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Harrhy v Thames Trains Limited, High Court, 13 July 2003

16 September 2003
The issues

Psychiatric injury – Alcock v Chief Constable of South Yorkshire Police – post-traumatic stress.

The facts

The Claimant was a Senior Driver Standards Manager employed by Thames Trains Limited. On 5th October 1999 the Paddington rail crash occurred. Immediately after the disaster the Claimant was appointed Rail Operator Liaison Officer and was told to attend the accident site as Thames Trains representative. He was there for long hours the day after the accident and on a number of the days that followed. He claimed that his duties obliged him to enter burnt out carriages, view corpses and see the aftermath of the crash close at hand. As a consequence he alleged that he developed depression linked with symptoms of post-traumatic stress disorder. He brought an action against Thames Trains alleging that they were negligent in failing to provide him with a safe system of work, to provide training to him before requiring him to undertake the task or to provide psychological support and counselling after it was over. The Defendant applied to strike out. The Master allowed the claim to proceed. The Defendant appealed to the High Court Judge.

The decision

1. In McLoughlin v O’Brien, Alcock v Chief Constable of South Yorkshire and Page v Smith, the House of Lords approved the following principles:-

(a) Those who suffered injury involving shock were to be looked at in two categories, primary victims (those directly involved in the accident and within the range of foreseeable physical injury) and secondary victims (those in the position of spectators or bystanders).

(b) Secondary victims only qualified for compensation if they passed the specific control tests, namely that they were bound to the persons whose injury or imperilment they witnessed by close ties of natural love and affection, that they were close in time and space to the original injury or imperilment, and that they witnessed the same by means of their own senses.

2. In Frost, the Court was asked to consider the claims of police officers who had been involved in the immediate aftermath of the Hillsborough Stadium disaster as against their employer. In Frost Lord Steyn pointed out the fact of an employer relationship was itself no reason for allowing an employee to recover damages for a psychiatric injury in circumstances in which he would as a secondary victim fail to overcome the Alcock controls. Lord Steyn and it appeared Lord Hoffman both considered Mr Walker in Walker v Northumberland County Council to be a primary victim and not a secondary victim. There were doubts as to whether Walker survived Frost. Lord Hoffman appeared to approve Frost but at the same time had warned that it was not legitimate to take the easy step of extending employers liability from physical injury to psychiatric injury without looking first to see how that proposed extension fits with other cases in which liability exists or in which it has been denied. The categorisation of those claiming to be included as secondary victims was not closed and was a concept still developing in different factual situations – see W v Essex County Council.

3. It was open to a Judge trying this claim to prefer to follow Walker and it was at least arguable that there was nothing in anything the House of Lords had said since 1995 that had made Walker bad law. The Master was correct therefore not to strike out this claim.

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