Three is the magic number

Stringent criteria ruling the law on psychiatric injury do not allow for cases to be judged individually. Alan Eadie says that worthy cases may not be getting the justice they deserve

If the cases stemming from the horrific events of the Hillsborough disaster brought a degree of clarity to the law on recovery of compensation for pure psychiatric harm – by defining criteria or ‘control mechanisms’ for the types of claim that the courts would be willing to entertain – it was at the expense of denying some victims the right to pursue claims on seemingly arbitrary grounds. There have been two recent employers’ liability cases highlighting the thin line between who gets to claim and who does not.

To set the scene, it is necessary to summarise briefly the current position on claims for pure psychiatric injury. The starting point is to consider whether the claimant is a primary or secondary victim.

Defining primary victims is the easy bit. A primary victim is someone who, although they do not suffer physical injury, is at least within the range of foreseeable physical injury. It is a person sufficiently close to the events to have their personal safety threatened or someone involved to the extent of being a direct participant and not just a mere bystander. An obvious example is a passenger in a car involved in a collision who walks away without a scratch.

Defining secondary victims is somewhat harder. A secondary victim is someone whose personal safety is not threatened, but who suffers psychiatric injury as a result of either fear for the safety of others or the trauma of witnessing a harrowing event. As events such as and 11 September have shown, in the TV and internet age the number of people who can witness and potentially be affected by the graphic media coverage of accidents and disasters is limitless. It is for this reason that sometimes arbitrary and unjust control mechanisms have had to be put in place to restrict the number of admissible claims from secondary victims.

A secondary victim must satisfy three requirements. First, they must have close ties of love and affection with the person who suffers injury or death in an accident attributable to negligence. Second, they must have been present at the accident or on the scene in its immediate aftermath. And third, the psychiatric injury must have been caused by direct perception of the accident or its immediate aftermath and not upon receiving it second-hand.

All three requirements must be met so that, to take examples from the Hillsborough incident, some claimants who were close relatives of victims and had watched the disaster unfolding on television failed because, although they met condition one, they could not satisfy conditions two and three. Other claimants who were at the game, thus meeting conditions two and three, failed because they did not have a sufficiently close relationship with any of the victims and therefore failed to meet condition one.

In the recent case of Keen v Tayside Contracts (Court of Session, 26 February), the claimant, who was the foreman of a team of road workers, was instructed to attend the immediate aftermath of a road traffic accident and to assist the emergency services in setting up a traffic diversion.

While at the scene of the accident, Rory Keen became aware that one of the vehicles still contained the crushed and burned bodies of four of the victims. He claimed that, despite explaining to his supervisor that he had no training and no stomach for the situation and requesting that he be allowed to leave, he was ordered to remain at the scene to help out. As a result of the incident, Keen developed post-traumatic stress disorder (PTSD), but rather than directing a claim against the party responsible for the road accident, he sued his employers for compensation on the basis that his psychiatric injury had resulted from their failure to provide him with a safe system of working.

The judge in that case, Lady Paton, ruled that Keen was a secondary victim and therefore subject to the control mechanisms specified above. That meant having to dismiss Keen’s case because he could not demonstrate a close tie of love and affection with any of the victims. His case failed, despite having all the ingredients of a stateable claim.

This demonstrates the sometimes unjust and arbitrary nature of the law in this area. It is almost inconceivable that an employer who forced an employee to perform a task that might foreseeably cause them injury would be able to escape liability, if that injury happened to be physical rather than psychiatric.

In support of her decision, Lady Paton explained that to allow Keen’s claim would open the door to a flood of claims from emergency services personnel required to attend the scenes of accidents. It is difficult, however, to see why that should be the case. A professional rescuer would still have to be able to show, just like Keen, that they were exposed to foreseeable risk of psychiatric injury, as distinct from shock, upset, revulsion and other normal human emotions. That will never be an easy test to satisfy – in Keen’s case, it could only have been met on the slightly unusual basis that he had specifically and repeatedly made it known to his employers that he was having difficulty coping with the situation and had asked if he could leave the scene, but been told to stay.

In another recent case in this area of the law, Salter v UB Frozen & Chilled Foods Limited (Court of Session, 25 July), the claimant, a forklift truck operator, sought damages from his employers for psychiatric injuries sustained following an accident at work on 8 June 1990 that had resulted in the death of a work colleague. The victim and another employee were carrying out a stocktaking exercise in a cold store that involved them being lifted in a cage mounted on the claimant’s forklift truck, which moved along beside rows of pallets. When the stocktakers reached the highest level of pallets, they had to duck from time to time to avoid contact with the roof beams, but the claimant could not see them and relied on instructions shouted to him. While performing this operation, the claimant felt the forklift shudder and it transpired that his colleague had struck his head against a cross member at the top of the racking on which the pallets were stacked, fatally injuring himself. The claimant returned to work on 25 June 1990, having agreed with his employers that he would not work in the cold store. In October 1995, the claimant was persuaded to work in the cold store again, but he subsequently suffered a nervous breakdown, following which he never returned to work.

The claimant raised proceedings in January 1997, stating that his employers should have known that there was a risk of serious or fatal injuries to stocktakers, to which he might be a witness, and that there was a risk he could blame himself and consequently suffer psychiatric injury. He also claimed that, because he did not initially appreciate the seriousness of his injuries, his claim was not time barred, or even if it was the court should exercise its discretion in favour of allowing it to proceed. His employer sought dismissal on the basis that, in a nervous shock case caused by witnessing the death of another, damages were only recoverable if the claimant was either at risk of physical injury (or reasonably believed themself to be) or if they fulfilled the secondary control mechanisms mentioned earlier. The employer argued that the claimant failed to meet these conditions and that, furthermore, his claim was time barred.

In refusing to dismiss the case, Judge Gordon Reid QC took the view that, in spite of not being at risk of physical injury, the claimant was not a secondary victim at all, but a primary victim by virtue of having been actively involved (albeit without blame) in the accident that led to his colleague’s death. The judge also held that it was at the very least arguable that psychiatric injury was, in the circumstances, reasonably foreseeable. On the time bar point, the judge considered that, bearing in mind the pursuer had initially considered himself to blame for the accident, it would not have been reasonably practicable for him to have become aware until after his breakdown in 1996 that he might have a right of action of damages against his employers, and that his injuries were sufficiently serious to make that action worth pursuing.

The crucial ingredient in Salter was the fact that the claimant had actively participated in the accident, even although he did not actually witness his colleague sustaining the fatal injury. In Keen, the fact that the claimant had been forced to actively participate in the aftermath of the accident was not quite enough, and his case might be seen as an example of the rough justice that can arise when lines are drawn by the law.

Alan Eadie is a senior associate in the insurance litigation team at Dundas & Wilson