Background
On 15th July 2020 an explosion took place at the Defendant's factory when an employee was lighting gas burners on a cutting machine. The operator sustained relatively minor injuries, but a claim was subsequently brought by his colleague who had witnessed the incident.
Breach of duty was admitted (the explosion was either caused by a defect in the machine or an operator error), the psychiatric harm arising from it was not. The Claimant claimed to be working around 15 metres from the explosion site, although there was some dispute to the exact distance.
Evidence
The Claimant's claim was based on him witnessing an explosion which had 'potentially killed his work colleague', involving a very loud bang and a big flash. When the operator was located he had burns on his hands and cuts to his face. The Claimant stated that he was immediately shocked, an account that was also supported by other witnesses.
When the Claimant saw his GP after the event, he was diagnosed with PTSD. By November 2020 this had reduced to a 'reaction from severe stress'. At the time of the Psychiatric report, this was ongoing but minor with full resolution expected by September 2021 – so an overall prognosis of full recovery in two years.
There was inconsistent evidence around the cause of the Claimant's nervous shock – with one part of his witness statement stating that he was in fear of his own life, but the operator's recollection of the immediate aftermath was that the Claimant was in fear of his life, not his own, stating "I thought you were gone".
CCTV wasn't available having been deleted, but the stills from it showed a moderate explosion, raising a cloud of dust and lifting a metal plate on the cutting machine. The Particulars of Claim concentrated on the reference to the operator being killed but with no mention of concern for his own safety. The evidence in the pleaded case and the account to the psychiatrist matched – the Claimant's worry was for his colleague, not himself.
Legal position – primary and secondary victim
Whether the Claimant was a primary or secondary victim was a key issue in the case. A primary victim was defined in Alcock (see below) as '…involved, either mediately or immediately, as a participant' with a secondary victim '..no more than the passive and unwilling witness of injury caused to others'.
The law treats psychiatric injury when suffered without physical injury differently, making it harder to claim if you are categorised as a secondary victim - where the injury was "attributable to the grief and distress of witnessing the misfortune of another person" – so as not to open the floodgates to a significant amount of claims. There is also the requirement of a foreseeable physical injury arising.
The Defendant argued that the Claimant was not a primary victim and was not located in an area where a person could reasonably perceive themselves to be in danger. If a secondary victim, the law has developed over time control mechanisms to prevent a large class of remote Claimants, leading us to the well-known Hillsborough legislation, Alcock v Chief Constable of the South Yorkshire Police. The first crucial factor established that the Claimant must have a close tie of love and affection with the person killed or injured. The Defendants view was that the Claimant did not have the necessary close tie to satisfy the criteria. In the alternative, if the Court decided the Claimant was a primary victim, the Defendant would argue that there was no evidence that the Claimant reasonably believed his own life was in danger – on both counts the claim should fail.
Outcome
Quantum wasn't a battleground, being agreed at £16,177.87. The Judge, Miss Recorder Cooke, noted clearly the conflict between the two versions presented – fear for himself and fear for his colleague. Whilst the Claimant's witness statement focused on fear for his own life, the incident statements didn't support this and the Judge was more drawn to the contemporaneous evidence.The judge concluded the claimant was not directly in danger. He was therefore a secondary victim and not within the Alcock criteria with close ties of love and affection so the claim failed.
Why this matters
Claims involving psychiatric harm without physical injury are notoriously difficult to defend and often turn on statements and credibility of accounts. Establishing whether the Claimant is a primary or secondary victim is key, and if deemed secondary and not in fear of their own life, there must be close ties between the victim and Claimant for the claim to succeed. In the instant case there was inconsistent pleading between the original incident reports and later witness statements.
A robust approach from the Defendant side is essential, alongside a forensic review of the evidence. Handlers should not forget that cases involving pure psychiatric harm are often very hard to prove on foreseeability, and that the threshold is a high one.
Gary Hoxworth, Claims Director at Verlingue, said: It’s essential that brokers fully understand the circumstances and legal principles behind any prospective claim. Working collaboratively with all parties to ensure a thorough, timely investigation and robust assessment of the evidence is key—especially in more complex or challenging situations.
At Verlingue, we believe that successfully defending claims where appropriate is just as important as settling others early when the evidence supports it. Both approaches play a vital role in managing long-term claims costs and controlling future premiums for our clients.
William Stobart, Associate at DWF, added: This case underscores the importance of clarity in witness evidence and the legal distinction between primary and secondary victims. A detailed, early assessment of foreseeability and proximity can be decisive in defending psychiatric injury claims.
If readers would like further information, they can contact the writers at gary.hoxworth@verlingue.com and william.stobart@dwf.law
