Rescuers are in a less favoured position since the distinction between primary and secondary victims has been clearly enunciated. In Page v Smith (1996), where the claimant was actually involved in a car accident and, as such, could be classified as a primary victim, he suffered no physical injuries as a result of the impact, but was held by a majority of 3:2 by the House of Lords to be able to claim damages for psychiatric injury. The House of Lords emphasised the fact that certain control mechanisms are necessary to limit the number of claims for psychiatric injury where the claimant is a secondary victim, but that these mechanisms have no part to play in cases where the claimant is a primary victim. Thus, for example, the need to establish that it must have been foreseeable to the defendant that the psychiatric injury would have been suffered by a person of normal fortitude is not relevant in the case of primary victims. In the present case, the claimant had experienced an exacerbation of the condition known as ME (myalgic encephalomyelitis) and suffered a relapse in this condition as a result of a minor road accident.
When the appeal in the Frost case was heard in the House of Lords under the name of White v Chief Constable of South Yorkshire (1999), the opportunity was taken to explore, yet again, the boundaries of liability for psychiatric injury. The respondents had been present at the Hillsborough football stadium disaster in 1989, and were serving officers in the South Yorkshire Police Force. The tragedy had been caused by the negligence of a senior officer in the force. All of the respondents were claiming damages for psychiatric injury, contending that their role as both rescuers and employees of the police force put them in the position of primary victims, according to the classification in
Alcock. The legal positions of both rescuers and employees in relation to claims
The majority in House of Lords took the view that, although all of the appellants were more than mere bystanders, as they were on duty and assisted in the aftermath of the tragedy, to recognise their claims for psychiatric injury would expand substantially the boundaries of liability. By a majority of 4:1, it was decided that to allow employees, by virtue of their employment positions, to claim damages for psychiatric injury as ‘primary’ victims of injuries caused by their employer to third parties would not be ‘fair, just or reasonable’. It was pointed out that the law denied redress to other groups who had suffered psychiatric harm as a result of the Hillsborough and who were even more deserving of compensation, and it would not be fair to single out police officers for special treatment.
By a majority of 3:2, it was decided that it would not be right to allow rescuers a position of special privilege if they had not been exposed to personal danger of physical harm in the course of the accident occurring. There were two reasons why rescuers should not be given special treatment by the law – first, there was a problem in defining who was a rescuer and who was simply a bystander; and, secondly, it would offend notions of distributive justice to allow rescuers particular privileges.
The law which had developed since Alcock was reviewed and the control mechanisms established in that case were carefully considered by the House of Lords. Relevant policy considerations were outlined, which were broadly similar to those discussed in McLoughlin v O’Brian (1983). These included: • the difficulty of distinguishing between acute grief and psychiatric injury; • the unconscious effects of bringing claims which could interfere with the
process of recovery and rehabilitation;
• the likely increase in claims, which would be the result of allowing the law in this area to expand;
• the fact that the burden of liability on defendants could be disproportionate to the tortious act.
The House of Lords acknowledged that, since the Alcock case, the search for coherent principle in this area of law had been abandoned, and that what was necessary now was to approach each case in a practical way, in order to achieve fairness for each individual. The appeal was allowed and the officers were denied remedies.
An earlier example of this practical approach can be found in Young v
Charles Church (1997), in which the claimant’s claim for psychiatric injury
failed at first instance in negligence and breach of statutory duty. He was found to have been only a secondary victim. He was employed on a building site and was erecting scaffolding with two workmates. He handed a long scaffolding pole to one of the other men and turned away to pick up another pole. As he was doing this, he heard a loud bang and a hissing sound when
his workmate touched an overhead electric cable with the pole. The claimant realised immediately that his workmate had been killed and saw the ground onto which he had fallen bursting into flames. He ran for help to an office 600 yards away. When he returned to the scene of the accident, an ambulance had already arrived. As a result of what he had seen and heard, the claimant suffered a psychiatric illness. However, the Court of Appeal held that he could recover for breach of statutory duty under reg 44(2) of the Construction (General Provisions) Regulations, which were held to give protection to employees from the kinds of injuries which can be foreseen as likely to be caused by dangerous electrical equipment. These injuries included nervous shock.