Personal Injury Cases:   Secondary Victimhood – time for an extension?

SMQ Legal solicitors lead by the Partner, Suezanne King, are actively involved in the interpretation of the secondary victim criteria, set by the case of Alcock, and analyse here by Suezanne’s team when and where this criteria requires extension to include a wider category of claimant given how ‘proximity’ no longer requires us to be physically present where a triggering event occurs. 

The proximity rule was first introduced by Donoghue and Stevenson 1932, where the consumer of a soft drink that was bought by someone else for them, wanted to claim against the soft drink company. Lord Atkin proclaimed that recovery in tort should include persons so closely and directly affected by the act that you ought reasonably to have considered that they would be affected by that act. In general, the law does not compensate those who have suffered loss due to a tortious act, such as family member or employers, however the law has been progressing in the direction of extending the concept of ‘secondary victimhood’.

This idea has been in contemplation largely since the Hillsborough disaster of 1989 where secondary victims could claim, where they found to have suffered ‘nervous shock’, having directly witnessed the death or injury of a close family member or friend (a primary victim).

McLoughlin v O’Brian and Allcock v Chief Constable of South Yorkshire Police have demonstrated the House of Lords (now the Supreme Court) have been cautious in extending this principle and have implemented control measures to limit potential claims as secondary victims. There must be a close relationship of love and affection between the primary and the secondary victim, nervous shock must have been suffered by the secondary victim caused by witnessing the incident (the modern day interpretation of this term is unclear), the secondary victim must be personally present at the scene, or close to the incident where the tort occurred (so witnessed the aftermath) and they must be aware of the incident at the time or shortly after it has occurred.

Recent trends have tended against award for psychiatric harm suffered, especially in health care settings. The judgement in Paul v Wolverhampton was recently successfully appealed over the proximity requirement –  what the event is and what must there be proximity to. There are two notions implicit to secondary victimhood: an external traumatic event caused by the defendant’s breach of duty and perception by the claimant of the event as it happens. In Walters v North Glamorgan the court of appeal found for the claimant which has provided a gold standard for claimants and has led some to believe the idea of secondary victimhood may be extended, where a 36 hour deterioration in health could be considered an event, however this was due to a negligent omission and not an external traumatic event. Hence an ‘event’ can be rather flexible.

Taylor v Novo goes against this, where the event was the initial accident and not the death, it was ruled that an external traumatic event must almost immediately cause injury or death. Since then the courts have had to wrestle with these conflicting cases. Proximity to negligence seems to be important. The differentiation between when the event occurs and when the harm is caused is also difficult, sometimes harm caused can be manifested later than the event, can these two be married?

Proximity has been clarified in recent case law and secondary victim cases can succeed on the basis that an event can cause damage afterwards, and it does not need to be immediate. However, when this evident damage arises, is yet to be determined.

This principle is ripe for settling in the Supreme Court, and potentially open new doors for potential claimants.

By Jennifer Arkell




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