R was in charge of policing at the Hillsborough disaster, where there was a crush and people died. Judge and CA had ruled that only people who had a relationship with those that had died AND had seen the incident first hand (NOT television) could claim for nervous shock i.e. psychiatric illness. HL upheld the ruling. HL: to claim nervous shock one has to show (1) reasonable foreseeability, (2) propinquity in time and space to the accident, (3) proximity between P and D, established by the close ties to the victim- not limited to types of relationships e.g. relative, but by “love and affection”, which has to be proven in each case. In this case, hearing of the disaster on radio or via TV reports subsequently didn’t satisfy condition 2 (though watching on live television did). HL refused to extend the meaning of immediate aftermath to identification of a body in the morgue 9hours after the event, though the plaintiffs that rushed to the hospital straight away were within the “immediate aftermath”.
Lord Keith: closeness doesn’t just occur in certain types of relationship. Propinquity of time and space includes “immediate aftermath”.
Lord Ackner: He says that he would not rule out allowing a claim by a simply bystander who suffered psychiatric shock where any reasonable person would have suffered the same: he says it is fair to compensate a person who witnesses an oil tanker crashing into a school and killing children (lords Keith and Oliver support this and say reasonable foreseeability of nervous shock might occur in the case of a horrific accident)- possibly floodgates worries. Although he says that there are no fixed categories about what type of relationships allow for nervous shock claims, the further removed a person is (e.g. not related, married etc) the stronger the evidence will have to be that they had a close enough relationship with V, in contrast to married couples who have a de facto prima facie presumption that they are sufficiently close. Simultaneous broadcasts CANNOT BE RULED OUT completely provided they are the equivalent of seeing the event for oneself with enough clarity etc e.g. if a mother on TV saw her two children dropping out of a hot air balloon and falling to their death then that would suffice.
Lord Oliver: NB see Oliver’s guidelines on primary victimhood for psychiatric harm below (Hunter v BCC). He draws a distinction between “participants” (primary victims) and “witnesses” (secondary victims) in crime, participants being subject to a risk of physical injury themselves. If D’s negligence foreseeably made P an unwilling participant in the event there is proximity between D and P “and the principal question is whether, in the circumstances, injury of that type to that plaintiff was or was not reasonably foreseeable.” i.e. if so, then he is a primary victim