1. Introduction
This advice will consider whether Bathilda and Charlie can bring a claim against Zacharias for the psychiatric injury they have suffered. The relevant area of law is the tort of negligence. To establish a claim in negligence, a claimant must prove that the defendant owed them a duty of care, that the defendant breached that duty, and that the breach caused the claimant’s damage (Lochgelly Iron & Coal Co v McMullan [1934] AC 1).
In this scenario, Zacharias has admitted that he was negligent in losing control of his car, thereby admitting he breached his duty to drive with reasonable care. It is also clear that this breach caused the accident. The central legal issue, therefore, is whether Zacharias owes a duty of care to Bathilda and Charlie for their psychiatric injuries, specifically post-traumatic stress disorder (PTSD). The law on recovery for pure psychiatric injury, often referred to as ‘nervous shock’, is restrictive. The courts have developed specific control mechanisms to limit the number of potential claimants, fearing a "flood of litigation" (Alcock and Others v. Chief Constable of South Yorkshire [1992] AC 310). The success of any claim will depend on whether Bathilda and Charlie can be classified as either a primary or a secondary victim.
2. Advice to Bathilda
2.1. Is Bathilda a Primary or Secondary Victim?
The first step is to determine Bathilda’s status as a victim. The distinction between primary and secondary victims was clarified by the House of Lords in White and Others v. Chief Constable of South Yorkshire [1999] 2 AC 455. A primary victim is someone who is directly involved in the accident and is within the range of foreseeable physical injury. A secondary victim, by contrast, is a person who witnesses the event and suffers psychiatric injury as a result of a fear for someone else's safety, and is not themselves in any physical danger (Alcock [1992] AC 310).
In Page v Smith [1996] AC 155, Lord Lloyd stated that a primary victim is "a participant" who is "directly involved in the accident" and "well within the range of foreseeable physical injury". Bathilda was "in an office building some distance away" when she saw the car fire. She was not involved in the collision and was not in the immediate zone of physical danger created by the crash. However, she feared that the fire "might spread to her building". This raises the question of whether a fear for her own safety could make her a primary victim.
The case of McFarlane v EE Caledonia Ltd [1994] 2 All ER 1 (CA) provides guidance on this issue. The claimant in McFarlane was on a support vessel and witnessed the Piper Alpha oil rig disaster from a distance. He feared for his own safety from the fire. The Court of Appeal held that to be a primary victim based on fear for one's own safety, that fear must be reasonable. The claimant in McFarlane was on a rescue vessel that never was in any real danger, and so his fear was deemed unreasonable.
Applying this to Bathilda, it is necessary to consider whether her fear was reasonable. A fire in a single car, while alarming to witness, is unlikely to pose a threat to a building located "some distance away". The facts do not suggest the car was parked next to her building or that there was any objective basis for fearing the fire would spread. It is therefore probable that a court would find her fear to be unreasonable. Consequently, she would not be classified as a primary victim. Her claim must be considered on the basis that she is a secondary victim.
2.2. Can Bathilda Claim as a Secondary Victim?
For a secondary victim to establish a duty of care, they must satisfy the strict control mechanisms laid down in Alcock. These were developed from Lord Wilberforce’s judgment in McLoughlin v O’Brian [1983] 1 AC 410 and relate to different aspects of proximity. The three requirements are:
- Proximity of Relationship: The claimant must have a close tie of love and affection with the person endangered by the defendant's negligence.
- Proximity in Time and Space: The claimant must have been present at the scene of the accident or its immediate aftermath.
- Proximity of Perception: The claimant must have perceived the events with their own unaided senses.
In Alcock, the House of Lords held that the prerequisite of a close tie of love and affection is presumed for relationships such as spouses and parent-child, but must be proven in other cases, such as siblings. The claimants in Alcock, who were relatives and friends of those killed in the Hillsborough disaster, failed because they could not satisfy all the criteria.
Applying these tests to Bathilda:
- Proximity of Relationship: The facts provide no information to suggest Bathilda knew Albus. She appears to be a mere bystander who witnessed a stranger’s car on fire. The courts have been consistently unwilling to extend a duty of care to bystanders who have no relationship with the primary victim (Alcock [1992] AC 310). This requirement is therefore not met.
- Proximity in Time and Space: Bathilda witnessed the car catching fire as it happened, but she was "some distance away". While this may be close enough to be considered presence at the scene, the failure on the first test is likely to be decisive.
- Proximity of Perception: She saw the car fire with her own eyes, so this requirement appears to be met.
Despite potentially satisfying the requirements of perception and proximity to the event, Bathilda's claim is almost certain to fail on the first, and most important, hurdle. Without the necessary close tie of love and affection to the immediate victim, Albus, the law does not recognise a duty of care owed to her as a secondary victim.
Therefore, it is highly unlikely that Bathilda would succeed in a claim against Zacharias.
3. Advice to Charlie
3.1. Is Charlie a Primary or Secondary Victim?
Charlie is a firefighter who attended the scene to put out the fire. His status as a professional rescuer is central to his claim. The leading case on rescuers is White v Chief Constable of South Yorkshire, which involved police officers who suffered psychiatric injury after assisting in the aftermath of the Hillsborough disaster.
The House of Lords in White held that rescuers are not a special category of claimant and do not receive preferential treatment. A rescuer can only be considered a primary victim if they were themselves in the zone of physical danger or reasonably believed themselves to be. Lord Hoffmann stated that there was no justification for "a general rule that all rescuers are to be regarded as primary victims". The previous authority of Chadwick v British Railways Board [1967] 1 WLR 912, where a rescuer who assisted at a train crash successfully claimed, was explained on the basis that Mr Chadwick was in actual physical danger while crawling through the wreckage, and was therefore a primary victim.
Applying the White principle to Charlie, his claim as a primary victim depends on whether he was exposed to physical danger while fighting the fire. The facts state he "developed post-traumatic stress disorder from his experience with the accident". They do not state that he was physically injured or was at risk of being physically injured (for example, from the car exploding). Without evidence that he was objectively exposed to danger or that he had a reasonable belief that he was, a court is likely to find that he does not meet the test for a primary victim.
3.2. Can Charlie Claim as a Secondary Victim?
Since he is unlikely to be a primary victim, Charlie must attempt to claim as a secondary victim. The White decision confirmed that rescuers who are not primary victims must satisfy the same stringent Alcock criteria as any other secondary victim.
Applying the Alcock tests to Charlie:
- Proximity of Relationship: Charlie is a professional rescuer attending in the course of his employment. He has no relationship with Albus, let alone a close tie of love and affection. This test is clearly not met.
- Proximity in Time and Space: Charlie was at the scene of the accident, so this test is satisfied.
- Proximity of Perception: He experienced the aftermath of the accident with his own senses, satisfying this test.
Like Bathilda, Charlie’s claim fails on the first Alcock test. The policy reasoning in White is important here. The Law Lords felt it would be unacceptable and unfair to allow police officers to recover damages when the bereaved relatives in Alcock had failed. It was also suggested that professionals like police and firefighters are expected to show more "phlegm and fortitude" and that allowing such claims could have a negative impact on the performance of their duties.
Therefore, as a professional rescuer who was not personally in physical danger, Charlie cannot be a primary victim. As a secondary victim, his claim fails because he does not have the required close tie of love and affection with the direct victim. His claim against Zacharias is therefore bound to fail.
4. Conclusion
In summary, the claims for psychiatric injury by both Bathilda and Charlie are very unlikely to succeed. The law in this area is highly restrictive, designed to limit the scope of liability for negligence that causes psychiatric harm.
Bathilda’s claim will fail because, as a bystander, she cannot satisfy the Alcock requirement of having a close tie of love and affection with the primary victim, Albus. Her fear for the safety of her building is unlikely to be considered a reasonable fear for her own safety so as to make her a primary victim.
Charlie’s claim will also fail. The case of White v Chief Constable of South Yorkshire establishes that as a professional rescuer, he must either be exposed to physical danger to qualify as a primary victim, or satisfy the Alcock criteria to claim as a secondary victim. The facts do not suggest he was in danger, and as a professional attending an incident, he lacks the necessary relationship with the primary victim to meet the Alcock test.
Ultimately, while their PTSD is a genuine and recognised medical condition, the strict control mechanisms in the law of negligence for recovery for psychiatric injury mean that Zacharias will not be held to owe either of them a duty of care.
References
Cases
Alcock and Others v. Chief Constable of South Yorkshire [1992] AC 310 (HL)
Chadwick v British Railways Board [1967] 1 WLR 912
Lochgelly Iron & Coal Co v McMullan [1934] AC 1 (HL)
McFarlane v EE Caledonia Ltd [1994] 2 All ER 1 (CA)
McLoughlin v O’Brian [1983] 1 AC 410 (HL)
Page v Smith [1996] AC 155 (HL)
White and Others v. Chief Constable of South Yorkshire [1999] 2 AC 455 (HL)
