Vicky and her lover, Lou, were crossing the

Vicky and her lover, Lou, were traversing the route on a prosaic crossing when Lou was hit and killed by a auto being negligently driven by Frank. The auto missed Vicky by inches. Since the incident Vicky has had frequent incubuss and has been unable to return to work.

Andy, a police officer policing the country, witnessed the incident and went to seek to assist Lou, but rapidly realised that Lou was already dead. This was Andy ‘s first twenty-four hours back at work following six months retrieving from psychiatric unwellness caused by the distressful nature of his occupation. As a consequence of seeing Lou ‘s hurts Andy has now suffered a return of the psychiatric harm which appears to be lasting.

Bubbles, a civilian worker in constabulary traffic control, was watching a Television proctor which showed the route as the incident occurred. Bubbles recognised Lou as her hubby whom she had non seen since the twenty-four hours, six months before, when he had left her and gone to populate with Vicky. Bubbles had ever believed that, one twenty-four hours, he would return to her. She has suffered post traumatic emphasis upset since the incident.

Advise Vicky, Andy and Bubbles of their rights of action in the civil wrong, if any, and against whom.


The first affair that Vicky must turn out in order to set up Frank’s liability to her is that she suffered from a recognized psychiatric unwellness. In kernel, this means any status that is medically recognised. This is to be ‘distinguished from daze, fright, anxiousness or heartache which are regarded as normal effects of a distressful event and for which amendss are non awarded.’ [ 1 ] Vicky will necessitate adept grounds from a qualified medical professional that she has suffered from such an unwellness.

In order for Frank to owe Vicky a responsibility of attention in relation to her psychiatric harm, Vicky must set up that she was foreseeably and straight involved in the event which was caused by Frank’s carelessness. On the facts, this will non show much of a hurdle for Vicky: she was traversing a prosaic crossing and Frank’s auto missed her by inches.

Although, at first sight, it appears that Vicky was a secondary victim of Frank’s carelessness, it is arguable that she was in fact a primary victim. This is because, by being lone inches off from Frank’s crashing auto, it is extremely likely that she was within the scope of foreseeable physical hurt. In other words, she was really imperiled by Frank’s carelessness. Following Page v Smith, [ 2 ] therefore, Vicky will non hold to turn out that her psychiatric unwellness was a foreseeable consequence of Frank’s carelessness.

It is ill-defined whether Vicky’s incubuss and absence from work have been a effect of her physical imperilment, or of her witnessing the decease of Lou. There is a split of authorization on the inquiry of whether Vicky must hold suffered psychiatric unwellness as a consequence of fright of physical hurt, as opposed to the daze of seeing a loved one dice. On one position, the psychiatric unwellness must originate ‘from a sensible fright of personal hurt to oneself’ . [ 3 ] The other position, nevertheless, is that all that is required is for the claimant to turn out that they were really within the zone of physical hazard, irrespective of whether they were cognizant of this at the clip, or of whether their psychiatric unwellness was a direct consequence of such consciousness. In the instance of Young V Charles Church, [ 4 ] the claimant saw his work co-worker dead after being electrocuted. The country environing the claimant had burst into fires. He suffered nervous daze, and claimed amendss on the footing that he was a primary victim. The Court of Appeal ruled in his favor on the footing that he was within the country of physical danger. This was despite the fact that he had non been cognizant of this physical danger until after it had occurred. Furthermore, his instance had been that he had suffered psychiatric unwellness non as a consequence of any fright for his physical safety, but as a consequence of witnessing the wake of the incident which killed his co-worker. This opens up a loophole for Vicky if her unwellness did non ensue from any fright for her physical safety.

For the grounds set out above, it hence seems that, capable to her being able to turn out that she suffers from a recognized psychiatric unwellness, Frank will be apt to Vicky.


Andy is a secondary victim: he was ‘no more than a inactive and unwilling informant of hurt to another’ , [ 5 ] i.e. he was ‘in the place of a witness or bystander’ , [ 6 ] and non straight involved in the accident. He will hence hold to fulfill a figure of ‘proximity requirements’ , in add-on to the demand of sensible foreseeability, in order to demo that Frank is apt.

The demand which poses a job for Andy is the demand that there must be a close emotional tie between the claimant and the victim. Such a tie will be rebuttably presumed in the instance of parental and bridal relationships. In order to set up a responsibility, Andy will either hold to turn out that there was a close emotional tie [ 7 ] between himself and Lou ( which does non look possible on the facts ) [ 8 ] , or he will hold to turn out that ‘the fortunes of [ the ] calamity happening really near to him were peculiarly horrific.’ [ 9 ] This 2nd possibility besides does non look assuring on the facts. In order to go through this hurdle, Andy must demo that the sheer horror of the clang was such that the emotions of any informant would be profoundly affected. [ 10 ] This is a high threshold. Although Owens v Liverpool Corporation [ 11 ] lent some support to the position that a bystander could retrieve ( after seeing a casket overturned at a funeral emanation ) , this was disapproved in Bourhill v Young, [ 12 ] where the House of Lords rejected a claim by a adult female who had suffered nervous daze as a consequence of an accident in which the suspect motorcyclist was killed. The adult female, like Andy, was non related to the deceased, and their Lordships held that it was non moderately foreseeable that a individual of normal fortitude would hold suffered nervous daze. It is highly improbable that a tribunal would keep that Andy, as a constabulary officer, would non be in the same place as the claimant in Bourhill. Indeed, policy considerations associating to the proper function of the constabulary would militate against such a decision even further.

Andy’s preexistent psychiatric unwellness is merely relevant to the inquiry of the extent of the psychiatric hurt. In other words, should he be able to set up that Frank is apt to him, Frank will be apt for the full extent of his psychiatric hurt in line with the ‘egg shell skull’ rule. [ 13 ] But this does non change the fact that Andy will foremost hold to set up that Frank owes him a responsibility of attention in the first topographic point. The trial for this is whether the psychiatric unwellness was a moderately foreseeable effect of the tortfeasor’s breach of responsibility. [ 14 ] In order to set up this, Andy must demo that a police officer with a usually robust fundamental law would hold suffered some psychiatric harm as a consequence of seeing the accident. This seems inherently improbable, for the grounds discussed above.

Therefore, it seems that Frank does non owe Andy a responsibility of attention, and so is non apt to Andy.


Like Andy, Bubbles is a secondary victim. As such, Frank can non be taken to owe her a responsibility of attention unless she passes the ‘proximity requirements’ set out in Alcock, [ 15 ] viz. the demands of propinquity of relationship, propinquity in clip and infinite, and propinquity of perceptual experience. Unlike Andy, nevertheless ( who merely fails to fulfill the propinquity of relationship demand ) , there are possible jobs for Bubbles under all three limbs of the Alcock trial.

First, although Bubbles is Lou’s hubby, that does non needfully intend that she automatically satisfies the demand that the nature of the relationship between the primary and secondary victim be ‘sufficiently close’ . This is because, although there is a given that spouses will be sufficiently near, this given is rebuttable. This means that clear grounds against the intimacy of their relationship may be adduced in order to refute, or negate, the given.

In Bubbles’ instance, Lou had left her to populate with Vicky, and Bubbles had non seen Lou for six months prior to the twenty-four hours of the accident. This may good be sufficient grounds to refute the given and show that Bubbles and Lou did non in fact have ‘a close tie of love and affection’ . Although Bubbles may good hold believed that, one twenty-four hours, Lou would return to her, this is non needfully sufficient under the rigorous position that the tribunals take.

Second, there are possible troubles for Bubbles with respect to the demand that she be sufficiently proximate in infinite to the incident. The demand that she be sufficiently proximate in clip raises no troubles, since she watched the accident as it occurred through the telecasting proctor. It has been established that a claimant demand non literally be at the scene of the accident at the clip it occurs. Therefore, a female parent who ran 100 paces from her place to see the unconscious organic structure of her boy, [ 16 ] and a adult male who arrived place proceedingss after a gas detonation had killed his three kids, [ 17 ] were both able to retrieve amendss for psychiatric unwellness. But this does non assist Bubbles, because she was in a control Centre which was presumptively some distance off.

This leads on to another failing in Bubbles’ instance, viz. that there was a deficiency of propinquity of perceptual experience in her instance. Proximity of perceptual experience requires that the psychiatric hurt suffered by the claimant be a consequence of straight seeing or hearing the incident or its immediate wake. In Alcock, [ 18 ] the House of Lords held that relations of victims involved in the Hillsborough catastrophe who had seen the events on telecasting were non to be treated the same as relations who had a direct perceptual experience of the events, although Lord Ackner was prepared to permit that there might be exceeding fortunes in which a responsibility of attention may originate to secondary victims who had perceived the catastrophe through their telecastings. Lord Wilberforce was besides unfastened to this possibility in the instance of McLoughlin V O’Brian, where he said ‘Whether some equivalent of sight or hearing, e.g. through coincident telecasting, would do may hold to be considered.’ [ 19 ] One circumstance which may let for a perceptual experience through telecasting to be sufficiently proximate may be where, unlike in relation to the relations watching the Hillsborough catastrophe unfold, the secondary victim, although watching the incident through the medium of telecasting, is able to place the primary victim. This is evidently the instance in relation to Bubbles, and this opens up a chance of successfully pleading this at test.

Another cardinal difference between Bubbles’ fortunes and those of the relations watching the catastrophe on the telecasting in Alcock relates to the grade of perceptual experience. In Alcock, the informants merely perceived a generalized pandemonium, and were non explicitly cognizant of any direct hazard that was confronting their relations in the bowl. Bubbles, on the other manus, was obviously cognizant that the victim of the hit was Lou. The instance of Hambrook v Stokes Bros, [ 20 ] in which the Court of Appeal allowed a adult female to retrieve amendss where the accident in inquiry had taken topographic point out of her sight around a corner, may hence be helpful to Bubbles, since it suggests that a sensible fright for the life or safety of a loved one is sufficient in such a instance. But so the inquiry arises: was Bubbles’ post-traumatic emphasis upset caused by the daze of seeing Lou involved in the incident, or the heartache and hurt that followed from gaining that Lou had been killed? This is non needfully an unsurmountable trouble for Bubbles, nevertheless, since it has been held [ 21 ] that the initial daze need merely be one cause of the psychiatric status. So provided that Bubbles can turn out that the daze of seeing Lou was at least one cause of her post-traumatic emphasis upset, she should be able to set up sufficient propinquity of perceptual experience. There is deficient information on the facts to province this with any certainty.

The decision in relation to Bubbles, hence, is less clear than in relation to Vicky and Andy. Whether she can fulfill the propinquity of relationship demand depends on whether there is sufficient grounds to refute the given of ‘a close tie of love and affection’ that arises by virtuousness of her matrimony to Lou. On the grounds, it looks like there likely is adequate grounds to refute this given. Bubbles besides likely fails to unclutter the hurdle of propinquity infinite, since she was non present at the scene of the accident or its wake. Finally, it may be that she is able to fulfill the propinquity of perceptual experience demand, capable to the cautions outlined supra. On balance, nevertheless, and taking into consideration the by and large restrictive attack which the tribunals have taken in relation to claims for psychiatric unwellness, Bubbles will likely non win in set uping that Frank owed her a responsibility of attention.


LUNNEY, Mark and OLIPHANT, Ken. Tort Law: Text and Materials. Oxford, Oxford University Press, 2000

Westlaw UK ( online )

Halsbury’s Laws of England ( online )