Tranmore v T E Scudder Ltd

In claims by secondary victims for psychiatric illness, proximity requires more than a close relationship and foreseeable psychiatric injury. The claimant must be closely and directly affected through a sufficiently immediate perception of the accident or its immediate aftermath, normally involving direct visual or oral perception of death, danger, injury or suffering.

The “immediate aftermath” is fact-sensitive, but its scope is narrow. A claimant who arrives about two hours after a catastrophe, does not see the victim or the victim’s injuries, and encounters only the accident site and rescue operation may fall outside the required proximity. The Court of Appeal cannot extend the established boundaries of liability.

The appellant’s son was killed when a building under demolition collapsed. The appellant learned of the collapse at about 7.30 pm and arrived at the site at about 8 pm, approximately two hours after the accident. He saw rubble, was told that his son remained inside, and spent part of the time attempting to obtain assistance. He did not see his son or any injury to him.

The Leeds County Court, on a preliminary issue, decided that the appellant was not sufficiently proximate to the accident or its immediate aftermath to establish a duty of care. The appeal concerned whether the appellant’s experience at the site amounted to witnessing the immediate aftermath of the catastrophe.

1. Appeal dismissed. The Court of Appeal unanimously held that the defendants owed no duty of care to the appellant in the circumstances.
2. Lord Justice Roch held that secondary-victim liability requires reasonable foreseeability of psychiatric illness, a close relationship with the primary victim, and close and direct affectation by the defendant’s acts or omissions. The required shock must arise through seeing or hearing the event causing, or threatening, injury to the primary victim, or its immediate aftermath.
3. Relying on the guidance in Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, the court treated immediacy of time and space and direct visual or oral perception as essential features of proximity. The appellant arrived about two hours after the collapse, was not present at the accident, did not witness his son’s death or extreme danger, and did not see his son’s body or injuries.
4. Lord Justice Brooke explained that McLoughlin v O’Brien [1983] 1 AC 410 was an exceptional extension of liability because the claimant encountered her injured family members in substantially the same condition as at the accident scene. The present facts were materially different. The combined absence of immediacy, direct perception and sight of the primary victim placed the claim just beyond the established line.
5. The court acknowledged that the boundaries of the law might be changed by Parliament, but held that it was not for the Court of Appeal to extend them. The appeal was dismissed with costs. The application for leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): Tranmore v T E Scudder Ltd [1998] EWCA Civ 733 dismissed the appeal from the Leeds County Court.
• Leeds County Court: Judge Walton decided the preliminary issue against the claimant and dismissed the action.