Chadwick v British Railways Board

“The community is not formed of normal citizens, with all those who are less susceptible or more susceptible to stress to be regarded as extraordinary. There is an infinite variety of creatures, all with varying susceptibilities.”¹

On a winter’s evening in 1957, two trains collided in heavy fog in South-East London. 90 people were killed in the collision and 173 were injured. This post tells the story of Henry Chadwick, a local man who rushed to the aid of the victims and subsequently developed nervous shock as a result of his traumatising experience assisting those trapped in the wreckage.

Tragedy on the South Eastern Main Line­

The Lewisham rail disaster of 1957 occurred on England’s South Eastern Main Line. Unfortunately, this was not the first major accident on this long-distance railway route.

In 1865, 10 people were killed and 40 were injured in the Staplehurst rail disaster. It was a summer’s afternoon and the train had taken on board passengers who had just crossed the English Channel by ferry from France. As the train was passing through a village in Kent, it suddenly plunged over the edge of a viaduct and into the muddy river below. The accident was caused by a length of track that had been removed during engineering works. While the track was only supposed to be removed for repair when no train was due, the foreman had misread the train timetable on the day in question. The confusion, it appears, was caused by a complex train schedule which varied depending on the tide of the English Channel. One of those injured in the accident was Charles Dickens who was travelling with his mistress and her mother. The trio, who were riding in the first-class carriage which did not completely fall into the river, survived the derailment. Dickens assisted in the rescue of his fellow passengers, filling his top hat with water to give to those lying in the wreckage near the river. Before leaving the scene, he also managed to retrieve from his carriage the manuscript of his novel, Our Mutual Friend, that he was working on at the time. The derailment, and his subsequent involvement in the rescue, greatly affected Dickens. Although he was once fascinated by the railways and how this new form of transport was impacting society, following the accident, Dickens avoided rail travel whenever possible. He temporarily lost his voice and, according to his son, never fully recovered from the traumatic experience.²

In 1967, another tragedy on the South Eastern Main Line left 49 people dead. The Hither Green rail crash was caused by a train running into broken track at a rail joint in London. 11 of the train’s 12 carriages derailed. Robin Gibb, one of the singers of the Bee Gees, was a passenger on the train. Following the great success of the band’s recent hit, Massachusetts, Gibb was able to travel in a first-class compartment which he believed saved him from being killed in the derailment.³ The accident occurred only a mile from the location of the Lewisham rail disaster which took place ten years earlier on 4 December 1957 and was the third-worst railway disaster in the United Kingdom’s history.

The Lewisham Rail Disaster — Two Trains Collide in Dense Fog

The London fog of 2–5 December 1957 was so severe that it caused the deaths of close to 1,000 people due to high levels of atmospheric pollution.⁴ It was also a contributing factor to the Lewisham rail disaster which occurred in the middle of London’s rush-hour evening commute. The poor conditions meant that trains were running out of sequence and behind schedule, delaying many shoppers who had travelled into London to complete their Christmas shopping. With many trains either cancelled or delayed, those that were running were extremely crowded.

Disaster occurred when an electric train, travelling from Charing Cross to Hayes, stopped at a signal under a bridge. In conditions of poor visibility, a steam train fast approached the electric train from behind. The exhaust smoke from the steam engine had made visibility even worse in the foggy conditions, and the train failed to slow down after passing two caution signals. The fireman alerted the driver to a danger signal and the train’s brakes were applied, but it was too late. The steam train ploughed into the back of the electric train. Electric trains, at the time, had minimal crash impact resistance and the steam engine was incredibly heavy. The impact of the crash completely destroyed one of the electric train’s carriages and caused the 350-ton overhead bridge to collapse onto the steam train, crushing two of its carriages. Further catastrophe was narrowly averted when a third train, which was about to travel across the overhead bridge, managed to stop moments before it could fall into the gap left by the demolished bridge. The driver happened to see a large metal girder sticking out of the fog and slammed on his train’s brakes, saving the lives of hundreds of passengers, as well as those in the wreckage below.⁵

In the aftermath of the crash, rescue workers picked their way through the Christmas presents that were scattered across the train tracks, searching for survivors in the wreckage.⁶ The youngest victim, Graham Freeman, was just three years old and had spent the afternoon visiting Santa Claus on Oxford Street.⁷

Henry and Ellen Chadwick lived approximately 180 metres from the crash site. Upon hearing news of the accident, Henry immediately ran to the scene to assist. As he was a small man, he was able to crawl into the wreckage to aid those trapped inside. For approximately 9 hours, he rendered assistance to the injured. One of the survivors gave evidence that she was trapped up to her waist in the wreckage and the attending doctor could not fit into the small space where she was trapped. Henry rushed to assist, giving the woman a pain killing injection. As he did so, Henry was forced to make contact with the remains of deceased victims. A hand sticking out of the wreckage caught hold of Henry’s jaw. Despite the dense fog, eerie darkness, and claustrophobic conditions, Henry was described as ‘a courageous man’ who was ‘very cheerful and encouraging’, alleviating the fears of those trapped in the wreckage. At about 3am in the morning, Henry returned home, covered in mud and with blood on his hands. He gave his wife a small brooch to look after. It had belonged to a young boy who had been killed in the crash. Soon after, Henry returned to the crash site, continuing to assist the rescue services throughout the early morning.⁸

Prior to the accident, Henry Chadwick had successfully worked in a window cleaning business. He was ‘a hard-working little man’ who also had an interest in social and charitable activities in his community. He was a governor of three local schools, a member of the local chamber of commerce, and enjoyed assisting the local Whist drives. According to Ellen, her once cheerful and busy husband became psycho-neurotic in the aftermath of the accident. He no longer took an interest in life and was unable to work for a considerable time. Henry became withdrawn, avoided social situations, and had difficulties sleeping. He would often wake in the middle of the night and talk about the young boy he had seen. Henry lost a considerable amount of weight and spent time in hospital.

5 years later, in 1962, Henry died of an unrelated illness. Before his death, he had commenced legal proceedings against the British Transport Commission (which was later replaced by the British Railways Board), arguing that the train crash had caused him to suffer prolonged mental shock. After Henry’s death, his case was continued by his widow, Ellen, and came before the High Court in 1967. The defendant conceded the accident was caused by its negligence, however, denied that its duty of care extended to Henry Chadwick. The defendant relied upon the legal principle of volenti non fit injuria (voluntary assumption of risk) and argued that Henry had voluntarily subjected himself to the dangers and stresses of the rescue operation.⁹

Danger Invites Rescue

Waller J in the English High Court decided that the British Railways Board was liable. According to his Honour, the defendant owed Henry Chadwick a duty of care. This was because it was reasonably foreseeable that if a train was to run into the back of another train, killing a large number of people, others might try and rescue passengers and suffer mental shock in the process. In so deciding, Waller J departed from the decision of Kennedy J in Dulieu v White, where it was held that to be compensable, mental shock must arise ‘from a reasonable fear of immediate personal injury to oneself.’¹⁰

As part of his judgment, Waller J cited with approval the decision of the Court of Appeals of New York in Wagner v International Railway Company (’Wagner’).¹¹ That case involved a young man who fell out of a crowded railcar when it failed to slow down on a curve. His cousin, who went to search for his body, was severely injured when he fell from a bridge. Cardozo J observed that ‘danger invites rescue’ and explained that a wrong that imperils life is not only a wrong to the imperilled victim, but is also a wrong to his or her rescuer. You can read our post about Wagner here. Applying Cardozo J’s reasoning to Henry Chadwick’s case, Waller J observed that the defendant’s negligence to its passengers was also a wrong to Henry who assisted in their rescue.

Waller J also had to consider whether Henry Chadwick was of such extraordinary susceptibility that the damage suffered by him was too remote. The issue was that Henry had previously suffered psycho-neurotic symptoms when he was 28 years old. Nevertheless, Waller J emphasised the fact that Henry had suffered no mental illness for the 16 years prior to the accident and was not somebody who would likely have relapsed under the ordinary stresses of life. As such, he could not be treated as outside the defendant’s contemplation as someone who might suffer mental shock in response to stress of an unusual proportion.

Henry Chadwick’s family were awarded approximately £935 for his loss of earnings and an additional £600 for the misery Henry suffered during his final years.

Subsequent Developments

In the aftermath of the Lewisham rail disaster, the driver of the steam train was tried for manslaughter but was ultimately acquitted, with the jury failing to agree on a verdict. During the retrial, the driver was discharged due to suffering from severe stress-induced mental illness.¹²

Thirty-one years after the High Court’s decision in Henry Chadwick’s case, Waller J’s judgment was reinterpreted by a majority of the House of Lords in White v Chief Constable of South Yorkshire Police (‘White’).¹³ The majority held that a rescuer may only recover damages for pure mental harm if they are themselves exposed to physical danger, or if they reasonably believe they are in such danger. Rescuers who satisfy this test are considered ‘primary victims’ who can recover for mental injury. Henry Chadwick’s case was treated by the House of Lords as correctly decided on the basis that there was an element of physical danger in Henry’s involvement in the rescue operation. For Waller J in Chadwick’s case, however, any risk of possible physical harm to Henry was irrelevant, with his Honour deciding the case on the basis that Henry had suffered mental injury as a result of the horrific scenes he had witnessed. The House of Lords’ decision in White appears to return to the position taken in 1901 following Dulieu v White,¹⁴ where, as noted above, it was held that mental shock must arise from a reasonable fear of immediate personal injury to oneself. According to Lord Steyn in White, the introduction of this test was needed ‘in order to contain the concept of rescuer in reasonable bounds for the purposes of the recovery of compensation for pure psychiatric harm’.¹⁵

Whilst limits may have been subsequently placed on the ability of rescuers to recover damages for pure mental harm in the United Kingdom, the Lewisham rail disaster did help to accelerate the widespread installation of an important safety system on the railways—the use of an Automatic Warning System—to help reduce the likelihood of such disasters occurring again.¹⁶

Stay tuned for next month’s post which will continue our examination of liability for negligently occasioned injury to rescuers.