Claims for psychiatric harm - Secondary victims

Learning Outcomes

This article outlines the specific legal requirements for establishing a claim in negligence for psychiatric harm suffered by a secondary victim, including:

• Control mechanisms established by case law, particularly the Alcock criteria for determining duty of care
• Pure psychiatric harm versus consequential psychiatric harm; recoverability limited to medically recognised psychiatric illnesses (e.g., PTSD, major depressive disorder, adjustment disorder) and shock-induced physical conditions
• The primary versus secondary victim distinction and the stringent tests applicable to secondary claimants in SQE1 contexts
• Elements of the Alcock test: foreseeability of psychiatric harm to a person of normal fortitude; close tie of love and affection; proximity in time and space; and perception through the claimant’s own unaided senses
• The sudden shock requirement, contrasting sudden, horrifying events with gradual realisation cases
• Policy considerations supporting the restrictive approach to secondary victims
• Special contexts: rescuers, clinical negligence scenarios, and limited exceptions within the Alcock framework

SQE1 Syllabus

For SQE1, you are required to understand the principles governing claims for psychiatric harm, specifically differentiating the rules for primary and secondary victims, with particular emphasis on secondary victims, with a focus on the following syllabus points:

• The definition and scope of 'pure psychiatric harm' in tort law.
• The distinction between primary and secondary victims of psychiatric harm.
• The specific control mechanisms or tests established in Alcock v Chief Constable of South Yorkshire Police for secondary victim claims.
• Requirements relating to proximity: closeness of relationship, time and space, and means of perception.
• The necessity for the psychiatric injury to result from a sudden and shocking event.
• Application of these principles to factual scenarios typical of SQE1 assessments.
• The limited role of media broadcasts and third-party communications in satisfying perceptual proximity.
• The effect of the “normal fortitude” test and the role of the egg-shell skull principle once foreseeability is established.
• Treatment of rescuers and why they do not enjoy a special category outside the primary/secondary victim distinction.
• The current approach to secondary victim claims in clinical negligence cases.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which relationship generally satisfies the 'close tie of love and affection' presumption for secondary victim claims without further evidence?
   1. Siblings
   2. Grandparent and grandchild
   3. Parent and child
   4. Close friends
2. A key requirement for a secondary victim claim, established in Alcock, is that the psychiatric harm must arise from:
   1. A gradual awareness of the event's consequences.
   2. Witnessing the event through news reports hours later.
   3. Direct perception of the event or its immediate aftermath through one's own unaided senses.
   4. Hearing about the event from a third party who was present.

3. True or false? A secondary victim must demonstrate they were within the zone of physical danger created by the defendant's negligence.

Introduction

Claims for pure psychiatric harm (harm suffered without physical impact) present distinct challenges within the tort of negligence. While the law acknowledges that psychiatric illness can be as debilitating as physical injury, concerns about potential floodgates of litigation and difficulties in proving causation have led courts to impose strict limits on recovery, particularly for secondary victims.

Key Term: Secondary victim
An individual who suffers recognised psychiatric injury as a result of witnessing injury to another person (the primary victim) or the immediate aftermath, without being in the zone of physical danger themselves.

Secondary victims are typically bystanders or those arriving shortly after a traumatic event. Unlike primary victims (those directly involved or within the zone of physical danger), secondary victims must satisfy a demanding set of criteria, often referred to as control mechanisms, to establish that the defendant owed them a duty of care. These criteria were significantly clarified in the landmark case of Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

A threshold condition for both primary and secondary victim claims is that the claimant must suffer a medically recognised psychiatric illness. Mere worry, distress, or grief is insufficient even if the defendant was negligent; the law requires a defined psychiatric condition or, in some cases, a shock-induced physical condition. The illness must be caused by a sudden shocking event or its immediate aftermath; prolonged exposure to stress or a gradual dawning of realisation will not satisfy this requirement for secondary victims.

The Alcock Control Mechanisms

The House of Lords in Alcock established stringent tests that a secondary victim must satisfy to demonstrate the necessary foreseeability and proximity for a duty of care to arise. Failure to meet any one of these criteria will usually defeat the claim.

1. Foreseeability of Psychiatric Harm

It is not enough to show that some harm was foreseeable. The claimant must establish that it was reasonably foreseeable that a person of normal fortitude or ordinary phlegm in the claimant's position would suffer a recognised psychiatric illness as a result of witnessing the event. This is an objective test focused on typical robustness; the law expects a reasonable degree of fortitude from the public. The classic illustration of this restraint is Bourhill v Young [1943] AC 92, where a bystander who neither saw the collision nor was in danger failed to recover.

Once this threshold foreseeability is satisfied, the egg-shell skull principle applies: the defendant takes the claimant as found. If a claimant is unusually susceptible and suffers more serious psychiatric harm than a person of ordinary fortitude would have, the defendant remains liable for the full extent of the injury. This rule mirrors its application in physical injury cases and aligns with the approach to primary victims, who need only show foreseeability of physical injury, not psychiatric injury, to establish a duty.

Points to emphasise for application:

• The foreseeability inquiry for secondary victims is directed to psychiatric illness, not mere upset.
• The defendant’s knowledge of particularly vulnerable claimants is not usually required to meet the normal fortitude test, but if present it strengthens foreseeability.
• Only if foreseeability is satisfied does the egg-shell skull principle operate to determine the extent of liability.

2. Proximity of Relationship: Close Ties of Love and Affection

The claimant must demonstrate a close tie of love and affection with the primary victim (the person injured or endangered by the defendant's negligence). Without this relational proximity, even witnesses to harrowing scenes will not qualify.

• Presumed ties: The law presumes close ties between spouses, civil partners, parents and children, and fiancés. No additional proof is required in these categories unless the defendant adduces evidence to rebut the presumption.
• Proof required: For other relationships (e.g., siblings, grandparents, cohabitees who are not engaged or in a legally recognised partnership, and friends), the claimant must prove the close tie as a matter of evidence. In Alcock, claims by siblings and other relatives failed for want of proof of the requisite closeness.
• Practical tips: Evidence may include cohabitation history, shared life arrangements, caregiving roles, and other indicia of close emotional bonds. The closer and more akin to a family relationship the tie, the more likely the court will find this element met.

This requirement focuses on the claimant’s connection with the immediate victim, not with the defendant. It reflects the law’s intention to limit recovery to those whose emotional bonds make psychiatric harm more foreseeable in the relevant sense.

3. Proximity in Time and Space

The claimant must have been present at the scene of the accident or witnessed its immediate aftermath. The courts have applied this requirement strictly while recognising a narrow window for the aftermath.

• Presence at scene: Being physically present when the horrifying event occurs clearly satisfies this.
• Immediate aftermath: McLoughlin v O'Brian [1983] 1 AC 410 remains the touchstone. There, the claimant arrived at the hospital about two hours after a serious road accident involving her family and saw them in the same condition as at the crash scene (covered in oil and mud, untreated). This was held to fall within the immediate aftermath. By contrast, in Alcock, identifying loved ones in a mortuary some eight to nine hours later fell outside the aftermath.
• Continuity: The courts sometimes look for a continuous sequence between the accident and what the claimant perceives. The longer and more punctuated the sequence, the less likely it will be classed as the “immediate aftermath”.

Practical application:

• Ask whether the claimant encountered an unbroken continuum of events closely connected in time and place to the accident.
• Hospital settings can qualify if the scene and the victims’ condition still reflect the immediate effects of the accident rather than a stabilised, treated state.

4. Means of Perception: Direct Sight or Hearing

The psychiatric injury must result from the claimant perceiving the shocking event or its immediate aftermath with their own unaided senses.

• Third-party communication: Being told of the incident by a third party does not suffice. A telephone call describing the event cannot satisfy this requirement.
• Media coverage: Seeing events on television or online generally does not satisfy perceptual proximity. In Alcock, the House of Lords acknowledged the hypothetical possibility that live, simultaneous broadcasts showing recognisable individuals suffering might be equivalent to direct perception. However, due to broadcasting standards and the lack of individual identifiability in the coverage, the claimants failed. Courts have suggested that if broadcasters were to transmit identifiable images in breach of codes, the broadcast itself could be a new intervening act breaking the chain of causation.
• Hearing as perception: The senses requirement can be satisfied by hearing as well as sight, but the hearing must be direct (e.g., hearing the crash or screams at the scene), not via third-party narration.

The conceptual point is that the shock must be induced by the claimant’s own sensory perception of the events, not by reflective thought upon reported information.

5. Sudden Shock Requirement

The psychiatric injury must be induced by a sudden and shocking event, rather than being the result of a gradual accumulation of distress or a dawning realisation of events.

Key Term: Sudden shock
A sudden assault on the nervous system or violent agitation of the mind resulting from witnessing a horrifying event or its immediate aftermath. Psychiatric illness caused by a gradual accumulation of strain is generally not recoverable for secondary victims.

The boundaries of “sudden shock” have been carefully drawn:

• Gradual realisation: In Sion v Hampstead Health Authority, a father’s psychiatric illness developed over two weeks as he watched his son die in hospital following negligence. The claim failed as there was no sudden shocking event.
• Aggregation of distress: In Liverpool Women’s Hospital NHS Trust v Ronayne [2015], the Court of Appeal rejected a claim where the claimant attempted to aggregate a series of upsetting hospital scenes over a number of days; the events were distressing but not a sudden assault on the senses.
• Single horrifying event over a short period: In Walters v North Glamorgan NHS Trust [2002], a series of events over approximately 36 hours culminating in an infant’s death was treated as a single horrifying event, creating a continuum that satisfied the sudden shock requirement on the specific facts.

Current approach in clinical negligence: The Supreme Court has recently clarified that in clinical negligence cases secondary victim claims will generally fail unless the claimant directly perceives the “accident” or event which constitutes the actionable breach causing injury, not merely a later medical crisis that reflects the natural progression of an untreated condition. In cases such as Paul v Royal Wolverhampton NHS Trust and related appeals (decided 2024), witnessing a loved one’s collapse months after a negligent failure to diagnose was not regarded as witnessing the accident or its immediate aftermath caused by the negligence. This reinforces the requirement that the shocking event must be the relevant breach-caused event, not a later occurrence divorced in time from the negligent act or omission.

Worked Example 1.1

Ahmed witnesses a serious collision caused by Devi's negligent driving. Ahmed's brother, Bilal, is severely injured in the crash. Ahmed rushes to his brother's side immediately after the impact. Ahmed later develops severe PTSD. Devi argues she owes no duty because Ahmed wasn't physically harmed.

​Can Ahmed potentially claim as a secondary victim?

Answer:
Yes, potentially. Ahmed is not a primary victim as he was not in the zone of physical danger. To claim as a secondary victim, he must satisfy the Alcock criteria. Foreseeability of psychiatric harm to a person of normal fortitude witnessing such an event is arguable. A sibling relationship requires proof of close ties, but it's possible. Ahmed witnessed the event and its immediate aftermath directly through his own senses. The injury arose from a sudden, shocking event. If he proves the close tie, his claim may succeed, subject to establishing the other negligence elements (breach, causation).

Worked Example 1.2

Chloe learns via a phone call that her best friend, Dana, has been seriously injured in a factory explosion caused by the employer's negligence. Chloe visits Dana in the hospital the next day. Dana is heavily bandaged and unconscious. Chloe suffers a recognised depressive illness following the visit.

​Is Chloe likely to succeed in a claim against Dana's employer?

Answer:
Unlikely. Chloe is a secondary victim. While she may be able to prove a close tie of love and affection with Dana (though this requires evidence for friends), she fails on proximity in time and space. Visiting the hospital the day after does not constitute witnessing the event or its immediate aftermath as defined in McLoughlin and Alcock. Furthermore, learning of the event via phone call does not meet the direct perception requirement.

Worked Example 1.3

Leo watches a live television broadcast of a stadium disaster caused by negligent crowd control. He believes he sees his fiancée in distress in the crowd but she is not individually identifiable on screen. Leo later develops a recognised psychiatric illness.

​Does the live TV footage satisfy the means of perception requirement?

Answer:
Probably not. Alcock makes clear that media broadcasts generally do not satisfy perceptual proximity, particularly where individuals are not identifiable. Although the House of Lords contemplated rare scenarios where simultaneous broadcast of identifiable suffering might suffice, broadcasting standards and the lack of individual identifiability usually prevent this element from being met.

Worked Example 1.4

Maria arrives at a hospital approximately one hour after her husband is involved in a major road traffic collision caused by negligence. She sees him in the emergency department, still covered in blood and debris, untreated and in the same state as at the scene. She later develops PTSD.

​Is Maria within the “immediate aftermath”?

Answer:
Likely yes. This aligns with McLoughlin, where arriving shortly after the accident and encountering loved ones in an untreated state reflecting the immediate consequences of the event was held to be within the immediate aftermath. Maria also has a presumed close tie of love and affection and perceived the scene with her own senses.

Worked Example 1.5

Omar spends two weeks at his adult daughter’s bedside after negligent post-operative care. She deteriorates gradually and dies. Omar develops a psychiatric illness.

​Does Omar meet the sudden shock requirement?

Answer:
Unlikely. Following Sion and Ronayne, the courts do not permit recovery where the psychiatric condition results from a gradual realisation or an aggregation of distressing experiences. Without a single sudden horrifying event or a continuous short sequence equivalent to such an event, the requirement is not met.

Worked Example 1.6

Two young children witness their father suffer a sudden fatal heart attack on the street, over a year after an earlier negligent failure by hospital staff to diagnose his cardiac condition. They develop psychiatric injuries.

​Are the children likely to succeed as secondary victims in clinical negligence?

Answer:
Following the Supreme Court’s 2024 guidance, unlikely. The sudden death was not the “accident” or event caused by the negligent omission at the earlier diagnosis stage; rather, it was the later occurrence of the pre-existing disease. The required nexus between witnessing the accident caused by the breach and the psychiatric harm is missing.

Policy Considerations

The restrictive approach to secondary victim claims is heavily influenced by judicial policy concerns:

• Floodgates: Fear of indeterminate liability to a potentially large number of people who might suffer psychiatric harm from witnessing events.
• Evidentiary difficulties: Challenges in distinguishing genuine psychiatric illness from ordinary grief or distress, and proving the causal link to the defendant's negligence.
• Disproportionate burden: Concern that imposing liability on defendants for harm to those not directly endangered could be disproportionate to the degree of fault.
• Societal norms: A view that the law should expect reasonable fortitude from citizens and not compensate for ordinary sorrow and distress.

These policy factors underpin the control mechanisms and the insistence on sudden shock, close relational ties, and direct perception of the event or its aftermath.

Two further points are sometimes noted at the margins:

• Limited media exception: While Alcock left open the possibility of liability arising from simultaneous television broadcasts showing identifiable individuals, this would be exceptional and, if broadcasters breached regulatory codes, the broadcast might itself constitute an intervening act breaking the chain of causation.
• Exceptional categories outside strict secondary victim analysis: The courts have, in limited contexts, recognised duties that do not fit neatly within the Alcock framework (e.g., psychiatric harm from witnessing destruction of one’s property in Attia v British Gas). These remain exceptions and do not alter the Alcock requirements for claims as secondary victims of injury to persons.

Rescuers

Initially, it was thought rescuers might form a special category. However, White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 clarified that rescuers are subject to the same rules as other claimants. Professional rescuers (like the police officers in White) who are not themselves endangered (i.e., not primary victims) must satisfy the Alcock criteria, including the need for a close tie of love and affection with the primary victim, which they typically cannot do in a professional capacity.

Rescuers can recover where they are primary victims: that is, where they were actually exposed to danger or reasonably believed themselves to be. In such cases, the duty of care extends to psychiatric harm without requiring foreseeability of psychiatric injury (foreseeability of physical injury suffices). If rescuers were outside the zone of danger and did not reasonably believe they were in danger, they are secondary victims and must satisfy all the Alcock control mechanisms, which is rarely possible in professional rescue situations.

Note on employment: There is no special employer duty for pure psychiatric harm suffered by employees in traumatic incident response absent primary victim status or the Alcock criteria. Claims for occupational stress at work are subject to a different framework and should not be conflated with secondary victim rules.

Exam Warning

Do not assume rescuers are automatically owed a duty for psychiatric harm. Apply the primary/secondary victim distinction rigorously. If a rescuer was objectively exposed to physical danger or reasonably believed they were, they are a primary victim. If not, they are a secondary victim and must meet the Alcock criteria, which is usually impossible for professional rescuers regarding those they rescue.

Summary

Establishing a duty of care for pure psychiatric harm suffered by a secondary victim requires satisfying all the stringent Alcock control mechanisms:

These controls reflect policy concerns about limiting liability for psychiatric harm. In clinical negligence, recent Supreme Court authority reinforces that the shocking event must be the accident caused by the actionable breach, not a later occurrence of an untreated condition.

Key Point Checklist

This article has covered the following key knowledge points:

• Pure psychiatric harm is injury suffered without physical impact.
• Secondary victims are those who witness harm to others, not being in physical danger themselves.
• Establishing a duty of care for secondary victims requires satisfying the Alcock control mechanisms.
• These include reasonable foreseeability of psychiatric illness in a person of normal fortitude.
• A close tie of love and affection with the primary victim is required (presumed in some relationships, must be proved in others).
• Proximity in time and space (presence at the event or immediate aftermath) is essential.
• Direct perception through the claimant's own unaided senses is necessary.
• The harm must result from a sudden, shocking event rather than gradual realisation or cumulative distress.
• Media broadcasts rarely satisfy perceptual proximity; third-party accounts do not.
• Rescuers are generally treated as primary or secondary victims based on whether they were endangered; no special status exists for psychiatric harm claims.
• In clinical negligence, secondary victim claims are tightly restricted: witnessing a later medical crisis typically will not qualify unless it is the accident caused by the breach.

Key Terms and Concepts

• Secondary victim
• Sudden shock