern life, or that defendants cannot be expected to compensate the world at large. In my opinion, these positions are justifiable, and since the present case falls within the first class, it is strictly unnecessary to say more. I think, however, that it should follow that other cases involving less close relationships must be very carefully scrutinised. I cannot say that they should never be admitted. The closer the tie (not merely in relationship, but in care) the greater the claim for consideration. The claim, in any case, has to be judged in the light of the other factors, such as proximity to the scene in time and place, and the nature of the accident."

Logically and respectfully this must be right but if, as is inherent in Lord Wilberforce's observation, the basis of the current qualified categories is relationship and care, two things appear to me to follow. First, the presumption in favour of parents and spouses should be rebuttable. What, for example, of the mother who has handed over her 16-year-old child to foster parents shortly after its birth, has never seen it or communicated with it or inquired after it ever since? It is submitted that these matters need not and cannot be canvassed. If a mother in fact suffers nervous shock from witnessing the death of her child the very fact, it is said, establishes the correctness of the presumption. I do not accept this. The mother may witness the death of a child without even knowing it is hers and may suffer nervous shock, not because it was her child but because she was not possessed of ordinary phlegm. What also of the husband and wife who are still legally married but have been parted for years and are well known to hate each other?

Secondly, it would on the face of it appear to follow that remote blood relations or even persons with no blood tie at all should be let in if they can prove a sufficient degree of care. A godfather or friend who has taken on the care and custody of a small baby on the death of its parents and has brought it up as his own would appear to be every bit as deserving as the parent. So too one of two people who have lived together as man and wife for 30 years but have not married because of some legal or religious impediment or a rooted objection to marriage should logically be treated in the same way as husband and wife.

These problems have not hitherto been considered by any court. For my part I consider that the presumption should be rebuttable. Indeed in practice it must be. When causation is being considered it must I think be open to the defendant to show, by cross-examination or evidence, that the plaintiff mother had abandoned her child 15 years earlier and had not seen or communicated with it or inquired after it ever since. Moreover since the question to be determined is whether the defendant owed a duty of care to the actual plaintiff it must as it seems to me be relevant to consider any special facts relating to a plaintiff mother. It is one thing to say that what I may call the ordinary mother is owed a duty of care. It is quite another to say that a duty is owed to a mother in respect of whom the facts instanced above exist.

What then of extension of the categories. If the basis upon which parents and spouses are entitled to recover is as I believe it to be, it appears clearly logical at first sight to allow anyone, blood relation or otherwise, to claim if they can establish a factual close relationship similar to that of an ordinary parent-child or husband-wife relationship. The matter is however not as simple as this. The problem is not the mere equating of the position of the plaintiff in relation to the particular victim or potential victim. That is or may be of importance but the root question is whether a duty of care was owed by the defendant to the plaintiff. I go therefore to the classic passage in Lord Atkin's speech in Donoghue v. Stevenson [1932] A.C. 562, 580:

"The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." (Emphasis mine.)

The questions therefore are (a) could the defendant reasonably forsee that his acts or omissions would be likely to cause psychiatric illness to the plaintiff and (b) is the plaintiff someone so closely and directly affected by the act or omission complained of that the defendant ought reasonably to have had him in contemplation as being so affected. It seems to me to be acceptable to make a prima facie presumption in favour of a plaintiff parent or spouse in relation to both questions, indeed we are bound to do so, but is it acceptable to do so in respect of other plaintiffs? Ought a defendant reasonably to foresee that any other persons of ordinary phlegm (in addition to rescuers) would be likely to suffer psychiatric disorder from shock? How does the judge decide? In McLoughlin's case [1983] 1 A.C. 410, 432 this question was considered by Lord Bridge of Harwich. He observed that there were two possible approaches. Either the judge should decide the question on expert evidence or

"relying on his own opinion of the operation of cause and effect in psychiatric medicine, as fairly representative of that of the educated layman, should treat himself as the reasonable man and form his own view from the primary facts as to whether the proven chain of cause and effect was reasonably foreseeable."

He regarded the first approach as having much to commend it but considered it as too late to depart from the second and concluded that the best yardstick was the consensus of informed judicial opinion. There is, of course, no doubt that judges recognise that the shock suffered by the sight or horrific events may in some cases lead to psychiatric injury and the courts are presently to assume reasonable foreseeability in the case of the recognised categories, but I see no justification for going further and no consensus of informed judicial opinion which could justify so doing. No doubt some persons may suffer such injury but ought a wrongdoer reasonably to contemplate such persons as being likely to be amongst those affected by his act or omission? It is of course true that he must take the plaintiff as he finds him and that if the act or omission would be likely to cause some injury to an ordinary person he must take the consequences if the particular plaintiff suffers additional harm. Here however we are in my view considering a different situation. The vast majority of ordinary persons do not suffer psychiatric illness from this sort of shock. Ought then a defendant reasonably to contemplate that there will or may be amongst those so closely and directly affected by this act or omission some persons other than recognised categories or rescuers who are likely to suffer such injury? I do not think so. I would therefore reject the appeals of the unsuccessful plaintiffs and allow the appeals in the case of the successful plaintiffs who are not within the recognised categories.

Issue 2

The next major question is whether the effect of watching television miles away from the catastrophe can be regarded as satisfying the test of proximity. It was, I have no doubt, clearly foreseeable that the scenes at Hillsborough would be broadcast both live and as recorded news items later in the day, that millions would be watching and that amongst those watching there would be likely to be parents and spouses and other relatives and friends of those in the pens behind the goal at the Leppings Lane end. In McLoughlin's case [1983] 1 A.C. 410, 423 Lord Wilberforce envisaged the possibility that watching live or simulataneous television might satisfy the test of proximity.

I can see force in the plaintiffs' contention. On the face of it there may appear to be little difference between two mothers, one of whom is in the West Stand and the other of whom sees the scenes on television. There is however in my view a great difference. The mother in the West Stand sees only that which she can see through her own eyes from her position in that Stand. The watcher of television sees what the cameras and producer choose between them to broadcast. They may, and probably will, move from one part of the scene to another which seem best to convey the increasing horror of what was taking place. Zoom lenses will be used, not to record and sent out pictures of mangled corpses or dreadfully injured persons, but simply to demonstrate to the viewer more clearly what was happening than could be appreciated by an actual watcher. A watcher from the far end of the North Stand would, for example, see and appreciate far less of what was happening than a television viewer 60 miles away or perhaps even hundreds or thousands of miles away. Such a watcher might not appreciate that there was anything more than the crowd trouble which regrettably occurs all too often at football matches, whereas the television viewer would at an early stage realise the true position.

I have said that a viewer of television might well be thousands of miles away. This is by no means fanciful. If for example the final of the World Cup were played at Wembley between Korea and Argentina the live television broadcast would no doubt go by satellite to millions in those two countries and, indeed, in many other countries. In those countries those watching would probably include parents, spouses, other relatives and friends of the players and of fans known or believed to be watching the match.

For my part I am unable to consider the television viewer as so closely and directly connected with the police negligence in the present cases that the defendant ought to have had them in mind. Their connection was established by the intervention of a third party and was of course accompanied by a commentary the terms of which were devised by a third party.

Mr. Hytner submitted that the police could and should have insisted that there should be no television coverage except of the pitch itself as a term of undertaking crowd control and were therefore or could have been in effect in control of what was broadcast. He further submitted that it was in any event no answer to say that they had no control. The negligent garage mechanic, who, for example, defectively repairs the steering system of a motor car, has no control of what happens after the car leaves his garage. He does not, and cannot, control by whom or in what manner it is driven or what will be the circumstances if and when an accident results from his negligence. This is of course true, but the analogy is not in my view valid. The negligence in this sort of case closely and directly affects the original victims or potential victims together with those who themselves perceive the disaster or potential disaster. A perception through the broadcast of selective images accompanied by a commentary is not in my judgment such as to satisfy the proximity test.

A person who informs a parent of a victim of his death or multiple injuries cannot be held liable for obvious reasons and the wrongdoer cannot in my view be held liable for psychiatric illness resulting from what the parent is told. In so holding I respectively differ from the decision of Ward J. in Ravenscroft v. Rederiaktiebolaget Transatlantic [1991] 3 All E.R. 73. It is, moreover, to be noted that in McLoughlin v. O'Brian [1983] 1 A.C. 410 the House of Lords proceeded on the basis that liability resulted from what the plaintiff had seen on arrival in the hospital on being told of the accident, not on the information of the accident which had led to her presence there.

It appears to me that if it can be reasonably foreseen that psychiatric illness can result from the shock of being told what has happened but the defendant is not liable, so also the defendant is not liable if the injury results from information conveyed by means of television and its commentary. If this is not correct it would, as it seems to me, follow that anyone who reports, at any rate promptly, the fact of death or serious injury would be liable for psychiatric illness resulting, as would the television company.

What then of the cases where there was subsequently identification of the body or sight of the injured victim as in McLoughlin's case? It is clear from that case that there may be liability if the identification can be regarded as part of the immediate aftermath. The only one of the present cases which comes anywhere near an aftermath case is that of Mr. Alcock who identified his brother-in-law in a bad condition in the mortuary at about midnight on the same day. In my judgment that is not enough. I would regard it as unlikely and not reasonably foreseeable that a person of ordinary phlegm would suffer psychiatric injury from viewing the corpse of a brother-in-law even if badly damaged.

In the case of all plaintiffs it must be borne in mind that except in the identification cases the plaintiffs' cases were based solely on the fear, anxiety and worry, engendered by watching television and for the possible fate of someone held high in their affections together with receipt of information as to the fate of such person. Assuming, as I do for present purposes, that each of them did suffer psychiatric illness from what they saw or were told, or a combination of both, I do not consider that the defendant was in breach of any duty of care towards them for I do not consider such duty existed towards any of them. Issue 3: the place of policy in such cases

In McLoughlin v. O'Brian [1983] 1 A.C. 410, 420 Lord Wilberforce, in referring to the judgment of this court in that case, said:

"I am impressed by both of these arguments, which I have only briefly summarised. Though differing in expression, in the end, in my opinion, the two presentations rest upon a common principle, namely that, at the margin, the boundaries of a man's responsibility for acts of negligence have to be fixed as a matter of policy. Whatever is the correct jurisprudential analysis, it does not make any essential difference whether one says, with Stephenson L.J., that there is a duty but, as a matter of policy, the consequences of breach of it ought to be limited at a certain point, or whether, with Griffiths L.J., one says that the fact that consequences may be foreseeable does not automatically impose a duty of care, does not do so in fact where policy indicates the contrary."

In that case there was a difference of opinion between Lord Scarman, who regarded the question of policy as not justiciable, and, as I see it, all the other four of the judicial committee who with, as I think, different degrees of emphasis regarded it as justiciable albeit not such as to bar the remedy in that case. Policy came in, principally, on the "floodgates" argument which was considered in that case to be of no weight even if justiciable. (There were other differences which it is unnecessary for present purposes to mention.) As to policy, it is of assistance to refer to the speech of Lord Bridge of Harwich in Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605, 617-618:

"What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of `proximity' or `neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope. Whilst recognising, of course, the importance of the underlying general principles common to the whole field of negligence, I think the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes."

This is in my view a clear departure from McLoughlin v. O'Brian [1983] 1 A.C. 410 and, albeit in different words, appears to me to put judicial policy in the van of considerations. Although the case itself concerned a claim for financial loss resulting from a negligent mis-statement, Lord Bridge was at that stage dealing with the duty of care generally. Later, when dealing with the specific question before the House, he cited with approval [1990] 2 A.C. 605, 621 the words of Cardozo C.J. in Ultramares Corporation v. Touche (1931) 255 N.Y. 170, 179 that to hold that there was a duty of care such as there contended for would subject the defendant to "liability in an indeterminate amount for an indeterminate time to an indeterminate class." This appears to me to be no more and no less than the affirmation that it is proper for the courts to place limits upon a liability which might otherwise arise because it would not be fair and reasonable to put such a liability on the defendant. This appears to me the exercise of judicial pragmatism which is in my view the same as judicial policy.

In my judgment, to put upon the defendant liability not merely to parents and spouses but to an indeterminate class beyond them for an indeterminate amount would be unfair and it would be equally unfair to make the defendant liable even to parents and spouses who, far removed from the incident in question, happened to watch and hear either a contemporaneous broadcast of selective scenes or a later recorded news item.

I would, therefore, whilst having such sympathy for each of the plaintiffs as would lead me if possible to uphold the claim, allow all the defendant's appeals and dismiss all the appeals of the plaintiffs. I should perhaps add that, like Hidden J. in this case and Mantell J. in Hevican v. Ruane [1991] 3 All E.R. 65 and Ward J. in Ravenscroft's case [1991] 3 All E.R. 73, I have found this matter one of great difficulty. My concern has been not only to reach a conclusion which, right or wrong I hope to have been intelligible, but also to indicate some of the difficulties which have not yet been, but urgently need to be, considered and resolved by their Lordships.

Finally I should express my thanks to counsel for their valuable assistance.

STOCKER L.J.

This appeal is concerned with 15 out of 16 plaintiffs, whose claim for damages for personal injuries arose out of the events which took place on Saturday 15 April 1989 at Hillsborough Stadium on the occasion of the F.A. Cup semi-final between Liverpool and Nottingham Forest Football Clubs. Some 95 people were killed in pens at the Leppings Lane end of the ground and some 400 others needed hospital treatment as a consequence of crushing injuries due to overcrowding in those pens. None of the plaintiffs sustained physical injury in the sense of direct damage to their bodies, but claim damages for psychiatric illness resulting upon the shock to which they were subjected in various circumstances which differed in respect of individual plaintiffs. For the purposes of the trial and in this appeal it was assumed that in each case the shock inflicted upon each caused a recognised psychiatric illness in the form of post-traumatic stress disorder or pathological grief and that each suffered from the symptoms of those disorders. Thus no investigation was made at trial or before this court as to whether or not the individual plaintiffs had in fact suffered from psychiatric illness caused by shock, a matter which in some instances at least, may have to be decided. But the assumption in favour of each plaintiff has been made and the issue of liability determined upon the basis of an assumption that psychiatric illness through shock has been proved to have been suffered. The assumption was necessary since the cases before the court have been regarded, for some purposes at least, as test cases. The judge found that in the case of 10 plaintiffs liability had been proved, but in the case of six others their actions failed. The six plaintiffs who failed appeal against the finding against them, and in the case of nine of the ten who succeeded the defendant cross-appeals, contending that they too should have had judgment given against them.

The judge reviewed the relevant authorities in detail and with clarity and based his judgment upon a case in the House of Lords, McLoughlin v. O'Brian [1983] 1 A.C. 410, in which their Lordships also extensively reviewed the relevant authorities and the propositions derived from them. I have not found it an easy matter to decided whether or not the conclusions reached by their Lordships, which were unanimous as to the outcome of the case, differed in material respects with regard to the proper approach to be adopted in future cases in which psychiatric illness is suffered through fear or apprehension as to the survival or safety of persons other than themselves, or whether they agreed as to the principles to be applied, but stated those principles in widely differing terms. This distinction is important since upon it depends the question whether or not the proper approach to the resolution to each case as it arises should remain as it has been in this country in the past by reference to categories of relationship between the victim who has died or for whom apprehension as to his safety was felt and the plaintiff, subject to any limitation of proximity in time and space to the occurrence. All the cases hitherto decided in this country and in Scotland were reached by reference to this "categorisation" approach. This was clearly the approach of Lord Wilberforce and Lord Edmund-Davies. The alternative approach is that the degree of family relationship and the time and space factor are not the sole criteria by which the existence of the duty and the right to recover damages for psychiatric illness are to be judged, but are no more than two of the factors amongst many which determine whether or not the injuries were reasonably foreseeable as likely, having regard to the conjoint effect of all the relevant factors, the weight to be given to each being dependent upon the circumstances of the case under consideration.

I therefore turn to the McLoughlin decision. The questions raised by that decision seem to me to be (1) what was the issue that fell for decision by their Lordship's House; (2) what was the basis of that decision; and (3) how should the decision be applied in future cases?

In order to decide what the issue was which fell to be decided, it is necessary very shortly to state the facts of the McLoughlin case. At about 4 p.m. on 19 October 1973, the plaintiff's husband and her three children were in a motor car which was in collision with a motor lorry driven by one of the defendants. The plaintiff was at home some two miles from the scene and at about 6 p.m. she was told of the accident and was driven by her informant to the hospital to which the victims had been taken. She found that her youngest child had been killed and she saw her husband and the surviving children injured and in great pain and distress. It is unnecessary to describe precisely what she saw, but it was clearly a most harrowing and distressing sight. She suffered from psychiatric illness through the shock of this sight.

Since the plaintiff was the wife of one victim and the mother of the others, she clearly fell within the category of relationship in respect of which the law as it then stood permitted damages to be recovered if the limitation factors of time and space did not debar her. The trial judge found that no duty was owed by the tortfeasor to the plaintiff on the grounds that psychiatric illness was not a reasonably foreseeable consequence of the careless act of the tortfeasor. In the Court of Appeal [1981] Q.B. 599, Stephenson L.J. found that the possibility of the plaintiff suffering psychiatric illness was reasonably foreseeable and that a duty of care was owed, but that considerations of policy prevented the plaintiff from recovering damages. Griffiths L.J. also found that the injury was readily foreseeable, but that the tortfeasor owed no duty of care since that was limited to those on the roadside nearby and was a limitation imposed by consideration of policy. The issue before their Lordships was concerned solely with the question whether or not the "time and space" limitation operated to prevent the recovery of damages by the plaintiff, or whether it fell within the ambit of previous decisions in any event, or whether those decisions could properly be extended to include the plaintiff's visit to hospital as forming part of the immediate aftermath of the collision. The House was not concerned, at least directly, with any extension or modification to the category of relationship which as a mother and spouse would permit her to recover damages, subject to the limitation factors of time and space. Their Lordships were unanimous that the plaintiff should recover in such circumstances, though their reasons were expressed in different terms and may indicate a difference of view with regard to the proper approach to be adopted in future cases. The issue was therefore in a very narrow compass and concerned the limiting factor of time and space and the question whether or not that limiting factor was imposed by reason of public policy.

The second issue, as to what was the basis of the decision, requires some analysis of their Lordships speeches. Lord Wilberforce accepted as correct the categorisation approach, that is to say that in order to be entitled to claim damages a plaintiff had to show proximity in family relationship between himself and the victim, and proximity in time and space.

As to the former, Lord Wilberforce said [1983] 1 A.C. 410, 418:

"A plaintiff may recover damages for 'nervous shock' brought on by injury caused not to him or herself but to a near relative, or by the fear of such injury. So far (subject to 5 below), the cases do not extend beyond the spouse or children of the plaintiff."

As to the latter limitation, he said, at p. 418:

"Subject to the next paragraph, there is no English case in which a plaintiff has been able to recover nervous shock damages where the injury to the near relative occurred out of sight and earshot of the plaintiff. In Hambrook v. Stokes Brothers [1925] 1 K.B. 141 an express distinction was made between shock caused by what the mother saw with her own eyes and what she might have been told by bystanders, liability being excluded in the latter case."

He also observed, at pp. 418-419:

"4. An exception from, or I would prefer to call it an extension of, the latter case, has been made where the plaintiff does not see or hear the incident but comes upon its immediate aftermath. In Boardman v. Sanderson [1964] 1 W.L.R. 1317 the father was within earshot of the accident to his child and likely to come upon the scene: he did so and suffered damage from what he then saw. In Marshall v. Lionel Enterprises Inc. [1972] 2 O.R. 177, the wife came immediately upon the badly injured body of her husband. And in Benson v. Lee [1972] V.R. 879, a situation existed with some similarity to the present case. The mother was in her home 100 yards away, and, on communication by a third party, ran out to the scene of the accident and there suffered shock. Your Lordships have to decide whether or not to validate these extensions.

"5. A remedy on account of nervous shock has been given to a man who came upon a serious accident involving numerous people immediately thereafter and acted as a rescuer of those involved (Chadwick v. British Railways Board [1967] 1 W.L.R. 912). 'Shock' was caused neither by fear for himself nor by fear or horror on account of a near relative. The principle of 'rescuer' cases was not challenged by the respondents and ought, in my opinion, to be accepted. But we have to consider whether, and how far, it can be applied to such cases as the present.

"Throughout these developments, as can be seen, the courts have proceeded in the traditional manner of the common law from case to case, upon a basis of logical necessity. If a mother, with or without accompanying children, could recover on account of fear for herself, how can she be denied recovery on account of fear for her accompanying children? If a father could recover had he seen his child run over by a backing car, how can he be denied recovery if he is in the immediate vicinity and runs to the child's assistance? If a wife and mother could recover if she had witnessed a serious accident to her husband and children, does she fail because she was a short distance away and immediately rushes to the scene (cf. Benson v. Lee)? I think that unless the law is to draw an arbitrary line at the point of direct sight and sound, these arguments require acceptance of the extension mentioned above under 4 in the interests of justice."

And he observed in the context of the facts of the case then under consideration, at p. 419:

"I could agree that a line can be drawn above her case with less hardship than would have been apparent in Boardman v. Sanderson [1964] 1 W.L.R. 1317 and Hinz v. Berry [1970] 2 Q.B. 40, but so to draw it would not appeal to most people's sense of justice. To allow her claim may be, I think it is, upon the margin of what the process of logical progression would allow. But where the facts are strong and exceptional, and, as I think, fairly analogous, her case ought, prima facie, to be assimilated to those which have passed the test."

He then referred to the basis of the decision in the Court of Appeal upholding the trial judge and the reasoning of Stephenson and Griffiths L.JJ. and observed, at p. 420:

"I am impressed by both of these arguments, which I have only briefly summarised. Though differing in expression, in the end, in my opinion, the two presentations rest upon a common principle, namely that, at the margin, the boundaries of a man's responsibility for acts of negligence have to be fixed as a matter of policy."

He cited the classic speech of Lord Atkin in Donoghue v. Stevenson [1932] A.C. 462, 580 and he concluded [1983] 1 A.C. 410, 420:

"This is saying that foreseeability must be accompanied and limited by the law's judgment as to persons who ought, according to its standards of value or justice, to have been in contemplation. Foreseeability, which involves a hypothetical person, looking with hindsight at an event which has occurred, is a formula adopted by English law, not merely for defining, but also for limiting, the persons to whom duty may be owed, and the consequences for which an actor may be held responsible. It is not merely an issue of fact to be left to be found as such. When it is said to result in a duty of care being owed to a person or a class, the statement that there is a 'duty of care' denotes a conclusion into the forming of which considerations of policy have entered. That foreseeability does not of itself, and automatically, lead to a duty of care is, I think, clear."

With regard to the policy argument, he observed, at p. 421:

"We must then consider the policy arguments. In doing so we must bear in mind that cases of 'nervous shock,' and the possibility of claiming damages for it, are not necessarily confined to those arising out of accidents on public roads. To state, therefore, a rule that recoverable damages must be confined to persons on or near the highway is to state not a principle in itself, but only an example of a more general rule that recoverable damages must be confined to those within sight and sound of an event caused by negligence or, at least, to those in close, or very close, proximity to such a situation."

Having reviewed the policy arguments against further expansion and the reasons why such arguments should not prevail, he said, at pp. 421-422:

"But, these discounts accepted, there remains, in my opinion, just because 'shock' in its nature is capable of affecting so wide a range of people, a real need for the law to place some limitation upon the extent of admissible claims. It is necessary to consider three elements inherent in any claim: the class of persons whose claims should be recognised; the proximity of such persons to the accident; and the means by which the shock is caused. As regards the class of persons, the possible range is between the closest of family ties - of parent and child, or husband and wife - and the ordinary bystander. Existing law recognises the claims of the first: it denies that of the second, either on the basis that such persons must be assumed to be possessed of fortitude sufficient to enable them to endure the calamities of modern life, or that defendants cannot be expected to compensate the world at large. In my opinion, these positions are justifiable, and since the present case falls within the first class, it is strictly unnecessary to say more. I think, however, that it should follow that other cases involving less close relationships must be very carefully scrutinised. I cannot say that they should never be admitted. The closer the tie (not merely in relationship, but in care) the greater the claim for consideration. The claim, in any case, has to be judged in the light of the other factors, such as proximity to the scene in time and place, and the nature of the accident. As regards proximity to the accident, it is obvious that this must be close in both time and space. It is, after all, the fact and consequence of the defendant's negligence that must be proved to have caused the 'nervous shock.' Experience has shown that to insist on direct and immediate sight or hearing would be impractical and unjust and that under what may be called the 'aftermath' doctrine one who, from close proximity, comes very soon upon the scene should not be excluded. In my opinion, the result in Benson v. Lee [1972] V.R. 879 was correct and indeed inescapable. It was based, soundly, upon - 'direct perception of some of the events which go to make up the accident as an entire event, and this includes . . . the immediate aftermath . . .' (p. 880)."

And he gives as his opinion, at p. 422:

"Subject only to these qualifications, I think that a strict test of proximity by sight or hearing should be applied by the courts. . . . The shock must come through sight or hearing of the event or of its immediate aftermath. Whether some equivalent of sight or hearing, e.g. through simultaneous television, would suffice may have to be considered."

The instant appeals call for consideration of the effect of "simultaneous television," since many of the plaintiff suffered the relevant shock through this medium, and the judge's conclusion upon the effect of viewing the scenes shown on television were relevant to his conclusion.

I do not consider that it would assist this judgment to attempt to analyse in detail the speeches of Lord Edmund-Davies, who agreed that policy considerations formed the limiting factor to the general rule but that no relevant policy existed to prevent the plaintiff from recovering damages in the case they were then considering. In general he agreed with Lord Wilberforce. I do not read the speech of Lord Russell as disapproving the basis upon which Lord Wilberforce expressed his opinion, and Lord Scarman seems to have accepted, with Lord Bridge of Harwich, that the test of "reasonable foreseeability" should be untrammelled by spatial, physical or temporal limits. He had reservations as to the social consequences of these matters in a passage to which I will refer in another context.

It is the speech of Lord Bridge which seems to me to give rise to the main difficulty. Since the plaintiff founded much of the argument upon that speech, I must consider it in some detail. He observed, at p. 432:

"Clearly it is desirable in this, as in any other, field that the law should achieve such a measure of certainty as is consistent with the demands of justice."

He poses the question, at pp. 433-434:

"The question, then, for your Lordships' decision is whether the law, as a matter of policy, draws a line which exempts from liability a defendant whose negligent act or omission was actually and foreseeably the cause of the plaintiff's psychiatric illness and, if so, where that line is to be drawn. In thus formulating the question, I do not, of course, use the word 'negligent' as prejudging the question whether the defendant owes the plaintiff a duty, but I do use the word 'foreseeably' as connoting the normally accepted criterion of such a duty. Before attempting to answer the question, it is instructive to consider the historical development of the subject as illustrated by the authorities, and to note, in particular, three features of that development. First, it will be seen that successive attempts have been made to draw a line beyond which liability should not extend, each of which has in due course had to be abandoned. Secondly, the ostensible justification for drawing the line has been related to the current criterion of a defendant's duty of care, which, however expressed in earlier judgments, we should now describe as that of reasonable foreseeability. But, thirdly, in so far as policy considerations can be seen to have influenced any of the decisions, they appear to have sprung from the fear that to cross the chosen line would be to open the floodgates to claims without limit and largely without merit."

He cites with approval, at p. 436, a passage from the speech of Lord Porter in Bourhill v. Young [1943] A.C. 92, 117:

"The question whether emotional disturbance or shock, which a defender ought reasonably to have anticipated as likely to follow from his reckless driving, can ever form the basis of a claim is not in issue. It is not every emotional disturbance or every shock which should have been foreseen. The driver of a car or vehicle, even though careless, is entitled to assume that the ordinary frequenter of the streets has sufficient fortitude to endure such incidents as may from time to time be expected to occur in them, including the noise of a collision and the sight of injury to others, and is not to be considered negligent towards one who does not possess the customary phlegm."

For the reasons I shall express later, it seems to me that this passage expresses the rationale of the existing limitation with regard to proximity of relationship. It is a passage in Lord Bridge's speech which was relied upon by Mr. Hytner, on behalf of the plaintiffs, as indicating that the proper approach to the problem in cases of psychiatric illness are no longer to be decided by categorisation, but upon more general principles of foreseeability. The passage reads [1983] 1 A.C. 410, 441-442:

"In approaching the question whether the law should, as a matter of policy, define the criterion of liability in negligence for causing psychiatric illness by reference to some test other than that of reasonable foreseeability it is well to remember that we are concerned only with the question of liability of a defendant who is, ex hypothesi, guilty of fault in causing the death, injury or danger which has in turn triggered the psychiatric illness. A policy which is to be relied on to narrow the scope of the negligent tortfeasor's duty must be justified by cogent and readily intelligible considerations, and must be capable of defining the appropriate limits of liability by reference to factors which are not purely arbitrary. A number of policy considerations which have been suggested as satisfying these requirements appear to me, with respect, to be wholly insufficient. I can see no grounds whatever for suggesting that to make the defendant liable for reasonably foreseeable psychiatric illness caused by his negligence would be to impose a crushing burden on him out of proportion to his moral responsibility. However liberally the criterion of reasonable foreseeability is interpreted, both the number of successful claims in this field and the quantum of damages they will attract are likely to be moderate. I cannot accept as relevant the well known phenomenon that litigation may delay recovery from a psychiatric illness. If this were a valid policy consideration, it would lead to the conclusion that psychiatric illness should be excluded altogether from the heads of damage which the law will recognise. It cannot justify limiting the cases in which damages will be awarded for psychiatric illness by reference to the circumstances of its causation. To attempt to draw a line at the furthest point which any of the decided cases happen to have reached, and to say that it is for the legislature, not the courts, to extend the limits of liability any further, would be, to my mind, an unwarranted abdication of the court's function of developing and adapting principles of the common law to changing conditions, in a particular corner of the common law which exemplifies, par excellence, the important and indeed necessary part which that function has to play. In the end I believe that the policy question depends on weighing against each other two conflicting considerations. On the one hand, if the criterion of liability is to be reasonable foreseeability simpliciter, this must, precisely because questions of causation in psychiatric medicine give rise to difficulty and uncertainty, introduce an element of uncertainty into the law and open the way to a number of arguable claims which a more precisely fixed criterion of liability would exclude. I accept that the element of uncertainty is an important factor. I believe that the 'floodgates' argument, however, is, as it always has been, greatly exaggerated. On the other hand, it seems to me inescapable that any attempt to define the limit of liability by requiring, in addition to reasonable foreseeability, that the plaintiff claiming damages for psychiatric illness should have witnessed the relevant accident, should have been present at or near the place where it happened, should have come upon its aftermath and thus have had some direct perception of it, as opposed to merely learning of it after the event, should be related in some particular degree to the accident victim - to draw a line by reference to any of these criteria must impose a largely arbitrary limit of liability. I accept, of course, the importance of the factors indicated in the guidelines suggested by Tobriner J. in Dillon v. Legg, 29 A.L.R. 3d 1316 as bearing upon the degree of foreseeability of the plaintiff's psychiatric illness."

He gives two examples in support of these propositions and continues, at pp. 442-443:

"Secondly, consider the plaintiff who is unrelated to the victims of the relevant accident. If rigidly applied, an exclusion of liability to him would have defeated the plaintiff's claim in Chadwick v. British Railways Board [1967] 1 W.L.R. 912. The Court of Appeal treated that case as in a special category because Mr. Chadwick was a rescuer. Now, the special duty owed to a rescuer who voluntarily places himself in physical danger to save others is well understood, and is illustrated by Haynes v. Harwood [1935] 1 K.B. 146, the case of the constable injured in stopping a runaway horse in a crowded street. But in relation to the psychiatric consequences of witnessing such terrible carnage as must have resulted from the Lewisham train disaster, I would find it difficult to distinguish in principle the position of a rescuer, like Mr. Chadwick, from a mere spectator as, for example, an uninjured or only slightly injured passenger in the train, who took no part in the rescue operations but was present at the scene after the accident for some time, perforce observing the rescue operations while he waited for transport to take him home."

I have cited this passage at length because it forms the main basis for Mr. Hytner's argument on behalf of the plaintiffs, but in view of the issues that were before the House, it seems to me that Lord Bridge was doing no more than expressing his logical reasons for rejecting the "time and space" factors depriving the plaintiff of her remedy and was not intending thereby to substitute for the category approach accepted by Lord Wilberforce and in previous authorities, a more general approach based on foreseeability in which these factors would be relevant factors amongst many others and not themselves decisive as limiting factors for recovery of damages. He was also concerned in this context with the question of policy. It seems to me that had it been the purport of the passage cited that the "category" approach should be superseded, then all of their Lordships, and in particular Lord Wilberforce, would have so regarded it and have made comment, either critical or approving, on this approach. None of them did so. Nor did Lord Bridge comment in terms upon the speech of Lord Wilberforce or say that he disagreed with it.

The approach of Lord Wilberforce was applied by the High Court of Australia in Jaensch v. Coffey (1984) 155 C.L.R. 549, 555 where Gibbs C.J. said:

"Lord Wilberforce pointed out in McLoughlin v. O'Brian [1983] 1 A.C. 410, 422 that in deciding on the limits that should be placed upon the extent of admissible claims for nervous shock it is necessary to consider three elements: 'the class of person whose claims should be recognised; the proximity [in time and space] of such persons to the accident; and the means by which the shock is caused.' I would agree that these are the relevant elements, and I incline to think that the first is of the greatest importance. Where the relationship between the person killed or physically injured and the person who suffers nervous shock is close and intimate, not only is there the requisite proximity in that respect, but it is readily defensible on grounds of policy to allow recovery. There are cases which persons who do not stand in any such relationship have been held entitled to recover, including the case of rescuers (Chadwick v. British Railways Board [1967] 1 W.L.R. 912) and that of fellow employees (Mount Isa Mines Ltd. v. Pusey (1970) 125 C.L.R. 383) but they do not now fall for consideration."

If Lord Bridge was intending to substitute for the category approach a wider and more general test, he seems to have changed his view, at least in the context of economic loss, for in Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605, 618, he said:

"Whilst recognising, of course, the importance of the underlying general principles common to the whole field of negligence, I think the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes. We must now, I think, recognise the wisdom of the words of Brennan J. in the High Court of Australia in Sutherland Shire Council v. Heyman (1985) 60 A.L.R. 1, 43-44, where he said: 'It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable "considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed.'"

For my part, therefore, I accept that the speech of Lord Wilberforce in McLoughlin v. O'Brian [1983] 1 A.C. 410 represents the law in this field at the time of that decision and today, since there has been no reconsideration of that case, in the context of psychiatric illness, in the House of Lords. The decision was considered and applied by this court in Attia v. British Gas Plc. [1988] Q.B. 304, in which issues not related to the facts of this case arose. It was not suggested that the speeches of Lord Wilberforce and Lord Bridge differed in principle or led to different conclusions according to which approach was applied. It is not, in my view, a consequence that the law has become fixed or immobile so as to prevent the category approach from stultifying the law. It seems to me that the rationale of limiting the category of those entitled to recover to spouse/parent relationship, and the consequent exclusion of relationship outside that category, is that the law excludes the latter on the basis that with relationships which are more remote, the law assumes that such relatives will possess such fortitude and phlegm as will protect that person from psychiatric injury from shock, whereas the close relationship of spouse/parent is so basic to all human relationships and reactions that in those cases it is reasonably foreseeable that the shock of the event may cause psychiatric illness. Thus it seems to me that the "line" at a point which excludes more remote relationship is fixed as a matter of policy. It may also be justified by logical and justifiable grounds apart from policy. It is at this point that the flexibility can be achieved by applying the obiter dicta of Lord Wilberforce [1983] 1 A.C. 410, 422:

"Existing law recognises the claims of the first: it denies that of the second, either on the basis that such persons must be assumed to be possessed of fortitude sufficient to enable them to endure the calamities of modern life, or that defendants cannot be expected to compensate the world at large. In my opinion, these positions are justifiable, and since the present case falls within the first class, it is strictly unnecessary to say more. I think, however, that it should follow that other cases involving less close relationships must be very carefully scrutinised. I cannot say that they should never be admitted. The closer the tie (not merely in relationship, but in care) the greater the claim for consideration. The claim, in any case, has to be judged in the light of the other factors, such as proximity to the scene in time and place, and the nature of the accident."

For example, let us consider the case where the victim's parents are dead and the victim himself was brought up by grandparents who have fulfilled the parental role since early infancy. A careful scrutiny might, in such a case, involve no more than the assertion and proof of those facts. The same position might be established without difficulty in the case of other relationships.

It is argued on behalf of the defendant that such an investigation might involve prolonged and protracted investigations which would complicate already difficult cases and greatly prolong trials. Such investigation might be embarrassing. I agree, and it is at this point that public policy becomes again relevant. This problem was expressed by Lord Scarman in McLoughlin case, at p. 431:

"common law principle requires the judges to follow the logic of the 'reasonably foreseeable test' so as, in circumstances where it is appropriate, to apply it untrammelled by spatial, physical, or temporal limits. Space, time, distance, the nature of the injuries sustained, and the relationship of the plaintiff to the immediate victim of the accident are factors to be weighed, but not legal limitations, when the test of reasonable foreseeability is to be applied. But I am by no means sure that the result is socially desirable. The 'floodgates' argument may be exaggerated. Time alone will tell: but I foresee social and financial problems if damages for 'nervous shock' should be made available to persons other than parents and children who without seeing or hearing the accident, or being present in the immediate aftermath, suffer nervous shock in consequence of it. There is, I think, a powerful case for legislation such as has been enacted in New South Wales and the Australian Capital Territories."

Though difficulties due to the inclusion of more remote relationships than that of spouse/parent may be encountered, this approach has at least the benefit of a degree of certainty in the law. If I understand Lord Wilberforce's dicta correctly, he is not suggesting that the existing category of spouse/parent relationship should be advanced as a category or the existing line drawn in a different place, but that accepting prima facie that this category is determinate of the ability to recover damages, that a more remote relationship might justify departure from the rule in any given case where circumstances, after scrutiny, indicate that those relationships give rise to similar reaction of love and affection which are attributed to the spouse/parent relationship.

If I am right that the rationale of the present law limiting the right to recover damages to those within the parent/spouse relationship and the exclusion of more remote relationships is based, apart from policy, on a presumption that love and affection normally to be expected in the former category is so powerful that psychiatric injury through shock is foreseeable, whereas those whose relationship is more remote can be expected to withstand the shock without injury is correct, then I would expect that the presumption can be rebutted in appropriate cases. For example, in the case of a mother whose child is the victim but who had not seen or communicated with such child since birth who nonetheless claims damages for psychiatric shock. This is such an unlikely situation that it need hardly be considered. On that hypothesis, on what basis would she be likely to be "at the scene or its immediate aftermath" or to suffer psychiatric illness from shock if she were so present? If it is necessary to consider such a situation, then it seems to me that it would be permissible to challenge the basis of the presumption, at least for the purposes of medical causation.

In my view, therefore, the law as stated by Lord Wilberforce requires that the category of spouse/parent be regarded as fixed, flexibility being given to the law by allowing as an exception in any given case the claims of more remote relations, but only if close scrutiny justifies the extension. Where such close scrutiny indicates that the relationship, coupled with the care of the victim, indicates that the relative should be in the same position, vis-a-vis the victim, as a parent/spouse would have been so to render foreseeable the conclusion that psychiatric injury might result from shock to such relative, then in any given case that relative would be in the same position as a spouse/parent and would be able to claim damages. In so far as this may in some cases greatly complicate and enlarge claims for psychiatric illness so that policy considerations arise, it does not seem to me that such policy considerations should be applied by judicial process, but should be the subject of consideration by Parliament and legislation if thought appropriate.

Whatever the relationship, the consequences must still be reasonably foreseeable if a duty of care is to be established. This involves an examination of foreseeability at the time the careless act giving rise to the duty was committed. Since a duty in tort does not arise in vacuo but must be related to the specific plaintiff claiming damages, as against the defendant who owes the duty, reasonable foresight of the defendant as tested through the eyes of the reasonable man in the person of the judge must involve a degree of hindsight before the question whether or not the consequence of psychiatric injury was foreseeable, since it is only when the relationship of the plaintiff to the victim and the identity of both have been identified in the context of the alleged negligence that the question whether or not the consequence is reasonably foreseeable can be answered or even posed. This can involve problems of some difficulty. What has to be reasonably foreseeable is that the shock of the incident might cause psychiatric illness to the particular plaintiff identified. It is usually a simple matter to establish whether or not the injury to the victim was foreseeable. What is the position with regard to foreseeability where in fact hindsight indicates that there has been no breach of duty of care to the victim where, for example, he is not in fact injured? If the question of reasonable foreseeability is to be tested, as it must, at the time of the negligent act, then it must be irrelevant that no breach of duty in fact occurred with respect to the victim. If this be correct, then Mrs. Hambrook (Hambrook v. Stokes Brothers [1925] 1 K.B. 141) would have recovered damages even if, contrary to the fact, none of the children had in fact been injured. Thus, accepting that the classification of persons who can recover damages for psychiatric illness are restricted by the basic principle to cases where the victim and plaintiff relationship is that of spouse/parent, what must be reasonably foreseeable is that psychiatric illness may result from shock from the consequences of the careless act to a person within that close relationship, and that such a person might be at the scene or its immediate aftermath. At first sight such an approach would exclude all other persons of more remote relationship. This approach, however, if correct, would preclude a person outside the parent/spouse relationship from recovering, even if they would otherwise be entitled to do so in the circumstances envisaged by Lord Wilberforce.

If the facts in any given case justify the conclusion, foreseeability will have to embrace all those who by reason of their relationship and care might have such close bonds of affection as to render them susceptible to psychiatric illness through shock and that such a person might be present at the scene or its immediate aftermath. For the purposes of this argument I will not consider the contemporaneous television as a factor relevant to foreseeability, but will consider that factor when considering the effect of television on the limitations imposed by the time and space factor.

Some limitations must be put upon what is reasonably foreseeable if a duty of care is not to be owed to the whole world at large which would impose unacceptable burdens on the tortfeasor and would not accord with the general principles enunciated in Donoghue v. Stevenson [1932] A.C. 562. Mr. Hytner submitted that, since the proper approach to questions which arise in cases of psychiatric illness through shock is that contained in the speech of Lord Bridge in which relationship is only one factor, other factors, such as the magnitude of the event, might indicate that bystanders should be included as within the ambit of reasonable foreseeability. He asserts that bystanders have succeeded in a number of cases which he cited. I do not propose to go through these in detail, since in my view each constituted a "rescue" case, with perhaps one exception. That exception is Dooley v. Cammell Laird & Co. Ltd.cf1 [1951] 1 Lloyd's Rep. 271, a case decided on assizes by Donovan J. Mr. Hytner submits that the plaintiff, who was the crane driver involved in the incident, was for this purpose a bystander, yet he recovered damages on the basis that it was reasonably foreseeable that he might suffer psychiatric illness through shock. I do not agree that the plaintiff in that case could for this purpose be considered a bystander. He was an active participant in the event. Moreover, the question of the existence of a duty of care arose out of the master and servant relationship which existed between the plaintiff and the defendant and the question whether or not damages were recoverable could have been resolved by considerations of the remoteness of damage. In any event, the judge found as a fact that psychiatric illness was a foreseeable consequence of the defendant's negligence. In my view, therefore, the categories of person who the tortfeasor at the time of the negligent act should reasonably foresee as being likely to sustain psychiatric illness is confined to persons who he could foresee might be present at the scene or its immediate aftermath and who might have that relationship with the victim with respect to love, affection and care as to put them in a similar position as persons in the spouse/parent relationship. In my view, foreseeability of psychiatric illness through shock to persons should not be extended to persons who do not have any family relationships, even if such persons did as a fact entertain feelings of love and affection towards the victim. If such persons, such as bystanders, are included within the ambit of those to whom a duty is owed, then a duty might be owed to the whole world and thus impose a duty which would place an intolerable burden on a tortfeasor.

To summarise, in my view, the law is that, save in exceptional circumstances, only those within the parent/spouse relationship can recover damages for psychiatric shock sustained by a plaintiff not himself involved as a victim. This defines the category. The exceptions considered on a case to case basis are limited to relatives who meet the criteria of that relationship and who are present at the scene or its immediate aftermath. What has to be foreseeable is that someone may be present at the scene or its immediate aftermath who possesses that love and affection which a parent/spouse is assumed to possess, even if in fact that relative is less closely related to the victim than a parent or spouse. It does not seem to me that such a formulation causes any particular difficulty - it is a slight reformulation of the test of foreseeability to meet the cases referred to by Lord Wilberforce, not any change or addition to what has to be foreseeable in the case of a parent/spouse who suffers psychiatric injury by shock. The judge found that in the case before him brother and sister were entitled to recover. He did so, if I correctly interpret his judgment, by reference to the circumstances of the Hillsborough disaster and by the relationship which might be expected in most cases between brother and sister. He did not carry out any close scrutiny by reference to the love and affection in fact to be attributed to them, having regard in particular to any care (in the sense of custody or maintenance) which they had performed. It may be that had such a scrutiny been carried out, the facts might have entitled them to recover damages and the extension in their favour be justified under the principles enunciated by Lord Wilberforce. I therefore consider that the judge was in error in holding that in the circumstances of the case before him he could regard the brothers and sisters as within the relationship which would entitle them to claim damages.

The effect of television on the limitation of time and space

Lord Wilberforce in the McLoughlin case [1983] 1 A.C. 410 raised the possibility that watching live television might be the same as attendance at the scene or its immediate aftermath and thus satisfy the test of proximity in time and space.

In my view, if the relevant television broadcast performed no function in relation to the plaintiff than communicating the fact that an accident had occurred at a place at which the plaintiff knew that his relative was, it would be a mere communication of that fact and would place the plaintiff in a similar position to that in which he would have been had the information been communicated to him by any other media, oral or telephonic. This information could not found a claim based on shock since the mere receipt of information with no more could not do so. In that case if it was followed by actions on the part of the plaintiff which brought him within the scene or its aftermath, then limitations of proximity and space would not debar him from recovering damages.

It is unlikely that any television broadcast would do no more than communicate the fact of the accident or disaster, particularly when the occurrence is on an occasion of national or international interest. For some years past television has been available worldwide to a vast number of people. It is of course foreseeable that events such as a Football Association Cup semi-final would be broadcast by television worldwide, or at least to a national audience. It is also foreseeable that a view of the events broadcast on television would provide at least as good a view of the events taking place as would be likely to be obtained by presence at the stadium, and that some of the events would be seen in close up, slow motion or replay from a number of different viewpoints. These factors are readily foreseeable and they were in fact foreseen by the relevant police officers concerned. It would also be readily foreseeable that those watching television would include parents, spouses or relatives of those present at the ground.

Some of these factors themselves indicate that viewing on television does not equate with presence at the scene. No person present can view events more or less simultaneously from several different viewpoints. The fact that the television transmission does so (there were at least four cameras in different locations at Hillsborough) in itself requires some form of editorial or selective process in a decision which cameras be operated at any given moment. The broadcast is likely to, and in this case did, include commentary which may itself be emotive. The "zoom" lens enables an incident to be viewed in close-up, even though individual victims are excluded from such close-ups.

Moreover, whereas a plaintiff present at the scene or its immediate aftermath must ex hypothesi have been fairly close at hand, the television broadcast may well be viewed worldwide and thus might be seen by relatives in a foreign country, perhaps on the other side of the world. Thus the time and space limitation would be enormously enlarged and might involve close relatives who would almost certainly be outside the limitation of time and space being brought within it.

Thus, in my view, television broadcast of the type which it seems occurred is not to be equated with the plaintiff being within "sight or hearing of the event or its immediate aftermath" and therefore shock sustained by reason of the broadcast would not suffice to found a claim. Such a broadcast, containing substantial elements of editing together with a commentary, is in my view a "novus actus interveniens."

None of the plaintiffs who base their claim on shock sustained by reason of the broadcast, still less if the broadcast is repeated, can found their claim on shock from this source.

I do not consider it necessary to comment upon the recent cases to which we have been referred, Hevican v. Ruane [1991] 3 All E.R. 65 tried by Mantell J. and Ravenscroft v. Rederiaktiebolaget Transatlantic [1991] 3 All E.R. 73 tried by Ward J., save to say that if the views I have expressed are correct, the extensions which were made in those cases would would not be justified.

Of the successful plaintiffs, all but one saw the scene live on television. The one who was present was the brother of two of the victims. It thus follows that in my view none of them was entitled to succeed for the reasons I have endeavoured to give. Of the six unsuccessful plaintiffs, each failed on the basis of relationship. In my view, this was determinative of the outcome and I would reject their appeals. It follows that in my view the appeals of the defendant in respect of the nine successful plaintiffs should be allowed and the appeals of the six unsuccessful plaintiffs fail.

In reaching this conclusion I am conscious that all the plaintiffs, both successful and unsuccessful, suffered very genuine grief and distress and have been assumed to have suffered psychiatric injury through the shock and horror of the events. They are entitled to universal sympathy in no way mitigated by the fact that they are not entitled, in my view, to recover damages in law.

NOLAN L.J. It is more than two years since the Hillsborough disaster occurred, but even now, and even for those with no personal involvement it is impossible to contemplate what took place without a sense of shock. Much of the detailed evidence of suffering and death is harrowing. I shall refer to it no more than is necessary for the purposes of this judgement, but I must start by considering the circumstances in which the psychiatric illnesses of the plaintiffs arose. For this purpose I refer to the "Generic Report on psychological casualties resulting from the Hillsborough disaster" which was prepared on behalf of the plaintiffs by Dr. Morgan O'Connell. When he wrote it, he had examined and assessed 39 cases. In paragraph 5 he begins his account of what he had learnt from his examinations and from the Interim Report of Taylor L.J. on the Hillsborough Stadium Disaster (1989) (Cm. 765). He says:

"What was most striking in the history taking was how a normal social occasion in a familiar setting, on a fine sunny day, should suddenly become a horrific experience and almost as suddenly be over. It was as if it were a worst case of nightmare, were it not for the dead, injured and bereaved who remained after the event. The live television and radio brought the happenings into the homes, clubs and High Streets of those who were not at the match.

Up to this time I had not been aware of how much football is a way of life for families in Liverpool. This factor I believe, has served to compound the problem, as many who were not at the match unwittingly identified all that they witnessed on the terracing through the media, such was their familiarity with the scene."

In paragraph 9, Dr. Morgan O'Connell confessed to great difficulty in deciding which of the 39 psychological casualties was most affected by his or her experience. He referred in particular to:

"The fan whose outstretched arm became an obstruction against which his neighbour's throat was crushed . . . A grandfather, partially sighted, coming from the other side of the pitch and believing that his grandson was at the bottom of a pile of horribly mangled, dead, young bodies. The wife at home compelled to watch television knowing that her husband's favourite spot was behind the goal, and then subsequently seeing him disappear in the midst of the crush of bodies when asked to view the video by the police."

He continues:

"10. Of the people seen, all but one had more than one illness - in one case in question I diagnosed suffering pathological grief. 11. Pathological grief is grief of greater intensity and duration than normal grief, it is more likely to occur where death is sudden, unexpected and brutal in nature. In the case of the grandmother who had effectively reared her grandson as a son, she remains pre-occupied with the gap caused in her life through his death - a death which she feels was totally unnecessary. 12. The most common diagnosis was post-traumatic stress disorder. Post-traumatic stress disorder, a new concept (1980) for an old problem (neurasthenia, shell-shock, nastalgia) is classified as an anxiety disorder. It follows on a painful event which is outside the range of normal human experience, the disorder includes preoccupation with the event - that is intrusive memories - with avoidance of reminders of the experience."

None of the four individual cases referred to by Dr. Morgan O'Connell -the fan, the grandfather, the wife at home, and the grandmother - is among the plaintiffs whose cases are before us, but the passages which I have quoted from his report are, I hope, sufficient to illustrate the type of psychiatric illness resulting from nervous shock with which this case is concerned. There is no dispute that

"Damages are . . . recoverable for nervous shock, or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of duty by the defendant:" see per Lord Denning M.R. in Hinz v. Berry [1970] 2 Q.B. 40, 42.

The problem in the present case is to identify the limits of the duty of which the defendant is said to have been in breach. The law of negligence has become so refined that it is difficult to make any general statement without qualifying it: but this much at least I think is still clear, namely that the duty of care does not extend beyond what is reasonably foreseeable. In many cases, the question of what was reasonably foreseeable can be approached simply and directly by establishing what injury the plaintiff has suffered, and how it was caused, and then inquiring whether that kind of injury, thus caused, was reasonably foreseeable by the defendant. In cases of psychiatric illness caused by nervous shock this approach must always be of greater difficulty because in such cases "there are elements of greater subtlety than in the case of an ordinary physical injury" (see per Lord Macmillan in Bourhill v. Young [1943] A.C. 92, 103) and these elements may not be readily predictable. In the present case, there is the further difficulty that the judge, for entirely understandable reasons, declined to make findings as to whether the individual plaintiffs had suffered psychiatric illness caused by the act or omission of the defendant, but assumed that all of them had done so. We are driven, therefore, to approach the matter by what as it seems to me must in any event be the strictly correct route (since the test for the defendant is foresight, not hindsight) and ask whether immediately before the crucial acts or omissions which occurred at Hillsborough on the afternoon of 15 April 1989 it could reasonably have been foreseen that those acts or omissions would be likely to cause nervous shock leading to the kinds of illness described by Dr. Morgan O'Connell in his generic report. The problem cannot be solved by the medical evidence; the criterion is "the consensus of informed judicial opinion:" see per Lord Bridge of Harwich in McLoughlin v. O'Brian [1983] 1 A.C. 410, 432.

The defendant has admitted liability for negligence in respect of those who died or were physically injured at Hillsborough. That is to say, he has admitted that he owed them a duty of care, that he was in breach of that duty, and that their deaths or injuries resulted from the breach. If it could reasonably have been foreseen, as I think it could, that the crucial acts and omissions would not only be likely to lead to physical injury and death, but to a very large number of horrifying injuries and deaths, then to my mind it must inevitably follow that the defendant ought reasonably to have anticipated in addition the likelihood of nervous shock amongst those who were not physically but were mentally affected by the occurrence.

If the extent of the defendant's duty depended upon foreseeability alone, it would be almost infinite. It is well settled, however, that foreseeability alone, although essential to the existence of a duty of care, is not enough. In the familiar words of Lord Atkin in Donoghue v. Stevenson [1932] A.C. 562, 580, the duty is owed only to "persons who are so closely and directly affected" by the defendant's act that he "ought reasonably to have them in contemplation as being so affected" when directing his mind to the acts or omissions which are called in question. This may be paraphrased as reducing the extent of the duty from what is foreseeable to what is "reasonably" foreseeable, but the concept of reasonableness is elusive. As I understand the decided cases, the law has developed not so much by reference to what the defendant's reason should tell him was foreseeable, but by reference to the practical limits which the law imposes upon the foreseeable consequences for which the defendant should be saddled with responsibility: see, for example, Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605, 618-619, per Lord Bridge of Harwich. These limits may be justified either on the grounds of public policy - for example, so as to avoid the floodgates opening - or as a matter of fairness and justice to potential defendants. The word "policy," in the sense of the policy of the law, is sometimes used to describe the latter considerations as well as those of public policy in its more normal sense.

I agree with Mr. Hytner that it is necessary to distinguish between the two different uses of the word, but I suspect that in most cases they will largely overlap. The practical course followed by the courts has been to restrict the ambit of the duty of care by placing fairly narrow limits upon the classes of potential plaintiffs who, in Lord Atkin's words, are "so closely and directly affected" as to be within the defendant's reasonable contemplation. The question in any given case is how "closely and directly affected" the particular potential plaintiff has to be. The possibility of the floodgates opening will depend upon the breadth of the terms in which that question is answered. In this country at least, the floodgates appear to have remained shut in spite of the increasing breadth of the court's approach to the question of liability, and for present purposes at least I am prepared to accept Mr. Hytner's submission that they would still remain shut if the claims of the plaintiffs in the present case were upheld.

Floodgates apart, however, there remains the question whether the narrower, policy criteria of closeness and directness were satisfied by the plaintiffs in the present case. I would refer in this connection to the speech of Lord Wilberforce in McLoughlin v. O'Brian [1983] 1 A.C. 410, 421-422 where, after setting out a number of general limitations on the scope of the duty of care he continues:

"But, these discounts accepted, there remains, in my opinion, just because `shock' in its nature is capable of affecting so wide a range of people, a real need for the law to place some limitation upon the extent of admissible claims. It is necessary to consider three elements inherent in any claim: the class of persons whose claims should be recognised; the proximity of such persons to the accident; and the means by which the shock is caused. As regards the class of persons, the possible range is between the closest of family ties - of parent and child, or husband and wife - and the ordinary bystander. Existing law recognises the claims of the first: it denies that of the second, either on the basis that such persons must be assumed to be possessed of fortitude sufficient to enable them to endure the calamities of modern life, or that defendants cannot be expected to compensate the world at large. In my opinion, these positions are justifiable, and since the present case falls within the first class, it is strictly unnecessary to say more. I think, however, that it should follow that other cases involving less close relationships must be very carefully scrutinised. I cannot say that they shall never be admitted. The closer the tie (not merely in relationship, but in care) the greater the claim for consideration. The claim, in any case, has to be judged in the light of the other factors, such as proximity to the scene in time and place, and the nature of the accident."

In the present case, the judge felt able to extend the range to brothers and sisters, but no further. He did so on the basis of general propositions about the relationships within the normal family, with which I would entirely agree. But in my judgment these general propositions do not provide an acceptable answer by reference either to authority or to human experience. The decided cases in which damages have been recovered for nervous shock sustained by a parent or spouse have all been cases in which the reactions of the particular parent or spouse have been assumed or proved to have been those which one would normally expect of an individual in the closest and most loving of relationships with the person physically injured or threatened. What has distinguished the parent or spouse from the ordinary bystander in such cases has been the depth of their love and concern, causing them to be affected by nervous shock even though they were of normal fortitude. It is, I feel sure, despite Mr. Hytner's arguments to the contrary, the bonds of love and affection which Lord Wilberforce had in mind when envisaging the possibility that those having a less close relationship than parent or spouse might come within the scope of the duty of care. His words, at p. 422, "The closer the tie (not merely in relationship, but in care) the greater the claim for consideration" can bear no other meaning. And, of course, in a number of earlier cases the possibility had been canvassed that not merely parents and spouses but relatives or even friends might be distinguished from bystanders and brought within the scope of the duty of care - a possibility which could only be contemplated by reference to a bond of love or affection. For example, in Bourhill v. Young [1943] A.C. 92, 117 Lord Porter said:

"The duty is not to the world at large. It must be tested by asking with reference to each several complainant: Was a duty owed to him or her? If no one of them was in such a position that direct physical injury could reasonably be anticipated to them or their relations or friends normally I think no duty would be owed . . ."

The difficulty lies in defining the degree of closeness which is sufficient to bring the individual within the same category as a parent or spouse. Both Mr. Hytner and Mr. Woodward urged us not to embark on this course, for fear of the uncertainty which would result. For my part, I would accept at once that no general definition is possible. But I see no difficulty in principle in requiring a defendant to contemplate that the person physically injured or threatened by his negligence may have relatives or friends whose love for him is like that of a normal parent or spouse, and who in consequence may similarly be closely and directly affected by nervous shock where the ordinary bystander would not. The identification of the particular individuals who come within that category, like that of the parents and spouses themselves, could only be carried out ex post facto, and would depend upon evidence of the "relationship" in the broad sense which gave rise to the love and affection. Proof of causation would require evidence as to the link between that relationship and the psychiatric illness sustained. The evidence might be difficult to obtain, and would certainly require close scrutiny, as Lord Wilberforce envisaged, but I see no reason in principle why identification should not be possible on a case by case basis. I have in mind such examples as the grandparents or uncles and aunts who, upon the premature death of the parents, bring up the children as their own; or Mrs. Hinz (see Hinz v. Berry [1970] 2 Q.B. 40) whose feelings for her foster children were assumed without question to be the same as those for her natural children. I have in mind also the judgment of Burbury C.J. in Storm v. Geeves [1965] Tas.S.R. 252, 266 in which he felt able to identify the brother and sister as well as the mother as coming within the scope of the duty of care, and was further able to find on the evidence that whereas the mother and the brother had suffered nervous shock caused by the defendant's acts or omissions, the sister had not. In the present case itself, I have referred to Dr. Morgan O'Connell's generic report in which he describes, amongst others, the case of the grandmother who had effectively reared her grandson as a son, and who was suffering from pathological grief. I have no means of knowing whether in other respects this lady's case satisfies the conditions for bringing her within the scope of the duty of care, but in so far as the extent of the duty depends upon proximity in terms of personal relationship I can see no reason in principle why she should be excluded.

The difficulty remains that neither the plaintiffs' cases as pleaded nor the judgment of the judge depend crucially and essentially upon the existence of a close tie of relationship, a special bond of love, between the plaintiffs and the immediate victims. Without that link, the necessary proximity of the relationship cannot be established as a matter of fact in any of the cases before us. I do not doubt for one moment the depth of genuineness of the love and affection felt by the plaintiffs for the victims but what is lacking is evidence that the closeness of the tie was so similar to that of a loving parent or spouse that it was foreseeably likely to bring them into the same category. I cannot agree with the judge that the line should be drawn around what is called the nuclear family. The criterion is loving care, not blood relationship, still less legal relationship.

Unfortunately, people within those relationships do not always care for each other. Fortunately people outside those relationships often care for each other very much. If the law is to reflect these familiar realities it must follow that just as a plaintiff in my judgment could bring himself within the scope of the defendant's duty by establishing a sufficient tie of care, so it must be open to a defendant to disapprove the existence of that tie in the case of a particular spouse or parent. There is no support in law or in logic for the proposition that an uncaring parent or spouse should stand in any different position from a stranger. It follows that in so far as the defendant's appeals are based upon the judge's inclusion of all brothers and sisters within the requisite proximity of relationship I would feel bound to allow them.

It remains to consider the questions of proximity to the accident in time and space, and the means by which the shock was caused. In McLoughlin v. O'Brian [1983] 1 A.C. 410, 422-423 Lord Wilberforce concluded that a strict test of proximity by sight or hearing should be applied, that no liability should arise where nervous shock had been brought about by communication by a third party, and that:

"The shock must come through sight or hearing of the event or of its immediate aftermath. Whether some equivalent of sight or hearing, e.g. through simultaneous television, would suffice may have to be considered."

The judge held that the parents, spouses, brothers and sisters who saw the scenes at Hillsborough on live television and heard the commentaries upon it should be regarded as sufficiently close to the accident in time and space to fall within the scope of the duty of care. We have not seen the television programme, and therefore do not know precisely what was shown, but a reasonably clear idea can be gained from the statements of admitted facts. For example, Stephen Jones knew his brother was at the match and expected him to be standing behind the goal, saw the live television pictures coming from Hillsborough, saw bodies and believed them to be dead. Maureen Mullaney actually saw her sons in a section of the crowd where there were casualties, though mercifully they survived without serious injury. It is easy to imagine the feelings of appalling anxiety and distress experienced by the television watchers, aggravated by their uncertainty as to what was happening, but on the basis of the available evidence I am unable to conclude that they fell within the scope of the defendant's duty of care. I accept Mr. Hytner's submission that the defendant should reasonably have foreseen that the scenes at Hillsborough would be transmitted live on television, and would be seen by relatives. I also accept, however, Mr. Woodward's submission that the basis of this cause of action is shock in the ordinary sense of that word, resulting from the direct perception of an actual or threatened physical impact. The defendant could, I think, reasonably expect that the television cameras would not show shocking pictures of suffering by recognisable individuals. I bear in mind, of course, that the sight and sound of an incident can be transmitted and reproduced with a vividness which can equal, or even exceed, that experienced by those on the spot. In the present case, however, the element of immediate and horrifying impact on the viewer does not seem to me to have been established either as being reasonably foreseeable or as having happened. It follows that in my judgment the law provides no remedy for those plaintiffs, even the most closely related, who watched the live television transmissions, still less for those who heard the news on the radio or later saw the recorded television transmission. The same apparently harsh conclusion must, I think, follow on the alternative and simpler basis that the damage is too remote for the law to be able to cope with.

I would not exclude the possibility in principle of a duty of care extending to the watchers of a television programme. For example, if a publicity seeking organisation made arrangements for a party of children to go up in a balloon, and for the event to be televised so that their parents could watch, it would be hard to deny that the organisers were under a duty to avoid mental injury to the parents as well as physical injury to the children, and that there would be a breach of that duty if through some careless act or omission the balloon crashed. But that would be a very different case.

Mr. Hytner urged us in relation to all of the plaintiffs to have regard to the whole of the facts - the "concatenation of circumstances" as it has been called - and not to treat a single factor such as personal relationship or the medium of communication as being alone decisive. He referred, by way of example, to the case of Harold Copoc. Mr. Copoc knew that his son was at the match and believed that he would be behind the goal. With Mrs. Copoc he watched the television at home from 3.30 p.m. onwards. Both were in fear for the welfare of their son. Mr. Copoc made telephone calls throughout the night vainly seeking information, until 4 a.m. when he set off with his nephew for Sheffield. He looked for his son at the Sheffield hospital, again without success. His nephew telephoned home, to learn that the police had called bringing news of the son's death. Mr. Copoc went to the mortuary at Sheffield and identified his son's body. Mr. Hytner submitted that this traumatic sequence of events was readily foreseeable by the defendant. The aftermath of the initial tragedy continued for Mr. Copoc until the identification of the body. His case, submitted Mr. Hytner, could not realistically be distinguished from that of Mrs. McLoughlin in McLoughlin v. O'Brian. This, I think, is probably the nearest of the plaintiffs' cases to the case of Mrs. McLoughlin, but I still feel bound to conclude that it is on the other side of the line. When Mrs. McLoughlin arrived at the hospital, to hear that her youngest child aged three was dead, she found her other children and her husband in a state of acute distress and still undergoing or awaiting treatment "covered with oil and mud, and distraught with pain," in much the same condition as they had been by the roadside. It was a situation of the kind which is all too readily foreseeable as a consequence of a serious road accident. Even so, Lord Wilberforce regarded her case as being upon the margin of what the process of logical progression from case to case would allow. If that is right, Mr. Copoc's case must in my judgment fall beyond the margin of what, as a matter of law, was reasonably foreseeable.

This is perhaps another way of saying again that to my mind the expression "nervous shock," as used in the decided cases, connotes a reaction to an immediate and horrifying impact. I have no doubt that the kinds of psychiatric illness to which nervous shock may give rise could equally be brought about by an accumulation of more gradual assaults upon the nervous system, but the law as it stands does not appear to me to provide for the latter category. I fully accept Mr. Hytner's submission that the foreseeable limits of nervous shock in any given situation cannot be determined by reference to any one factor. That is why the normal parent or spouse (and possibly others with similar personal relationships) must be foreseen as possible sufferers even though only present at the aftermath. At the other end of the scale, a stranger may recover because his physical involvement with the horrifying human consequences of the tragedy are in themselves foreseeably sufficient to produce nervous shock, even in a person of normal fortitude. The inclusion of rescuers in the category of those to whom the duty of care is owed may be supported on this basis. The same considerations might apply to someone, such as the "fan" described by Dr. Morgan O'Connell, who though not a rescuer nor himself physically injured, was directly and physically involved in the horrifying incidents which occurred. But I repeat that his case is not before us. Nor are we concerned with the case of an ordinary bystander. We are concerned solely with the relatives and friends who are parties to the appeals before us. In their cases I agree that the appeals of the plaintiffs must fail and the appeals of the defendant must succeed.

ORDER

Appeal allowed with costs.

Cross-appeal dismissed.

Leave to appeal.

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Crown Copyright acknowledged