Chapter 5 Pointers to 'pause for reflection' and 'counterpoint' boxes

Special duty problems: psychiatric harm

Page 125-9

Lord Hoffmann’s framing of his decision as an either/or choice between distributive or corrective justice works to prevent his audience from thinking outside of this framework. If they did so, they might question why they have to make a choice in the first place and why they should 'choose' between the police on the one hand and the families on the other. It doesn't automatically follow that just because the friends and families were not able to claim, the police should not be able to recover. Although the cases arise out of the same incident – the Hillsborough stadium disaster – Alcock and White raise very different issues – not least because the claimants are different. Despite Lord Hoffmann's best efforts there is a difference between watching your loved one being hurt and suffering psychiatric harm and suffering the same injury simply by doing your job, especially when the injury is caused by your employer's negligence. It should be remembered that the majority of the Court of Appeal and two of the law lords in the House of Lords would have allowed the police to recover in White – the decision was not, therefore, as straightforward as Lord Hoffmann seems to suggest.

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