Negligence 227that the necessary proximity would be present. However, if the second pedestrian was
a long way away from the accident and did not know the first pedestrian, then it would
be likely that no duty of care would have been owed to the second pedestrian by the
defendant. The third step, that it is just and reasonable to impose a duty of care, is much
more likely to be satisfied if the claimant has suffered physical injury, rather than economic
loss or nervous shock.
Although Lord Atkin’s ‘neighbour’ speech referred to omissions as well as to acts, it is
a general principle of English law that a person is not to be made liable for mere failure to
act. This is the case even where it is apparent that failure to act will result in another person
suffering injury. For example, if I saw a person drowning and made no attempt to save him,
this would be very wrong morally, but would not amount to negligence. However, omis-
sions can give rise to a duty of care where the defendant has undertaken to do something
which he later fails to do, or where he has led someone else to believe that he has done
something which he has not in fact done. So it might well be negligence if a lifeguard did
not save someone from drowning or if he wrongfully gave the impression that a person
who was drowning was not in danger. The ownership or occupation of land might also
create a duty to do something for the benefit of those coming onto the land or for the benefit
of neighbours.
Liability for psychiatric injury
A claimant who suffers psychiatric injury as a result of negligence may well be able to claim
damages for this. However, the courts have restricted the circumstances in which a duty not
to cause psychiatric injury is owed. Damages cannot be claimed in respect of sorrow, grief
or anxiety. Many of the older cases classify psychiatric injury caused by a tort as ‘nervous
shock’ and the courts have adopted a cautious approach to finding liability for causing
nervous shock. Over the years the courts have made a distinction between ‘primary victims’,
who suffer nervous shock as a result of themselves being physically endangered, and
‘secondary victims’, who suffer nervous shock as a result of witnessing the death or injury
of another person. In PagevSmith (1995)the House of Lords held that, as regards primary
victims, where physical injury is foreseeable, physical and psychiatric injury should be
regarded as the same type of injury.
In the following case the House of Lords considered the position of secondary victims in
some detail.
Alcock vChief Constable of South Yorkshire Police (1991)Ninety-five people died, and many more were severely injured, as a consequence of the
defendant’s negligent policing of a football match. The disaster was seen by a variety of
claimants, who were all relatives or friends of those involved. These claimants were not
primary victims, as they were never themselves in danger. Some claimants saw the events
from the other side of the stadium, others saw them on television or heard them described
on the radio. All of the claimants suffered psychiatric illness and claimed in respect of this
against the defendant.
HeldA duty of care will be owed to a secondary victim who suffers psychiatric illness only
if the following conditions are satisfied. First, the relationship between the claimant and
those injured would have to be sufficiently proximate. It is not possible to make a closed
list of relationships, such as husband and wife or parent and child, which will be regarded