Scottish Court of Session Decisions

The cause called before the First Division, comprising the Lord President (Hope), Lord Allanbridge and Lord Cowie, for a hearing.

At advising, on 2 March 1995—

LORD PRESIDENT (Hope)—The pursuers in these two actions of damages have reclaimed against the interlocutors of the temporary Lord Ordinary by which, after a proof before answer, he granted decree of absolvitor. The actions arose out of a tragic accident which occurred on the Forth Road Bridge on 29 January 1989. The pursuers and a workmate named George Smith were working together in the course of their employment with the defenders, whose function is to maintain and operate the bridge. The winds were blowing at gale force during their shift that day. The accident occurred while the men were in the course of removing a large thin piece of metal sheeting which had been found lying on the south-bound carriageway. It was being taken off the bridge on the open platform of a Ford Transit pick-up van. Smith was sitting on the top of the metal sheet on the back of the van, Robertson was driving the van and Rough was following a few feet behind in a small patrol van which he was driving. In the course of their journey to the south end of the bridge a sudden and violent gust of wind caused the sheet and Smith to be thrown violently off the back of the van and over the side of the bridge. This occurred close to the main southeast tower where the carriageway is high above the water, and no one who fell that distance could be expected to survive. As it happened Smith fell only a few feet on to a girder below the carriageway, but he was killed by the force of the impact.

Robertson and Rough claimed to have suffered nervous shock as a result of witnessing the accident. The Lord Ordinary held that there was no duty of care arising out of the relationship between the pursuers and the deceased in these circumstances and that there was thus no relevant basis upon which the defenders could be held liable to them in damages. It is against that decision that the pursuers have now reclaimed. As the actions were heard together, these reclaiming motions were heard together also and the views which I express in this opinion relate to both actions.

Cases of nervous shock, or of psychiatric illness as this type of injury has been described more accurately in the recent authorities, raise questions of unusual difficulty for the court. But there is now no doubt, as Lord Wilberforce pointed out in McLoughlin v O'Brian at p 418C, about the legitimacy in principle of claims for damages for an illness of this character. In Bourhill v Young at p 83 Lord Thankerton said, in regard to the range of duty of a motorcyclist on the public road towards other passengers on the road: ‘Clearly this duty is to drive the cycle with such reasonable care as will avoid the risk of injury to such persons as he can reasonably foresee might be injured by failure to exercise such reasonable care. It is now settled that such injury includes injury by shock, although no direct physical impact or lesion occur.’

In McLoughlin v O'Brian at p 418B Lord Wilberforce observed that it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind and that there may thus be produced what is as identifiable an illness as any that may be caused by direct physical impact. He went on at pp 421H-422B, however, to say that, although some of the fears about the consequences of recognising that there is a duty of care to avoid causing another to suffer an illness of this kind could be discounted, there remained, 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’.

In the present case we are concerned with the question whether the pursuers are within the class of persons whose claims should be recognised. The issue of proximity in the sense used by Lord Wilberforce in that passage does not arise, because it is clear that the pursuers were both present at the time of the accident. Rough saw it happen and Robertson was driving the van from which Smith was blown off the bridge. As to the means, questions were raised in the course of the argument as to whether the pursuers had established that their psychiatric illness was caused at all by Smith's accident, which the defenders admit was the result of their fault and negligence. I shall return to this point at a later stage in this opinion. In regard to the class of persons, it is important to note that we are not dealing here with the ordinary case of a direct physical injury suffered by these two workmen. Nor are we dealing with a case where the psychiatric illness is said to have been caused by their being exposed themselves to the risk of death or serious injury. Neither of them are said to have been exposed to that risk at any stage in the operation which led to Smith's death. Their case is that their psychiatric illnesses were caused by the fact that they witnessed Smith's accident. That is the way in which the case is pled in the last sentence of art 3 of the condescendence in both actions.

In Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at p 396H Lord Keith of Kinkel said of this type of case, which he described as that of a secondary sort of injury brought about by the infliction of physical injury, or the risk of physical injury, upon another person that, in addition to reasonable foreseeability, liability for injury in the particular form of psychiatric illness must depend also upon a requisite relationship of proximity between the claimant and the party said to owe the duty. He referred to the description by Lord Atkin in Donoghue v Stevenson at p 44 of those to whom a duty of care is owed as being ‘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’. He continued at p 397B-C: ‘The concept of a person being closely and directly affected has been conveniently labelled "proximity", and this concept has been applied in certain categories of cases, particularly those concerned with pure economic loss, to limit and control the consequences as regards liability which would follow if reasonable foreseeability were the sole criterion. As regards the class of persons to whom a duty may be owed to take reasonable care to avoid inflicting psychiatric illness through nervous shock sustained by reason of physical injury or peril to another, I think it sufficient that reasonable foreseeability should be the guide."

I think that Lord Oliver of Aylmerton at p 406G-H was indicating his acceptance of this approach, when he said of the question whether the defendant owed any duty in tort to the plaintiff to avoid causing the psychiatric illness of which each of them complained:

"In essence this involves answering the twin questions of (a) whether injury of this sort to each particular plaintiff was a reasonably foreseeable consequence of the acts or omissions constituting the breach of duty to the primary victim and (b) whether there existed between the defendant and each plaintiff that degree of directness or proximity necessary to establish liability.’

It is now necessary, in the light of this background of authority, to look more closely at the facts and circumstances of the accident. The following description of it has been given by the Lord Ordinary, based on what the pursuers said in their evidence.

‘The deceased, Mr George Smith, and the two pursuers were in general terms responsible for patrolling the Forth Road Bridge. On 29 January 1989 the two pursuers and the deceased were engaged in "

doubling-up" commercial vehicles passing over the bridge because of gale-force winds. At about 10.30 am Derek Rough noticed a large thin piece of metal sheeting lying on the south-bound carriageway. As he was driving a small van which could not accommodate the metal sheet, he passed a message by radio to his control centre at the south end of the bridge. Shortly afterwards, Arnott Robertson and the deceased George Smith arrived in a Ford Transit pick-up truck which consisted of an enclosed cabin and an open platform surrounded by side-gates and a tail-gate at the back. Derek Rough positioned his van behind the metal sheet and directed traffic. Arnott Robertson and George Smith loaded the metal sheet on to the transit van, where, because of its size, one side of the sheet was lodged against the inside of the nearside side-gate of the van, but the other side of the metal sheet rested on top and protruded over the offside side-gate. George Smith then sat on top of the metal sheet and the two vehicles, driven respectively by the pursuers, began the return journey to the south side of the bridge. As they did so, a sudden violent gust of wind caused the sheet and George Smith to be thrown violently off the back of the transit van and over the side of the bridge. The deceased landed on a girder below the level of the bridge and was found to be dead when he was reached by other workmates a few minutes alter. At the time of the accident Arnott Robertson heard a loud bang and immediately stopped the transit van. He got out of the vehicle and went to the rear where he saw what had happened to Mr Smith. Mr Rough was following a few feet behind the transit van and witnessed the accident to Mr Smith as it happened.’

From this account it is clear that the three men each had a different part to play in the incident. It was Rough who first saw the obstruction on the carriageway. He called by radio for assistance and in his evidence he said that he asked for Robertson and Smith by name to come out in the pick-up van. Thereafter he took responsibility for directing traffic and he was not involved in the operation of removing the sheeting from the carriageway and loading it into the van. He was an eyewitness to the accident, as he saw it all happen from the front seat of his van only a few yards away. Robertson helped Smith to lift the sheeting from the carriageway and to place it into the rear of the pick-up van. They closed the pick-up and Smith then sat on the sheet in the back of the vehicle. Robertson was in the driving seat in the enclosed cabin of the van when the accident occurred. It is clear also that nothing done either by Robertson or by Rough could be said to have been the cause of Smith's death. It was the force of the wind, not any action taken or not taken by both or either of them, which threw him off the van and over the side of the bridge. While they were all part of the same team and were working together in the course of their employment, Robertson and Rough were there as bystanders or witnesses to the accident. They did not take any part in the physical mechanism which threw Smith from the van.

The Lord Ordinary gives this account of the relationship between the pursuers and the deceased and of the psychiatric illness from which they both suffered after the accident.

‘Arnott Robertson, who is fifty-six years of age, and a cooper to trade, had known George Smith for many years. Although he was ten years older than the deceased, they had spent the greater part of their respective working lives together, both as coopers in a local distillery and as bridge workmen. They had often walked to and from work together and went for a drink once a week. Mr Robertson was greatly distressed at the time of the accident. He required medical treatment immediately thereafter. As time passed his personality and domestic life were upset and he became irritable and withdrawn. His marriage was affected and he attended a psychiatrist. Eventually he gave up his job on the bridge in January 1990 because of the accident. Derek Rough is forty-four and knew the deceased simply as a colleague for a few years. As a result of witnessing the accident, he too suffered a considerable nervous shock which resulted in psychiatric distress. He had nightmares after the incident and required psychiatric assistance. His marriage was badly affected, although relations with his wife are now restored. In the course of his employment he lost his temper with members of the public and became moody and withdrawn. He was treated with anti-depressant drugs.’

The Lord Ordinary was not persuaded that the relationship between the pursuers and Smith was sufficiently proximate to satisfy what he took to be the essential test in cases of this kind, namely whether it was foreseeable that the negligence of the defenders in causing physical injury to one party would also cause psychiatric injury to the pursuers in consequence of the accident. He noted that in Alcock v Chief Constable of South Yorkshire Lord Keith at p 397C-F and Lord Ackner at p 403F-H referred to the category of persons to whom the duty is owed as that which involved such ties of love and affection, established on the evidence, that foreseeably will cause psychiatric injury consequent on nervous shock negligently suffered following the injury to the third party. He understood the requirement to be that the relationship between the claimant and the deceased or injured party must be of the sort that is found within the closest ties of friendship or family. He said that it was plain on the evidence in this case that, notwithstanding their genuine and understandable feelings about what happened, the pursuers were distinctly not in the category of persons bound to the deceased by the closest emotional ties described in Alcock. Nor was he able to say that they should be regarded as having participated in the accident. In his opinion they were simply witnesses and there appeared to him to be no authority to suggest that the fact that they were also in the category of co-workmen who were employed in the same operation as the deceased qualified them for any special consideration in this matter.

Counsel for the pursuers submitted that the Lord Ordinary had failed to attach sufficient importance to the fact that all three men were employed by the defenders at the time of the accident. They had all been acting in the course of their employment and they were all engaged together on the actual task of removing the obstruction from the carriageway. Each man had a separate part to play, but this was as part of a joint operation. It was not in doubt that the defenders owed a duty to all three men, as their employees, to take reasonable care for their safety while they were carrying out the task of removing such obstructions. The defenders had admitted that they failed in their duty to take reasonable care for Smith's safety, as a result of which the task of removing the obstruction went horribly wrong. Had the pursuers also sustained physical injury in the course of the same operation, the defenders would also have been liable to them in damages. So the pursuers were clearly within the ambit of the duty of care which the defenders owed to all three men in which, in regard to Smith's accident, they had clearly failed. It was not suggested that the pursuers' friendship for Smith wold have been sufficient on its own to bring them within the ambit of that duty so far as their claim for psychiatric illness was concerned. The point which they sought to develop under reference to the decided cases was that, as they were all engaged on the same task in the defenders' employment, they were so directly involved in the accident as to be within the ambit of the duty. Their position was analogous to that of the rescuer, who was held to be within the ambit of the duty even though there was no risk of injury to him or fear for his own safety or that of a near relative. It was submitted that there was no logical reason why, if a rescuer could recover damages for his psychiatric illness, an employee who had been engaged on the same task should not be able to do so. The Lord Ordinary was wrong therefore to hold that he was bound by the dicta in Alcock to require the pursuers to establish that they were bound to Smith by close ties of love and affection before he could find them entitled to damages. This was simply a case of injury sustained because of the breach of the ordinary duty of care owed by the defenders to the pursuers and to Smith as their employees.

In their reply the defenders' counsel pointed out that what the pursuers were seeking in this case were damages for psychiatric illness, so the question was whether the defenders owed them a duty of care to avoid causing them to sustain that kind of damage. They submitted that the pursuers could not obtain an affirmative answer to that question unless they could show that they were within the class of persons which the law recognised as that to whom the defenders owed a duty of care not to cause psychiatric illness. The pursuers' reliance upon the relationship between employer and employee ignored entirely the fact that psychiatric illness was in a category of its own, as a separate kind of damage, to which on grounds of policy different considerations applied. Except where there were close ties of love and affection everyone, the employee included, was assumed to be of normal fortitude. The relationship of employer and employee told one nothing about the susceptibility of the employee to this kind of injury. It was accepted that it created a relationship of proximity sufficient for there to be a duty not to cause the employee to sustain direct physical or psychiatric injury. But it was a different matter where the claim concerned was for psychiatric injury brought about indirectly by the infliction of physical injury or death upon another, even if he was a fellow employee. The law had already delineated the classes to whom the duty not to cause such injury was owed, and the pursuers were not within them. If they were to succeed it would be necessary to delineate a new class, to cover employees who sustained psychiatric illness merely because they were witnesses to the accident. That would give rise to many problems if a logical stopping point was to be found and there was nothing in the authorities to suggest that the classes could be extended in this way. In any event it was submitted that the evidence was silent as to whether the fact that the pursuers were part of the same team had any bearing on the psychiatric illness which the pursuers developed after the accident.

The case was very well argued on both sides and the argument for the pursuers as presented by both junior and senior counsel was an attractive one. But I am in no doubt, in the light of the facts of the case and the test to be applied as described in the authorities, that the Lord Ordinary reached the correct decision and that the defenders must succeed in this reclaiming motion.

I cannot accept the pursuers' submission that this is simply a case of injury sustained because of the breach of the ordinary duty of care owned by the defenders to the pursuers and to Smith as their employees. There is no doubt that there must also be shown to have existed the requisite relationship of proximity between the pursuers and the defenders, if the defenders are to be held liable to the pursuers in damages for their psychiatric illnesses. The pursuers cannot say that there were such close ties of love and affection between them and Smith as to bring them for that reason within the class of persons to whom the duty may be owed, to which Lord Keith referred in Alcock at p 397C. They were not in the category of rescuers, to whom a remedy may be given as in the case of Chadwick v British Railways Board. Neither of the pursuers did anything to attempt to revive Smith, nor were their psychiatric illnesses said to be attributable to anything done by either of them which was of that character. Nor was there any evidence to show that the accident which caused Smith's death, although tragic and very sudden, was so horrific as to cause a person of ordinary disposition to sustain psychiatric injury. In Alcock at p 397E Lord Keith said that a bystander unconnected with the victim of an accident could not perhaps be entirely excluded from the range of reasonable foreseeability if the circumstances of a catastrophe occurring very close to him were particularly horrific, but the pursuers do not claim that the accident was of this character. The whole thrust of counsel for the pursuers' argument was that it was the relationship of the employer and employee which brought the pursuers within the ambit of the duty in this case.

The employee cases to which we were referred do not, in my opinion, support this argument. They fall into two categories. First there were two early cases which were cited to us in order to show that a psychiatric injury sustained by a workman in the course of his employment could be equiparated to a physical injury in regard to a claim of damages. In Yates v South Kirkby etc Collieries Ltd, which was a case under the Workmen's Compensation Act 1906, it was held that nervous shock causing incapacity to work was as much ‘personal injury by accident’ as a broken limb or other physical injury. The plaintiff in that case claimed to have suffered a nervous shock when he went to the assistance of a collier who had been working in the next working place at the coal face. In Brown v John Watson Ltd 1914 SC (HL) 44, which was another case under the same Act, Lord Shaw of Dunfermline said at p 51 that on principle the distinction between cases of physical impact being necessary as a ground of liability for damage caused and injury produced to the mind seemed to have nothing in its favour—always on the footing that the causal connection between the injury and the occurrence was established. I do not think that either of these cases is of assistance on the question whether a duty of care at common law not to cause psychiatric illness exists as between employer and employee. The question whether damages may be recovered for loss and damage due to psychiatric illness is not now in doubt.

Then there is the group of cases to which Lord Oliver referred in Alcock at p 408E-F as being cases ‘where the negligent act of the defendant has put the plaintiff in the position of being, or of thinking that he is about to be or has been, the involuntary cause of another's death or injury and the illness complained of stems from the shock to the plaintiff of the consciousness of this supposed fact’.

These are Dooley v Cammell Laird & Co and Mersey Insulation Co Ltd, where the plaintiff, a crane driver working in a shipyard, suffered nervous shock after the sling to the fall of his crane broke and the contents fell into the hold of the ship where he knew his fellow workmen were working; Galt v British Railways Board, where a train driver came upon two railwaymen as he rounded a bend and, it being impossible for him to stop, thought they had been killed by his train; and Wigg v British Railways Board, where a train driver came upon the body of a person very soon after it had been struck down by a door on the train he was driving as it pulled away from a station. To this list may now be added Dillon v British Railwasy Board, where the pursuer, who was a signalman, operated a signal which brought a train into collision with another train which had proceeded beyond a red signal on to the same track. Lord Oliver said of cases of this kind at p 408F-G: ‘The fact that the defendant's negligent conduct has foreseeably put the plaintiff in the position of being an unwilling participant in the event establishes of itself a sufficiently proximate relationship between them and the principal question is whether, in the circumstances, injury of that type to that plaintiff was or was not reasonably foreseeable.’

At p 408H he placed into a separate category those cases where the injury complained of was attributable to the grief and distress of witnessing the misfortune of another person in an event by which the plaintiff is not personally threatened or in which he is not directly involved as an actor.

Lord Oliver's description of the second group of cases at p 408F was the subject of much discussion on both sides of the bar. For the pursuers it was contended that the passage was not intended to set out a definitive test for what was to be taken to amount to participation in order to establish the proximate relationship and that the passage was in any event obiter. For the defenders it was contended that the wording which Lord Oliver had used to delineate this category was carefully chosen in order to set out the principle. It was significant that he had fallen far short of saying that a workman who participated in an operation and saw his fellow employee sustain injury in the course of it could claim damages for a psychiatric illness caused by witnessing the event. In my opinion the feature common to all these cases which was observed by Lord Oliver is to be found in his use of the phrase ‘the involuntary cause of another's death or injury’. The plaintiff may actually have caused the death or injury or he may think that he is about to or has done so. Whichever of these alternatives applies is immaterial. What matters is that it was his own hand, or his own act, which was the cause or supposed cause of it. This is the essential characteristic, which distinguishes the category from that of the bystander who, while present at the time of the accident and seeing it happen, was not directly involved in it as the actor by whose hand the death or injury was caused to the third party.

Reference was also made to several other cases involving the employer and employee relationship. In Mount Isa Mines Ltd v Pusey, a case heard in the High Court of Australia, the plaintiff was working as an engineer in a power house where two fellow employees were seriously burned while they were working on the floor above. On its facts the case seems to fall into the category of the rescuer cases, as the plaintiff sustained a nervous shock when he went to see what had happened and saw that one of his fellow employees had sustained serious burning injuries. It was not, however, precisely on this ground that the defendants were found liable to him in damages. Some of the dicta in this case, especially in the opinion of Windeyer J at p 404, suggest that the existence of the relationship of employer and employee was enough to give rise to a duty of care to avoid causing the plaintiff to suffer this type of injury. But I do not consider it safe to rely on these dicta as authority in the present case, as nothing was made of them in Alcockwhere the case was cited in the House of Lords but was not mentioned in any of the speeches. Attia v British Gas plc, where the plaintiff claimed damages for nervous shock sustained when her house was set on fire by the negligence of the defendants, due to witnessing the fire causing damage to her property, was decided in her favour on the preliminary issue as to whether the case should go to trial. This is another case which was cited in the argument but was not commented on in the speeches in Alcock and I do not think that any point can be taken from it which is of significance for present purposes. Lastly in this group is McFarlane v EE Caledonia Ltd, where the plaintiff, who was off duty on a support vessel, was a witness to the Piper Alpha disaster. He was held to have been a mere bystander or witness and not a rescuer and his claim for damages for his psychiatric injury was refused. The event which gave rise to the claim was plainly a horrific one, but Stuart-Smith LJ said at p 14e that as a matter of principle and policy the court should not extend the duty to those who are merely bystanders or witnesses of horrific events unless there was sufficient degree of proximity, which required both nearness in time and place and a close relationship of love and affection between plaintiff and victim. The plaintiff had been employed on the rig of which the defendants, formerly Occidental Petroleum (Caledonia) Ltd, were the owners and operators, but nothing was made in that case of the employer and employee relationship. I see the case as a straightforward application of the principles discussed in Alcock and, in my opinion, it supports the defenders' position in the present case.

It seems to me that the principle which was expressed by Lord Porter in Bourhill v Young at p 98 applies equally to the relationship between employer and employee as it does to the relationship between a wrongdoer and anyone else who is merely a bystander or witness at the scene of the accident. In a passage which was quoted with approval by Lord Bridge of Harwich in McLoughlin at p 436D-E, Lord Porter said: ‘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.’

The same point was made by Lord Wright in Bourhill at p 92, where he said that the question whether there was a duty owing to members of the public who come within the ambit of the Act must generally depend on a normal standard of susceptibility. In McLoughlin v O'Brian at p 422B Lord Wilberforce said that the law denied the claim of the ordinary bystander, 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 the defendants cannot be expected to compensate the world at large.

The existence of the relationship between employer and employee may be said to remove the risk of having to compensate the world at large, because it does to some extent restrict the numbers of persons who are likely to be involved in the incident. Nevertheless, the numbers may still be very considerable if the enterprise is a substantial one and has numerous employees. Examples were mentioned in argument in the present case of employees of the defenders who happened to be on the opposite carriageway when the accident occurred, or were present on other parts of the bridge further away from the place where the accident happened, but who might nevertheless have claimed to have suffered psychiatric illness as a result of witnessing the event. It is difficult to see why the bystander in the case of a road accident should be denied his claim, when a bystander who happens to be an employee but has had nothing whatever to do with causing the incident is allowed to recover damages for this type of injury. There appears to be no logical stopping point once the bystander type of case is admitted in the case of employees. On the other hand cases of active participation in the event form a distinct category, for the reasons already mentioned by Lord Oliver. I conclude that where the employees are merely bystanders or witnesses, as the pursuers were in this case, the ordinary rule must apply. They must be assumed to be possessed of sufficient fortitude to enable them to endure the shock caused by witnessing accidents to their fellow employees. Unless they can bring themselves within one of the other recognised categories, their claim for damages for this kind of illness must be refused.

It was submitted for the defenders that the pursuers had failed to establish in their evidence that their psychiatric illnesses were caused to any extent by the fact that they had been working with Smith as part of the same team or, indeed, that their illness was caused at all by what they had witnessed on the occasion of the accident. The Lord Ordinary held that they could not be regarded as participants in the accident, but he was satisfied that they were witnesses of it. I have not found anything in the pursuers' own evidence or in the medical reports which were lodged on their behalf to suggest that their psychiatric illness was caused by participation in the incident, in the sense referred to by Lord Oliver, or by fear for their own safety. Nor is there any basis in the evidence for attributing their illnesses to a belief that they had been the unwitting cause of Smith's death. Robertson is said in the medical reports which were lodged in his case to have suffered from feelings of guilt, but these feelings were not linked in his own evidence to anything in particular which could in any rational way be said to have been the cause of Smith's being blown out of the back of the van. I see no reason to differ from the Lord Ordinary, on the limited information which was made available to him in the evidence, that the psychiatric illnesses were attributable to the pursuers' having witnessed the incident. For the reasons which I have given, however, that is not sufficient to entitle them to recover damages for this type of injury.

For these reasons I would refuse these reclaiming motions and adhere to the interlocutors of the temporary Lord Ordinary.

LORD ALLANBRIDGE —These two appeals are concerned with the question of whether employers can be held responsible for psychiatric illness caused by one employee suffering nervous shock as a result of being present at an accident to another employee. In this case the temporary judge in his opinion indicated that it was not challenged by the defenders at the proof that each of the pursuers in these two cases had suffered a considerable degree of nervous shock as a result of the accident and that this had led in each case to psychiatric trauma. In any event, the judge said he was completely satisfied that the pursuers had suffered such a shock and that the psychiatric consequences were entirely understandable.

Nervous shock sustained as a result of an accident or expected accident to another person had been dealt with in a number of decided cases. These cases have established certain principles which fall to be applied in the circumstances of any particular case. It was argued by counsel for the appellants in these two cases that they were novel, in that they raised the question of an employer's liability for nervous shock suffered by one employee when another employee, working in the same squad, was injured. The question therefore arises as to whether, in such a case, the employer's duty to take reasonable care for his employees working together in a squad on a particular task is wide enough to cover not only nervous shock sustained by the injured workman himself but also nervous shock sustained by another member of the squad witnessing the accident to his fellow workman.

Having considered the various cases to which we were referred, I am satisfied that the answer to this problem is to be found in four cases decided in the House of Lords. In Donoghue v Stevensonat p 44 Lord Atkin described the persons to whom a duty of care is owed as being persons who are so closely and directly affected by another's act that that other person ought reasonably to have had them in contemplation when directing his mind to the acts or omissions which were called in question. The test is thus one of reasonable foreseeability. In the present case there is little doubt that on this neighbourhood test the respondents should have anticipated the presence of the appellants at the accident. The question remains whether they should have anticipated that they might sustain nervous shock caused by injury to another.

The next case in the House of Lords which was concerned with a case of nervous shock was Bourhill v Young, where Lord Porter at p 98 said that it was not every emotional disturbance or shock which should be foreseen by a wrongdoer. The driver of a car was entitled to assume that ordinary frequenters of the streets would have ‘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 necessary phlegm’.

The question then arose as to whether close relatives of the injured person fell within the class of persons likely to be affected by his accident or death. Once again, the test remained one of foreseeability. The question was whether, because of that close relationship of love and affection, such relatives could not be expected to exhibit the normal fortitude to be expected of others not in such a relationship. As Lord Wilberforce said in that context in the case of McLoughlin v O'Brian at p 422B: ‘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 calamaties of modern life, or that defendants cannot be expected to compensate the world at large.’

Once again Lord Wilberforce stressed the importance of the assumption that wrongdoers were entitled to assume that witnesses liable to be affected by the wrongful act would have the normal fortitude or phlegm to withstand the consequences of it. Lord Wilberforce, at the same page, referred to ‘rescue’ situations, where the wrongdoer could expect that such persons as rescuers—normally a parent or spouse—would come immediately to the scene and could be regarded as being within the scope of foresight and duty. In other words, the arrival and presence of rescuers was something that could be reasonably foreseen by a person who causes an accident and should be within his contemplation.

In the present case it was not suggested that either of the pursuers fell within the class of close relatives or rescuers. It was argued that because they were employees of the respondents and were acting at the time in the course of their employment, engaged in the task of removing from the carriageway of the bridge the very piece of metal sheeting which caused the accident, they were in a special position by virtue of the circumstances of their employment at the time and in a situation which made the respondents liable for the consequences of the nervous shock they sustained.

The recent case of Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 was concerned with claims of relatives of victims of the Hillsborough disaster. However, there were a number of observations in the speeches of their Lordships which, while obiter, clearly referred to the situation where a workman sustained nervous shock as a result of witnessing an accident to a fellow workman. These observations did not suggest that the relationship of master and servant by itself could extend the class of persons who should be within the reasonable contemplation of an employer.

At p 396F-G Lord Keith of Kinkel clearly has an employer of workmen in mind because he refers to the ordinary case of direct physical injury suffered in an accident at work, as contrasted with the more subtle injury caused by psychiatric illness in a situation where it is ‘a secondary sort of injury brought about by the infliction of physical injury, or the risk of physical injury, upon another person’.

In such a situation, Lord Keith at p 397C indicates that he thought it was sufficient that reasonable foreseeability should be the guide. He does not suggest that in the situation of an accident at work the employers should be expected to assume their workmen would not have the usual phlegm or fortitude. Lord Jauncey of Tullichettle also refers to accident-at-work cases, at p 420D-H, and, in particular, to the case of Dooley v Cammell Laird & Co and Mersey Insulation Co Ltd, which he considers to have been a very special case. However, he does not suggest that the mere fact that an accident occurs at work requires any different approach to the test of foreseeability.

Lord Oliver of Aylmerton is more explicit on this subject. At p 408B-D he referred to the so-called "rescue cases" and then to three cases concerned with accidents at work, including Dooley's case, which he said were cases ‘where the negligent act of the defendant has put the plaintiff in the position of being, or of thinking that he is about to be or has been, the involuntary cause of another's death or injury and the illness complained of stems from the shock to the plaintiff of the consequences of this supposed fact. The fact that the defendant's negligent conduct has foreseeably put the plaintiff in the position of being an unwilling participant in the event establishes of itself a sufficiently proximate relationship between them and the principal question is whether, in the circumstances, injury of that type to that plaintiff was or was not reasonably foreseeable’.

I am of the opinion that these observations of Lord Oliver are of considerable assistance in the present appeals. There is no suggestion in these appeals, either in the written pleadings or in the evidence of the appellants themselves, that either of them was in the position of thinking, at the time they sustained nervous shock, that they were in the situation of having been the ‘involuntary cause’ of their fellow workman's death. It is no doubt true that they were understandably shocked and upset by the accident which caused his death. But unless they were in a position to consider they were personally, or at least partly, responsible for the accident, they remained in the class of bystanders who were not entitled to damages for nervous shock. Lord Oliver, in my view, is indicating that, in cases of accidents at work, it is only where a workman is placed in a position where he has reason to consider at the time of it that he himself was the involuntary cause of it, so that he suffered from such anxiety and guilt about it as to sustain this trauma, that his employers could be liable in damages for his psychiatric illness caused as a result of his witnessing the accident.

I respectfully agree with the observations of Lord Oliver. I think his approach to cases of accidents at work is entirely consistent with the vital question of foreseeability. In the present case, Rough took no part at all in the loading of the metal sheet on to the pick-up lorry. It is not clear on the evidence what were the respective parts Robertson and the deceased took in the loading of the sheet and why the deceased sat on top of it. In that situation there is no reason why either of he appellants should have felt that he was in any way responsible for the deceased's accident. In any event, neither Rough nor Robertson ever suggested in evidence that at the time of the accident their immediate and instinctive reaction was to think that they were in some way responsible for it.

In the circumstances of the present case I am therefore satisfied that the temporary judge was entitled to conclude, on the evidence presented to him in these two cases, that the appellants had failed to prove a case of fault against their employers. The respondents were entitled to assume that the appellants would have the necessary phlegm or fortitude to withstand the shock of witnessing such an accident as happened to the deceased in this case. That being so, the psychiatric illness from which each suffered was not reasonably foreseeable by the respondents as their employers. I would therefore refuse both these reclaiming motions.

LORD COWIE —My Lords, I have had the advantage of reading the careful analysis of the law affecting cases of this sort by your Lordship in the chair and its application to the circumstances of the present cases.

I must confess initially I was of the view that the relationship of master and servant created a class of persons who could recover damages for psychiatric illness caused by the shock of witnessing physical injury or the risk of such injury to a fellow employee, provided that the limitations of proximity and causation were satisfied. In particular I was attracted by the submission of counsel for the reclaimers that since the appellants in these actions were engaged in the course of their employment at the time of the accident to the deceased, and were performing the same task, namely the operation of removing the metal sheet from the bridge, they were not merely bystanders but were directly involved in this accident and so fell within the ambit of the duty owed by a master to his servant and satisfied that test of foreseeability.

However, having reconsidered the matter in the light of the opinion of your Lordship in the chair, I am persuaded, with some hesitation, that my initial view was wrong and that your Lordship's decision in the light of the particular circumstances of this case and the prevailing law is the correct one.

I accordingly concur in the decision which your Lordship has reached and would also refuse these reclaiming motions.