The prominent issues relating to whether more compensation should be given for cases of psychiatric harm caused by negligence concern the primary/secondary victim distinction famed in the case of Alcock v Chief constable of South Yorkshire (1993). While it was accepted that the claimants had both suffered psychiatric problems brought about by their daughter’s death, the court dismissed their claim for nervous shock on the basis that what they witnessed was not ‘wholly exceptional’. Y0x�}�C�[:!�f;n�g������xC�PEͲ�/�j�� He concluded that it would be incomprehensible to allow the claimant to recover for witnessing the death of her mother three weeks after an accident, when if Mrs Taylor had died at the time of the accident but the claimant did not come across the immediate aftermath, she would not recover damages. stream It is not sufficient, in the case of injury to a secondary victim, for the claimant to show that as a result of apprehending the infliction of physical injury or the risk of it to another person they have sustained nervous shock which caused psychiatric illness. LinkedIn. He accepted that the categorisation of primary and secondary victims is not closed, and the boundaries of proximity should be drawn as far as is possible to ‘reflect what the ordinary, reasonable person would regard as acceptable’. The Negligence and Damages Bill. Lord Oliver distinguished between primary and secondary victims to clarify the law and establish mechanisms to scrutinise secondary victims claims. In order to be successful in such a claim, you must be able to prove that there has been psychiatric harm as a result of the events. Present test: Alcock. 3. endobj The principles of secondary victim claims are well established. Defendant representatives and insurers will be pleased to note this recent series of nervous shock cases has put the brakes on attempts to extend the boundaries of secondary victim claims. For secondary victims to succeed in a claim for psychiatric harm they must meet the following criteria: 1. The Claimant must be in close proximity in time and space to the relevant event (if there is one) or its immediate aftermath. This did not equate with actually witnessing a horrific event leading to a death or a serious injury. <> stream Learn vocabulary, terms, and more with flashcards, games, and other study tools. A joined action was brought by Alcock (C) and several other claimants against the head of the South Yorkshire Police. Nevertheless, under the Alcock criteria she is unlikely to be able to bring a successful legal claim because the husband died in hospital, and she did not witness the immediate aftermath of the accident. have a relationship of love and affection with the primary victim; come across the ‘immediate aftermath’ of the event; have direct perception of the harm to the primary victim; and. Witness the event with their own unaided senses. ���yZ�3�n�3�� {=���{��R"� FK(R�{m���6? Secondary victims- those not directly threatened, often close family members of those injured or killed. 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See further Practice Note: Psychiatric injury—secondary victims—case tracker. Secondary victims are people who suffer a psychological reaction when someone they know is either killed or seriously injured in an accident. As a reminder, Taylor v Novo (UK) Ltd[2014] QB 150, [2013] EWCA Civ 194, was the first secondary victim claim to go to the Court of Appeal for ten years when it was decided in 2013. The Claimants accepted the Alcock control mechanisms are the starting point for secondary victim claims, but argued the law on secondary victims is complex and developing. The individual must: have a relationship of love and affection with the victim; come across the ‘immediate aftermath’ of the event; have direct perception of the harm to the primary victim; and She had apparently made a good recovery, but approximately three weeks later, she suddenly and unexpectedly collapsed and died at home. Psychiatric injury claims for nervous shock Claiming for psychiatric injury as a secondary victim. Primary victim: Type I Usually a primary victim is a person who could reasonably foreseeably suffer physical injury as a result of the defendant’s actions. The High Court reinforced this requirement in the case of Brock & Anor v Northampton General Hospital NHS Trust & Anor . As discussed above, the Alcock criteria of recoverability for secondary victims of psychiatric damage are difficult to apply in practice and courts have been stretching the criteria in sympathy with claimants or ignoring the criteria in other cases. Courts took a less stringent approach in Dulieu Dulieu v White & Sons 1901 1. Is harm reasonably foreseeable? The claimants were all classed as secondary victims since they were not in the physical zone of danger. In Alcock, Lord Oliver identified several elements which had been found in the reported cases to be the essential criteria for a successful secondary victim claim, including most fundamentally (as recently emphasised in Liverpool Women ’ s Hospital NHS Foundation Trust v Ronayne [ 2015 ], hereafter referred to as Ronayne) that the claimant should have suffered frank psychiatric illness or … A person who witnesses a horrifying event and has a close relationship with someone involved in the event is able to seek damages as a secondary victim. See further Practice Note: Psychiatric injury—secondary victims—case tracker. To bring a successful claim the following must be established:- That there was a “close tie of love and affection” with the primary victim of the accident. Since the case of Alcock v Chief Constable of Yorkshire Police was decided following the Hillsborough disaster in 1989, it has been well established that certain criteria must be met by the Claimant, to successfully bring a compensation claim for psychiatric injury as a secondary victim. In the case of Wild and another v Southend University Hospital NHS Foundation Trust, the claimant’s wife had been under the antenatal care of a hospital managed by the defendant trust. $.' First successful claim for psychiatric injury. Any other person is a secondary victim. We posted an article in May 2016 on the developing case law for secondary victims. Since Alcock the courts have strictly applied these criteria as claimants have sought to widen the scope of secondary victim claims beyond that originally envisaged. The criteria for a claim for psychiatric injury by a secondary victim is cited in Alcock v Chief Constable of South Yorkshire Police [1992]. endobj A primary victim is a victim who is directly involved in an accident and suffers injuries as a result of the fault of a tortfeasor. Some of the Lords made obiter statements indicating that the Alcock criteria could be departed from in some cases: Lord Keith of Kinkel commented that psychiatric harm to an unconnected bystander might still be foreseeable if the event was particularly horrific. Access the best content in the industry, effortlessly — confident that your news is trustworthy and up to date. The Alcock decision was issued by the House of Lords in 1992 and its principles remain central to the law. The fine line appears more towards the secondary victims when trying to claim for psychiatric injuries that happened to that individual. Control mechanisms. Justice Kennedy: was willing to all… The Alcock decision was issued by the House of Lords in 1992 and its principles remain central to the law. Secondary victims must now satisfy three additional criteria (proximity of space, perception, and relationship) in order to succeed—thresholds that none of the claimants in Alcock were able to meet. A secondary victim is one who suffers nervous shock without himself/herself being directly exposes to any physical danger in the accident to the primary victim. There were complications with the pregnancy and the claimant was present when the doctors confirmed that the child had died in the womb. Secondary Victims. This has led to incongruous and unpredictable results and the need for reform has been recognised by courts, lawyers and commentators. Witness the event with their own unaided senses. Insurance, risk and compliance intelligence using big data, proprietary linking and advanced analytics. %���� The law here provides a much stricter approach in this area. The case centred upon the liability of the police for the nervous shock suffered in consequence of the events of the Hillsborough disaster. For secondary victims to succeed in a claim for psychiatric harm they must meet the following criteria: 1. Specifically – she was unable to demonstrate a "recognised psychiatric injury, or that the injury was caused by shock resulting from the relevant events or their immediate aftermath". The trust disputed the claim and argued that YAH must fulfil the well-established Alcock criteria to recover damages as a "secondary victim". Courts have evolved somewhat, in psychological awareness, from those of the nineteenth century. <>/Font<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 720 540] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> Alcock 1: primary and secondary victims Alcock divided victims of psychiatric injury into two categories: Primary Secondary . The Decision at first instance clearly extended the secondary victim category beyond the Alcock criteria but the Appeal Court Decision reaffirms the position in Scotland as being based on these criteria. A secondary victim is one who suffers nervous shock without himself/herself being directly exposes to any physical danger in the accident to the primary victim. Primary victims are simpler to distinguish in comparison to secondary victims. The psychiatric injury must be caused by – and result from – a “sudden and unexpected shock”. A secondary victim is one who suffers psychiatric injury not by being directly involved in the incident but by witnessing it and either: • seeing injury being sustained by a primary victim, or • fearing injury to a primary victim. With the passage of 27 years, other cases have expanded upon what is meant by each of the criteria, but the category of secondary victims who can claim damages remains broadly the same. endstream 3 0 obj directly perceived it or its immediate aftermath). Lord Dyson MR gave the lead judgment in a unanimous decision of the Court of Appeal. Find out how we help ensure they exceed expectations, Lex Chat is a LexisNexis current affairs podcast sharing insights on topics for the legal profession, Discuss the latest legal developments, ask questions, and share best practice with other LexisPSL subscribers. This has led some commentators and firms representing claimants to suggest that Parliament should intervene to make it easier for these claims to succeed. Here, Alcock and several other claimants were ‘secondary victims’: they were not primarily affected, in the sense that they were injured or in danger of injury, but they suffered harm because of … endobj ���� JFIF ` ` �� C This is then very problematic, therefore that is why I hav… 5 0 obj x�}�]o�0��I��5���~ ��-.1q�lf��@34Y��+�6�� That case is Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. 3. ",#(7),01444'9=82. Since the case of Alcock v Chief Constable of Yorkshire Police was decided following the Hillsborough disaster in 1989, it has been well established that certain criteria must be met by the Claimant, to successfully bring a compensation claim for psychiatric injury as a secondary victim. In Alcock v Chief Constable of South Yorkshire Police, which arose out of the Hillsborough disaster, as a control mechanism for limiting the class of individuals who could recover damages, the court divided claimants into two categories: To qualify as a secondary victim a claimant must: Judges are conscious about extending the secondary victim category and opening the floodgates to nervous shock claims. The reality of the proximity mechanism is one witnesses the event which harmed the primary victim with their own … Some of the Lords made obiter statements indicating that the Alcock criteria could be departed from in some cases: Secondary victims- those not directly threatened, often close family members of those injured or killed. Harsh approach, decision highly criticized at the time. To qualify as a secondary victim a claimant must: have a relationship of love and affection with the primary victim; come across the ‘immediate aftermath’ of the event; have direct perception of the harm to the primary victim; and 1 0 obj There must be a close relationship of love and affection between the primary victim and the secondary victim. Where confusion has crept in is where the Courts have tried to extend the link between a secondary victim and the event by allowing for recovery if the claimant witnesses the ‘immediate aftermath’. Start studying Psychiatric Damage. With the current funding issues will any future clinical negligence cases risk running the secondary victim argument to trial? 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. B. Proximity concerns claimants having sufficient proximity in time, space and perception to the incident that injured the primary victim. The claimants were all classed as secondary victims since they were not in the physical zone of danger. Check out our straightforward definitions of common legal terms. That case is Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. The High Court has dismissed a claim by a secondary victim for psychiatric injury on the basis that the control mechanisms for secondary victims derived from Alcock were not satisfied. <> Since Alcock the courts have strictly applied these criteria as claimants have sought to widen the scope of secondary victim claims beyond that originally envisaged. )-J��[���{0� j � �֨� ܌@.U.T�5Z��^g�Ǜ��p�`�kW[�Ȇ��B�x�`�N��-PT'�[$U��s�G��uyIeZ+�EB����!���b�+��;��G������FX[�\0�e/�EEBZ��T(t dH�c�;�E�s����sŶ+������mW��#p��%K\����Q`��+m�T���p While her daughter did not witness the accident, she did witness her mother’s death and suffered post-traumatic stress disorder as a consequence. A close tie of love and affection to a primary victim. Secondary Victim Cases – in the Context of Tort Cases Generally The Need for Control Mechanisms in Secondary Victim Cases (a) The relationship between 2V and PV (close ties of love and affection) (b) 2V’s experience of the threat or injury to PV –Physical proximity to incident in time and in space (i.e. 2. However, it contested the claim of Mr Wild as a secondary victim. 2 0 obj With the passage of 27 years, other cases have expanded upon what is meant by each of the criteria, but the category of secondary victims who can claim damages remains broadly the same. Our trusted tax intelligence solutions, highly-regarded exam training and education materials help guide and tutor Tax professionals, Access our unrivalled global news content, business information and analytics solutions. Secondary Victim Cases – in the Context of Tort Cases Generally The Need for Control Mechanisms in Secondary Victim Cases (a) The relationship between 2V and PV (close ties of love and affection) (b) 2V’s experience of the threat or injury to PV –Physical proximity to … 2. The Master of the Rolls, Lord Dyson, looked again at secondary victim claims and reiterated that the strict control mechanisms set out by the (then) House of Lords in the post-Hillsborough disaster decision of Alcock, in 1992, should be applied by Judges to limit the ambit of permissible secondary victim claims unless Parliament interv… A close tie of … <> She pursued a claim for damages against her mother’s former employer. 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