Proximity in negligence means a sufficiently close legal relationship to support a duty of care. It is not simply a measure of physical distance. For someone claiming psychiatric injury after witnessing harm to another person, the relationship with that person, the event witnessed and the claimant's presence all matter.
This guide focuses on that second situation: claims by secondary victims under the law of England and Wales.
Start by identifying the claimant's position
A person directly involved in an accident may need to be considered as a primary victim. Someone outside the danger who suffers psychiatric illness from witnessing harm to a loved one raises a different duty-of-care question. Do not assume that the defendant's duty to the injured person automatically extends to everybody distressed by the injury.
In a problem question, identify who is claiming, against whom, for which injury and following which event. These four questions stop the word "proximity" becoming a substitute for analysis.
What must a secondary victim establish?
The leading authority, Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, imposes strict limits. In an accident case, work through:
- A close tie of love and affection with the person killed, injured or endangered. Some relationships carry a presumption; other relationships require evidence.
- Closeness in time and space to the accident or its immediate aftermath.
- Direct perception of the accident or aftermath, rather than simply being told what happened.
- Reasonably foreseeable psychiatric injury in a person of ordinary fortitude in the claimant's position.
The claimant must suffer a recognised psychiatric illness caused by what they witnessed. Grief and distress, however serious, do not by themselves establish this kind of negligence claim. Meeting one element does not remove the need to establish the others.
Does the immediate aftermath include a hospital visit?
Sometimes, but it is not enough that the claimant eventually sees the injured person in hospital.
In McLoughlin v O'Brian [1983] 1 AC 410, the claimant saw members of her family at hospital soon after a road accident, still bearing the immediate effects of it. Her appeal succeeded. The case shows why the inquiry is about the connection with the accident and its aftermath, rather than a rigid boundary around the roadside.
For an exam answer, build a short timeline: accident, claimant informed, journey, arrival and what the claimant actually perceived. Explain why those facts do or do not resemble the authority. Avoid inventing a universal time limit from the facts of one case.
What did Paul v Royal Wolverhampton decide?
The Supreme Court decided Paul v Royal Wolverhampton NHS Trust; Polmear; Purchase [2024] UKSC 1 on 11 January 2024. These appeals are no longer pending.
By a majority, the Court dismissed the claims arising from relatives witnessing a death or medical crisis following an alleged negligent failure to diagnose or treat disease. The doctors' duty to their patients did not extend to protecting relatives against psychiatric illness from witnessing those events. The Court distinguished this situation from witnessing an accident caused by negligence. See the Court's summary of the decision.
The practical lesson is that being physically present at a relative's collapse does not, by itself, establish the necessary duty. Equally, do not turn Paul into a claim that psychiatric injury can never be actionable in any medical setting: identify the particular duty and circumstances.
Is a sudden shock still a separate requirement?
Be careful with older revision notes. In Paul, the majority rejected additional requirements that the illness must be caused by a particular "sudden shock" mechanism or that the event must pass a separate test of being sufficiently "horrifying". The claimant still needs to establish the relevant duty, foreseeable injury and causation. See paragraphs 71-78 of the judgment.
That correction does not remove the limits on which events can found a secondary-victim claim.
Worked example: explain what the facts establish
Scenario: A mother watches from a safe distance as a negligent driver seriously injures her child. She later develops a recognised psychiatric illness caused by witnessing the collision.
A useful answer would identify an accident, direct perception, immediate presence and the parent-child relationship. It would then examine foreseeability of psychiatric injury and causation, rather than concluding "she was nearby, so she wins". Her being outside the danger also helps explain why the secondary-victim rules require attention.
Now change the facts so that she learns of the collision by telephone and sees her child much later. The emotional relationship remains, but direct perception and proximity to the accident or its immediate aftermath become disputed. Explain that difference using the authorities.
How to use this in an essay or problem question
Keep three things separate: the current rule, its application and your criticism of it. You can argue that the boundary is difficult to justify while accurately stating the majority decision in Paul. If discussing Lord Burrows' dissent, identify it as a dissent, not the rule that won the case.
For more help applying authorities, read our guide to answering problem questions. You can also explore our tort law study notes alongside your course materials.
Put your tort revision into practice
Test your understanding of tort with MCQ Master: choose a subject or sub-topic, answer questions and use the explanations to identify rules to revisit. For digital tort guides and case books as well as question practice, join Law Answered+, which includes MCQ Master. Read the relevant rule, test yourself, then return to any point you could not explain.