My previous-but-one tutor marked assessment for my Open University module on tort law had to be in the form of a blog post. Since it's moderately interesting and this is the closest thing I have to a blog, I reproduce it here for your entertainment. I haven't bothered reproducing the footnotes but there's a case list at the bottom for the interested or bored.

Stop me if you’ve heard this one, but…

A man walks into a bar. Ouch, it was an iron bar.

Donoghue v Stevenson established in 1932 that everyone has a duty of care to their “neighbour”, and if you hurt someone by breaching that duty (perhaps by leaving iron bars around the place) you may be liable in negligence. Not just physical injuries either; the courts held in Dulieu v White in 1901 that a claimant can recover damages if they're involved in an incident and it causes them purely psychiatric harm.

But the judiciary feared the courts could be overwhelmed by litigation, and the 1943 case of Bourhill v Young began their attempts to stem the flow of cases. The result was that if someone suffers psychiatric injury because they see someone else injured (but aren’t themselves endangered), they’re what we now call a “secondary victim”.

The law expects secondary victims to put up with a lot. The ordinary rule is the “eggshell skull” rule: the defendant must take their victim as they find them (Smith v Leech Brain & Co.), so if the victim is somehow frailer than the average person (in the analogy, they have a very thin skull) then tough: the defendant is just as liable. For secondary victims it must be reasonably foreseeable that someone of “ordinary phlegm or fortitude” would suffer psychiatric harm. This brings in judgement calls and the accompanying potential for bias: how much fortitude is “ordinary”? If the claimant is more vulnerable because (as in Bourhill) they are pregnant, the courts have held that to be less than ordinary fortitude, even though most women will be pregnant during their lives. If the claimant has a mental illness, is disabled, or on the autism spectrum, is it fair to measure their psychiatric harm by the standards of an imagined “correct” emotional response?

Forward to the 1980s. The courts again saw “a real need for the law to place some limitation on the extent of admissible claims” and set out further restrictions on secondary victims in McLoughlin v O’Brian. The Hillsborough disaster case of Alcock v Chief Constable of South Yorkshire approved these limitations and gave them a name: the Alcock criteria.

The first limitation is that a secondary victim must have a “close tie of love and affection” with the primary victim of the defendant’s negligence. If they’re their spouse or fiancée, their parent or their child, the court will assume there was such a close tie. Any other relationship and they will have to argue. If they saw their long-term girlfriend die as a result of someone’s negligence, they would have to provide evidence of the strength of their relationship in court. Quite possibly while still grieving.

The second limitation is the requirement to be physically close to the incident at the time it occurred, and the third, to have witnessed it directly with the eyes or ears. Considering the sheer number of people affected by shock from the horrors of Hillsborough, either from elsewhere in the ground, on television, or seeing their relative dead in the morgue hours later, it’s understandable that a judge might want to restrict claims. But if the law accepts in principle that a defendant can owe a duty of care to a shocked witness, what logic is there in saying “but only in the immediate aftermath” or “not from the other side of the ground” or “not on TV”? “You had to be there” is fine when an anecdote falls flat, but it’s no basis on which to decide who is deserving of compensation.

A man walks into a bar. Ouch, it was an iron bar, and the head injury killed him. He was my brother, and the shock of seeing it happen gave me PTSD and left me unable to work. They wouldn’t let me claim against the iron bar guy.

And that’s just not funny at all.

Smith v Leech Brain & Co. [1962] 2 QB 405
Donoghue v Stevenson [1932] AC 562
Dulieu v White & Sons [1901] 2 KB 669
Bourhill v Young [1943] AC 92
McLoughlin v O’Brian [1983] 1 AC 410
Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310