Caught in the crosshairs: When involuntary participants can make negligence claims

Ordinarily, negligence claims are brought by a direct victim of physical harm. However, in some less common scenarios, it is possible to bring a personal injury claim for psychiatric injury because you became involuntarily involved in an accident or event for which you were not to blame, but that led you to believe you were personally responsible.

Where the wrongdoer or defendant’s negligent actions are found to have placed you in that position, you may be able to recover compensation for your psychiatric injuries.

This rather complex concept can be best demonstrated by the facts of Dooley v Cammel Laird & Co Ltd [1951] which is considered to be the most prominent on involuntary participants.

This case involved a crane operator (C) working for the defendant (D). C was loading cargo from a quay onto a ship when the rope carrying the load snapped. The load fell into the hold of the ship, where C knew other workers were standing.

Nobody was injured, but C suffered nervous shock as a result of seeing what he believed to be the death or serious injury of some of his co-workers and believing he was responsible. The trauma of the event meant he could not return to work as a crane operator. C brought an action in negligence against D, seeking damages for psychiatric injury.

The civil courts have always been presented with difficulties when determining claims in negligence for purely psychiatric harm, without a corresponding physical injury. This is due to the ‘floodgate principle’, which refers to the concern that permitting a claimant to recover damages in such circumstances will open the metaphorical floodgates to larger numbers of claims.

However, there are two instances where an individual who has not directly experienced physical harm, but has witnessed harm caused to another, can claim for psychiatric harm. These claims can be brought when the claimant is a:

1. Secondary victim
2. Involuntary participant

What is a secondary victim?

A secondary victim is an individual who suffers psychiatric harm not by being directly involved in an incident but by witnessing an incident and either seeing injury being sustained by a primary victim or fearing injury to a primary victim.

The law on secondary victims

The landmark case of Alcock v Chief Constable of South Yorkshire Police [1992], which followed the Hillsborough football stadium disaster, established certain criteria for secondary victim claims including:

1. A close tie of love and affection with the immediate victim.
2. Proximity to the incident or its immediate aftermath in both time and space.
3. Direct perception of the incident or its immediate aftermath (rather than hearing about it from a third person).
4. The psychiatric injury must arise from a sudden shock to the nervous system.

By using this criterion, many victims have brought successful claims in recognition of their psychiatric injuries which are determined to have been caused by the direct witnessing of injury to their loved one.

For more information on secondary victims, and the very significant Supreme Court 2024 decision which has severely restricted the eligibility of secondary victims to bring claims, please read this blog.

What is an involuntary participant?

As alluded to above, in the context of personal injury claims, the term ‘involuntary participant’ refers to a claimant who has sustained foreseeable psychiatric harm as a result of (a reasonably held) fear that they are personally responsible for injury caused to another when in fact, whilst connected, are not to blame for what happened.

The law on involuntary participants

In the case of Alcock v Chief Constable of South Yorkshire Police [1992] mentioned above, the potential for a person to be an ‘involuntary participant’ was mentioned. It was determined a person is an unwilling participant “if the negligent act of the defendant has put the claimant in the position of being, or of thinking that he is about to be or has been, the involuntary cause of another’s death or injury and the illness complained of stems from the shock to the plaintiff of the consciousness of this supposed fact”.

As set out above, the authority taken as fully establishing the involuntary participant category is the decision of Donovan J in Dooley v Cammel Laird & Co Ltd [1951].

Since then, many other judgments have considered and developed the involuntary participant criteria. For example, in Hunter v British Coal Corporation [1999], Lord Oliver stated involuntary participants must have been “personally involved” or “directly involved as an actor” in the incident out of which the action arose.

Lord Allanbridge in Robertson v Forth Road Bridge Joint Board [1996] explained that to be an involuntary participant the claimant must have been placed by the “defender’s” negligence in a position where he would consider himself to be personally responsible for the accident, such that the psychiatric injury is caused by anxiety and guilt about the events.

To recover damages, the mental condition must amount to a recognisable psychiatric injury: sensations of fear or distress alone are insufficient. Anxiety and depression are “normal human emotions” said Lord Bridge in McLoughlin v O ‘Brian.

Monk v PC Harrington Ltd [2009] sets out the criteria for proving involuntary victim:

1. The belief that the claimant had himself caused or has been responsible for the accident must be a reasonable one.
2. The justified feeling of control over the process which unwittingly led to death/ injury.

The criteria in Monk can be demonstrated in Dooley, where C reasonably believed they were the cause of the rope snapping, which lead the load to fall onto the ship, where C knew other workers were standing.

Legal and ethical considerations

The concept of secondary victims and involuntary participant in negligence claims raises complex legal and ethical questions.

Traditionally, the law of negligence focuses on the actions of defendants and whether their failure to exercise reasonable care caused harm to an individual. Involuntary participants, such as bystanders or individuals who find themselves in circumstances beyond their control, may not fit neatly into established frameworks.

There are different arguments whether involuntary victim claims should be allowed. Here are a few points to consider:

1. Duty of care: In negligence claims, the core issue often revolves around whether the defendant owed a duty of care to the claimant. For involuntary participants, establishing this duty may be more complicated, especially if they did not seek to be involved in the situation.
2. Causation: Proving causation can be challenging for involuntary participants. They may argue that the defendant’s actions directly led to their suffering, but demonstrating a clear link between those actions and the harm experienced can be less straightforward than in typical negligence cases.
3. Public policy: Allowing involuntary participants to claim damages might have implications for public policy.