Schofield v Chief Constable of West Yorkshire Police

For psychiatric injury caused by negligence, a claimant directly involved in the event and exposed to a reasonably foreseeable risk of physical injury is a primary victim. The claimant need not suffer physical injury, fear for their own safety, or show that psychiatric injury itself was foreseeable. The ordinary-fortitude controls governing secondary victims do not apply. The claimant must prove that the negligence caused a recognised psychiatric illness. Vulnerability does not defeat recovery because the defendant takes the claimant as found. Participation means involvement in the event during which the negligent act occurs, not necessarily involvement in the negligent act itself.

A police constable was present with a colleague while they jointly collected firearms from a house. The colleague unlawfully fired a loaded revolver into bedding in a small bedroom. The constable suffered post-traumatic stress disorder but no physical injury.

The High Court found foreseeable physical danger, causation and participation, and awarded £151,000 damages against the Chief Constable on the basis of vicarious liability. The appeal challenged the psychiatric diagnosis, foreseeability, classification as a primary victim, ordinary fortitude and proximity. The central issue was whether a participant exposed to foreseeable physical injury could recover for psychiatric injury without physical injury, fear for personal safety or separate foreseeability of psychiatric harm.

Appeal dismissed. Hutchison LJ gave the judgment, with Thorpe LJ and Hirst LJ agreeing.

1. The trial judge was entitled to find that firing a loaded revolver in a confined room created a foreseeable risk of physical injury. The relevant question was what a reasonable person in the sergeant’s position would have appreciated. The evidence and ordinary common sense supported the finding. A finding that the claimant’s psychiatric condition was shock-induced was implicit, and causation was not realistically challenged.
2. The claimant was a participant and therefore a primary victim, not a secondary victim who merely witnessed injury to others. The distinction drawn in Alcock v Chief Constable of Yorkshire [1992] 1 AC 310 was material, but the controlling analysis was that in Page v Smith [1996] AC 155. For a primary victim, foreseeability of physical injury is sufficient. Separate foreseeability of psychiatric injury is unnecessary, and actual physical injury need not occur.
3. Fear for personal safety is not an essential prerequisite to participation in every case. The situations identified in McFarlane v EE Caledonia Ltd. [1994] 2 All ER 1 were not exhaustive. Involvement means participation in the event during which the negligent act occurs, rather than involvement in the negligent act itself. The reasoning in McFarlane v Wilkinson & another and Hegarty v E.E. Caledonia Ltd. [1997] 2 Lloyds R 259 was applied subject to that qualification, and the analogous decision in Young v Charles Church (Southern) Ltd. The Times 1st May 1997 supported the conclusion.
4. The relationship between the two officers, who were jointly carrying out an employer-required task, supplied sufficient proximity. The claimant established a recognised psychiatric illness caused by the negligence. The ordinary-fortitude requirement did not apply to a primary victim, and the defendant took the claimant as found, including any psychological vulnerability. The alternative employee-status argument was not reached. The appeal was dismissed, with orders made under the agreed minute of order.

• Court of Appeal (Civil Division): Appeal dismissed unanimously; orders made in accordance with the agreed minute of order. [1998] EWCA Civ 838
• High Court, Queen’s Bench Division: Sir William Macpherson of Cluny, sitting as deputy judge, found liability and awarded £151,000 damages.