Introduction
This advice will consider whether Farid, Aisyah, and Nurul may successfully claim damages in the tort of negligence against GreenTech Sdn Bhd for the psychiatric illnesses they have suffered. The claims arise from a major explosion at GreenTech’s facility, which was caused by negligent maintenance. Establishing a claim in negligence requires proving a duty of care, a breach of that duty, and that the breach caused legally recognised damage. As GreenTech’s negligence is stated as a fact, the central issue is whether GreenTech owes a duty of care to each claimant for their purely psychiatric harm, and whether the harm they suffered is legally actionable.
The law governing liability for psychiatric injury, historically termed ‘nervous shock’, is a distinct and complex area of negligence. The courts have been cautious in extending liability, particularly for those not physically endangered by the negligent act. This has led to a division between ‘primary’ and ‘secondary’ victims, each with different requirements to establish a duty of care. Each claimant's case will be assessed against this framework.
General Principles of Liability for Psychiatric Illness
For any negligence claim to succeed, the claimant must have suffered legally recognised damage. In the context of psychiatric harm, it is established that mere grief, sorrow or anxiety are not sufficient to ground a claim (Reilly v Merseyside RHA [1994] EWCA Civ 30). The claimant must prove that they have suffered from a genuine, medically recognised psychiatric illness, such as Post-Traumatic Stress Disorder (PTSD), severe depression, or pathological grief (Hinz v Berry [1970] 2 QB 40). In the scenario, Farid’s PTSD, Aisyah’s severe depression and anxiety, and Nurul’s recognised psychiatric illness all appear to meet this threshold. The main task is therefore to determine whether a duty of care is owed to each of them.
Farid’s Claim
Farid’s claim depends on whether he can be classified as a primary victim. A primary victim is a person who is directly involved in the accident and is within the range of foreseeable physical injury. The leading authority is Page v Smith [1996] AC 155, where the House of Lords held that a duty of care is owed if the defendant can reasonably foresee that their conduct will expose the claimant to the risk of some personal injury, whether physical or psychiatric. If a risk of physical injury is foreseeable, a duty is owed for any psychiatric injury that results, even if the psychiatric harm itself was not foreseeable.
On the facts, Farid was in a nearby office building when the explosion occurred. Although not physically injured, he "believed that the building was about to collapse". The test is not whether he was actually in danger, but whether he was in the zone of foreseeable physical danger or reasonably held that belief. Given that it was a "major explosion" at a chemical facility, it is highly foreseeable that individuals in close proximity could suffer physical injury from the blast, fire, or collapsing structures. Farid’s fear for his own safety appears entirely reasonable in the circumstances. He was a direct participant in the terrifying event created by GreenTech’s negligence.
Therefore, because it was foreseeable that Farid could suffer physical injury, GreenTech owed him a duty of care. Under the principle established in Page v Smith, it is not necessary to show that a psychiatric injury was foreseeable in a person of ordinary fortitude. As long as some personal injury was foreseeable, the defendant must take their victim as they find them (the ‘egg-shell skull’ rule). Farid’s development of PTSD, a recognised psychiatric illness, is a direct consequence of the breach of duty.
In conclusion, Farid has a strong claim against GreenTech as a primary victim and is likely to be awarded damages for his PTSD.
Aisyah’s Claim
Aisyah was not present at the scene of the explosion and was never in any physical danger. She cannot, therefore, be a primary victim. Her claim must be assessed based on the stricter rules for secondary victims, which were set out by the House of Lords in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. These rules act as control mechanisms to limit the potential for indeterminate liability. For a duty of care to be owed to a secondary victim, several conditions must be met:
- A close tie of love and affection: The claimant must have a close relationship with a person who was killed, injured or imperilled by the defendant's negligence. In Alcock, this was said to be presumed for spouses and parents/children, but must be proven in other relationships. As Aisyah is Farid’s wife, this requirement is satisfied.
- Proximity to the accident: The claimant must be close in time and space to the event or its immediate aftermath.
- The means of perception: The claimant must perceive the event or its aftermath with their own unaided senses (i.e., by seeing or hearing it), not by being told by a third party or seeing it on television.
- Sudden shock: The psychiatric illness must be caused by a sudden and shocking event, rather than a gradual accumulation of trauma.
Applying these tests to Aisyah, the main difficulties lie with the requirements of proximity and sudden shock. Aisyah first learned of the disaster by watching it on television. Alcock established that watching a live broadcast is generally insufficient, as broadcasters typically do not show images of recognisable, suffering individuals.
More problematically, she arrived at the scene "several hours later". The law allows for claims from those who do not witness the event itself but come upon its "immediate aftermath". In McLoughlin v O’Brian [1983] 1 AC 410, a mother who saw her injured family in hospital approximately two hours after a road accident was held to be within the immediate aftermath. However, in Alcock, relatives who saw their loved ones in a mortuary some eight or nine hours later were held to have arrived too late. The phrase "several hours" places Aisyah’s claim in a difficult position. While seeing Farid receiving emergency treatment could be a shocking sight, the significant time delay makes it less likely that a court would consider this to be the "immediate" aftermath. Courts have been strict in their interpretation of this rule, and a delay of "several hours" is likely to be fatal to her claim.
Furthermore, her subsequent development of "severe depression and anxiety" may not satisfy the "sudden shock" requirement. The law requires a "sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind" (Alcock). A gradual onset of depression following the event is generally not sufficient, as seen in Sion v Hampstead Health Authority [1994] 5 Med LR 170.
Therefore, although Aisyah satisfies the close tie of affection test, her claim is likely to fail due to the lack of sufficient proximity in time to the immediate aftermath of the event.
Nurul’s Claim
Nurul is a journalist who witnessed the aftermath of the disaster. As she was not in physical danger herself (or it is not stated that she was), she cannot be classified as a primary victim under the Page v Smith principle. Her claim must be considered under the rules for secondary victims.
Applying the Alcock criteria, Nurul's claim fails at the first hurdle. She is a bystander and does not have a close tie of love and affection with any of the victims of the explosion. The law has consistently denied claims from mere bystanders who are unrelated to the primary victims, on the policy grounds that to allow such claims would open the floodgates to litigation (McFarlane v EE Caledonia Ltd [1994] 2 All ER 1).
Some claimants have tried to argue that they fall into a special category of rescuers. In the past, rescuers were treated more favourably, as in Chadwick v British Railways Board [1967] 1 WLR 912, where a man who voluntarily helped rescue victims of a train crash successfully claimed for his resulting anxiety neurosis. However, the law was significantly clarified in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455. In that case, police officers who suffered psychiatric illness after their involvement in the Hillsborough disaster were denied compensation. The House of Lords held that rescuers are not a special category. To claim, a rescuer must either be a primary victim (i.e., they were themselves in physical danger) or satisfy the restrictive Alcock criteria for secondary victims. As a journalist, Nurul is at best a professional bystander, and she would be treated no more favourably than the police officers in White. Since she was not in physical danger and has no close ties to the victims, she has no viable claim as a secondary victim.
Additionally, her illness arose from "prolonged exposure to the aftermath". This is another reason her claim would fail. As mentioned in Aisyah's case, the law requires a sudden shock, not a reaction to a gradual accumulation of distressing experiences. Nurul’s situation is a clear example of the latter, which is not a recoverable head of damage.
Consequently, Nurul’s claim against GreenTech has no realistic prospect of success.
Conclusion
In summary, the likely outcomes for the potential claimants are as follows:
- Farid: He has a strong claim as a primary victim. He was in the zone of foreseeable physical injury and suffered a recognised psychiatric illness. He is likely to be successful in his claim for damages against GreenTech.
- Aisyah: Her claim as a secondary victim is weak. While she has the requisite close tie of affection to a primary victim, she is unlikely to satisfy the test of proximity, having arrived several hours after the event. Her claim would likely fail.
- Nurul: Her claim is almost certain to fail. As a bystander, she cannot meet the Alcock test for a close tie of love and affection. Furthermore, her illness resulted from prolonged exposure rather than a sudden shock.
The advice highlights the restrictive and often criticised nature of the law on psychiatric injury, which draws firm, and sometimes seemingly arbitrary, lines between who can and cannot claim compensation for genuine psychological suffering.
References
Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.
Chadwick v British Railways Board [1967] 1 WLR 912.
Hinz v Berry [1970] 2 QB 40.
McFarlane v EE Caledonia Ltd [1994] 2 All ER 1.
McLoughlin v O’Brian [1983] 1 AC 410.
Page v Smith [1996] AC 155.
Reilly v Merseyside RHA [1994] EWCA Civ 30.
Sion v Hampstead Health Authority [1994] 5 Med LR 170.
White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.
Mullis, A. and Oliphant, K. (2021) Torts. 5th edn. London: Red Globe Press.
