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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Campbell v North Lanarkshire Council & Anor [1999] ScotCS 163 (30 June 1999)
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Cite as: [1999] ScotCS 163
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OUTER HOUSE, COURT OF SESSION
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OPINION OF LORD REED
in the cause
PETER TAYLOR CAMPBELL
Pursuer;
against
(FIRST) NORTH LANARKSHIRE COUNCIL and (SECOND) SCOTTISH POWER PLC
Defenders:
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Pursuer: Mackie; Balfour & Manson
First Defenders: Hammond; Campbell Smith, W.S
Second Defenders: Wilson; Shepherd & Wedderburn, W.S.
30 June 1999
In this action the pursuer seeks damages in respect of a psychiatric condition which is said to have been caused by an accident at work. The action came before me for a Procedure Roll debate, at which the defenders sought to have the action dismissed.
According to the pursuer's pleadings, he was employed by the first defenders' statutory predecessors, Strathclyde Regional Council, as an electrician. On 16 March 1993 he was working in the course of his employment in the switch room of Caldervale High School in Airdrie. He and his colleague, Andrew Carr, had been instructed by their supervisor to remove a broken piece of a crank handle from equipment described as "the main air break circuit breaker", and thereafter to attempt to re-charge the circuit breaker. The pursuer and Carr began the operation of removing the broken handle, which involved drilling a hole in the broken part, tapping a thread into the hole and then drawing the part out of the unit. Four employees of the second defenders then arrived: Ian Wallace, the engineer in charge; a Mr Todd and a Mr Berry, who were both engineers; and a Mr Johnstone, an electrician. One of the engineers helped Carr in removing the broken part. The pursuer's chargehand, Donald Frew, was also present. A new handle was fetched by Fraser, but the circuit breaker did not re-charge when the handle was turned. It became apparent and it would be necessary to strip down the whole unit in order to identify the fault. There was some discussion about isolating the unit before any further work was carried out on it, but this was not possible within the switch room itself: it would be necessary to go to a nearby sub-station belonging to the second defenders. In the event Carr and others contained to work on the unit without it having been isolated. They tried heating it with a blowtorch, but this was unsuccessful. Carr took out his spanner. The pursuer left the switch room. Within the switch room, Todd held a torch and Berry used the handle to lever something in the unit. The pursuer had walked a distance of 30 to 40 yards when there was a violent explosion from within the switch room. The pursuer ran back towards the switch room. He saw flashes when he looked towards the entrance. The explosion continued for a number of seconds and was still in progress. He was aware that the other men were still inside the switch room. He feared for the lives of Carr and the other men in the room. He saw one of the second defenders' employees standing in a puddle outside the room. This man was screaming "Where's my eyes?". Smoke was coming from his head and clothes. Skin was hanging from his face and hands. His face was black and his eyes could not be made out. He looked grotesque. The pursuer was afraid the puddle was live and did not go through it. He gained access to the switch room by another way. Smoke was belching from the room. The pursuer found Carr crouching in a corner. He got a reply from him. One of the other employees of the second defenders was shouting about his eyes. His skin was blackened and falling from him in places with smoke rising from his hair and clothes. The pursuer ran out to telephone for help. The man in the puddle was moaning and in a kneeling position. His hat appeared to have melted on to his head and down the side of his face. The pursuer stayed until the others had been taken to hospital. He stayed at work but was dazed, disorientated, confused and in a state of shock.
The pursuer believes and avers that the explosion occurred as a result of the actings of Todd and Berry. In particular, he believes and avers that Berry, by inserting the handle into the unit, brought about contact between the handle and live terminals or conductors.
The pursuer's case of fault, so far as directed against the first defenders, is based first on their predecessor's breach of the duty of care which they owed to the pursuer as his employers, and in particular their duty to provide him with a safe place of work and a safe system of work. It is said to have been reasonably foreseeable that, if various specified precautions were not taken, then the pursuer and others would be exposed to the risk of an explosion. In particular it is said that the employers should have ensured that the circuit breaker could be isolated from within the switch room, or that they should alternatively have arranged for the circuit breaker to be isolated from elsewhere before the pursuer and the other men began work on it. Secondly, it is averred that the first defenders' predecessors were in breach of statutory duties under regulations 4, 7, 12 and 14 of the Electricity at Work Regulations 1989. Thirdly, it is averred that they were in breach of their duty under the Employers Liability (Scotland) Act 1960, as occupiers of the switch room, to take reasonable care that persons entering the room, including the pursuer, would not suffer injury or damage by reason of any danger due to the state of the room or anything done or omitted to be done there. The pursuer's case of fault in respect of the second defenders is based first on their vicarious liability for the failure of their employees, while working on the unit, to take reasonable care for the safety of other persons in the switch room or in the vicinity of the switch room. In particular, it is averred that Berry was negligent in inserting the handle into the circuit breaker when it was live. Secondly, it is averred that the second defenders were in breach of their statutory duty under Regulation 14 of the Electricity at Work Regulations.
The pursuer's averments in respect of his injuries being by stating:
"He experienced an extremely frightening electrical explosion. He witnesses other men suffering serious injury. He was emotionally disturbed by the experience".
They go on to aver that he developed a major depressive disorder.
Addressing me on behalf of the first defenders, Mr Hammond submitted (putting the matter shortly: I shall discuss the submissions in greater detail below) that the action was irrelevant in law in respect that the pursuer was outwith the category of persons entitled by law to recover damages for psychiatric injury. Referring to the distinction between primary and secondary victims drawn in Page v Smith [1996] AC 155 and examined more recently in White v Chief Constable of the South Yorkshire Police [1998] 3 WLR 1509, Mr Hammond argued, in effect, that the pursuer was not a primary victim because he was not sufficiently close to the explosion to suffer physical injury as a consequence of the explosion. Nor was the pursuer within any of the special categories of secondary victims who might recover: he was not entitled to recover as a rescuer, since he had not carried out a rescue and in any event had not been in any apprehension of personal danger; and he did not suggest that he had any close ties of love or affection to the injured men. These submissions were adopted by Miss Wilson on behalf of the second defenders. In addition to the case of White, she also referred me to the case of Robertson v Forth Road Bridge Joint Board, 1995 SC 364.
In reply, Mr Mackie submitted that the pursuer should be regarded as a primary victim, since he was working in the switch room shortly before the explosion and had been directly exposed to the explosion. Alternatively he should be regarded as a rescuer: he had gone to the assistance of the injured men, and had placed himself in a position of potential danger. Mr Mackie moved me to allow a proof before answer.
I would observe at the outset that cases of this general kind - where damages are sought in delict for psychiatric injury alone - are apt to raise difficult legal questions which turn on subtle, not to say tenuous, distinctions; between, for example, physical injury and psychiatric injury; primary victims and secondary victims; rescuers and bystanders; close ties of love or affection, and less close relationships. It is likely to be particularly difficult to resolve issues of this kind on the basis of pleadings alone. In the present case, for example, the pleadings do not focus these issues with crystal clarity, but they were not criticised for a failure to give fair notice of the pursuer's case. In such a case it is particularly important to bear in mind what was said by Lord Keith of Avonholm in Miller v South of Scotland Electricity Board, 1958 SC (HL) 20, 33:
"In claims of damages for alleged negligence it can only be in rare and exceptional cases that an action can be disposed of on relevancy.... It is hardly necessary to say in a Scottish case that the law of negligence in Scotland proceeds on principles of culpa, breach of the duty to take that care which the circumstances demand from a reasonable man. These circumstances in any particular case will normally have to be ascertained by evidence. They vary infinitely. The facets and details of the case on which an assessment of the law must depend cannot be conveyed to the mind by mere averments of the bare bones of the case, and the weighing of the facts for or against negligence may often present a delicate task to the tribunal charged with applying the law."
I note that all of the cases cited to me were decided after the evidence had been heard. It is also necessary to bear in mind the test of relevancy: namely, whether "even if the pursuer succeeds in proving all that he avers, still his case must fail" (Jamieson v Jamieson; 1952 SC (HL) 44, 63 per Lord Reid).
The second preliminary observation I would make is that all the authorities cited to me were concerned with a common law duty of care. Although the present case is based not only upon the common law duty of care but also upon a variety of statutory duties, none of the counsel addressing me mentioned the statutory provisions or suggested that they might merit separate consideration (cf. Hegarty v E E Caledonia Ltd [1996] 1 Lloyd's Rep. 413). Indeed, even the averments of common law fault were not examined in any detail. The only matter argued before me concerned the type of injury suffered, and in that regard the line of authority discussed in White was treated as setting limits to the circumstances in which anyone is entitled - whether under the common law or otherwise - to recover damages, under the law of delict at least, for psychiatric injury. I shall follow the same approach to the extent that I shall confine my attention to the common law case.
In considering the recent line of cases in the House of Lords from Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310, through Page v Smith to White v Chief Constable of the South Yorkshire Police, it is important to bear in mind the particular factual situations with which they were concerned. In order to understand the effect of those decisions, and how the law now stands generally in relation to liability in delict for psychiatric injury and in particular how the law applies to the factual situation averred in the present case, it is necessary to begin by considering how the law stood prior to those decisions.
It has long been settled that where there is a breach of a duty of care to avoid causing physical injury, then any psychiatric injury consequential upon such physical injury is recoverable under the principle that the wrongdoer must take his victim as he finds him, ie. the "eggshell skull" rule. The area of difficulty has been where the only injury suffered was psychiatric.
Most of the early Scottish cases concerned with this issue appear to have proceeded on the basis that the psychiatric injury must arise from a reasonable fear for one's own safety. This limitation, which appears first to have been enunciated by Kennedy J. in Dulieu v White & Sons [1901] 2 KB 669, was expressly adopted by Lord Johnston in Wallace v Kennedy [1908] 16 SLT 485, 486:
"But there is one limitation that must not be lost sight of - the nervous shock must be occasioned by reasonable apprehension of immediate and personal bodily injury. If the shock is occasioned by apprehension for the safety of another, or is occasioned by horror rather than by terror, that does not justify action."
Lord Ormidale's opinion in Campbell v James Henderson Limited, 1915, 1 SLT 419, was to similar effect. A fear of physical injury was also averred by the pursuers in Cooper v Caledonian Railway Co (1902) 4 F. 880, Gilligan v Robb, 1910 SC 856, Fowler v North British Railway Co, 1914 SC 866; Ross v Glasgow Corporation, 1919 SC 174 and Brown v Glasgow Corporation, 1922 SC 527. In 1925 however the Court of Appeal in England allowed recovery where the fear had been not for the plaintiff's own safety but for that of her children: Hambrook v Stokes (1925) 1 KB 141. Shortly afterwards, in Currie v Wardrop, 1927 SC 538, the Lord Justice Clerk (Lord Alness) and Lord Ormidale expressed their disagreement with the judgments of the majority in Hambrook v Stokes, while the remainder of the Court reserved their opinion on the point. This divergence of approach formed part of the background to Bourhill v Young, 1942 SC (HL) 78.
The proceedings in the Court of Session in that case (reported at 1941 SC 395) are instructive in the context of the present case. The case, the facts of which are well known, went to a hearing in the Procedure Roll on averments to the effect that the pursuer had been thrown into a state of terror as a result of a collision which took place some distance away from her. The Lord Ordinary, Lord Robertson, dismissed the action on the basis that recovery was limited to persons who had a reasonable fear for their own safety. In his view, persons who had suffered shock through horror, or through being startled, or through fear for the safety of others, could not recover. This interlocutor was recalled by the Inner House on the footing that the relevancy of the pursuer's case, and in particular whether fear for the safety of another person was sufficient to entitle the pursuer to recover, should not be determined prior to proof of what had in fact caused her terror. After proof Lord Robertson found that the pursuer's shock arose from a fear for her own safety which had (because of the state of her pleadings) to be regarded as unreasonable, or from general alarm, and that on either basis she was not entitled to recover. In the Inner House, Lord Jamieson approached the case on the footing that the pursuer's injury was brought about by fright, but without her having had any reasonable grounds to fear for her own safety. In those circumstances, Lord Jamieson considered that the injury was not reasonably foreseeable, and that the pursuer was therefore not entitled to recover. The approach taken in the older Scottish cases - to the effect that the shock must have resulted from reasonable fear for one's own safety - was supported by Lord Jamieson on the footing that it was only in a case where there were reasonable grounds to fear for one's own safety that injury through shock was reasonably foreseeable. Lord Mackay appears to have reached a similar conclusion. Lord Justice-Clerk Aitchison dissented, differing from Lord Jamieson on the question whether the pursuer was in fact in any danger and on the question whether her suffering from shock was reasonably foreseeable.
In the House of Lords, the members of the Appellate Committee appear to have regarded the critical question as being whether injury by shock was reasonably foreseeable (at 83, 86, 88, 91 and 99 respectively): it was regarded as plain that physical injury had not been reasonably foreseeable. Lord Thankerton and Lord Wright expressed some doubt (at 83 and 94 respectively) as to whether the dictum of Kennedy J in Dulieu v White & Sons should be accepted as laying down a rigid limitation. The speeches left the status of Hambrook v Stokes Brothers unclear.
After Bourhill v Young, the dominant view came to be that expressed with characteristic succinctness by Denning J. in King v Phillips [1953] 1 Q 3 429: "the test of liability for shock is foreseeability of injury by shock." That is to say, a duty of care to avoid causing the pursuer psychiatric injury could arise only where damage to the pursuer in the form of psychiatric injury was reasonably foreseeable by the defender as a consequence of his conduct. In practice, as Lord Hoffmann observed in White (at 1548 H-1549A), the courts kept potential liability within narrow grounds by taking a highly restrictive view of the circumstances in which it was foreseeable that psychiatric injury might be caused (as, for example, in Bourhill v Young itself).
An approach based on the reasonable foreseeability of injury by shock was reaffirmed by the House of Lords in McLoughlin v O'Brian [1983] 1 AC 410. The limited principle of liability propounded by Kennedy J. in Dulieu v White & Sons was rejected (e.g. by Lord Wilberforce at 418, and by Lord Bridge of Harwich at 439). The duty owed to rescuers, as established in Chadwick v British Railways Board [1967] 1 WLR 912, was accepted. Lord Bridge explained (at 443) that the existence of a duty of care
"must necessarily be adjudicated only upon a case-by-case basis. We cannot now predetermine defendant's obligation in every situation by a fixed category; no immutable rule can establish the extent of that obligation for every circumstance in the future"
(quoting the judgment of Tobriner J. in Dillon v Legg, 29 ALR 3d 1316, 1326). Lord Wilberforce, applying a similar approach to that which he had earlier applied in a different context in Anns v Merton London Borough Council [1978] AC 728, was of the opinion however that the existence of a duty of care depended not only on foreseeability but also on policy considerations; and he indicated the elements of "proximity" which he regarded as relevant, for policy reasons, to set limits to liability in the type of case with which he was concerned (where the plaintiff had suffered a psychiatric injury in consequence of an accident involving other members of her family).
The view that reasonable foreseeability of psychiatric injury did not automatically give rise to a duty of care was subsequently accepted by the House of Lords in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. The effect of Alcock was summarised by Lord Steyn, in his speech in White (at 1543) as follows:
"This decision established that a person who suffers reasonably foreseeable psychiatric illness as a result of another person's death or injury cannot recover damages unless he can satisfy three requirements, viz: (i) that he had a close tie of love and affection with the person killed, injured or imperilled; (ii) that he was close to the incident in time and space; (iii) that he directly perceived the incident rather than, for example, hearing about it from a third person."
These requirements were described in Alcock itself as factors affecting "proximity" (eg. per Lord Keith of Kinkel at 397, and per Lord Oliver of Aylmerton at 406 and 410-411), invoking the conceptual analysis of a duty of care which had been applied in earlier cases, particularly cases concerned with pure economic loss such as Caparo Industries Plc v Dickman [1990] 2 AC 605, and which can be traced back to the "neighbourhood" principle enunciated by Lord Atkins in Donoghue v Stevenson, 1932 SC (HL) 31. As Lord Oliver expressed the point (at 415),
"In any event, there is in many cases, as for instance cases of direct physical injury in a highway accident, an almost necessary coalescence of the twin elements of foreseeability and proximity, the one flowing from the other. But where such convergence is not self evident, the question of proximity requires separate consideration. In deciding it the court has reference to no defined criteria and the decision necessarily reflects to some extent the court's concept of what policy - or perhaps common sense - requires".
It should be noted that their Lordships did not stipulate that all of the requirements listed by Lord Steyn must always be met. So far as the first "requirement" is concerned, Lord Keith of Kinkel said (at 397):
"The case of a bystander unconcerned with the victims of an accident is different. Psychiatric injury to him would not ordinarily, in my view, be within the range of reasonable foreseeability, but could not perhaps be entirely excluded from it if the circumstances of a catastrophe occurring very close to him were particularly horrific."
Lord Ackner's speech was to the same effect (at 403) as was that of Lord Oliver of Aylmerton (at 416). Nevertheless, given the horrifying nature of the events in Alcock itself (the Hillsborough disaster), White (Hillsborough again) and McFarlane v E E Caledonia Ltd [1994] 2 All ER 1 (the Piper Alpha disaster) - in all of which the plaintiffs were unsuccessful - the practical effect of this qualification would appear to be limited. So far as the second and third "requirements" are concerned, it is to be borne in mind that the "incident" includes not only the accident itself but also its immediate aftermath: see per Lord Keith of Kinkel at 397-398, per Lord Ackner at 404-405, per Lord Oliver of Aylmerton at 411 and per Lord Jauncey of Tullichettle at 419 and 423-424.
For present purposes, the most important aspect of Alcock was perhaps Lord Oliver of Aylmerton's observation that cases of "liability for nervous shock" did not all raise identical issues:
"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:". p 407.
Lord Oliver did not attempt any further definition of victims in the first category, whom he referred to as "primary" victims, but gave a number of examples, including cases involving rescuers. Lord Oliver described victims in the second category as "secondary" victims. This distinction between primary and secondary victims has been developed in the subsequent case law, and lies at the heart of the arguments presented to me in the present case.
Robertson v Forth Road Bridge Joint Board, 1995 SC 364, was another case concerning "secondary" victims. Despite the statement in the rubric of the report that "the test was one of reasonable foreseeability", it is apparent from the Opinion of Lord President Hope that the Alcock approach was followed: in other words, that liability to a secondary victim depended not only on reasonable foreseeability of psychiatric injury, but also on the elements mentioned in Alcock being present so as to establish the necessary proximity.
Page v Smith [1996] AC 155 was a very different type of case, because it concerned a person whose psychiatric injury was caused not by another person's death or injury, but by his own involvement in a car crash, he being the driver of one of the cars involved. Alcock having established that reasonable foreseeability of psychiatric injury was a necessary but not sufficient condition of liability in the case of secondary victims, the question which arose in Page v Smith was whether, in a case which did not concern a secondary victim, reasonable foreseeability of psychiatric injury (rather than personal injury in general) was a necessary condition. By a majority the Appellate Committee answered that question in the negative: it was sufficient that physical injury was reasonably foreseeable (see e.g. per Lord Lloyd of Berwick at 184B).
Page v Smith arguably widened the previous approach to liability, for the reasons explained by Lord Goff of Chieveley in White (at 1522 ff.). The argument before me however proceeded on the implicit basis that Page v Smith had effectively restricted the earlier approach. The restriction arises if Page v Smith is understood as restricting liability for psychiatric injury (unaccompanied by physical injury) to two classes of pursuer: first, persons who it was reasonably foreseeable would suffer physical injury; and secondly, persons satisfying the Alcock conditions.
The leading speech was given by Lord Lloyd of Berwick. In principle, Lord Lloyd considered it "unnecessary" in the case of a defendant who was admittedly under a duty of care not to cause the plaintiff foreseeable physical injury, to ask whether he was under a separate duty of care not the cause foreseeable psychiatric injury. The leitmotiv of Lord Lloyd's speech indeed is the artificiality of the distinction between physical and psychiatric injury (eg at 187-188), which makes it somewhat paradoxical if he is to be understood as making that very distinction critical to the definition of primary victims. There are however passages in Lord Lloyd's speech where he appears to assume that a primary victim is a person who was in danger of physical injury (eg. at 187F and 189E and H). I shall return to these passages in a moment. Lord Lloyd's "provisional conclusion" (at 190 C-E), prior to a consideration of the authorities, suggests a more flexible approach:
"The test in every case ought to be whether the defendant can reasonably foresee that his conduct will expose the plaintiff to risk of personal injury. If so, then he comes under a duty of care to that plaintiff.... In the case of a secondary victim, the question will usually turn on whether the foreseeable injury is psychiatric, for the reasons already explained. In the case of a primary victim the question will almost always turn on whether the foreseeable injury is physical. But it is the same test in both cases, with different applications."
Lord Lloyd considered this approach to be supported by the authorities. He concluded (at 197G) that, subject to qualifications in respect of secondary victims,
"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".
Lord Lloyd's speech contains a number of passages which seem to assume that a primary victim is always a person who was in physical danger. For example, at p.187 he said:
"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."
In a subsequent passage at p. 189, he said:
"None of these mechanisms, (ie. the Alcock control 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".
In another passage on the same page, he said:
"Before a defendant can be held liable for psychiatric injury suffered by a primary victim, he must at least have foreseen the risk of physical injury".
These passages suggest, as was argued to me in the present case, that a pursuer can be a primary victim only if he was within the range of foreseeable physical injury. On the other hand, it does not appear to me to be obvious how one is to reconcile the proposition that primary victims must always have been within the range of foreseeable physical injury with Lord Lloyd's conclusion as expressed at 197G, which I have already quoted. It may be that, in the passages at 187 and 189 quoted above, Lord Lloyd simply had in mind the position of the plaintiff in a case of the type with which Page v Smith was concerned. Be that as it may, I consider that the position has now been clarified by the speeches in White, as explained below.
Before leaving Page v Smith, I should observe that determining the range of foreseeable physical injury may not always be as straightforward as it was in that case (where the plaintiff was the driver of a car involved in a collision), particularly since hindsight has no part to play. The point is illustrated by some examples given by F A Trindade in his article "Nervous Shock and Negligent Conduct" (1996) 112 LQR 22, 24. Narrow distinctions may have to be drawn depending on the precise facts established , as is illustrated by comparing Young v Charles Church (Southern) Ltd, The Times, May 1, 1997 with Hunter v British Coal Corporation [1998] 3 WLR 685. In that regard, the present case as pleaded is not necessarily a straightforward one.
I turn finally, in this review of the authorities, to the recent decision of the House of Lords in White v Chief Constable of South Yorkshire [1998] 3 WLR 1509, in which the leading speeches were delivered by Lord Steyn and Lord Hoffmann. The plaintiffs were police officers who had been involved in the aftermath of the Hillsborough disaster. As I have mentioned already, Lord Steyn summarised the effect of Alcock (at 1543) without repeating certain qualifications to be found in the speeches in Alcock itself. As he described Alcock as "the controlling decision" however (at 1544), I do not understand him to intend his summary to alter the effect of Alcock. Lord Hoffmann, in giving a similar summary (at 1549), made it clear that he was stating the conditions for a successful claim of the kind made in Alcock "in a summary form which I think is sufficiently accurate for the purposes of the present discussion but it may for other purposes require qualification and does not purport to be a complete description". That I think is implicit also in what was said by Lord Steyn.
In considering Page v Smith, Lord Steyn summarised the distinction between primary and secondary victims as follows (at 1544):
"Lord Lloyd said that a plaintiff who had been within the range of foreseeable injury was a primary victim.... In my view it follows that all other victims, who suffer pure psychiatric harm, are secondary victims and must satisfy the control mechanisms laid down in the Alcock case".
"Foreseeable injury", in this context, appears to mean potential physical injury or the reasonable apprehension of such injury (see at 1542A, 1546C and H and 1547A). This statement was founded on in the present case to support the argument that the pursuer cannot succeed unless (1) he was in physical danger or (2) he fulfils the Alcock requirements as summarised by Lord Steyn. Lord Steyn also referred (at 1544) to the need to keep in mind "the narrow formulation by Lord Lloyd of Berwick of who may be a primary victim", and he described the decision in Page v Smith as
"plainly intended, in the context of pure psychiatric harm, to narrow the range of potential secondary victims".
It should be noted that being within the range of potential physical injury, or the reasonable apprehension of such injury, is relevant at the stage of deciding whether the defender owed the pursuer a duty of care: it is not necessary to prove that the psychiatric injury was caused by the perception of personal danger (see per Lord Steyn at 1546H). In relation to rescuers, Lord Steyn said (at 1547):
"But in order to contain the concept of rescuer in reasonable bounds for the purposes of the recovery of compensation for pure psychiatric harm the plaintiff must at least satisfy the threshold requirement that he objectively exposed himself to danger or reasonably believed that he was doing so... For my part the limitation of actual or apprehended dangers is what proximity in this special situation means".
Accordingly Lord Steyn's approach, as I understand it, is that one has to identify the range of foreseeable physical injury. This includes not only situations in which the pursuer was in fact objectively exposed to danger, but also situations in which he could reasonably believe that he was exposed to danger (if there is a difference between the two on the facts of the particular case: in this regard, the judgment of Stuart-Smith LJ in McFarlane v E E Caledonia Ltd [1994] 2 All ER 1, 10 is helpful). If the pursuer was within that range, then he can recover for psychiatric injury. If he was not within that range, then he can recover for psychiatric injury only if he meets the Alcock requirements.
Lord Hoffmann's approach was to focus on the grounds on which the claims of the plaintiffs in White were said to be distinguishable from those of the plaintiffs in Alcock (who were relatives of those killed at Hillsborough, and included persons who had been in other parts of the ground at the time of the disaster). He described the Alcock control mechanisms (at 1551) as intended to apply to cases where the psychiatric injury had been caused in consequence of death or injury suffered (or apprehended to have been suffered or as likely to be suffered) by someone else: cases, that is to say, where the plaintiff was what Lord Lloyd had described in Page v White as a secondary victim.
Lord Hoffmann also mentioned the distinction between primary and secondary victims, but only in passing:
"This question does not arise in the present case, but the classification into primary and secondary victims has been debated at length. The plaintiffs say that they were primary victims because they were not 'spectators or bystanders'. The defendants say that the plaintiffs were secondary victims because they were not 'within the range of foreseeable physical injury'. Both arguments have some support from the speeches in Page v Smith, which did not have the present question in mind".
So far as concerned the plaintiffs' status as employees, Lord Hoffmann referred to the case of Walker v Northumberland County Council [1995] ICR 702, which concerned an employee who suffered a mental breakdown as a result of work-induced stress, and to the Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd's Rep. 271 line of authority, describing the Dooley type of case as one which might arguably be treated as exceptional and exempt from the Alcock control mechanisms. This suggests that the law may be somewhat less rigid than the argument presented to me. Lord Hoffman concluded that the employment relationship was not in itself a sufficient basis for liability.
So far as concerned the plaintiffs' claim to be treated as analogous to rescuers, Lord Hoffmann's view was that rescuers were not in any special position (at 1555), and that status as a rescuer was therefore not sufficient to take the plaintiffs out of the category of secondary victims.
Accordingly, Lord Hoffmann's approach, as I understand it, took as its starting point the cause of the psychiatric injury. If the injury was caused by death or injury suffered (or apprehended to have been suffered or as likely to be suffered) by someone else, then the pursuer would have to fulfil the Alcock requirements in order to recover, unless there was some special feature which made the pursuer's case distinguishable from those of the plaintiffs in Alcock. While this approach seems to me to be distinct from that of Lord Steyn insofar as it does not attempt an exhaustive definition of primary victims, in practice both approaches can be expected to lead to the same result, at least in all but exceptional cases.
Lord Browne-Wilkinson agreed with the reasoning of both Lord Steyn and Lord Hoffmann (at 1512). Lord Griffiths distinguished between "primary victims, that is victims who are imperilled or reasonably believe themselves to be imperilled by the defendant's negligence", and "secondary victims, that is those who are bystanders" (1513). In Lord Griffith's view, the Alcock controls "should apply to all those not directly imperilled or who reasonably believe themselves to be imperilled" (at 1514). Up to that point, Lord Griffith's approach appears to be the same as that of Lord Steyn. Lord Griffiths however regarded rescuers as a special category who should be entitled to recover for reasonably foreseeable psychiatric injury even if not themselves in physical danger and even if the Alcock requirements were not met. On that matter, Lord Griffiths dissented. Lord Goff of Chieveley also dissented on a more fundamental basis, in a speech which contains a valuable discussion of the primary/secondary distinction (at 1521 - 1522, 1526 - 1529 and 1534 - 1536).
I turn to consider the pleadings and arguments in the present case in the light of the case law which I have just summarised. I shall begin with the arguments as to whether the pursuer can be regarded as a rescuer, in order to get them out of the way. Mr Hammond submitted that the pursuer had not done enough by way of assistance in order to be regarded as a rescuer, whereas Mr Mackie argued the contrary. These arguments appear to me to be beside the point. The position of rescuers was very clearly explained by Lord Hoffmann in White (at 1555):
"If rescuers formed a specially privileged category of plaintiff, one would expect that the rule would give rise to a definitional problem about who counted as a rescuer and so qualified for special treatment. In fact, as one can see from the absence of any such problem in the cases, rescuers can be accommodated without difficulty in the general principles of the law of negligence. There are two questions which may arise. The first is whether injury to the rescuer was foreseeable. There is usually no difficulty in holding that if it was foreseeable that someone would be put in danger, it was also foreseeable that someone would go to look for him or try to rescue him or otherwise help him in his distress. The second question is whether the voluntary act of the rescuer, searcher or helper in putting himself in peril negatives the causal connection between the original negligent conduct and his injury. Again, the courts have had equally little difficulty in holding that such a person, acting out of a sense of moral obligation, does not make the free choice which would be necessary to eliminate the causal effect of the defendant's conduct".
There is accordingly no need to lay down requirements as to how much assistance has to be rendered if the pursuer is to fall within the definition of a rescuer. The only issue is whether the actings of the pursuer were unforeseeable or were such as to break the chain of causation. I could not possibly reach such a conclusion on the pleadings in the present case. At first sight, there was nothing unforeseeable about the pursuer's returning back to the switch room, entering it, finding his colleague, running out to telephone for help and remaining with the other men until an ambulance took them to hospital. At first sight, there was nothing about that conduct which would negative the causal connection between the original negligent conduct and the pursuer's injury. The position may be different once the evidence has been heard, but I could not possibly say at this stage that the pursuer's actings following the initial explosion were such as to prevent him from recovering.
Mr Hammond's principal argument however was that the pursuer was not offering to prove that he had at any time been exposed to any risk of physical injury. He was not in the switch room when the explosion occurred. He was not sufficiently close to the explosion to suffer physical injury from it. He did not suggest that he had had any apprehension of physical danger, let alone any reasonable grounds for such an apprehension. His only fear, so far as his pleadings went, was fear for Carr and the other men in the switch room. The case fell within the scope of Alcock, and the control of mechanisms laid down in that case were not satisfied.
In reply, Mr Mackie submitted that the pursuer was a "primary" victim. He had been working in the switch room shortly before the explosion, and had been participating in the work which had eventually brought about the explosion. He was only 30 to 40 yards away when the violent explosion occurred. He ran back towards the switch room while the explosion was still in progress, with flashes continuing. The explosion was an extremely frightening experience for him. He was afraid that a puddle outside the switch room was live, and went into the switch room by another way, when smoke was still belching from the room. In entering the room he placed himself in a position of potential danger.
Approaching the matter in the way which appears to have commended itself to a majority of the Committee in White, the issue is whether I can determine at this stage that the pursuer is bound to fail to establish that he was within the range of foreseeable physical injury. I do not consider that I can make such a determination. It is true that the pursuer was outside the switch room when the explosion occurred, and he escaped physical injury. It does not however necessarily follow that his sustaining physical injury was not reasonably foreseeable; nor does it follow that he could not reasonably have been in fear for his own safety. At the most straightforward level, I could not reach such a conclusion without having evidence before me as to the risks which the explosion posed to his physical well-being both at the time and when he returned to the switch room, which is said to have been belching smoke. More difficult questions of law may arise, which it would be inappropriate for me to address until after the evidence has been led, as to how the range of reasonable foreseeability has to be determined, bearing in mind that (following Page v Smith) hindsight has no part to play.
Approaching the matter in the way in which I understand Lord Hoffmann to have addressed the issues in White, I arrive at the same conclusions. It may turn out, after the evidence has been led, that the pursuer's psychiatric injury was caused in part at least not by his horror at witnessing the injuries of others, but rather by his own direct exposure to a frightening explosion. In that event, his claim cannot be dismissed merely because he does not fulfil the Alcock requirements. In that event, there will again be a question whether he was within the range of foreseeable physical injury (in which case he will fall within the principle applied in Page v Smith).
In these circumstances, the appropriate way to proceed is to allow a proof before answer.