Claims for psychiatric harm - Rescuers and bystanders

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Overview

Claims for psychiatric harm involving rescuers and bystanders present intricate challenges in tort law. Understanding these concepts is vital for SQE1 FLK1 exam candidates, as it involves duty of care principles, differentiating between primary and secondary victims, and applying specific legal tests. Understanding these ideas will help students tackle scenario-based questions effectively.

Distinguishing Primary and Secondary Victims

Primary Victims

Primary victims are directly involved in an incident, experiencing either physical harm or immediate danger. The legal framework for them was clarified in Page v Smith [1996] AC 155:

  1. Physical harm’s foreseeability establishes a duty of care for psychiatric injury.
  2. It’s unnecessary for the psychiatric injury itself to be foreseeable.
  3. The 'thin skull' rule addresses pre-existing psychiatric vulnerabilities.

In Page v Smith, a claimant developed chronic fatigue syndrome after a minor car accident. The House of Lords found a duty of care existed since physical harm was foreseeable.

Secondary Victims

Secondary victims are those who suffer psychiatric harm from witnessing or learning about an incident without personal danger. Criteria established in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 are strict:

  1. Close ties with the primary victim
  2. Proximity to the incident or its aftermath
  3. Direct perception of the event
  4. Reasonable foreseeability of psychiatric injury in an ordinary person

These criteria pose challenges for secondary victims, as seen in McLoughlin v O'Brian [1983] 1 AC 410, where a mother met the 'immediate aftermath' requirement after arriving at a hospital following an accident involving family members.

Legal Framework for Rescuers

Legal treatment of rescuers in psychiatric claims has changed over time. Initially, rescuers often qualified as primary victims, but recent rulings have refined this view.

Traditional Approach

In Chadwick v British Railways Board [1967] 1 WLR 912, a rescuer who assisted victims of a train crash received damages for psychiatric harm, demonstrating courts' favorable view of rescuers.

Current Legal View

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 requires rescuers to meet a more stringent test:

  1. Rescuers must face actual or perceived physical danger to be primary victims.
  2. If not, they must satisfy secondary victim criteria.

This change aims to limit liability and prevent excessive claims. In White, police officers at the Hillsborough disaster were not considered primary victims despite experiencing PTSD.

Bystander Claims: Challenges and Criteria

Bystanders are generally seen as secondary victims, facing hurdles in proving valid claims for psychiatric harm. Courts are cautious in expanding liability to avoid overwhelming duty of care.

Key Considerations for Bystander Claims

  1. Foreseeability: The psychiatric harm must be foreseeable in an ordinary person. Bourhill v Young [1943] AC 92 denied recovery for this reason.
  2. Proximity: Bystanders must show sufficient closeness in terms of relationship, time, and space.
  3. Direct Perception: Harm must stem from direct perception of the incident or its aftermath.
  4. Sudden Shock: While not mandatory, evidence of a shocking event is often needed, as discussed in Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792.

Recent Developments and Future Directions

The law on psychiatric harm is constantly changing, with recent cases and recommendations hinting at future shifts.

Expanding the Scope of Secondary Victims

In Paul v Royal Wolverhampton NHS Trust [2022] EWCA Civ 12, the Court of Appeal allowed children witnessing their father's death to claim, possibly relaxing the temporal proximity requirement.

Law Commission Recommendations

The Law Commission's report suggested:

  1. Removing the primary and secondary victim distinction
  2. Extending liability to affected bystanders
  3. Eliminating the close tie requirement for secondary victims

Although not yet implemented, these ideas signal possible reforms.

Examples and Applications

Example 1: Road Accident

Scenario: A bystander avoids injury in a road accident but develops PTSD. Another person farther away claims psychiatric harm.

Analysis:

  • The bystander close to danger might qualify as a primary victim.
  • The other person, as a secondary victim, must meet stricter criteria, including showing proximity and relationship to any primary victims.

Example 2: Firefighter Scenario

Scenario: A firefighter, witnessing traumatic events without direct threat, develops PTSD.

Analysis:

  • Under current views, the firefighter may be a secondary victim.
  • The claim needs to meet stringent criteria, focusing on personal relationships, which may be difficult given the nature of their job.

Example 3: Delayed Onset of Psychiatric Harm

Scenario: A nurse develops PTSD six months after a terrorist attack.

Analysis:

  • Delayed onset complicates the claim, possibly missing the 'sudden shock' aspect.
  • Courts might consider gradual trauma effects, akin to Walters v North Glamorgan NHS Trust.
  • Professional training could influence how 'ordinary fortitude' is assessed.

Conclusion

Claims for psychiatric harm regarding rescuers and bystanders remain a challenging area of tort law. Key takeaways include:

  1. Differentiating primary and secondary victims with specific legal tests.
  2. The evolving role of rescuers from assumed primary status to assessments based on actual danger.
  3. Stringent criteria for bystander claims, including foreseeability, proximity, and perception.
  4. Recent trends hinting at broader liability interpretations.
  5. Ongoing discussions on potential reform in this legal field.