White and Others v. Chief Constable of South Yorkshire and Others

The House of Lords allowed the appeals and dismissed the actions by police officers who sought damages for psychiatric injury sustained as a result of the Hillsborough disaster. The court reaffirmed the established distinction between "primary" and "secondary" victims and the control mechanisms developed in Alcock v Chief Constable of South Yorkshire Police for secondary victims. It held that neither the contractual/employer relationship alone nor mere presence at or participation in the aftermath automatically converts police officers into primary victims entitled to recover for psychiatric injury. Rescue cases remain a recognised route to recovery but are strictly limited: a rescuer who objectively exposed himself to danger or who was involved in the immediate aftermath in particularly horrifying circumstances may recover, but the category cannot be extended so as to produce arbitrary distinctions between classes of claimant. The court rejected the proposal to introduce a new global control requiring foreseeability of physical injury as a prerequisite for recovery for psychiatric harm by primary victims.

The appellants (the Chief Constable and others) appealed against the Court of Appeal's decision allowing claims by a number of South Yorkshire police officers who alleged post-traumatic stress disorder arising from their involvement in the aftermath of the Hillsborough stadium disaster on 15 April 1989. The officers sued in negligence, relying alternatively on (i) duties analogous to employer's liability (the Chief Constable's duty to take reasonable care for officers deployed on duty) and (ii) the special category of rescuers. The trial judge (Waller J.) had dismissed the claims; the Court of Appeal (Rose and Henry L.JJ., Judge L.J. dissenting) allowed some of the appeals. Leave to appeal to the House of Lords was granted.

The House framed the main issues as:

• whether police officers on duty could recover for psychiatric injury simply by virtue of their employment-like relationship with the Chief Constable;
• whether police officers who assisted at the scene or in the aftermath were "rescuers" and so entitled to recover;
• the continued relevance and scope of the primary/secondary victim distinction (Page v. Smith and Alcock), including the role of foreseeability, the "reasonable fortitude" test and hindsight; and
• whether a new control mechanism requiring foreseeability of physical injury as a prerequisite for recovery by primary victims should be imposed.

The Lords analysed precedent (notably Alcock, Page v. Smith and Chadwick) and policy considerations. They concluded that employer/employee status does not displace the general negligence controls and does not by itself make an employee a primary victim able to recover for psychiatric injury where the established control mechanisms for secondary victims would otherwise apply. Rescuer claims remain possible but are necessarily confined to those who are participants in the rescue or the immediate aftermath and — in most cases — who were exposed to or reasonably apprehended physical danger, or where the nature and immediacy of the horror made psychiatric illness foreseeable. The House declined to create a further broad control requiring foreseeability of physical injury in all primary victim cases. The appeals were allowed: the police claimants were, on the legal principles applied, not entitled to the damages they sought. The House remitted factual issues of causation to a trial judge where necessary.

Appeal allowed. The House held that police officers are not entitled, merely by virtue of their employment-like relationship, to recover for psychiatric injury unless the ordinary tort principles governing psychiatric harm are met; rescuers may recover in narrow and exceptional circumstances but the category cannot be extended so as to create arbitrary distinctions; no new control mechanism requiring foreseeability of physical injury for primary victims should be imposed. Accordingly the actions were dismissed and causation (if relevant) was to be remitted to a trial judge.

First instance: trial before Waller J., who dismissed the claims. Court of Appeal: appeals allowed by a majority (Rose and Henry L.JJ.), Judge L.J. dissenting; reported at [1997] 3 W.L.R. 1194. House of Lords: appeals allowed and actions dismissed, [1998] UKHL 45.