MCFARLANE v. E.E. CALEDONIA LTD.

For psychiatric injury caused by fear of personal injury, foreseeability is objective. The question is what a reasonable defendant in that position should have foreseen, including whether a person of ordinary fortitude would reasonably fear for their life. A subjective fear, however understandable, does not answer that question. Participants in danger, persons who reasonably believe themselves endangered by a sudden event, and rescuers may fall within recognised categories, subject to reasonable foreseeability. A mere bystander requires additional proximity, including nearness in time and place and a close relationship of love and affection. Liability was not foreseeable where a rescue vessel was never in actual danger, the claimant’s involvement was limited, and no person of ordinary fortitude was foreseeably at risk of psychiatric injury.

A worker on the support vessel Tharos witnessed the catastrophic fire on the Piper Alpha oil platform and suffered psychiatric injury without physical injury. The defendants were assumed to have negligently caused the explosion and to be liable to persons on the platform.

On a preliminary issue, the Queen’s Bench Division held that the defendants owed the claimant a duty to avoid causing psychiatric injury. The defendants appealed. The issues included whether the claimant was a participant, rescuer or bystander, and whether psychiatric injury to a person in his position was reasonably foreseeable.

Lord Justice Stuart-Smith gave the leading judgment. Lord Justices McCowan and Ralph Gibson agreed. The appeal was allowed.

1. Objective foreseeability. The relevant question was what a reasonable owner and operator of the platform should have foreseen from the facts known or which ought to have been known. This included whether a person of ordinary fortitude in the claimant’s position would reasonably fear for his life and suffer psychiatric shock. The trial judge’s subjective approach, based on what the claimant knew and believed, did not answer that question.
2. Participants and rescuers. Following the categories identified in Alcock v Chief Constable of South Yorkshire (1992) AC 310, participants may include persons actually within the area of danger, persons who reasonably believe themselves endangered by a sudden event, and persons who later enter the danger area. A volunteer ordinarily cannot recover for voluntarily accepting the risk, but a rescuer may recover because the tortfeasor should foresee rescue attempts. The claimant’s limited assistance in moving blankets and helping two survivors did not make him a rescuer. His involvement was materially different from that in Chadwick v British Railways Board (1967) 1 WLR 912.
3. Application. The Tharos was never in actual danger. It suffered no material damage, no debris fell on it, and it was controlled by an experienced captain. The claimant could have taken shelter, but moved about freely and did not establish a reliable factual basis for fear of personal danger. Psychiatric injury to him or other non-essential personnel was therefore not reasonably foreseeable.
4. Bystanders. The court declined to extend the duty to mere witnesses of horrific events without sufficient proximity. Proximity required both nearness in time and place and a close relationship of love and affection. This part of the reasoning was an alternative observation. In any event, there was no basis for finding that a person of ordinary fortitude would have suffered psychiatric injury, and the claimant was probably more susceptible than average.
5. Appellate review. The court recognised that an appellate court is slow to interfere with factual findings, particularly credibility findings, but held that intervention was justified where the trial judge had found the claimant’s evidence unreliable and it was unsupported by other evidence or inherent probability.

1. Court of Appeal (Civil Division) — Appeal allowed: [1993] EWCA Civ 27.
2. Queen’s Bench Division — On a preliminary issue, Mrs Justice Smith held that the defendants owed the claimant a duty of care to avoid causing psychiatric injury.