Weddle v Glasgow City Council – time for expansion of the law on psychiatric injury?

On 22 December 2014, a bin lorry collided with pedestrians in the city centre of Glasgow, killing six and injuring fifteen others.

Ms Weddle, a student who was in her final year at Stirling University, had heard and been close to the final crash and resting place of the bin lorry. Initially she thought there had only been a traffic collision but as she crossed the road away from the accident, she witnessed the aftermath including dead bodies, serious injuries and the distress and alarm of others.

She went on to suffer intrusive thoughts, anxiety, flashbacks and depression, and was diagnosed with post-traumatic stress disorder (PTSD). She underwent counselling and cognitive behavioural therapy, but she was unable to attend university and her studies were interrupted for five years.  By January 2019, she continued to meet the criteria for PTSD and continued with medication to assist her sleeping problems and anxiety.

Following the case of Alcock v Chief Constable of South Yorkshire Police [1991- UKHL 5], where someone suffers pure psychiatric injury as the result of an accident, they are classed as either a primary victim or a secondary victim.  A primary victim is someone who has been directly involved in the accident. A secondary victim is someone who witnesses an accident but is not directly harmed, or at risk of being directly harmed by its immediate effects.

In the case of a primary victim, they will be successful in a claim for psychiatric injury if the risk of physical injury was reasonably foreseeable to the negligent person.  The threshold for a secondary victim who was not “directly involved” is that that person must meet the criteria of witnessing at close hand the death of a close family member or loved one.

Ms Weddle did not fulfil the criteria to succeed in her claim as a secondary victim and so brought her case on the basis that she was a primary victim as she reasonably believed she was in danger at the time of the accident.  The defender’s case was that she was never in any danger of being struck by the vehicle and so could not be considered a primary victim.

On the facts of the case, the court found that the Council could not have reasonably foreseen that their employee’s driving would have caused the risk of physical injury to Ms Weddle.  In addition, the court found that the pursuer was not at risk of physical injury at the time of the accident.  They also found that if she did believe she was in danger, it was not a reasonable belief. Her fear and alarm were attributable, instead, to what she subsequently witnessed.

Fear or horror in the aftermath, though clearly likely to have an effect on the person, does not count in law in terms of the threshold device for duty of care.  She was not therefore a primary victim and her claim was dismissed.

The well-defined restrictions demonstrated in Alcock will remain law until there is either a contrary decision of the Supreme Court, or further legislation. However, the question remains, was it not foreseeable that walking through the immediate aftermath and carnage of an incident such as this, that a person might suffer psychiatric injury? If so, should there not be recompense available for this scenario?