the document

Castle Chambers, Cook Street, Liverpool L2 9SH
Tel: 051 255 0628 Fax: 051 236 0047 DX 14100
26h June 1991
£ '2 JUL 1991
I am pleased to say that the Appeal to the House of Lords is
progressing satisfactorily and I report on that and on other
Appeal to the House of Lords - the Remoteness Appeals
The two Petitions and a Petition to consolidate have now been
served on the Respondents and presented to the House of Lords.
Following the remarks made by Lord Justice Parker in the Court
of Appeal that they considered the Appeal should be heard as
soon as reasonably practicable the Judicial Office have been
extremely helpful and the case is listed for hearing, with an
estimated length of 4/5 days, commencing on the 7th October 1991.
Copies of the Petitions themselves (very short documents) are at
the Law Library if anyone wishes to see those. The Statement of
Case is being settled by Counsel and that, together with the
documents and from the other side the Respondent's Statement of
Case, has to be printed and lodged with the Lords before the
When the written separate cases are available if there is
anything unexpected in them I will of course report to you to
let you know the position.
I confirm that these appeals concern clients who have suffered
psytj^iiatric illness as a result of the events at Hillsborough
but who were not present in Pens 3 or 4 nor were within the
specific categories which the Insurers have agreed to compensate.
I enclose at Appendix 1 a note setting out the history ana the
issues which will be before the House of Lords.
I also enclose
at Appendix 2 an extract from Lord Wilberforce1s speech in
McLoughlin -v- O'Brien which the Court of Appeal adopted and
approved when hearing our appeals.
I emphasise that the cases which will be heard by the House of
Lords will of course be decided on their own facts.
The cases
have been selected in the hope and expectation that between them
they cover such a broad range of claims end circumstances that
you will be able to identify the claims of your individual
clients with one of the Plaintiffs before the House of Lords.
However, there may be other cases which do not fully fit into
those facts and these may well have to be examined very
After the House of Lords Hearing
I understand that almost inevitably their Lordships will take
the time to consider their Judgments and that the speeches are
likely to be given about four or six weeks after the conclusion
of the argument.
In the hope, and expectation, that the appeals
will succeed at
least in part, we propose to instruct the
existing team of Junior Counsel on a generic basis as soon as
possible after the House of Lords' decision is handed down so
that you will then have the facility to obtain advice from them
on liability
and as to whether your individual clients fall
within one of the successful categories.
We certainly expect, in the event of a partial success, that the
Insurers will construe any decision narrowly and litigation may
well be necessary.
In addition to the written instructions to Junior Counsel - again
on the basis that the appeal is at least partially successful we propose to convene a conference with Counsel for Solicitors
only so that we can be advised as to the practical effects of the
Position pending the House of Lords Decision
I would again remind you that
the 14th April 1992 and with
7th October 1991 and Judgment
only be a relatively short
the limitation period expires on
the hearings due to start on the
likely to be reserved there will
time after the House of Lords'
Judgment to deal with these cases.
If you have not already done so and you have a client who falls
within one of the categories to be considered by the House of
Lords and who is eligible for legal aid I would strongly urge
you to apply for Legal Aid limited to obtaining a medical report
and to get ahead with that aspect.
You do of course appreciate that the medical
necessary before the issue of any proceedings.
report will
Pre-Death Pain and Suffering Appeals
The Court of Appeal gave leave to appeal to the House of Lords
on the question of pre-death pain and suffering.
No Petition
has yet been presented.
These test cases
and the Insurers
wish to support
relatively small
todate have been financed by Legal insurance
concerned are still considering whether they
the claim - which on any showing is for a
sum of damages - to the House of Lords.
The time limit for presentation of the petition expires in early
August and I will of course let you know as soon as any decision
is taken on this point.
Progress of claims generally
the Steering Committee has no involvement with
particular claims (which are of course a matter for the
individual Solicitors to pursue except for those that we are
asked to include in Blaise Smith's trouble shooting meetings) we
have gained the impression from the Insurers that some claims
which were intimated at an early stage are not being pursued
particularly actively.
Again I would urge you to get ahead with those claims.
If they
fall within the categories which are accepted under the Order to
Stay then if a satisfactorily negotiated settlement is not
possible it is important that you pursue them vigorously by issue
of proceedings (using the agreed procedure for trial without
pleadings) so that matters can be resolved for clients as soon
as possible either by final settlement or if the injuries do not
permit this by obtaining an interim payment.
I have mentioned earlier the limitation date is 14th April 1992
and it is essential that none of us allow this date to pass
without the issue of proceedings if claims are not settled.
It goes without saying that I do not advocate issue of
proceedings in the case of any clients who fall within the House
of Lords categories until after the decision of the House of
Lords is known.
Statements made to the West Midlands Police
We are still having problems with the South Yorkshire Police who
maintain that they will not issue copies of statements clients
have made to the West Midlands Police for the Taylor Inquiry
until after any disciplinary proceedings taken against South
Yorkshire Officers are concluded.
I know that some people are experiencing difficulties because of
this - with clients who find it distressing to go over the
events again - and medical reports which may be held up as a
We will take this up with Hammond Suddards and the MMI in the
hope that they can exercise some influence on the South
Yorkshire Police and if you have a client whose claim is
adversely affected because you have not been able to obtain a
copy of their statement would you please let me know.
Finally, I am pleased to learn from a number of people that
their clients claims are being settled satisfactorily.
It does
help us from an administrative point of view if you could let us
know when an individual claim is settled so that we can delete
the name from the computer.
I will be in touch as soon as there is anything else to report.
Every good wish.
Yours sincerely,
I have just heard that the Pre-Death Pain and Suffering Appeal to the
Lords will be backed by Legal Expenses Insurance. This Appeal will
therefore go ahead.
After the disaster it was immediately clear that issues of
remoteness of damage in relation to nervous shock would have to
be "tested" in the courts.
After meetings with the Defendants they agreed to compensate the
following categories of victims if they proved psychiatric
illness arising from the events.
The claimant was in pen 3 or 4 and suffered physical injury
and nervous shock.
The claimant was in pen 3 or 4 and suffered no physical
injury but suffered nervous shock.
The claimant was in another part of the ground and saw a
spouse or child injured or killed.
The claimant was in another part of the ground and knowing
or believing a spouse or child to be in pen 3 or 4 later
found them injured or dead.
Persons involved in rescue attempts who were not originally
in pens 3 or 4.
Following further negotiations, the insurers also agreed that
children, whose parents were in pens 3 or 4, would be added into
the categories under headings 3 and 4 above.
These concessions were made on the basis that the law clearly
allowed recovery.
This left open four major areas which were to become the subject
of litigation:a
The position of more distant relatives who were
The position of non-relatives, i.e., friends
indeed, by-standers who were at Hillsborough.
Those who saw the events via simultaneous li^ve
broadcasts of pictures from Hillsborough and on the
radio or those who saw recorded footage of the events
later in the day.
Those who travelled to Sheffield to enquire as to the
whereabouts of victims of potential victims and in
particular those who had to identify people at the
temporary mortuary at the ground.
The jSteering Committee asked solicitors in the group to complete
questionnaires as a result of which 16 test cases were selected.
The cases selected
(The insurers have always accepted that if, for example, a
brother recovers in certain circumstances then a sister could
recover in like circumstances).
Some of these relatives were at Hillsborough.
Others saw the
game live on television and others attended Sheffield in the
search for victims.
In one case a sister had seen recorded
footage of the disaster.
the survey did not throw up any potential
claimants who were totally independent by-standers or TV viewers.
In one case only has someone claimed nervous shock as a result
of being fearful for the safety of a friend.
The Judge at first instance, Mr Justice Hidden, allowed ten
claims and dismissed six.
In doing so, he extended the law in
two areas:1
That the required degree of relationship could
be extended to brother/sister.
That witnessing events on live television was
sufficient to bring the claimant into close
proximity to the events;
but that recorded
footage was not sufficiently proximate in time
and space.
Unfortunately, having made these findings, the Judge did not go
on to make any findings in respect of the aftermath and in
particular whether identification at the mortuary was within ii:.
The Court of Appeal completely overruled Mr Justice Hidden in all
respects, where he had found for the Plaintiffs.
They did,
however, go on to consider the aftermath. Here, it is necessary
to quote the facts of the leading case, McLoughlin -v- O'Brien,
1983 Appeal Cases, 410. The Plaintiff was at home two miles away
from the accident at the time it
c o n t 'd ..../
She was told by a neighbour that her family had been
takejjjji to hospital.
On arrival she was told that her youngest
daughter had been killed and she saw her husband and two other
children. She saw that another daughter was crying with her face
cut and begrimed with dirt and oil.
She could hear one of her
sons shouting and screaming.
Shortly thereafter she saw him
sitting with his head in his hands.
His shirt was hanging off
him and he was covered in mud and oil.
The Court of Appeal, in attempting to define the aftermath,
clearly indicated that a person would have to see the injured
relative in a state of distress, and with debris and/or blood
upon them in order to recover damages for nervous shock.
of course, was a very narrow confinement of the principle set out
in McLoughlin -v- O'Brien.
The House of Lords will now on 7th October consider the cases.
The principle questions they will be called upon to answer are: 1.
What degree of relationship is sufficient between the
deceased/injured person and the witness to make it
reasonably forseeable that they will suffer nervous
Whether viewing scenes on television gives rise to
sufficient spacial proximity to make it reasonably
forseeable that nervous shock will occur.
The extent to which the aftermath continues to apply.
Whether cases of this nature should be decided on the
basis of defined categories or on the basis of
variable circumstances arising from the particular
incident, accident or disaster.
The first two issues are largely self-explanatory but special
attention will have to be paid to the ruling in respect of the
The Plaintiff's will contend that it includes their journey to
Sheffield, searching in Sheffield and identification at the
temporary mortuary.
'2 '
All England Law Reports
28 May 1982
All England Law Reports
[ 1982] 2 All ER
[1924] All ER Rep 110, has not gained acceptance, and although the respondents, in the
courts below, reserved their right to revive it, they did not do so in argum ent. I think g
th at it is now too late to do so. The argum ents on this issue were fully and admirably
stated by the S uprem e Court of California in Dillon v Legg (1968) 29 ALR 3d 1316.
2.. A plaintiff m ay recover damages for ‘nervous shock’ brought on by injury caused
n o t to h im or herself b u t 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 o f the plaintiff
(Hambrook v Stokes Bros [1925] 1 KB 141, [1924] All ER Rep n o , Boariman v Sanderson
[1964] 1 W LR 1317, H in^v Berry [ 1970] 1 All ER 1074, [1970] 2 Q B 4 0 ,including foster
children (w here liability wasassumed), and see King v Phillips [19 5 3] 1 All E R 6 i7 ,[i9 5 3 ]
1 QB 4 2 9 ).
3. Subject to th e 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
o f sight and earshot o f the plaintiff. In Hambrook v Stokes Bros an express distinction was q
made between shock caused by w hat the m other saw with her own eyes and what she 1
m ig h t have been told by bystanders, liability being excluded in the latter case.
4. An exception from, or I w ould prefer to call it an extension of, the latter case has
been m ade w h ere the plaintiff does not see or hear the incident b ut comes on its
im m ediate afterm ath. In Boardman v Sanderson the father was w ithin earshot o f the
accident to his child and likely to come on the scene; he did so and suffered damage from q
w hat he then saw. In Marshall v Lionel Enterprises (1971) 25 DLR (3d) 141 the wife came "
im m ediately on the badly injured body of her husband. And in Benson v Lee [1972] VR
879 a situation existed w ith some similarity to the present case. The m other was in her
h o m e 100 yards away, and, on communication by a third party, ran out to the scene of
the accident a n d there suffered shock. Your Lordships have to decide w hether or not to
validate these extensions.
5. A rem edy on account of nervous shock has been given to a m an w ho came on a
serious accident involving people immediately thereafter and acted as a rescuer of those
involved (Chadwick v British Transport Commission [1967] 2 All ER 945, [1967] 1 WLR
912). ‘Shock’ was caused neither by fear for him self nor by fear or horror on account of
a near relative. The principle o f‘rescuer’ cases was not challenged by the respondents and
ought, in m y opinion, to be accepted. But we have to consider whether, and how far, it f
can be applied to such cases as the present.
Throughout these developments, as can be seen, the courts have proceeded in the
traditional m a n n er of the com mon law from case to case, on a basis of logical necessity.
If a m other, w ith or w ithout accompanying children, could recover on account o f fear for
herself, how can she be denied recovery on account of fear for h e r 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 im mediate vicinity and runs to the child’s
assistance? If a w ife and m other 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
im m ediately rushes to the scene? (cf Benson vLee). I th in k that, unless the law is to draw
an arbitrary line at the point o f direct sight and sound, these argum ents require
acceptance of the extension mentioned above under principle 4 in the in terests o f justice. ,
If one continues to follow the process of logical progression, it is hard to see why the
present plaintiff also should not succeed. She was not present at the accident, but she
came very soon after on its aftermath. If, from a distance of some 100 yards (cf Benson v
Lee), she had found her family by the roadside, she w ould have come w ithin principle 4
above. Can it m a k e any difference that she comes on them in an ambulance, or, as here,
in a nearby hospital, w hen, as the evidence shows, they were in the same condition,
covered w ith oil and m ud, and distraught with pain? If M r Chadwick can recover when,
acting in accordance w ith normal and irresistible h u m an instinct, and indeed moral
com pulsion, he goes to the scene of an accident, may not a m other recover if, acting
u nder the same motives, she goes to where her family can be found?
I could agree that a line can be drawn above her ease with less hardship than would
have been apparent in Boardman's and H int’s cases, but so to draw it would not appeal to
m ost people’s sense of justice. To allow her claim may be, I think it is, on the m argin of
McLoughlin v O'Brian (Lord Wilberforce)
w hat the process o f logical progression would allow. But w here the facts are strong and
exceptional, and, as I think, fairly analogous, her ease ought, prim a facie, to be assimilated
to those which have passed the test.
To argife from one factual situation to another and to decide by analogy is a natural
tendency of the h u m a n and legal mind. But the lawyer still has to inquire w hether, in
so doing, he has crossed some critical line behind w hich he ought to stop. That is said to
be the present case. The reasoning by which the Lords Justices decided not to grant relief
to the plaintiff is in s tjA iv e . Both Stephenson and Griffiths LJJ accepted th a t th e ‘shock’
co the plaintiff was B ls e e a b le ; but from this, at least in presentation, they diverge.
Stephenson LJ considered that the defendants owed a d uty o f care to the plaintiff, but
that for reasons o f policy the law should stop short of giving her damages: it should limit
relief to those on or near the highway at or near the tim e of the accident caused by the
defendants’ negligence. He was influenced by the fact that the courts of this country,
and o f other com m on law jurisdictions, had stopped at this p o in t: it was indicated by the
barrier o f commercial sense and practical convenience. Griffiths LJ took th e view that,
although the injury to the plaintiff was foreseeable, there was no duty o f care. The duty
o f care o f drivers o f m otor vehicles was, according to decided cases, lim ited to persons and
owners o f property on the road or near to it who m ig h t be directly affected. The line
should be draw n at this point. It was not even in th e interest o f those suffering from
shock as a class to extend the scope of the defendants’ liability: to do so w ould qu ite likely
delay their recovery by im m ersing them in the anxiety o f litigation.
I am deeply impressed by both o f these argum ents, w hich I have only briefly
summarised. T hough differing in expression, iri the end, in m y opinion, the two
presentations rest on a com m on principle, namely that, at the margin, the boundaries o f
a m an ’s responsibility for acts of negligence have to be fixed as a m a tte r o f policy.
Whatever is the correct jurisprudential analysis, it does not m ake any essential difference
w hether one says, w ith Stephenson LJ, that there is a d uty but, as a m atter o f policy, the
consequences o f breach o f it ought to be lim ited at a certain point, or w hether, w ith
Griffiths LJ, one says that the fact that consequences m ay be foreseeable does not
automatically impose a duty of care, does not do so in fact w here policy indicates the
contrary. This is an approach which one can see very clearly from the way in w hich Lord
Atkin stated the neighbour principle in Donoghue v Stevenson [1932] AC 462 at 580,
[1932] All ER Rep 1 at 11: ‘. . . persons w ho are so closely and directly affected by m y act
that I ought reasonably to have them in contem plation as being so affected . . . ’
This is saying that foreseeability m ust be accompanied and lim ited by the law’s
ju dgm ent as to persons w ho ought, according to its standards o f value or justice, to have
been in contemplation. Foreseeability, w hich involves a hypothetical person, looking
w ith hindsight at an event which has occurred, is a form ula adopted by English law, not
merely for defining, but also for limiting the persons to w h o m d uty m ay be owed, and
the consequences for w hich an actor may be held responsible. It is not m erely an issue
o f fact to be left to be found as such. W hen it is said to result in a d uty o f care being owed
to a person or a class, the statement that there is a ‘du ty o f care’ denotes a conclusion into
the form ing o f which considerations o f policy have entered. That foreseeability does not
o f itself, and automatically, lead to a duty o f care is, I think, clear. I gave som e examples
in Anns v Merton London Borough [1977] 2 All ER 492 at 498, [1978] AC 728 at 752, Anns
itself being one. I may add what Lord Reid said in McKew v Holland &■ Hannen &■ Cubitts
(Scotland) Ltd [1969] 3 All ER 1621 at 1623: ‘A defender is not liable fo ra consequence of
a kind w hich is not foreseeable. But it does not follow that he is liable for every
consequence w hich a reasonable man could foresee.’
W e m u st then consider the policy argum ents. In doing so we m u st bear in m in d that
cases o f ‘nervous shock’ and the possibility o f claim ing damages for it are not necessarily
confined to those arising out o f accidents in public roads. To state, therefore, a rule that
recoverable damages m ust be confined to persons on or near the highw ay is to state not
a principle in itself b u t only an example of a m ore general rule that recoverable damages
m ust be confined to those within sight and sound o f an event caused b y negligence or,
at least, to those in close, or very close, proxim ity to such a situation.
The policy argum ents against a wider extension can be stated u n d er fo u r heads. First,