This has led some commentators and firms representing claimants to suggest that Parliament should intervene to make it easier for these claims to succeed. <> 2. Proximity concerns claimants having sufficient proximity in time, space and perception to the incident that injured the primary victim. ���yZ�3�n�3�� {=���{��R"� FK(R�{m���6? ",#(7),01444'9=82. Access the best content in the industry, effortlessly — confident that your news is trustworthy and up to date. Any other person is a secondary victim. endobj 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. In the case of clinical negligence claims this can be a tricky task for the courts to undertake, requiring extensive input from medical experts. 2. A leading provider of software platforms for professional services firms, In-depth analysis, commentary and practical information to help you protect your business, LexisNexis Blogs shed light on topics affecting the legal profession and the issues you're facing, Legal professionals trust us to help navigate change. 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). 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 … As the Australian courts are more flexible and arguably in applying stringent criteria in secondary victim of psychiatric damage cases, thei… 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’. 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. )-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 The claimants were all classed as secondary victims since they were not in the physical zone of danger. $.' 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… Harsh approach, decision highly criticized at the time. A close tie of love and affection to a primary victim. Witness the event with their own unaided senses. directly perceived it or its immediate aftermath). There were complications with the pregnancy and the claimant was present when the doctors confirmed that the child had died in the womb. <> It appears that Wild is the first case to apply Taylor in the clinical negligence context, and it would seem that there is now a requirement that a secondary victim is present at the first manifestation of the injuries sustained by the primary victim (or the immediate aftermath) as a result of a negligent act or omission and that this manifestation can be construed as a horrifying ‘event’ capable of being witnessed. stream The High Court dismissed his claim on the basis that he did not satisfy the Alcock test for secondary victims: The judge also applied the more recent case of Taylor v Novo. 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’. %���� 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. 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. The nervous shock suffered by the secondary victim must be a medically recognized psychiatric illness. 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. C pregnant behind bar in husband’s pub, D negligently drove horse cart into the bar, C wasn’t physically injured but she feared for her own safety and suffered shock which led to her giving birth prematurely and the child suffered developmental problems. For secondary victims to succeed in a claim for psychiatric harm they must meet the following criteria: 1. Justice Kennedy: was willing to all… Subject to satisfying the other criteria in Alcock, this is why a duty is readily imposed where a secondary victim witnesses an accident caused by a defendant. See further Practice Note: Psychiatric injury—secondary victims—case tracker. Victorian Railway Commission v Coultas 1888 1. 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. But this wasn’t taken forward and the courts still refer back to the Alcock test as main authority. The defendant trust admitted negligence in relation to the claimant’s wife and settled her claim. 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. 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. 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. The principles of secondary victim claims are well established. It was not enough for the claimant to have been a witness to the manifestation of the consequences of the defendant’s negligence, i.e. 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. The reality of the proximity mechanism is one witnesses the event which harmed the primary victim with their own … the retrospective discovery that the baby had died in the womb. Secondary victims must demonstrate the four Alcockcriteria are present in order to establish liability: 1. <> B. That case is Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. In Taylor, The claimant’s mother was injured at her workplace through the negligence of a fellow employee. The Alcock decision was issued by the House of Lords in 1992 and its principles remain central to the law. 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. 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Secondary victimsare those not within the physical zone of danger but witnesses of horrific events. 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. The criteria for a claim for psychiatric injury by a secondary victim is cited in Alcock v Chief Constable of South Yorkshire Police [1992]. 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. 2 0 obj 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. Free trials are only available to individuals based in the UK. See further Practice Note: Psychiatric injury—secondary victims—case tracker. Lexis®PSL Personal Injury subscribers enjoy a wealth of expert analysis and for further guidance on the establishing a secondary victim, see Practice Note: Secondary victims. 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. x�}�]o�0��I��5���~ ��-.1q�lf��@34Y��+�6�� Psychiatric injury claims for nervous shock Claiming for psychiatric injury as a secondary victim. 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. 4 0 obj Facts. Secondary Victims. <>/Font<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 720 540] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> Future cases are likely to focus on pin pointing the exact moment when the effect of negligence first manifested itself. A close tie of love and affection to a primary victim. The claimants were all classed as secondary victims since they were not in the physical zone of danger. 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. 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. She had apparently made a good recovery, but approximately three weeks later, she suddenly and unexpectedly collapsed and died at home. Check out our straightforward definitions of common legal terms. The trust disputed the claim and argued that YAH must fulfil the well-established Alcock criteria to recover damages as a "secondary victim". endobj <>>> This has led to incongruous and unpredictable results and the need for reform has been recognised by courts, lawyers and commentators. 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. Y0x�}�C�[:!�f;n�g������xC�PEͲ�/�j�� %PDF-1.5 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. However, it contested the claim of Mr Wild as a secondary victim. The law here provides a much stricter approach in this area. LinkedIn. The psychiatric injury must be caused by – and result from – a “sudden and unexpected shock”. 3. 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. It must be caused by seeing or hearing the relevant incident or its … 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. Lord Dyson MR gave the lead judgment in a unanimous decision of the Court of Appeal. This is then very problematic, therefore that is why I hav… The Negligence and Damages Bill. First successful claim for psychiatric injury. A joined action was brought by Alcock (C) and several other claimants against the head of the South Yorkshire Police. This has led some commentators and firms representing claimants to suggest that Parliament should intervene to make it easier for these claims to succeed. A close tie of … The issues that lie here, and I will be looking in greater detail, are the primary and secondary victims that have to be established before any claim for damages can be done. Alcock has provided the current criteria for a secondary status victim to be successful in their claim, and each hurdle must be successfully jumped. A secondary victim is someone who, when witnessing an accident, suffers injury consequential upon the injury, or fear of injury, to a primary victim. Is harm reasonably foreseeable? Some of the Lords made obiter statements indicating that the Alcock criteria could be departed from in some cases: endobj … 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. 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 … Alcock 1: primary and secondary victims Alcock divided victims of psychiatric injury into two categories: Primary Secondary . Secondary victims- those not directly threatened, often close family members of those injured or killed. 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’. 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. There should be a list of relationships that would be sufficient to satisfy the criteria for claims as a secondary victim, and I would expect that close friends’/family members would also satisfy by introducing this legislation.. They referred to, North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792 . Following Alcock, secondary victims must satisfy three additional proximity requirements, 106 and rarely succeed in overcoming the high barriers these impose. 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 Courts took a less stringent approach in Dulieu Dulieu v White & Sons 1901 1. endobj The High Court reinforced this requirement in the case of Brock & Anor v Northampton General Hospital NHS Trust & Anor . 3 0 obj 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 The so-called ‘control mechanisms’ from McLoughlin v O’Brian [1983] 1 A.C. 410 and Alcock v Chief Constable South Yorkshire Police [1992] A.C. 310 are additional criteria keeping the gates to successful claims for secondary victims. 3. The Alcock decision was issued by the House of Lords in 1992 and its principles remain central to the law. 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. Lord Oliver distinguished between primary and secondary victims to clarify the law and establish mechanisms to scrutinise secondary victims claims. Control mechanisms. 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". Present test: Alcock. Primary victims -those directly involved in sufficiently shocking (usually life threatening) situations. 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 … The law is generally reluctant to allow claims from secondary victims of psychological harm. This did not equate with actually witnessing a horrific event leading to a death or a serious injury. Alcock v Chief Constable of South Yorkshire Police concerned sixteen unsuccessful claims for psychiatric injury (PI) resulting from the Hillsborough disaster. 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. 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