ISLAMIC UNIVERSITY IN UGANDA (IUIU) – KAMPALA CAMPUS

FACULTY OF LAW - BACHELOR OF LAWS / EVENING

CODE: TORT LAW II – LAW 2205

DATED: 7th FEBRUARY 2024

GROUP 4 (ALPHA)

No. STUDENT NAMES STUDENT REGISTRATION NO. SIGNATURE

1 KIVUMBI GODFREY 222-053012-23939

2 LEONARD OGUGU 222-053012-23273
3 SIMON PETER MUGABI 222-053012-23310
4 AKERA PAUL 222-053012-24144
5 NABONGHO GEORGE 222-053012-23358
6 ALLAN KIWEESI SSEBUYIRA 222-053012-23620
7 MUTYABA CHRISTOPHER 222-053012-24012
8 ANNET NABABIRO 222-053012-23178

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Answer Submission:

INJURY WITHOUT IMPACT

Definition and Introduction:

This refers to psychological injury caused by the negligence of the defendant. The injury occurs
as a result of the plaintiff witnessing what happens to the third parties and also oneself.
The treatment of plaintiffs in the field of tort law is very inconsistent. Courts are preoccupied
with limiting the liability of tortfeasors, Developments of science- psychiatric injury.
Developments in this area were rather slow.
The science of the mind developed much later because capitalization was more concerned with
profitable aspects and not abstract issues like psychiatric injury.
Psychology was only relevant in explaining industrial relation and control.
In case of psychiatric injury, the rules of foreseeability are not enough to ensure that the plaintiff
recovers, they must satisfy other requirements.
It is accepted that injury does occur in the form of psychiatric injury as a result of negligence.
In claim of damages for nervous shock and mental anguish the plaintiff must satisfy the
following requirements:
-Claimant suffered shock
-Shock must be as result of the act of the defendant or omission of the defendant
-It must be by reason of actual apprehended injury to the plaintiff and the defendant owed
plaintiff duty of care not to cause him reasonably foreseeable injury.

In Fletcher v Commissioner of public works nervous shock and mental anguish are actions for
none physical injuries and these are allowable in recovery in quite limited circumstances. There
must be a physical injury as result of defendant’s negligence.

History of Injury without impact:

The law of nervous shock has developed through case laws which date from as far back as 1861.
There are numerous English law cases which provide the best picture of the development of the
law in this area. Lynch v knight, one of the earliest cases that comments on liability for mental
damage. The comment, however, was in the nature of obiter dicta and the case actually involved
an action for defamation. The comment made was as follows: “Mental pain or anxiety the law
cannot value and does not pretend to redress, when the unlawful act complained of causes that
alone, though where a material damage occurs, where a material damage occurs, and is connected
with it, it is impossible a jury, in estimating it, should altogether overlook the feelings of the party
interested.” In this, the courts made very clear that the damage that the law takes notice has to be
material, something tangible like a bodily injury.
The case which forms the actual starting point for all the case laws on nervous shock is the case
of Victorian Railways Commissioners v. Coultas, the privy council observed that: “Damages
arising from mere sudden terror unaccompanied by any actual physical injury, but occasioning a
nervous or mental shock, cannot under such circumstances their Lordships think, be considered a
consequence which, in the ordinary course of things, would flow from the negligence of the gate-
keeper”

In 1901, however, the courts adopted a more liberal approach in deciding Dulieu v. White &
Sons, in this case, it was noted that shock must be such as “arises from reasonable fear of
immediate personal injury to oneself”. This case brought into picture what is called impact
theory. According to which the plaintiff would be allowed to recover for psychiatric illness
provided that this was caused by reasonable fear of being physically injured by the defendant’s
negligence. Kennedy J uphold her claim, citing the case of Wilkinson v Downton . His lordship
did not hold with the thought that the possible increase in fraudulent claims, as mentioned in the
Victorian Railway case, was a good enough reason to deny a legitimate claim, stating: “such a
course involves the denial of redress in meritorious cases, and it necessarily implies a certain
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degree of distrust, which i do not share, in the capacity of legal tribunals to get at the truth in this
class of claim”. The desire of the courts to exercise control over the scope of liability.
Impact theory was followed for about 20 years until the decision of Hambrook v. Stokes Bros .
In order to extend the law, Bankes LJ was careful to point out that the ratio of the decision was to
be confined to situations where the plaintiff suffered psychiatric illness because of fear for the
safety of her children. The decision was not intended to overturn previous authority to the effect
that a plaintiff could not recover in respect of psychiatric illness caused by witnessing physical
injury to a person with whom the plaintiff had no relationship of love and affection.
Nearly twenty years later, in Bourhill v. Young , the question of psychiatric illness liability came
before the House of Lords for the first time. It will be recalled that it concerned a pregnant
woman who, while descending from the tram, heard a road accident occur some distance away.
She later attended the scene of accident, saw blood on the road, and subsequently suffered a
miscarriage produced by shock. The House of Lords held, in effect, that the woman was not a
―foreseeable claimant. In other words, she could not base her action on a wrong done to
someone else.
Thereafter in 1982 the landmark case of McLoughlin v. O’Brian came. In this, the plaintiff was
not present in close proximity of the accident but sustained nervous shock when she was told
about the accident. In holding the defendants liable the House of Lords extended the law to cover
a situation where the plaintiff had not seen or heard the accident itself but had come upon its
immediate aftermath. Lord Wilberforce identified three factors that would need to be identified in
every case:
• The class of persons whose claims should be recognized;
• The proximity of such persons to accident; and
• The means by which psychiatric illness was caused. These three control mechanisms suggested
by Lord Wilberforce were subsequently reformulated and applied by a unanimous house of
Lords.

In Alcock v Chief Constable of the South Yorkshire Police the House of Lords, in finding for
D, held that, in cases of purely psychiatric damage caused by negligence, a distinction must be
drawn between ‘primary’ and ‘secondary’ victims. A primary victim was one who was present
at the event as a participant, and would thus be owed a duty-of-care by D, subject to harm caused
being foreseeable, of course. A secondary victim, by contrast, would only succeed if they fell
within certain criteria. Such persons must establish:
-A close tie of love and affection to a primary victim
-Appreciation of the event with their own unaided senses
-Proximity to the event or its immediate aftermath
-The psychiatric harm must be caused by a sufficiently shocking event.

Primary Victims
Primary victim category is relatively straight forward to understand, there have been two specific
groups of people that the law has historically placed in the primary category.
Rescuers:
Those who attend the scene of an accident. Whilst these were included in the primary category in
Alcock, the law has since been modified so that rescuers are only considered primary victims
when they are either objectively exposed to danger or they hold a reasonable belief that they are
in danger. In White and Others v Chief Constable of the South Yorkshire Police . Like
Alcock, this case also revolved around the events of the Hillsborough disaster, but involved
various members of the police claiming for psychiatric injury as rescuers attending the disaster.
The court rejected the idea that they were primary victims of the event, stating that in order to fit
into this category they must be exposed (or reasonably believe themselves to be exposed) to
danger. This was not the case for the police, and so the claim failed. It was also notably pointed
out that there were already statutory schemes in place aimed at helping police exposed to
particular traumatic events.

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To better understand the primary victim p, consider the following example. A negligently caused
explosion on an oil-rig results in a fire. There are three ways someone can become a primary
victim of such an event. Firstly, those hurt by the explosion will be primary victims - they are
physically harmed by the negligence (and this is foreseeable). Thus, following Page they will be
able to claim for psychiatric injury.
Secondly, there are those who come to the aid of the oil-rig workers after seeing the explosion.
Assuming that those rescuers are place into physical risk by the fire, they can be considered to be
in the ‘danger-zone’, and are therefore primary victims, who can claim for psychiatric injury, as
per White.
Thirdly and finally, some of those who attend might not factually be exposed to the dangers of
the fire, but might believe themselves to be - for instance, they might rush in to help others,
believe themselves to be at risk, when in actual fact the fire has been contained. As long as the
rescuer’s belief that they are in the danger-zone is reasonable, then they will be able to claim for
psychiatric injury as a primary victim, again, as per White.

Those who cause injury

The second group of people is those who believed themselves to have caused the injury of
another were included in this category. Note: such people are now regarded as secondary victims,
although for a short while they were seen as primary victims.
This can be seen in Dooley v Camel Laird the claimant was a dockside crane operator working
for the defendant. Whilst loading a ship with heavy materials, the cable on the defendant’s crane
snapped (it emerged that the cable provided was too weak for the job). The load dropped
suddenly into the hold of the ship. This meant that the claimant could not see if he had killed
anyone or not. Believing, temporarily, that he had killed somebody (or a number of people), the
claimant suffered acute shock, aggravating a pre-existing psychological condition. This was held
to be a valid claim - the claimant had a reasonable belief that he had killed someone.

This was later refined so that the claimant had to be present when death or injury occurred. So, in
Hunter v British Coal, an operator of mining vehicle hit a water hydrant whilst driving through
a poorly lit, overly narrow section of mine. He attempted to close the hydrant with the help of a
colleague. He left temporarily to get a hose to drain the pooling water. The hydrant then
exploded, killing his colleague. He ran to turn off the water, and was told 10 minutes later that his
colleague was dead. He believed that he was responsible for killing his colleague (because he
drove into the hydrant). As a result, he became ill with serious depression. In legal terms,
however, the accident was held to be caused by the defendant, who had a responsibility to
properly maintain the mine, so as to avoid such accidents. However, the claimant’s case failed -
he was not present when the death (or injury) actually occurred, and only found out about it 10
minutes later.
Secondary Victims
In order for a claimant to have a viable claim as a secondary victim, they must satisfy a number
of criteria. There must be a close emotional link between the traumatic event and the
claimant’s psychiatric injury. In other worlds, the courts largely require that the secondary
victim be closely related in some way to a primary victim. Alcock once again illustrates this
point: although ten of the claimants involved were relatives of primary victims of the incident, it
was held that the police had no duty to them, because they were not spouses or parents of primary
victims. Regardless of this ruling, it should be emphasized that the rule is that there must be a
close emotional link, not that the secondary victim must be a husband or parent of a primary
victim. Rather, whilst cases involving spouses and parents have a rebuttable presumption towards
there being a sufficiently close relationship, other relationships can satisfy this criterion. It should
also be noted that this rule becomes proportionally more relaxed in relation to the seriousness of
the harm to the primary victim.
Indeed, it was mooted in McFarlane v EE Caledonia Ltd that should the situation be
sufficiently grievous a bystander might be able to claim - although it should also be
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acknowledged that the claim was rejected in this case. So, a less serious incident affecting the
primary victim requires a closer relationship before a claim can be made, and vice versa.
The secondary victim must be both close in terms of ‘spatial and temporal proximity’
(translation: same time, same place.) In other words, there must be at least a rough correlation
between the harm done to the primary victim and the secondary victim’s experience of the harm.
As seen in McLoughlin v O’Brian , this extends a relatively long time after the instigating
event. The claimant’s husband and children were involved in a serious traffic accident. The
claimant only found out about the accident two hours later, and she was immediately taken to the
hospital to see her family. She then learned that her youngest daughter had been killed, and saw
the injuries of her husband and children, who were still covered in oil and mud. The claimant
sued the defendant for psychiatric injury. Her claim succeeded - the claimant came upon the
immediate aftermath of the incident, and this was held to be sufficiently close in space and time.
The secondary victim must see or hear the immediate aftermath of the instigating event.
The importance of such a rule can be seen in Alcock - a huge number of people saw the events
over TV (remember, the disaster took place during a football broadcast, and then via live news.)
It should be noted that the rule is not that seeing a primary victim die or get injured on a TV
broadcast makes a claim invalid. Instead, the logic in Alcock was that it was impossible to
identify individual primary victims from the broadcast, and so whilst viewers might know a close
relation was in that particular stand of the stadium, they could not directly see the harm done to
them. Indeed, Lord Acker notes that it is possible for a secondary victim to have a valid claim
upon seeing a primary victim over television:
"Although the television pictures certainly gave rise to feelings of the deepest anxiety and
distress, in the circumstances of this case the simultaneous television broadcasts of what occurred
cannot be equated with 0he "sight or hearing of the event or its immediate aftermath."
Accordingly, shocks sustained by reason of these broadcasts cannot found a claim. […] Many
other such situations could be imagined where the impact of the simultaneous television pictures
would be as great, if not greater, than the actual sight of the accident.”
- Lord Acker.
The key cases have focused on four possible classes of people:
1. Relatives and friends of those killed or injured as a result of the defendant’s negligence
2. Rescuers at the scene of accidents
3. Employees of the party causing the accident
4. Unwitting agents – people who cause death or injury to others, not through their own fault but
as a result of someone else’s negligence
Relatives and Close friends
Alcock makes it clear that relatives are the people most likely to succeed in an action for
psychiatric damage as a secondary victim. But there is no set list of relationships; whether or not
a claim succeeds will depend on the facts of each particular case. In McLoughlin v O’Brian Lord
Wilberforce said: As regards the class of persons, the possible range is between the closest of
family ties – of parent and child, or husband and wife – and the ordinary bystander. Existing law
recognizes the claims of the first; it denies that of the second, either on the basis that such persons
must be assumed to be possessed of fortitude sufficient to enable them to endure the calamities of
modern life, or that defendants cannot be expected to compensate the world at large. . . other
cases involving less close relationships must be very carefully scrutinized. I cannot say that they
should never be admitted. The closer the tie (not merely in relationship, but in care) the greater
the claim for consideration. The claim, in any case, has to be judged in the light of the other
factors, such as proximity to the scene in time and place, and the nature of the accident. On the
same subject, Lord Keith said in Alcock: As regards the class of persons to whom a duty may be
owed. . . I think it sufficient that reasonable foreseeability should be the guide. I would not seek
to limit the class by reference to particular relationships such as husband and wife or parent and
child.
Rescuers
Until White, it had been assumed that rescuers, meaning people who suffered psychiatric injury
as a result of helping the primary victims of a shocking incident, were a special case, on the
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ground of public policy – the theory being that such selfless behavior should be encouraged and
supported, and therefore not subjected to rules stricter than those of ordinary personal injury. The
issue that rescuers should get compensate is still remain uncertain.
In the case of Haynes v Harwood , it was held that a rescuer can claim for physical injuries that
he suffers. The claimant was a police officer who work in a busy street. A boy threw a stone to
the defendant’s unattended horses and caused them to blot. The claimant stopped the horses and
sustained injury. The question, then arises is whether the principle in Haynes can be applied to
psychiatric injury as well. This principle in Haynes was adapted in the case of Chadwick v
British Transport Commission , At the Lewisham rail crash, Chadwick assisted the injured or
those that were trapped inside. After, he became ill with anxiety disorder and required hospital
treatment. He died in 1962 for causes unrelated to the accident. His personal representatives had
sued the defendants for having negligently caused the accident. Whether a rescuer could recover
under psychiatric injury? HELD It was reasonably foreseeable in the event of such an accident as
had occurred that someone other than the defendants‟ servants might try to rescue the passengers
and might suffer injury in the process. A duty of care was therefore owed to the claimant.
The psychiatric injury to the rescuer was reasonably foreseeable and the fact that the risk run by a
rescuer was not exactly the same as that run by a passenger did not deprive the rescuer of his
remedy. However, in White (SUPRA): In looking at the question of whether the officers could
claim as rescuers, the House of Lords could easily have limited itself to considering whether
professional rescuers should be treated in the same way as those who volunteer their help. It
would have been easy to keep the special treatment of voluntary rescuers, yet deny the officers‟
claim on the grounds that the public policy reasons did not apply to them, since there should be
no need to encourage them to act in ways that were already required by their jobs. However, the
House chose to go further than this and consider the whole area of rescuers who suffer
psychiatric shock. It stated that even voluntary rescuers were not, and should not be, a special
category.
Where acting as rescuer put a claimant in danger of physical injury, they could claim as a
primary victim, but, where no risk of physical injury was caused to the rescuer, they would be a
secondary victim, and therefore subject to all the restrictions in Alcock. Two main reasons were
given by Lord Hoffmann for the ruling. First, that allowing rescuers to be a special case would
sooner or later lead to difficult distinctions: if rescuers included those who help without putting
themselves in any physical danger, the line between rescuers and bystanders would become
difficult to draw. How much help would someone have to give to be considered a rescuer? Lord
Hoffmann’s second reason was that allowing the claims of professional rescuers would appear
unjust, given that the police officers‟ conditions of service provided for them to be compensated
in other ways for the psychiatric injury they had suffered, while, on the other hand, the bereaved
relatives in Alcock had been given nothing. This reasoning makes the impact of the judgment less
clear than it seems at first sight. If Mr. Chadwick can be considered a primary victim on the facts
of his case, it may be that what the decision actually does is to allow the courts to take a wide
view of whether voluntary rescuers were subject to physical danger, and use that reasoning to
allow or deny a claim, rather than explicitly mentioning public policy. In the case of Greatorex v
Greatorex the court held that the fireman father, although he is a rescuer, could not succeed as
primary victims because he was not in physical danger.

Employees :
The second argument made by the police officers in White was that they were owed a duty of
care as employees of the party whose negligence caused the shocking event. It is well established
that employers owe a duty of care towards employees, which obliges them to take reasonable
care to ensure that employees are safe at work, and, although police officers are not actually
employed by their Chief Constable, the court accepted that, for the purposes of their argument,
the relationship was sufficiently similar to the employer–employee relationship. The claimants in
White argued that this meant they could not be considered secondary victims, and were not
subject to the Alcock restrictions. This argument was rejected by the House of Lords. The House

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stated that the employers‟ duty to employees was not a separate tort with its own rules, but an
aspect of the law of negligence, and therefore subject to the normal rules of negligence.
This meant that where a type of injury was subject to special restrictions on when a duty of care
would exist, these rules applied where the injury was caused by an employer to an employee, just
as they would in any other situation. So, for example, just as there was no general duty not to
cause economic loss to others, there was no duty for an employer not to cause economic loss to
employees, by, for example, reducing opportunities to earn bonuses. In the same way, there was
no special duty of care regarding psychiatric damage caused by employers to employees, just the
normal rules, and these meant that there was no duty of care towards the claimants in White.
French & Others V Chief Constable of Sussex Police The claimants were all police officers
who had been involved in events leading up to a raid on a suspect’s premises. The raid went
wrong, and the suspect was fatally shot by one of the claimants‟ colleagues. None of the
claimants were present at the time, but, after the shooting, four of the five faced criminal charges
concerning their part in the raid. They were acquitted, but then internal disciplinary procedures
were brought against them. These too were either dropped or dismissed, but the whole process
lasted around five years, and the men alleged that, as a result of the stress it put them under; they
had all suffered psychiatric injury. Their case was that the police force had failed to provide
adequate training, and this failure had led to the shooting and the subsequent consequences for
the claimants. They held that the psychiatric injuries they had all suffered were a foreseeable
consequence of the failure to provide proper training. The House of Lords rejected this argument.
The claimants were clearly not primary victims, and, since they had not witnessed the shooting,
they were not even secondary victims, and had no sustainable claim in law. In addition, if the
foreseeability argument were to succeed, it would mean that the Chief Constable should have
foreseen that if the police force failed to offer adequate training, an event such as the shooting
would occur, and criminal and/or disciplinary proceedings would be brought against the officers
involved, and the stress of that process would cause psychiatric injury. The House of Lords held
that this chain of events was not a foreseeable result of the original failure to provide training.
Employees are therefore only able to claim for psychiatric injury caused by a shocking event
where they can satisfy the rules on claims by secondary victims, or where they can be considered
primary victims. However, see:

Cullin v London Fire and Civil Defense Authority The claimant was a fire-fighter who
suffered psychiatric injury after an incident in which two colleagues became trapped inside a
burning building. The claimant was among those who went into the building to attempt a rescue
that proved impossible; he later witnessed their bodies being carried out. The fire authority
applied to have his action struck out on the ground that the situation was similar to those of the
police officers in White, in that the claimant was a professional rescuer and the risk of psychiatric
injury he had been exposed to was a normal part of his job. The court disagreed, and said that this
approach was too narrow. Relying on remarks made obiter by Lord Goff in White, they said that
a professional rescuer who could establish that they were exposed to danger and the risk of
physical injury, or reasonably believed that they were, even if only in the aftermath of the event,
could qualify as a primary victim. In this case it was at least arguable that the fire-fighter had
been a primary victim and so the action could not be struck out.

Unwitting Agents:
There remains one category of claimant whose position is left unclear in White, namely those
who witness a shocking accident caused by someone else’s negligence and, while they are in no
physical danger themselves, might be considered more than mere bystanders because some action
of theirs physically brings about death or injury to another.

In Dooley v Cammel Laird the claimant was a crane driver who worked for the first defendant.
The first defendant loaned the claimant to the second defendant to work on a ship in the first
defendant’s shipyard. The second defendant provided the claimant with a defective crane sling
which broke, causing heavy material to fly onto the hold of a ship where there were other
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workers. The claimant suffered psychiatric harm, believing that his operation of the crane had
killed or seriously hurt someone. He sued the second defendant in negligence, alleging that they
owed him a duty of care which they breached by providing defective equipment. ISSUE Whether
the defendant owed the claimant a duty to protect him from psychiatric harm? HELD The court
found in Favour of the claimant. The defendant owed the claimant a duty of care, since the harm
was foreseeable. An employer owes their employees a duty of care not to inflict psychiatric
injury by making them reasonably believe they have been the cause of another’s death or serious
injury. In White, the claimants were police officer who had suffered psychiatric injury as a result
of their professional involvement in the Hillsborough disaster. Five of the six claimants had
assisted the injured and had worked to ensure that there was no further to those leaving the
stadium. The sixth claimant had been on duty at the temporary mortuary which had been set up
near the ground. None of the claimants had been physical danger. The court of appeal held by 2-1
that a duty of care was owed to the officers actually present on the ground (not the one at the
mortuary). Lord Hoffmann maintains that there is no such right, and that the cases, all of which
were first instance judgments, were decided on their facts, and before the Alcock control
mechanisms were in place. However, he concedes that there may be grounds for treating
unwitting agent cases as exceptional, and exempting them from the Alcock restrictions, though
the point is obiter since, as Lord Hoffmann points out, the facts of White do not raise the issue.

Hunter v British Coal Corporation the claimant was a driver in a coal mine, who accidentally
struck a water hydrant while maneuvering his vehicle. He went to try to find a hose to channel
the water away safely, leaving behind a colleague, C. When the claimant was about 30 meters
away, he heard the hydrant explode and rushed to find the valve to turn it off, which took about
10 minutes. During that time, he heard a message over the tannoy that a man had been injured,
and on his way back to the accident scene another colleague told him that it looked as though C
was dead. This proved to be the case, and the claimant’s belief that he was responsible for his
colleague’s death caused him to suffer clinical depression. When it became clear that in fact the
accident had occurred because of his employer’s failure to put certain safety features in place, he
sued. The Court of Appeal held that, in order to be owed a duty of care of psychiatric injury, the
claimant would have to have been at the scene of the accident when it happened, or seen its
immediate aftermath; his depression had been caused by hearing about it and that was not
sufficient. The case therefore seems to suggest that unwitting agents may have a claim if they
satisfy the requirements of proximity in space and time.
Other by standers:
The cases make it clear that 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. This approach approves the traditional position in cases such as Bourhill v Young ; the
court held that an ordinary bystander could be expected to withstand the shock of such a sight,
which meant that it was not reasonably foreseeable that the claimant would in fact suffer
psychiatric damage as a result. However, in Alcock, the point was made that there might be very
rare occasions when an incident was so horrific that psychiatric damage to even uninvolved
bystanders was foreseeable, and there a duty of care would arise. The House of Lords gave the
rather lurid and imaginative example of a petrol tanker crashing into a school playground full of
children and bursting into flames.

Proximity :
The third test that secondary victims must pass in order to have a claim concerns proximity,
which in this case means how close they were to the shocking event, in terms of both time and
place. In Alcock, some claimants had seen the disaster from other stands inside the stadium; one
of the claimants was watching the match on a television nearby and when he saw the disaster
begin went to find his son (who had been killed); others saw the tragedy on the television at home
or heard about it on the radio. Alcock established that to succeed in a claim for nervous shock,
the witness must have been sufficiently proximate to the accident, which normally means that
they must have been present at the scene of the accident or its immediate aftermath; hearing it on
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the radio or seeing it on the television will not usually be enough. The House of Lords was not
prepared to specify exactly what the immediate aftermath was, but the interpretation they gave to
the issue is narrower than that advocated in some of the obiter dicta in McLoughlin v O’Brian .
Lord Keith appears to approve of the dicta in the Australian case of Jaensch v Coffey which
stated that the aftermath continues for as long as the victim remains in the state caused by the
accident, until they receive immediate post-accident treatment. McLoughlin was considered to be
a borderline case by Lord Ackner and it was stated that identifying the body of a loved one at a
temporary mortuary eight hours after the accident did not fall within seeing the immediate
aftermath of the tragedy. Unfortunately, later cases have failed to give a consistent picture of
what the „immediate aftermath‟ is:

Taylor v Anovo the claimant in the case suffered psychiatric injury after witnessing her
mother’s sudden death as a result of a deep vein thrombosis – a large blood clot that entered her
lungs. This was caused by injuries she had suffered during an accident at work, three weeks
earlier, and from which she had seemed to be recovering, until she collapsed as a result of the
blood clot. The defendants were her employers, and accepted liability for her death. However,
they would not accept liability for her daughter’s psychiatric injury, because, they said, she had
not witnessed the accident or its immediate aftermath. The claimant argued that the „event‟ that
caused her psychiatric injury should be considered to be her mother’s death, and not the initial
accident. The Court of Appeal rejected the claimant’s argument, and said that the relevant event
was the accident at work; the death was not an event in itself, but a consequence of the initial
event. If the claim was allowed, this would mean that someone would also be able to claim for
witnessing a death that happened months or even years after the initial event, and that was clearly
outside the range of what the House of Lords intended when they laid down the „proximity in
space and time‟ condition in Alcock.
Berisha v stone Superstore Ltd The claimant’s partner was seriously injured at work. By the
time she arrived at the hospital, he was on life support, and she stayed by his side for 36 hours,
and then had to take the decision to allow his life support to be switched off. This caused her to
suffer psychiatric injury but the court refused her claim, on the basis that what she had been
through was „nothing inherently unusual‟. Key factors were that she had not „witnessed the
accident, attended the scene, witnessed a continuation of the scene, nor the immediate aftermath
of the accident, nor did she participate in a seamless take beginning with the accident‟. What
these three cases tell us is that cases on proximity seem to be very fact-dependent, and that the
principles set down in Alcock do not do much to aid predictability. In Alcock, the House made it
clear that merely being informed of the incident by a third party was not sufficiently proximate.
Tan v East London and City Health Authority The claimant was telephoned by a member of
hospital staff and told that his baby had already died in its mother’s womb, and would be
stillborn. He went to the hospital for the birth, which took place around three hours later. He sued
the hospital for psychiatric injury, but the court rejected his claim. It was held that the shocking
event that caused the psychiatric damage was the death of the baby before birth, rather than
seeing it being born dead. The claimant had not witnessed the death itself, but been told about it
over the phone, and therefore was not sufficiently proximate to the event. In Alcock, the House
also had to deal with the question of whether watching an incident on television could be
sufficiently proximate to impose liability to secondary victims for nervous shock, as the
Hillsborough disaster had been broadcast live on television to millions of people. The pictures
did not pick out individuals, as broadcasting guidelines prevented the portrayal of death or
suffering by recognizable individuals. On the facts, the House of Lords did not find that watching
the television broadcasts was sufficiently proximate, though it did not rule out the possibility that
sometimes television viewers could be sufficiently proximate. The House of Lords drew a
distinction between recorded broadcasts and live ones. The former was never sufficiently
proximate to give rise to a duty of care. With the latter they said that a claim was unlikely to arise
because of the broadcasting guidelines that meant that normally even live broadcasts of disasters
could not be equated with actually having been present at the scene of the tragedy. Lord Jauncey
stated: “I do not consider that a claimant who watches a normal television programmed which
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displays events as they happen satisfies the test of proximity. In the first place a defendant could
normally anticipate that in accordance with current television broadcasting guidelines shocking
pictures of persons suffering and dying would not be transmitted. In the second place, a television
programmed such as that transmitted from Hillsborough involves cameras at different viewpoints
showing scenes all of which no one individual would see, edited pictures and a commentary
superimposed.
The reasons that the House of Lord rejected the police officer’s claim in the case of White were
stated below: First, the House of Lord by the majority of 4-1 held that the claimants were not
classified as primary victims. The claimants raised the argument and said that they have a
contract between the chief constable, therefore the employers had a duty to safe guard the
employees from personal injury. The House of Lord denied the argument. Their lordship held
that, the claimants had no better position than normal bystanders to sue in respect of psychiatric
injury simply by virtue of their relationship. However, the House of Lord did agree that the
employers owe a duty of care to the employees where a burdensome workload that stress related
illness is readily foreseeable. In Farley v Skinner, it was held that the claimant would have a
contractual claim in respect of distress arising out a breach where the contract was specifically
designed to protect the claimant from distress. But for psychiatric injury that was not directly
caused by the employers to the employees, the employees will be treated in exactly the same way
as any other secondary victims. Therefore, although the Hillsborough police officers witnessed
the disaster in a very close range, but they lacked the proximity of relationship, which mean that
they do not have a close tie and affection with the victims which make them able to sue the chief
constable.
Foreseeability
When dealing with secondary victims, it must be reasonably foreseeable that a psychiatric injury
might occur to someone in the given circumstances. So, to reiterate, when dealing with primary
victims the standard is foreseeable physical or psychiatric injury, whilst when with secondary
victims the standard is just foreseeable psychiatric injury.

The ‘Egg-shell Skull’ Rule

Secondly, the ‘egg-shell skull’ (as often seen in criminal law) applies to psychiatric injury. In
essence, this means that a claimant’s particular psychiatric injury does not need to be foreseeable
- the mere fact that some psychiatric harm is foreseeable is enough to satisfy the criteria. This
rule can be seen in Brice v Brown, the claimant was particularly susceptible to mental illness due
to a pre-existing condition. As a result of a car crash, she became neurotically obsessed with her
daughter’s safety. She sued for psychiatric injury and lost - it was not foreseeable that a person of
reasonable fortitude would acquire a psychiatric injury from an accident of the nature involved in
the case. However, had some psychiatric injury been foreseeable, then the defendant would have
been held accountable for the full extent of the claimant’s condition - not just that which could be
reasonable foreseen.

The Three-Part Test

The three-part test states that firstly, it must be reasonably foreseeable that the conduct of the
defendant will cause some harm to the claimant. For example, damage or harm were reasonably
foreseeable in Kent v Griffiths but not in Bourhill v Young.
Secondly, there must be some sufficient proximity between the parties. For example, was there a
legal relationship or physical closeness? There was proximity in home Office v Dorset Yacht Co
ltd, but not in Caparo v Dickman.
Thirdly, whether in all circumstances the courts consider it fair, just and reasonable for the law to
impose such a duty of care. It was held not to be fair, just and reasonable to impose a duty on the
police in Hill v chief Constable of West Yorkshire. However, a duty was imposed on the fire
brigade in Capital and Counties plc v Hampshire County Council.
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Rules under psychiatric injuries.
Psychiatric Injuries Must Be Medically Recognized
Not all psychiatric harms are recognized by the law equally. Instead, as a means of separating
legitimate and illegitimate claims the law states that psychiatric injury must manifest in a
medically recognized condition. In the past, legitimate claims were based around the idea of
‘nervous shock’, although nowadays you are more likely to find references to post-traumatic
stress disorder (PTSD) and various other specifically defined mental illnesses.
Post-Traumatic Stress Disorder
This can be seen in Leach V Chief Constable of Gloucestershire Constabulary. The claimant
was working as an unpaid volunteer when, without warning as to the nature of his crimes, she
agreed to act as an appropriate adult for serial killer Fred West during the investigation of his
crimes. As a result, she suffered PTSD (and a stroke). Due to their failure to provide proper
support to the claimant, it was held that the defendant had failed in its duty to support her, and the
claim succeeded.
Pathological Grief
As per Vernon v Bosley, pathological grief (read: really serious grief) constitutes a medically
recognized condition in tort law. The claimant was called to a car accident in which his daughters
died, and suffered from PTSD-like symptoms. The defendant argued that these symptoms were
simply a matter of simple grief, and thus not actionable. The court disagreed - the claimant’s
symptoms were beyond that which might be expected of usual grief.
Personality Disorder
As seen in Chadwick v British Railways Board, the claimant lived nearby to the site of a
serious train crash (with 90 fatalities). He attended as an untrained rescuer, and due to the
traumatic nature of the events he had witnessed, developed a number of personality disorders
(namely, acute neurosis and anxiety) resulting in 6 months of treatment as a psychiatric inpatient.
Trauma-Induced Miscarriage
Although not strictly a psychiatric injury (rather, a physical harm occasioned by psychiatric
trauma), there are a number of cases in which traumatic events have been linked to miscarriages.
This can be seen in Bourhill v Young. The claimant, who was pregnant at the time, went into
shock after witnessing the death of the defendant, who was riding his motorcycle carelessly. She
subsequently brought a case against the defendant’s estate. It should be noted that the case failed
- there was insufficient proximity between the defendant and the claimant, although it still stands
as an example of miscarriage as a medically recognized injury for the purposes of tort.
Unrecognized Psychiatric Harms
As a general rule, sadness, grief or general distress are not covered - they are held to be expected
parts of everyday life. The distinction between actionable grief and anxiety and non-actionable
grief and anxiety can be seen in two cases.
Hinz v Berry The defendant lost control of his vehicle at speed, crashing into a stationery car
and killing the claimant’s husband and badly injuring her children. The courts made a distinction
between the morbid depression that the claimant suffered and ordinary in actionable grief: Lord
Denning "In English law no damages are awarded for grief or sorrow caused by a person's
death. No damages are to be given for the worry about the children, or for the financial strain or
stress, or the difficulties of adjusting to a new life. Damages are, however, recoverable for
nervous shock, or, to put it in medical terms, for any recognizable psychiatric illness caused by
the breach of duty by the defendant."
The idea of ‘suddenness’ should not be taken to mean ‘immediate’. This can be seen in Walters v
North Glamorgan NHS Trust - the claimant’s 10-month-old son suffered negligently caused liver
failure, and died over the next 36 hours. Although the event itself was relatively protracted, this
was held to be sufficiently immediate.
A similar rationale can be seen in Rothwell v Chemical and Insulating Co. The claimants sued
their employer when they discovered that they had developed pleural plaques in their lungs - an
indication that they had been exposed to dangerous levels of asbestos. The courts rejected their
claims for the anxiety caused by the knowledge that they might later develop a more serious
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disorder, because the anxiety had not manifested itself in any diagnosed state. Notably, there was
one claimant who did develop a mental illness as a result of this anxiety, and so surpassed this
hurdle, but the claim failed for lack of foreseeability.
Psychiatric Injuries Must be Caused by a Sudden Event
As a means of controlling the claims made under the heading of psychiatric injury, the courts
have also stipulated that such injury must now be caused by a sudden event. This means that
cases involving ‘slow burn’ illness (such as long-term exposure to a harmful influence) are
unlikely to be recoverable under this heading of damages.
Alcock v Chief Constable of South Yorkshire
The case arose as a result of the 1998 Hillsborough Disaster. In short: various police failings
meant that a large crowd of football supporters were allowed into a crowded, fenced-in terrace at
a Hillsborough football stadium. In turn, this led to a severe crowd crush incident in which 95
people were killed. This was witnessed by a large number of individuals - both in-person and via
TV broadcasts of the disaster as it occurred. In reference to the types of claims which are
recognized by tort, Lord Ackner said the following: "Shock in this context involves the sudden
appreciation by sight or sound of a horrifying event, which violently agitates the mind. It does not
include psychiatric illness caused by the accumulation over a period of time of more gradual
attacks of the nervous system." Thus, in order for a psychiatric injury to be recognized as
actionable in tort, it must be caused by the claimant suddenly seeing something distressing. In
addition to this key principle, this case also provides an outline of the primary and secondary
victim classes.)

Conclusion:
In order for a claim of tortuous liability in negligence to be actionable, primarily, certain
fundamental pre-requisites need to be established in each case respectively. The requirements of
the modern tort of negligence were stated by Lord Wright in, Lochgelly and Coal Co ltd v
McMullan, as being,
i) the existence of a duty of care owed by the defendant to the claimant;
ii) a breach of that duty;
iii) damage or injury caused by that breach of duty. Each aforesaid area must be
examined, and principally established in each separate claim against the defendant, for any
proceedings against the defendant to be successful.
The first task is to identify and define the range to whom a duty of care is owed. Negligence is
essentially concerned with compensating people who have suffered damage as a result of the
carelessness of others. If a duty of care cannot be established and shown to exist in each of the
situations concerned, then the remaining elements of the tort of negligence need not be
recognized.
Over the last century, the modern tort of negligence originated with the House of Lords decision
in Donoghue V Stevenson. This case was a significant keystone in the tort of negligence. It is
famed because of Lord Atkins ‘neighbor principle’ in which he sets out the framework for
determining the existence of a duty of care. To that end, negligence liability is thus based on a
core test known as the ‘neighbor principle’. You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your neighbor. It’s from
this that the tort of injury without impact emanates from under negligence.

Bibliography:
Kidner, R., (2006), Casebook on Torts, 9th Edition. Oxford University Press: Oxford.
Oxford – Dictionary of Law (2006), 6th Edition. Oxford University Press: Oxford.
Rogers, W.V.H., (2006), Winfield and Janowicz on Tort, 17thEdition. Sweet & Maxwell:
London
Elliot, E, Quinn, F (2005) Tort Law.5th ed. Essex. Pearson Education Ltd.
Jones, M, A (2007) Textbook on Torts.8th ed. Oxford. Oxford University Press.

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