England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE 97/0522/C

(Sir William Macpherson of Cluny)

Royal Courts of Justice

Thursday, 14th May 1998

Before:

LORD JUSTICE HIRST

LORD JUSTICE HUTCHISON

LORD JUSTICE THORPE

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PETER NOBES Appellant

THE CHIEF CONSTABLE OF WEST YORKSHIRE POLICE

-v-

LYNNE SCHOFIELD

Respondent

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(Transcript of the Handed Down Judgment of

Smith Bernal Reporting Limited

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MR. S. BROWN Q.C. and MR. D. MITCHELL (instructed by A.K. Hussein, Solicitor for the West Yorkshire Police) appeared on behalf of the Appellant.

MR. B. NOLAN Q.C. and MR. D. HALL (instructed by Messrs Russell Jones & Walker, Leeds) appeared on behalf of the Respondent.

APPROVED JUDGMENT

Crown Copyright

Lord Justice Hutchison: On 28th September 1989 the respondent, Mrs. Schofield, then a police constable in the West Yorkshire Police Force, went in the course of her duties to a house in Huddersfield because a Mrs. Hodgson had reported finding four guns there. The house belonged to Mrs. Hodgson’s elderly uncle and Mrs. Hodgson and her mother, Mrs. King, had found the guns while engaged in tidying up. Mrs. Schofield was accompanied by Acting Sergeant Dodding. At the house Mrs. King gave into Mrs. Schofield’s hands a Beretta handgun, which she passed to Sergeant Dodding. He picked up and then put down a 1914 service revolver. He then picked up a Colt Eley revolver and, pointing it into some folded bedding materials, pulled the trigger six times. The revolver was loaded with six rounds of ammunition, three of which were discharged, passing through the bedding and the bed and doing some damage to the floor and the ceiling beneath. The other three rounds were not detonated.

Sergeant Dodding had uttered no warning of his intention to perform this extraordinary and admittedly unlawful and inexcusable action but Mrs. Schofield, who was standing in the room by the foot of the bed within a few feet of him, appreciating a second or so before the first shot what the Sergeant was about to do, extended her hands backwards in what seems to have been a protective gesture towards Mrs. Hodgkin and Mrs. King, who were standing close behind her. She said in evidence more than once that she herself did not at the time feel in any fear or danger, but that her ears rang from the noise and that she felt numb and shocked by the Sergeant’s act, which she regarded as unbelievable and unprofessional.

Subsequently Mrs. Schofield, according to evidence which the judge accepted, developed post-traumatic stress disorder which resulted in her having to leave the police force, and brought a claim for damages against the Chief Constable of the West Yorkshire force, alleging negligence by Sergeant Dodding for which the Chief Constable was vicariously liable. It was admitted that the Sergeant’s actions were unauthorised and unlawful and the real issues at the trial were (1) whether what he did gave rise to a foreseeable risk of injury; (2) if so whether the plaintiff’s psychiatric injury resulted from his actions; and, if so (3) whether as a matter of law the plaintiff, who had suffered no immediate physical injury, was entitled to recover damages for her psychiatric injury.

The following were the material findings of fact made on 28th February 1997 by the judge, Sir William MacPherson of Cluny sitting as deputy judge of the High Court:

1. The circumstances of the occurrence were as I have described them.

2. Sergeant Dodding’s action in firing the gun as he did gave rise to a danger of physical injury or even death to those in the room. It is implicit, in my view, that the judge found that that action was negligent.

3. At the material time the plaintiff was acting in the course of her duties as a police officer and was engaged jointly with Sergeant Dodding in collecting and removing the guns from the house.

4. The plaintiff was thus a participant in the incident giving rise to her alleged injury.

5. That injury was in fact caused by Sergeant Dodding’s actions.

The judge held that these findings entitled Mrs. Schofield to damages against the Chief Constable on the basis of his vicarious liability for the Sergeant’s negligence and awarded damages of £151,000. Against that order the Chief Constable appeals, contending that the judge’s decision on liability was erroneous: there is no challenge in relation to the assessment of damages. By the Notice of Appeal it is contended that the judge’s finding that the plaintiff was suffering from some legally compensatable psychiatric injury attributable to the appellants’ fault was against the weight of the evidence and/or wrong in law for nine particular reasons, namely:

1. If his finding was that the plaintiff was suffering from shock induced

post-traumatic stress disorder, that was against the weight of the evidence; alternatively

2. the judge failed to make a finding on these matters, and was accordingly wrong in holding that the plaintiff was entitled to recover damages.

3. The judge was wrong to characterise the plaintiff as a primary victim.

4. If the judge found that the plaintiff was at any foreseeable risk of physical injury, that finding was against the weight of the evidence.

5. He was wrong to conclude that, on the facts of this case, foreseeability of physical injury sufficed to entitle the plaintiff to recover for psychiatric injury (said in this ground to have been unforeseeable).

6. The judge failed to consider whether there was a foreseeable risk of psychiatric injury (which this ground asserts there was not) when foreseeability of psychiatric injury was a prerequisite to liability.

7. He failed to consider, properly or at all, the plaintiff’s previous psychological condition, in particular whether she had been a person of ordinary fortitude.

8. The judge wrongly attached importance to the relationship between the defendant and the plaintiff being one analogous to that of master and servant, which he should not have done particularly when the act complained of was one of a fellow employee rather than of the defendant himself.

9. The judge should have held that the plaintiff was a mere bystander who witnessed an incident which gave rise to no foreseeable risk of and did not cause any psychiatric injury, and was accordingly not entitled to recover.

It is convenient, because it is a distinct point which can be dealt with quite shortly, to consider first the argument of Mr. Brown Q.C. that the judge erred in finding that physical injury was not reasonably foreseeable. He described it as his worst point and, whether or not he was right in saying that, it is in my view certainly one that should be rejected. Mr. Brown, recognising that there was uncontradicted evidence from the firearms expert called for the plaintiff, Mr. Spencer and his own witness Sergeant Robertson, a trained firearms officer, that there were risks of physical injury, suggested that the judge’s error was in never applying his mind to what was the relevant question, namely what a reasonable man in the position of Sergeant Dodding (not himself a firearm’s expert) would have thought.

It is true that, in the passage in his judgment in which the judge dealt with the question of foreseeability of injury, he did not in terms state that the issue involved the perceptions of a reasonable man in the Sergeant’s position. However, I am confident both that he must have had that in mind, having no doubt been addressed by counsel about it, and also that the evidence before him established that a reasonable man in Sergeant Dodding’s position would have appreciated the risk of physical injury. It is only necessary to quote three passages from the evidence of Sergeant Robinson. In evidence in chief when asked about his perception of the state of mind of the plaintiff on her return to the police station, he said:

"I found myself being in a position of disbelief as to what had taken place and I considered that her condition at the time was similar to my own; some kind of disbelief as to what had taken place.... [I shared her disbelief because it was obviously a very irregular thing to have done]"

In cross-examination he said:

"That [i.e. total surprise and disbelief at what Sergeant Dodding had done] is the impression that I got, and the impression was her dismay was the same as my own...... I honestly could not believe that an officer of such standing and experience had done what I had been told had taken place."

Later he said:

"The stupidity initially lay in the fact that he picked them up and started touching them and using the weapons when he [was unauthorised to do so]. It was compounded by the fact that he went ahead and then fired the gun in the house.

Q: What was the danger of that, in your opinion?

A: Well, there are any number of possibilities that may have taken place by firing a gun in a house.... you have got to consider range, ricochet, penetration and a number of other options which may have occurred.... It had posed a danger to anybody who was in the room."

In my view Sergeant Robinson was not talking about what only an expert would have foreseen and realised, but about what someone in the position of Sergeant Dodding would have foreseen and recognised. As the judge, having referred to Sergeant Robinson’s and Mr. Spencer’s evidence, observed (13F):

"There is really only evidence one way in this case, namely that there was a likelihood of injury being caused if a gun was fired in a confined space. That can be tested by ordinary common sense. If a gun is fired down through a bed, on to a hard floor, there must be a risk, as Mr. Spencer indicated to me, of the bullet hitting either a floorboard or a metal projection from the bed and flying off in any direction, so that as to the foreseeability of risk I am persuaded that the evidence shows that that is established by the plaintiff."

I accordingly reject this ground of appeal.

Before going on to consider the main argument I should also state that, if and insofar as the grounds of appeal contain an assertion that the judge was wrong to accept that the plaintiff had sustained psychiatric damage as a result of the actions of Sergeant Dodding, Mr. Brown accepted that that was a contention he could not realistically pursue. He did however, rather faintly, question whether the judge made a finding that her condition was shock-induced. In my view such a finding is plainly implicit in the judgment.

Mr. Brown’s central submission, and the one on which I consider that his entire case on this appeal depends, is that the judge was in error in making the finding that Mrs. Schofield was a participant: the only proper finding would have been that she was no more than a mere spectator or bystander as, he submits, were Mrs. Hodgson and Mrs. King. The reason the submission is crucial is that, if the judge was entitled to characterise Mrs. Schofield as a primary victim, his findings (i) that physical injury to her was reasonably foreseeable and (ii) that Sergeant Dodding’s negligent act in fact caused her psychiatric injury, were sufficient to entitle her to succeed in her claim for damages, whether or not her psychiatric injury was a reasonably foreseeable consequence of that act; and irrespective of the fact that Mrs. Schofield in fact suffered no purely physical injury.

In my judgment the present is not a case which calls for a wide-ranging review of the authorities on liability for negligently caused psychiatric injury or nervous shock, now more commonly referred to as post traumatic stress disorder. This is because it depends very much on findings of fact by the judge which in my view are not open to challenge on appeal (with some of which I have already dealt): and in particular because it is not, when properly understood, a case of psychiatric injury caused by fear for the victim’s own safety or that of other persons when witnessing an horrific accident. The plaintiff was not a secondary victim of injury or the imminent threat of injury to another or through fear for her own safety when a witness to events causing such injury or threat of injury. She was, on the judge’s findings, involved in what was going on in the small bedroom in which she and Sergeant Dodding were engaged in taking possession of the firearms the presence of which in the house was the reason for their both being there. The case is, in my view, covered by the House of Lords authorities of Alcock v Chief Constable of Yorkshire [1992] 1 AC 310 and, particularly, Page v Smith [1996] AC 155.

It is important to have clearly in mind what was the subject matter of each of those cases and what it is that, factually, distinguishes one from the other. Alcock’s case was the first of those arising out of the Hillsborough disaster. The plaintiffs were all relatives or friends of spectators involved in the disaster. None of the plaintiffs had himself been within the area of physical danger, and none asserted that he had , though not in fact within that area, reasonably believed that he was. The case therefore involved two main questions - (1) the width of the category of persons who, on policy grounds, should be recognised as entitled to recover damages for psychiatric injury sustained as a result of shock occasioned by injury to others and (2) the circumstances in which persons within that category were entitled to recover for such psychiatric injury. The trial, which had been on the issue of liability, originally resulted in ten of the sixteen plaintiffs succeeding. The defendant appealed in nine of those ten cases and the six unsuccessful plaintiffs appealed. All the plaintiffs failed in the Court of Appeal, as did the ten who appealed to the House of Lords. The two questions mentioned above were answered as follows. (1) The class of persons who might maintain such a claim was not limited by particular relationships such as husband and wife or parent and child but was based as ties of love and affection and (2) a plaintiff who fell within that class (a question of fact in each case) had additionally to establish a sufficient proximity in time and space to the event giving rise to the psychiatric injury or its immediate aftermath. Insofar as the case of Alcock is material to the present case it is the answer to the second question which is important. It is to the speech of Lord Oliver of Aylmerton that reference is most frequently made, and it is there that the concept of a primary and secondary victim has its origin. I cite the well-known passage to be found at page 406H:

"There is, to begin with, nothing unusual or peculiar in the recognition by the law that compensatable injury may be caused just as much by a direct assault upon the mind or the nervous system as by direct physical contact with the body. This is no more than the natural and inevitable result of the growing appreciation by modern medical science of recognisable causal connections between shock to the nervous system and physical or psychiatric illness. Cases in which damages are claimed for directly inflicted injuries of this nature may present difficulties of proof but they are not, in their essential elements, any different from cases where the damages claimed arise from direct physical injury and they present no very difficult problems of analysis where the plaintiff has himself been directly involved in the accident from which the injury is said to arise. In such a case he can be properly said to be the primary victim of the defendant’s negligence and the fact that the injury which he sustains is inflicted through the medium of an assault on the nerves or senses does not serve to differentiate the case, except possibly in the degree of evidentiary difficulty, from a case of direct physical injury.

It is customary to classify cases in which damages are claimed for injury occasioned in this way under a single generic label as cases of “liability for nervous shock”. This may be convenient but in fact the label is misleading if and to the extent that it is assumed to lead to a conclusion that they have more in common than the factual similarity of the medium through which the injury is sustained - that of an assault upon the nervous system of the plaintiff through witnessing or taking part in an event - and that they will on account of this factor, provide a single common test for the circumstances which give rise to a duty of care. Broadly they divide into two categories, that is to say, those cases in which the injured plaintiff was involved, either mediately or immediately, as a participant, and those in which the plaintiff was no more than the passive and unwilling witness of injury caused to others. In the context of the instant appeals the cases of the former type are not particularly helpful, except to the extent that they yield a number of illuminating dicta, for they illustrate only a directness of relationship ( and thus a duty) which is almost self-evident from a mere recital of the facts."

The present case, on the judge’s finding was within Lord Oliver’s first category, whereas all the plaintiffs in Alcock fell within the second category, as his concluding words show. The class with which Alcock was concerned was, however, one where (if only by reason of the definition of the category of persons capable of falling within it) there would seldom if ever be difficulties in relation to foreseeability of psychiatric injury, assumed in that case to be a necessary prerequisite to establishing liability in all cases of psychiatric injury which was not consequent upon physical injury. That assumption was shown to be incorrect by the later decision in Page v Smith .

In the latter case the plaintiff was a driver who was involved in a collision of only moderate severity with the defendant’s vehicle. The defendant’s negligence was the cause of the accident. The plaintiff received no physical injury nor did he assert fear for his own safety or that of his passenger, who was also uninjured. He had, however, a vulnerable personality because he had in the past suffered chronic fatigue syndrome which as a result of the accident recurred and became permanent. The judge, Otton J., found in his favour but the Court of Appeal reversed that decision on the ground that the psychiatric injuries were not a reasonably foreseeable consequence of the defendant’s negligence. The House of Lords by a majority of three to two restored the judgment of Otton J. on grounds which, in agreement with the submissions of Mr. Norton Q.C. for the respondent, I consider have direct relevance to the present case. Lord Ackner and Lord Browne-Wilkinson, while making relatively brief observations of their own, agreed with the reasoning of Lord Lloyd of Berwick.

Lord Lloyd pointed out (184B) that, unlike the claimants in Alcock’s case, the plaintiff was a participant, “directly involved in the accident and well within the range of foreseeable physical injury”. He referred to Lord Oliver’s distinction between primary and secondary victims and, approving what he characterised as “the simplicity of the judge’s approach”, went on to state the relevant principles as follows (187E):

"Foreseeability of psychiatric injury remains a crucial ingredient when the plaintiff is the secondary victim, for the very reason that the secondary victim is almost always outside the area of physical impact, and therefore outside the range of foreseeable physical injury. But where the plaintiff is the primary victim of the defendant’s negligence, the nervous shock cases, by which I mean the cases following on from Bourhill v Young , are not in point. Since the defendant was admittedly under a duty of care not to cause the plaintiff foreseeable physical injury, it was unnecessary to ask whether he was under a separate duty of care not to cause foreseeable psychiatric injury."

Then, after a number of paragraphs in which he commended his view as having the additional attraction of ensuring that the law did not limp too far behind medical science (where the “distinction between physical and psychiatric injury, which may already seem somewhat artificial.... may soon be altogether outmoded”) Lord Lloyd said:

"Liability for physical injury depends on what was reasonably foreseeable by the defendant before the event. It could not be right that a negligent defendant should escape liability for psychiatric injury just because, though serious physical injury was foreseeable, it did not in fact transpire. Such a result in the case of a primary victim is neither necessary, logical nor just. To introduce hindsight into the trial of an ordinary running-down action would do the law no service."

Lord Lloyd went on to consider whether the judge’s approach would open the door too wide and encourage bogus claims. That was, he said, a very important consideration in claims by secondary victims, which accounted for the court’s insistence on policy grounds on there being a number of control mechanisms, to which he referred (mentioning Lord Keith’ speech in Alcock and the judgment of Stuart-Smith L.J. in McFarlane v EE Caledonia Ltd. [1994] 2 All ER 1 (to which of course we were referred). He continued:

"None of these mechanisms are required in the case of a primary victim. Since liability depends on foreseeability of physical injury, there could be no question of the defendant finding himself liable to all the world. Proximity of relationship cannot arise, and proximity in time and space goes without saying.

Nor in the case of a primary victim is it appropriate to ask whether he is a person of “ordinary phlegm”. In the case of physical injury there is no such requirement. The negligent defendant, or more usually his insurer, takes him victim as he finds him. The same should apply in the case of psychiatric injury. There is no difference in principle, as Geoffrey Lane J. pointed out in Malcolm v Broadhurst [1970] 3 All ER 508, between an eggshell skull and an eggshell personality. Since the number of potential claimants is limited by the nature of the case, there is no need to impose any further limit by reference to a person of ordinary phlegm. Nor can I see any justification for doing so."

There follows in Lord Lloyd’s speech a review of authority, which satisfied him that the contrary view of the Court of Appeal was wrong. He also said

(a conclusion articulated still more positively by Lord Ackner) that the Court of Appeal, in Page, had been “wrong to find that psychiatric illness is some form was not a foreseeable consequence of the accident in a person of normal fortitude”. But, he said, “I do not regard that as the relevant test” He then summarised his views in the form of five propositions:

"In conclusion, the following propositions can be supported.

1. In cases involving nervous shock, it is essential to distinguish between the primary victim and secondary victims.

2. In claims by secondary victims the law insists on certain control mechanisms, in order as a matter of policy to limit the number of potential claimants. Thus, the defendant will not be liable unless psychiatric injury is foreseeable in a person of normal fortitude. These control mechanisms have no place where the plaintiff is the primary victim.

3. In claims by secondary victims, it may be legitimate to use hindsight in order to be able to apply the test of reasonable foreseeability at all. Hindsight, however, has no part to play where the plaintiff is the primary victim.

4. Subject to the above qualifications, the approach in all cases should be the same, namely, whether the defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury, whether physical or psychiatric. If the answer is yes, then the duty of care is established, even though physical injury does not, in fact, occur. There is no justification for regarding physically and psychiatric injury as different “kinds of damage”.

5. A defendant who is under a duty of care to the plaintiff, whether as primary or secondary victim, is not liable for damages for nervous shock unless the shock results in some recognised psychiatric illness. It is no answer that the plaintiff was predisposed to psychiatric illness. Nor is it relevant that the illness takes a rare form or is of unusual severity. The defendant must take his victim as he finds him"

These, as Sir William MacPherson recognised, are the principles applicable to the present case, in the light of which I find it impossible to accept Mr. Brown’s argument that the judge was wrong to hold that Mrs. Schofield was a primary victim. Once he had found that her condition was post traumatic stress disorder brought about by Sergeant Dodding’s firing of the gun and that Sergeant Dodding should have foreseen the possibility of physical injury to her, a decision in favour of the plaintiff was, I consider, inevitable, since her case (though factually very different) was in terms of legal analysis closely analogous to Page v Smith . The relationship between herself and Sergeant Dodding was one of sufficient proximity - they were fellow “employees” engaged jointly on carrying out a task which their “employer” required them to undertake; he acted, by firing the gun, in a way which he knew or ought to have known exposed her to the risk of physical injury; and as a consequence - albeit possibly because she may have had a psychologically vulnerable personality - she suffered psychiatric damage.

Mr. Brown, relying on McFarlane v EE Caledonian Ltd. , argued that to qualify as a primary victim the plaintiff had to show that she had been in fear of physical injury to herself. He relied on a passage in the judgment of Stuart-Smith L.J. at page 101 where the learned Lord Justice formulated what he considered were the “three situations in which a plaintiff may be a participant when he sustains psychiatric injury through fear of physical injury to himself”. I need not cite them - they are, in summary, a person in the actual area of danger who escapes physical injury by good fortune; a person not in that area but who reasonably believes that he is; and a rescuer. Mr. Brown accepted, however, that this formulation was not exhaustive, and I would reject Mr. Brown’s argument which seems to me to be founded on a misapprehension of what Stuart-Smith L.J. said. As his introductory words show, he was seeking to identify the situations in which a plaintiff may be a participant when he sustains psychiatric injury through fear of physical injury to himself . He was not saying that fear of physical injury to himself was in every case a necessary prerequisite to being regarded as a participant in the event which is said to have caused psychiatric but not direct physical injury. Not only is Page authority against Mr. Brown’s submission, but so also is the decision of this court in McFarlane v Wilkinson & another and Hegarty v E.E. Caledonia Ltd. [1997] 2 Lloyds R 259 where, at 266, Brooke L.J. said:

"The other way in which a plaintiff as a primary victim can now recover damage for psychiatric injury not associated with physical injury will arise if he or he can bring the case within the parameters identified by the House of Lords in Page v Smith [1996] 1 AC 155. To succeed on this test a plaintiff must in fact be directly involved in the “accident” in question and well within the range of foreseeable physical injury (per Lord Lloyd of Berwick at page 184 B)”."

Mr. Brown, however, made another submission based on the passage just cited, in particular the word “and” in the second sentence. This he argued is to be understood conjunctively, so that in to qualify as a primary victim the plaintiff whose psychiatric injury is not caused by fear for his own safety must show both that he was directly involved in the accident and that that he was well within the range of foreseeable physical injury. This argument (1) does not meet the objection I have voiced as to Mr. Brown’s interpretation of Stuart-Smith L.J’s words in McFarlane v E.E. Caledonia Ltd. and (2) attributes to Brooke L.J. an intention in the cited passage to lay down a restrictive formula which, in the light of the words in Lord Lloyd’s speech which he must have had in mind, I doubt if he intended to do. Lord Lloyd said:

"In all these cases the plaintiff was the secondary victim of the defendant’s negligence. He or she was in the position of a spectator or bystander. In the present case, by contrast, the plaintiff was a participant. He was himself directly involved in the accident, and well within the range of foreseeable physical injury. He was the primary victim. This is thus the first occasion on which your Lordships have had to decide whether in such a case, the foreseeability of physical injury is enough to enable the plaintiff to recover damages for nervous shock."

(See in this connection the decision of the Court of Appeal in Young v Charles Church (Southern) Ltd., The Times 1st May 1997 - Court of Appeal Transcript 24.4.97.)

However, assuming that, in cases where fear for his own safety is not advanced as the cause of psychiatric damage unaccompanied by physical damage, it is necessary for the plaintiff to establish that he was himself directly involved in the “accident” and that he was at risk of physical injury, I consider that on the judge’s findings Mrs. Schofield had established both of those requirements. Involved in the “accident” cannot mean “involved in the act of negligence which caused the damage”. It must surely be understood to be a reference to being involved in the very event in the course of which the negligent act relied on occurs: that is what is to be contrasted with being a bystander. In Young’s case the plaintiff who had just turned away to go and fetch another pole after handing one scaffold pole to his fellow employee, who received an electric shock when he raised it to the vertical was held (by a majority) to be a participant: and I would similarly hold that Mrs. Schofield, taking part as she was with her colleague in collecting the guns, was a participant. I observe that in argument Mr. Brown accepted that the decision in Young’s case was correct on the facts, because “the plaintiff was plainly a participant”.

My conclusion that the judge was correct in holding that Mrs. Schofield was a participant and not a secondary victim disposes of all the remaining grounds of appeal, in the sense that they do not arise for consideration. I do not in the circumstances propose to say anything about the plaintiff’s alternative case based on her status as am employee and the decision in Frost & others v Chief Constable of South Yorkshire Police & others [1997] 1 All E.R. 540.

I would accordingly dismiss this appeal.

I agree.

I also agree.

Order: Appeal dismissed; orders as per agreed minute of order