HICKS AND OTHERS
(APPELLANTS)
v.
WRIGHT
(SUED AS CHIEF CONSTABLE OF THE SOUTH YORKSHIRE
POLICE)
(RESPONDENT)
Lord Templeman
Lord Bridge of Harwich
Lord Griffiths
Lord Goff of Chieveley
Lord Browne-Wilkinson
LORD TEMPLEMAN
My Lords,
For the reasons given by my noble and learned friend Lord
Bridge of Harwich I would dismiss this appeal.
LORD BRIDGE OF HARWICH
My Lords,
The appellants are the parents of two girls, Sarah and
Victoria Hicks, who died in the disaster at Hillsborough Football
Stadium on 15 April 1989 when they were respectively 19 and 15
years of age. In this action they claim damages under the Law
Reform (Miscellaneous Provisions) Act 1934 for the benefit of the
estate of each daughter of which they are in each case the
administrators. The respondent is the Chief Constable of South
Yorkshire who does not contest his liability to persons who
suffered damage in the disaster. The basis of the claim advanced
here is that at the moment of death Sarah and Victoria each had
an accrued cause of action for injuries suffered prior to death
which survived for the benefit of their respective estates. The
action was tried by Hidden J. who held that the plaintiffs had
failed to prove that either girl suffered before death any injury
for which damages fell to be awarded. His decision was affirmed
by the Court of Appeal (Parker, Stocker and Nolan L.JJ.). Appeal
is now brought to your Lordships’ House by leave of the Court of
Appeal.
No one can feel anything but the greatest sympathy for the
relatives of those who died in the disaster, the circumstances of
which are now all too well known. The anguish of parents caused
by the death in such a horrifying event of sons and daughters who
were on the very threshold of life must indeed have been almost
unbearable. But the common law has never awarded damages for
the pain of bereavement. The Administration of Justice Act 1982
section 3(1), by substitution of section 1A of the Finance Act
1976, introduced such a claim for the first time in the fixed sum
of £3,500 (subsequently increased by statutory instrument to
£7,500) but only for the benefit of a spouse in respect of the
death of the other spouse or for the benefit of parents in respect
of the death of a minor child. The same Act, by section 1,
abolished the right to an award of damages in a conventional sum
for the benefit of the estate of the deceased under the Act of
1934 in respect of the deceased’s loss of expectation of life, save
to the limited extent provided by section l(l)(b), which is not here
relevant. Such conventional awards had long been felt to be
anomalous. In respect of the deaths of Sarah and Victoria there
was no dependency and hence no claim under the Fatal Accidents
Acts. Thus, apart from a bereavement claim under the Act of
1982 in respect of Victoria, a claim for damages in respect of
injuries suffered before death was the only claim which Mr. and
Mrs. Hicks could bring.
This action and another action tried by Hidden J. at the
same time, which also failed and has not been pursued beyond the
Court of Appeal, were said to be test cases which would afford
guidance in relation to other similar claims arising out of the
Hillsborough disaster. We were assured by counsel, and I have no
reason to doubt it, that the action was not brought for the sake
of the money that may be awarded but rather to mark the anger
of these parents and other bereaved relatives at what occurred.
But whatever justification there may be for that anger has no
relevance to damages in a civil action for negligence, which are
compensatory, not punitive.
The difficulty which immediately confronts the appellants in
this House is that the question what injuries Sarah and Victoria
suffered before death was purely one of fact and Hidden J.’s
conclusion on the evidence that the plaintiffs had failed to
discharge the onus of proving any such injury sufficient to attract
an award of damages was a finding of fact affirmed by the Court
of Appeal. The appellants must therefore persuade your Lordships
to reverse those concurrent findings if they are to succeed. Mr.
Hytner says that the primary facts were not in dispute and
submits, therefore, that the House is in as good a position as the
courts below to draw the proper inferences from those primary
facts. But this submission ignores the special restraint with which
the House approaches findings of fact which are concurrent. In
Higgins v. J. & C. M. Smith (Whiteinch) Ltd., 1990 S.C. (H.L.) 63,
Lord 3auncey of Tullichettle, in a speech with which the rest of
their Lordships agreed, said at p. 82:
“Where there are concurrent findings of fact in the courts
below generally this House will interfere with those findings
only where it can be shown that both courts were clearly
wrong. It is nothing to the point that this House might on
the evidence have reached a different conclusion, . . . The
principle does not depend upon the advantage possessed by
the judge of first instance of seeing and hearing the
– 2 –
witnesses – that advantage will already have been reflected
in the decision of the lower appellate court to confirm the
findings of the judge.”
This statement of principle in a Scottish appeal accurately
reflects previous authority to the like effect in an English appeal
(see The Owners of the “P. Caland” and Freight v. Glamorgan
Steamship Co. Ltd. [1893] A.C. 207) and clearly applies to
concurrent inferences of fact whether or not the primary facts are
in dispute.
The evidence here showed that both girls died from
traumatic asphyxia. They were in the pens at one end of the
Hillsborough Stadium to which access was through a tunnel some
23 metres in length. When the pens were already seriously
overcrowded a great number of additional spectators, anxious to
see the football match which was about to start, were admitted
through the turnstiles and surged through the tunnel causing the
dreadful crush in the pens in which 95 people died. Medical
evidence which the judge accepted was to the effect that in cases
of death from traumatic asphyxia caused by crushing the victim
would lose consciousness within a matter of seconds from the
crushing of the chest which cut off the ability to breathe and
would die within 5 minutes. There was no indication in the post
mortem reports on either girl of physical injuries attributable to
anything other than the fatal crushing which caused the asphyxia,
save, in the case of Sarah, some superficial bruising which, on the
evidence, could have occurred either before or after loss of
consciousness. Hidden J. was not satisfied that any physical injury
had been sustained before what he described as the “swift and
sudden [death] as shown by the medical evidence.” Unless the law
were to distinguish between death within seconds of injury and
unconsciousness within seconds of injury followed by death within
minutes, which I do not understand to be suggested, these findings,
as Hidden J. himself said “with regret,” made it impossible for him
to award any damages.
Mr. Hytner sought to persuade your Lordships, as he sought
to persuade the Court of Appeal, that on the whole of the
evidence the judge ought to have found on a balance of
probabilities that there was a gradual build up of pressure on the
bodies of the two girls causing increasing breathlessness,
discomfort and pain from which they suffered for some 20 minutes
before the final crushing injury which produced unconsciousness.
This should have led, he submitted, to the conclusion that they
sustained injuries which caused considerable pain and suffering
while they were still conscious and which should attract a
substantial award of damages. The Court of Appeal, in a
judgment delivered by Parker L.J. with which both Stocker and
Nolan L.JJ. agreed, carefully reviewed the evidence and concluded,
in agreement with Hidden J., that it did not establish that any
physical injury was caused before the fatal crushing injury. I do
not intend myself to embark on a detailed review of the evidence.
In the circumstances I think it sufficient to say that, in my
opinion, the conclusion of fact reached by Hidden J. and the Court
of Appeal was fairly open to them and it is impossible to say that
they were wrong.
– 3 –
A good deal of argument in the courts below and before
your Lordships was addressed to the question whether damages for
physical injuries should be increased on account of the terrifying
circumstances in which they were inflicted. This may depend on
difficult questions of causation. But on the facts found in this
case the question does not arise for decision. It is perfectly clear
law that fear by itself, of whatever degree, is a normal human
emotion for which no damages can be awarded. Those trapped in
the crush at Hillsborough who were fortunate enough to escape
without injury have no claim in respect of the distress they
suffered in what must have been a truly terrifying experience. It
follows that fear of impending death felt by the victim of a fatal
injury before that injury is inflicted cannot by itself give rise to a
cause of action which survives for the benefit of the victim’s
estate.
I would dismiss the appeal.
LORD GRIFFITHS
My Lords,
For the reasons given by my noble and learned friend Lord
Bridge of Harwich I would dismiss this appeal.
LORD GOFF OF CHIEVELEY
My Lords,
For the reasons given by my noble and learned friend Lord
Bridge of Harwich I too would dismiss this appeal.
LORD BROWNE-WILKINSON
My Lords,
For the reasons given by my noble and learned friend Lord
Bridge of Harwich I too would dismiss this appeal.
Source: https://www.bailii.org/
