Free Employment Advice - Victim classification: Post-Traumatic Stress Disorder

An employee who suffers post-traumatic stress disorder as a result of carrying out instructions given by his employer, without at the same time suffering any physical injury or otherwise coming within one of the exceptions set out in recent case law, will be classified as a secondary victim and thus unable to recover damages in respect of any negligence of his employer in giving those instructions.

K was a road worker who had been instructed to attend urgently at a road traffic accident. When he attended the scene of the accident, he became aware that a body had been burned and crushed in a car. He later became aware that there were four bodies in the car. He alleged that he had developed post-traumatic stress disorder (PTSD) as a result of his experiences at the scene and claimed compensation from his employers.

Decision:

1. K had put forward a classic case of nervous shock. It had not been argued that he had been a rescuer, or exposed to personal danger, or had thought that he was so exposed.

2. The leading cases in this area of law were as follows:

• Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310

• Page v Smith [1996] AC 155

• White (or Frost) v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

3. In these cases, the House of Lords had ruled that a person who had suffered psychiatric damage as a result of witnessing the physical suffering or death of others was to be classified as a secondary victim.

4. Persons who suffered physical injuries or death were classified as primary victims.

5. The concept of “primary victim” had been extended by the courts to cover persons who had been involved in a traumatic incident and who had been afraid for their own safety but who had not in fact been hurt; rescuers who had been at risk of physical injury or who had reasonably believed themselves to be at risk; and persons who had participated in the incident is some way, and believed that they were the involuntary cause of another’s death or injury. All others suffering psychiatric damage as a result of the traumatic incident were “secondary victims”.

6. The House of Lords had acknowledged that the development of this difficult area of law had been influenced by concerns about uncontrollable numbers of claims for psychiatric injury.

7. The law as it had developed had left some persons, who might have suffered psychiatric injury through fault on the part of others, without a right of recovery.

8. Whenever the mechanism of injury causing psychiatric damage was the witnessing of the suffering or death of others, the witness was a “secondary victim” unless qualifying as a primary victim within the exceptions.

9. The concept of the “secondary victim” focused upon the way in which the injury to mental health had occurred, not the identity of the wrongdoer, nor the reason why the witness happened to be at the scene.

10. The crucial issue was the way or manner in which he had received his psychiatric injury. The principles laid down by the Court of Appeal in Hatton v Sutherland [2002] 2 All ER 1, did not affect the rulings of the House of Lords in relation to persons whose mental injury had been caused in consequence of death or injury suffered, or apprehended to have been suffered, by someone else.

11. K was a secondary victim. The action should be dismissed.