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Monk v PC Harrington Ltd, High Court, 31 July 2008

20 August 2008
The issues

Primary victim – psychiatric harm – rescuer – whether Claimant, who had suffered psychiatric injury as a result of assisting a victim of a construction accident, could claim damages.

The facts

On the 15th January 2004 during construction work at the new Wembley stadium, a temporary working platform, known as a peri-platform was dislodged from the top of a concrete core by a tower crane. The platform fell 60 feet to the ground and hit 2 men working below. One of the men, Mr O’Sullivan, was directly underneath the platform and died at the scene shortly afterwards. The other man, Mr Carroll, sustained a badly broken leg. The First Defendant was a construction company engaged on the Wembley stadium project and had admitted liability. The Claimant was a self-employed foreman, employed by PC Harrington Ltd at the site. He heard that there was an accident on his portable radio immediately after it had occurred and made his was to the scene. He crawled underneath the fallen platform to see if, since he was a first aider, he could help Mr O’Sullivan. There was nothing that the Claimant could do for Mr O’Sullivan, who was gravely injured and he therefore turned his attention to Mr Carroll. At some point the Claimant went back under the platform and knelt next to Mr O’Sullivan and shouted his name to see if he could get a reaction, but he got none. He then went back to Mr Carroll and stayed with him, trying to calm him until the ambulance arrived. Mr Monk suffered from a post-traumatic stress disorder and associated depression and ceased work in March 2005. The issue before the Court was whether Mr Monk fell within the class of people who were entitled to claim for psychiatric injury.

The decision

In cases of “pure” psychiatric illness, the law had restricted the right to recover compensation to Claimants who met certain, limiting, criteria. In the cases of Alcock v Chief Constable of South Yorkshire; Page v Smith; and Frost v Chief Constable of South Yorkshire, the law had drawn a distinction between Claimants who were regarded as primary victims and those classified as secondary victims. Primary victims were entitled to recover damages for psychiatric injury, caused by the Defendant’s negligence, provided only that injury to them was reasonably foreseeable. Secondary victims had to satisfy certain further conditions before they were eligible to recover.

A primary victim was someone directly involved as a participant in the accident causing the injury. There were three situations in which the Claimant’s involvement brought him or her within this category. The first consists of cases where the Claimant was within the actual area of physical danger when the accident occurred and directly at risk of bodily injury or reasonably believed this was so. The second group of cases involved rescuers who went to the aid of others involved in the accident. For rescuers, to be regarded as primary victims must also have been exposed to danger or reasonably believed that they were in danger. The third category was cases where the Claimant was an unwilling participant in the action in the sense that he had been put in the position of being or of thinking that he was about to be the involuntary cause of another’s death or injury and the illness stemmed from the shock to the Claimant of this supposed fact.

Was the Claimant a rescuer?
The evidence was that it was improbable that in rushing to the aid of the injured men, the Claimant had believed that he was putting his own physical safety at risk and, if he had had such a belief, it was not a reasonably held one.

Was the Claimant an unwilling participant?
Mr Monk had been the person ultimately responsible for putting up the platforms. The dramatic effect of the accident had been increased by a belief that he had held that he might have caused the accident. There was however no reasonable basis for such a belief. There was nothing in the evidence to support that. The Claimant’s response was a more basic and non-specific feeling of guilt – that simply because he was ultimately in charge of the platforms, he might somehow be implicated in the accident. This was a genuine anxiety but no more reasonable than his somewhat persistent fears that another accident might happen, for which he might be blamed.

Although no express reference was made as to the reasonableness or otherwise of the Claimant’s belief in Alcock, the Court could not accept that an unreasonable belief was sufficient. It could not be right that a person who genuinely, but irrationally, believed that he had caused an accident could recover as a primary victim when a person present at the scene, who genuinely, but irrationally, believed that he was in danger of death or injury could not do so.

For these reasons, Mr Monk was not a primary victim of the negligent conduct of the crane operator. He was neither a rescuer nor an unwilling participant. He was a secondary victim whose post-traumatic stress disorder was caused by witnessing at first hand the immediate aftermath of a fatal accident but who was not himself directly involved in the accident as a participant. To recover damages he would have to satisfy the control mechanisms imposed to limit recovery by secondary victims. Although he might satisfy two of the three conditions, he did not have the close tie of love and affection for either of the physical victims of the accident, which was a necessary requirement.

Claim dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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