Primary and Secondary Victims PDF

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Primary Victims  Page v Smith [1996] 1. Those ‘directly involved in the accident and well within the range of foreseeable physical injury’ 2. As long as some injury is foreseeable, all can be recovered  Cases where the Claimant suffered psychiatric harm due to fear of injury to themselves at the time  Grieves v FT Everard & Sons Ltd [2007] (The unreasonably ‘worried well’ person) 1. The category of primary victim should be confined to persons who suffer psychiatric injury caused by fear or distress resulting from involvement in an accident caused by the defendant's negligence or its immediate aftermath. A person like Mr Grieves who suffers psychiatric injury because of something that he may experience in the future as a result of the defendant's past negligence is in an entirely different category. The immediacy that is characteristic of the situation that applies to primary victims as contemplated in Page v Smith [1996] is lacking in his case 2. Asbestos exposure leading to symptomless pleural plaques on lungs. C. developed clinical depression: anxiety about future health status/risk of asbestosis developing 3. Held: no ‘damage’ and not a reasonably foreseeable consequence in a person of normal fortitude.  Rule for Primary Victims 1. Reasonable foreseeability of personal injury, not psychiatric injury, necessary 2. If personal injury (including physical injury) is foreseeable then - Claimant can recover even if psychiatric injury - Can recover even if the extent of the psychiatric injury is greater than expected 3. Young v Charles Church (Southern) Ltd [1998] - It does not matter if psychiatric injury is not foreseeable

Secondary Victims  Alcock [1992] 1. Secondary victim: no more than the passive and unwilling witness of injury caused to others 2. secondary victim must not be permitted to obscure the absolute essentiality of establishing a duty owed by the defendant to him 3. even if D has a defence against a claim by the immediate victim that should not defeat a claim by a secondary victim to him 4. it is enough that the immediate victim is imperilled. (no need to have actual harm) - There may, indeed, be no “primary victim” in fact. It is, for instance, readily conceivable that a parent may suffer injury, whether physical or psychiatric, as a result of witnessing a negligent act which places his or her child in extreme jeopardy but from which, in the event the child escapes unharmed 5. Proximity involves not only an element of physical proximity to the event but a close temporal connection between the event and the claimant's perception of it combined with a close relationship of affection between the claimant and the immediate victim  McLoughlin v O’Brien [1983] - Claimant’s husband and children involved in accident. One child killed; two others and husband injured. Claimant at home at time. Hears about accident and goes to hospital two hours later. Sees untreated injuries and treatment taking place.  Rule for Secondary Victims 1. A close tie of love and affection to the immediate victim;

2. Closeness in time and space to the incident or its aftermath; and 3. Perception by sight or hearing, or its equivalent, of the event or its aftermath Close Ties of Love and Affection  For C to establish liability, C must belong to a class of persons whose claims have been recognised in law. The key class is people with a close tie of love and affection to an immediate victim.  McLoughlin v O’Brian [1983] - The closer the tie (not merely in relationship, but in care) the greater the claim for consideration  Alcock [1992] 1. The tie needed is to the immediate victim, not necessarily a primary victim (so the person imperilled does not have to be injured 2. The crucial factor is the quality, not the label, of a relationship - the strength of the bonds of love and affection, not necessarily a particular blood or marital tie 3. The class of potential claimants should not be rigidly defined by categories of relationship: to do so may be arbitrary and illogical 4. It is for C to prove that they had a close tie of love and affection to an immediate victim of D’s negligence 5. The law presumes that certain relationships do have a sufficiently close tie of love and affection. However, D. can rebut this presumption, if D. can prove that there was not a sufficiently close tie of love and affection  Presumed Relationships of Love and Affection Relationship Authority Parents ⇨ children and Presumed: Alcock [1992] Children ⇨ parents Accepted: McLoughlin v O’Brian [1983] & Hambrook v Stokes [1925] Spouse ⇨ Spouse Presumed: Alcock [1992] Accepted: McLoughlin v O’Brian [1983] Fiancé/Fiancée ⇨Fiancée/Fiancé Presumed: Alcock (per Lord Keith only)

 Non-presumed relationships of love and affection McDaid v Snodgrass [2008] - the test does not focus on the formal relationship between the plaintiff and the deceased but on the nature of the evidence that there existed a close tie of love and affection. It seems clear from the case law, however, that the court will look for close ties of love and affection of the depth and importance that one might expect to find in a parent/child or spousal relationship. The policy hurdle is a substantial barrier to success in claims of this sort and is intended to limit significantly the range of claimants who can succeed Relationship Accepted or Rejected Grandparents ⇨ Grandchildren  Alcock [1992] (Joe Kehoe – no) Sibling ⇨ Sibling  Alcock [1992] - ‘The quality of brotherly love is well known to differ widely’ (Brian Harrison – no)  Shorter v Surrey and Sussex Healthcare NHS Trust [2015] (conceded sisters) Half-sibling ⇨ Half-sibling  McCarthy v Chief Constable of South Yorkshire Police – where evidence was adduced Uncle/aunt ⇨ Nephew/niece  Alcock [1992] (Robert Spearitt – no) Brother-in-law/sister-in-law  Alcock [1992] (Robert Alcock – no) Work colleague and close friend  Robertson and Rough v Forth Road Bridge [1994] Good friend  Burdett v Dahill [2002]

Son of Best Friend  McDaid v Snodgrass [2008] McCarthy v Chief Constable of South Yorkshire Police - He adduced evidence from relatives and friends that his family was very close, and the two half-brothers particularly so Shorter [2015] - the relationship between the Claimant and [her sister] was a close and loving one, almost like mother and daughter Proximity in time and space  McLoughlin [1983] 1. to the scene of the incident 2. to the ‘immediate aftermath’ of the negligent imperilment, where it would be expected that C. would come immediately to the scene, e.g. a parent or spouse 3. Direct aural or visual perception of the negligent imperilment is not necessary  Hambrook v Stokes [1925] - to a reasonable fear that others had been injured (even if there was no injury to immediate victim)  Liverpool Women's Hospital NHS Foundation Trust v Ronayne [2015] - The purpose of attendance may also be relevant Timeline and purpose Accepted?  Accepted as ‘immediate aftermath’: Told of incident 1 hour after; attends hospital and sees family 2 hours after incident; family in McLoughlin v O’Brian [1983] state of distress waiting treatment Sight of body 2h after event  Accepted as ‘immediate aftermath’: GalliAtkinson v Seghal [2003] Seeing effects of clinical negligence 24h after  Accepted as ‘immediate aftermath’: Farrell v Merton, Sutton and Wandsworth Health event Authority [2001] Husband seeing a post-operative scar following  Froggatt v Chesterfield and North Derbyshire Royal Hospital NHS Trust [2002] negligent advice given to his wife to have a mastectomy Arrival at accident scene 2 hours after fatal  Not ‘immediate aftermath’: Tranmore v T.E. Scudder Ltd [1998] accident Attendance 8 hours after incident at a  Alcock [1992] (insufficient in time) temporary mortuary for identification Attendance at hospital within an hour of death,  Taylor v Somerset Health Authority [1993] purpose was to settle C’s belief. No identifiable told of death 20 minutes after arrival, then visits mortuary to identify body and verify what signs of trauma relevant. she had been told Witnessing the deterioration in son’s condition  Taylorson v Shieldness Produce Ltd [1994] after post-accident treatment, then gap of 24h  Taylor v A Novo [2014] - Immediate victim injured at work. Has time off work; appears to be recovering. Suffers pulmonary embolism and dies three weeks later. Daughter with immediate victim when she dies. Held: she cannot be recovered - must be proximate to negligent imperilment not to consequences (death)  Wild v Southend University Hospital NHS Foundation Trust [2014] – w still gives birth due to negligent pre-natal treatment. Husband present at birth and suffers psychiatric injury. He was not present for pre-natal treatment, therefore was not sufficiently proximate in time and space to claim to claim as secondary victim Perception through ‘own unaided senses’  Hambrook v Stokes [1925] - Principle reflects earlier authorities  Some attempts to allow communication from a third party to establish liability 1. Schneider v Eisovitch [1960] 2. Hevican v Ruane [1991] 3. Ravenscroft v Rederiaktiebolaget Transatlantic [1991]

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But all of these are inconsistent with Alcock Alcock [1992] - Viewing live broadcast television cannot be equated with direct perception by C.’s own unaided senses: 1. because the necessary degree of proximity is lacking: 2. because broadcasting codes of conduct prohibits identification of recognisable individuals (if broadcasters broke this rule, there would be a novus actus interveniens) – not reasonably foreseeable that C would be affected 3. because television broadcast includes cameras at different points, angles and pan/zoom, with commentary, which is different from human perception (hyperreal) Alcock [1992] - Could there be an exception to the rule, so that live broadcast media might equate to actually seeing or hearing the accident or its immediate aftermath? 1. situations where the impact of live television pictures would be as great, if not greater, than the actual sight of the accident 2. the live broadcast of a children’s ballooning trip which turns to disaster

Sudden Shock The ‘shock’ requirement  The law generally requires the psychiatric injury of a secondary victim to have been induced by shock, rather than gradual processes.  Alcock [1992] 1. a sudden assault on the nervous system 2. the sudden appreciation of a horrifying event, which violently agitates the mind 3. sudden and unexpected shock to the claimant’s nervous system  Shock must take place at the time of the negligent imperilment within the immediate aftermath and must be the result of something which the claimant could perceive with his or her own unaided senses  Examples where the courts have held that the circumstances do not meet this requirement: 1. Alcock [1992] - bereavement 2. Calascione v Dixon [1994] - pathological grief reaction to post-accident processes, such as criminal acquittal of D 3. Jaensch v Coffey [1984] - being worn down by caring for an injured husband 4. Jaensch v Coffey [1984] - distraught by the wayward conduct of a brain-injured child 5. Sion v Hampstead Health Authority [1994] - watching and waiting for a child to die over a period of 14 days  Walters v North Glamorgan NHS Trust [2002] - the experience (over 36h) could properly be treated as the witnessing of a single horrifying event – without any extension of the law. But Taylor v A Novo distinguished Walters as death was a completely separate event – shock was not within the immediate aftermath of the negligent imperilment  Liverpool Women's Hospital NHS Foundation Trust v Ronayne [2015] - When visiting a person in hospital a claimant should expect to see the immediate victim attached to machines and drips, which may be unpleasant to see  Shorter v Surrey and Sussex Healthcare NHS Trust [2015] - no sudden shock when seeing immediate victim on life support  Young v MacVean [2015] - Mother saw a badly damaged car. Later informed that son had died in accident involving the badly damage car. Held: At that time, she is shock but the shock is not coincident in that time of accident of her son with the control criteria, therefore she is not able to claim. Shock and Damages  the court can award damages for the shock-induced injury only. This can lead to difficult issues of apportionment  Hinz v Berry [1970] - The court has to draw a line between sorrow and grief for which damages are not recoverable, and nervous shock and psychiatric illness for which damages are recoverable. The

way to do this is to estimate how much the claimant would have suffered if, for instance, her husband had been killed in an accident when she was 50 miles away; and compare it with what she is now, having been present at the accident...