PSYCHIATRIC HARM QUESTIONS

Cath was walking in fields near her home. A helicopter suddenly hit a nearby tree and crashed to the ground
in flames. Cath narrowly missed being hit by falling debris. Cath went to help some of the survivors to escape
from the wreckage. Cath was lucky not to be burned while she helped the survivors. The pilot of the helicopter
was Devi. It was proved that the accident was caused by negligence on the part of Devi. For several months
after the accident, Cath suffered depression and severe anxiety attacks. This meant Cath was unable to leave
her house.

Advise Cath as to her rights against Devi.

• Identification and brief explanation of psychiatric injury, and of the potential of an action in negligence. Possible
reference to damages.
• Brief explanation of a primary victim (and perhaps the distinction from a secondary victim).
• Brief explanation of appropriate supporting case authority for example Reilly v Merseyside RHA, Page v Smith and
Chadwick v BRB.

AO2
• Application to suggest that Cath will need to show that she has a psychiatric injury in the form of a recognised
psychiatric condition.
• Application to suggest that Cath may qualify as a primary victim in that she was in the ‘zone of danger’ as it was
reasonably foreseeable that she could have been physically injured.
• Application to suggest that Cath may also qualify as a primary victim in that she helped others and by doing so
placed herself in physical danger (‘rescuer’).
• Possible application to explain that, in the event of a successful claim, Cath would be entitled to a remedy of
compensatory damages.

• Analysis and application of the requirements for a claim in negligence for psychiatric injury: a duty of care normally
only exists to someone who is a primary or a secondary victim.
• Analysis and evaluation of the requirements for a claimant to qualify as a primary victim on the grounds that they
were in the ‘zone of danger.
• Analysis and evaluation of the requirements for a claimant to qualify as a primary victim on the grounds that they
were a ‘rescuer’.
• Further reference to and analysis of case authority, developing the discussion of the cases cited above and/or further
relevant cases, for example McFarlane v EE Caledonia, White v Chief Constable for South Yorkshire.

Analyse and evaluate the difference between primary and secondary victims.
The response might consider issues such as:
 A primary victim is where the claimant is involved, immediately in time, as a participant, e.g. a person who feared for
their own safety, injured rescuers or an involuntary participant. They would be present at scene and usually (but not
always) have suffered physical injury. It does not matter if the victim is more susceptible to shock.
 A secondary victim is where the claimant has suffered some type of psychiatric injury. To be classified as a
secondary victim there must be a proximity in terms of relationship with a primary victim and the secondary victim must
have witnessed the accident with his/her own unaided senses.
 Candidates may evaluate relevant case law such as Hambrook v Stokes Bros; McCloughlin v O’Brien; Page v Smith;
Alcock v Chief Constable of South Yorkshire Police.

Leah was at home when a neighbour telephoned her. The neighbour reported that Leah’s brother, Milo, had
just been knocked off his bicycle by a bus and had been taken to hospital. This news caused Leah to suffer a
serious psychiatric injury. Leah did not visit Milo in hospital. The bus driver admitted that he was negligent in
causing the accident.
In these circumstances, suggest why any claim made by Leah in respect of her psychiatric injury would be
unlikely to succeed in court.

• Brief explanation of the difference between a primary victim and a secondary victim in the context of psychiatric
injury.
• Brief explanation of the restrictions on a claim made by a secondary victim.
• Application to suggest that Leah was a secondary victim as she was told of the accident rather than being a
participant in the accident.
• Application to argue that Leah does not meet the criteria required for a successful claim by a secondary victim in
terms of a sufficient tie of love and affection and in terms of witnessing the accident itself or the immediate aftermath.
• Possible brief reference to illustrative case law, for example Alcock v Chief Constable for South Yorkshire and Page
v Smith.
Callum and Toby visit an air show. During one of the air displays Callum witnesses, from behind the safety
barrier, a plane losing control and crashing. This causes Callum to suffer from anxiety. The crashed plane
catches fire. An announcement is made that the fire has spread to some nearby houses. Toby knows that his
friend, Matthew, is watching the display from one of these houses. Matthew manages to escape from his
burning house and finds Toby. Matthew is covered in blood and soot. The shock of seeing his friend like this
causes Toby to be seriously upset and later he becomes depressed. Matthew is shocked by the events and
the loss of his house. He suffers post-traumatic stress disorder and insomnia.
Advise whether Callum, Toby and Matthew will be able to bring successful claims for nervous shock
(psychiatric damage) against the air show organisers.

Define psychiatric injury (nervous shock) as a recognised psychiatric condition caused by a sudden single traumatic
event
The injury sustained must be as a result of a single shocking event – Sion v Hampstead HA
The injury can come from the loss of property – Attia v British Gas

Explain that the injury must be a recognised psychiatric condition which includes PTSD and depression – Vernon v
Bosley, Page v Smith
Explain that ordinary emotional responses such as grief and sorrow, claustrophobia and insomnia are not recognised
psychiatric injuries – Reilly v Merseyside HA, Hinz v Berry
Explain that there must be some basis for the claimant’s fear of physical danger – McFarlane v Wilkinson
Explain that as long as physical injury is foreseeable, any psychiatric injury which occurs can also be claimed for and
the usual rules of negligence apply – Simmons v British Steel

Distinguish between primary and secondary victims:

 Primary victim – a person who is present at the scene and is directly involved in the incident – Page v Smith, Dulieu
v White

 Secondary victim – a person witnessing a single shocking event causing risk of injury or actual injury to a primary
victim – Hambrook v Stokes

Explain the requirements for a successful claim by a secondary victim as set out in Alcock v Chief Constable of South
Yorkshire Police
 Close tie of love and affection to a primary victim – Hambrook v Stokes
 Sufficient proximity in time and space to the event or its immediate aftermath – Tan v East London and City Health
Authority, McLoughlin v O’Brian (2 hours) but consider also Taylor v Somerset HA, NE Glamorgan NHS Trust, W v
Essex CC
 Witnessing the traumatic event or its immediate aftermath with his/her own unaided senses either sight or hearing –
Alcock

Explain that for secondary victims, psychiatric damage must be foreseen in a person of normal fortitude
Explain that a mere bystander cannot claim as s/he is unlikely to fulfil the Alcock criteria – Bourhill v Young
In relation to Callum
 Identify that Callum’s injury has been caused by a single
 Consider whether anxiety is a recognised psychiatric injury
 Identify that Callum is unlikely to be considered a primary or secondary victim as although at the scene he is behind
safety barriers and is not directly involved or in danger of physical harm
 Conclude that Callum will be considered a bystander who cannot successfully claim unless the crash is deemed
particularly horrific

In relation to Toby
 Identify that Toby’s injury has been caused by the single shocking event of the plane crashing and seeing his
friend’s house on fire
 Identify that whilst being upset will not qualify as a ‘positive psychiatric injury’, depression will
 Identify that Toby can be considered a secondary victim
 Identify that to claim as a secondary victim Toby would need to fulfil the Alcock criteria
 Consider whether the friendship between Toby and Matthew will be considered a close tie of love or affection
 Consider whether Toby is sufficiently proximate as he heard of the events via an announcement
 Consider that Toby then did witness the plane crash and the aftermath of his friend’s condition with his own unaided
senses
 Conclude that Toby is unlikely to succeed in his claim as a secondary victim due to the lack of a close tie of love and
affection

In relation to Matthew
 Identify that Matthew’s injury has been caused by a single shocking event of the plane crashing and buildings
catching fire
 Recognise that the shock can also come from the shock of losing his house
 Recognise that whilst insomnia is not a recognised medical condition PTSD is
 Identify that Matthew is a primary victim as physical injury is foreseeable
 Identify that he is directly involved
 Conclude that Matthew would succeed in a claim

Anjum and Billy are working on a high platform repairing a roof. They have not been provided with
safety harnesses. The wind blows Billy off the platform and he is seriously injured when he falls to
the ground. Claire, Billy’s next door neighbour, who is passing at the time, sees the accident. She
immediately phones Pat, Billy’s mother, to tell her of the accident. Anjum, Claire and Pat all suffer
post-traumatic stress disorders.

Evaluate the accuracy of each of the four statements A, B, C and D individually, as they apply to
the facts in the above scenario.

Statement A: Anjum will be able to succeed in a claim for nervous shock (psychiatric damage)
due to suffering post-traumatic stress disorder.
Statement B: Pat will not be able to succeed in a claim for nervous shock (psychiatric damage)
as a secondary victim.
Statement C: Anjum will not be owed a duty of care in a claim for nervous shock (psychiatric
damage) as a primary victim as this type of harm is unforeseeable.
Statement D: Claire will be able to succeed in a claim for nervous shock (psychiatric damage)
as a secondary victim.

P1 Reason that the illness must be due to a single shocking event

P2 Reason that Anjum’s disorder is due to witnessing the shocking event of Billy being seriously injured
P3 Reason that nervous shock (psychiatric damage) requires a medically recognised condition
P4 Reason that Anjum’s post-traumatic stress disorder is a medically recognised disorder
P5 Conclude that the statement is accurate.

P1 Reason that a secondary victim is someone who is not directly involved in the incident
P2 Reason that Pat was not directly involved in the accident because she was not injured or in danger
P3 Reason that for a successful claim a secondary victim has to have direct perception of the incident or immediate
aftermath
P4 Reason that Pat learnt of the accident on the phone so did not have direct perception of the incident or immediate
aftermath
P5 Conclude that the statement is accurate.

P1 Reason that a primary victim is someone directly involved in the accident by being injured or in danger
P2 Reason that Anjum is directly involved by being in danger because he was not supplied with a safety harness
P3 Reason that the harm must be reasonably foreseeable
P4 Reason that failing to provide Anjum with a safety harness on a high platform is reasonably foreseeable to cause
harm
P5 Conclude that the statement is inaccurate.

P1 Reason that a secondary victim is someone who is not directly involved in the incident
P2 Reason that Claire was not directly involved in the accident because she was not injured or in danger
P3 Reason that for a successful claim a secondary victim has to have close ties of love and affection with the injured
victim
P4 Reason that Claire is the next door neighbour of Billy so will not have close ties of love and affection
P5 Conclude that the statement is inaccurate.

AceArenas Ltd is responsible for the maintenance of the electrical system in a concert area. Due
to AceArenas Ltd’s negligence, a fire broke out at the front of the arena during a concert.
Kamal was badly burnt in the fire. When he was told the extent of his injuries, he developed clinical
depression.
Lisa was sat at the back of the arena and ran forward to try and pull people out of the fire. She
became so upset by what she saw she now refuses to attend large concerts.
Kamal’s brother, Moheen, was not at the concert. Moheen received a telephone call informing
him that Kamal was at the local hospital. When he arrived at the hospital he saw the full extent of
Kamal’s injuries. He was so shocked that he has since developed post-traumatic stress disorder.
Advise whether Kamal, Lisa and Moheen would be successful in claims for psychiatric damage
(nervous shock) against AceArenas Ltd.

Define psychiatric injury (nervous shock) as a recognised psychiatric condition caused by a sudden single traumatic
event
Explain that the injury can be physical injury bought on by the shock - Page v Smith
Explain that if physical injury is not caused then the injury must be a recognised psychiatric condition, which include
PTSD and depression – Vernon v Bosley, Page v Smith
Explain that ordinary emotional responses such as grief and sorrow, claustrophobia and insomnia are not recognised
psychiatric injuries – Reilly v Merseyside HA, Hinz v Berry
The injury sustained must be as a result of a single shocking event – Sion v Hampstead HA
Explain that there must be some basis for the claimants fear of physical danger – McFarlane v Wilkinson
Explain that as long as physical injury is foreseeable, any psychiatric injury which occurs can also be claimed for and
the usual rules of negligence apply – Simmons v British Steel
Distinguish between primary and secondary victims:
 Primary victim – a person who is present at the scene and is directly involved in the incident – Page v Smith, Dulieu
v White
 Secondary victim – a person witnessing a single shocking event causing risk of injury or actual injury to a primary
victim – Hambrook v Stokes

Explain the requirements for a successful claim by a secondary victim as set out in Alcock v Chief Constable of South
Yorkshire Police
 Close tie of love and affection to a primary victim – Hambrook v Stokes
 Sufficient proximity in time and space to the event or its immediate aftermath – McLoughlin v O’Brian (2 hours) but
consider also Taylor v Somerset HA, NE Glamorgan NHS Trust, W v Essex CC
 Witnessing the traumatic event or its immediate aftermath with his/her own unaided senses either sight or hearing –
Alcock

Explain that for secondary victims, psychiatric damage must be foreseen in a person of normal fortitude.
Explain that for a rescuer to claim, they must either be a genuine primary victim and at risk of physical injury
(Chadwick v BRB, MacFarlane) or must fulfil the criteria for a secondary victim – Greatorex v Greatorex, White v Chief
Constable of South Yorks Police
Explain that a mere bystander cannot claim as s/he is unlikely to fulfil the Alcock criteria – Bourhill v Young
 Credit any other relevant case(s).
 Credit any other relevant point(s).

In relation to Kamal
 Identify that Kamal is a primary victim as he is present at the scene and involved in the incident
 It is foreseeable that some harm could occur from the fire
 Identify that clinical depression could be regarded as a recognised psychiatric condition
 Identify that the depression has arisen from the single shocking event of the fire
 The depression appears to be the result of the incident
 Kamal will be successful in his claim

In relation to Lisa
 Identify that Lisa could claim as either a primary or secondary victim
 She can be regarded as a rescuer but will have to show that she is a genuine primary victim or secondary victim
 Lisa is at the scene and directly involved
 As a primary victim she was in fear for her own safety
 It is foreseeable that some harm would occur, however, Lisa does not have a recognised psychiatric condition
 Lisa is unlikely to be successful in her claim

Consider also:
 As a secondary victim Lisa will have to fulfil the Alcock criteria

 As a secondary victim, she is present at the scene and witnesses the immediate aftermath
 She does not appear to have a close tie of love or affection to any of the primary victims
 Lisa is unlikely to succeed on this basis

In relation to Moheen
 Identify that Moheen’s claim would be as a secondary victim
 This means that he has to fulfil the Alcock criteria
 Post-traumatic stress disorder is a recognised psychiatric condition
 It appears that it is the result of the incident
 He will have to establish a close tie of love and affection as Kamal’s brother
 He was not present at the scene and did not witness the scene with his own unaided scenes
 He did, however, potentially witness the immediate aftermath at the hospital
 He is likely to succeed with his claim

Discuss the arguments for and against reform of the law on nervous shock (psychiatric damage).

Define nervous shock (psychiatric damage) as a recognised psychiatric condition caused by a single traumatic event-
Reilly v Merseyside HA, Sion v Hampstead HA
Explain that recognised psychiatric conditions include PTSD and depression –Vernon v Bosley, Page v Smith, Hinz v
Berry
Explain that emotional reactions such as grief and sorrow, claustrophobia and insomnia are not recognised – Reilly v
Merseyside HA, Hinz v Berry

Distinguish between primary and secondary victims:

 A primary victim is one who is present at the scene and directly involved in the incident – Page v Smith, Dulieu v
White
 A secondary victim is one who witnesses a single shocking event causing risk of injury or injury to a primary victim –
Hambrook v Stokes

Explain how the thin skull rule applies to a primary victim as decided in the case of Page v Smith – as long as the
physical injury is foreseeable, any psychiatric injury which arises can also be claimed for and the normal rules of
negligence apply

Explain the requirements for a successful claim by a secondary victim as set out in Alcock v Chief Constable of South
Yorkshire Police:

 Close tie of love and affection to a primary victim – Hambrook v Stokes,

 Sufficient proximity in time and space to the event or its immediate aftermath McLoughlin v O’Brian, Taylor v
Somerset, NE Glamorgan NHS Trust v Walters, W v Essex CC, Taylor v A Novo Ltd
 Witnessing the traumatic event or its immediate aftermath with own unaided senses through either sight or hearing –
Alcock

Explain that for secondary victims, psychiatric damage must be foreseen in a person of normal fortitude

Explain that bystanders cannot recover damages if they have no relationship with the primary victim
Credit reference to any other relevant cases
Credit any other relevant points
Discuss any or all of the following issues:

For
 Although there is a fairly clear definition of recognised psychiatric illness , the issue of excessive grief is unclear

There is no clear indication of a single traumatic event – this can extend from a one off incident to a series of incidents
which the courts interpret as one long event
 The Alcock criteria – close tie of love and affection requirement means that some relationships could be excluded.
The Law Commission in its 1998 report has suggested a fixed list of relationships and those outside it need to prove
their relationship
 Unaided senses – Law Commission has suggested that Parliament gets rid of this element to update the law to
include the issue of modern technology e.g witnessing traumatic events via Skype/Facetime
 Time and space (the aftermath) – the courts have limited this to 2 hours initially but the time can be extended. The
Law Commission has suggested that this element is not needed as long as foreseeability is proved
 The definition of rescuer is clear but who actually qualifies as a primary victim in a rescue needs to be clarified.
 The current law has been developed by judges in a piecemeal fashion which arguably has led to inconsistency and
lack of clarity

Against
 Close tie of love and affection - there is considered to already be a fixed list and any other person needs to prove
the close tie. Therefore, reform is not needed.
 Judges are able to clarify the law at any point by using their powers to avoid judicial precedent
 If there was statute law it would still need to be interpreted and the current law would be used as a guide
 The courts have tried to provide fairness and justice to the parties concerned in the way that they have developed
the law
 The courts are able to make decisions that reflect changes in society and technology

 Credit any other issue

 Reach any sensible conclusion

A Law Commission report published in 1998 argued that the current rules on compensation for secondary
victims suffering nervous shock are too restrictive. Outline the current rules relating to secondary victims and
evaluate their usefulness in the light of case law decisions.

The Law Commission considers it justified that there should be a close tie between primary and secondary victim and
that this should remain. However, the belief of the Commission is that this should suffice and that the proximity in time,
space and method of perception requirements be abolished. Candidates should express their views on this matter.

Candidates should define and explain the meaning of key terminology: nervous shock, primary and secondary victims,
etc. The generally accepted requirements for liability to exist should be detailed and explored: reasonable foresight,
nature of psychiatric injury, relationship with primary victim and proximity. Each test should be explored, analysing
decided cases in each area and drawing conclusions.

Key cases such as White and Others (1998), Alcock v Chief Constable of Yorkshire Police (1997), McLoughlin v
O’Brian (1982), Chadwick v British Railways Board (1967), Sion v Hampstead Health Authority (1994) should all be
analysed. This question could be approached from various angles and appropriate credit should be awarded
whichever angle it is tackled from.

Salvatore leaves the oil refinery at the end of a day’s work. He is approximately 1 km away from the gates
when a series of massive explosions occur back at the refinery and he is knocked to the ground by the shock
waves. He hears the cries of workmates caught in the fire that follows, but thick smoke prevents him from
returning inside to help them. 20 people die as a result of the explosions and fire. It later transpires that the
accident was caused by the lack of proper maintenance of refinery machinery. Salvatore suffers severe
trauma following the incident and is unable to work again. Discuss the potential liability in negligence of the
oil refinery owners for Salvatore’s illness.

Focus of candidate attention should be on liability in negligence and in particular for nervous shock. Liability in
negligence results from the existence of a duty of care owed to the claimant, a breach of that duty and consequential
loss or damage to the claimant. Candidates expected to give a brief discussion and illustration of these elements. The
trauma, which he suffers and which prevents him working, might be described as a case of nervous shock. He has
sustained psychiatric injury as defined by Lord Bridge in McLoughlin v O’Brien. The harm that Salvatore has suffered
is sustained as a direct result of the act of negligence of the refinery owners. Would Salvatore be described as a
primary or a secondary victim? As he was not actually at work when the explosion occurred and thus not in imminent
danger, he would be classed a secondary victim. A duty of care is only owed to secondary victims if very strict
conditions are satisfied. The decisions in White, McLoughlin and Alcock need to be discussed and the tests of the
nature of the injury, class of person and claimant proximity need to be applied. Clear compelling conclusions are
required.

Natalie and Oliver are twins, aged 4, who are looked after by a 19 year-old nanny called Jessica.
Jessica, who has no licence to drive on the public highway, takes the two children for a car-ride
around the farm on which they all live. Jessica negligently steers the car off the farm track, down a
bank and into a deep pond. The three occupants of the car would almost certainly have drowned,
but for the heroics of Marvin, a farm-worker, who sees the entire incident and dives in to release
them from the car. Oliver is already dead when he is brought out of the water; Natalie and Jessica
survive the ordeal. The twins’ mother is informed of Oliver’s death and she suffers immediate and
grievous shock. Marvin suffers a nervous breakdown as a consequence of failing to save Oliver.
Taking care to discuss any defences that she might successfully raise against either of them,
advise Jessica of her potential liability in negligence for the losses suffered, (a) by Natalie’s mother
and (b) by Marvin.

Candidates should set the question within the context of negligence by providing a definition
followed by an outline of the three key elements: duty of care, breach of duty and resultant
loss.
The focus of responses to this question must be on the issue of duty of care and the need for
defendant-claimant proximity and of liability for resultant psychiatric injury.
In order for any claim in negligence to succeed, a duty of care owed by defendant to each
claimant must be proven. Donoghue v Stevenson and the neighbour test need to be outlined
and implications discussed. Were the twins’ mother and Marvin sufficiently proximate to
Jessica to amount to her neighbours? As the one was the mother of children left in her care
and Marvin worked on the farm on which she was driving, it would appear so. Hence a duty
of care was owed to both of them.
A breach of duty can be assumed here and requires no more than brief discussion.
The principal issue surrounds her liability for the apparent nervous shock suffered by both
claimants as they are both secondary victims of the defendant’s actions. In White and Others
it was established that relatives of victims and those voluntarily giving assistance to people in
danger are also to be treated by the rules developed in McLoughlin v O'Brien, and Alcock v
Chief Constable of Yorkshire, but claims for psychiatric injury are to be strictly limited. The
decision in White and Others confirmed that secondary victims must prove that psychiatric
injury to secondary victims was a reasonably foreseeable consequence of a defendant’s
actions; however this will only be the case if a bystander of reasonable fortitude would be
likely to suffer psychiatric injury. In addition to reasonable foresight, the loss must amount to
a recognised psychiatric illness caused by sudden shock (Sion v Hampstead Health
Authority), it must be suffered by someone with a sufficiently proximate relationship to the
victim (including bystanders and rescuers), and the claimant must witness the event itself or
its immediate aftermath or seen or heard it on TV or radio.
As the mother was not at the scene of the accident, does she satisfy the proximity
requirement? Is her suffering simply that likely to be suffered by any grieving parent? Did
Marvin voluntarily consent to the risk of injury or loss by acting as a rescuer and could this be
raised as a defence against him?
The principles must be applied to the scenario and clear, compelling conclusions drawn.

A Law Commission report published in 1998 argued that the current rules on compensation for
secondary victims suffering nervous shock are too restrictive.
Outline the current rules relating to secondary victims and evaluate their usefulness in the light of
case law decisions.

The Law Commission considers it justified that there should be a close tie between primary and
secondary victim and that this should remain. However, the belief of the Commission is that this should
suffice and that the proximity in time, space and method of perception requirements be abolished.
Candidates should express their views on this matter.
Candidates should define and explain the meaning of key terminology: nervous shock, primary and
secondary victims, etc. The generally accepted requirements for liability to exist should be detailed and
explored: reasonable foresight, nature of psychiatric injury, relationship with primary victim and proximity.
Each test should be explored, analysing decided cases in each area and drawing conclusions. Key cases
such as White and Others (1998), Alcock v Chief Constable of Yorkshire Police (1997), McLoughlin v
O’Brian (1982), Chadwick v British Railways Board (1967), Sion v Hampstead Health Authority (1994)
should all be analysed.
This question could be approached from various angles and appropriate credit should be awarded
whichever angle it is tackled from. Would ordinarily expect emphasis placed on problems relating to the
position of rescuers, closeness of relationship, proximity and or sudden shock requirements.

Salvatore leaves the oil refinery at the end of a day’s work. He is approximately 1 km away from the gates
when a series of massive explosions occur back at the refinery and he is knocked to the ground by the shock
waves. He hears the cries of workmates caught in the fire that follows, but thick smoke prevents him from
returning inside to help them. 20 people die as a result of the explosions and fire. It later transpires that the
accident was caused by the lack of proper maintenance of refinery machinery. Salvatore suffers severe
trauma following the incident and is unable to work again. Discuss the potential liability in negligence of the
oil refinery owners for Salvatore’s illness.

Focus of candidate attention should be on liability in negligence and in particular for

nervous shock.
Liability in negligence results from the existence of a duty of care owed to the claimant,
a breach of that duty and consequential loss or damage to the claimant. Candidates
expected to give a brief discussion and illustration of these elements.
The trauma, which he suffers and which prevents him working, might be described as a
case of nervous shock. He has sustained psychiatric injury as defined by Lord Bridge
in McLoughlin v O’Brien.
The harm that Salvatore has suffered is sustained as a direct result of the act of
negligence of the refinery owners. Would Salvatore be described as a primary or a
secondary victim? As he was not actually at work when the explosion occurred and
thus not in imminent danger, he would be classed a secondary victim.
A duty of care is only owed to secondary victims if very strict conditions are satisfied.
The decisions in White, McLoughlin and Alcock need to be discussed and the tests of
the nature of the injury, class of person and claimant proximity need to be applied.
Clear compelling conclusions are required.

Describe the legal rules governing the recovery of damages for nervous shock.
Assess the extent to which policy rather than foreseeability of harm has influenced the development of the
current rules.
This question requires candidates examine the issue of damages for nervous shock from a critical perspective. A
detailed account of general negligence is not required.
Candidates should describe the rules governing who can recover damages for nervous shock

Potential Content
• • Development of the current rules
• • Primary and secondary victims
• • The Alcock ‘control mechanisms’
• • Rescuers
• • Bystanders

Candidates should then consider relevance of policy issues to the development of the rules and assess whether it is a
greater influence than the foreseeability of harm in this context
Potential Content
• • Identification of policy
• • Floodgates argument
• • Fear of fraudulent claims
• • Difficulties in assessing psychiatric harm
• • Law Commission Report

Candidates should present a reasoned argument and teach a coherent conclusion in relation to the key issue raised in
the question

Simon has been cycling to work for the last year. One day he is late for work and is cycling as fast as he can
when he comes to a junction in the road. Instead of stopping, he continues without checking that the road is
clear and he is hit by a car travelling faster than the speed limit. Simon is thrown from his bicycle and
sustains serious injuries. The driver of the car, Ada, is not physically injured but her passenger Pierre is
traumatised by the incident and has been unable to return to work since the incident. Advise Ada as to her
liability in relation to negligence.

The focus of this question negligence and liability for nervous shock.
Candidates should introduce the tort of negligence and explain each of the essential elements of the tort.
• • Elements of negligence – duty/breach/damage
• • Liability for physical injuries
• • Meaning of nervous shock
• • Primary and secondary victims
• • Proximity in time, space and relationship
• • Defences – contributory negligence

Relevant case law should be used to support the explanation of the law.
Candidates should apply the relevant law to the facts of the scenario, with particular reference to:
• • Can the elements of negligence be established?
• • Is there a genuine medical condition present?
• • Are claimants primary or secondary victims
• • Can liability for nervous shock be established
• • Is there contributory negligence present in relation to both injured parties?

Candidates must explain the law and in order achieve the higher bands candidates must also apply the law in a logical
fashion to the facts and reach a coherent conclusion.

Jim is late for work and driving at speed when his car collides with a taxi, driven by Shannon. She is not
wearing a seatbelt and is seriously injured. Jim is trapped in his car. Emma is a self-employed hairdresser.
Although Emma does not witness the accident, it happens outside her shop. She calls the emergency
services and stays with Jim until they arrive. She is very distressed as the injuries of both Shannon and Jim
appear to be life threatening. Shannon and Jim are taken to hospital and following treatment both make a full
recovery. Since the incident, Emma has been unable to work due to anxiety and stress. She eventually has no
choice but to close her business. Advise the parties as to their rights, responsibilities and remedies in relation
to negligence. [25]

This question concerns negligence and the special requirements for

establishing a duty of care in relation to nervous shock.
Candidates should first explain the relevant legal rules.
Potential content:
 Duty of care requirements
 Breach of duty – standard of care
 Causation and remoteness of damage
 Meaning of nervous shock
 Primary and secondary victims
 Special requirements for establishing liability in relation to secondary
victims
 Contributory negligence
Relevant case law should be used to support the explanation of each
element.
Candidates should then apply the relevant law to the facts of the scenario.
Potential content:
 Liability for the physical injuries – are the elements of negligence
present?
 In relation to the nervous shock – is there a recognised psychiatric
condition present?
 Is Emma a primary or secondary victim?
 If Emma is a primary victim can she satisfy the requirements for
establishing liability?
 If Emma is a secondary victim can she satisfy the requirements for
liability?
 Will defence of contributory negligence be used in relation to Shannon’s
failure to wear a seatbelt?
Either approach (primary or secondary victim) can be credited. In either
approach candidate must apply the law in a logical fashion and try to reach a
coherent conclusion as to liability

John, a 14 year old boy, is a member of a football club. During a training session he is seriously injured when
the goal post falls and hits him. The club’s management had previously been made aware that the goal post
was unstable but had not taken any action. John’s parents, Ian and Margaret, receive a telephone call
informing them that their son is seriously injured and that an ambulance has been called. Ian and Margaret
arrive at the football club just as the ambulance is leaving. They follow the ambulance to the hospital.
Margaret briefly sees John, clearly badly injured, as he is taken out of the ambulance. John undergoes an
emergency operation and is unconscious for five days. Ian and Margaret sit at his bedside for the whole time.
John regains consciousness but spends a year in recovery. Ian and Margaret have both been diagnosed with
post-traumatic stress disorder (PTSD). Advise the parties as to their rights and responsibilities in relation to
negligence.

Candidates should first explain the relevant legal rules.

Potential content:
 Duty of care requirements
 Breach of duty – standard of care
 Causation and remoteness of damage
 Meaning of nervous shock
 Primary and secondary victims
 Special requirements for establishing liability in relation to secondary
victims
Relevant case law should be used to support the explanation of each
element.
Candidates should then apply the relevant law to the facts of the scenario.
Potential content:
 Liability for the physical injuries to John – are the elements of negligence
present?
 In relation to the nervous shock – is there a recognised psychiatric
condition present in relation to each potential victim?
 Is Margaret a primary or secondary victim?
 If Margaret is a secondary victim, can she satisfy the requirements for
establishing liability?
 If Ian is a secondary victim, can he satisfy the requirements for liability?
Where candidates approach the question on the basis of occupiers’ liability,
some credit may be awarded for a discussion and application of the duty
owed by the occupier in this context.

“Bystanders who have no relationship with the primary victims of an accident are very
unlikely ever to be able to sue successfully for psychiatric injury experienced as a result.”
With reference to relevant case law, critically analyse the limitations imposed by the
courts in instances of nervous shock sustained by secondary victims.
In the past, the courts have been reluctant to accept psychiatric injury or nervous shock as a
head of damage in negligence claims; physical harm has been necessary. Today it is
recognised, but there are severe limitations. Candidates should explain the concept of nervous
shock: genuine psychiatric illness or injury required. The distinction between primary and
secondary victims should be clearly, but briefly explained.

Focus must then be turned to secondary victims, i.e. those who have suffered psychiatric injury
as a result of witnessing death or injury caused by a third party’s negligence as a result of acting
as rescuers or as a result of their jobs (e.g. police officers). Until 1998 and the case of White and
Others, all the above groups were treated differently, but since then they have all been subjected
to two sets of rules: those established in McCloughlin v O’Brien and Alcock v Chief Constable of
Yorkshire. The net result is that secondary victims today have to prove that psychiatric injury to
secondary victims was a reasonably foreseeable consequence of the defendant’s negligence and
that that the psychiatric shock amounts to a recognised psychiatric illness. The secondary victim
must also show sufficient proximity in terms of relationship with the primary victim and in terms of
time and space.
Candidates must offer a critical analysis of case law decisions. Cases are many and various, but
candidates might consider how the rules have been applied and developed in cases such as
White, McCloughlin, Alcock, Bourhill v Young, Sion v Hampstead Health Authority, Greatorex v
Greatorex, etc.
The Law Commission has argued that the present rules on the compensation of secondary victims for
nervous shock are too restrictive and should be eased. Analyse the rules and critically assess whether or not
you agree with this view.

The concepts of secondary victims and nervous shock should be explained and contextualised. Candidates should
demonstrate an awreness of the LC’s report published in 1998 in which the rules were considered: The requirement
that the psychiatric injury be caused by a sudden shock should be explained and an opinion expressed on the LC
report’s view that the requirement be abolished. The closeness of relationship rule should be explained and its
operational effects illustrated by reference to case law such as Alcock v Chief Constable of South Yorkshire.

Candidates should explain that the LC report considered this a justified and necessary requirement and then express
their own opinion. The Proximity requirement must also be explained and its operational effects illustrated by reference
to case law such as Alcock, Mcloughlin v O’Brien, Sion v Hampstead Health Authority etc. Candidates should explain
that the LC report considered this as unjustified and that it should be abolished. Again, candidates are expected to
express their own opinion. Candidates must analyse the rules with a critical eye and express a clear, concise opinion.
Responses that are limited to factual recall, however detailed, will be restricted to band 3 marks.

Miguel is on his way home from his job in a coal mine and is approximately 500 metres away from the gates
when a series of explosions occurs back at the mine. Shock waves knock him to the ground. He tries to return
to help workmates trapped and injured by the explosions, but thick smoke prevents him from doing so. A
number of miners die as a result of the explosions and fire. Miguel suffers severe trauma following the
incident and is unable to work again. A later enquiry exposes inadequate inspection and maintenance
procedures at the mine as the main cause of the accident. Discuss the potential liability in negligence of the
mine owners for Miguel’s illness and the likely success of any defences that might be raised.

Focus of candidate attention should be on liability in negligence and in particular for nervous shock. Liability in
negligence results from the existence of a duty of care owed to the claimant, a breach of that duty and consequential
loss or damage to the claimant. Candidates expected to give a brief discussion and illustration of these elements. The
trauma, which he suffers and which prevents him working, might be described as a case of nervous shock. He has
sustained psychiatric injury as defined by Lord Bridge in McLoughlin v O’Brien. The harm that Miguel has suffered is
sustained as a direct result of the act of negligence of the refinery owners. Would Miguel be described as a primary or
a secondary victim? As he was not actually at work when the explosion occurred and thus not in imminent danger, he
would be classed a secondary victim. A duty of care is only owed to secondary victims if very strict conditions are
satisfied. The decisions in White, McLoughlin and Alcock need to be discussed and the tests of the nature of the
injury, class of person and claimant proximity need to be applied. The principles must be applied to the scenario and
whatever conclusions are reached they should be clear, compelling and fully supported.

Six months ago, Adrienne fell to her death when her harness broke during a sponsored abseil down the side
of Tower Bridge in London. The event to raise money for local charities was televised live by the Greater
London Broadcasting Company and viewers were clearly able to see the accident as it happened. Christopher
was responsible for checking the harnesses of the participants but it appeared that Christopher had
negligently failed to check the harness that Adrienne used. Adrienne’s sister Shelly and her friend Nigel were
watching the event from a boat on the river flowing beneath the bridge and saw her fall. Adrienne’s mother,
Gill, was not present, but had to go to the hospital several hours later to formally identify her body. Adrienne’s
grandfather, Paul, saw the accident on live television. Shelly, Nigel, Gill and Paul have all been diagnosed as
suffering from various forms of depression and other psychiatric problems.

With reference to case law, advise Christopher regarding his liability in negligence towards each of them.

Candidates should contextualize their responses by identifying negligence and nervous shock as the key issues.
Negligence should not be discussed in detail as the scenario indicates that negligence has definitely taken place. The
focus of the response should reference the liability of the defendant for nervous shock. Candidates should then
distinguish between primary and secondary victims of negligence and conclude that all claimants are secondary
victims.
Nervous shock should be defined and the principles on which liability rests as regards secondary victims should be
identified and explained: relevant class of person, own sight, hearing of incident or its immediate aftermath, means by
which shock received. These should then be related to each claimant separately. Shelley is a sibling so the Alcock
requirement of a tie of love and affection can be presumed and she was actually at the scene of the accident and saw
it happen. Nigel was also present, but as a friend will have more difficulty, having to prove a tie akin to a family
relationship (Alcock).
Could his claim flounder? Although Gill is her mother, the findings in Alcock suggest that identifying her body at the
hospital will not satisfy the aftermath test. Will her claim fail? As for Paul, the issue here is the means by which he
learned of the accident. In Alcock it was suggested that clearly identifiable live pictures might satisfy the proximity
requirement. Whatever conclusions are reached they should be clear, compelling and fully supported.

Reema works in a factory, owned by ABC Ltd, which manufactures chocolate bars. She operates a new
machine which produces 100 bars per minute. Her colleague Tariq works on the other side of the machine,
packing the chocolate bars into boxes. On the first day of operation, Reema hears Tariq shouting out to stop
the machine. Reema switches it off and runs over to Tariq. His hand is badly cut and he has lost
consciousness.
Tariq had tried to clear a blockage by hand while the machine was still operating. ABC Ltd has not yet
installed a safety guard to restrict access to the machine, although employees have been given clear
instructions to stop the machine before clearing blockages. Tariq has now lost the use of his hand and has
been diagnosed with post-traumatic stress disorder. Reema has been unable to work since the incident and is
under medical care for depression. Advise the parties as to their rights and responsibilities in relation to
negligence

Nadia is undergoing treatment for a rare brain condition at the Royal Barsetshire Hospital. The condition
shows no sign of improvement and Haroon, a consultant at the hospital, suggests that they try new
medication. Haroon has read reports from early trials of this medication that it has led to severe depression in
some patients but the evidence is not conclusive. He decides not to warn Nadia of the risk and she agrees to
try the medication. Some days into the new treatment she starts to experience depression. When she is left
alone in her hospital room, she opens the window and jumps 15 metres to the ground below. She suffers
serious head injuries and subsequently dies. When her parents are informed, her mother Esther suffers a
severe psychiatric reaction.

Consider the potential liability of Haroon and the hospital for Nadia’s death and Esther’s
subsequent illness.
Focus of candidates’ attention should be on liability in negligence in general as regards Nadia
and in nervous shock as regards Esther. Whilst Haroon might ordinarily be considered liable for
his own actions, as he commits possible act of negligence in a work situation could the hospital
be held vicariously liable too?
Liability in negligence results from the existence of a duty of care owed to the claimant, a breach
of that duty and consequential loss or damage to the claimant. Candidates are expected to give a
brief discussion and illustration of these elements.
Candidates will be familiar with the relevant law on the scope of a hospital’s duty to warn of risks
attaching to treatment. They should also see that causation was an important issue here: would
Nadia have agreed to the treatment if she had been warned of the risks and did the drug in fact
cause her to kill herself? The latter problem is caused by the unavailability of scientific evidence,
but it is a very different situation from that in the Fairchild case where the House of Lords relaxed
the ‘but for’ requirements in order to do justice.
Good candidates might also consider an alternative line of reasoning which avoids these
problems: should Haroon and the hospital have ensured that Nadia was monitored continuously,
given that the risk of depression was known? If they were in breach of that duty, the causation
problem largely disappears (although of course she might have escaped even if she was
supervised).
Only once liability is established, can the question of whether Esther can recover for her
psychiatric injury be addressed. Candidates should define and explain the meaning of key
terminology: nervous shock, primary and secondary victims, etc. The generally accepted
requirements for liability to exist should be detailed and explored: reasonable foresight, nature of
psychiatric injury, relationship with primary victim and proximity.
Each test should be explored, analysing decided cases in each area and drawing conclusions.
Key cases such as White and Others (1998), Alcock v Chief Constable of Yorkshire Police
(1997), McLoughlin v O’Brian (1982), Chadwick v British Railways Board (1967), Sion v
Hampstead Health Authority (1994) should all be analysed.

A driver working for Mainline Trains Ltd fails to notice a warning signal at the side of the track, fails to stop
the train as he should have done and causes a collision with a train coming in the other direction. Many
passengers are killed or seriously injured and the drivers of both trains die instantly. Tristan is standing on a
bridge over the railway when the accident happens. He runs immediately to help passengers to safety but
suffers severe burns when fire suddenly sweeps through the wreckage. Isolde is watching a news bulletin on
television when she thinks that she sees her husband being carried away from the wreckage. Isolde is
pregnant and, believing that her husband might be dead, she suffers nervous shock and miscarries (loses)
her baby. Consider the potential liability in the tort of negligence of Mainline Trains Ltd and the likely success
of any defences that might be raised against Tristan and Isolde should they choose to sue.

The torts of negligence should be defined and the elements should be briefly explained by way of
introduction. Candidates should then focus their response on the two potential claims that might
be made. Examination of the issue of vicarious liability is anticipated and should be suitably
credited.
In Tristan’s case the issue is of rescuers. Can rescuers consent to injuries sustained as a
consequence of risk ‘freely’ undertaken? Cases such as Chadwick v British Railways Board,
Cutler v United Dairies and Haynes v Harwood must be explored here and conclusions drawn
regarding the consent issue.
Isolde has suffered ‘nervous shock’ perhaps. She is a secondary victim. Candidates must
explore the proximity requirements imposed as a consequence of White, Alcock and McLoughlin.
The principles must be applied to the scenario and whatever conclusions are reached they
should be clear, compelling and fully supported.

Josh teaches at Barchester College. He leads a group of students on a field-trip to the North of England to an
area well-known for bad weather conditions. On the second day of the trip, the group suddenly finds itself in
thick fog. The group decides to return to the hostel in which they are staying but they soon get lost in the fog.
Josh has no means of finding the way back to the hostel and the group waits until the fog clears. When it gets
dark and the group has failed to return, the manager of the hostel contacts the local police and arranges for a
number of his friends to form a search party to go out and look for the group. The search party finds the
group a few hours later, but not before Josh and Len (one of the search party’s members) require medical
attention.
Len has fallen on rocks in the dark and suffered severe head injuries. Josh is suffering from exposure to the
cold weather. One of the students takes a video of Josh and Len being put into an ambulance and this video
soon appears as part of a bulletin on a television news programme. Len’s sister, Elsie, sees the news bulletin
and suffers severe shock as she sees that Len has been badly injured during the incident. Advise Len, Elsie
and Josh as to their respective rights and liabilities in the tort of negligence

Candidates should contextualise their responses by identifying negligence and nervous shock as
the key issues. Negligence essentials of duty of care, breach and causation should be discussed
in detail as the scenario does not indicate with certainty that negligence has definitely taken
place. The focus of the response should be the liability of the defendant, Josh, for the injuries of
one of the rescuers, Len and for nervous shock sustained by his sister Elsie.
Candidates need to decide whether Josh has been negligent when setting out in territory known
to be potentially dangerous without taking map, compass or GPS equipment with him.
With regard to Len’s injuries, the special case of rescuers in the torts of negligence must be
explored, where the injuries sustained are a consequence of deliberate or negligent acts as
would seem to be the case here. Cases such as Smith v Baker, ICI v Shatwell, and Kirkham v
Chief Constable of Greater Manchester might be considered.
Candidates should distinguish between primary and secondary victims of negligence and
conclude which category Elsie falls into. Nervous shock should be defined and the principles on
which liability rests as regards secondary victims should be identified and explained: relevant
class of person, own sight, hearing of incident or its immediate aftermath, means by which shock
received.
Elsie is a relative, so the Alcock requirement of a tie of love and affection should be discussed.
However the issue here is the means by which he learned of the accident. In Alcock it was
suggested that clearly identifiable live pictures might satisfy the proximity requirement.
Some credit may be awarded for a discussion of vicarious liability in relation to Barchester
College and Josh.
Whatever conclusions are reached they should be clear, compelling and fully supported.

In spite of the publication of a Law Commission report in 1998, the rules on compensation
for secondary victims suffering nervous shock continue to be too restrictive.
Critically assess the fairness of the current rules relating to losses suffered by secondary
victims of negligence as developed and applied in decided cases. [25]

The Law Commission considers it justified that there should be a close tie between primary and
secondary victim and that this should remain. However, the belief of the Commission is that this
should suffice and that the proximity in time, space and method of perception requirements be
abolished. Candidates should express their views on this matter.
Candidates should define and explain the meaning of key terminology: nervous shock, primary
and secondary victims, etc. The generally accepted requirements for liability to exist should be
detailed and explored: reasonable foresight, nature of psychiatric injury, relationship with primary
victim and proximity.
Each test should be explored, analysing decided cases in each area and drawing conclusions.
Key cases such as White and Others, Alcock v Chief Constable of Yorkshire Police, McLoughlin v
O’Brian, Chadwick v British Railways Board, Sion v Hampstead Health Authority should all be
analysed.
This question could be approached from various angles and appropriate credit should be
awarded whichever angle it is tackled from. Would ordinarily expect emphasis placed on
problems relating to the position of rescuers, closeness of relationship, proximity and or sudden
shock requirements.

A driver working for City Buses fails to stop his Number 52 bus at a red traffic light at a major city centre
crossroads. As a result, the bus collides with a coach full of passengers. Many passengers on both vehicles
are trapped and injured. Anita, a pregnant lady, is a passenger on the bus and, although not injured in the
accident, she suffers a miscarriage a few days later and her unborn baby dies. Bethan is waiting to cross the
road at the point that the accident happens and immediately tries to help passengers from the coach to safety.
Unfortunately, the coach catches fire and she suffers severe burns to most of her body. Corinne’s partner
always travels to work on the Number 52 bus route. She hears a local radio newsflash about the crash and, as
the accident has occurred at precisely the time when her partner would be travelling home, she assumes the
worst. She is of a nervous disposition and the shock of the news triggers a psychiatric illness. Assess City
Buses’ potential liability in negligence in each of the situations above. What is the likelihood of any defences
being successfully raised?

Candidates might open their response by saying that as employer of someone carrying out their
employment duties when the alleged tort was committed, City Buses are potentially vicariously
liable for its consequences.
Candidates should outline and explain the three elements of negligence as a tort (duty of care,
breach of duty and consequential loss) and then determine whether or not in each of the three
circumstances, liability might exist.
In the instance of Anita, candidates should recognise that a duty of care is owed to passengers
who have paid their fare to travel on a bus, that there has patently been a breach of that duty.
The question here is whether the loss was a reasonably foreseeable one or not.
In Bethan’s case we have a situation of injury sustained by a rescuer. Some candidates might
argue that she knew that a rescue mission in the circumstances would be risky and that she thus
consented to those risks. Better informed candidates will recognise that in situations where life is
put at risk, rescuers act as a matter of compulsion; risks are not weighed and decisions taken
(Haynes v Harwood; Cutler v United Dairies) and thus any defence of consent would be destined
to fail.
In the case of Corinne, the question of nervous shock and whether Corinne was sufficiently
proximate in terms of relationship, time and space. Candidates should then distinguish between
primary and secondary victims of negligence and conclude which type of claimant Corinne is.
Nervous shock should be defined and the principles on which liability rests as regards secondary
victims should be identified and explained: relevant class of person, own sight, hearing of incident
or its immediate aftermath, means by which shock received. Can she be successful in the light of
Alcock?
In each instance, the principles must be applied to the scenarios and clear, compelling
conclusions drawn.

During the Rugby World Cup final in Cardiff, disaster strikes as part of the stadium catches fire, and the match
is abandoned as hundreds of spectators have to run on to the pitch to escape the fire and smoke. The fire is
apparently caused by a lit cigarette discarded by a spectator entering the stadium which sets light to rubbish
which has not been removed by the stadium’s owners. Jason is in the stadium for the match and fears that
the fire might spread to where he is sitting. He becomes so upset by events that he goes missing and does
not return home for 5 days.
Jason’s friend, Lambert, is watching a live television broadcast of the match and fears for Jason’s safety
when he fails to return home afterwards. When Jason does not return home, his wife Kyleigh is traumatised
when she attends the mortuary to see if he is among those who died in the fire. Jason, Kyleigh and Lambert
are all diagnosed as suffering from various psychiatric problems which they attribute to that day’s events.
Withreference to case law, advise the stadium owners regarding their liability in negligence towards each of
them.

Candidates should contextualise their responses by identifying negligence and nervous shock as
the key issues. Negligence should not be discussed in detail as the scenario indicates that
negligence has definitely taken place, however credit may be awarded for this limited to a
maximum mark within band 3. The focus of the response should reference the liability of the
defendant for nervous shock for marks within band 4 and beyond.
Candidates should then distinguish between primary and secondary victims of negligence and
conclude which type of claimant each one of them is. Nervous shock should be defined and the
principles on which liability rests as regards secondary victims should be identified and explained:
relevant class of person, own sight, hearing of incident or its immediate aftermath, means by
which shock received. These should then be related to each claimant separately.
Being present at the stadium and fearing for his own safety (was it reasonable fear, however?),
Jason is classed as a primary victim (Dulieu v White & Others) and would simply need to
establish consequent psychiatric injury.
There are two issues for Lambert: the means by which he learned of the accident and the
difficulty, having to prove a tie akin to a family relationship. The principles set down in Alcock
must be applied and conclusions drawn.
Although Kyleigh is Jason’s wife, the findings in Alcock suggest that identifying bodies at the
mortuary will not satisfy the aftermath test. Will her claim fail?

Judicial attitudes towards the award of damages for psychiatric illness caused by
negligence have softened significantly over the years.
Trace the development of case law associated with claims for nervous shock and consider
the extent to which accident victims are likely to receive compensation for this form of
loss today.
In the past, the courts have been reluctant to accept psychiatric injury or nervous shock as a
head of damage in negligence claims; physical harm has been necessary. Today it is recognised
but there are severe limitations. Candidates should explain the concept of nervous shock:
genuine psychiatric illness or injury required. The distinction between primary and secondary
victims should be clearly explained and candidates should make it clear how the two groups are
treated differently.
An emphasised focus should be given to secondary victims, of course, i.e. those who have
suffered psychiatric injury as a result of witnessing death or injury caused by a third party’s
negligence, as a result of acting as rescuers or as a result of their jobs (e.g. police officers). Until
1998 and the case of White and Others, all the above groups were treated differently but since
then they have all been subjected to two sets of rules: those established in McCloughlin v O’Brien
and Alcock v Chief Constable of Yorkshire. The net result is that secondary victims today have to
prove that psychiatric injury to secondary victims was a reasonably foreseeable consequence of
the defendant’s negligence and that the psychiatric shock amounts to a recognised psychiatric
illness. The secondary victim must also show sufficient proximity in terms of relationship with the
primary victim and in terms of time and space.
Cases are many and various but candidates might consider how the rules have been applied and
developed in cases such as White, McCloughlin, Alcock, Bourhill v Young, Sion v Hampstead
Health Authority, Greatorex v Greatorex, etc.

John and Ginnie have been married for 25 years and, to celebrate the occasion, they decide to take a holiday
on a ship cruising around the islands of the Caribbean. They board the cruiseship MV Kitts and Nevis, owned
by Worldwide Shipping Lines. The cruise-ship is approaching its first port of call when it hits a reef and it
begins to sink. There are insufficient lifeboats for all the passengers and John and Ginnie have to jump into
the sea and attempt to swim to safety.
John does not manage to put on a life jacket before jumping into the water and is drowned. Ginnie survives
the incident but her elderly father has already been informed by the police that she is missing, presumed
dead, and suffers significant nervous shock. Investigations disclose that the ship’s captain and many of the
crew were under the influence of narcotics (drugs) when the incident occurred. Advise the ship’s captain and
Worldwide Shipping Lines of their potential liability in tort towards Ginnie regarding her husband’s death and
towards her father for the mental anguish caused. [

The emphasis of responses to this question should be on the tort of negligence, contributory
negligence and nervous shock. Credit will be given for discussion of the vicarious liability of the
shipping line for the master and crew’s torts. Negligence occurs whenever a person does or fails
to do whatever the reasonable man would not or would have done in the circumstances of the
case. As a tort, negligence comprises a duty of care owed by defendant to plaintiff, a breach of
duty and resultant damage suffered by the plaintiff. So were the captain and crew negligent?
Would liability exist for John’s death and the anguish suffered by Ginnie’s father?
The burden of proof would rest with any plaintiff.
Was a duty of care owed to them? Developments in Donoghue, Anns, Murphy, Junior Books and
Caparo should be discussed and conclusions drawn. Proximity needs detailed analysis.
Was there a breach of the standard of care required?
Was there a resultant loss? Were the respective losses suffered too remote to be recoverable?
Particular discussion is needed of the potential contributory negligence of John and whether any
compensation awarded to Ginnie might be correspondingly reduced. The nature of the ‘nervous
shock’ of the secondary victim, Ginnie’s father, needs to be explored and proximity principles
developed in Bourhill, McCloughlin and Hillsborough cases need to be discussed and
conclusions drawn.

The distinction between primary and secondary victims was said by the Law Commission
in its report on Psychiatric Illness to be ‘more of a hindrance than a help’ and that there
was ‘confusing inconsistency’. Analyse the rules and critically assess whether or not you
agree with this view.

The Law Commission considers it justified that there should be a close tie between primary and
secondary victims and that this should remain. However, the belief of the Commission is that this
should suffice and that the proximity in time, space and method of perception requirements be
abolished. Candidates should express their views on this matter.
Candidates should define and explain the meaning of key terminology: nervous shock, primary
and secondary victims, etc. The generally accepted requirements for liability to exist should be
detailed and explored: reasonable foresight, nature of psychiatric injury, relationship with primary
victim and proximity.
Each test should be explored, analysing decided cases in each area and drawing conclusions.
Key cases such as White and Others (1998), Alcock v Chief Constable of Yorkshire Police
(1997), McLoughlin v O’Brian (1982), Chadwick v British Railways Board (1967), Sion v
Hampstead Health Authority (1994) should all be analysed.
This question could be approached from various angles and appropriate credit should be
awarded whichever angle it is tackled from. One would ordinarily expect emphasis to be placed
on problems relating to the position of rescuers, closeness of relationship, proximity and or
sudden shock requirements.

Greta needs a new gas-fired boiler fitted in her house to provide her with hot water and central heating.
Kelvin, a trained central heating engineer, agrees to fit one for her. Kelvin fails to fit the boiler properly and
one evening the boiler explodes and causes the house to catch fire. Greta manages to get out of the house,
but thick smoke and flames prevent her young daughter, Leah, from escaping the house. The fire brigade
arrives and puts the fire out, but none of the firemen is able to rescue Leah, who dies in the fire. Greta, who
has a history of emotional instability, suffers serious and long lasting nervous shock. One of the firemen,
Sam, sustains severe burns and also suffers emotional distress because he is unable to rescue Leah from her
bedroom. On the assumption that Kelvin’s negligence can be established, assess his potential liability for the
injuries suffered by Greta and Sam.

Focus of candidate attention should be on liability in negligence and in particular for nervous
shock.
Liability in negligence results from the existence of a duty of care owed to the claimant, a breach
of that duty and consequential loss or damage to the claimant. Candidates are expected to give
a brief discussion and illustration of these elements.
The trauma, which Greta and Sam suffer and which causes their long-term mental distress, might
be described as cases of nervous shock. He has sustained psychiatric injury as defined by Lord
Bridge in McLoughlin v O’Brien.
The harm that both suffer is sustained as a direct result of the act of negligence of the heating
engineer, Kelvin. Would they be described as primary or secondary victims? As Greta was in the
house when it caught fire and thus directly affected by Kelvin’s negligence, it is likely that she
would be judged a primary victim and Kelvin’s liability to her would depend on whether her ‘loss’
was a reasonably foreseeable consequence of his negligent act (e.g. McLoughlin v O’Brien,
Bourhill v Young).
Sam’s case is somewhat less clear. As a rescuer, any claim made by Sam cold be seen either as
one from a primary victim or as one from a secondary victim and in either event may well be
countered by Kelvin by the general defence of consent, arguing that Sam voluntarily consented to
the risk involved in the rescue. If it could be argued that as a rescuer he comes within the range
of foreseeable physical injury then he would be classed as a primary victim too. However, if not,
he would be classed a secondary victim. A duty of care is only owed to secondary victims if very
strict conditions are satisfied. The decisions in White, McLoughlin and Alcock need to be
discussed and the tests of the nature of the injury, class of person and claimant proximity need to
be applied and conclusions drawn. Even if liability is potentially established, however, would a
defence of consent enable Kelvin to escape liability for Sam’s loss? The decisions in White and
Chadwick v British Transport Commission would suggest otherwise.
The principles must be applied to the scenario and whatever conclusions are reached they
should be clear, compelling and fully supported.

In cases involving nervous shock, special rules exist to restrict the number of potential
claims.
Critically assess the extent to which you agree with this statement

Candidates can introduce the topic by outlining the basic requirements of negligence, duty of
care, breach of duty and resulting damage which is not too remote. However a detailed account
of general negligence is not required. Candidates should then explain the special rules which
apply to cases involving nervous shock. Reference should be made to relevant case law such as
Dulieu v White, McLoughlin v O’Brien, Sion v Hampstead, and Attia v British Gas. The control
factors established in Alcock v Chief Constable of South Yorkshire should be examined carefully.
Candidates should then proceed to critically assess the special rules and consider their function
in the light of the question. Reference could be made to the Law Commission Report in support of
any conclusions reached.

Nadia works with Jamal delivering groceries by van for a local supermarket. At the end of one day, after their
final delivery, Jamal is in a hurry to return the van. He overtakes a vehicle on a corner and collides with an
oncoming car. Jamal suffers cuts and bruises but Nadia has multiple injuries and loses a lot of blood. Mary
sees the accident and calls an ambulance. She helps Jamal from the van and stays with Nadia until the
ambulance arrives. Mary is deeply traumatised by the event. Lynn, Nadia’s mother, is informed of the accident
by telephone and arrives at the hospital as Nadia is brought in. Nadia does eventually recover from her
injuries, but Lynn cannot return to work for six months after the incident as she suffers from anxiety and is
unable to sleep. Advise Nadia, Mary and Lynn as to the likely success of any actions in negligence arising
from this incident.

Tom and Jim attend a popular music festival. They stand at the front of the arena but by the time the first act
performs they start to get crushed because of the numbers in attendance. Tom is taken for medical attention
because he suffers serious injuries in the incident. Jim follows Tom to the medical centre and is very
distressed when he sees doctors try to revive him.
In addition Tom’s mother, Anne, watches live coverage of the event on the television and sees Tom being
carried from the arena on a stretcher. She suffers severe shock and now suffers from clinical depression. Tom
survives, but is now confined to a wheelchair. It becomes apparent that many counterfeit tickets were sold
and the organisers of the festival, ABC Ltd, did not take sufficient precautions to check that tickets were valid
with the result that too many people were admitted to the event. Advise ABC Ltd as to their liability for the
injuries suffered by Tom, Jim and Anne.

This question is concerned with liability negligence both in the context of physical injury (Tom)
and nervous shock (Jim and Anne). Candidates can introduce negligence and outline the three
essential elements of duty of care, breach of duty and resulting damage which is not too remote.
While a detailed discussion of these elements is not required they should be applied to the facts
of the scenario.
The fact that the people have gained entry using counterfeit tickets is relevant to the issue of
liability for negligence and in particular to the issue of breach of duty and causation. Candidates
should be credited for a discussion of this issue. This also eliminates the possibility of an action
under the Occupiers Liability Act 1957 as the injuries arise from an act/omission on the part of
ABC Ltd rather than the state of the premises. A discussion based on the OLA 1957 therefore
should not be credited.
Candidates should examine the special requirements which apply in cases of nervous shock. The
meaning of nervous shock should be explored with reference to relevant case law. The distinction
between primary and secondary victims should be explained and applied to the facts of the
scenario. The question of whether Jim would qualify in terms of his friendship with Tom should be
examined.
The control factors should established in Alcock should be discussed and applied to the facts of
the scenario. The issue of ‘direct senses’ should be explored and applied in the context of Anne
watching the event unfold live on television.
Clear and compelling conclusions should be reached supported by appropriate authority. Where
candidates explain the rules but do not apply them to the facts given a maximum mark in Band 3
would be appropriate.

Andrew is a delivery driver. He is behind schedule with his final delivery to a shop in the town centre and is
driving in excess of the speed limit. He loses control of the vehicle, avoids a collision with an oncoming bus
but crashes into a shop on the High Street. The front of the shop is badly damaged and a number of people
are injured. However, Andrew is unharmed. Diana sees the incident from a café across the road. She runs
over to help people that are seriously injured. She now claims that she is very upset and is unable to return to
work. Beth, the owner of the shop arrives on the scene and is so traumatised to see the damage to her
business that she subsequently is unable to reopen the shop. Calvin, who was working in the shop, was not
physically injured but is still suffering panic attacks some weeks after the event. Analyse the liability of
Andrew in relation to the potential claimants in this scenario.

John has worked for AB Paints Ltd (ABP) for over 20 years. He has recently been diagnosed with a rare and
serious illness. He believes that this may have been caused by exposure to a specific chemical used in the
manufacturing process. His doctor has informed John that there was significant research published 10 years
ago connecting this chemical to the type of illness with which he has been diagnosed. John is now unable to
work and is facing very significant costs for his medical treatment. He believes that ABP has been aware of
the risks highlighted by the research since its publication. John’s colleague, Bill, has also worked for ABP for
20 years. He has not been diagnosed with any physical condition but he has been unable to work since John’s
diagnosis. He is depressed due to the worry that he too may develop this illness. Advise the parties as to their
rights and liabilities in relation to negligence in this situation. [

Advise the parties as to their rights and liabilities in relation to

negligence in this situation.
Potential content:
• The elements of negligence – duty/breach/damage
• Duty of care – employer and employee
• Breach of duty – reasonable employer
• Issues relating to causation
• Issues relating to remotes of damages.
Relevant case law should be used to support the explanation of the law.
Candidates should apply the law to the facts of the scenario and discuss the
following:
• Is there a duty of care?
• Has there been a breach of duty – reasonable employer?
• Could there be a difficulty proving causation?
• Nervous shock – primary or secondary victim?
• Are the Alcock factors satisfied?
Candidates must explain the law and, in order to achieve the higher bands,
candidates must also apply the law in a logical fashion to the facts and
reach a coherent conclusion.

In claims for negligence resulting in nervous shock it is necessary to

have rules which restrict the number of potential claimants.
Explain the rules governing recovery of damages for nervous shock.
Assess the validity of the statement above.

This question requires candidates to examine the issue of damages for

nervous shock from a critical perspective. A detailed account of general
negligence is not required.
Potential Content
• Development of the current rules
• Primary and secondary victims
• The Alcock ‘control mechanisms’
• Rescuers
• Bystanders

Candidates should consider these points and try to reach a reasoned

conclusion in relation to the question.
Potential Content
• Close ties of love and affection
• Sudden shock requirement
• Perception requirement
• Difficulties in assessing psychiatric harm
• Law Commission Report
Critical analysis is required to achieve the higher mark bands

The current rules governing the recovery of damages for negligence

resulting in nervous shock are illogical and unfair.
Describe the current rules and assess the validity of this statement.

This question requires a discussion of the rule governing recovery for

nervous shock in negligence.
Credit can be awarded for an explanation of any of the following:
• The meaning of nervous shock
• Need for a medically recognised condition
• The development of special rules under the duty of care in
negligence
• Primary and secondary victims
• Restrictions on the scope of the duty – Alcock factors
• Bystanders and rescuers
Relevant case law should be used to support the explanation.
Candidates must then address the critical element of the question and
consider whether the rules are illogical and unfair. This could encompass
policy issues, floodgates, distinctions between different categories of
claimant. Reference could be made to the Law Commission Report 1998.
Candidates should reach a coherent conclusion which addresses the
question asked.

Megan is driving home having collected her two children from school. Her car is hit by a van driven by Darius,
who is speeding on the wrong side of the road. Megan’s neighbour, Rania, witnesses the collision and
telephones Stefan, Megan’s husband. He rushes to the hospital and sees his wife and children being taken
from the ambulance. Megan and the children sustain a variety of serious injuries. Rania has since been
diagnosed with depression and is receiving counselling. Stefan has been too upset to return to work. Advise
the parties as to their rights and responsibilities in this situation.

The recovery of damages for nervous shock is governed by many

factors including policy considerations.
Describe these factors and evaluate the role played by policy
considerations.

This question requires candidates to examine the development of the rules

governing the award of damages in negligence where the claimant has
suffered nervous shock.
Candidates should outline the development of the rules through a discussion
of the case law. Issues such as the definition of nervous shock, the distinction
between primary and secondary victims and control factors established in
Alcock should all be discussed.
Having explained the rules candidates should address the key issue raised in
the question – is the development of the law linked to policy considerations?
Issues such as the floodgates argument, the risk of false claims and
difficulties of proof can be raised here.
To achieve the higher bands candidates must engage with the issues raised
in the question. Where the candidate explains the rules without considering
the issue of policy the mark will be confined to Band 3

Pierre, a self-employed taxi driver, was driving through Barchester town centre when he suddenly lost
consciousness. His taxi hit another car and caused serious injury to the driver, Marie. Pierre had an
undiagnosed heart condition, which had caused the loss of consciousness. He had been experiencing minor
chest pains for a few weeks but did not consult a doctor as he was worried about losing his taxi licence. Yves
witnessed the entire incident from his office across the road and is claiming that this has resulted in the
recurrence of depression which he had experienced many years before. Advise Pierre as to his potential
liability to Marie and Yves.

The focus of this question is general negligence and liability for nervous
shock.
Candidates should first examine the issue of negligence. The three essential
elements of duty of care, breach of duty and damage should be explain with
reference to relevant case law. Candidates should then consider the issue
of nervous shock and outline the requirements set out in Alcock v Chief
Constable of South Yorkshire, Credit can also be awarded for a reference to
a possible defence of inevitable accident.
Candidates should then apply the legal rules to the facts and consider the
following:
• Can the three elements of negligence be established in relation to
Maria?
• Is Yves likely to recover for nervous shock?
• Is this potentially an example of inevitable accident?
Candidates must explain the law and in order to achieve the higher bands
candidates must also apply the law in a logical fashion to the facts and
reach a coherent conclusion.

John is employed to operate a crane (a large machine used to lift heavy loads) by ABC Ltd on a construction
site in Barchester. John lifts a load which is too heavy for the crane and the load falls on a nearby wall,
causing it to collapse. Bilal, the site manager, is trapped under the wall when it collapses. Sanjeev, another
employee on the site, sees the wall collapse and hears Bilal call for help. Sanjeev attempts to free Bilal. Bob,
who works in a shop nearby, hears the wall collapse, rushes over to the site and starts to help. Bilal is taken
to hospital suffering from a broken leg and severe shock. Sanjeev and Bob are both traumatised by the event.
Advise the parties as to their liability in this situation.

The focus of this question is general negligence, vicarious liability and

nervous shock. Candidates should explain the essential elements of
negligence – duty of care, breach of duty and resulting damage. Candidates
should then explain the special rules which apply in the context of nervous
shock in relation to primary and secondary victims. Candidates should also
outline the meaning of vicarious liability and the requirements for establishing
such liability.
Having explained the law candidates should then apply the legal rules to the
facts. Candidates should examine whether a duty of care was owed in this
context, was there a breach of the duty and has damage resulted which is not
too remote. Candidates could then consider whether ABC Ltd could be
vicariously liable for John’s actions – was he an employee acting within the
scope of his employment?
Candidates should then examine the status of the claimants from the
perspective of recovery for nervous shock – who is a primary victim and who
is a secondary victim?
The Alcock requirements should be applied to the facts. Issues relating to
bystanders and rescuers should also be explored.
Candidates must explain the law and in order achieve the higher bands
candidates must also apply the law in a logical fashion to the facts and reach
a coherent conclusion.

The distinction made between primary and secondary victims who suffer nervous shock
can no longer be justified.
Critically analyse the rules that are applied in claims for nervous shock and assess the
extent to which the view above can be substantiated.

The concepts of secondary victims and nervous shock should be explained and set briefly in the
context of the tort of negligence.
The requirement that the psychiatric injury be caused by a sudden shock should be explained
and an opinion expressed on the 1998 Law Commission report’s view that the requirement be
abolished.
The closeness of relationship rule should be explained and its operational effects illustrated by
reference to case law such as Alcock v Chief Constable of South Yorkshire. Candidates should
explain that the LC report considered this a justied and necessary requirement and then express
their own opinion.
The Proximity requirement must also be explained and its operational effects illustrated with
reference to case law such as Alcock, McLoughlin v O’Brien, Sion v Hampstead Health Authority
etc. Candidates should explain that the LC report considered this an unjustifiable requirement
and that it should be abolished and then express their own opinion.
Candidates must analyse the rules with a critical eye and express a clear, concise opinion.
Responses that are limited to factual recall, however detailed, will be restricted to band 3 marks.

Discuss the extent to which the precedent in Page v Smith [Source 11

page 7 lines Special Study Materials] represents a development of the law
on nervous shock (psychiatric damage).

Define the principle arising from the case.

Link to any leading case e.g. Dulieu v White.
Consider how the case confirms the existing definition of primary victim:
 Liability is to a person present at the scene and suffering injury or fearing for
own safety.
 But only if suffering from a recognised psychiatric injury.
Discuss how the case represents a development:
 Definition of foreseeable harm – needs only foresight of some injury – does
not have to be physical harm – and no reason to separate out physical and
psychiatric harm.
 Application of thin skull rule to nervous shock in the case of primary victims
(credit any reference to contrast with requirement of ‘reasonable phlegm and
fortitude’ for secondary victims).
 No application of hindsight in assessing claims for primary victims.

2* As Lord Ackner observed in Alcock [Source 9 page 5 lines 1-3 Special

Study Materials] “Because shock is capable of affecting such a wide range
of persons, Lord Wilberforce in McLoughlin v O’Brien concluded that
there was a real need for the law to place some limitation upon the extent
of admissible claims.”
Consider the extent of the limitations applied to secondary victims and
whether they to do in fact meet a ‘real need’.

Distinguish between primary victim and secondary victim:

 Primary victim is one present at the scene and at risk of injury Dulieu v
White.
 Secondary victim is one witnessing a single shocking event causing risk of
injury or injury to a related primary victim Hambrook v Stokes.
Define the basic rules on secondary victim:
 Close tie of love an affection to the person injured in the accident Hambrook
v Stokes.
 Sufficient proximity in time and space to the event or its immediate aftermath
McLoughlin v O’Brien.
 Saw or heard the accident or its immediate aftermath with own unaided
senses Alcock.
 Injury sustained as a result of a single shocking event Sion v Hampstead.
Use any cases to illustrate the development of limitations on claims by secondary
victims.
Assessment Objective 2
Consider and make any relevant comment on the limitations imposed on
secondary victims e.g.:
 Narrowness with which the close tie of love and affection is interpreted
Alcock.
 Fact that close friends or colleagues cannot bring themselves within the
definition Duncan v British Coal, and Robertson and Rough v Forth Road
Bridge Joint Board.
 Limitation on claims by ‘bystanders’ even though they may suffer psychiatric
harm McFarlane v EE Caledonia.
 Restrictive definition of ‘immediate aftermath’ as applied in Alcock (credit any
comparison with NE Glamorgan NHS Trust v Walters – or with W v Essex
CC).
 Secondary victim must show that psychiatric injury would foreseeably have
been suffered by a person of reasonable phlegm and fortitude, so secondary
victim already suffering a psychiatric illness has no claim, whereas there is
no such restriction on primary victims, only ‘injury’ need be foreseeable Page
v Smith.
 No account paid for a shock suffered gradually over time even though
appreciation of extent of harm to primary victim may indeed be gradual Sion
v Hampstead.
 No account paid to excessive grief even though this may be long lasting
Tredget v Bexley.
Discuss the significance of policy and the ‘floodgates’ argument as the only
justifications for the limitations.
Consider that the Law Commission has proposed a much less restrictive
definition.

A large crane is being used in building work immediately adjacent to the

law school where Chris works as a lecturer. Through the negligence of the
construction firm, Bodgejob, part of the crane falls off and drops on Chris
as he is walking into the law school causing him severe injuries. Consider
the possibility of each of the following succeeding if they claim against
Bodgejob.
3(a) Jennifer, a lecturer and Chris’s friend, is in the law school at the time of the
accident, and on hearing of the accident looks through the window and
seeing the extent of Chris’s injuries suffers post traumatic stress disorder.
3(b) Sukhy, another lecturer and close friend of Chris’s, on hearing of the
accident rushes out of the law school and realising that Chris’s heart has
stopped, resuscitates him and keeps him alive until the emergency
services arrive. While Sukhy is doing this there is always a danger that
more of the crane will drop. Sukhy suffers severe depression as a result
and cannot return to work.
3(c) Karen, Chris’s wife, is called immediately and is at the hospital entrance
when Chris arrives in the ambulance. She suffers grief when Chris is
pronounced dead.

Define nervous shock (psychiatric injury).

Use any relevant cases in illustration when applying the law to the problems.
Assessment Objective 2
3(a)  Identify Jennifer as a secondary victim according to the criteria in McLoughlin
and Alcock unless she can show that she was at risk.
 Consider that she satisfies the final two criteria i.e. proximity in time and
space and witnessing or hearing the event (or more precisely here the
immediate aftermath) with her own unaided senses.
 But consider also that Jennifer is likely to fail in not having what would be
accepted as a close tie of love and affection, only being a friend and
colleague Duncan v British Coal, Robertson and Rough v Forth Road Bridge
Joint Board and may be classed as a bystander McFarlane v EE Caledonia.
 Consider that PTSD is commonly accepted as a recognised psychiatric
illness.
 Conclude that Jennifer will probably have no claim. [10]
3(b)  Identify Sukhy as a rescuer (Chadwick – even if not a professional rescuer).
 Explain that, following White rescuers would now generally be classed as
secondary victims in which case Sukhy would probably fail for the same
reasons as Jennifer.
 Identify that under White rescuers may still succeed if able to show that they
are genuine primary victim i.e. at risk themselves – which appears to be the
case here with Sukhy.
 Explain that Sukhy’s injuries can be accepted as recognised psychiatric
injury Vernon v Boseley. [10]
Assessment Objective 2 (continued)
3(c)  Identify Karen as a secondary victim under Alcock.
 Explain that within the Alcock criteria Karen has a presumed close tie of love
and affection with Chris as his wife.
 Comment on the similarity with McLoughlin v O’Brien she probably comes
within the immediate aftermath.
 Conclude though that Karen’s action is likely to fail as mere grief alone will be
insufficient to be classed as psychiatric injury Tredget v Bexley Health
Authority.

David takes his young son Eddie to a local theme park, Fundays. David takes Eddie on the ‘Fright-of-
your-life’ roller coaster. Owing to negligent maintenance by Fundays the harness holding Eddie breaks
and he plunges to the ground suffering massive injuries. Georgina sees the fall and the injuries to Eddie.
She now suffers from post traumatic stress disorder.
David phones his wife Hannah who drives directly to the hospital. She arrives one hour later to find that
Eddie has died. She suffers from grief and severe depression. Ian, a paramedic who treats Eddie at the
scene, is so horrified by the injuries that he suffers post traumatic stress disorder. David has become
withdrawn and terrified of heights.
Advise David, Georgina, Hannah and Ian on any actions they may have against Fundays for their
injuries.
Define nervous shock (psychiatric injury) – PTSD is sufficient, severe depression may also count Vernon v
Boseley, emotional reactions such as grief will not Reilly v Merseyside HA.
Distinguish between primary victim and secondary victim:
Primary victim is one present at the scene and at risk of injury Dulieu v White.
Secondary victim is one witnessing a single shocking event causing risk of injury or injury to a
related primary victim Hambrook v Stokes.

Define the basic rules on secondary victim from Alcock:

Close tie of love an affection to the person injured in the accident Hambrook v Stokes.
Sufficient proximity in time and space to the event or its immediate aftermath McLoughlin v O’Brien.
Saw or heard the accident or its immediate aftermath with own unaided senses Alcock.
Injury sustained as a result of a single shocking event Sion v Hampstead.

Limitation on claims by ‘bystanders’ even though they may suffer psychiatric harm McFarlane v EE
Caledonia.
Explain the restrictive definition of ‘immediate aftermath’ as applied in Alcock (credit any comparison with
Taylor v Somerset, NE Glamorgan NHS Trust v Walters, W v Essex CC).
Explain that a rescuer can only claim if a genuine primary victim White v Chief Constable of South
Yorkshire.
Use any other relevant cases. Assessment Objective 2
In the case of David:
Identify David as a secondary victim according to the criteria in McLoughlin and Alcock unless he
can show that he was at risk.
Consider that he satisfies the final two criteria i.e. proximity in time and space and witnessing or
hearing the event (or more precisely here the immediate aftermath) with his own unaided senses.
But will have to prove a close tie of love and affection to Eddie so may fail Duncan v British Coal,
Robertson and Rough v Forth Road Bridge Joint Board.
Consider that he will not in any case have a recognised psychiatric illness.

In the case of Georgina:

Identify her as a secondary victim.
Consider that she passes the last two tests in Alcock.
Identify her as a bystander with no tie to the victim so claim fails McFarlane v EE Caledonia.
Discuss how otherwise her injury falls within the definition of nervous shock.

Credit any reference to the possibility of Georgina being in danger from Eddie’s fall and having a claim as a
primary victim.

In the case of Hannah:

Identify her as a secondary victim.
Passes first Alcock test as close tie is presumed for parents and children.
Comment on the similarity with McLoughlin v O’Brien she probably comes within the immediate
aftermath.
Conclude that her grief and severe depression may well be sufficient to be classed as psychiatric
injury Vernon v Boseley.
In the case of Ian:
Identify him as a professional rescuer.
Explain that, following White rescuers would now generally be classed as secondary victims but
may still succeed if able to show that they are genuine primary victim i.e. at risk themselves –which appears
not to be the case here.
But his injuries are recognised psychiatric injury Vernon v Boseley.

Jacinta is a passenger on a train that comes off its rails and crashes into a railway station due
to the negligence of the driver. Jacinta is trapped and suffers claustrophobia. Simon is also a
passenger on the train. He suffers serious cuts and Post-Traumatic Stress Disorder (PTSD).
Simon’s wife, Amber, travels to the railway station to collect him. She cannot get near the station
as it is cordoned off. She suffers anxiety when she sees her husband pulled out of the wreckage
by Baasim, who is a firefighter at the crash site. Baasim suffers from depression as a result of
what he has witnessed.
Evaluate the accuracy of each of the four statements, A, B, C and D, individually, as they apply to
the facts in the above scenario.
Statement A: Jacinta can claim for nervous shock because she has suffered claustrophobia
as a result of the train crash.
Statement B: Simon can claim for nervous shock because he is a primary victim.
Statement C: Amber can claim for nervous shock because she is a secondary victim.
Statement D: Baasim cannot claim for nervous shock because he is a professional rescuer.

P1 Reason that to make a claim for nervous shock the injury must occur from a single shocking event
P2 Reason that the train crashing into the railway station is a single shocking event
P3 Reason that injury caused must be a recognised psychiatric condition
P4 Reason that claustrophobia is not a recognised psychiatric condition
P5 Conclude that the statement is inaccurate.

P1 Reason that a primary victim is someone who is physically injured or in danger of physical injury
P2 Reason that Simon is a primary victim as the cuts are caused from the train crashing into the railway
station
P3 Reason that as physical injury is foreseeable any consequent psychiatric injury can be claimed for
P4 Reason that Simon has suffered from PTSD and this is a psychiatric injury
P5 Conclude that the statement is accurate.

P1 Reason that a secondary victim is someone who is not in physical danger but suffers psychiatric harm
as a result of witnessing with their own unaided senses an event that causes harm or risk of harm to a
primary victim

Reason that Amber is a secondary victim as she is not in physical danger but witnesses the harm to Simon
P3 Reason that there must be a close tie of love and affection and sufficient proximity to the incident
P4 Reason that Simon and Amber are husband and wife so there is a close tie of love and affection and
Amber is present at the immediate aftermath
P5 Conclude that the statement is accurate.
OR
P4a Reason that although Simon and Amber have a close tie of love and affection anxiety may not be
considered a recognised psychiatric injury
P5a Conclude that the statement is inaccurate.

P1 Reason that professional rescuers can only claim for psychiatric injury if they are a genuine primary or
secondary victim
P2 Reason that Baasim is not a primary victim as there is no risk of physical danger to him or that he is not
a secondary victim as there is no close tie of love and affection
OR
P2a Reason that Baasim is a primary victim as there is a risk of physical danger to him
P3 Reason that injury caused must be a recognised psychiatric condition

P4 Reason that Baasim has suffered depression, which is a recognised psychiatric illness
P5 Conclude the statement is accurate.
OR
P5a Conclude the statement is inaccurate.

Evaluate the law on secondary victims- is it fair?

Background commentary:
Early reluctance (Victoria Railway Commissioners v Coultas)
First SV case; originally only PVs then SVs (Dulieu v White)

Potential difficulties based on what all victims of nervous shock must prove?
Foresight of harm – key issue as different rules apply to PVs and SVs (Bourhill v Young, Page v Smith)
Sudden shock – NS must be caused by single shocking event not a gradual build up ie caring for a
terminally ill relative (Sion v Hampstead HA)
Must suffer from a recognised psychiatric condition – no liability if grief, loss of sleep, upset etc but
conditions such as PTSD, clinical depression, severe anxiety disorder can lead to claim (Reilly v
Merseyside)

Why are there extra requirements for a SV and do they operate fairly?
Fear of floodgates because of huge potential class of claimants – Hillsborough or watching 9/11 unfold on
TV
Therefore, control mechanisms felt necessary – some credit for discussing historical development through
McLoughlin, Alcock & White – but only AO2 and synoptic aspects
Credit any discussion of the comparative position of PVs ie what they need to prove (less) contrasted with
SVs
Analyse limitations on secondary victims:

Leading case – Alcock which set out classes of individuals that can claim and the tests they must pass:
Close tie of love and affection – heavily criticised as an arbitrary and blunt tool open to misuse. There is a
rebuttable presumption for spouses and parents/children and whilst the list is not closed, other relationships
will need to be proved (consider, for example, homosexual marriages). The House of Lords left open the
option for complete strangers to be able to recover but in grotesquely disturbing circumstances. The
narrowness of the rule has been criticised – see Duncan v British Coal, Robertson and Rough v Forth Road
Bridge Joint Board
Indicative Content
Mark
Guidance Proximity – again, heavily criticised especially in relation to the ‘degree’ of proximity required and
lapses of time (identifying bodies in mortuary 8 hours later = no) Perceived with own unaided senses – live
TV coverage has been the main issue here including some narrow (and slightly offensive) arguments from
the House of Lords regarding the editing of broadcasts These criteria led to some grossly unfair results
where families of victims at Hillsborough could not recover but police officers could albeit on slightly
different grounds (Foster v CC of Yorkshire)
Other unfair differences: The SV must show ‘reasonable phlegm and fortitude’ in order to claim but the
same is not true of PVs Regarding foreseeability, the claimant’s harm must be a reasonably foreseeable
psychiatric injury – the thin skull rule does not apply to secondary victims (Page v Smith) Limitation on
claims by ‘bystanders’ even though they may suffer psychiatric harm McFarlane v EE Caledonia
Reform suggestions have been critical of limitations on secondary victims: Law Commission 1998: retain
close tie of love and affection as control mechanism but presume some relationships automatically equal a
close tie remove requirement for witnessing event with own unaided senses remove requirement for
proximity in time and space to incident remove requirement for sudden shock
Credit floodgates or fear of bogus claims discussion although not central to this title
Reach any sensible conclusion regarding the effect of the limitations on secondary victims
Lord Steyn (Source 4)
‘My Lords, the law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of
distinctions which are difficult to justify… [In] my view the only sensible general strategy for the courts is to
say thus far and no further.’
Reach any sensible conclusion.
Credit any other relevant comment.
In the case of (a):
AP1 Identify that any notion that Charlie is a rescuer and is treated as a special class is no longer the case
and he is either a PV or a SV (White).
AP2 Identify that the source of the shock is sufficiently sudden as it need not be ‘instant’ (North Glamorgan
v Walters) and the scenario is analogous to a number of similar cases (Chadwick, Alcock).
CP Identify that Charlie is a primary victim according to the definition in Alcock - present at the
scene and at risk of foreseeable harm as the ship is still sinking.
AP3 Identify that it does not matter that Charlie does not suffer any physical injury (Page).
AP4 Charlie’s injury is both reasonably foreseeable and falls within the range of acceptable psychiatric
injuries (Vernon)
CON Conclude that Charlie is likely to have a successful claim.

In the case of (b):

AP1 Identify that Pedro has witnessed a sudden traumatic event (North Glamorgan v Walters) as the
situation is analogous to a number of similar cases (Chadwick, Alcock).
AP2 Identify that Pedro is suffering a reasonably foreseeable and clinically acceptable illness - PTSD
(Vernon).
AP3 Identify that Pedro has witnessed enough of the scene, its immediate aftermath and its impact on PVs
to qualify as a potential SV according to the definition in Alcock.
AP4 Identify that as a SV Pedro will need to demonstrate a close tie to a PV, proximity and perception by
his own senses.
CP Identify that Pedro may be able to make out the latter two criteria, but may have difficulty with the close
tie criteria. There is a rebuttable presumption against the existence of a close tie of love and
affection between brothers (Alcock) and Pedro will need to prove this element in order to succeed.
CON Conclude that Pedro may or may not have a successful claim depending on his ability to rebut the
presumption against a close tie of love and affection between brothers.

In the case of (c):

AP1 Identify that since Michelle has witnessed a sudden traumatic event (North Glamorgan v Walters) as
the situation is analogous to a number of similar cases (Chadwick, Alcock, McLoughlin).
AP2 Identify that Michelle is suffering a reasonably foreseeable and clinically acceptable condition (Vernon)
and that the shock arose from a sudden incident (McLoughlin).
AP3 Identify that in order to qualify as a SV, Michelle will need to demonstrate a close tie to a PV,
proximity and perception by her own senses (Alcock).
CP Identify that there is a rebuttable presumption in favour of there being a close tie of love and
affection between spouses and that unless a close tie of love and affection can be disproved this criteria
will be accepted (Alcock).
AP4 Identify that the other two criteria should be no problem as she witnessed the events at first hand with
her own unaided senses (Alcock).
P5 Conclude that Michelle is likely to have a successful claim.