• In the case of McFarlane v E.E. Caledonia Ltd. [1994] 2 All E.R. 1, it was held that a bystander who witnesses a disaster cannot recover damages for psychiatric harm caused unless a sufficient degree of proximity between that bystander and a victim of the disaster can be shown.

Facts of the Case

  • D owned the ‘Piper Alpha’ oil rig in the North Sea.
  • C was a worker onboard the ‘Tharos’, a support vessel for offshore installations.
  • On 6th July 1988, a fire broke out on the rig. After an hour the entire rig was engulfed.
  • Various vessels went to assist in the firefighting and rescue operations, including the nearby Tharos.
  • Ultimately, 164 men were killed and many more suffered serious injuries.
  • While C sustained no physical injury during these operations, his experiences that night resulted in him suffering psychiatric injury.

Issues

  • Was it reasonably foreseeable that a man of ordinary fortitude in C’s position would have been so affected by the experience?

Held by the Court of Appeal (Civil Division)

  • Finding for D, held that in the circumstances it could not have been reasonably foreseen that C and other off-duty workers (or men of ordinary fortitude) on board the support vessel would suffer psychiatric harm. With the injuries being unforeseeable, C would not be allowed to succeed.

Stuart-Smith L.J.

  • Due to C’s medical history, the judge at first instance found that C was likely not a person of average fortitude or customary phlegm and that he was probably more susceptible to psychiatric injury than the average man.
  • D argued that because of C’s illness and the fact that he had read and discussed the events at great length he was confused and was unable to distinguish between what he had experienced and what he had subsequently learnt.
  • The judge at first instance said that they approached C’s evidence with extreme caution and was prepared to accept it only where it was supported by evidence from other sources or was inherently likely to be true.
  • It is submitted that C was a rescuer, and that even if injury did not result from fear for his own safety, according to Chadwick v British Railways Board [1967] 1 W.L.R. 912 he was entitled to recover because it resulted from his experiences in rescuing survivors.
  • Despite being on an assisting vessel, C was not actively involved in the operation aside from preparing the vessel to receive casualties and perhaps assisting two walking injured. D could not reasonably foresee that this very limited degree of involvement could possibly give rise to psychiatric injury.
  • “The whole basis of the decision in Alcock is that where the shock is caused by fear of injury to others as opposed to fear of injury to the participant, the test of proximity is not simply reasonable foreseeability. There must be a sufficiently close tie of love and affection between the plaintiff and the victim. To extend the duty to those who have no such connection, is to base the test purely on foreseeability…
  • It seems to me that there are great practical problems as well. Reactions to horrific events are entirely subjective: who is to say that it is more horrific to see a petrol tanker advancing out of control on a school, when perhaps unknown to the plaintiff none of the children are in the building but are somewhere safe, than to see a child or group of children run over on a pedestrian crossing? There must be few scenes more harrowing than seeing women and children trapped at the window of a blazing building, yet many people gather to witness these calamities” [165].

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