At the risk of activating too many gag reflexes, I really do get the most interesting queries from my clients! A recent example prompted me to revisit liability for psychiatric injury claims in Scotland in light of the recent Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1 Supreme Court decision. In an area where the common law has been moulded over the years to deliver the court’s perception of justice in a particular case, there are quirks and exceptions. Outlined below are the general rules.
The Supreme Court was asked to consider in the Paul appeals whether ‘secondary victims’ entitled to recover damages for psychiatric injury ought to include claimants whose injury was caused by witnessing the death or injury of a close relative, not in an accident, but from a medical condition which the defendant negligently failed to diagnose and treat. The appeals were heard by a panel of seven justices, for sufficient numbers had they felt it necessary to depart from previous House of Lords decisions (in particular Alcock).
The Supreme Court held that a claimant could not recover damages for personal injury as a secondary victim unless they had witnessed an accident (or its immediate aftermath). Sustaining illness as a result of a pre-existing injury or disease was not analogous to an external, traumatic event in the nature of an accident. Lord Carloway noted that the same result would be reached under Scots law – there must be an accident to be witnessed.
A dissenting Lord Burrows argued for the death or illness of the primary victim to be treated as the ‘relevant event’ or ‘accident’ in medical negligence cases. As he noted, subject to possible rare exceptions[1], the leading judgment effectively closes off recovery for negligently caused psychiatric illness to secondary victims in medical negligence cases.
The pursuer is required to establish that the accident was due to the negligence of a defender. At the core of this is the need to demonstrate that the defender breached a duty which was owed directly to the pursuer. This depends upon both reasonable foreseeability of damage and proximity (or directness of the relationship) between the pursuer and defender[2].
In ‘secondary victim’ cases, that description must not obscure the absolute essentiality of establishing that (i) the defender owed a duty of care to them not to cause a recognised psychiatric illness consequent on the death, injury or imperilment of the primary victim, and that (ii) it was reasonably foreseeable to the defender that the pursuer, as a person of reasonable fortitude, might suffer a psychiatric illness as a result of the death, injury or imperilment of the primary victim[3].
The majority held in Paul that those claims would also fail on this ground, as the necessary duty of care didn’t exist between a doctor and the close family of a patient in these circumstances. The necessary proximity in the relationship between the parties to give rise to a duty of care did not exist.
Case law[4] is clear that the pursuer must suffer a recognised psychiatric illness – as distinct from the normal emotional responses to an incident such as upset, grief, fear, mental distress or anxiety.
The Supreme Court took the opportunity in Paul to correct what they described as the ‘wrong turn’ taken by the law in requiring secondary victims’ psychiatric injury to have been caused by a “sudden shock to the nervous system”, through witnessing a “horrifying” event.
As noted above, for secondary victim claims to succeed the psychiatric injury does still need to be reasonably foreseeable in a person of “reasonable fortitude”.
The leading authorities in this area are the House of Lords cases arising out of the Hillsborough disaster – Allcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 and Frost v Chief Constable of South Yorkshire [1999] 2 AC 455 – as well as the more recent Supreme Court Paul case which will be of persuasive influence on Scots law in similar circumstances.
In Allcock Lord Oliver described (i) a primary victim as “involved, either mediately or immediately, as a participant” and (ii) a secondary victim as “no more than the passive and unwilling witness of injury caused to others”.
Generally, a pursuer who has not been physically injured as a result of an accident but has suffered a recognised psychiatric harm can only recover damages against the person at fault where they were a primary victim directly involved in the accident. That direct involvement can arise by actual exposure to the danger of physical injury, where no physical injury follows. It can also arise through witnessing an accident at close hand and suffering fear of physical injury to oneself if that fear was a reasonable one[5].
Two other examples of primary victims were given by Lord Oliver in Alcock: rescuers and involuntary participants.
More recent law has moved away from the finding in Chadwick v British Railways Board [1967] 1 WLR 912 that a rescuer (who spent almost 12 hours helping to rescue and comfort victims of the Lewisham Railway accident where 90 people died) could recover damages for his psychiatric injury despite not being in fear for his own safety. In Frost, the majority of the House of Lords supported a requirement that the rescuer was within the range of foreseeable physical injury (or fear for their own safety) to be a primary victim. This limiting of the category of primary victim to persons exposed (or who perceived themselves to be exposed) to physical danger was endorsed in Monk v PC Harrington Ltd [2009] PIQR P3 where a site foreman who attended the scene of the accident to lend assistance to the injured workmen was not a primary victim as he did not reasonably believe that he was putting himself in danger.
The other (relatively rare) example where courts have held people were primary victims despite not being in physical danger, is that of involuntary participants. This is someone who was, or believed they were the involuntary cause of another’s death or injury. In Salter v UB Frozen and Chilled Foods Ltd [2004] SC 233 the pursuer was driving a hoist which jerked forward for some unexplained reason and killed one of his colleagues. Following Dooley v Cammell Laird [1951] Lloyds rep 271, the court held the pursuer would be classed as a primary victim, even though he had not been within the range of foreseeable physical injury because he was actively involved (although blameless) in the accident. The essential characteristic that distinguishes this category from that of the bystander is that it was the pursuer’s own hand or act which was the involuntary (or supposed) cause of another’s death or injury[6].
Frost and Alcock held that for a secondary victim to recover damages they must satisfy the following additional three criteria:
(a) there must be a close tie of love and affection between the secondary victim and the person killed, injured, or imperilled;
(b) the secondary victim must have been present at the accident or its immediate aftermath; and
(c) the secondary victim’s psychiatric injury must have been caused by direct perception (i.e. through his or her own unaided senses) of the accident or its immediate aftermath (rather than, for example, hearing about it from a third party).
A close tie is currently presumed to exist in relation to a parent, a child, a spouse and possibly also a fiancé(e) but must otherwise be established by evidence. Being a close colleague and socialising after work for many years was insufficient[7]. The absence of a close tie of love and affection resulted in the refusal of damages to a road worker who saw a burnt-out car with bodies in it while cordoning off the road and suffered psychiatric injuries[8].
In Paul, the majority of the court explained that the inability of bystanders to recover damages even where they suffer foreseeable harm (of any kind) is a consequence of the general rule that English law will not grant remedies to third parties for the (psychological, physical, or financial) effects of injuries to other people. Lord Carloway noted that in Scotland such damage is similarly irrecoverable given the requirement at (ii) above that the person injured must be within the area of danger which the wrongdoer has in contemplation[9]. The Supreme Court held that what actually requires justification is the existence of a category of claimant who can recover damages for personal injury secondary to the death or injury of another person, rather than the narrowness of that category. They agreed with Lord Oliver in Alcock that the exception where a claimant who has actually witnessed the event of injury to the primary victim and suffers injury arising from the circumstances of their relationship to them is “now too well established to be called in question”.
Echoing Lord Steyn’s “Thus far and no further” in Frost, they held that a line must be drawn to keep the liability of negligent actors for such secondary harm within reasonable bounds. They upheld the limitations set in Frost and Alcock to restrict the class of eligible claimants to those who are most closely and directly connected to the accident which the defendant has negligently caused.
The Supreme Court felt that the criteria of whether someone was present at the scene, and whether they directly perceived an accident, had clear and straightforward answers providing the great merit of legal certainty.
The Supreme Court noted that the clarity and certainty of these tests had been compromised by the decision in McLoughlin v O’Brian [1983] 1 AC 410 that a claimant who saw injured members of her family in a different place from the accident site more than two hours after the accident had witnessed the “immediate aftermath” of the accident. They went on to tighten up what qualifies as ‘immediate aftermath’ by emphasising that (per Lord Wilberforce) Mrs McLoughlin’s claim was “upon the margin of what the process of logical progression would allow” and depended critically on the evidence that, when the claimant came upon the members of her family, they were in the same condition as they had been at the roadside, covered with oil and mud, and distraught with pain.
The Supreme Court felt the acceptable line between cases where the psychiatric injury is compensable and where it is not, should be drawn between claimants who suffered the ordeal of actually witnessing the accident in which a close relative was killed or injured, and those who did not.
Stress at work type claims for psychiatric injury are excluded from the scope of this and require their own article!
The decision in Paul has provided clarity in relation to claims by secondary victims for psychiatric injury. It has removed the requirement of a “sudden shock to the nervous system” through witnessing a “horrifying” event, tightened up what qualifies as the ‘immediate aftermath’, and effectively closed the door on such claims arising from medical negligence.
Please do not hesitate to get in touch if there are any specific cases or scenarios you would like to discuss or obtain advice on.
[1] E.g. Injection of the wrong dose or drug inducing an acute adverse reaction, or possibly a medical accident causing injury during childbirth, witnessed by a close relative.
[2] Paul Lord Carloway, Taylor v A Novo (UK) [2014] QB 150 Lord Dyson MR paras 24 to 29, Bourhill v Young 1942 SC (HL) 78 Lord Thankerton at 83 and Lord Russell at 85–86.
[3] Paul Lord Carloway, Young v MacVean 2016 SC 135 Lord Brodie, and Alcock Lord Oliver
[4] Including: Simpson v Imperial Chemical Industries Ltd [1983] SLT 601, Rorrison v West Lothian Council [2000] SCLR 245, Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1, Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 and Frost v Chief Constable of South Yorkshire [1999] 2 AC 455 to name but a few.
[5] Per Weddle v Glasgow [2021] SAC (Civ) 17, Campbell v North Lanarkshire Council, [2000] SCLR 373 , White/Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455; Dulieu v White & Sons [1901] 2 KB 669 , and Bourhill v Young [1943] AC 92; 1942 S.C. (H.L.) 78.
[6] Alcock and Robertson v Forth Road Bridge Joint Board [1995] SC 364
[7] Robertson v Forth Road Bridge Joint Board.
[8] Keen v Tayside Contracts [2003] SLT 500
[9] Bourhill v Young 1942 SC (HL) 78, Lord Thankerton at 83, Lord Russell at 85–86
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