This advice will consider the potential claims in negligence by Emma and Jess against Aaron for the psychiatric injuries they have sustained. Aaron’s liability for Lisa’s physical injuries, which has been settled, establishes the primary act of negligence. The issue is whether this liability extends to Emma and Jess as secondary victims who have suffered psychiatric harm. To establish a claim for nervous shock, or psychiatric injury, a claimant must prove that they have suffered a medically recognised psychiatric illness, that this illness was caused by the defendant’s breach of duty, and that it was reasonably foreseeable that a person of ordinary fortitude would suffer such an illness in the circumstances (Bourhill v Young [1943]). The law distinguishes between primary and secondary victims. Primary victims are those directly involved in the incident and within the zone of foreseeable physical injury (Page v Smith [1996]). Secondary victims are those who witness the event or its immediate aftermath but are not in physical danger themselves. Both Emma and Jess fall into the category of potential secondary victims. Their claims will be assessed against the strict control mechanisms established by the House of Lords in Alcock v Chief Constable of South Yorkshire Police [1992].
Jess’s Claim
Jess has developed post-traumatic stress disorder (PTSD), which is a recognised psychiatric illness (Leach v Chief Constable of Gloucestershire [1999]). As she was not at risk of being physically hit, she cannot be classed as a primary victim under the principle in Page v Smith [1996]. Her claim must therefore be assessed based on the criteria for secondary victims.
The *Alcock* criteria are as follows:
1. A close tie of love and affection between the claimant and the primary victim.
2. Proximity to the accident in time and space.
3. The means by which the shock was caused must be through the claimant’s own unaided senses.
4. The psychiatric injury must be induced by a sudden, shocking event.
Applying these criteria to Jess’s situation:
First, there must be a close tie of love and affection. The law presumes such a tie exists between spouses and parents and children, but for other relationships, including siblings, it must be proved with evidence. Jess is Lisa’s half-sister and has lived with Lisa and Emma for five years. The facts state Jess has a “very loving nature” and that Lisa and Emma feel their lives are “greatly enriched” by her presence. Before Jess lived with them, they had considered adopting a child, suggesting Jess may fill a child-like role in their family dynamic, particularly given her learning disability. These facts provide strong evidence to rebut the presumption against a sufficiently close tie for siblings and establish the required relationship of love and affection. It seems highly likely a court would find this criterion is satisfied.
Second, Jess must have been proximate to the accident in time and space. The facts state Jess was “on shopping together” with Lisa and “witnessed the collision”. She was physically present at the scene as the event unfolded. This criterion is therefore clearly satisfied.
Third, the shock must be experienced through the claimant’s own senses. Jess “witnessed the collision”, meaning she saw and likely heard the accident directly. This direct perception of the event meets the requirement, as opposed to being told about it by a third party.
Fourth, the injury must result from a sudden and shocking event. Jess witnessed her half-sister and carer, Lisa, being knocked down by a car on a pedestrian crossing. Such an event is unquestionably sudden and horrifying. Jess’s immediate reaction of becoming “hysterical” is indicative of this sudden shock. The subsequent development of PTSD is the direct result of this shocking event. This criterion is convincingly met.
A final consideration is whether it was reasonably foreseeable that a person of normal fortitude would suffer psychiatric injury from witnessing such an event. It is arguable that any bystander of ordinary fortitude might suffer psychiatric harm from seeing a person hit by a car. As this threshold is likely to be met, the ‘egg-shell skull’ rule applies. This means the defendant must take the victim as they find them (Brice v Brown [1984]). Although Jess’s disability made her PTSD “particularly difficult to treat,” Aaron would be liable for the full extent of her injury, not just the level of injury a person of ‘ordinary’ mental resilience might have suffered.
In conclusion, Jess’s claim as a secondary victim is very strong. She appears to satisfy all four of the *Alcock* control mechanisms, and the severity of her condition is recoverable under the egg-shell skull rule.
Emma’s Claim
Emma is claiming for depression, which, assuming it is a diagnosed clinical condition rather than simple grief, is recognised as a form of psychiatric harm for which damages can be awarded (Hinz v Berry [1970]). Like Jess, Emma was not physically endangered and must therefore bring her claim as a secondary victim, subject to the *Alcock* criteria.
Applying the criteria to Emma’s situation:
First, the requirement of a close tie of love and affection is easily met. Emma and Lisa are civil partners and “soon to be married”. This is one of the relationships where a close tie is presumed to exist, and Aaron’s insurance company would not be able to rebut this.
However, Emma’s claim faces significant difficulties with the second criterion: proximity to the accident in time and space. She was at work when the accident occurred and only arrived at the hospital “within a couple of hours”. For a secondary victim who was not at the scene of the accident, a claim is only possible if they witnessed the ‘immediate aftermath’ of the event. The leading case is *McLoughlin v O’Brian* [1983], where a mother’s claim was successful after she saw her family in the hospital about two hours after a car accident. They were still in the state they were in immediately following the collision, covered in blood and oil.
Emma’s situation is superficially similar to *McLoughlin* in terms of the two-hour time frame. However, the courts have since been very reluctant to extend the doctrine and have interpreted ‘immediate aftermath’ restrictively. The nurse’s comments to Emma that Lisa would “look like she’s been in the wars a bit” but was “not too badly hurt” suggests that Lisa had been received, assessed, and potentially treated to some degree. This indicates a move away from the raw immediacy of the accident scene that was present in *McLoughlin*. Although Emma fainted upon seeing Lisa’s “very badly swollen and bruised” face, suggesting the sight was still shocking, it is arguable whether this qualifies as the immediate aftermath of the accident itself.
Furthermore, the Court of Appeal judgment in *Taylor v A Novo (UK) Ltd* [2013] reinforces this restrictive approach. It was held that proximity requires presence at the horrifying event which caused the injury (the accident), not a subsequent horrifying event which is a consequence of the first. Emma did not witness the accident; she witnessed its consequences in a hospital. This is a very significant hurdle for her claim.
Third, regarding the means of perception, Emma saw Lisa with her own eyes, so this appears to be met. However, the nurse’s intervention could be argued to break the chain of immediate perception, although her words were ultimately misleading and could have enhanced the shock of the visual reality.
Fourth, the need for a sudden shocking event. Emma fainted when she saw Lisa’s face, which is compelling evidence of a sudden shock. This contrasts with cases like *Sion v Hampstead Health Authority* [1994], where a claim failed because the claimant watched a gradual decline rather than witnessing a single horrifying event. Emma’s experience appears to fit the “sudden shock” model.
Despite satisfying the ‘close tie’ and arguably the ‘sudden shock’ criteria, Emma’s claim is likely to fail on the ground of proximity. The modern judicial trend, exemplified by cases like *Taylor v A Novo*, is to strictly limit the scope of liability for secondary victims. Arriving at a hospital two hours later, after the victim has been admitted and stabilised to some extent, is unlikely to be considered part of the immediate aftermath of the original accident. The courts have repeatedly expressed policy concerns about opening the ‘floodgates’ of litigation for psychiatric harm, and Emma’s case falls into a category where the courts have been keen to draw a clear line.
Conclusion
In summary, Jess has a strong claim for compensation. She was present at the scene, had a provably close relationship with the primary victim, and suffered a recognised psychiatric illness as a direct result of the sudden, shocking event. Aaron’s insurers would be advised that a court is highly likely to find in her favour.
Emma’s claim is significantly weaker and is unlikely to succeed. Although she has a presumed close tie of love and affection and suffered a shock, her lack of proximity to the accident or its immediate aftermath is a fatal flaw. The current judicial interpretation of the ‘immediate aftermath’ doctrine is very restrictive, and Emma’s experience at the hospital would almost certainly be considered too remote from the original negligent event. Therefore, she should be advised that her claim has a low prospect of success.
References
*Alcock v Chief Constable of South Yorkshire Police* [1992] 1 AC 310 (HL)
*Bourhill v Young* [1943] AC 92 (HL)
*Brice v Brown* [1984] 1 All ER 997 (QBD)
*Hinz v Berry* [1970] 2 QB 40 (CA)
*Leach v Chief Constable of Gloucestershire Constabulary* [1999] 1 WLR 1421 (CA)
*McLoughlin v O’Brian* [1983] 1 AC 410 (HL)
*Page v Smith* [1996] AC 155 (HL)
*Sion v Hampstead Health Authority* [1994] 5 Med LR 170 (CA)
*Taylor v A Novo (UK) Ltd* [2013] EWCA Civ 194
