Boumedien v Delta Display Ltd

The primary-victim analysis applies where psychiatric harm follows the claimant’s own exposure to the defendant’s negligent conduct. The secondary-victim principles concern psychiatric harm from witnessing or hearing injury or death to a loved person and do not govern a claim based on seeing damage to property. For a primary victim, the duty question is whether the defendant could reasonably foresee exposing the claimant to a risk of personal injury, whether physical or psychiatric. If that risk is foreseeable, the duty may arise even though physical injury does not occur. Reasonable foreseeability of personal injury and proximity are treated as essentially the same concept. Permission to appeal may be granted where it is arguable that the lower court applied the test only to physical injury.

The claimant suffered psychiatric illness after the defendant’s car crashed through a wall outside his ground-floor bedroom while he was asleep. He was not physically injured. The Central London County Court found the defendant liable, holding that the claimant was a primary victim within the range of foreseeable injury.

The defendant renewed an application for permission to appeal, arguing that the judge had reduced the issue to foreseeability and had failed to address the separate requirements of primary-victim status and proximity. The central issue was whether the judge had correctly considered the reasonably foreseeable risk of personal injury.

The renewed application was granted. Permission to appeal was limited to the question whether the lower court was wrong in law to conclude that the circumstances gave rise to a reasonably foreseeable risk of injury to the claimant.

1. Primary and secondary victims. The claimant’s case concerned psychiatric harm arising from his own exposure to the accident. He was therefore a primary or ordinary victim if he was a victim of the defendant’s negligence. The principles concerning secondary victims in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 did not apply. Those principles concern psychiatric harm after seeing or hearing injury or death to a loved person, not psychiatric harm following damage to property.
2. Applicable duty test. The approach in such cases is whether the defendant could reasonably foresee that the conduct would expose the claimant to a risk of personal injury, whether physical or psychiatric. If that risk was reasonably foreseeable, the duty was established even though physical injury did not occur. Reasonable foreseeability of personal injury was essentially the same concept as proximity. This approach was taken from Page v Smith [1996] 1 AC 155.
3. Arguable error. Although the lower judge had stated the correct approach earlier, it was arguable that, in paragraph 28, he had considered only the risk of physical injury and had not properly addressed psychiatric injury. The Court of Appeal did not decide whether the same conclusion would inevitably follow after the correct test was applied.

Permission to appeal was granted on that limited ground.

1. Court of Appeal (Civil Division) On 3 April 2008, the court granted the renewed application for permission to appeal, limiting the appeal to the alleged failure to apply the reasonably foreseeable risk of personal injury test correctly.
2. Central London County Court In November 2007, HHJ Simpkiss found the defendant liable for the claimant’s psychiatric injury.