The end of injury -- a look at how the changing landscape of civil litigation will affect lawyers acting for both sides, as personal injury lawyers for plaintiffs and defendants attempt to develop a u

RACHEL HALLIBURTON LOOKS AT THE DEBATE OVER PRE-ACTION PROTOCOLS, ADR, EXPERT WITNESSES AND THE CLIENT'S REHABILITATIONA velvet revolution is being planned by personal injury (PI) lawyers who intend to swing away from the traditional adversarial approach, and focus more on ways of agreeing with each other.

At a form held on Monday this week, plaintiff and defendant solicitors came together to discuss the creation of a joint code of practice.Martin Bruffell, president of the Forum of Insurance Lawyers (FOIL), and Ian Walker, president of the Association of Personal Injury Lawyers (APIL) met on the conference circuit a few years ago and discovered that their concept about how plaintiff and defendant PI lawyers could work together was surprisingly similar.A scheme for revolution was created, and at the end of last year, a forum was staged so that other lawyers could suggest how to take PI litigation from the battleground to the negotiating table.

Both Mr Bruffell and Mr Walker admit that this initial attempt to bring plaintiff and defendant PI lawyers together was not a success.

But a year on, the climate has changed so dramatically that more lawyers are prepared to give their suggestions serious thought.

Mr Bruffell says: 'Last year, we were bashing on a partially open door.

This year it is wide open.

There's no point talking about what Lord Woolf wants to do any more.

The question is how it's going to be implemented.'Mr Walker goes even farther, arguing that these proposals should have evolved of their own accord.

He says: 'Until five years ago, people were stuck, seemingly happily, in the same rut.

Lord Woolf has been a catalyst to making these changes, but we should have grasped the nettle much earlier and done it ourselves.'The four main points of discussion in the debate focus on: pre-action protocols; negotiation strategies such as mediation and alternative dispute resolution (ADR); establishing a list of experts to give evidence in court; and the rehabilitation of the client.

Following up the material gathered from the debate, FOIL and APIL hope to work out a joint code of practice, which will be in operation in time for April 1999, when the Woolf reforms are implemented.

The pre-action protocols will be most hit by the greater de gree of openness encouraged by the reforms.Mr Walker explains: 'Plaintiffs will have to write a more formal letter for the claim, and the insurance company will have to give a proper reply.

The proceedings will therefore be more comprehensive and less constricted by legalese.' Lord Woolf's emphasis on ADR will also provide much meat for discussion.John Pickering, head of PI at Sheffield-based firm Irwin Mitchell, raises the issue of what kinds of ADR will be most appropriate.

He explains: 'There may be a place for mediation but it is too early to know to what extent it can play a part in PI cases.

We haven't seen the results of the pilot conducted on mediation for medical negligence cases yet, but one of the cases used was from my firm, and it did work successfully.'Mr Pickering continues: 'There is a definite role for negotiation.

A more "cards on the table" approach would help both plaintiff and defendant lawyers.

This may seem to be stating the obvious, but it's definitely not happening in practice at the moment.' However, one of the voices raised against ADR comes from Kerry Underwood, senior partner of St Alban's firm Underwoods, who says that although he favours the principle of plaintiff and defendant PI lawyers co-operating with each other, ADR is a sticking point.

He says: 'The vast majority of PI cases are negotiated outside court anyway and I am worried about introducing any system which removes the spotlight from safety mechanisms in the process.' However, Mr Underwood emphasises that he is keen to see the establishment of a list of medical experts to be called on for court cases.

At the moment, he maintains, there is a lack of control over who can produce 'expert' testimony in the courtroom, and it is hoped that a new system can be introduced which will ensure that the expert has been thoroughly vetted to the satisfaction of both the defendant and the plaintiff.The final area for debate emphasises the ultimately humanitarian concerns of Mr Bruffell and Mr Walker, who insist that more attention is payed to the rehabilitation of the individual.

Mr Bruffell says: 'We want to see how we can get insurers involved in getting people back to work.' Although the outlook is optimistic, Mr Walker is well aware that cynical voices will be raised against the proposals.

He says: 'A lot of people will treat with great suspicion the idea that we're cosying up to the enemy.

We are aware of the potential pitfalls that these negotiations could open up, but it's only by finding out what people agree with and disagree with, that we can finally thrash out a joint code of practice.'Mr Walker draws comfort from the fact that more than 250 people expressed interest in attending the conference.

Mr Bruffell adds: 'I think there is a greater general expectation that this time the ideas will be more acceptable to PI lawyers.' Both organisers, however, are concerned that their message reaches a wider audience as quickly as possible.Mr Walker points out that although 100 members of APIL attended the seminar, there are still 3,900 members to be won round.

Those who did not make it to Church House in London will be bombarded by an education package that APIL has devised.

During the next few months they will be invited to attend seminars, and will also receive leaflets and newsletters that will prepare them for the delights of a more harmonious future.

Mr Walker says: 'We're facing a new world for the millennium, we may as well go the extra mile.'ROBERT VERKAIK FINDS OUT WHETHER PI LAWYERS ARE READY TO FACE LORD WOOLF'S REFORMS, WHICH ARE AR RIVING NEXT APRILIt is a scenario that every personal injury (PI) lawyer in the country will want to avoid.

But on 1 April next year, there will be at least one PI solicitor who walks into court oblivious of the implementation of Lord Woolf's reforms.Suzanne Burn, secretary to the Law Society's civil litigation committee, says that despite all the publicity surrounding the reforms and the Society's efforts to bring lawyers up to speed, not everyone will be ready for the April deadline.Suspects Ms Burn: 'Next spring, there will be one or two people who go along to court who will find things are happening that they didn't know about.'Those who remember the introduction of order 17 rule 11 in the early 1990s will experience a feeling of deja vu.

Rule 11 was introduced to allow county court judges automatically to strike out actions which have not been set down for trial within 15 months.Ms Burn says the main difference with the Woolf package of reforms is that rule 11 was 'slipped' in without any consultation.

'I would be surprised,' she says 'if anybody who tried to keep up to date by reading journals could overlook the Woolf changes.

But I'm afraid it's still likely to happen.'Martin Bruffell, president of the Forum of Insurance Lawyers (FOIL), predicts that it will be the lawyer who rarely handles PI cases who will be caught out.

But even so, he says for those firms ignorant of the new rules there will always be an insurance client who can act as an early warning system.

'I don't believe there is anybody in any claims department in any insurance company who isn't aware of what's going on.

If somebody starts off a case incorrectly then the insurers will be able to put them right.' As recently as 29 July, the Law Society had raised concerns in the House of Lords about the timetable for introducing the reforms and had for some time argued in favour of a January 2000 start.FOIL is no longer lobbying for a change in the rules or a postponement to the implementation date.

'There is no way,' says Mr Bruffell, 'the government is going to pull back from April.

So what we are going to have to do is make the best of what may have been a bad job.'The Association of Personal Injury Lawyers (APIL) has also taken a philosophical approach.

APIL president Ian Walker, of Russell Jones & Walker, argues that no deadline date will suit everyone.

'Human nature being what it is means there will be a number of people who won't be ready.

From an APIL point of view, we will be as ready as ever in April.'However, it is understood that the publication date for the new rules will have slipped from November to December.

Mr Walker argues that this will impose a heavy burden on his members who need to familiarise themselves with the detail.

'People will have to do a vast amount of work in a short space of time to get up to speed,' he says.Of more concern to APIL and Mr Walker is the fear that there will be '20 years of satellite litigation' over what the rules mean in practice.

'With order 17 and rule 11,' he points out, 'there was six years of litigation about that one rule.'Some PI lawyers fear that the pre-action protocols for PI and negligence cases, which have now been published by the Lord Chancellor's Department, could trigger a fast track series of tactical encounters.

The aim of the protocols is for plaintiffs and defendants to exchange information about the case so that the issues can be narrowed before proceedings are issued.

Master Robert Turner, Senior Master of the Queen's Bench Division and speaker at the FOIL/APIL conference, sa ys that pre-action protocols will set a new standard as to how parties must approach litigation.

'Now the test will be "cards on the table" from the outset,' he says.The fear is that defendant lawyers might exploit the new rules to their own advantage.

But argues Mr Bruffell: 'I'm not sure you will see insurers trying to score points if people don't get it exactly right under the protocol system.'Mr Walker says his members are anxious that the sanctions for those who breach the protocol are not sufficiently tough.

Answers Master Turner: 'Breach of the rules and their supporting practice direction will be met by sanctions which are intended to have teeth.

The yellow and red cards of the judicial armoury will be used with fatal effect in appropriate cases.'Most PI claims are for less than £15,000 and will therefore be included in fast track.

Once proceedings have been issued, the burden of the litigation will fall on the defendant lawyers.

Says Ms Burn: 'If the courts can deliver the tight timetable for the fast track, both plaintiff and defendant PI lawyers will need to know how they are going to organise their practices and case management and diary systems to meet the timetables.' She stresses that law firms must be in a position to turn over cases fast.This part of the Woolf reforms is potentially the source of friction between plaintiff and defendant lawyers.

'From the defendant solicitors point of view,' says Mr Walker, 'if plaintiff solicitors get it right they could be in deep trouble with fast track timetables.' Mr Walker says once proceedings have been issued defendant solicitors 'are going to have to get their act together quickly.' If they do not, warns Mr Walker, they will find themselves in court three months later with a 'half-prepared case'.But counters Mr Bruffell, an executive board member of insurance specialist law firm Berrymans Lace Mawer: 'If plaintiff lawyers are sensible and give notice and don't wait until they have carried out their investigations, that will give insurers a chance to investigate and take a view.'But Mr Bruffell warns it may not be possible for insurers, who are not given notice, to sort out cases within the three month fast track time span.Both sets of lawyers agree on one thing -- that they are going to have to get used to a greater degree of co-operation.

Says Mr Walker: 'Practitioners will have to come to terms with the fact that before they issue proceedings on any case, particularly fast track cases, they really have got to do all their work.

If you haven't got all your ducks in a row then could get caught out by the strict timetable.'Many lawyers who write two-line letters before action and then contemplate the merits of the case, will find it hard to change habits of litigation.

Mr Walker warns plaintiff lawyers that they will have to stand up to clients who pressurise them into issuing proceedings before they are ready.

'We have to be up front with our clients and open, telling them that the world is changing and that we have to do things differently now,' says Mr Walker.FIONA BAWDON FINDS OUT HOW PI SOLICITORS HAVE BEEN COPING IN THEIR ROLES AS THE PIONEERS ON THE CONDITIONAL FEES FRONTIERThe case seemed perfect for conditional fees.

The injured client, a pensioner, did not qualify for legal aid but did not want to risk her savings, even on such an apparently clear cut case.

As there appeared to be no difficulty on liability, and as the end of the limitation period was looming, the client's law firm went ahead and issued proceedings straightaway.'Only she'd forg otten to mention she'd accepted a cheque for £2,000 from the insurers in full and final settlement two years earlier,' says Bill Montague, partner at Dexter Montague in Reading.

the firm acting for the pensioner.The case well illustrates what Michael Napier, senior partner at Sheffield-based Irwin Mitchell, terms the 'X' or 'buggeration' factor: the potential spanner in the works in a conditional fee case that even the best risk assessment in the world might not be able to detect.In this case, as Dexter Montague had been seriously misled by a client, the firm could have looked to her for payment for the work done, but as she was 'a little old lady', the solicitors did not have the heart, says Mr Montague.

However, the after-the-event insurers did not take such a benign view and declined to stump up, leaving the firm out of pocket.Luckily this kind of salutary experience -- which prompted a change in the firm's procedures -- has been the exception rather than the rule for Dexter Montague.

Conditional fees have been profitable for the firm.

Mr Montague reckons they now account for 5% of the firm's total turnover, and one third of its personal injury (PI) work.

Of the 30 conditional fee cases concluded so far, the firm has had to withdraw in only two.

And of the 30 or so currently underway, there is one that is 'looking iffy', he says.

The firm is so enthusiastic about the system, it is planning to double the amount of conditional fee work over the next two years.Abbey Legal Protection, which runs the Law Society-endorsed after-the-event insurance, Accident Line Protect, has issued 47,000 policies to 1,768 firms.

Taking into account conditional fee cases which will have used other insurers, and those which will have gone ahead with no insurance, the total number is probably closer to 50,000 conditional fee cases in the three years since they were introduced for PI work.Kerry Underwood, of St Albans-based Underwoods, says the figures would be far higher were it not for the reluctance of many firms to embrace conditional fees.

Firms like Dexter Montague and Mr Underwood's are in the minority, he maintains.

He divides PI firms into three broad categories: those doing a large number of conditional fee cases; those who have done the odd one but have not then followed up, and those who have not done any.Of the latter, Mr Underwood says: 'They know they ought to be doing something but aren't sure what.

With the abolition of legal aid being put off, they've decided to go back to sleep again for another year.'Mr Underwood -- who lectures on conditional fees and is author of a book on the subject, No Win No fee, No Worries, (CLT Publishing) -- says Dexter Montague's positive experience is typical of firms which are doing conditional fees in volume.

'Those firms which are doing a lot are experiencing no real problems,' he says.

'They are doing very well out of them.' Feedback from those attending his lectures suggests that conditional fees appear to work for any firm choosing that route, ranging from sole practitioners to larger firms.

'They are unrelated to size of firm or geography,' he says.Mr Underwood has been pleasantly surprised by the quality of no win, no fee cases reaching his firm.

'The profile of these cases is no different from the profile of cases coming in any way,' he says.

'I was concerned that when people had nothing to lose that, to put it bluntly, the cases might be crap.

But people are effectively weeding cases out themselves.

There is a pretty strong culture in this country that people don't complain about rel atively minor things.' His firm 'turns virtually nothing away,' he adds.Some 80% of the new work at Mr Underwood's firm is funded by conditional fees, he adds.

One reason for this could be that Underwoods appears to have the local conditional fee market virtually to itself.

'There is virtually no competition in our area -- and Hertfordshire is classic middle England,' he says.

'The average solicitor would rather be getting paid appalling rates on green form -- but know they are getting something, rather than risk working for nothing.'Despite Mr Underwood's bullishness, Mr Montague says there are pitfalls for firms from doing conditional fees: it can put a severe strain on cashflow and make bankers twitchy.

But after three years of financial pain, when partners' drawings had to be reduced -- 'I've had to sell the Masarati' -- Mr Montague says: 'We are now on a roll, beginning to reap the benefits,' he says.

He warns that firms should not go into conditional fees lightly.

Prompted by the firm's bankers, Mr Montague conducted an analysis of cases completed, and discovered the average length of a conditional fee case is 17 months -- 17 months when the firm has to carry all related costs.

'All those worries about how you expose yourself to conditional fees were right,' he says.

'It's no good looking forward to a six-month payment on account from the Legal Aid Board because it isn't there.'ELIZABETH CARR LOOKS AT SOME OF THE RECENT DEVELOPMENTS IN PERSONAL INJURY LAW WHICH WILL HAVE THE GREATEST IMPACTSolicitors dealing with personal injury (PI) claims are anticipating tremendous changes in how they work next year.

By April 1999, there will be:-- Pre-action protocols for personal injury claims;-- A unified set of civil procedure rules replacing the High Court and county court rules introducing fast track and multi-track proceedings.-- An increase in the use of mediation rather than litigation:While extensive procedural changes are around the corner, those acting for defendants in PI cases are looking at the best ways of dealing with claims involving future losses given the impact of the House of Lords decision on 16 July 1998 in the three Ogden cases.The Ogden casesIn July, the Law Lords delivered a unanimous judgment in the cases of Wells v Wells, Thomas v Brighton Health Authority and Page v Sheerness Steel.

They held that multipliers should be calculated on the basis of a presumed investment in index linked government stock (ILGS).

They held it to be irrelevant that plaintiffs would be advised to invest part of their damages in equities.

This type of investment was thought to be unsuitable to the circumstances of accident victims whose position should not be equated with that of the ordinary investor.The rate of interest on ILGS has been falling over past years.

However, Lord Lloyd recommended a one year average should be used, giving a 3% discount rate -- it being equivalent to ILGS net of basic rate tax -- until the Lord Chancellor specifies the rate under s.1 of the Damages Act 1996.

The effect is that the recognised caps on multipliers of 16 for loss of earnings and 18 for future care have gone.As a result of the decision, defendant PI lawyers are focusing on:-- Control of the multiplicand;-- Utilisation of periodical payments/structured settlements;-- Providing evidence to allow judicial discounting where appropriate.Control of the multiplicandThe House of Lords accepted that there would have to be a quid pro quo approach.

Increased multipliers would make it all the more important that multiplicands should provide fair compensation.

Lord Lloyd made the following observation: 'Since the effect of reducing the rate of discount will be to increase the multiplier in every case, it is all the more important to keep firm control of the multiplicand.

Plaintiffs are entitled to a reasonable standard of care to meet their requirements, but that is all.'Defendant's lawyers anticipate that the courts will take a much more rigorous approach to the multiplicand whether it involves anticipating prospective earnings, the extent of care requirements or the need for costly equipment.

Strong, well researched experts reports will be required.Imposed periodic paymentsLord Steyn made a number of positive comments regarding the inherent limitations of settling large claims by means of a one off payment.

He gave a clear invitation to Parliament to change the law to enable judges to impose settlement by periodic payments in suitable cases.

The insurance industry has favoured this flexibility for some time and it has now received support from one of the most influential members of the judiciary.

Given the revision of the discount rate, insurers are likely to be more disposed to set up structured settlements.

The multiplier rates will be much more in accordance with the rates available for purchased life annuities increasing the number and type of structures available.Structured settlements have a number of advantages over lump sum settlements.

They eliminate the risk of longevity and risk of imprudent spending or investment.

They transfer the risk of poor investment performance away from the plaintiff.

Payment is guaranteed even if the annuity providers investments perform poorly.

If the provider becomes insolvent, the plaintiff benefits from complete protection under the Policy Holder's Protection Act 1975.Judicial discretionWhile the judgment by the House of Lords limits the scope for judges to discount multipliers, their discretion still remains.

While plaintiff's lawyers argue to the contrary, precedent still supports a reasonable discounting of loss of earnings' multipliers.

In Page, the Lords reinstated the first instance discount of 9% preferring it to the Court of Appeal's discount of 18%.

However, the House of Lords did not decide that the higher discount was wrong in law.

Instead, they held the trial judges' discount to be within the permissible range and, consequently, was beyond interference by the Appellate Court.

Therefore, there is still judicial authority on which to base an argument for discounting, particularly in relation to loss of earnings.

Conventionally, judicial discounting for loss of earnings was in the range of 10% to 20%.

In contrast, the notes to the 3rd edition of the Ogden Tables suggest a discount of 1% to 2% should be adopted based on actuarial analysis.

This marginal discount does not always accord with common sense.By way of example, if a 28-year-old blue collar worker is badly injured and will never work again, the gross multiplier for loss of earnings will be 21.

Marginal discounting as suggested by Ogden would serve to keep the net multiplier at 21 or, at most reduce it to 20.

That is the same as asserting that a man of 28 who would otherwise work through to his early 60s is likely to be in paid employment for 98% of his remaining working life.

That equates to 33.5 years out of 34.

This reduction of 6 months is meant to cover involuntary redundancy, gaps between different jobs, downturns in the economy, loss of work because of sickness and early retirement.

This does not necessarily reflect the growing recognition as we approach the millennium, that there is no such thing as a safe job or a job for life.While the scope has been removed for the routine discounting of care multipliers, the Lord's decision includes the acknowledgement that any trial judge need not be a slave to the Ogden tables since there may well be special factors in particular cases.

In the case of care multipliers, attention needs to be paid to the facts and the available medical evidence relating to the plaintiff's life expectancy.

This will be relatively straight forward where life expectancy has been reduced by virtue of the accident.

However, where there is no such reduction, other factors can be looked at, such as the plaintiff's pre-accident medical history and the longevity or otherwise within the plaintiff's immediate family.Damages Act 1996The last chapter of the multiplier saga is still to be written.

The decision by the House of Lords was favourable to PI claimants.

It was prejudicial to the interests of the insurance market and the insurance buying public, insurance premiums will surely rise.

While their Lordships acknowledged this, they held that they could not be swayed by issues of a political or economic nature.

Under Section 1(1) of the Damages Act, the Lord Chancellor is able to prescribe a rate taking account of these relevant factors.

This rate will dictate the level of multiplier which will be applied by the courts and a pronouncement is expected shortly.

In the interim, defendant PI lawyers will continue to focus on close examination of the components within the multiplicand.Psychiatric Damage -- Who can claim?Both plaintiff and defendant personal injury lawyers are dealing with increasing numbers of claims for psychiatric damage.

Where a plaintiff has suffered psychiatric illness as a result of a defendant's negligence, he can only recover if he can bring himself within one of the closely defined categories which limit recovery for this type of loss.

There have been two Court of Appeal decisions this year.Recognisable psychiatric disorderA plaintiff cannot recover for mere emotional distress.

No claim can be made for the grief or anxiety which any normal person suffers when someone close to them is killed or injured.

In order to claim, the plaintiff must have suffered a recognisable psychiatric condition.

In practice this involves checking off the plaintiff's symptoms against one of the standard psychiatric diagnostic tools.

Once this threshold test is satisfied, the plaintiff must be able to bring himself within one of the following categories to recover:Primary victimsA primary victim is someone who came within the area of foreseeable physical harm even though that person was not physically injured.

This category covers both the plaintiff who actually is in danger -- who through good fortune escapes physical injury -- and a plaintiff who, although never being in danger, reasonably thinks that he is.

For instance, a person who is narrowly missed by a lorry careering out of control is able to recover damages as a primary victim if he suffers psychological illness as a result of the incident.The rest of the categories of plaintiff who can recover generally concern people who have witnessed traumatic events involving death or injury or have been involved in the immediate aftermath of such disasters.Relatives of victimsThe circumstances in which relatives can claim damages are limited.

The courts have set up several hurdles on the way to recovery:-- it must be foreseeable that a person of reasonable fortitude, or 'phl egm', to use the traditional expression, might reasonably have suffered psychiatric harm.

Once this is established, it does not matter that the plaintiff himself is particularly susceptible to emotional disturbance;-- there must be close ties of love and affection between the plaintiff and the victim of the incident.

The emphasis here is on the closeness of the relationship.

Even a brother of one of the Hillsborough victims was held not to have had a sufficiently close and intimate relationship to recover.

Normally, the plaintiff would have to be a parent, child or spouse of a victim in order to be within this category;-- the plaintiff must have been close in time and space to the accident.

The plaintiff does not necessarily have to witness the event itself.

In a leading case, the plaintiff; a mother, had seen her injured family in hospital two hours after the accident.

This was held to be sufficiently close in time and space to allow recovery.

But relatives identifying the body of a victim nine hours after a disaster were not within the immediate aftermath.

An area of uncertainty that still remains is where the plaintiff sees the disaster on television.

It is possible that a plaintiff who is able to identify his relative on the screen and witnesses their death or injury live would be able to recover.RescuersRescuers are able to recover for psychiatric injury even though they are not necessarily in any danger themselves.

It is easily foreseeable that there will be people who will attend the scene of a disaster to help the victims and suffer psychiatric illness as a result of their horrific experience.

The category includes professional rescuers such as firemen and policemen.

Whether someone is a rescuer or not is a question of fact, but it will normally involve the plaintiff actually entering the scene of the disaster in its immediate aftermath to remove or assist the victims.Participant with pre-existing relationship (employees and others)Where the plaintiff and the defendant are already in the relationship of employee and employer, this may be sufficient to give rise to the requisite duty of care.

The police officers who tended the victims of the Hillsborough Stadium disaster and who suffered post traumatic stress disorder as a result of their experiences were able to recover because of the relationship of employer/employee between the defendant and themselves, even though they were not rescuers.

But they were only able to do so because they were participants in the horrific events acting in the course of their duty.

They would have had no claim if they had not been present at the stadium dealing with the immediate consequences of the disaster.Direct participants in the traumatic eventA plaintiff who has been personally involved in the causation of an accident is entitled to claim for psychiatric damage.

The classic example is the train driver who runs over workmen on the track because the brakes of his train are defective.

However, in order to come within this category, he must witness the traumatic event itself.

If he simply learns of it afterwards, his injury will be too remote.Three recent cases have clarified the position.

In Hunter v British Coal Corp Court of Appeal [1998] 2 All ER 97, the plaintiff, an employee of the defendant working in a mine, drove his vehicle into a hydrant.

He attempted to turn off the water flow with the help of a colleague.

On being unable to do so, he went off to try to find a hose.

While he was away from the scene, the water pipes exploded.

He learnt 15 minutes later that his co lleague had been caught in the explosion and killed.

As a result of his involvement in the accident, he suffered a nervous illness which was caused by his feelings of personal responsibility for the explosion.

The judge at first instance found that the defendant had been negligent and in breach of statutory duty in relation to the positioning of the hydrant.The Court of Appeal held that, although someone who has been the involuntary cause of a traumatic event can in some circumstances recover for psychiatric damage, he could only do so where there was sufficient physical and temporal proximity between him and the accident.

Here the plaintiff was not at the scene or in the area of real physical risk and did not himself witness what happened to his colleague.

Psychiatric damage to a person such as the plaintiff, who played some part in the events leading to the accident but did not learn of it until afterwards, was too remote to found an action in damages.In Schofield v Chief Constable of West Yorkshire Court of Appeal (The Times, 15 May 1998), the plaintiff, a woman police constable, accompanied Sergeant Dodding to a house where two women had reported finding guns.

Sergeant Dodding without warning pointed a revolver at some bedding and fired three shots.

The plaintiff developed post traumatic stress disorder.

The court at first instance found that Sergeant Dodding's act gave rise to a foreseeable risk of injury, the plaintiff suffered psychiatric illness as a result and that as a matter of law she was entitled to recover.The defendant appealed against the judge's findings that the plaintiff was a participant in the incident rather than a mere bystander who could not recover.

The Court of Appeal considered the House of Lords rulings in Alcock v Chief Constable of South Yorkshire and Page v Smith and found that as a fellow employee of Sergeant Dodding, engaged jointly in carrying out the tasks required by their employer, the plaintiff was directly involved in the event in the course of which the negligent act occurred and was not a mere bystander.

The defendant's appeal was dismissed.In Tranmore v TE Scudder Limited Court of Appeal 28 April 1998, the plaintiff's son was killed in an accident at work on a building site on 16 May 1995.

The accident occurred at 6 pm, the plaintiff learnt of the accident at 7.30 pm and arrived at the building site at 8 pm.

The plaintiff was told at 10 pm that his son was dead.

His claim for damages for psychiatric injury was dismissed.

The Court of Appeal had to decide whether what the plaintiff saw when he arrived at the building site two hours after the accident was 'the seeing of the immediate aftermath of the catastrophe which had occurred at about 6 pm'.The court decided that it was not.

The plaintiff was not present at the scene of the accident and 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 did he witness the injury to the suffering to the primary victim with whom he had a close relationship of affection.