The development of liability psychiatric illness

• first only allowed on the ground of foreseeability of a real and immediate fear of real danger

• so, the people that can claimed are very limited

• later, the limitation was widened to include a claim for nervous shock as a result of
witnessing traumatic events involving close family members

• This is to prevent a party from recovering who was not within the area of impact of the
event

• HOL introduced alternative test to the area of impact test - whether the plaintiff falls within
the area of shock

• the principle of reasonable foresight also applied for recovery of damage to property rather
than involving injury to or the safety of a person

• case law recognized that a rescuer could recover when he suffered nervous shock

• only the rescuer will succeed in claiming not the bystander

• The test developed involve proximity of the plaintiff in time and space to the negligent act
or the closeness of the relationship with the party who is present

• the only time that a plaintiff can claimed even though he was not there was at the
immediate aftermath

Restrictions on the scope of the duty

• the House identified a fairly restrictive set of circumstances in which a claim for nervous
shock might succeed

• the proximity of the relationship - the existence of close tie of love and affection with the
victim

• the proximity in time and space to the negligent incident - claim in respect of an incident
that was witnessed or experienced directly

• the cause of the nervous shock - must be the result of witnessing / hearing the horrifying
event

• there was a real need for the law to place some limitation upon the extent of admissible
claims

1. The class of persons whose claims should be recognized

 • love and affection normally associated with persons in those relationships that ought
reasonably may be closely and directly affected by his conduct

• remote relatives and friends can reasonably be expected not to suffer illness from the shock

2. The proximity of the plaintiff to the accident

• it must be close both in time and space

• direct and immediate sight or hearing of the accident is not required

• applied to immediate aftermath as well

3. The means by which the shock is caused

• the shock must come through sight or hearing of the events/ immediate aftermath

• primary victims - present at the scene of the shocking event/injured / at risk of injury

• secondary victims - present at the scene of the shocking event or immediate aftermath with
close relationship

• - can claim as well if you are watching a live event that contravened
broadcasting standards

The primary / secondary victim dichotomy

• the primary victim need not suffer any physical injury or when their safety is being
threatened

• it is sufficient enough that he is present at the event causing the shock and is at risk of harm

Secondary victims
• they are not primary victims but are able to show a close enough tie of love and affection to
a victim

• However, there are certain limit to the secondary victims

- MCLOUGHLIN V O'BRIAN SUPRA

- reluctant to allow the claim as lack of both proximity in time and space to the
incident
• Professional rescuers have been treated as primary victims

- HALE V LONDON UNDERGROUND

• Rescuer can only claim when he is genuine primary victim

• later on, rescuer can claim as a secondary victim however need to fulfil requirements laid
out in Alcock case