Tort A - Nervous Shock and Psychiatric Harm

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What is needed before you can claim for psychiatri

There is a distinction drawn between claims for a medically recognised psychiatric illness and claims for mere grief, sorrow or distress, which afford no remedy. 


Successful claimant smust establish that they are suffering from a medical condition, such as PTSD, pathological grief disroder, or depression. 


You must also prove that a person of 'normal fortitude' or 'ordinary phlegm' would have also suffered the psychiatric injury in the circumstances. 

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The three different types of claimant in psychiatr

1. Claimants who suffer psychiatric injury as a result of having been physically injured by the defendant.

2. Claimants who are put in physical danger, but who in fact suffer only psychiatric injury PRIMARY VICTIMS

3. Claimants who, though no in physical danger themselves, suffer psychiatric illness as a result of witnessing the death, injury or imperilment of another person (the immediate victim) with whom they have a close relationship of love and affection SECONDARY VICTIMS

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Policy concerns?

The floodgates of litigation

Fraudulent claims

Seriousness of psychiatric illness

Interference with rehabilitation

Disproportionate liability


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The law was slow to recognise claims for psychiatric illness, as it was thought that psychiatric illness was imaginary. There was no liability for psychiatric injury if there was no physical injury. 

In this case, the defendant's gate-keeper had carelessly allowed the plaintiffs to drive over a level crossing when a train was about to pass. No physical injury occurred but the plaintiff being driven by her husband suffered severe shock after fearing for her life, but it was decided that there could be no liability for psychiatric illness in absence of physical injury.

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The claimant was working behind the bar in a pub when the defendant negligently drove his horse and van into the pub. The claimant, who was pregnant, suffered psychiatric harm and gave birth prematurely. The court was sympathetic and it was held that if psychiatric harm arises from fear of personal injury caused by the defendant's negligence then a claim could be made.

In this case the courts adopted a more liberal approach, allowing a claim for psychiatric harm where the person had not been physically injured, but had been in harms way. 

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The law was then extended further to allow claimants who had not been in danger, but had suffered psychiatric illness as a result of witnessing a loved one being injured or placed in peril by the defendant's negligence - SECONDARY VICTIMHOOD. 

A pregnant mother accompanied her three children on part of the journey to school and left them to walk the short distance. The children passed out of sigh when an out-of-control lorry came careering down the hill, as the defendant had negligently not put on the handbrake. The mother, afraid for her children's lives, suffered shock which led to a miscarriage, which led to her death. The defendants were held liable, though it was not inteded that this extend that law to those with whom the plaintiff had no relationship of love and affection. 

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The House of Lord held that the mother was not a foreseeable claimant. The would only be able to recover if psychiatric illness was reasonably foreseeable in a person of ordinary fortitude. An ordinary person, it was held, wouold be expected to withstand the rigours of witnessing injury to a stranger. She could not have feared for her own personal safety as she was outside the area of foreseeable physical impact. 

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The Court of Appeal denied recovery to a mother who suffered psychiatric injury when from a window she saw her son's tricycle disappear underneath a taxi and heard the boy scream. The boy was able to claim but the mother was not a foreseeable victim of psychiatric harm and therefore could not claim. 

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A plaintiff who suffered psychiatric illness when his son was involved in an accident could not recover even though he had heard it from some distance away because he had not seen the accident and arrived shortly after its occurrence. 

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The plaintiff's husband and three of her children were involved in a serious road accident, caused by the defendant's negligence. The plaintiff had not witnessed the accident herself as she was at home, but was told by a family friend an hour later that her 17 year old son was dying, her 3 year old daughter had died. She arrived at the hospital and her son could be heard shouting and screaming and her husband and 7 year old daughter were distressed and covered in oil and mud. These events caused her to suffer psychiatric illness and the defendants were held liable. 

The law was extended to cover a sitation where the plaintiff had not seen the accident itself, but had come upon its IMMEDIATE AFTERMATH. 

They did not say what would constitute the immediate aftermath, but it was important that her family remained in the same condition as they had been following the accident. 

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A child's body was found floating in a trench after a prolonged search, but this was held not to be the immediate aftermath

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Negligence of the defendant had caused the plaintiff to suffer psychiatric trauma of losing her baby shortly after the birth. 

It was held that where the claimant has suffered bodily injury as a result of the defendant's negligence, they have no difficulty in allowing recovery in respect of psychiatric illness resulting from their injury. Damages for pain and suffering consequent of their injuries. 

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The Court of Appeal was asked to decide whether a duty of care could arise where the plaintiff had witnessed the destruction of her home as opposed to the injury of a loved one. Her house exploded and burnt down due to the defendant's negligent installment of a central heating system. The plaintiff suffered psychiatric illness when she returned home to witness the blaze. 

It was held that in a situation such as this one, a duty could exist. Other cited examples were, eg Lord Bingham's, a scholar's life work being destroyed before their eyes due to someone's careless conduct. However, the status of this decision remains uncertain. 

Not all property damage could be a claim under this case. THERE MUST BE A SPECIAL RELATIONSHIP TO THAT PROPERTY. 

There have been more control mechanisms implemented since Alcock, and so we do not know if Attia is still good law since it is now more difficult to claim for psychiatric harm. 

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The plaintiff was involved in a relatively minor car accident but was not physically injured. Prior to the accident he had suffered for 20 years from chronic fatigue syndrome. When the accident happened the illness had been in remission and the victim was expecting to return to work. The crash triggered a recurrence of the disease which became chronic and permanent, meaning he would be unlikely to work ever again. The House of Lords overturned the Court of Appeal's decision that the defendant driver was not liable because he could not have foreseen that is negligence would cause the psychiatric injury. 

The House of Lords held that reasonable foreseeeability of psychiatric illness need not be established when physical injury was reasonably foreseeable. 

PRIMARY VICTIMS are those placed in physical danger. Provided physical harm is reasonably foreseeable, it is UNNECESSARY TO ESTABLISH THAT PSYCHIATRIC HARM IS ALSO REASONABLY FORESEEABLE. Danger of physcial injury - psychiatric injury is recoverable.

If the plaintiff could recover for psychiatric illness where they nearly suffered physical harm, it should follow that where they had, by good luck, escaped physical injury, they should not be deprived of that compensation due to good fortune. 

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The Eggshell Skull Rule

Where the defendant suffers hamr more serious than could have been perceived due to susceptibility or an eggshell skull?

MAKES NO DIFFERENCE - AS LONG AS SOME HARM IS FORESEEABLE, THEN ALL THE HARM IS TO BE TREATED AS RECOVERABKE. Because it was foreseeable that some minor harm of a relevant kind would be caused, the defendant would be liable for the FULL EXTENT of the harm that was actually suffered. 

An analogy is made to a person with brittle bones. Even though it is not reasonably foreseeable that that person has brittle bones, they are still able to recover for ALL the harm that they suffer.


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Grieves had developed a psychiatric illness as a result of finding out that he had pleural plaques resulting from being exposed to asbestos by his employer. They were harmless and therefore there was no action for personal injury, as there had not been any.

The presence of the plaques caused Grieves to develop psychiatric symptoms through fear that it might cause him lung disease. He argued that the employer should be liable for the psychiatric harm, even though physical harm had not materialised. The House of Lords rejected this claim, holding that the psychiatric illness had been caused by the POSSIBILITY of an event, and therefore it was not foreseeable that a person of reasonable fortitude would suffer psychiatric illness for fear of future injury. 

They held that Page v Smith should be restricted to cases only where the claimant had been exposed to, but escaped, instant physical harm. 

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If a claimant wishes to qualify as a primary victim, they must establish that they have been placed in IMMEDIATE PHYSICAL DANGER, or at least been put in REASONABLE FEAR FOR HIS OR HER PHYSICAL SAFETY. If this is the csae, the claimant may recover for psychiatric harm, even though the threatened physical harm does not materialise. 

There is a REQUIREMENT OF ACTUAL DANGER (rather than the claimant believing they are in danger when they are not) and THE CLAIMANT'S FEAR FOR HIS OR HER OWN SAFETY MUST BE REASONABLE. 

In this case, the plaintiff alleged psychiatric illness brought on by watching an oil rig explode from a boat 50 yards away. Many of his friends died. He could not reasonably have believed to be in physical danger, and therefore he could not be a primary victim. 

It was said that in order to satisfy primary victimhood in this way, the event must be especially horrifying and shocking, such as watching a school full of children be burned down. 

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There was a serious train crash in London. Mr Chadwick who lived close by went to the scene of the accident and worked through the night giving assistance to the dead and dying, and as he was particularly small, he went into the wreckage himself, witnessing a sea of bodies and horrific scenes. He suffered from PTSD and severe anxiety, where he was previously a cheerful man. The defendants who had caused the train collision were held liable for his psychiatric harm. 

Following Alcock, they argued that this was because he had been a primary victim, placed in the realm of physical injury by being in the wreckage. 

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What is a secondary victim?

A secondary victim is someone who sees someone else being injured and suffers psychiatric illness because of it, eve though they were not themselves in any danger. The courts have been restrictive on when claims for secondary victimhood have been allowed. 

The test for secondary victimhood was massively restricted in the cases resulting from the Hillsborough disaster.

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This case followed the Hillsborough disaster of 1989. Due to negligent crowd control, too many spectators had been allowed onto the terrace and some were crushed against the high fences. South Yorkshire police admitted that the death of 95 spectators and injuries to a further 400 had been caused by their negligence in allowing too many people into the stadium. Claims for physical injury were settled by the police. 

Many psychiatric claims were then brought by grounds of people who had NOT been in physical danger, and were therefore claiming as secondary victims. Some of these were relatives who had witnessed or heard about the death or injury of their loved one in a variety of ways. 

The House of Lords added control mechanisms to the previous reasoning for whether psychiatric illness was reasonably foreseeable. Alcock was a test case similar to 150 others wishing to claim for psychiatric illness. Their Lordships held that none of the plaintiffs could succeed as in one way or another, each of them had failed to satisfy the stringent critera now needed to recover as a secondary victim. 

This case established the ALCOCK CRITERIA

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The Alcock Criteria




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Proximity of relationship

The plaintiffs in Alcock were a ranch of relationships. There were no rigid categoeis defined for relationships for secondary victims to fall into, instead there must generally be:


Such a relationship can be PRESUMED in the case of spouses, parents and children. BUT this presumption can be REBUTTED BY EVIDENCE in appropriate cases. 

Siblings and other relatives, grandparents, aunts, uncles would not normally be regarded as having the requisite closeness of relationship UNLESS they could show that a relaitonship did in fact exist (eg, bringing them up as their own child). Must be proved with evidence that this is the case. Step-parents are not a presumed relationship, but may prove a close tie. A half-sibling was proved in McCarthy v Chief Constable of South Yorkshire Police (1996)

BYSTANDERS HAD NO CLAIM WHATSOEVER, UNLESS the case was EXCEPTIONALLY HORRIFYING - the example given being witnessing a petrol tanker careering into a primary school. VERY RARE that it would be horrifying enough to qualify - McFarlane v E E Caledonia. 

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Proximity in time and space

The various plaintiffs in Alcock had witnessed the injury or death of loved ones in a variety of ways. Some had witnessed it, some on television, some on the radio, some at the mortuary. 

In order to succeed in a claim as a secondary victim, a plaintiff had to show a high degree f proximity to the accident in time and space. Thus the plaintiff MUST WITNESS THE ACCIDENT AS IT OCCURS or must come upon its IMMEDIATE AFTERMATH in a very short space of time. 

Even Mr Alcock, who identified his brother in law eight hours in the mortuary, could not be descirbed as having come upon the immediate aftermath.

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This was a more generous view of proximity in time and space. 

The claimant was a mother whose daughter had been involved in a road accident, the claimant arrived at the scene one hour later and told her daughter had been killed, and then attended the mortuary one hour after seeing her daughter's body badly disfigured. 

This was viewed by Latham LJ as a sequence of uninterrupted events which went to make up the claimant's perception of the tragedy. 

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The claimant's mother had been injured at work due to the defendant's negligence, her employer. Three weeks later after seemingly recovering, she suffered a pulmonary embolism, collapsed and died due to injuries sustained in her accident. Her daughter Crystal witnessed her death and suffered PTSD. The Court of Appeal unanimously held that the secondary victim MUST BE IN PROXIMITY TO THE ACTUAL ACCIDENT ITSELF. 

Even though Crystal had been present for the actual death, because she had not been present at the actual incident she was unable to recover damages. 

If the court had decided differently, she may have been able to recover even if her mother had died years later which would stretch the concept of IMMEDIATE AFTERMATH too far.

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A husband and wife went to hospital and their child was stillborn due to negligent pre-natal treatment. The husband suffered psychiatric injury. But the problem had been caused three-months previously at an appointment where only the wife was present and the husband had therefore not seen the incident itself, he had only witnessed the consequence, and was therefore not sufficiently proximate in time and space. 


Cannot simply be present for the aftermath of consequence as this wil prevent you from being proximate.

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The sudden shock requirement

The psychiatric illness in question, it was held in Alcock, must result from the sudden psychological impact of witnessing a single event or its immediate aftermath, rather than subsequent reflection on an event, or prolonged exposure to distressing circumstances. 

Two of the plaintiffs were rejected because even though they had been present at the ground their perception of the disaster had been gradual. 

The sudden shock requirement was not satisfied by watching on TV because it was a combination of things, watching and being told a relative suffered was not sudden shock.

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The claimant, a father whose son had been injured in a motorcycle accident, had stayed at his son's bedside for 14 days watching his son deteriorate in condition, go into a coma, and then die. The father's claim was denied by the Court of Appeal because his psychiatric illness had not resulted from the sudden appreciation of a horrifying event, as the death had become expected. 

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The claimant was a mother whose baby, following negligent treatment at a hospital, had suffered an epileptic fit leading to a coma and, some 36 hours later, he died in his mother's arms. The Court of Appeal held that the 36 hours during which the claimant had been subejct to trauma could be regarded as a single event to satisfy the sudden shock requirement. 

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No liability where the claimant is merely informed

In Alcock their Lordships affirmed that a defendant who causes harm or imperilment to an immediate victim will not be liable to a claimant who is merely informed about this by a third party. 

However, the person who communicates the news may be liable if the news is broken in a negligently insensitive manner. 

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The defendants sent out a letter warning former patients that they were at risk of having contracted HIV because a health worker had contracted it. The plaintiffs alleged psychiatric illness upon hearing this way. The defendants owed a duty. 

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Perception through own unaided senses

Could the plaintiffs claim if their shock had been triggered by a live broadcase. 

it was held that they could not. 

This was an extension of merely being informed of the accident. Broadcasters had not shown the suffering of recognisable individuals due to their code of ethics. Also the pictures transmitted were from many different viewpoints. Viewers therefore had a hyperreal experience of the events, which no one present would have had. There is zoom, commentary and replays, which make things more traumatic than seeing it first hand, so it is not seeing it through own unaided sense. 

You cannot therefore claim if you're witnessing something through broadcast media, applying to webcams and CCTV. Their Lordships were reluctant to lay down an inflexible rule, holding that there may be exceptional circumstances where a simultaneous broadcast of a disaster would equate with direct perception. But there is no basis to judge what the courts would do if asked to decided on the dispersal of live images. Must be distinguishable from Alcock in some way. 

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Can a claimant claim where the defendant had caused psychiatric illness to a secondary victim by negligently placing himself in danger, or causing self-inflicted harm? Eg, a mother claiming against her son for negligently walking in front of a car? They declined to express an opinion in Alcock but decided it would probably be barred as a matter of policy. 

The defendant, John Greatorex, had been drinking with friends and crashed his friends car driving on the wrong side of the road. He was trapped in the car injured and unconscious when the fire brigade arrived. By pure co-incidence, his father was the leading fire-officer at the scene and suffered psychiatric injury as a result of witnessing his son's injuries and brought a claim against his son, which was denied. 

Since the injuries were self-inflicted, to make him liable to those who witnessed his injuries would be contrary to public policy. It would restrict a person's right to self-determination. A person should be able to choose to incur personal risks without exposing himself to liability. Also, because they were father and son, litigation might be used to aggravate family conflicts. 

The law only provides a remedy for psychiatric injury caused when a loved one is harmed by a defendant who is NOT a family member. 

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The plaintiffs in this case were police officers who had suffered psychiatric illness as a result of their professional involvement in the Hillsborough disaster. 5 of them had assisted the injured and prevented further danger, the 6th had been on duty at a temporary morgue. None were in physical danger and so needed to claim as secondary victims. The Court of Appeal held that they could recover, but this caused public outrage to family and friend who had been refused compensation. It was therefore overturned by the House of Lords saying it was unacceptable to compensate the police officers for simply doing their job when compensation had been denied to the relatives. 

The Court of Appeal had attempted to say that the police were rescuers, therefore affording easier secondary victim claims, but the House of Lords held that:


So, because the police officers could not qualify as primary victims as they had not been in physical danger, and they could not satisfy the Alcock criteria because they had no close ties of love and affection, they could not succeed in their claims as secondary victims. 

Case denied. 

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Prior to White, it was thought that an employee had the right to recover for psychiatric illness cuased by witnessing or fearing injury to fellow workers as a result of an employer's negligence, as in the case:

A crane driver was operating at the docks when, through the fault of his employers, the sling connecting the crane hooks snapped, causing a load to fall on to the ship where his friends were working. The driver suffered psychiatric injury believing he had killed some of his friends. It was held that the relationship between him and his employers was the necessary degree of proximity for his action to succeed.

However, the decision in White has made it clear that no such independent right exists, as an employer's duty to safeguard employees from psychiatric harm is no different from the general duty of care owed by all. 

There is therefore no advantage to be gained by framing it as a case of employer's liability. 

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It was decided that an employer had to properly assess a situation to ensure that employers do not suffer psychiatric harm. If the harm was reasonably foreseeable and would have been suffered by a reasonable person, then a duty of care would be owed. 

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W V ESSEX CC [2000]


Should special treatment be given to claimants who are placed in circumstances, because of the defendants negligence, where they accidentally cause deaht, injury or imperilment of another through no fault of their own?

In this case, an action for psychiatric illness was brought by foster parents against a local authority. The foster parents had four young children and made it clear to the authority that they would not foster a child with a history of sexual abuse, but such a child was placed in theif care and perpetrated acts of indecency against the claimants' children. The parents suffered psychiatric harm and claim, not just because of discovering the abuse but because they had feelings of guilt for unwittingly causing the harm to their children. 

BUT there must be CLOSE PROXIMITY between what the parents allowed and the consequences, and GEOGRAPHIC PROXIMITY. Eg, if parents allow their children on a school trip where something happens they will not be able to claim. 

UNWITTING AGENTHOOD MUST BE LIMITED TO CERTAIN SITUATIONS, but is good for certain claims, being outside primary and secondary victimhood. 

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There is no duty in English law to rescue someone, but what if a rescuer suffers physical injury while resucing someone?

In this case the plaintiff was a police constable on duty in a police station where there werea lot of people in the street. The defendants had left their horses unattended in the street and a boy threw a stone at them causing them to bolt. The plaintiff rushed from the police station to stop them and sustained injuries in the process. Was this reasonably foreseeable by the defendants? The court held that a person who can reasonably foresee an act or omission will imperil someone will also be taken to foresee that it may imperil a rescuer. The defendants were liable for his injuries. 

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The defendant company was engaging in cleaning a well, using a petrol driven pump. The defendant's managing director realised this would create carbon monoxide fumes inside the well,but instructed them not to go down until the next day when the fumes ought to have dispersed, but they had not. The employers went down the well and were overcome by fumes, eventually dying. The plaintiff, a doctor, was summoned to the scene. he tied a rope around his waist and went down the well, but collapsed overcome by the fumes before he resurfaced and they were unable to save him. he died before reaching the hospital. 

It was rejected that a rescuer should be regarded as having caused his or her own loss by having voluntarily accepted the risk of injury. This is because rescues should be encouraged and, provided the rescue was not foolhardy or wanton, a rescue should be reasonably foreseeable. 

It is a matter of policy that rescue attempts should be encouraged and rewarded. A duty may be owed to a rescuer even in circumstances where no duty is owed to the person being rescued, such as in Videan v British Transport Commission, where the stationmaster had a claim but the boy did not. 

Where a defendant negligently imperils himself, a recuer who suffers physical injury WILL HAVE A CAUSE AGAINST THEM.

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A defendant will have a cause of action where what has been put in peril is not a person but PROPERTY, as in Haynes v Harwood and...

Ogwo succeeded as a fireman when he claimaed after being injured trying to save the defendant's property from fire. 

However, in such cases where the property is the object of rescue rather than people, you must ask the question of whether or not it is reasonably foreseeable for the rescuer to intervene and risk his own safety. 

There is no equivalent of the fireman's rule in USA which provides that because members of the emergency services are employed to act as rescuers defendants cannot be liable to them in respect of dangers they are paid to incur. In English law, PROFESSIONAL RESCUERS ARE TREATED IN THE SAME WAY AS ORDINARY RESCUERS 

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Rescuers who only suffer psychiatric harm

Prior to White it appeared that the courts had developed a special approach where rescuers suffered psychiatric harm, the leading case being Chadwick v the British Transport Commission where the defendants were held liable for his psychiatric harm following his rescue attempts. 

However,the House of Lords made it clear in White that rescuers now had to satisfy the narrow definition of primary victims, being in direct physical danger, or bring their claim as secondary victims and satisfy the Alcock criteria. 

This is because it is difficult to decide what a rescuer is. Would this apply to a bystander who only offered trivial assistance. It may also produce unfair results, as the Court of Appeal decision which was overturned by the House of Lords in White proved. 

The House of Lords held that Chadwick was differentiated from White because Chadwick had been within the range of foreseeable physical injury which made him a primary victim, rather than a secondary victim as originally believed. 

The House of Lords have effectively closed the door on future claims by rescuers who suffer psychiatric harm but have not been placed in physical peril. 

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Reform of the law of psychiatric illness?

The development of the law of psychiatric illness suffers from a lack of coherence and raises moral problems. The rules developed in Alcock and White seem to deny liability to many genuinely deserving claimaints. 

The Law Commission has recommended getting rid of all control mechanisms with regard to secondary victims apart from the close ties of love and affection. But the decisions have been made in policy rather than logic. Any changes seem unlikely. The Government recommend that the courts fix it rather than statutory intervention, but the courts state that substantial development of the principles should be left to Parliament. It seems neither is currently prepared to undertake the major reforms needed in this area of law, and so it is left to modest development from the courts. 

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