Following the decision of the Court of Appeal in the joined cases of Paul v Royal Wolverhampton NHS Trust, Polmear v Royal Cornwall Hospital NHS Trust, Purchase v Ahmed  EWCA Civ 12 (see Jo Moore’s piece here) there is considerable uncertainty in respect of the criteria for secondary claims resulting in psychiatric damage. Pending the decision of the Supreme Court in these cases, Claimants are still searching for alternative routes to recover for psychiatric damage following the witnessing of traumatic events. The two recognised routes are firstly to establish the Claimant is a primary victim and secondly to establish the Claimant is a rescuer.
In the case of McLoughlin v O’Brian  AC 410, Lord Wilberforce described the position of rescuers as follows:
”5. A remedy on account of nervous shock has been given to a man who came upon a serious accident involving numerous people immediately thereafter and acted as a rescuer of those involved. (Chadwick v. British Railways Board  1 W.L.R. 912 ) ‘Shock’ was caused neither by fear for himself nor by fear or horror on account of a near relative. The principle of ‘rescuer’ cases was not challenged by the respondents and ought, in my opinion, to be accepted. But we have to consider whether, and how far, it can be applied to such cases as the present.”
In Alcock and Others v Chief Constable of South Yorkshire Police  AC 310,Lord Oliver explained the position of rescuers and innocent participators in events as follows:
“So in Chadwick v. British Railways Board  1 W.L.R. 912 , the plaintiff recovered damages for the psychiatric illness caused to her deceased husband through the traumatic effects of his gallantry and self-sacrifice in rescuing and comforting victims of the Lewisham railway disaster.
These are all cases where the plaintiff has, to a greater or lesser degree, been personally involved in the incident out of which the action arises, either through the direct threat of bodily injury to himself or in coming to the aid of others injured or threatened. Into the same category, I believe, fall those cases such as Dooley v. Cammell Laird & Co. Ltd.  1 Lloyd’s Rep. 271 , Galt v. British Railways Board (1983) 133 N.L.J. 870 , and Wigg v. British Railways Board, The Times, 4 February 1986 , where the negligent act of the defendant has put the plaintiff in the position of being, or of thinking that he is about to be or has been, the involuntary cause of another’s death or injury and the illness complained of stems from the shock to the plaintiff of the consciousness of this supposed fact. The fact that the defendant’s negligent conduct has foreseeably put the plaintiff in the position of being an unwilling participant in the event establishes of itself a sufficiently proximate relationship between them and the principal question is whether, in the circumstances, injury of that type to that plaintiff was or was not reasonably foreseeable.”
These cases were distinguished from secondary victim cases by the fact that in the rescuer cases and innocent participant cases the Claimant has been directly involved in the events themselves. In the secondary victim cases by contrast: “the injury complained of is attributable to the grief and distress of witnessing the misfortune of another person in an event by which the plaintiff is not personally threatened or in which he is not directly involved as an actor”.
In the Alcock case Lord Jauncey also referred to the position of rescuers and pointed out that the position of the rescuer was recognised by Cardozo J. in Wagner v International Railway Co., 232 N.Y. 176 , 180:
”Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognises them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer.”
Further Lord Jauncey pointed out that:
“Lord Wilberforce in McLoughlin v. O’Brian  1 A.C. 410 , 419B considered that the principle of rescuers ought to be accepted. This is a particular instance where the law not only considers that the individual responsible for an accident should foresee that persons will come to the rescue and may be shocked by what they see but also considers it appropriate that he should owe to them a duty of care. I do not however consider that either of these cases justify the further development of the law sought by the plaintiffs.”
In the case of Andrew Turton v Clinton Devon Farms Partnership the background was that an employee of the Farm (Kevin Dorman) had been killed when driving a tractor on the farm after his tractor crashed through a hedge and fell five metres onto the lane below with the tractor falling on top of him. Mr Turton was another employee on the farm and he was the first on the scene after the accident and he described the accident and his role in it as follows:
“There was an almighty bang as the tractor crashed onto the road below and the trailer landed on top of it. It was horrifying sight. I was in shock but managed to stop my tractor immediately to rush down to try and help Kevin. I called George via my mobile phone to raise the alarm and so he could call an ambulance and the fire brigade. Where the tractor had gone through the hedge there was now a big hole where I managed to climb through and down to where the tractor had ended up. I climbed down and looked inside the tractor and I could see Kevin was trapped there.”
Mr Turton also described how he reached into the tractor cab and tried to find a pulse, however he found his co-worker lifeless. He waited for the ambulance and fire brigade and then helped by finding chains that could be used to try and move the tractor.
As a result of his involvement in the accident and its aftermath the Claimant suffered shock and the development of acute post-traumatic stress disorder and depression.
HHJ Cotter found that:
“Mr Turton was plainly a participant in the immediate aftermath of the accident. He had just driven past Kevin in the field and witnessed the accident from a short distance away. He headed immediately to the wreckage whilst telephoning Mr Perrott so that the emergency services could be called. As the first person at the scene he reached into the wreckage and tried to find a pulse.”
The Judge explained that:
“Not surprisingly given that the policy of the law should favour rescue, an altruistic person who takes no time to have regard to their own safety when assisting others is not necessarily precluded from recovery as a primary victim if he/she subsequently developed psychiatric injury arising out of their involvement in an incident. There is a second potential route to classification as a primary victim, which is if, objectively, the rescuer exposed him/herself to danger even though they gave no thought to it.”
This reflects Lord Wilberforce’s analysis that:
“…the law not only considers that the individual responsible for an accident should foresee that persons will come to the rescue and may be shocked by what they see but also considers it appropriate that he should owe to them a duty of care.”
The Judge quoted Lord Steyn’s comments in White v Chief Constable of South Yorkshire Police  2 AC 455:
“The law has long recognised the moral imperative of encouraging citizens to rescue persons in peril. Those who altruistically expose themselves to danger in emergency to save others are favoured by the law. A rescue attempt to save someone from danger will be regarded as foreseeable… The meaning given to the concept of a rescuer in these situations is of no assistance in solving the concrete case before the House. Here the question is: who may recover in respect of pure psychiatric harm sustained as a rescuer?”
The Judge therefore found the Claimant satisfied the criteria for recovery for psychiatric damage as a rescuer.
A further issue arose as the Judge had earlier found that the deceased Kevin Dorman was 60% liable for his own death. On this issue the Judge found that the deceased and the Defendant were joint tortfeasors and:
“In my judgment there is no authority to the effect that a rescuer who qualifies as a primary victim cannot recover against a tortfeasor who negligently caused the accident which invited his/her rescue a fortiori cannot recover against a joint tortfeasor. As set out above the appellate Courts have made it clear policy favours rescue. The Courts have found it necessary to impose thresholds upon recovery by rescuers but in the present case the threshold has been met. There would need to be weighty policy reasons to deny a rescuer, who has no relationship with the person injured, recovery for psychiatric injury arising from the rescue. I can see no such reasons. Indeed the only policy consideration which weighs against the existence of a duty is that it impinges upon self-determination. However, I agree with the view of the authors of the Law Commission report that a competing argument is that persons who deliberately or negligently place themselves in danger should foresee the possibility of the consequences of their actions for others (and specifically the need for rescue) and take responsibility for them. In my view absent the policy issues which arise with secondary victims issues of self- determination are insufficient to weigh against the recovery of rescuers who satisfy the threshold test for recovery. Properly considered the policy bar in Greatorex v Greatorex is limited to secondary victims.
Further the Judge found:
“I respectfully adopt the view authors of the Law Commission report that it would be contrary to the principle that the defendant owes a separate duty of care directly to the claimant, and would mean that the claimant was unable to obtain full compensation for his or her psychiatric illness.”
The case illustrates the importance of establishing the route by which a duty of care may be owed, the importance of foreseeability and the importance of distinguishing rescuers and those innocent participators in an accident from secondary victims. The rescuers and innocent participators are primary victims to whom a separate duty is owed; they are not piggy-backing on a primary victim claim in the way a secondary victim is.