This advice will consider the potential claims in negligence for psychiatric illness by Farid, Aisyah, and Nurul against GreenTech Sdn Bhd. For a claim in negligence to succeed, a claimant must establish that the defendant owed them a duty of care, that the defendant breached that duty, and that the breach caused the claimant to suffer legally recognised damage. The key issue here concerns the duty of care for psychiatric illness, a type of harm for which the law has developed specific and restrictive rules due to policy concerns about opening the ‘floodgates’ to litigation (White v Chief Constable of South Yorkshire Police, 1999). Each claimant’s position will be assessed separately based on the distinction between primary and secondary victims.
General Principles
Before examining each claimant, it is necessary to state two preliminary requirements for any claim for psychiatric illness. First, the claimant must have suffered a “recognised psychiatric illness” (Hinz v Berry, 1970). Normal human emotions like grief, sorrow, or distress are not sufficient to ground a claim. In the present case, Farid’s Post-Traumatic Stress Disorder (PTSD), Aisyah’s severe depression and anxiety, and Nurul’s “recognised psychiatric illness” are all likely to satisfy this threshold, provided they are supported by medical evidence.
Second, for a duty of care to arise, it must be reasonably foreseeable that the defendant’s conduct would cause a person of ‘ordinary fortitude’ or ‘customary phlegm’ to suffer a psychiatric illness (Bourhill v Young, 1943). The application of this foreseeability test differs depending on whether the claimant is classified as a primary or secondary victim.
Farid
Farid’s claim depends on whether he can be classified as a primary victim. A primary victim is someone who is directly involved in the incident and is within the zone of actual or reasonably apprehended physical danger. The leading authority is *Page v Smith* (1996), where the House of Lords held that where a claimant is a primary victim, foreseeability of psychiatric injury is not required. All that is necessary is that physical injury was a foreseeable consequence of the defendant’s negligence. If physical harm is foreseeable, the defendant is under a duty to avoid causing any injury, whether physical or psychiatric.
In Farid’s case, he was in a “nearby office building” when a “major explosion” occurred at a chemical facility. Although he was not physically injured, he “believed that the building was about to collapse”. The key question is whether this belief was reasonable, placing him in the zone of foreseeable physical danger. Given the nature of the event – a major explosion at a chemical plant – it is highly arguable that those in close proximity would be at foreseeable risk of physical injury from the blast, flying debris, or structural damage to nearby buildings. Therefore, Farid’s fear for his safety appears reasonable.
As Farid was a foreseeable victim of physical injury, he qualifies as a primary victim under the principle in *Page v Smith*. Once classified as a primary victim, the defendant, GreenTech, owes a duty of care for any injury he suffers, including psychiatric injury. It does not matter that the injury he sustained was psychiatric rather than physical. Furthermore, the ‘thin skull’ rule applies, meaning the defendant must take their victim as they find them. So, even if Farid was unusually susceptible to psychiatric harm, GreenTech would be liable for the full extent of his PTSD, provided it was caused by the breach of duty (Page v Smith, 1996).
The facts state that the explosion was due to “negligent maintenance”, which establishes a breach of duty by GreenTech. It is clear that Farid’s PTSD was caused by the terrifying experience of the explosion. Therefore, Farid is highly likely to succeed in his claim against GreenTech for damages for his psychiatric illness.
Aisyah
Aisyah was not present at the scene of the explosion and was never in any physical danger. She cannot, therefore, be a primary victim. Her claim must be as a secondary victim, which is a person who suffers psychiatric injury from witnessing injury or danger to another person with whom they have a close relationship. The law for secondary victims is much more restrictive and is governed by the control mechanisms set out by the House of Lords in *Alcock v Chief Constable of South Yorkshire Police* (1992).
To succeed, Aisyah must satisfy four strict requirements:
1. **A close tie of love and affection with the immediate victim:** Aisyah is Farid’s wife. The law presumes such a tie exists between spouses (*Alcock*, 1992), so this requirement is met.
2. **Proximity to the accident in time and space:** The claimant must have been present at the scene of the accident or witnessed its “immediate aftermath”. Aisyah was at home and watched the event on live television. She did not arrive at the scene until “several hours later”. This delay is a significant problem for her claim. In *McLoughlin v O’Brian* (1983), a claimant who arrived at the hospital two hours after an accident and saw her family in a distressed and untreated state was held to be within the immediate aftermath. However, in *Alcock*, relatives who identified bodies in a mortuary some eight hours after the Hillsborough disaster were held not to be. “Several hours” is vague, but it appears closer to the timeframe in *Alcock* than in *McLoughlin*. The scene she witnessed would likely have been secured and organised by the time she arrived, which may not constitute the raw and shocking aftermath required by the courts.
3. **The means by which the shock was caused:** The psychiatric injury must be caused by direct perception of the event or its immediate aftermath with the claimant’s own unaided senses. Witnessing events on television is generally not sufficient, as stated in *Alcock*, unless it depicts the suffering of identifiable individuals. The broadcast Aisyah watched was “live television coverage of the disaster,” which would likely not have contained close-up images of her husband. Although she later saw Farid in person, the law is unclear whether a shock can be created by a combination of seeing a broadcast and later seeing the victim. The core of her shock must come from the direct perception at the scene.
4. **The injury must be caused by a “sudden and shocking event”:** The law requires a “sudden assault on the nervous system” (Alcock, 1992). Aisyah’s experience involved watching the news, travelling for several hours, and then seeing her husband. A court may view this as a gradual process of understanding and distress, rather than the sudden shock required.
Considering these restrictive criteria, Aisyah’s claim is weak. Her failure to be proximate in time and space to the immediate aftermath of the explosion is likely to be fatal to her claim. The delay of “several hours” distinguishes her situation from the successful claimant in *McLoughlin*. Therefore, it is unlikely that Aisyah will be able to establish that GreenTech owed her a duty of care as a secondary victim.
Nurul
Nurul is a journalist who witnessed “numerous casualties” and developed a psychiatric illness from “prolonged exposure to the aftermath”. Her position must also be assessed within the primary and secondary victim framework.
Nurul cannot be a secondary victim because she does not have a close tie of love and affection with any of the primary victims of the explosion. This is a fundamental requirement under the *Alcock* criteria, and its absence is fatal to any claim on this basis.
Her only other potential avenue is to claim as a primary victim. To do so, she would have to show that she was herself in the zone of foreseeable physical danger. The facts do not suggest this. They state she was “covering the disaster”, which implies she arrived to report on it after the main dangerous event (the explosion) had occurred. If she was not in any danger herself, she cannot be a primary victim according to *Page v Smith*.
The law is also generally unsympathetic to claims from rescuers or professionals who suffer psychiatric harm as a result of their duties. In *White v Chief Constable of South Yorkshire Police* (1999), police officers who were present at the Hillsborough disaster and suffered psychiatric injury from witnessing the events could not recover damages as they were not personally in physical danger. The House of Lords held that rescuers are not a special category and must satisfy the primary or secondary victim tests like any other claimant. As a professional attending the scene, Nurul is in a similar position to the police officers in *White*.
Furthermore, her illness developed following “prolonged exposure to the aftermath”. This contradicts the requirement for the harm to be caused by a sudden shock. The courts have consistently rejected claims for psychiatric injury that arises from a cumulative or gradual exposure to distressing circumstances, as it does not fit the “sudden shock” model (see *Sion v Hampstead Health Authority*, 1994).
Therefore, Nurul’s claim has almost no prospect of success. She is not a secondary victim due to the lack of a close tie, and she is unlikely to qualify as a primary victim as she was not in physical danger. As a professional attending a disaster scene, the law does not provide her with a remedy for the psychiatric harm she suffered in these circumstances.
Conclusion
In summary, the likely outcomes of the potential claims are as follows:
– **Farid** has a strong claim for damages. He is a primary victim under the test in *Page v Smith* as he reasonably feared for his physical safety. As such, GreenTech owed him a duty of care for his resulting PTSD.
– **Aisyah**’s claim is very unlikely to succeed. As a secondary victim, she must satisfy the strict *Alcock* control mechanisms. The “several hours” delay before she arrived at the scene means she probably falls outside the “immediate aftermath” requirement for proximity.
– **Nurul**’s claim is almost certain to fail. She cannot satisfy the requirements for either a primary or a secondary victim, and the law does not provide a special category for professionals like journalists who suffer psychiatric illness from witnessing the consequences of a disaster.
This area of law remains controversial for its strict and seemingly arbitrary distinctions, but based on the current legal principles, only Farid is in a position to make a successful claim.
References
Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.
Bourhill v Young [1943] AC 92.
Hinz v Berry [1970] 2 QB 40.
McLoughlin v O’Brian [1983] 1 AC 410.
Page v Smith [1996] AC 155.
Sion v Hampstead Health Authority [1994] 5 Med LR 170.
White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.
