McLoughlin v O’Brian [1983] 1 AC 410

Key point

  • This case laid down the criteria for negligence liability towards secondary victims of psychiatric shock

Facts

  • C suffered mental illness after a car crash in which her husband and 3 children were seriously injured, one child died
  • News of the accident was communicated to her by a friend
  • When she went to the hospital, she witnessed their injuries and suffered severe shock leading to depression

Held (House of Lords)

  • C’s claim for psychiatric injury was allowed
  • C’s psychiatric injury was reasonably foreseeable, she had close ties to the victims, and shock was caused by sight and hearing the immediate aftermath of the accident

Lord Wilberforce

Reasonable foreseeability alone is not enough to establish liability towards secondary victims, these further 3 elements need to be considered (p. 422 – 423):

  1. Class of persons
    • Claimants must have the closest of family ties to the victim: parent and child, husband and wife
    • The closer the tie, the greater the consideration
    • An ordinary bystander cannot claim, Ds cannot be expected to compensate the world at large
  2. Proximity of such persons to the accident in both time and space
    • Shock must come over sight or hearing of the event or of its immediate aftermath
    • To insist on only direct and immediate sight or hearing would be impractical and unjust
    • A person who is expected to come immediately to the scene could be regarded as being within the scope of foresight and duty
  3.  Communication
    • The shock must come through sight or hearing of the event or of its immediate aftermath
    • Shock brought about by communication by a third party is not compensable
    • Whether some equivalent of sight or hearing, e.g. through simultaneous television, would suffice may have to be considered

Lord Bridge

  • Applied Lord Wilberforce’s Ann’s test of prima facie liability when there is foreseeability
  • The reasonable foreseeability test can work solely by itself in determining liability
    • The number of claims and sum of damages likely to be moderate
  • No further limits to liability such as proximity or relationship with the victim are needed
  • There is no need to freeze the law in rigid posture when the law is continuously developing

Commentary

  • While Lord Wilberforce identified and applied the 3 elements necessary for liability to secondary victims, Lord Bridge applied only the reasonable foreseeability test with Lord Scarman concurring
  • In Alcock it was clarified that the 3 elements must be applied alongside the reasonable foreseeability test