12 October 2023

I write this with the sound of “Rescue Me” by Fontella Bass creating a Wigan Casino style all-nighter in my head, only with fewer high kicks, spins and amphetamines. If someone goes to the aid of another person to seek to save them from a dangerous situation (not necessarily at a northern soul nightclub) then they may be considered to be a rescuer. Can they, then, claim for psychiatric injury sustained as a result of their intervention, if they did not suffer physical harm?

Primary victims; Secondary victims; Rescuers.

The progress of the common law on this area has not exactly atrophied, however it has only had what might be described as a trickle of developments since the litigation that followed the Hillsborough stadium disaster from 1989. The Alcock case that came out of Hillsborough described “Primary victims” as those who were directly involved in the incident. They were directly impacted and feared for their safety, although they did not suffer any physical injury. They were either in physical danger of injury, or reasonably believed themselves to be in physical danger. Further, to suffer psychiatric injury from the events must have been reasonably foreseeable.  “Secondary victims” might be described as direct witnesses to the incident that injured another, and, so as to qualify as a secondary victim, as opposed to being an unattached bystander, they must also meet additional criteria. Key in those criteria is that there is a close connection (“a close tie of love and affection”) between the secondary victim and the injured party.

What then, of the rescuer? Presumably they would be a primary victim, if they put themselves in a position of danger. What if they attended after the event, however, witnessing all manner of tragedy and tending to wounds? Leading out from Hillsborough, again, the Frost case provides the authority to date and it is very finely balanced. The issue of rescuers was discussed for police officers who had attended the scene and dealt with the victims and the injured. Of the five judges hearing Frost, two considered that in order to recover damages for psychiatric injury the police officers must have exposed themselves to danger, or reasonably believed that they had exposed themselves to danger. Two other judges considered it an artificial requirement to impose apprehended physical danger on the test, and that it was reasonably foreseeable that someone may suffer from a psychological injury when exposed to such scenes in an attempt to assist. The fifth judge sided with the former, without giving any reasoning. Ultimately, the position therefore remains that in order to qualify for damages for psychological injury, as a rescuer, then there is a requirement to be able to prove that you feared for your own safety.

Are developments likely, in the future? This will inevitably come down to evidence. However, with a growth in recognition within policy that psychiatric and mental issues ought to be given as much attention and concern as physical health issues, it is perhaps increasingly hard to justify the requirement for perceived physical harm in such cases.

Speaking of perceived physical harm, my imaginary northern soul night has moved on to The Triumphs’ “I’m Coming To Your Rescue” involving some eye-watering dance splits. Likely to be real physical injury if I tried that.

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

Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455

Tim Webster, Associate: twe@bto.co.uk / 0141 221 8012