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Search Terms: McLoughlin v O'Brian [1983] 1 AC 410

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PERPUSTAKAAN TUN ABDUL RAZAK
SHAH ALAM
DARUL EHSAN
 Page 1

3 of 245 DOCUMENTS

Alcock and others v Chief Constable of the South Yorkshire Police

House of Lords

[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

HEARING-DATES: 7, 8, 9, 10, 14 October, 28 November 1991

28 November 1991

CATCHWORDS:

Damages -- Personal injury -- Nervous shock -- Disaster at football stadium involving many deaths and injuries --
Events at stadium televised live -- Plaintiffs' relatives and friends among persons killed or injured -- Plaintiffs seeing
events at stadium on live television or hearing about tradegy on radio -- Plaintiffs suffering nervous shock -- Tragedy
caused by defendant's negligence -- Whether defendant owing duty of care to plaintiffs -- Whether plaintiffs within
class of persons entitled to recover damages for nervous shock -- Whether persons who saw live television broadcast of
events entitled to sue -- Whether live television broadcast of events providing proximity of time and space.

HEADNOTE:

Shortly before the commencement of a major football match at a football stadium the police responsible for crowd
control at the match allowed an excessively large number of intending spectators into a section of the ground which was
already full, with the result that 95 spectators were crushed to death and over 400 injured. Scenes from the ground were
broadcast live on television from time to time during the course of the disaster and were broadcast later on television as
news items. News of the disaster was also broadcast over the radio. However, in accordance with television
broadcasting guidelines none of the television broadcasts depicted suffering or dying of recognisable individuals.
Sixteen persons, none of whom was present in the area where the disaster occurred but who were relatives, or in one
case the fiance, of persons who were in that area, brought actions against the chief constable of the force responsible for
crowd control the match claiming damages for nervous shock resulting in psychiatric illness alleged to have been
caused by seeing or hearing news of the disaster. In the case of thirteen of the plaintiffs their relatives and friends were
killed, in the case of two of the plaintiffs their relatives were injured and in the case of one plaintiff the relative escaped
unhurt. The chief constable admitted liability in negligence in respect of those who were killed and injured in the
disaster but denied that he owed any duty of care to the plaintiffs. The question whether, assuming that each plaintiff
had suffered nervous shock causing psychiatric illness as a result of the experiences inflicted on them by the disaster,
they were entitled in law to recover damages for nervous shock against the defendant was tried as a preliminary issue.
The judge found in favour of ten out of the plaintiffs and against six of them. The defendant appealed in respect of nine
of the successful plaintiffs and the six unsuccessful plaintiffs cross-appealed. The Court of Appeal allowed the appeals
and dismissed the cross-appeals, holding that none of the plaintiffs was entitled to recover damages for nervous shock.
Ten of the plaintiffs appealed to the House of Lords, contending that the only test for establishing liability for
shock-induced psychiatric illness was whether such illness was reasonably foreseeable.

Held -- A person who sustained nervous shock which caused psychiatric illness as a result of apprehending the
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[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

infliction of physical injury or the risk thereof to another person could only recover damgaes from the person whose
negligent act caused the physical injury or the risk to the primary victim if he satisfied both the test of reasonable
foreseeability that he would be affected by psychiatric illness as a result of the consequences of the accident because of
his close relationship of love and affection with the primary victim and the test of proximity in relationship to the
tortfeasor in terms of physical and temporal connection between the plaintiff and the accident. Accordingly, the
plaintiff could only recover if (i) his relationship to the primary victim was sufficiently close that it was reasonably
foreseeable that he might sustain nervous shock if he apprehended that the primary victim had been or might be injured,
(ii) his proximity to the accident in which the primary victim was invovled or its immediate aftermatch was sufficiently
close both in time and space and (iii) he suffered nervous shock through seeing or hearing the accident or its immediate
aftermath. Conversely, persons who suffered psychiatric illness not caused by sudden nervous shock through seeing or
hearing the accident or its immediate aftermath or who suffered nervous shock caused by being informed of the accident
by a third party did not satisfy the tests of reasonable foreseeability and proximity to enable them to recover and, given
the television broadcasting guidelines, persons such as the plaintiffs who saw the events of a disaster on television could
not be considered to have suffered nervous shock induced by sight or hearing of the event since they were not in
proximity to the events and would not have suffered shock in the sense of a sudden assault on the nervous system. It
followed that none of the appellants was entitled to succeed because either they were not at the match but had seen the
disaster on television or heard radio broadcasts or their relationship to the victim had not been shown to be sufficiently
close to enable them to recover. The appeals would therefore be dismissed; dicta of Lord Wilberforce in McLoughlin v
O'Brien [1982] 2 All ER 298 at 304-305 and of Gibbs CJ and Deane J in Jaensch v Coffey (1984) 54 ALR 417 at
462-463 applied; Hevican v Ruane [1991] 3 All ER 65 and Ravenscroft v Rederiaktiebolaget Transatlantic [1991] 3 All
ER 73 doubted.

Per Lord Keith, Lord Ackner and Lord Oliver. A bystander who suffers shock-induced psychiatric illness after
witnessing a particular horrific catastrophe close to him may be entitled to recover damages from the person whose
negligent act caused the catastrophe if a reasonably strong-nerved person would have been so shocked; dictim of Atkin
LJ in Hambrook v Stokes Bros [1924] All ER Rep 110 at 117 applied.

Per Lord Ackner and Lord Oliver. There may be circumstances where the element of direct visual perception may
be provided by witnessing the actual injury to the primary victim on simultaneous television.

Decision of the Court of Appeal sub nom Jones v Wright [1991] 3 All ER 88 affirmed.

NOTES:

For liability for nervous shock, see 34 Halsbury's Laws (4th edn) para 8, and for cases on the subject, see 17 Digest
(Reissue) 145-147, 377-391.

CASES-REF-TO:

Abramzik v Brenner (1967) 65 DLR (2d) 651, Sask CA.

Bell v Great Northern Rly Co of Ireland (1890) 26 LR Ir 428, Ex D.
Benson v Lee [1972] VR 879, Vict SC.
Best v Samuel Fox & Co Ltd [1952] 2 All ER 394, [1952] AC 716, HL.
Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605, [1990] 2 WLR 358, HL.
Chadwick v British Transport Commission [1967] 2 All ER 945, sub nom Chadwick v British Railways Board [1967] 1
WLR 912.
Dillon v Legg (1968) 68 Cal 2d 728, Cal SC.
Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd's Rep 271, Assizes.
Dulieu v White & Sons [1901] 2 KB 669, [1900-3] All ER Rep 353, DC.
Galt v British Railways Board (1983) 133 NLJ 870.
Hambrook v Stokes Bros [1925] 1 KB 141, [1924] All ER Rep 110, CA.
 Page 3
[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

Hay (or Bourhill) v Young [1942] 2 All ER 396, [1943] AC 92, HL; affg 1941 SC 395, Ct of Sess.
Heaven v Pender (1883) 11 QBD 503, [1881-5] All ER Rep 35, CA.
Hevican v Ruane [1991] 3 All ER 65.
Hinz v Berry [1970] 1 All ER 1074, [1970] 2 QB 40, [1970] 2 WLR 684, CA.
Jaensch v Coffey (1984) 54 ALR 417, Aust HC.
King v Phillips [1953] 1 All ER 617, [1953] 1 QB 429, [1953] 2 WLR 526, CA.
Kirkham v Boughey [1957] 3 All ER 153, [1958] 2 QB 338, [1957] 3 WLR 626.
M'Alister (or Donoghue) v Stevenson [1932] AC 562, [1932] All ER Rep 1, HL.
McKew v Holland & Hannen & Cubbits (Scotland) Ltd [1969] 3 All ER 1621, HL.
McLoughlin v O'Brian [1982] 2 All ER 298, [1983] 1 AC 410, [1982] 2 WLR 982, HL; rsvg [1981] 1 All ER 809,
[1981] QB 599, [1981] 2 WLR 1014, CA.
Owens v Liverpool Corp [1938] 4 All ER 727, [1939] 1 KB 394.
Ravenscroft v Rederiaktiebolaget Transatlantic [1991] 3 All ER 73.
Schneider v Eisovitch
Smith v Johnson & Bolstar Co (January 1897, unreported), QBD.[1960] 1 All ER 169, [1960] 2 QB 430, [1960] 2 WLR
169.
Wagner v International Rly Co (1921) 232 NY 176, NY Ct of Apps.
Wigg v British Railways Board (1986) 136 NLJ 446.

INTRODUCTION:

Consolidated appeals.

The plaintiffs, Robert Alcock, Catherine Marea Jones, Joseph Kehoe, Alexandra Penk, Agnes Copoc, Harold
Copoc, Brian Harrison, Brenda Julie Hennessy, Denise Hough and Stephen Jones, appealed with leave of the Court of
Appeal from the decision of that court (Parker, Stocker and Nolan LJJ) (sub nom Jones v Wright [1991] 3 All ER 88)
on 3 May 1991 (1) allowing the appeal of the defendant, Peter Wright, the Chief Constable of the South Yorkshire
Police, from the judgment of Hidden J sitting in the Queen's Bench Division at Liverpool ([1991] 1 All ER 353, [1991]
2 WLR 814) on 31 July 1990 whereby he entered judgment for, inter alios, the plaintiffs Stephen Jones, Harold Copoc,
Brenda Hennessey, Brian Harrison, Agnes Copoc and Denise Hough in their action against the defendant for damages
for personal injuries and/or physical harm and consequential losses and expenses occasioned to them by the negligence
and/or breach of statutory duty of the defendant at Hillsborough Football Stadium, Sheffield, South Yorkshire, and (2)
dismissing the cross-appeals of, inter alios, the plaintiffs Joseph Kehoe, Alexandra Penk and Robert Alcock from the
judge's decision dismissing their actions against the defendant on the ground that they did not fall within the range of
persons of whom the defendant, in his management and control of the arrangements at the Hillsborough Stadium on the
occasion of the FA Cup semi-final football match on 15 April 1989, owed a duty of care. The facts are set out in the
opinion of Lord Keith.

COUNSEL:

Benet Hytner QC and TRA King QC for the appellants; William Woodward QC and Patrick Limb for the
respondent.

JUDGMENT-READ:

Their Lordships took time for consideration. 28 November 1991. The following opinions were delivered.

PANEL: Lord Keith of Kinkel, Lord Ackner, Lord Oliver of Alymerton, Lord Jauncey of Tullichettle and Lord Lowry

JUDGMENTBY-1: LORD KEITH OF KINKEL

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[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

JUDGMENT-1:

LORD KEITH OF KINKEL. My Lords, the litigation with which these appeals are concerned arose out of the
disaster at Hillsborough Stadium, Sheffield, which occurred on 15 April 1989. On that day a football match was
arranged to be played at the stadium between the Liverpool and the Nottingham Forest football clubs. It was a
semi-final of the FA Cup. The South Yorkshire police force, which was responsible for crowd control at the match,
allowed an excessively large number of intending spectators to enter the ground at the Leppings Lane end, an area
reserved for Liverpool supporters. They crammed into pens 3 and 4, below the West Stand, and in the resulting crush
95 people were killed and over 400 physically injured. Scenes from the ground were broadcast live on television from
time to time during the course of the disaster and recordings were broadcast later. The Chief Constable of South
Yorkshire has admitted liability in negligence in respect of the deaths and physical injuries. Sixteen separate actions
were brought against him by persons none of whom was present in the area where the disaster occurred, although four
of them were elsewhere in the ground. All of them were connected in various ways with persons who were in that area,
being related to such persons or, in one case, being a fiance. In most cases the person with whom the plaintiff was
concerned was killed, in other cases that person was injured, and in one case turned out to be uninjured. All the
plaintiffs claim damages for nervous shock resulting in psychiatric illness which they allege was caused by the
experiences inflicted on them by the disaster.

The actions came on for trial before Hidden J on 19 June 1990, and he gave judgment on 31 July 1990 (see [1991]
1 All ER 353, [1991] 2 WLR 814). That judgment was concerned with the question whether the defendant owed a duty
of care in relation to nervous shock to any, and if so to which, of the plaintiffs. The defendant admitted that if he owed
such a duty to any plaintiff, and if that plaintiff could show causation, then the defendant was in breach of duty and
liable in damages to that plaintiff. For the purposes of his judgment Hidden J assumed in the case of each plaintiff that
causation was established, leaving that matter to be dealt with, if necessary, in further proceedings. In the result, he
found in favour of ten out of the sixteen plaintiffs before him and against six of them. The defendant appealed to the
Court of Appeal in the cases of nine out of the ten successful plaintiffs, and the six unsuccessful plaintiffs also appealed
to that court. On 3 May 1991 the Court of Appeal (Parker, Stocker and Nolan LJJ) gave judgment allowing the
defendant's appeals in the cases of the nine formerly successful plaintiffs and rejecting the appeals of the six
unsuccessful ones (see [1991] 3 All ER 88). Ten only of these fifteen plaintiffs now appeal to your Lordships' House,
with leave granted in the Court of Appeal.

The circumstances affecting each of the ten appellants were thus summarised in the judgment of Parker LJ ([1991]
3 All ER 88 at 92-94):

'. . . Brian Harrison was at the ground. He was in the West Stand. He knew both of his brothers would be in the
pens behind the goal. He saw the hoffiying scene as it developed and realised that people in the two pens had been
either killed or injured. When, six minutes after the start, the match was abandoned he tried to find his brothers. He
failed to do so. He stopped up all night waiting for news. At 6 am he learnt that his family were setting off for
Sheffield. At 11 am he was informed by telephone that both his brothers were dead . . .

Mr and Mrs Copoc lost their son. They saw the scenes on live television. Mrs Copoc was up all night. She was
informed by police officers at 6 am that her son was dead. Mr Copoc went to Sheffield at 4 am with his nephew. He
was informed at 6.10 am of his son's death and later identified the body . . .

Brenda Hennessey lost her brother. She watched television from about 3.30 pm and, although she then realised
there had been deaths and injuries in the pens, she was not worried because she believed her brother to be in a stand
seat. However, at about 5 pm she learnt from her brother's wife that he had a ticket in the Leppings Lane terrace. At 6
pm she learnt from members of the family who had gone to Sheffield that her brother was dead.

Denise Hough lost her brother. She was 11 years older than her brother and had fostered him for several years
although he no longer lived with her. She knew he had a ticket at the Leppings Lane end and would be behind the goal.
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[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

She was told by a friend that there was trouble at the game. She watched television. At 4.40 am she was informed by
her mother that her brother was dead. Two days later, on 17 April, she went with her mother to Sheffield and confirmed
an earlier identification of the body. His face was bruised and swollen.

Stephen Jones lost his brother. He knew that his brother was at the match. He watched television and saw bodies
and believed them to be dead. He did not know his brother was dead until 2.45 am when, having gone to the temporary
mortuary at Hillsborough, he found his parents there in tears . . .

Robert Alcock lost his brother-in-law. He was in the West Stand, with his nephew (the brother-in-law's son). He
witnessed the scenes from the West Stand and was sickened by what he saw but was not then concerned for his
brother-in-law whom he believed to be in the stand because, on the way to the match, he had swapped a terrace ticket
which he held for a stand ticket. Tragically, however, the brother-in-law had, unknown to the plaintiff, returned to the
terrace. After the match the plaintiff left the ground for a rendezvous with the brother-in-law, who did not arrive. He
and his nephew became worried and searched without success. At about midnight they went to the mortuary, where the
plaintiff identified the body, which was blue with bruising and the chest of which was red. The sight appalled him . . .

Catherine Jones lost a brother. She knew he was at the match and would normally be behind the goal. At 3.30 pm
whilst shopping she heard that there was trouble at the match and at 4.30 pm that there were deaths. At 5.15 pm she
went home and heard on the radio that the death toll was mounting. At 7 pm a friend telephoned from Sheffield to say
that people at the hospital were describing someone who might be her brother. At 9 pm her parents set off for Sheffield.
At 10 pm she watched recorded television in the hope of seeing her brother alive. She thought mistakenly, she saw him
collapsed on the pitch. At 5 am her father returned from Sheffield and told her that her brother was dead.

Joseph Kehoe lost a 14-year-old grandson, the son of his daughter and her divorced husband. Unknown to the
grandfather the boy had gone to the match with his father. In the afternoon the plaintiff heard on the radio that there had
been deaths at Hillsborough. He later saw scenes of the disaster on recorded television. He later still learnt that his
grandson was at the match. He became worried. At 3 am he was telephoned by another daughter to say that both the
boy and his father were dead . . .

Alexander Penk lost her fiance, Carl Rimmer. They had known each other for four years and recently became
engaged. They planned to marry in later 1989 or at the latest early in 1990. She knew he was at the match and would
be on the Leppings Lane terraces. She saw television in her sister's house and knew instinctively that her fiance was in
trouble. She continued to watch in the hope of seeing him but did not do so. She was told at about 11 pm that he was
dead.'

The question of liability in negligence for what is commonly, if inaccurately, described as 'nervous shock' has only
twice been considered by this House, in Hay (or Bourhill) v Young [1942] 2 All ER 396, [1943] AC 92 and in
McLoughlin v O'Brian [1982] 2 All ER 298, [1983] 1 AC 410. In the latter case the plaintiff, after learning of a motor
accident involving her husband and three of her children about two hours after it had happened, went to the hospital
where they had been taken. There she was told that one of the children had been killed, and saw her husband and the
other two in a distressed condition and bearing on their persons the immediate effects of the accident. She claimed to
have suffered psychiatric illness as a result of her experience, and at the trial of her action of damages against those
responsible for the accident this was assumed to be the fact. This House, reversing the Court of Appeal (see [1981] 1
All ER 809, [1981] QB 599), held that she was entitled to recover damages. The leading speech was delivered by Lord
Wilberforce. Having set out the position so far reached in the decided cases on nervous shock ([1982] 2 All ER 298 at
301-302, [1983] 1 AC 410 at 418-419), he expressed the opinion that foreseeability did not of itself and automatically
give rise to a duty of care owed to a person or class of persons and that considerations of policy entered into the
conclusion that such a duty existed. He then considered the arguments on policy which had led the Court of Appeal to
reject the plaintiff's claim, and concluded that they were not of great force. He continued ([1982] 2 All ER 298 at
304-305, [1983] 1 AC 410 at 421-423):
 Page 6
[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

'But these discounts accepted, there remains, in my opinion, just 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 on 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. 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 calamities of modern
life or that defendants cannot be expected to compensate the world at large. In my opinion, these positions are
justifiable, and since the present case falls within the first class it is strictly unnecessary to say more. I think, however,
that it should follow that other cases involving less close relationships must be very carefully scrutinised. I cannot say
that they should never be admitted. The closer the tie (not merely in relationship, but in care) the greater the claim for
consideration. The claim, in any case, has to be judged in the light of the other factors, such as proximity to the scene in
time and place, and the nature of the accident. As regards proximity to the accident, it is obvious that this must be close
in both time and space. It is after all, the fact and consequence of the defendant's negligence that must be proved to
have caused the "nervous shock". Experience has shown that to insist on direct and immediate sight or hearing would
be impractical and unjust and that under what may be called the "aftermath" doctrine, one who, from close proximity
comes very soon on the scene, should not be excluded . . . Finally, and by way of reinforcement of "aftermath" cases, I
would accept, by analogy with "rescue" situations, that a person of whom it could be said that one could expect nothing
else than that he or she would come immediately to the scene (normally a parent or a spouse) could be regarded as being
within the scope of foresight and duty. Where there is not immediate presence, account must be taken of the possibility
of alterations in the circumstances, for which the defendant should not be responsible. Subject only to these
qualifications, I think that a strict test of proximity by sight or hearing should be applied by the courts. Lastly, as
regards communication, there is no case in which the law has compensated shock brought about by communication by a
third party. In Hambrook v Stokes Bros [1925] 1 KB 141, [1924] All ER Rep 110, indeed, it was said that liability
would not arise in such a case, and this is surely right. It was so decided in Abramzik v Brenner (1967) 65 DLR (2d)
651. The shock must come through sight or hearing of the event or of its immediate aftermath. Whether some
equivalent of sight or hearing, eg through simultaneous television, would suffice may have to be considered.'

Lord Bridge of Harwich, with whom Lord Scarman agreed (see [1982] 2 All ER 298 at 310, [1983] 1 AC 410 at
429), appears to have rested his finding of liaiblity simply on the test of reasonable foreseeability of psychiatric illness
affecting the plaintiff as a result of the consequences of the road accident (see [1982] 2 All ER 298 at 317-320, [1983] 1
AC 410 at 439-443). Lord Edmund-Davies and Lord Russell of Killowen both considered the policy arguments which
had led the Court of Appeal to dismiss the plaintiff's claim to be unsound (see [1982] 2 All ER 298 at 309, 310, [1984] 1
AC 410 at 428, 429). Neither speech contained anything inconsistent with that of Lord Wilberforce.

It was argued for the appellants in the present case that reasonable foreseeability of the risk of injury to them in the
particular form of psychiatric illness was all that was required to bring home liability to the respondent. In the ordinary
case of direct physical injury suffered in an accident at work or elsewhere, reasonable foreseeability of the risk is indeed
the only test that need be applied to determine liability. But injury by psychiatric illness is more subtle, as Lord
Macmillan observed in Bourhill v Young [1942] 2 All ER 396 at 402, [1943] AC 92 at 103. In the present type of case
it is a secondary sort of injury brought about by the infliction of physical injury, or the risk of physical injury, upon
another person. That can affect those closely connected with that person in various ways. One way is by subjecting a
close relative to the stress and strain of caring for the injured person over a prolonged period, but psychiatric illness due
to such stress and strain has not so far been treated as founding a claim in damages. So I am of the opinion that in
addition to reasonable foreseeability liability for injury in the particular form of psychiatric illness must depend in
addition upon a requisite relationship of proximity between the claimant and the party said to owe the duty. Lord Atkin
in M'Alister (or Donoghue) v Stevenson [1932] AC 562 at 580, [1932] All ER Rep 1 at 11 described 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
 Page 7
[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

as being so affected when I am directing my mind to the acts or omissions which are called in question.'

The concept of a person being closely and directly affected has been conviently 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 would not seek to limit the class by reference to particular relationships
such as husband and wife or parent and child. The kinds of relationship which may involve close ties of love and
affection are numerous, and it is the existence of such ties which leads to mental disturbance when the loved one suffers
a catastrophe. They may be present in family relationships or those of close friendship, and may be stronger in the case
of engaged couples than in that of persons who have been married to each other for many years. It is common
knowledge that such ties exist, and reasonably foreseeable that those bound by them may in certain circumstances be at
real risk of psychiatric illness if the loved one is injured or put in peril. The closeness of the tie would, however, require
to be proved by a plaintiff, though no doubt being capable of being presumed in appropriate cases. The case of a
bystander unconnected with the victims of an accident is difficult. 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.

In the case of those within the sphere of reasonable foreseeability the proximity factors mentioned by Lord
Wilberforce in McLoughlin v O'Brian [1982] 2 All ER 298 at 304, [1983] 1 AC 410 at 422, must, however, be taken
into account in judging whether a duty of care exists. The first of these is proximity of the plaintiff to the accident in
time and space. For this purpose the accident is to be taken to include its immediate aftermath, which in McLoughlin's
case was held to cover the scene at the hospital which was experienced by the plaintiff some two hours after the
accident. In Jaensch v Coffey (1984) 54 ALR 417 the plaintiff saw her injured husband at the hospital to which he had
been taken in severe pain before and between his undergoing a series of emergency operations, and the next day stayed
with him in the intensive care unit and thought he was going to die. She was held entitled to recover damages for the
psychiatric illness she sufferd as a result. Deane J said (at 462-463):

'. . . the aftermath of the accident extended to the hospital to which the injured person was taken and persisted for so
long as he remained in the state produced by the accident up to and including immediate post-accident treatment . . .
Her psychiatric injuries were the result of the impact upon her of the facts of the accident itself and its aftermath while
she was present at the aftermath of the accident at the hospital.'

As regards the means by which the shock is suffered, Lord Wilberforce said in McLoughlin's case [1982] 2 All ER
298 at 305, [1983] 1 AC 410 at 423 that it must come through sight or hearing of the event or of its immediate
aftermath. He also said that it was surely right that the law should not compensate shock brought about by
communication by a third party . On that basis it is open to serious doubt whether Hevican v Ruane [1991] 3 All ER 65
and Ravenscroft v Rederiaktiebolaget Transatlantic [1991] 3 All ER 73 were correctly decided, since in both of these
cases the effective cause of the psychiatric illness would appear to have been the fact of a son's death and the news of it.

Of the present appellants two, Brian Harrison and Robert Alcock, were present at the Hillsborough ground, both of
them in the West Stand, from which they witnessed the scenes in pens 3 and 4. Brian Harrison lost two brothers, while
Robert Alcock lost a brother-in-law and identified the body at the mortuary at midnight. In neither of these cases was
there any evidence of particularly close ties of love or affection with the brothers or brother-in-law. In my opinion the
mere fact of the particular relationship was insufficient to place the plaintiff within the class of persons to whom a duty
of care could be owed by the defendant as being foreseeably at risk of psychiatric illness by reason of injury or peril to
the individuals concerned. The same is true of other plaintiffs who were not present at the ground and who lost
brothers, in one case a grandson. I would, however, place in the category of members to which risk of psychiatric
illness was reasonably foreseeable Mr and Mrs Copoc, whose son was killed, and Alexandra Penk, who lost her fiance.
 Page 8
[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

In each of these cases the closest ties of love and affection fall to be presumed from the fact of the particular
relationship, and there is no suggestion of anything which might tend to rebut that presumption. These three all
watched scenes from Hillsborough on television, but none of these depicted suffering of recognisable individuals, such
being excluded by the broadcasting code of ethnics, a position known to the defendant. In my opinion the viewing of
these scenes cannot be equiparated with the viewer being within 'sight or hearing of the event or of its immediate
aftermath', to use the words of Lord Wilberforce in McLoughlin v O'Brian [1982] 2 All ER 298 at 305, [1983] 1 AC
410 at 423, nor can the scenes reasonably be regarded as giving rise to shock, in the sense of a sudden assault on the
nervous system. They were capable of giving rise to anxiety for the safety of relatives known or believed to be present
in the area affected by the crush, and undoubtedly did so, but that is very different from seeing the fate of the relative or
his condition shortly after the event. The viewing of the television scenes did not create the necessary degree of
proximity.

My Lords, for these reasons I would dismiss each of these appeals.

JUDGMENTBY-2: LORD ACKNER

JUDGMENT-2:

LORD ACKNER. My Lords, if sympathy alone were to be the determining factor in these claims, then they would
never have been contested. It has been stressed throughout the judgments in the courts below and I would emphasise it
yet again in your Lordships' House that the human tragedy which occurred on the afternoon of 15 April 1989 at the
Hillsborough Stadium when 95 people were killed and more than 400 others received injuries from being crushed
necessitating hospital treatment remains utterly an appalling one.

It is, however, trite law that the respondent, the Chief Constable of South Yorkshire, is not an insurer against
psychiatric illness occasioned by the shock sustained by the relatives or friends of those who died or were injured, or
were believed to have died or to have been injured. This is, of course, fully recognised by the appellants, the plaintiffs
in these actions, whose claims for damages to compensate them for their psychiatric illnesses are based upon the
allegation that it was the chief constable's negligence, that is to say his breach of his duty of care owed to them as well
as to those who died or were injured in controlling the crowds at the stadium, which caused them to suffer their
illnesses. The chief constable, for the purposes of these actions, has admitted that he owed a duty of care only to those
who died or were injured and that he was in breach of only that duty. He has further accepted that each of the plaintiffs
has suffered some psychiatric illness. Moreover, for the purpose of deciding whether the chief constable is liable to pay
damages to the plaintiffs in respect of their illnesses, the trial judge, Hidden J, made the assumption that the illnesses
were caused by the shocks sustained by the plaintiffs by reason of their awareness of the events at Hillsborough (see
[1991] 1 All ER 353 at 358-359, [1991] 2 WLR 814 at 819-820). The chief constable has throughout contested liability
on the ground that, in all the circumstances, he was not in breach of any duty of care owed to the plaintiffs.

Since the decision of your Lordships' House in McLoughlin v O'Brian [1982] 2 All ER 298, [1983] 1 AC 410, if
not earlier, it is established law that (1) a claim for damages for psychiatric illness resulting from shock caused by
negligence can be made without the necessity of the plaintiff establishing that he was himself injured or was in fear or
personal injury and (2) a claim for damages for such illness can be made when the shock rsults (a) from death or injury
to the plaintiff's spouse or child or the fear of such death or injury and (b) the shock has come about through the sight or
hearing of the event, or its immediate aftermath.

To succeed in the present appeals the plaintiffs seek to extend the boundaries of this cause of action by (1)
removing any restrictions on the categories of persons who may sue, (2) extending the means by which the shock is
caused, so that it includes viewing the simultaneous broadcast on television of the incident which caused the shock, and
(3) modifying the present requirement that the aftermath must be 'immediate'.

A recital of the cases over the last century show that the extent of the liability for shock-induced psychiatric illness
 Page 9
[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

has been greatly expanded. This has largely been due to a better understanding of mental illness and its relation to
shock. The extension of the scope of this cause of action sought in these appeals is not on any such ground but, so it is
contended, by the application of established legal principles.

Mr Hytner QC for the plaintiffs relies substantially upon the speech of Lord Bridge of Harwich in McLoughlin's
case [1982] 2 All ER 298 at 311, [1983] 1 AC 410 at 431 and on the judgment of Brennan J in the Australian High
Court decision of Jaensch v Coffey (1984) 54 ALR 417 at 423 for the proposition that the test for establishing liability
is the unfettered application of the test of reasonable foreseeability, viz whether the hypothetical reasonable man in the
position of the defendant, viewing the position ex post facto, would say that the shock-induced psychiatric illness was
reasonably foreseeable. Mr Woodward QC for the chief constable relies upon the opinion expressed by Lord
Wilberforce supported by Lord Edmund-Davies in McLoughlin's case [1982] 2 All ER 298 at 303, [1983] 1 AC 410 at
420 that foreseeability does not of itself, and automatically, lead to a duty of care:

'. . . foreseeability must be accompanied and limited by the law's judgment as to persons who ought, according to its
standards of value or justice, to have been in contemplation.'

He also relies on similar views expressed by Gibbs CJ and Deane J in the Jaensch case 54 ALR 417 at 418, 439.

The nature of the cause of action

In Hay (or Bourhill) v Young [1942] 2 All ER 396 at 402, [1943] AC 92 at 103 Lord Macmillan said:

'In the case of mental shock . . . there are elements of greater subtlety than in the case of an ordinary physical injury
and these elements may give rise to debate as to the precise scope of the legal liability.'

It is now generally accepted that an analysis of the reported cases of nervous shock establishes that it is a type of
claim in a category of its own. Shock is no longer a variant of physical injury but a separate kind of damage. Whatever
may be the pattern of the future development of the law in relation to this cause of action, the following propositions
illustrate that the application simpliciter of the reasonable foreseeability test is, today, far from being operative.

(1) Even though the risk of psychiatric illness is reasonably foreseeable, the law gives no damages if the psychiatric
injury was not induced by shock. Psychiatric illnesses caused in other ways, such as from the experience of having to
cope with the deprivation consequent upon the death of a loved one, attracts no damages. Brennan J in Jaensch's case
(1984) 54 ALR 417 at 429 gave as examples: the spouse who has been worn down by caring for a tortiously injured
husband or wife and who suffers psychiatric illness as a result, but who, nevertheless, goes without compensation; a
parent made distraught by the wayward conduct of a brain-damaged child and who suffers psychiatric illness as a result
also has no claim against the tortfeasor liable to the child.

(2) Even where the nervous shock and the subsequent psychiatric illness caused by it could both have been
reasonably foreseen, it has been generally accepted that damages for merely being informed of, or reading, or hearing
about the accident are not recoverable. In Bourhill v Young [1942] 2 All ER 396 at 402, [1943] AC 92 at 103 Lord
Macmillan only recognised the action lying where the injury by shock was sustained 'through the medium of the eye or
the ear without direct contact'. Certainly Brennan J in his judgment in Jaensch's case 54 ALR 417 at 430 recognised
that 'A psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception by the
plaintiff of the distressing phenomenon is essential'. That seems also to have been the view of Bankes LJ in Hambrook
v Stokes Bros [1925] 1 KB 141 at 152, [1924] All ER Rep 110 at 117. I agree with my noble and learned friend Lord
Keith of Kinkel that the validity of each of the recent decisions at first instance of Hevican v Ruane [1991] 3 All ER 65
and Ravenscroft v Rederiaktiebolaget Transatlantic [1991] 3 All ER 73 is open to serious doubt.

(3) Mere mental suffering, although reasonably foreseeable, if unaccompanied by physical injury, is not a basis for
a claim for damages. To fill this gap in the law a very limited category of relatives are given a statutory right by the
Administration of Justice Act 1982, s 3, inserting a new s 1A into the Fatal Accidents Act 1976 to bring an action
 Page 10
[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

claiming damages for bereavement.

(4) As yet there is no authority establishing that there is liability on the part of the injured person, his or her estate,
for mere phsychiatric injury which was sustained by another by reason of shock, as a result of a self-inflicted death,
injury or peril of the negligent person, in circumstances where the risk of such psychiatric injury was reasonably
foreseeable. On the basis that there must be a limit at some reasonable point to the extent of the duty of care owed to
third parties which rests upon everyone in all his actions. Lord Robertson, the Lord Ordinary, in his judgment in
Bourhill's case 1941 SC 395 at 399, did not view with favour the suggestion that a negligent window-cleaner who loses
his grip and falls from a height, impaling himself on spiked railings, would be liable for the shock-induced psychiatric
illness occasioned to a pregnant woman looking out of the window of a house situated on the opposite side of the street.

(5) 'Shock', in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying
event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a
period of time of more gradual assaults on the nervous system.

I do not find it surprising that in this particular area of the tort of negligence, the reasonable foreseeability test is not
given a free rein. As Lord Reid said in McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] 3 All ER 1621 at
1623: 'A defender is not liable for the consequence of a kind which is not foreseeable. But it does not follow that he is
liable for every consequence which a reasonable man could foresee.' Deane J pertinently observed in Jaensch's case
(1984) 54 ALR 417 at 443:

'Reasonable foreseeability on its own indicates no more than that such a duty of care will exist if, and to the extent
that, it is not precluded or modified by some applicable overriding requirement or limitation. It is to do little more than
to state a truism to say that the essential function of such requirements or limitations is to confine the existence of a duty
to take reasonable care to avoid reasonable foreseeable injury to the circumstances or classes of case in which it is the
policy of the law to admit it. Such overriding requirements or limitations shape the frontiers of the common law of
negligence.'

Although it is a vital step towards the establishment of liability, th satisfaction of the test of reasonable
foreseeability does not, in my judgment, ipso facto satisfy Lord Atkin's well-known neighbourhood principle enunciated
in M'Alister (or Donoghue) v Stevenson [1932] AC 562 at 580, [1932] All ER Rep 1 at 11. For him to have been
reasonably in contemplation by a defendant he must be:

'. . . 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.'

The requirement contained in the words 'so closely and directly affected . . . that' constitutes a control upon the test
of reasonable foreseeability of injury. Lord Atkin was at pains to stress that the formulation of a duty of care, merely in
the general terms of reasonable foreseeability, would be too wide unless it were 'limited by the notion of proximity'
which was embodied in the restriction of the duty of care to one's neighbour' (see [1932] AC 562 at 580-582, [1932] All
ER Rep 1 at 11-12).

The three elements

Because 'shock' in its nature is capable of affecting such a wide range of persons, Lord Wilberforce in McLoughlin
v O'Brian [1982] 2 All ER 298 at 304, [1983] 1 AC 410 at 422 concluded that there was a real need for the law to
place some limitation upon the extent of admissible claims and in this context he considered that there were three
elements inherent in any claim. It is common ground that such elements do exist and are required to be considered in
connection with all these claims. The fundamental difference in approach is that on behalf of the plaintiffs it is
contended that the consideration of these three elements is merely part of the process of deciding whether, as a matter of
fact, the reasonable foreseeability test has been satisfied. On behalf of the chief constable it is contended that these
elements operate as a control or limitation on the mere application of the reasonable foreseeability test. They introduce
 Page 11
[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

the requirement of 'proximity' as conditioning the duty of care.

The three elements are: (1) the class of persons whose claims should be recognised; (2) the proximity of such
persons to the accident -- in time and space; (3) the means by which the shock has been caused.

I will deal with those three elements seriatim.

The class of persons whose claim should be recognised

When dealing with the possible range of the class of persons who might sue, Lord Wilberforce contrasted the
closest of family ties -- parent and child and husband and wife -- with that of the ordinary bystander. He said that while
existing law recognises the claims of the first, it denied that of the second, either on the basis that such persons must be
assumed to be possessed with fortitude sufficient to enable them to endure the calamities of modern life, or that
defendants cannot be expected to compensate the world at large. He considered that these positions were justified, that
other cases involving less close relationships must be very carefully considered, adding ([1982] 2 All ER 298 at 304,
[1983] 1 AC 410 at 422):

'The closer the tie (not merely in relationship, but in care) the greater the claim for consideration. The claim, in any
case, has to be judged in the light of the other facts, such as proximity to the scene in time and place, and the nature of
the accident.'

I respectfully share the difficulty expressed by Atkin LJ in Hambrook v Stokes Bros [1925] 1 KB 141 at 158-159,
[1924] All ER Rep 110 at 117 -- how do you explain why the duty is confined to the case of parent or guardian and
child and does not extend to other relations of life also involving intimate associations; and why does it not eventually
extend to bystanders? As regards the latter category, while it may be very difficult to envisage a case of a stranger, who
is not actively and foreseeably involved in a disaster or its aftermath, other than in the role of rescuer, suffering
shock-induced psychiatric injury by the mere observation of apprehended or actual injury of a third person in
circumstances that could be considered reasonably foreseeable, I see no reason in principle why he should not, if in the
circumstances, a reasonably strong-nerved person would have been so shocked. In the course of argument your
Lordships were given, by way of an example, that of a petrol tanker careering out of control into a school in session and
bursting into flames. I would not be prepared to rule out a potential claim by a passer-by so shocked by the scene as to
suffer psychiatric illness.

As regards claims to those in the close family relationships referred to by Lord Wilberforce, the justification for
admitting such claims is the presumption, which I would accept as being rebuttable, that the love and affection normally
associated with persons in those relationships is such that a defendant ought reasonably to contemplete that they may be
so closely and directly affected by his conduct as to suffer shock resulting in psychiatric illness. While as a
generalisation more remote relatives and, a fortiori, friends, can reasonably be expected not to suffer illness from the
shock, there can well be relatives and friends whose relationship is so close and intimate that their love and affection for
the victim is comparable to that of the normal parent, spouse or child of the victim and should for the purpose of this
cause of action be so treated. This was the opinion of Stocker LJ in the instant appeal (see [1991] 3 All ER 88 at 113)
and also that of Nolan LJ who thus expressed himself (at 120):

'For my part, I would accept at once that no general definition is possible. But I see no difficulty in principle in
requiring a defendant to contemplate that the person physically injured or threatened by his negligence may have
relatives or friends whose love for him is like that of a normal parent or spouse, and who in consequence may similarly
be closely and directly affected by nervous shock . . . The identification of the particular individual who comes within
that category, like that of parents and spouses themselves, could only be carried out ex post facto, and would depend
upon evdience of the "relationship" in a broad sense which gave rise to the love and affection.'

It is interesting that when, nearly 50 years ago, the New South Wales legislature decided to extend liability for
injury arising wholly or in part from 'mental or nervous shock' sustained by a parent or husband or wife of the person
 Page 12
[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

killed, injured or put in peril, or any other member of the family of such person, it recognised that it was appropriate to
extend significantly the definition of such categories of claimants. Section 4(5) of the Law Reform (Miscellaneous
Provisions) Act 1944 (NSW) provides:

'"Member of the family" means the husband, wife, parent, child, brother, sister, half-brother or half-sister of the
person in relation to whom the expression is used. "Parent" includes father, mother, grandfather, grandmother,
stepfather, stepmother and any person standing in loco parentis to another. "Child" includes son, daughter, grandson,
granddaughter, stepson, stepdaughter and any person to whom another stands in loco parentis.'

Whether the degree of love and affection in any given relationship, be it that of relative or friend, is such that the
defendant, in the light of the plantiffs' proximity to the scene of the accident in time and space and its nature, should
reasonably have foreseen the shock-induced psychiatric illness, has to be decided on a case-by-case basis. As Deane J
observed in Jaensch's case (1984) 54 ALR 417 at 457:

'While it must now be accepted that any realistic assessment of the reasonably foreseeable consequences of an
accident involving actual or threatened serious bodily injury must, in an appropriate case, include the possibility of
injury in the form of nervous shock being sustained by a wide range of persons not physically injured in the accident,
the outer limits of reasonable foreseeability of mere psychiatric injury cannot be identified in the abstract or in advance.
Much may depend upon the nature of the negligent act or omission, on the gravity or apparent gravity of any actual or
apprehended injury and on any expert evidence about the nature and explanation of the particular psychiatric injury
which the plaintiff has sustained.'

The proximity of the plaintiff to the accident

It is accepted that the proximity to the accident must be close both in time and space. Direct and immediate sight or
hearing of the accident is not required. It is reasonably foreseeable that injury by shock can be caused to a plaintiff, not
only through the sight or hearing of the event, but of its immediate aftermath.

Only two of the plaintiffs before us were at the ground. However, it is clear from McLoughlin's case that there
may be liability where subsequent identification can be regarded as part of the 'immediate aftermath' of the accident.
Mr Alcock identified his brother-in-law in a bad condition in the mortuary at about midnight, that is some eight hours
after the accident. This was the earliest of the identification cases. Even if this identification could be described as part
of the 'aftermath', it could not in my judgment be described as part of the immediate aftermath. McLoughlin's case was
described by Lord Wilberforce as being upon the margin of what the process of logical progression from case to case
would allow. Mrs McLoughlin had arrived at the hospital within an hour or so after the accident. Accordingly, in the
post-accident identification cases before your Lordships there was not sufficient proximity in time and space to the
accident.

The means by which the shock is caused

Lord Wilberforece concluded that the shock must come through sight or hearing of the event or its immediate
aftermath but specifically left for later consideration whether some equivalent of sight or hearing, eg through
simultaneous television, would suffice (see [1982] 2 All ER 298 at 305, [1983] 1 AC 410 at 423). Of course it is
common ground that it was clearly foreseeable by the chief constable that the scenes at Hillsborough would be
broadcast live and that amongst those who would be watching would be parents and spouses and other relatives and
friends of those in the pens behind the goal at the Leppings lane end. However he would also know of the code of
ethics which the television authorities televising this event could be expected to follow, namely that they would not
show pictures of suffering by recognisable individuals. Had they done so, Mr Hytner accepted that this would have
been a 'novus actus' breaking the chain of causation between the chief constable's alleged breach of duty and the
psychiatric illness. As the chief constable was reasonably entitled to expect to be the case, there were no such pictures.
Although the television pictures certainly gave rise to feelings of the deepest anxiety and distress, in the circumstances
 Page 13
[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

of this case the simultaneous television broadcasts of what occurred cannot be equated with the 'sight or hearing of the
event or its immediate aftermath'. Accordingly shocks sustained by reason of these broadcasts cannot found a claim. I
agree, however, with Nolan LJ that simultaneous broadcasts of a disaster cannot in all cases be ruled out as providing
the equivalent of the actual sight or hearing of the event or its immeidate aftermath. Nolan LJ gave an example of a
situation where it was reasonable to anticipate that the television cameras, whilst filming and transmitting pictures of a
special event of children travelling in a balloon, in which there was media interest, particularly amongst the parents,
showed the balloon suddenly bursting into flames (see [1991] 3 All ER 88 at 122). Many other such situations could be
imagined where the impact of the simultaneous television pictures would be as great, if not greater, than the actual sight
of the accident.

Conclusion

Only one of the plaintiffs who succeeded before Hidden J, namely Brian Harrison, was at the ground. His relatives
who died were his two brothers. The quality of brotherly love is well known to differ widely -- from Cain and Abel to
David and Jonathan. I assume that Mr Harrison's relationship with his brothers was not an abnormal one. His claim
was not presented upon the basis that there was such a close and intimate relationship between them as gave rise to that
very special bond of affection which would make his shock-induced psychiatric illness reasonably foreseeable by the
chief constable. Accordingly, the learned judge did not carry out the requisite close scrutiny of their relationship. Thus
there was no evidence to establish the necessary proximity which would make his claim reasonably foreseeable and,
subject to the other factors, to which I have referred, a valid one. The other plaintiff who as present at the ground,
Robert Alcock, lost a brother-in-law. He was not, in my judgment, reasonably foreseeable as a potential sufferer from
shock-induced psychiatric illness, in default of very special facts and none was established. Accordingly their claims
must fail, as must those of the other plaintiffs who only learnt of the disaster by watching simultaneous television. I,
too, would therefore dismiss these appeals.

JUDGMENTBY-3: LORD OLIVER OF AYLMERTON

JUDGMENT-3:

LORD OLIVER OF AYLMERTON. My Lords, in each of these appeals the question raised is whether the
defendant is to be held responsible for psychiatric injury suffered by a plaintiff who was not himself or herself directly
involved in the accident (for which, for present purposes, the defendant accepts responsibility) but who was connected
to a victim by the bonds of an affectionate relationship such that he or she suffered extreme shock or anguish leading to
the condition of which the plaintiff complains.

The tragic circumstances out of which the present appeals arise have already been set out in the speech of my noble
and learned friend Lord Keith of Kinkel and no purpose would be served by repeating them. In each case damages are
sought for psychiatric illness, which, for present purposes, must be assumed to have been caused by the nervous impact
on the plaintiff of the death or injury of a primary victim with whom he or she had a strong bond of affection. In each
case it is admitted for the purposes of these proceedings that the respondent was in breach of a tortious duty of care
owed to the primary victim and that each plaintiff has suffered psychiatric illness. It is in issue whether the illness of
which each plaintiff complains is causally attributable to the circumstances in which he or she became aware of the
death of the primary victim. But such a causal link is assumed for the purposes of these appeals. What remains in issue
is whether the defendant owed any duty in tort to the plaintiffs to avoid causing the type of injury of which each
plaintiff complains. In essense 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.

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.
 Page 14
[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

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 greater difficulties of proof but they
are not, in their essential elements, any different from the 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 of 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.

Thus, Dulieu v White & Sons [1901] 2 KB 669, [1900-3] All ER Rep 353, where the plaintiff was naturally and
obviously put in fear for her own safety when a runaway vehicle broke through the front of the public house where she
was employed, is, at any rate to modern eyes, a tolerably obvious case. Had she sustained bodily injury from the
incursion there could never have been the slightest doubt about the defendant's liability and the fact that what brought
about the injury was not an actual contact but the imminent threat to her personally posed by the defendant's negligence
could make no difference to the result. As the person directly threatened, she was quite clearly in a sufficiently direct
and proximate relationship with him. The principal interest of the case lies in the view expressed by Kennedy J,
apparently following an earlier unreported decision of Wright J, Smith v Johnson & Co (January 1897), that illness
caused by fear for the safety of anyone other than the plaintiff herself was not capable of grounding liability -- a view
clearly now unsustainable in the light of subsequent authority. The earlier Irish case of Bell v Great Northern Rly Co of
Ireland (1890) 26 LR Ir 428, where the plaintiff was personally threatened by a terrifying experience, was similarly a
case where there was no difficulty at all in ascertaining the existence of a proximate relationship. There was, indeed, in
that case, a contractual relationship as well, for the event occurred in the course of the carriage of the plaintiff as a
passenger on the defendant's railway. So too Schneider v Eisovitch [1960] 1 All ER 169, [1960] 2 QB 430, where the
plaintiff was herself directly involved as a victim in the accident in which her husband was killed.

Into the same category, as it seems to me, fall the so-called 'rescue cases'. It is well established that the defendant
owes a duty of care not only to those who are directly threatened or injured by his careless acts but also to those who, as
a result, are induced to go to their rescue and suffer injury in so doing. The fact that the injury suffered is psychiatric
and is caused by the impact on the mind of becoming involved in personal danger or in scenes of horror and destruction
makes no difference. 'Danger invites rescue. The cry of distress is the summons to relief . . . the act, whether impulsive
or deliberate, is the child of the occasion' (see Wagner v International Rly Co (1921) 232 NY 176 at 180-181 per
Cardozo J). So in Chadwick v British Transport Commission [1967] 2 All ER 945, [1967] 1 WLR 912 the plaintiff
recovered damages for the psychiatric illness caused to her deceased husband through the traumatic effects of his
gallantry and self-sacrifice in rescuing and comforting victims of the Lewisham railway disaster.

These are all cases where the plaintiff has, to a greater or lesser degree, been personally involved in the incident out
of which the action arises, either through the direct threat of bodily injury to himself or in coming to the aid of others
injured or threatened. Into the same category, I believe, fall those cases such as Dooley v Cammell Laird & Co Ltd
 Page 15
[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

[1951] 1 Lloyd's Rep 271, Galt v British Railways Board (1983) 133 NLJ 870 and Wigg v British Railways Board
(1986) 136 NLJ 446 where the negligent act of the defendant has put the plaintiff in the position of being, or 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. 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.

In those cases in which, as in the instant appeals, the injury complained of is 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, the analysis becomes more complex. The infliction of injury on an individual,
whether through carelessness or deliberation, necessarily produces consequences beyond those to the immediate victim.
Inevitably the impact of the event and its aftermath, whether immediate or prolonged, is going to be felt in greater or
lesser degree by those with whom the victim is connected whether by ties of affection, of blood relationship, of duty or
simply of business. In many cases those persons may suffer not only injured feelings or inconvenience but adverse
financial consequences as, for instance, by the need to care for the victim or the interruption or non-performance of his
contractual obligations to third parties. Nevertheless, except in those cases which were based upon some ancient and
now outmoded concepts of the quasi-proprietorial rights of husbands over their wives, parents over their children or
employers over their menial servants, the common law has, in general, declined to entertain claims for such
consequential injuries from third parties save possibly where loss has arisen from the necessary performance of a legal
duty imposed on such party by the injury to the victim. Even the apparent exceptions to this, the old actions for loss of
a husband's right to consortium and for loss of servitium of a child or menial servant, were abolished by the
Administration of Justice Act 1982.

So, for instance, in Kirkham v Boughey [1957] 3 All ER 153, [1958] 2 QB 338, a husband, whose wife had been
severely injured in a road accident as a result of the defendant's negligence, failed to recover damages for a reduction in
his earnings due to his having, because of his anxiety for his wife, declined to resume more remunerative employment
abroad, although in that case Diplock J was prepared to allow his claim for the expenses incurred in providing medical
care for his wife on the ground that the plaintiff was under a legal duty to provide it. So too in Best v Samuel Fox & Co
Ltd [1952] 2 All ER 394 at 400, [1952] AC 716 at 734 Lord Morton of Henryton observed:

'. . . it has never been the law of England that an invitor, who has negligently but unintentionally injured an invitee,
is liable to compensate other persons who have suffered, in one way or another, as a result of the injury to the invitee. If
the injured man was engaged in a business, and the injury is a serious one, the business may have to close down and the
employees be dismissed. A daughter of the injured man may have to give up work which she enjoys and stay at home
to nurse a father who has been transformed into an irritable invalid as a result of the injury. Such examples could be
easily multiplied. Yet the invitor is under no liability to compensate such persons, for he owes them no duty and may
not even know of their existence.'

A fortiori the law will not compensate such a person for the mental anguish and even illness which may flow from
having lost a wife, parent or child or from being compelled to look after an invalid, although there is a statutory
exception to this where the victim dies as a result of the accident and the plaintiff is his widow or minor unmarried
child. In such circumstances s 1A of the Fatal Accidents Act 1976 (as inserted by s 3 of the Administration of Justice
Act 1982) gives a limited right of compensation for bereavement.

Beyond this, however, the law in general provides no remedy, however severe the consequences of the distress or
grief may be to the health or well-being of the third party and however close his relationship to the victim. I doubt
whether the reason for this can be found by an appeal to logic, for there is, on the face of it, no readily discernible
logical reason why he who carelessly inflicts an injury upon another should not be held responsible for its inevitable
consequences not only to him who may conveniently be termed 'the primary victim' but to others who suffer as a result.
It cannot, I think, be accounted for by saying that such consequences cannot reasonably be foreseen. It is readily
 Page 16
[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

foreseeable that very real and easily ascertainable injury is likely to result to those dependent upon the primary victim or
those upon whom, as a rsult of negligently inflicted injury, the primary victim himself becomes dependent. If one goes
back to what may be regarded as the genesis of the modern law of tortious negligence, that is to say the judgment of
Brett MR in Heaven v Pender (1883) 11 QBD 503 at 509, [1881-5] All ER Rep 35 at 39, there is nothing in it which
necessarily limits the liability of the tortfeasor to compensating only the primary victim of the event. What was there
postulated was a simple test of attributed foresight of that which the ordinary person, given the hypothetical situation of
his pausing to think about the consequences before acting, would see to be a likely consequence of his conduct. That
simple test, described by Lord Atkin in his classical exposition in M'Alister (or Donoghue) v Stevenson [1932] AC 562
at 580, [1932] All ER Rep 1 at 11 as 'demonstrably too wide' -- as indeed it clearly was -- was, however, refined by him
into the more restricted 'neighbour' test which introduced, in addition to the element of reasonable foreseeability, the
essential but illusive concept of 'proximity' or 'directness'. Citation of a principle so familiar may justly be described as
trite but it is, I think, of critical importance in the context of the instant appeals.

The failure of the law in general to compensate for injuries sustained by persons unconnected with the event
precipitated by a defendant's negligence must necessarily import the lack of any legal duty owed by the defendant to
such persons. That cannot, I think, be attributable to some arbitrary but unenunciated rule of 'policy' which draws a line
as the outer boundary of the area of duty. Nor can it rationally be made to rest upon such injury being without the area
of reasonable foreseeability. It must, as it seems to me, be attributable simply to the fact that such persons are not, in
contemplation of law, in a relationship of sufficient proximity to or directness with the tortfeasor as to give rise to a duty
of care, though no doubt 'policy', if that is the right word, or perhaps more properly, the impracticability or
unreasonableness of entertaining claims to the ultimate limits of the consequences of human activity, necessarily plays a
part in the court's perception of what is sufficiently proximate.

What is more difficult to account for is why, when the law in general declines to extend the area of compensation to
those whose injury arises only from the circumstances of their relationship to the primary victim, an exception has
arisen in those cases in which the event of injury to the primary victim has been actually witnessed by the plaintiff and
the injury claimed is established as stemming from that fact. That such an exception exists is now too well established
to be called in question. What is less clear, however, is the ambit of the duty in such cases or, to put it another way,
what is the essential characteristic of such cases that marks them off from those cases of injury to uninvolved persons in
which the law denies any remedy for injury of precisely the same sort.

Although it is convenient to describe the plaintiff in such a case as a 'secondary' victim, that description must not be
permitted to obscure the absolute essentiality of establishing a duty owed by the defendant directly to him -- a duty
which depends not only upon the reasonable foreseeability of damage of the type which has in fact occurred to the
particular plaintiff but also upon the proximity or directness of the relationship between the plaintiff and the defendant.
The difficulty lies in identifying the features which, as between two persons who may suffer effectively identical
psychiatric symptoms as a result of the impression left upon them by an accident, establish in the case of one who was
present at or near the scene of the accident a duty in the defendant which does not exist in the case of one who was not.
The answer cannot, I think, like in the greater foreseeability of the sort of damage which the plaintiff has suffered. The
traumatic effect on, for instance, a mother on the death of her child is as readily foreseeable in a case where the
circumstances are described to her by an eye witness at the inquest as it is in a case where she learns of it at a hospital
immediately after the event. Nor can it be the mere suddenness or unexpectedness of the event, for the news brought by
a policeman hours after the event may be as sudden and unexpected to the recipient as the occurrence of the event is to
the spectator present at the scene. The answer has, as it seems to me, to be found in the existence of a combination of
circumstances from which the necessary degree of 'proximity' between the plaintiff and the defendant can be deduced.
And, in the end, it has to be accepted that the concept of 'proximity' is an artificial one which depends more upon the
court's perception of what is the reasonable area for the imposition of liability than upon any logical process of
analogical deduction.

The common features of all the reported cases of this type decided in this country prior to the decision of Hidden J
in the instant case ([1991] 1 All ER 353, [1991] 2 WLR 814) and in which the plaintiff succeeded in establishing
 Page 17
[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

liability are, first, that in each case there was a marital or parental relationship between the plaintiff and the primary
victim, secondly, that the injury for which damages were claimed arose from the sudden and unexpected shock to the
plaintiff's nervous system, thirdly, that the plaintiff in each case was either personally present at the scene of the
accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards and, fourthly, that
the injury suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the
primary victim. Lastly, in each case there was not only an element of physical proximity to the event but a close
temporal connection between the event and the plaintiff's perception of it combined with a close relationship of
affection between the plaintiff and the primary victim. It must, I think, be from these elements that the essential
requirement of proximity is to be deduced, to which has to be added the reasonable foreseeability on the part of the
defendant that in that combination of circumstances there was a real risk of injury of the type sustained by the particular
plaintiff as a result of his or her concern for the primary victim. There may, indeed, be no primary 'victim' in fact. It is,
for instance, readily conceivable that a parent may suffer injury, whether physical or psychiatric, as a result of
witnessing a negligent act which places his or her child in extreme jeopardy but from which, in the event, the child
escapes unharmed. I doubt very much, for instance, whether King v Phillips [1953] 1 All ER 617, [1953] 1 QB 429,
where a mother's claim for damages for shock caused by witnessing a near accident to her child was rejected, would be
decided in the same way today in the light of later authorities. It would, for instance, have made no difference to the
result in Hambrook v Stokes Bros [1925] 1 KB 141, [1924] All ER Rep 110, if the plaintiff's child had not, as she did in
fact, suffered any injury at all. In that case, the Court of Appeal, by a majority, held that a plaintiff who, while using the
highway, had seen a runaway lorry which threatened, and indeed subsequently caused, injury to her child, was entitled
to recover so long as the shock from which she claimed to be suffering was due to her own visual perception and not to
what she had been subsequently told by third persons. The primary difficult here was that of establishing the
foreseeability of the injury which the plaintiff suffered rather than the proximity of her relationship to the defendant,
who owed her the same duty as he owed to any other users of the highway. It is interesting to note, however, that Atkin
LJ clearly contemplated the possibility of a successful action at the suit of a mere bystander given sufficiently horrifying
circumstances (see [1925] 1 KB 141 at 158-159, [1924] All ER Rep 110 at 117). In Owens v Liverpool Corp [1938] 4
All ER 727, [1939] 1 KB 394 mourners at a funeral, apparently relatives of the deceased, recovered damages for shock
allegedly occasioned by negligence of the defendant's tram driver in damaging the hearse and upsetting the coffin.
Although this lends support to the suggestion that such damages may be recoverable by a mere spectator, it is doubtful
how far the case, which was disapproved by three members of this House in Hay (or Bourhill) v Young [1942] 2 All ER
396 at 400, 406, 408-409, [1943] AC 92 at 100, 110, 116 can be relied upon.

In Bourhill v Young the pursuer was neither related to or known to the deceased cyclist, who was the victim of his
own negligence, nor did she witness the accident, although she heard the crash from some 50 feet away and some time
later saw blood on the road. She had no apprehension of injury to herself but simply sustained a nervous shock as a
result of the noise of the collision. That injury sustained through nervous shock was capable of grounding a claim for
damages was never in doubt, but the pursuer's claim failed because injury of that type to her was not within the area of
the deceased's reasonable contemplation. The physical proximity of the pursuer to the point of collision was outside the
area in which the deceased could reasonably have contemplated any injury to her and that answered both the question of
whether there was reasonable foresight and whether there was any relationship with the deceased inferring a duty of
care. The case is thus a good illustration of the coalescence of the two elements of reasonable foreseeability and
proximity, but otherwise it affords little assistance in establishing any criterion for the degree of proximity which would
establish the duty of care, save that it implies necessity for a closer degree of physical propinquity to the event than has
been thought necessary in subsequent cases. It is, however, worth noting that the pursuer's claim was not dismissed in
limine on the ground that she was no more than, at highest, a mere spectator.

Hinz v Berry [1970] 1 All ER 1074, [1970] 2 QB 40 was a case where the only issue was not recoverability of
damages but the correct quantum in the particular circumstances. It is a useful illustration of the extreme difficulty of
separating the compensatable injury arising from the presence of the plaintiff at the scene of an accident from the
non-compensatable consequences flowing the simple fact that the accident has occurred, but it is of little assistance
otherwise, save for a hint in the judgment of Lord Denning MR that an award of damages for shock caused by the sight
 Page 18
[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

of an accident may be restricted to cases where the plaintiff is 'a close relative' (see [1970] 1 All ER 1074 at 1075,
[1970] 2 QB 40 at 42).

The principal argument in the appeal has centred round the question whether, as the appellants contend, the
decision of this House in McLoughlin v O'Brian [1982] 2 All ER 298, [1983] 1 AC 410 establishes as the criterion of
a duty owed by the defendants to the plaintiff a simple test of the foreseeability of injury of the type in fact sustained or
whether, as the respondent maintains, that case imports also a necessary requirement, either as a matter of public policy
or as a measure of proximity, of the existence of some blood or marital relationship between the appellants and the
victims of the negligent conduct. In that case the primary victims of the accident caused by the respondent's negligence
were the husband and two children of the appellant, who were injured, and another child of hers who was killed. At the
time of the accident she was some two miles away but she was taken about an hour later to the hospital where the
injured were being treated and saw them in more or less the state in which they had been brought in. She claimed
damages for the psychiatric injury which she alleged to be the result. The trial judge having held that the injury
complained of was not reasonably foreseeable, his decision was upheld by the Court of Appeal on the rather different
grounds (Stephenson LJ) that, although both the tests of reasonable foreseeability and proximity were satisfied, a duty
of care was precluded by considerations of public policy and (Griffiths LJ) that no duty was owed to those who are
nowhere near the scene of an accident when it occurs (see [1981] 1 All ER 809 at 820, 827-828, [1981] QB 599 at
613-614, 623-624). In this House, although the members of the Appellate Committee were unanimous in allowing the
appeal the speeches displayed distinct differences of approach. All were agreed that actually witnessing or being
present at or near the scene of an accident was not essential to ground liability in an appropriate case, but that the duty
might equally be owed to one who comes upon the immediate aftermath of the event. Thus such a person, given always
the reasonable foreseeability of the injury in fact sustained and of such persons witnessing it, may be within the area of
proximity in which a duty of care may be found to exist.

The diversity of view arose at the next stage, that is to say that of ascertaining whether the relationship between the
plaintiff and the primary victim was such as to support the existence of such a duty. That can be expressed in various
ways. It may be asked whether, as a matter of the policy of the law, a relationship outside the categories of those in
which liability has been established by past decisions can be considered sufficiently proximate to give rise to the duty,
quite regardless of the question of foreseeability. Or it may be asked whether injury of the type with which these
appeals are concerned can ever be considered to be reasonably foreseeable where the relationship between the plaintiff
and the primary victim is more remote than that of an established category. Or, again, it may be asked whether, even
given proximity and foreseeability, nevertheless the law must draw an arbitrary line at the boundary of the established
category or some other wider or narrower category of relationships beyond which no duty will be deemed to exist. Lord
Wilberforce appears to have favoured the last of these three approaches, but found it, in the event, unnecessary to
determine the boundary since the case then before the House concerned a claim within a category which had already
been cleared established. He did not altogether close the door to an enlargement of the area of the possible duty but
observed ([1982] 2 All ER 298 at 304, [1983] 1 AC 410 at 422):

'. . . other cases involving less close relationships must be very carefully scrutinised. I cannot say that they should
never be admitted. The closer the tie (not merely in relationship, but in care) the greater the claim for consideration.
The claim, in any case, has to be judged in the light of the other factors, such as proximity to the scene in time and
place, and the nature of the accident.'

In so far as this constituted an invitation to courts seised of similar problems in the future to draw lines determined
by their perception of what public policy requires, it was an invitation accepted by Parker LJ in the Court of Appeal in
the instant case. It was his view that liability should, as a matter of policy, determine at the relationship of parents or
spouse and should be restricted to persons present at or at the immediate aftermath of the incident from which injury
arose. The approach of Lord Edmund-Davies and Lord Russell of Killowen, as I read their speeches, was similar to that
of Lord Wilberforce. On the other hand, Lord Bridge of Harwich, with whom Lord Scarman agreed, rejected an appeal
to policy considerations as a justification for fixing arbitrary lnes of demarcation of the duty in negligence. Lord Bridge
propounded simply a criterion of the reasonable foreseeability by the defendant of the damage to the plaintiff which had
 Page 19
[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

occurred without necessarily invoking physical presence at or propinquity to the accident or its aftermath or any
particular relationship to the primary victim as limiting factors, although, of course, clearly these elements would be
important in the determination of what, on the facts of any given case, would be reasonably foreseeable (see [1982] 2
All ER 298 at 319-320, [1983] 1 AC 410 at 441-443). He expressed himself as in complete agreement with Tobriner J
in Dillon v Legg (1968) 68 Cal 2d 728 at 740, that the existence of the duty must depend on reasonable foreseeability
and --

'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 of the future.'

Counsel for the appellants and for the respondent respectively have invited your Lordships to accept or reject one or
other of these two approaches on the footing that they represent mutually exclusive alternatives and to say on the one
hnad that the only criterion for the establishment of liability is the reasonable foreseeability of damage in accordance
with the views expressed by Lord Bridge (which, it is urged, existed in the case of each of the appellants) or, on the
other hand, that liability must, as a matter of public policy, be decreed to stop at the case of a spouse or parent and in
any event must be restricted to injury to a person who was physically present at the event or at its aftermath and
witnessed one or the other.

My Lords, for my part, I have not felt able to accept either of these two extreme positions nor do I believe that the
views expressed in McLoughlin v O'Brian [1982] 2 All ER 298, [1983] 1 AC 410 are as irreconcilable as has been
suggested. If I may say so with respect, the views expressed by Lord Bridge are open to the criticism that, on their face,
they entirely ignore the critical element of proximity to which reference has been made, taking us back to the
'demonstrably too wide' proposition of Brett MR in Heaven v Pender (1883) 11 QBD 503, [1881-5] All ER Rep 35. But
the critical part played by this element is very clearly expressed by Lord Bridge himself in his speech in Caparo
Industries plc v Dickman [1990] 1 All ER 568 at 574, 576-578, [1990] 2 AC 605 at 618, 621, 623, and I do not believe
for one moment that, in expressing his view with regard to foreseeability in McLoughlin v O'Brian, he was
overlooking that element which is, after all, implicit in any discussion of tortious negligence based upon Lord Atkin's
classical statement of principle (see Donoghue v Stevenson [1932] AC 562 at 579-580, [1932] All ER Rep 1 at 11), or
was doing more than meeting the argument which had been advanced that, even given foreseeability, an immutable line
either had been or ought to be drawn by the law at the furthest point reached by previously decided cases. Equally, I do
not read Lord Wilberforce (whose remarks in this context were, in any event, obiter since the question of fixing lines of
demarcation by reference to public policy did not in fact arise) as excluding altogether a pragmatic approach to claims
of this nature. 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.

My Lords, speaking for myself, I see no logic and no virtue in seeking to lay down as a matter of 'policy' categories
of relationship within which claims may succeed and without which they are doomed to failure in limine. So rigid an
approach would, I think, work great injustice and cannot be rationally justified. Obviously a claim for damages for
psychiatric injury by a remote relative of the primary victim will factually require most cautious scrutiny and faces
considerable evidentiary difficulties. Equally obviously, the foreseeability of such injury to such a person will be more
difficult to establish than similar injury to a spouse or parent of the primary victim. But these are factual difficulties and
I can see no logic and no policy reason for excluding claims by more remote relatives. Suppose, for instance, that the
primary victim has lived with the plaintiff for 40 years, both being under the belief that they are lawfully married. Does
she suffer less shock or grief because it is subsequently discovered that their marriage was invalid? The source of the
shock and distress in all these cases is the affectionate relationship which existed between the plaintiff and the victim
and the traumatic effect of the negligence is equally foreseeable, given that relationship, however the relationship arises.
Equally, I would not exclude the possibility envisaged by my noble and learned friend Lord Ackner of a successful
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[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

claim, given circumstances of such horror as would be likely to traumatise even the most phlegmatic spectator, by a
mere bystander. That is not, of course, to say that the closeness of the relationship between plaintiff and primary victim
is irrelevant, for the likelihood or unlikelihood of a person in that relationship suffering shock of the degree claimed
from the event must be a most material factor to be taken into account in determining whether that consequence was
reasonably foreseeable. In general, for instance, it might be supposed that the likelihood of trauma of such a degree as
to cause psychiatric illness would be less in the case of a friend or a brother-in-law than in that of a parent or fiance.

But in every case the underlying and essential postulate is a relationship of proximity between plaintiff and
defendant and it is this, as it seems to me, which must be the determining factor in the instant appeals. No case prior to
the hearing before Hidden J ([1991] 1 All ER 353, [1991] 2 WLR 814) from which these appeals arise has
countenanced an award of damages for injuries suffered where there was not at the time of the event a degree of
phsyical propinquity between the plaintiff and the event caused by the defendant's breach of duty to the primary victim
nor where the shock sustained by the plaintiff was not either contemporaneous with the event or separated from it by a
relatively short interval of time. The necessary element of proximity between plaintiff and defendant is furnished, at
least in part, by both physical and temporal propinquity and also by the sudden and direct visual impression on the
plaintiff's mind of actually witnessing the event or its immediate aftermath. To use Lord Wilberforce's words in
McLoughlin's case [1982] 2 All ER 298 at 304-305, [1983] 1 AC 410 at 422-423:

'As regards proximity to the accident, it is obvious that this must be close in both time and space . . . The shock
must come through sight or hearing of the event or of its immediate aftermath.'

Grief, sorrow, deprivation and the necessity for caring for loved ones who have suffered injury or misfortune must,
I think, be considered as ordinary and inevitable incidents of life which, regardless of individual susceptibilities, must
be sustained without compensation. It would be inaccurate and hurtful to suggest that grief is made any the less real or
deprivation more tolerable by a more gradual realisation, but to extend liability to cover injury in such cases would be to
extend the law in a direction for which there is no pressing policy need and in which there is no logical stopping point.
In my opinion, the necessary proximity cannot be said to exist where the elements of immediacy, closeness of time and
space, and direct visual or aural perception are absent. I would agree with the view expressed by Nolan LJ that there
may well be circumstances where the element of visual perception may be provided by witnessing the actual injury to
the primary victim on simultaneous television, but that is not the case in any of the instant appeals and I agree with my
noble and learned friend Lord Keith of Kinkel that, for the reasons which he gives, the televised images seen by the
various appellants cannot be equiparated with 'sight or hearing of the event'. Nor did they provide the degree of
immediacy required to sustain a claim for damages for nervous shock. That they were sufficient to give rise to worry
and concern cannot be in doubt, but in each case other than those of Brian Harrison and Robert Alcock, who were
present at the ground, the appellant learnt of the death of the victim at second hand and many hours later. As I read the
evidence, the shock in each case arose not from the original impact of the transmitted image which did not, as has been
pointed out, depict the suffering of recognisable individuals. These images provided no doubt the matrix for imagined
consequences giving rise to grave concern and worry, followed by a dawning consciousness over an extended period
that the imagined consequence had occurred, finally confirmed by news of the death and, in some cases, subsequent
visual identification of the victim. The trauma is created in part by such confirmation and in part by the linking in the
mind of the plaintiff of that confirmation to the previously absorbed image. To extend the notion of proximity in cases
of immediately created nervous shock to this more elongated and, to some extent, retrospective process may seem a
logical analogical development. But, as I shall endeavour to show, the law in this area is not wholly logical and whilst
having every sympathy with the appellants, whose suffering is not in doubt and is not to be underrated, I cannot for my
part see any pressing reason of policy for taking this further step along a road which must ultimately lead to virtually
limitless liability. Whilst, therefore, I cannot, for the reasons which I have sought to explain, accept Mr Woodward
QC's submission that it is for your Lordships to lay down, on grounds of public policy, an arbitrary requirement of the
existence of a particular blood or marital relationship as a precondition of liability, I equally believe that further
pragmatic extensions of the acepted concepts of what constitutes proximity must be approached with the greatest
caution. McLoughlin v O'Brian was a case which itself represented an extension not, as I think, wholly free from
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[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

difficulty and any further widening of the area of potential liability to cater for the expanded and expanding range of the
media of communication ought, in my view, to be undertaken rather by Parliament, with full opportunity for public
debate and representation, than by the process of judicial extrapolation.

In the case of both Brian Harrison and Robert Alcock, although both were present at the ground and saw scenes
which were obviously distressing and such as to cause grave worry and concern, their perception of the actual
consequences of the disaster to those to whom they were related was again gradual. In my judgment, the necessary
proximity was lacking in their cases too, but I also agree with my noble and learned friend Lord Keith of Kinkel that
there is also lacking the necessary element of reasonable foreseeability. Accordingly, I too would dismiss the appeals
and it follows from what I have said that I agree that the correctness of the decisions in Hevican v Ruane [1991] 3 All
ER 65 and Ravenscroft v Rederiaktiebolaget Transatlantic [1991] 3 All ER 73 must be seriously doubted.

I would only add that I cannot, for my part, regard the present state of the law as either entirely satisfactory or as
logically defensible. If there exists a sufficient degree of proximity to sustain a claim for damages for nervous shock,
why it may justifably be asked, does not that proximity also support that perhaps more easily foreseeable loss which the
plaintiff may suffer as a direct result of the death or injury from which the shock arises. That it does not is, I think, clear
from Hinz v Berry [1970] 1 All ER 1074 esp at 1076-1077, [1970] 2 QB 40 esp at 44 per Lord Pearson. But the reason
why it does not has, I think, to be found not in logic but in policy. Whilst not dissenting from the case-by-case approach
advocated by Lord Bridge in McLoughlin's case, the ultimate boundaries within which claims for damages in such
cases can be entertained must I think depend in the end upon considerations of policy. For example, in his illuminating
judgment in Jaensch v Coffey (1984) 54 ALR 417 Deane J expressed the view that no claim could be entertained as a
matter of law in a case where the primary victim is the negligent defendant himself and the shock to the plaintiff arises
from witnessing the victim's self-inflicted injury. The question does not, fortunately, fall to be determined in the instant
case, but I suspect that an English court would be likely to take a similar view. But if that be so, the limitation must be
based upon policy rather than upon logic for the suffering and shock of a wife or mother at witnessing the death of her
husband or son is just as immediate, just as great and just as foreseeable whether the accident be due to the victim's own
or to another's negligence and if the claim is based, as it must be, on the combination of proximity and foreseeability,
there is certainly no logical reason why a remedy should be denied in such a case. Indeed, Mr Huyter QC, for the
appellants, has boldly claimed that it should not be. Take, for instance, the case of a mother who suffers shock and
psychiatric injury through witnessing the death of her son when he negligently walks in front of an oncoming motor car.
If liability is to be denied in such a case such denial can only be because the policy of the law forbids such a claim, for it
is difficult to visualise a greater proximity or a greater degree of foreseeability. Moreover, I can visualise great
difficulty arising, if this be the law, where the accident, though not solely caused by the primary victim has been
materially contributed to by his negligence. If, for instance, the primary victim is himself 75% responsible for the
accident, it would be a curious and wholly unfair situation if the plaintiff were enabled to recover damages for his or her
traumatic injury from the person responsible only in a minor degree whilst he in turn remained unable to recover any
contribution from the person primarily responsible since the latter's negligence vis-a-vis the plaintiff would not even
have been tortious.

Policy considerations such as this could, I cannot help feeling, be much better accommodated if the rights of
persons injured in this way were to be enshrined in and limited by legislation as they have been in the Australian statute
law to which my noble and learned friend, Lord Ackner, has referred.

JUDGMENTBY-4: LORD JAUNCEY OF TULLICHETTLE

JUDGMENT-4:

LORD JAUNCEY OF TULLICHETTLE. My Lords, for some 90 years it has been recognised that nervous shock
sustained independently of physical injury and resulting in psychiatric illness can give rise to a claim for damages in an
action founded on negligence. The law has developed incrementally. In Dulieu v White & Sons [1901] 2 KB 669,
[1900-3] All ER Rep 353, a plaintiff who suffered nervous shock as a result of fears for her own safety caused by the
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[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

defendant's negligence was held to have a cause of action. However Kennedy J said that if nervous shock occasioned
by negligence was to give a cause of action it must arise 'from a reasonable fear of immediate personal injury to oneself'
(see [1901] 2 KB 669 at 675, [1900-3] All ER Rep 353 at 357). In Hambrook v Stokes Bros [1925] 1 KB 141, [1924]
All ER Rep 110 Kennedy J's foregoing limitation was disapproved by the majority of the Court of Appeal who held that
a mother who had sustained nervous shock as a result of fear for the safety of her three children due to the movement of
an unmanned lorry had a cause of action against the owner of the lorry. Until 1983 however there had in England been
no case in which a plaintiff had been able to recover damages for nervous shock when the event giving rise to the shock
had occurred out of sight and out of earshot. I use the word 'event' as including the accident and its immediate
aftermath. In McLoughlin v O'Brian [1982] 2 All ER 298, [1983] 1 AC 410 a wife and a mother suffered nervous
shock after seeing her husband and children in a hospital to which they had been taken after a road accident. The wife
was not present at the locus but reached the hospital before her husband and son and daughter had been cleaned up and
when they were all very distressed. This was the first case in the United Kingdom in which a plaintiff who neither saw
nor heard the accident nor saw its aftermath at the locus successfully claimed damages for nervous shock. These
appeals seek to extend further the circumstances in which damages for nervous shock may be recovered.

I start with the proposition that the existence of a duty of care on the part of the defendant does not depend on
foreseeability alone. Reasonable foreseeability is subject to controls. In support of this proposition I rely on the speech
of Lord Wilberforce in McLoughlin v O'Brian [1982] 2 All ER 298 at 303, [1983] 1 AC 410 at 420-421 and on the
carefully reasoned judgment of Deane J in the High Court of Australia in Jaensch v Coffey (1984) 54 ALR 417 at
439-445. In a case of negligence causing physical injury to an employee or to a road user reasonable foreseeability may
well be the only criterion by which liability comes to be judged. However, in the case of negligence causing shock
different considerations apply because of the wide range of people who may be affected. For this reason Lord
Wilberforce in McLoughlin v O'Brian [1982] 2 All ER 298 at 304, [1983] 1 AC 410 at 421-422 said:

'. . . there remains . . . a real need for the law to place some limitation on 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.'

The class of persons with recognisable claims will be determined by the law's approach as to who ought according
to its standards of value and justice to have been in the defendant's contemplation. (Again McLoughlin v O'Brian
[1982] 2 All ER 298 at 303, [1983] 1 AC 410 at 420 per Lord Wilberforce). The requisite element of proximity in the
relation of the parties also constitutes an important control on the test of reasonable foreseeability (Deane J in the
Jaensch case). The means by which the shock is caused constitutes a third control, although in these appeals I find it
difficult to separate this from proximity.

The present position in relation to recognisable claims is that parents and spouses have been held entitled to recover
for shock caused by fear for the safety of their children or the other spouse. No remoter relative has successfully
claimed in the United Kingdom. However a rescuer and a crane driver have recovered damages for nervous shock
sustained as a result of fear for the safety of others in circumstances to which I must now advert.

In Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd's Rep 271 Donovan J awarded damages to a crane driver who
suffered nervous shock when a rope connecting a sling to the crane hooks snapped causing the load to fall into the hold
of a ship in which men were working. The nervous shock resulted from the plaintiff's fear that the falling load would
injure or kill some of his fellow workmen. Donovan J drew the inference that the men in the hold were friends of the
plaintiff and later stated (at 277):

'Furthermore, if the driver of the crane concerned fears that the load may have fallen upon some of his fellow
workmen, and that fear is not baseless or extravagant, then it is, I think, a consequence reasonably to have been foreseen
that he may himself suffer a nervous shock.'

Although Donovan J treated the matter simply as one of reasonable foreseeability I consider that the case was a
 Page 23
[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

very special one. Unlike the three cases to which I have referred in which the plaintiff was merely an observer of the
accident or its immediate aftermath. Dooley was operating the crane and was therefore intimately involved in, albeit in
no way responsible for, the accident. In these circumstances the defendants could readily have foreseen that he would
be horrified and shocked by the failure of the rope and consequent accident which he had no power to prevent. I do not
consider that this case is of assistance where, as here, the plaintiffs were not personally involved in the disaster. In
Chadwick v British Transport Commission [1967] 2 All ER 945, [1967] 1 WLR 912 the plaintiff recovered damages for
nervous shock sustained as a result of his prolonged rescue efforts at the scene of a serious railway accident which had
occurred near his home. The shock was caused neither by fear for his own safety nor for that of close relations. The
position of the rescuer was recognised by Cardozo J in Wagner v Intrnational Rly Co (1921) 232 NY 176 at 180:

'Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the
mind in tracing conduct to its consequences. It recognises them as normal. It places their effects within the range of the
natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer.'

Lord Wilberforce in McLoughlin v O'Brian [1982] 2 All ER 298 at 302, [1983] 1 AC 410 at 419 considered that
the principle of rescuers ought to be accepted. This is a particular instance where the law not only considers that the
individual responsible for an accident should foresee that persons will come to the rescue and may be shocked by what
they see but also considers it appropriate that he should owe to them a duty of care. I do not however consider that
either of these cases justify the further development of the law sought by the appellants.

Of the six appellants who were successful before Hidden J only one, who lost two brothers, was present at the
ground. The others saw the disaster on television, two of them losing a son and the remaining three losing brothers. Of
the four appellants who were unsuccessful before the judge, one who lost his brother-in-law was at the ground, one who
lost her fiance saw the disaster on television, another who lost her brother heard initial news while shopping and more
details on the wireless during the evening and a third who lost a grandson heard of the disaster on the wireless and later
saw a recorded television programme. Thus all but two of the appellants were claiming in respect of shock resulting
from the deaths of persons outside the categories of relations so far recognised by the law for the purposes of this type
of action. It was argued on their behalf that the law has never excluded strangers to the victim from claiming for
nervous shock resulting from the accident. In support of this proposition the appellants relied on Dooley v Cammell
Laird & Co Ltd and Chadwick v British Transport Commission as well as upon the following passage from the
judgment of Atkin LJ in Hambrook v Stokes Bros [1925] 1 KB 141 at 157, [1924] All ER Rep 110 at 116:

'Personally I see no reason for excluding the bystander in the highway who receives injury in the same way from
apprehension of or the actual sight of injury to a third party.'

However, the suggested inclusion of the bystander has not met with approval in this House. In Hay (or Bourhill) v
Young [1942] 2 All ER 396 at 409, [1943] AC 92 at 117 Lord Porter said:

'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.'

In McLoughlin v O'Brian [1982] 2 All ER 298 at 304, [1983] 1 AC 410 at 422 Lord Wilberforce said that
existing law denied the claims 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 defendants cannot be expected to compensate the world at large.'

While it is not necessary in these appeals to determine where stands the ordinary bystander I am satisfied that he
cannot be prayed in aid by the appellants.
 Page 24
[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

Should claims for damages for nervous shock in circumstances such as the present be restricted to parents and
spouses or should they be extended to other relatives and close friends and, if so, where, if at all, should the line be
drawn? In McLoughlin v O'Brian [1982] 2 All ER 298 at 304, [1983] 1 AC 410 at 422 Lord Wilberforce in the
context of the class of persons whose claim should be recognised said:

'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 . . . In my opinion, these positions are justifiable, and since the present case falls within the first class it is
strictly unnecessary to say more. I think, however, that it should follow that other cases involving less close
relationships must be very carefully scrutinised. I cannot say that they should never be admitted. The closer the tie (not
merely in relationship, but in care) the greater the claim for consideration. The claim, in any case, has to be judged in
the light of the other factors, such as proximity to the scene in time and place and the nature of the accident.'

I would respectfully agree with Lord Wilberforce that cases involving less close relatives should be very carefully
scrutinised. That, however, is not to say they must necessarily be excluded. The underlying logic of allowing claims of
parents and spouses is that it can readily be foreseen by the tortfeasor that if they saw or were involved in the immediate
aftermath of a serious accident or disaster they would, because of their close relationship of love and affection with the
victim, be likely to suffer nervous shock. There may, however, be others whose ties of relationship are as strong. I do
not consider that it would be profitable to try and define who such others might be or to draw any dividing line between
one degree of relationship and another. To draw such a line would necessarily be arbitrary and lacking in logic. In my
view the proper approach is to examine each case on its own facts in order to see whether the claimant has established
so close a relationship of love and affection to the victim as might reasonably be expected in the case of spouses or
parents and children. If the claimant has so established and all other requirements of the claim are satisfied he or she
will succeed since the shock to him or her will be within the reasonable contemplation of the tortfeasor. If such
relationship is not established the claim will fail.

I turn to the question of proximity which arises in the context of those appellants who saw the disaster on television
either contemporaneously or in later recorded transmissions and of those who identified their loved ones in the
temporary mortuary some nine or more hours after the disaster had taken place. I refer once again to a passage in the
speech of Lord Wilberforce in McLoughlin v O'Brian [1982] 2 All ER 298 at 304, [1983] 1 AC 410 at 422:

'As regards proximity to the accident, it is obvious that this must be close in both time and space. It is after all, the
fact and consequence of the defendant's negligence that must be proved to have caused the "nervous shock".
Experience has shown that to insist on direct and immediate sight or hearing would be impractical and unjust and that
under what may be called the "aftermath" doctrine, one who, from close proximity comes very soon on the scene,
should not be excluded. In my opinion, the result in Benson v Lee [1972] VR 879 was correct and indeed inescapable.
It was based, soundly, on "direct perception of some of the events which go to make up the accident as an entire event,
and this includes . . . the immediate aftermath . . . " [at 880]'

Lord Wilberforce expressed the view that a 'strict test of proximity by sight or hearing should be applied by the
courts'. Later he said ([1982] 2 All ER 298 at 305, [1983] 1 AC 410 at 422-423):

'The shock must come through sight or hearing of the event or of its immediate aftermath. Whether some
equivalent of sight or hearing, eg through simultaneous television, would suffice may have to be considered.'

Mr Lords, although Lord Wilberforce in McLoughlin v O'Brian did not close the door to shock coming from the
sight of simultaneous television I do not consider that a claimant who watches a normal television programme which
displays events as they happen satisfies the test of proximity. In the first place a defendant could normally anticipate
that in accordance with current television broadcasting guidelines shocking pictures of persons suffering and dying
would not be transmitted. In the second place, a television programme such as that transmitted from Hillsborough
involves cameras at different viewpoints showing scenes all of whihc no one individual would see, edited pictures and a
 Page 25
[1992] 1 AC 310, [1991] 4 All ER 907, [1991] 3 WLR 1057, 8 BMLR 37

commentary superimposed. I do not consider that such a programme is equivalent to actual sight or hearing at the
accident or its aftermath. I say nothing about the special circumstances envisaged by Nolan LJ in his judgment in this
case (sub nom Jones v Wright [1991] 3 All ER 88 at 122). If a claimant watching a simultaneous television broadcast
does not satisfy the requirements of proximity it follows that a claimant who listens to the wireless or sees a subsequent
television recording falls even shorter of the requirement.

My Lords, what constitutes the immediate aftermath of an accident must necessarily depend upon the surrounding
circumstances. To essay any comprehensive definition would be a fruitless exercise. In McLoughlin v O'Brian the
immediate aftermath extended to a time somewhat over an hour after the accident and to the hospital in which the
victims were waiting to be attended to. It appears that they were in very much the same condition as they would have
been had the mother found them at the scene of the accident. In these appeals the visits to the mortuary were made no
earlier than nine hours after the disaster and were made not for the purpose of rescuing or giving comfort to the victim
but purely for the purpose of identification. This seems to me to be a very different situation from that in which a
relative goes within a short time after an accident to rescue or comfort a victim. I consider that not only the purpose of
the visits to the mortuary but also the times at which they were made take them outside the immediate aftermath of this
disaster.

Mr Lords, only two appellants, Mr and Mrs Copoc, lost a son, but they saw the disaster on television and Mr Copoc
identified the body on the following morning having already been informed that his son was dead. No appellant lost a
spouse. None of the other appellants who lost relatives sought to establish that they had relationships of love and
affection with a victim comparable to that of a spouse or parent. In any event only two of them were present in the
ground and the remainder saw the scens on simultaneous or recorded television. In these circumstances none of the
appellants having satisfied both the tests of reasonable foreseeability and of proximity I would dismiss all the appeals.

JUDGMENTBY-5: LORD LOWRY

JUDGMENT-5:

LORD LOWRY. My Lords, I have enjoyed the advantage of reading in draft the speeches of your Lordships, all of
whom have reached the same conclusion, namely that these appeals should be dismissed. Concurring as I do in that
conclusion, I do not consider that it would be helpful to add further observations of my own to what has already been
said by your Lordships.

DISPOSITION:

Appeals dismissed.

SOLICITORS:

Sharpe Pritchard (agents for John Pickering, Liverpool, Cuff Roberts, Liverpool, Silverman Livermore, Liverpool,
Ford & Warren, Leeds, Alexander Harris & Co, Sale and Mace & Jones, Huyton); Penningtons (agents for Hammond
Suddards, Bradford)
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