McFarlane v E E Caledonia Ltd

This decision limits recoverable psychiatric injury to situations the defendant could reasonably foresee. The court affirms that a plaintiff who reasonably fears for his own safety as a participant may recover. Rescuers remain within the scope of foreseeable liability. Mere bystanders or witnesses do not generally recover for psychiatric harm unless there is sufficient proximity both of time and place and a close tie of love and affection to a primary victim. The objective standard is what the reasonable defendant ought to have foreseen, not the claimant's subjective state.

The appeal concerned whether the owners/operators of the Piper Alpha rig owed a duty to a non-essential man aboard a nearby support vessel to avoid causing psychiatric injury. The claimant suffered psychiatric illness after witnessing the catastrophic Piper Alpha fire while on the vessel Tharos. Mrs Justice Smith had held that a duty existed. The Court of Appeal heard argument on participant, rescuer and bystander categories of nervous shock and on the correct application of foreseeability and proximity tests, drawing on [1992] AC 310 (Alcock).

1. Outcome: The appeal was allowed. The Court of Appeal held that the judge was wrong to conclude that the defendants owed the claimant a duty in the circumstances.
2. The correct legal test is objective. The enquiry is what a reasonable defendant in the claimant's position ought to have foreseen as to psychiatric harm to a person of ordinary fortitude. The court emphasised that foreseeability must be assessed by reference to the reasonable man in the defendant's position.
3. On classification the court reiterated three relevant categories for fear-based psychiatric injury: (a) participants actually in the area of danger; (b) persons who, because of the suddenness of events, reasonably but mistakenly believe themselves to be in danger (Dulieu-type); and (c) volunteers who enter the area of danger and rescuers. Rescuers remain within the ambit of foreseeable risk and may recover where the rescue is a foreseeable response to the defendant's negligence.
4. The court applied [1992] AC 310 to restrict recovery by mere bystanders. It held that where psychiatric harm arises from witnessing injury to others (not fear for one's own safety) the claimant must show both close ties of love and affection and proximity in time and place. Absent those features the duty of care should not be extended to unconnected bystanders.
5. Applying these principles the court found as a matter of fact that the Tharos was not placed by the defendants' negligence in a position of actual danger, and that the claimant's evidence of fear for his own safety was not established or was the product of later rationalisation. The judge had applied a subjective test and given undue weight to the claimant's individual susceptibility. That approach was incorrect.
6. Because the claimant was neither a participant within the area of danger, nor a rescuer exposed to foreseeable risk, nor a bystander with the requisite proximity and tie to victims, the defendants did not owe the pleaded duty in respect of psychiatric injury. The appeal was therefore allowed.

• Queen's Bench Division: Trial judge (Mrs Justice Smith) answered a preliminary issue in favour of the claimant, holding that a duty to avoid psychiatric injury existed (trial on preliminary issue).
• Court of Appeal (Civil Division): On appeal, the Court of Appeal (Ralph Gibson LJ, Stuart-Smith LJ, McCowan LJ) allowed the appeal and set aside the judge's conclusion that the duty existed.