Appeal Regarding Claim for Psychiatric Injury Fails
08/04/2021
The Glasgow bin lorry crash in which six people died and a further fifteen were injured after the driver of a bin lorry suffered a blackout at the wheel causing his vehicle to plough into Christmas shoppers in 2014 was one of Scotland’s most tragic RTA’s. The case of Weddle v Glasgow City Council allowed the Court to consider the position of Pursuers who suffered a stand-alone psychiatric injury as a result of witnessing the accident.
Background to the decision
The Appellant, A, was close to the scene of the bin lorry crash. She only became aware of the incident when she saw the lorry pushing another vehicle with which it had collided, travelling at a speed of 5 mph by that time, into the side of a hotel; neither vehicle had come straight towards her, and the closer vehicle finished up some 12 metres away from her; at no time was A at risk of physical harm.
Believing she had simply witnessed a minor RTA, A unintentionally walked towards the main site of the accident and witnessed distressing scenes, including deceased victims lying on the ground. As she came to understand what she was seeing, A became progressively more distraught. Following the incident, A suffered from reoccurring intrusive thoughts, flashbacks, anxiety and depression. A counsellor subsequently diagnosed her with post traumatic stress disorder (PTSD).
A appealed the Sherriff’s decision to grant a decree of absolvitor in her action for damages against the driver's local authority employer (the Defender, D), on the basis that she did not qualify as a primary victim.
The decision
Claiming for psychiatric damage alone has always been a challenge. This is because the Courts must balance awarding a genuine victim compensation and opening the floodgates to a multitude of claims from people who have suffered distress but were not sufficiently connected, either physically or emotionally to the event.
In law, people claiming for psychiatric injury are classified as primary or secondary victims. To qualify as a primary victim, the Pursuer must be directly involved in the incident – either by being exposed to physical injury or having a reasonable fear of suffering a personal injury.
Regarding A’s position, Sherriff McFadyen stated:
In order to succeed in the present case the appellant would require to demonstrate error of law on the part of the sheriff at least to the extent that no reasonable sheriff would have found as he did, ultimately in his finding in fact and in law, at para [377]:
"that the defender's employee would not have reasonably foreseen that his driving at the relevant time would have given rise to the risk of physical injury to the pursuer; and in any event, that the pursuer did not in fact suffer fear of physical injury to herself at the relevant time; that accordingly, the pursuer does not qualify as a primary victim and she cannot therefore obtain damages for any psychiatric injury suffered by her;"
She would also have to demonstrate that he was in similar error in concluding that if she had such a belief it was not a reasonable one.”
Sherriff McFadyen stated that even if A did suffer fear of physical injury, it could not have been regarded as a reasonable one given the vehicles’ direction and slow speed.
The appeal was therefore dismissed.
Comment
Although it was not suggested that A was a secondary victim, it is highly unlikely she would have succeeded in arguing that she was. The test for whether someone is a secondary victim was set out in Alcock v Chief Constable of South Yorkshire Police 1992 1 AC 310 which was one of the many cases to arise out of the Hillsborough disaster where 96 people died following a crush at a football match in 1989. To qualify as a secondary victim, the Pursuer must show:
- There was the required degree of proximity, as in close ties of love and affection between the Claimant and the primary victim, i.e mother and child, husband and wife.
- The incident was witnessed by the Claimant’s own senses, i.e. the Claimant was sufficiently close in time and distance.
- The psychiatric injury arose from a sudden, unexpected shock.
A did not know any of the victims and she did not witness the actual incident. Therefore, the Alcock requirements would not have been met.
It may be time to question whether the conditions to qualify as a secondary victim under Alcock are appropriate with the technology available in 2021. For example, the 2019 Mosque massacre in New Zealand was livestreamed by the shooter on Facebook. If a relative of one of the victims witnessed their loved one’s injury or death via the livestream, under Alcock any claim for psychiatric injury would fail because the Pursuer would not have witnessed the incident “by their own senses”. However, in 1989 when the Hillsborough tragedy occurred, the only medium for witnessing the incident was on television and distressing images could and were censored.
Regarding the requirement that the incident must be witnessed by the Claimant’s own senses, Lord Oliver stated:
“The necessary element of proximity between plaintiff and defendant is furnished, at least in part, by both physical and temporal propinquity and also by the sudden and direct visual impression on the plaintiff’s mind of actually witnessing the event or its immediate aftermath.”
It would be arguable that there is no difference between viewing something live and unedited on social media and witnessing the event in real life. As a result, Lord Oliver’s aforementioned criteria would be satisfied. It is therefore questionable whether the Alcock test is fit for purpose in the modern digital age.
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