Tranmore v T E Scudder Ltd [1998] EWCA Civ 733 (28 April 1998)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LEEDS COUNTY COURT
(JUDGE WALTON)
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday, 28 April 1998
B e f o r e :
LORD JUSTICE ROCH
LORD JUSTICE ALDOUS
and
LORD JUSTICE BROOKE
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TERENCE TRANMORE
Appellant
– and –
T E SCUDDER LIMITED
Respondent
– – – – – – – – – – – – – – – – – – – – –
(Handed Down judgment of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 831 3183
Official Shorthand Writers to the Court)
– – – – – – – – – – – – – – – – – – – – –
Graham Morrow QC and Paul Kilcoyne (instructed by Craig & Co for the Appellant)
Patrick Limb (instructed by Hammond Suddards for the Respondent)
– – – – – – – – – – – – – – – – – – – – –
JUDGMENT
As Approved
Lord Justice Roch:
The plaintiff in this case has had the great sadness of losing one of his two sons. He sues the defendants who were his deceased’s sons employers in negligence seeking to recover damages for psychiatric illness. The issue that had to be decided by the judge and in respect of which this appeal is brought is whether the defendants owed the plaintiff a duty of care in the circumstances of this case.
It is doubtful whether the issue can be resolved satisfactorily as a preliminary issue on the very limited evidence before the judge. The judge himself pointed out the disadvantages of dealing with the matter in this way. The judge was right, in my view, to approach the issue making these assumptions: that the plaintiff had suffered a psychiatric illness by reason of his attendance at the site where his son was killed. The judge did not have evidence and consequently did not consider whether the plaintiff’s condition came about by the news he was given on his return home from work at 7.30 p.m. on the day of his son’s death or by the anger and frustration that he experienced when at the demolition site. The judge assumed that the plaintiff suffered a psychiatric illness by reason of the shocking events he saw at the site.
The defendants are demolition contractors. They employed the deceased and clearly owed him a duty of care. The collapse of the building and the plaintiff’s son’s death occurred it was accepted because of their negligence. These events occurred at about 6 p.m. on the 16th May 1995. The plaintiff was told of the collapse at about 7.30 p.m. on his return home from work. The plaintiff arrived at the site at about 8.00 p.m. having been driven there by his other son, Paul Tranmore. In the plaintiff’s statement he gives this description of what occurred when he arrived.
“The emergency services were there. I walked to the entrance of the building which was full of rubble and said “Is my son in there?” one of the workers said “Yes”. I completely lost control of myself and started shouting and screaming to the police and the fire brigade that they weren’t doing their job and that they should be getting my son out from under the rubble.”
The plaintiff initially was not able to enter the site, being prevented by a police officer. Later he did enter the site in company with an employee of the defendants whom he knew, a Mr Ridge. Mr Ridge took the plaintiff to the office inside the building which was on the lower ground floor. The plaintiff’s son had fallen through the floor on which he was working when the collapse occurred and then a machine which had been positioned at a higher level had fallen ending up on the first floor on top of rubble under which the deceased was buried. The plaintiff’s son would have been killed instantly. It was not until about 10 p.m. that the plaintiff was told that the rescue services had been able to get into the building and to ascertain that they could not help his son and that his son was dead. In his statement the plaintiff says:
“For two hours I had only known that my son was trapped in the building and that it was too dangerous to get him out.”
The plaintiff had been in the office of the site for some 5 or 6 minutes during the two hour period he was at the site. The plaintiff did not see the machine that had fallen.
The principles applicable to determine whether or not a person is owed a duty of care are well established and have been since Donoghue -v- Stevenson [1932] AC 562. The duty is owed to persons who are “so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”, per Lord Atkin at page 580. A person will be within that definition where that person could forseeably suffer physical injury as a result of the acts or omissions which are called in question. A person will also be within that definition if that person goes to the rescue of a person in the first category. In these categories, it does not matter whether the injury actually suffered was physical or mental.
The plaintiff in this case does not fall into either of these categories.
The law has recognised a third category of person to whom a duty of care can be owed, namely those tied to persons in the first category by a special relationship. A person in this third category will not suffer physical injury but may suffer psychiatric illness due to the actual or apprehended harm to a person in the first category to whom they are closely tied. In respect of this category of person, not only has the psychiatric illness to be a reasonably foreseeable consequence of the defendant’s acts or omissions and the special relationship, but particular emphasis is placed upon the requirement that the person should be closely and directly affected by the defendant’s acts or omissions; see Lord Wilberforce in McLoughlin -v- O’Brian [1983] 1 AC 410 at 420 F and Lord Ackner in Alcock -v- Chief Constable of South Yorkshire [1992] 1 AC 310 at 400 D – F. As Lord Wilberforce said in McLoughlin’s Case at page 422 H the courts should apply
“a strict test of proximity by sight or hearing”
The shock or stressor that causes the plaintiff’s psychiatric illness must arise through seeing or hearing the event which injures or threatens to injure the person specially linked to the plaintiff or its immediate aftermath.
The question that has to be answered in this appeal is whether what the plaintiff saw when he went to his son’s place of work about two hours after the collapse of the building was “the seeing of the immediate aftermath of the catastrophe which had occurred at about 6 p.m.?”
Mr Morrow for the plaintiff argues that the answer to that question is “Yes”. The building was in a dangerous state. The signs of a catastrophic collapse were obvious as the photographs show and as the plaintiff himself testified: the entrance to the building was full of rubble. The plaintiff’s son was still in the building. It was not known if he was alive and badly injured or if he was dead. The emergency services were still at the site. The horrifying event which violently agitated the plaintiff’s mind was still continuing. Further collapses were possible which, as the plaintiff subsequently learned, was the reason for the apparent inaction of the emergency services. Mr Morrow accepts that the plaintiff did not see his son’s body but submits that that is not necessary, relying on cases where the shock has been due to apprehended physical harm to a loved one which does not in fact materialise.
Mr Morrow relied upon the facts and decision in McLoughlin’s Case . There the plaintiff did not learn of the accident involving her husband and three children for some hour or so. The plaintiff did not go to the scene of the accident. She was taken to the hospital by a friend who had been driving a car behind her husband’s car and who had had a fourth child, a boy aged 11 as a passenger in his car. At the hospital the plaintiff had seen her 11 year old son who told her that his 3 year old sister was dead. The plaintiff saw her 7 year old daughter crying with her face cut and begrimed with dirt and oil. She could hear her 17 year old son shouting and screaming. She was taken to her husband who was sitting with his head in his hands. His shirt was hanging off him and he was covered in mud and oil. When the husband saw the plaintiff he started sobbing. The plaintiff was then taken to see her 17 year old son. The whole of his left face and left side was covered. He appeared to recognise his mother and then lapsed into unconsciousness. The plaintiff was then taken to see her 7 year old daughter who by that time had been cleaned up. She was too upset to speak and simply clung to her mother. Lord Wilberforce in his speech at page 417 D commented on these facts:
“There can be no doubt that these circumstances, witnessed by the appellant were distressing in the extreme and were capable of producing an effect going well beyond that of grief and sorrow.”
It could be said that the appellant in that case had “the sight of suffering which directly and immediately shocks” to borrow part of the judgment of Atkin LJ in Hambrook -v- Stokes Brothers [1925] 1 KB 141 at 157 – 8. Although Mr Morrow accepted that the decision in McLoughlin’s Case was “upon the margin of what the process of logical progression would allow,” he submitted that that case demonstrated that the finding of the existence of a duty owed to the plaintiff in the present case would not go beyond “the lines already drawn”.
Mr Limb for the respondent pointed out that Lord Oliver in Alcock’s case at page 417 F observed that McLoughlin’s case “was a case which itself represented an extension not, as I think, wholly free from difficulty ….” Lord Oliver also observed at that point in his speech “……I equally believe that further pragmatic extensions of the accepted concepts of what constitutes proximity must be approached with the greatest caution.”. Earlier in his speech at page 411 F Lord Oliver had identified the common features of all the reported cases of this type in which the plaintiff succeeded in establishing liability. The first and last of the common features are concerned with the relationship between the plaintiff and the primary victim, that is to say the person in the first of the three categories of neighbours. That feature is accepted as being present in this case. The second of the common features is “that the injury for which damages were claimed arose from the sudden and unexpected shock to the plaintiff’s nervous system.” The third is “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”. The fourth was “That the injury suffered arose from witnessing the death of, extreme danger to or injury and discomfort suffered by the primary victim.” In the same case Lord Oliver at page 416 H said “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 oral perception are absent”.
In this case the plaintiff was not present at the scene of the accident nor was he more or less in the immediate vicinity. He did not witness the death of or the extreme danger to his son. Nor is this a case where the plaintiff has with his own eyes witnessed the injury to and the suffering of the primary victim with whom he has a close relationship of affection. Two hours had passed between the collapse of the building and the plaintiff’s arrival at the site. The combination of these features in my judgment, deprives this case of the immediacy required before the necessary proximity can be said to exist. This case is close to but, in my opinion, just beyond the lines drawn by the decided cases.
The judgment that I have formed in the present case is that the elements to which Lord Oliver referred were not present and the necessary proximity required to make the plaintiff a person to whom the defendants owed a duty did not exist. I have not found this an easy case and I have reached this conclusion with some hesitation because it can be said that it requires a distinction be drawn between this case and that of McLoughlin based on the appellant in McLoughin’s case seeing the injured members of her family and the plaintiff in this case not seeing the body of his son . I have reached this conclusion with some reluctance because of the undoubted grief and anguish which the plaintiff has suffered by reason of the death of his son.
For these reasons I would dismiss the appeal.
Lord Justice Brooke:
This is an appeal by the Plaintiff Terence Tranmore from a judgment of Judge Walton at the Leeds County Court on 23rd May 1997 when he decided a preliminary issue of liability against the Plaintiff and dismissed his action for damage for psychiatric injuries.
The Plaintiff’s claim arises out of the tragic circumstances surrounding the death of his son Michael on 16th May 1995 at a demolition site in Leeds. Michael had been working in an office building in City Square which was in the course of demolition when some of the floors of the building collapsed under the weight of a heavy crane, and Michael was trapped under the debris and suffered fatal injuries.
The incident happened about 6pm, and the Plaintiff first heard about it when he got home from work at about 7.30pm. He was told that his son was inside the collapsed structure. He contacted his other son Paul by telephone and then went to the scene, arriving there at about 8pm.
When he arrived, he could see that part of the building had collapsed. In his witness statement, whose accuracy he confirmed, he said that he had spoken to someone he thought had been working at the site, and this man tried to quieten him down and then took him through the gates into the building and showed him the piles of debris and tonnes of rubble which had come down. He then explained to the Plaintiff where his son was, and how it was impossible to get him out. The Plaintiff could not see his son, but he could see the weight of debris that would be on top of him.
In evidence at the trial he told the judge that he could see great mountains of rubble through a substantial hole, and that he spoke to a man at the site who said that there was a 13-tonne machine there. The Plaintiff, who worked in the demolition business himself, was shocked to hear that such a heavy machine had been in use on an upper floor. He asked the man whether his son was in there, and the man nodded to say “Yes”. The Plaintiff then ran around in distress trying to get more information, and trying to get help from the emergency services. He felt frustrated that they did not seem to be engaged in any meaningful activity that he could see in order to free his son, and many times during his evidence he referred to his frustration that they seemed to have given up all efforts to save his son. The judge said that it was this agitation of mind that the Plaintiff recalled rather than grief or distress at the injury that his son had or might have sustained. He did concede that it subsequently emerged that if more had been attempted at that time there might have been considerable safety problems. At one point the Plaintiff went into an office on the lower ground floor of the building for five or six minutes, two floors below the place where his son was trapped in the rubble. For the rest of the time he was in the street outside.
His other son Paul told him at about 9.30pm that Michael was dead, and he and Paul left the scene at about 10.10pm. Michael’s body was recovered the following day and the Plaintiff was taken to see it, but it is not suggested that the Plaintiff could found a right of action on anything he saw or did then.
In consequence of these events and other matters connected with the death of his son the Plaintiff suffered post-traumatic stress disorder, the details of which were fully set out in a medical report served with the Particulars of Claim.
On 8th January 1997 the parties consented to the trial of a preliminary issue to determine whether the Plaintiff was sufficiently proximate to the fatal accident in terms of both space and time for him to qualify as a person to whom a duty of care was owed by the Defendant.
The judge said that he did not express any view whether it was an essential ingredient of proof in a case like this, when considering the question whether a plaintiff was sufficiently close to an accident or its immediate aftermath in time or space, that he should actually have seen the body of the primary victim. It seemed to him that each case would turn on his own facts, and that there might be cases where there sufficient proximity even where the body was not seen.
He said that he had been referred to the three leading cases of McLoughlin v O’Brien [1983] 1 AC 410Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310; and McFarlane v E E Caledonia Ltd [1994] 2 All ER 1. In particular he was influenced by passages in the speeches of Lord Wilberforce in the first of these cases and of Lord Ackner and of Lord Oliver in the second to conclude that the plaintiff was not sufficiently close to the immediate aftermath of the accident to be entitled to recover.
What, then, is the present state of English law as to the meaning of “the immediate aftermath” of an accident in this type of case? There can be no doubt that in McLoughlin the House of Lords deliberately extended the ambit of recovery. Mrs McLoughlin had not been present at the scene of the disastrous road traffic accident, but she went to the hospital about two and a half hours afterwards (see the facts recited by Stephenson LJ at [1981] 1 QB 599 at p 603) and saw her husband and her surviving children in exactly the same state, blood-spattered and in great pain and distressed, as if they had been at the accident scene. She also heard that her youngest child had been killed. All five members of the House of Lords agreed that she should recover, although they could not all agree about the basis on which recovery should be permitted in this class of case. Lord Wilberforce alone suggested the control mechanisms which now stake out the limits which define the class of people who can recover as secondary victims and the conditions which have to be satisfied before they can recover: proximity in time and space is the second of these mechanisms. After setting out the facts of earlier cases, Lord Wilberforce acknowledged the existence of a class of case (which he numbered 4) in which a plaintiff had been held entitled, or entitled in principle, to recover when he/she did not see or hear the incident but came upon its immediate aftermath. He went on to say at p 418:
“Throughout these developments, as can be seen, the courts have proceeded in the traditional manner of the common law from case to case, upon a basis of logical necessity. If a mother, with or without accompanying children, could recover on account of fear for herself, how can she be denied recovery on account of fear for her accompanying children? If a father could recover had he seen his child run over by a backing car, how can he be denied recovery if he is in the immediate vicinity and runs to the child’s assistance? If a wife and mother could recover if she had witnessed a serious accident to her husband and children, does she fail because she was a short distance away and immediately rushes to the scene (cf Benson v Lee [1972] VR 879)? I think that unless the law is to draw an arbitrary line at the point of direct sight and sound, these arguments require acceptance of the extension mentioned about under 4 in the interests of justice.
If one continues to follow the process of logical progression, it is hard to see why the present plaintiff also should not succeed. She was not present at the accident, but she came very soon after upon its aftermath. If, from a distance of some 100 yards (cf Benson v Lee ), she had found her family by the roadside, she would have come within principle 4 above. Can it make any difference that she comes upon them in an ambulance, or, as here, in a nearby hospital, when, as the evidence shows, they were in the same condition, covered with oil and mud, and distraught with pain? If Mr Chadwick can recover when, acting in accordance with normal and irresistible human instinct, and indeed moral compulsion, he goes to the scene of an accident, may not a mother recover if, acting under the same motives, she goes to where her family can be found?
I could agree that a line can be drawn above her case with less hardship than would have been apparent in Boardman v Sanderson [1964] 1 WLR 1317 and Hinz v Berry [1970] 2 QB 40, but so to draw it would not appeal to most people’s sense of justice. To allow her claim may be, I think it is, upon the margin of what the process of logical progression would allow. But where the facts are strong and exceptional, and, as I think, fairly analogous, her case ought, prima facie, to be assimilated to those which have passed the test.”
Lord Wilberforce considered, therefore, that it was on the margin of what the process of logical progression would allow to admit the claim of a wife and mother who had seen at the hospital what Stocker LJ in Alcock described as “a most harrowing and distressing sight”. (See [1992] 1 AC 300 at p 366G).
The view that Mrs McLoughlin’s case was on the margin of what the process of logical progression should allow was shared by three members of the House of Lords in Alcock itself. Lord Ackner simply repeated what Lord Wilberforce had said. Lord Oliver said that McLoughlin was a case which itself represented an extension “not, as I think, wholly free from difficulty” and said that any further widening of the area of potential liability should be undertaken by Parliament. And Lord Jauncey laid stress on the striking feature of McLoughlin’s case that the victims were in very much the same state as they would have been if the mother had found them at the scene of the accident.
It is, I think, instructive to consider the facts of the earlier cases which persuaded certain members of the House of Lords that their decision in McLoughlin merely represented a step in the process of logical progression forward from those cases. Lord Wilberforce cited at pp 418F-419A three cases in which recovery was permitted (or, in one case, an action was not struck out) when the plaintiff came on the immediate aftermath of an accident to a near relative. The facts of those three cases can be summarised as follows:
(1) A father hears his child scream and runs immediately to the accident scene, where he sees his son’s foot trapped under the front wheel of a car ( Boardman v Sanderson [1964] 1 WLR 1317).
(2) A wife comes upon the badly injured body of her husband shortly after he was involved in a serious accident in a snowmobile ( Marshall v Lionel Enterprises Inc [1972] 2 OR 177).
(3) A mother is in her home 100 yards away when she is told of an accident to her child, and runs immediately to the scene where she finds the child lying on the ground, unconscious ( Benson v Lee [1972] VR 871).
Lord Wilberforce considered, as I have shown, that unless the law was to draw an arbitrary line at the point of direct sight and sound, the extension of the law which those cases represented should be accepted in the interests of justice. If those examples were admitted, how could it make a critical difference if a wife and mother saw her family in the same state in an ambulance or on admission to hospital?
It is clear, in my judgment, that in the later case of Alcock no member of the House of Lords regarded the actual decision in McLoughlin with anything other than reserved enthusiasm, even though three of them appear to have believed that only about an hour had elapsed between the accident and the mother’s visit to her family in hospital (see Lord Ackner at p 405B; Lord Oliver at p 412D; and Lord Jauncy at p 423H). Lord Jauncy counselled at p 423H:
“What constitutes the immediate aftermath of an accident must necessarily depend upon the surrounding circumstance. To essay any comprehensive definition would be a fruitless exercise.”
In its recent report “Liability for Psychiatric Illness” (1998) Law Com No 249, the Law Commission recommended the creation of a new statutory duty of care in cases where the plaintiff had a close tie of love and affection to an accident victim: such a change in the law, if accepted by Parliament, would abolish the requirement of the “immediate aftermath” restriction in such cases. Paragraphs 6.10-6.15 of its report reveals the powerful arguments which led it to make this recommendation. The Law Commission was aware of the way in which courts in other parts of the common law world have adopted approaches which are different from the cautious approach of the House of Lords in Alcock. A valuable summary of the comparative jurisprudence on this subject five years ago is contained in the section of Mullany and Handford, Tort Liability for Psychiatric Damage (1993) entitled “The Aftermath Doctrine”.
We, however, have to apply English law as we find it. In our hierarchy of courts it is not, in my judgment, for this court to break new ground, and I do not find it possible to hold that this plaintiff could successfully bring himself within the “immediate aftermath” line of cases. He did not go to the accident site for two hours after the accident happened. By that time all the immediate work of the police and the emergency services had finished. Even during the brief period when he was inside the shattered building, his son was buried in rubble two floors above him. He never saw any part of his son’s body until he visited the mortuary about 24 hours later. I do not consider that any of these matters, taken in isolation, would necessarily be decisive, but their combined effect is in my judgment overwhelming.
Mr Morrow drew our attention to the case of William Pemberton, the one beneficiary of Hidden J’s first instance judgment in Alcock who did not lose his award through a successful appeal by the defendants (see Alcock at pp 344, 348: the facts in his case are summarised by Judge LJ in Frost v Chief Constable of the South Yorkshire Police [1997] 1 All ER 540 at p 571c-f). Mr Pemberton watched the disaster at Hillsborough unfold on a television set in a coach outside the ground, and his subsequent search for his son culminated in the identification of his body in a temporary mortuary much later. I do not consider that it would be safe to believe that a case on those facts would be decided in the same way to-day (compare the views of Mullany and Handford, op cit , at p 145).
In his admirably concise submissions Mr Morrow said that in the end the result of this case would turn on the court’s reaction, or impression, when confronted by the facts of the case. My reaction is that Mr Tranmore did not come upon his son (whether or not he could see him) in the immediate aftermath of the accident in the sense that this expression is now used in this branch of English law. I would therefore dismiss this appeal.
Lord Justice Aldous: For the reasons given in both judgments I agree that the appeal should be dismissed.
Order: Appeal dismissed with costs; order nisi against the Legal Aid Board; legal aid taxation of the appellant’s costs; application for leave to appeal to the House of Lords refused. ( This is not part of the approved judgment ) 

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