(These notes aren't comprehensive- feel free to add to them. Additionally, Hinchy has placed his summary of the case on Blackboard under 'Learning Materials'. Using that along with this summary would be advised.)
Brief Summary of the Facts (straight from Westlaw)
There was no duty of care to the friends and relations of those who died in the Hillsborough disaster who watched the event on television.
D was responsible for policing a football match at the Hillsborough stadium where, as a result of overcrowding, 95 people died and many more were injured. Live pictures of the event, an FA Cup semi final, were being broadcast. Ps were all friends or relations of the victims. Some witnessed events from other parts of the stadium. Some saw them live on television, or heard of the events and later saw them on television recordings. All suffered shock and psychiatric illness and claimed damages in negligence from D. At first instance, the judge held that nine Ps who had been in or immediately outside the stadium or had watched it live on television could claim damages but others were excluded. The Court of Appeal allowed D's appeal.
The House of Lords held the Court of Appeal's decision, dismissing Ps' appeal.
Lord Keith of Kinkel
- "…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."
- 'close ties of love and affection' to be proved by the plaintiff as a matter of fact (or presumed from relationship). It is reasonably foreseeable that psychiatric injury might occur to people with such ties.
- For those within the sphere of reasonable foreseeability, the proximity factors listed by Lord Wilbeforce in McLoughlin v O'brian must be taken into account:
1. Direct perception of incident or immediate aftermath
2. Sudden shock
- Neither requirement was satisfied by viewing the scenes on television, or being informed by telephone. Appeal dismissed.
- Reasonable foreseeability alone is not operative. Even when psychiatric injury is reasonably foreseeable:
1. The psychiatric injury must be induced by shock.
2. Being informed of an event is not sufficient, it must be perceived
3. Mere mental suffering is not sufficient
4. There may not be liability to third parties who witness D's self-inflicted harm
5. Shock in this context must be sudden perception of a violent event by sight or sound. Gradual cumulative effects are not sufficient.
- Reasonable foreseeability is not enough to satisfy the neighbour principle: it must be limited by proximity ("so closely and directly affected… that")
- Three elements to admissible claims. Plaintiffs suggest that these are a consideration in determining reasonable foreseeability, defendant contends that these operate as a limitation or control on reasonable foreseeability.
1. The class of persons whose claims should be recognised
This depends on the particular circumstances. There is a (rebuttable) presumption that certain relationships have close ties of affection, though others without such relationships can still establish those ties. Further, in exceptional circumstances (eg. an oil tanker crashing into a school), a by-stander might recover if it was reasonably foreseeable that a relatively strong-nerved person might suffer psychiatric harm in those circumstances.
2. The proximity of the plaintiff to the accident
Direct perception of the accident, or immediate aftermath.
From McLoughlin: identifying a body 1 hour after the accident is at the outer limits of immediate aftermath. In this case, the soonest was 8 hours after, so there was not sufficient proximity.
3. The means by which the shock is caused
A television broadcast may in some cases be sufficient, for example where it may be reasonably expected to show live footage of an incident.
However, in this case, the broadcasters' code of ethics prevented them from showing horrifying images of the dead or injured, and the defendant was aware of this. So, in this case, the television footage can not be equated with 'direct perception or immediate aftermath'.
- Conclusion- Appeals dismissed. Television broadcast was not sufficient. For the two plaintiffs present at the ground (Brian Harrison and Robert Alcock) it was not established that their relationships with the victims (brothers and brothers-in-law) would make them reasonably foreseeable sufferers of psychiatric injury.
Lord Oliver of Aylmerton
- The issue in this appeal is whether a duty to avoid this type of injury was owed to the plaintiffs. On that point, the relevant questions are:
a) Was injury to each plaintiff a reasonably foreseeable consequence of the breach of duty to the primary victims?
b) Was there sufficient proximity or directness between D and each P?
- There are two broad categories of 'nervous shock' cases: those in which the plaintiff was involved as a participant somehow, and those in which P was a passive and unwilling witness. The former are of little relevance here, as in such cases a duty is usually obvious. When P is in direct threat of injury, or is a rescuer, a duty is usually fairly obvious.
- In cases like the present, it is more complex.
~Emphasis on the necessity of proximity.
- There is no logical or policy reason for restricting claims to certain categories of relationships. Obviously, in less close relationships, it may be more difficult to establish reasonable foreseeability of harm.
- "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."
Lord Jauncey of Tullichettle
- Controls: The class of persons who ought to have been in the defendant's contemplation; proximity; the means by which the shock is caused.
- The existence of a close relationship of love and affection should be established in each case, not limited to specific types of relationship. Such a relationship must be established, or the claim will fail.
- Television broadcasting such as in this case is not equivalent to direct perception.
- None of the plaintiffs has satisfied both reasonable foreseeability and proximity. Appeals dismissed.
Well guys, I pretty much agree with all of you. And I have to say … I really appreciate that you didn't go on a tangent slash repeat what everyone else said. Thank you Lord Lowry.