It will be necessary to consider the following:
- Is there a duty of care owed, has this been breached?
- Was the harm caused foreseeable?
- Is there a recognised psychiatric illness?
- Are the claimants primary or secondary Victims?
- In the case of secondary victims;
- Do they have close ties of love and affection with the other persons involved?
- Do they have a direct perception of the event unfolding or the aftermath?
Abdul is suffering a recurrence of a previous mental illness as a consequence of being terrified. He was left dangling in a carriage some hundred feet in the air, having witnessed the carriage containing Dave plummet to the ground. He would have felt sufficiently in danger to satisfy the criteria for a primary victim.
Dulia v White demonstrates how a person, who was involved in an incident and importantly, feared for their safety, could be cautiously accepted to suffer a “shock” which results in a psychiatric illness. Such persons would be classed as primary victims.
Page v Smith examines foreseeability and fortitude of the ordinary man in relation to primary victims. The conclusion of Lord Lloyd of Berwick in Page v Smith4 is summarised here:
... These control mechanisms have no place where the plaintiff is the primary victim… In claims by secondary victims, it may be legitimate to use hindsight in order to be able to apply the test of reasonable foreseeability at all. Hindsight, however, has no part to play where the plaintiff is the primary victim…A defendant who is under a duty of care to the plaintiff, whether as primary or secondary victim, is not liable for damages for nervous shock unless the shock results in some recognised psychiatric illness. It is no answer that the plaintiff was predisposed to psychiatric illness... The defendant must take his victim as he finds him… [1996] A.C.1554
It is probable that Abdul will have a claim in Tort. He is a primary victim. He would not need to satisfy any test of fortitude of the ordinary man (assuming that his mental illness is recognised); so therefore Abdul should succeed.
Brian was not present at the scene. His son Dave was in the carriage that plummeted to the ground. Dave died in hospital and Brian give permission for his son’s life support to be switched off.
Brian may not be suffering a recognised psychiatric Illness. He has anxiety and nightmares. In Alcock1 Dr. O’Connell’s generic report describes the symptoms of “Post Traumatic Stress Disorder” which are similar to Brian’s; therefore I shall assume Brian’s illness will satisfy the tests.
Hambrook v Stokes, in this case a mother had taken her children part way to school, leaving them to walk the remainder alone. An unattended lorry became out of control and careered down the hill into the path of some children. The mother did not directly witness the collision, but was nearby and heard the accident. A bystander told her that a child had been hurt and the resulting shock caused her to become unwell. She later suffered a miscarriage with further complications which eventually this led to her death. The claim succeeded even though she had no fear for her own safety; it was granted out of fear for her children.
In the case of Bourhill v Young the secondary victims’ rules were developed further. This case concerned foreseeability and proximity. A pregnant fishwife heard an accident between a tram and a motorcycle. She was some 45 yards away on the platform and did not see the collision. She suffered a severe shock and a month later her infant was stillborn. Her claim was denied, as the motorist owed her no duty of care and she was not in danger of harm. In his dictum, Lord Porter stated:
…the ordinary frequenter of the streets has sufficient fortitude to endure such incidents as may from time to time be expected to occur in them, including the noise of a collision and the sight of injury to others, and is not to be considered negligent towards one who does not possess the customary phlegm…[1942] A.C 92 6
McLoughlin v O'Brian extended a duty of care to persons not present at the scene. Close ties of love and affection were not disputed here. The claimant who was a mother and wife to the victims, rushed to the hospital having been told of an accident involving her family. On arrival she discovered one child had died. The surviving family were still covered in debris from the accident, having not been cleaned up and all were in a distraught state. It is easy to see how this scene can amount to “aftermath”. The Lords in reaching their decisions made particular reference to the case of Benson v. Lee, an Australian case whereby proximity is extended to include the immediate aftermath. Lord Wilberforce in McLoughlin v. O'Brian7 quoted Benson v. Lee8 stating:
...As regards proximity to the accident, it is obvious that this must be close in both time and space. It is, after all, the fact and consequence of the defendant's negligence that must be proved to have caused the "nervous shock." Experience has shown that to insist on direct and immediate sight or hearing would be impractical and unjust and that under what may be called the "aftermath" doctrine one who, from close proximity, comes very soon upon the scene should not be excluded. In my opinion, the result in Benson v. Lee [1972] V.R. 879 was correct and indeed inescapable. It was based, soundly, upon
“direct perception of some of the events which go to make up the accident as an entire event, and this includes ... the immediate aftermath ...”(p. 880.)7
Brian is not a primary victim, but he does satisfy “close ties of love and affection” . If Benson v. Lee8 applies, as it did in McLoughlin v. O'Brian,7 it could be considered he was present in the immediate aftermath, as it was his son, he clearly had ties of love affection, thereby satisfying both requirements of secondary victims as summarised in Alcock1.
Christie, an ambulance driver, comforted Dave by climbing into the wreckage besides him. She is suffering distress and is unable to return to work. She has no ties of love and affection so would not be a secondary victim.
Chadwick V British Railways Coal Board In entering the wreckage of a crashed train to help victims unknown to him, Mr Chadwick had put himself into a dangerous position and could easily have suffered an injury, but some years later suffered psychological harm. It is the mere perception of foreseeable harm which assisted in this case; in his summary Waller J. stated:
…although there was clearly an element of personal danger in what Mr. Chadwick was doing, I think I must deal with this case on the basis that it was the horror of the whole experience which caused his reaction…9
White v. Chief Constable of South Yorkshire2 the claimants were all police officers and denied damages on appeal. The lords considered if they were able to proceed as primary victims, thereby avoiding the rules set out in Alcock1 for secondary victims. In refusing to accept them as primary victims, Lord Steyn stated;
… in order to contain the concept of rescuer in reasonable bounds for the purposes of the recovery of compensation for pure psychiatric harm the plaintiff must at least satisfy the threshold requirement that he objectively exposed himself to danger or reasonably believed that he was doing so…2
This statement diminishes Chadwick9; victims will have to perceive a danger of harm to succeed rather than rely of the enormity and horror of the whole experience.
In consideration of Christie’s status as a secondary victim she is unlikely to have a claim in Tort as she cannot satisfy “close ties of love and affection”; there is no evidence that she perceived herself to be in danger when she assisted Dave; and in considering Christie’s illness, “distress” does not qualify as a recognised psychological disorder.
Bibliography
www.westlaw.co.uk. December 2010 <https://login.westlaw.co.uk/>.
www.lexisnexis.com. December 2010 <http://www.lexisnexis.com/uk/>.
White and Others V Chief Constable of Yorkshire Police and others [1999[ 2 A.C 455.
Alcock and Others v Chief Constable of South Yourkshire [1992] 1 A.C.310.
Benson V Lee [1971] V.R 879. Australian Case.
Chadwick V British Railways Coal Board [1967] 1 W.L.R 912.
Dulieu v White & Sons [1901] 2 K.B. 669. Divisional Court. 5th June 1901.
Gilker, Paula and Silas Beckwith. Tort. 3rd Edition. Sweet & Maxwell, 2008.
Hay or Bourhill V Young [1942] A.C. 92. No. [1943] A.C. 92. 5th August 1942.
Hambrook v Stokes [1925] 1 K.B. 141.
Mcloughlin v O'brian and others [1983] 1 A.C 410.
Page V Smith [1996] A.C. 155.
Steele, Jenny. Steele, Jenny. Tort Law, Text, Cases and Materials. Second Edition. Oxford, 2010. 235.
(Alcock and Others v Chief Constable of South Yourkshire [1992] 1 A.C.310)
(White and Others V Chief Constable of Yorkshire Police and others [1999[ 2 A.C 455)
(Dulieu v White & Sons [1901] 2 K.B. 669)
(Page V Smith [1996] A.C. 155)
(Hambrook v Stokes [1925] 1 K.B. 141)
(Hay or Bourhill V Young [1942] A.C. 92)
(Mcloughlin v O'brian and others [1983] 1 A.C 410)
(Benson V Lee [1971] V.R 879)
(Chadwick V British Railways Coal Board [1967] 1 W.L.R 912)
