“Danger Invites Rescue”: when can a rescuer recover compensation for psychiatric injury?
This article considers the ability of rescuers to recover damages for psychiatric injury. The Oxford English Dictionary (‘OED’) definition of a rescuer is “a person who saves somebody / something from a dangerous or harmful situation”, a definition that is reflected in and refined by the legal approach to rescuer claims.
Under English law rescuers do not have a special status, but nonetheless “the defendant owes a duty of care not only to those who are directly threatened or injured by his careless acts but also to those who, as a result, are induced to go to their rescue”: Alcock v CCSYP  1 AC 310 [1110h]. Whilst they are not in a more advantageous position than other claimants, they are also not disadvantaged by the nature of their involvement.
Rescuers as primary victims
To recover for psychiatric injury the rescuer needs to establish that they are either a primary or secondary victim like any other claimant. This principle was clearly articulated in the litigation that followed the 1989 Hillsborough disaster, in particular Alcock and White and others v CCSYP  2 AC 455.
The threshold test for being a primary victim is presence in the zone of physical danger. This was articulated in White as being “objectively exposed to danger or [having] reasonably believed that [they were] doing so” [1547a].
Once the rescuer has met the threshold test they can recover for their psychiatric injury, even if they have not suffered physical harm: White/Frost and Cullin. A reasonable belief that physical injury might be suffered is sufficient, though the claimant’s belief will not always be accepted as reasonable (for example Greatorex v Greatorex  4 All ER 769 where the claimant’s oral evidence was not accepted; and Hegarty v EE Caledonia  2 Lloyd’s Re. 259 where the finding that the rescue vessel was never in danger meant that the claimant’s fear for his life onboard was necessarily irrational ). However, in practical terms, if a rescuer claimant has suffered a physical injury, however small, that will be highly persuasive evidence of their presence in the zone of physical danger.
Unlike for secondary victims, primary victims do not have to meet an explicit requirement of “proximity”. However, Alcock requires a primary victim to be “mediately or immediately involved as a participant” in order to recover damages [1110b]. Therefore, in practice, there is a proximity requirement since rescuers can only recover if they can establish close or simultaneous involvement in the triggering event.
The (im)mediate involvement requirement was applied in the same way to the widow claimants in Alcock as it was to the police officer claimants in White/Frost. The former were unable to meet the requirement as they had seen their partners be crushed but on TV; the latter were also unable to, because they were only on the scene to remove and strip bodies after the physical danger had passed.
A rescuer meets the (im)mediate involvement requirement if they can show that they were involved at the time of the event giving rise to the rescue, or in the aftermath of that event, with the aftermath being determined on the facts of the individual case. The significance of the meaning of the event should not be overstated though, most likely because the requirement is for mediate or immediate involvement. This was held in Cullin v London Fire and Civil Defence Authority  PIQR 314. In this case the fireman claimant went to search for his colleagues who had been fighting a fire, witnessed their unsuccessful resuscitation attempts and consequently suffered from PTSD. The Defendant argued that he needed to have been involved in the fire that gave rise to his colleagues’ death if he was going to recover damages. The court disagreed, finding that he was a primary victim and that the meaning of the event should not be drawn “within too narrow a compass” .
Whether there is sufficient proximity turns on the facts of the individual case, but the courts have supported a wider rather than narrower approach: “it is necessary to view the totality of the evidence in the context of the case before one is in a position to identify the relevant event [which] must be looked at broadly … it may encompass a much broader spectrum of the relevant facts” Cullin [p325]. Further, the Court of Appeal found that the claimant in Donachie v Chief Constable of Greater Manchester Police  EWCA Civ 405 “was a primary victim in respect of whom there was a reasonable foreseeability of physical injury and, in consequence, in respect of whom it was not necessary to prove involvement in an ‘event’ in the form of an assault or otherwise” .
The court directly applied these principles to a rescuer’s widow’s claim in Chadwick v British Transport Commission  2 All ER 945. A rescuer rushed to the scene of a railway disaster in Lewisham and stayed overnight to rescue and comfort those who were injured. He suffered psychiatric injury as a result and after his (unrelated) death, his widow brought the claim against the tortfeasor. The defendant argued that the deceased was not involved in the triggering “event” and so could not recover as a primary victim.
The court disagreed, finding that it was reasonably foreseeable that the defendant’s negligence would result in rescue attempts and that the claimant was entitled to recover [920h]. The court found that the rescuer was in physical danger during his rescue attempts, and that rather than focus on a triggering “event” as the defendant suggested, “[the court] must deal with this case on the basis that it was the horror of the whole experience which caused his reaction” [918a]. This decision was expressly approved by the House of Lords in White/Frost [1546h] and helpfully shows the broad judicial approach to proximity in rescuer claims.
In the same way that there is no special category for rescuers, there is also no legal distinction between the treatment of lay and professional rescuers. The relevance of a rescuer’s professional status goes to what is reasonably foreseeable and who they can claim against.
On reasonable foreseeability, their prior training and experience may mean that they are reasonably expected to have a higher ‘tolerance’ for witnessing objectively shocking events, though that does not mean they can never recover.
In Ogwo v Taylor  3 All ER 961 the House of Lords considered whether the American “fireman’s rule” should be (or was) applicable in this jurisdiction: a rule by which professional rescuers cannot recover for anything that they experience in the course of a professional call-out. The House of Lords held that the rule had “no place in English law”. Therefore, in this jurisdiction professional rescuers are as entitled as anyone else to recover for psychiatric injury caused by negligence, provided that some injury was foreseeable: see Frost/White and Cullin. The primary victim test and threshold applies to professional rescuers in the same way as any other primary victim.
Professional Rescuers – Who to Sue
A professional rescuer may have a claim against their employer in one of two ways. Firstly, with the employer as the second defendant where the employer’s failure to train, risk assess or protect the claimant causally contributes to their injury.
Secondly and alternatively, the employer might be the sole defendant. The editors of Clerk & Lindsell say in Chapter 8 that “in exceptional circumstances, the negligence of the rescue organiser may break the chain of causation from the original negligence creating the danger”. This principle was also articulated obiter in McFarlane” [11a].
Rescuers as secondary victims?
Whilst in theory a rescuer can recover as a secondary victim if they can satisfy the Alcock control mechanisms, it seems unlikely to happen in practice and has not happened to date. The control mechanism that is most likely to prevent rescuers from recovering is the “close tie of love and affection”.
On the unique facts of Greatorex, the close tie of love and affection was present as the rescuer was the rescuee’s father. The court went on to consider whether the rescuer was a secondary victim. The court found that he was not a secondary victim by virtue of his rescuer status, but that on the particular facts he was a secondary victim because he met the control mechanisms in his own right. Therefore, it may be that rescuers can recover as secondary victims, but with their rescuer status being only incidental.
The OED definition of a rescuer aligns closely with the legal definition of a primary victim. If one saves somebody or something from a dangerous or harmful situation, there is an implicit risk that they will be exposed to physical danger. Therefore, most rescuers who fit the OED definition will be primary victims. This is reflected by their success as such in the case law.
The absence of a special category for rescuers (and a sub-category for professional rescuers) has long been a feature of the law. The result is that rescuers are placed in the same legal position as anyone else seeking compensatory damages for loss caused by negligence or breach of statutory duty. It also avoids preferential or deferential treatment and in Alcock/ White avoided the injustice of a police officer being able to recover for a psychiatric injury as a result of rescue attempts, while a widow suffering the same from watching events live on TV was barred from doing so.
The law on rescuers has not substantively changed since the litigation arising from the Hillsborough disaster, it has only been incrementally clarified. Whether claims brought by rescuers involved in the Grenfell Tower disaster of 2017 will result in the law being affirmed or changed remains to be seen. Given that 31 years have passed since the Hillsborough disaster, this seems to be an apt juncture for the courts to revisit the meaning of rescuers and confirm whether the post-Hillsborough principles should still hold true.
CRESSIDA MAWDESLEY-THOMAS & MEGAN GRIFFITHS