This advice will consider whether Bathilda and Charlie can bring a successful claim against Zacharias for the post-traumatic stress disorder (PTSD) they have developed. The relevant area of law is the tort of negligence. To establish negligence, a claimant must prove that the defendant owed them a duty of care, that the defendant breached that duty, and that this breach caused legally recognised damage to the claimant. Zacharias has admitted that he breached his duty of care by driving above the speed limit, which caused him to lose control of his car and crash into Albus’s car. Therefore, the central legal issue to be determined is whether Zacharias owes a duty of care to Bathilda and Charlie for their psychiatric injuries.
For a duty of care to be owed for psychiatric injury, the claimant must have suffered a medically recognised psychiatric illness (Hinz v Berry [1970] 2 QB 40). Both Bathilda and Charlie have developed post-traumatic stress disorder, which is a recognised psychiatric illness. The law distinguishes between primary and secondary victims when determining if a duty of care is owed for this type of harm, and this distinction is crucial to advising both claimants.
The Claim by Bathilda
We must first determine whether Bathilda can establish that Zacharias owed her a duty of care for the psychiatric injury she suffered. This will depend on whether the law classifies her as a primary or secondary victim.
Bathilda as a Primary or Secondary Victim
The distinction between primary and secondary victims was established in *Alcock and Others v. Chief Constable of South Yorkshire* [1992] AC 310 (HL) and later clarified in *Page v Smith* [1996] AC 155 (HL). Lord Oliver in *Alcock* defined primary victims as those directly involved in the accident who were within the range of foreseeable physical injury. In *Page*, Lord Lloyd further explained that a primary victim is someone ‘involved, either mediately or immediately, as a participant’ in the events. This was confirmed in *White and Others v. Chief Constable of South Yorkshire* [1999] 2 AC 455 (HL), which stated that a primary victim is one who is in the zone of physical danger created by the defendant’s negligence, or at least reasonably believed themselves to be.
On the facts, Bathilda was in an office building ‘some distance away’ from the accident. She was not involved in the crash itself and was not in immediate physical danger from the impact. Her fear was that the fire from Albus’s car might spread to her building. This situation is similar to that in *McFarlane v EE Caledonia Ltd* [1994] 2 All ER 1 (CA). In that case, the claimant witnessed the Piper Alpha oil rig disaster from a support vessel. The court held that he was not a primary victim because he was not in the actual zone of physical danger, and his fear for his own safety was not seen as reasonable in the circumstances.
Applying this reasoning, a court is likely to find that Bathilda’s fear for her safety was not reasonable. A fire from a single car is unlikely to present a real and immediate threat to an office building some distance away. Therefore, she was not within the zone of foreseeable physical danger. As a result, she would be classified as a secondary victim.
Application of the *Alcock* Criteria
As a secondary victim, Bathilda must satisfy a set of restrictive control mechanisms established in *Alcock* to demonstrate sufficient proximity to the defendant. If she cannot satisfy these tests, no duty of care will be owed to her.
First, there must be a close tie of love and affection between the claimant and a person killed, injured, or imperilled by the defendant’s negligence (relational proximity). The law presumes such a tie exists between spouses and between parents and children; other relationships must be proven. The immediate victim of the crash was Albus, whose car was hit. The facts do not suggest any relationship at all between Bathilda and Albus. Furthermore, Albus suffered no injury. While a claimant can claim for witnessing damage to their own property (*Attia v British Gas plc* [1988] QB 304), the *Alcock* controls focus on witnessing harm to a human victim. As Bathilda had no relationship with Albus, her claim will fail on this first limb.
Second, there must be proximity in time and space to the accident or its immediate aftermath. This means the claimant must witness the event or its aftermath with their own senses. In *McLoughlin v O’Brian* [1983] 1 AC 410 (HL), a mother who saw her family in hospital two hours after a car crash was held to be within the immediate aftermath. Here, Bathilda saw Albus’s car catching fire as it happened. She therefore satisfies this requirement.
Third, the psychiatric injury must be caused by a sudden shock to the nervous system. The claimant must have perceived the events through their own unaided senses, and the events must be shocking. A car crash followed by a fire is clearly a sudden and shocking event. Bathilda perceived this directly, so this limb is also satisfied.
Advice to Bathilda
Although Bathilda satisfies the requirements for proximity in time and space and proximity of perception, her claim will fail because she cannot establish a close tie of love and affection with the immediate victim, Albus. This requirement is fundamental for establishing a duty of care to a secondary victim. Therefore, it is highly unlikely that she can sue Zacharias for her psychiatric injury.
The Claim by Charlie
Charlie, a firefighter who attended the scene, also developed PTSD. His claim also depends on his classification as a primary or secondary victim.
Charlie as a Primary or Secondary Victim
Historically, rescuers were sometimes treated as a special category, as in *Chadwick v British Railways Board* [1967] 1 WLR 912, where a claimant who assisted at a major train crash recovered for his psychiatric injury. However, the law was changed significantly by the House of Lords decision in *White*. This case involved police officers who suffered psychiatric injury after the Hillsborough disaster. The court held that rescuers are not a special category and are not automatically owed a duty of care. To claim successfully, a rescuer must be classified as either a primary or secondary victim.
For Charlie to be a primary victim, he must demonstrate that he was in the zone of physical danger, or reasonably believed himself to be so (*White*). As a firefighter actively putting out a car fire, he was exposed to risks such as explosion, fumes, or the fire getting out of control. It seems very likely that by tackling the fire, he was placing himself in physical danger. This is different from the police officers in *White*, many of whom were in parts of the stadium that were not dangerous. Therefore, it is arguable that Charlie would be classified as a primary victim.
If, however, a court found that he was not in any actual physical danger (for example, if he was directing operations from a safe distance), he would be treated as a secondary victim.
Analysis as a Primary Victim
If Charlie is found to be a primary victim, the test for duty of care comes from *Page v Smith*. Lord Lloyd held that for a primary victim, it is not necessary for the defendant to have foreseen psychiatric injury specifically. All that is required is that some kind of personal injury (physical or psychiatric) was foreseeable. Once it is established that the defendant’s negligence might cause some physical harm to the claimant, the defendant is liable for the full extent of the claimant’s injury, including unforeseeable psychiatric harm. This is an application of the ‘eggshell skull’ principle.
It is clearly foreseeable that a person driving negligently might cause an accident that requires emergency services to attend. It is also foreseeable that a firefighter tackling a car fire could be physically injured. As some form of personal injury to Charlie was foreseeable, Zacharias would owe him a duty of care for his subsequent PTSD. Therefore, if Charlie is classified as a primary victim, his claim is likely to succeed.
Analysis as a Secondary Victim
If a court decided Charlie was not in the zone of physical danger, he would be a secondary victim and would have to satisfy the *Alcock* control mechanisms. Like Bathilda, he would satisfy the tests of proximity in time and space and proximity of perception, as he was at the scene and witnessed the shocking event.
However, his claim would fail on the requirement of relational proximity. As a professional rescuer, he did not have a close tie of love and affection with the victim, Albus. The House of Lords in *White* expressly stated that being a professional rescuer or an employee does not allow a claimant to bypass this requirement. Therefore, if treated as a secondary victim, Charlie’s claim would fail.
Advice to Charlie
Charlie’s success in a claim against Zacharias depends entirely on whether a court would classify him as a primary victim. Given his role involved directly tackling a car fire, which is an inherently dangerous activity, there is a strong argument that he was in the zone of foreseeable physical danger. This would make him a primary victim. If this is established, under the rule in *Page v Smith*, Zacharias would owe him a duty of care. His claim would therefore have a good chance of success. If he is not found to be a primary victim, his claim will fail. On balance, it is more likely than not that he would be considered a primary victim.
References
*Attia v British Gas plc* [1988] QB 304 (CA)
*Alcock and Others v. Chief Constable of South Yorkshire* [1992] AC 310 (HL)
*Chadwick v British Railways Board* [1967] 1 WLR 912
*Hinz v Berry* [1970] 2 QB 40 (CA)
*McFarlane v EE Caledonia Ltd* [1994] 2 All ER 1 (CA)
*McLoughlin v O’Brian* [1983] 1 AC 410 (HL)
*Page v Smith* [1996] AC 155 (HL)
*White and Others v. Chief Constable of South Yorkshire* [1999] 2 AC 455 (HL)
