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Mr. Smith and Ms. Johnson, who had never met each other, were at a swimming pool. Mr. Smith had a lesson from a qualified instructor, but due to the instructor's negligence, Mr. Smith struggled in the deep end of the pool and drowned. Ms. Johnson saw the entire incident and developed traumatic neurosis as a result. 

Can Ms. Johnson recover damages against the instructor for the traumatic neurosis?

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In cases of psychiatric injury caused by witnessing an accident, the claimant must establish that the defendant owed them a duty of care directly. This typically involves demonstrating that the claimant was a "primary" or "secondary" victim. Primary victims are those directly involved in the incident, while secondary victims are those who witness it and suffer psychiatric harm as a result. For secondary victims to recover damages, they must satisfy the criteria established in cases such as Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. This includes proving a close tie of love and affection with the primary victim, proximity to the event or its immediate aftermath, and that the psychiatric injury was caused by a shocking event. Since Ms. Johnson had never met Mr. Smith and thus lacked a close relationship, the instructor did not owe her a duty of care. 

Key Point: To claim damages for psychiatric harm as a secondary victim, there must be a duty of care owed to the claimant, which is established by factors such as a close relationship with the primary victim and proximity to the incident. Without these elements, the claim cannot succeed.



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