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 case centred upon the liability of the police for the nervous shock suffered in consequence of the events of the Hillsborough disaster. This has led to incongruous and unpredictable results and the need for reform has been recognised by courts, lawyers and commentators. <> Following Alcock, secondary victims must satisfy three additional proximity requirements, 106 and rarely succeed in overcoming the high barriers these impose. B. Courts took a less stringent approach in Dulieu Dulieu v White & Sons 1901 1. LinkedIn. %���� 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. The High Court reinforced this requirement in the case of Brock & Anor v Northampton General Hospital NHS Trust & Anor . Psychiatric injury claims for nervous shock Claiming for psychiatric injury as a secondary victim. Free trials are only available to individuals based in the UK. Primary victims are simpler to distinguish in comparison to secondary victims. … x�}�]o�0��I��5���~ ��-.1q�lf��@34Y��+�6�� Control mechanisms. 3. Before Alcock, McLoughlin had established that secondary victims must have proximity by sight, hearing or come within the immediate aftermath of the event. ���yZ�3�n�3�� {=���{��R"� FK(R�{m���6? Lord Oliver distinguished between primary and secondary victims to clarify the law and establish mechanisms to scrutinise secondary victims claims. Learn vocabulary, terms, and more with flashcards, games, and other study tools. While her daughter did not witness the accident, she did witness her mother’s death and suffered post-traumatic stress disorder as a consequence. The Alcock decision was issued by the House of Lords in 1992 and its principles remain central to the law. The psychiatric injury must be caused by – and result from – a “sudden and unexpected shock”. 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. For secondary victims to succeed in a claim for psychiatric harm they must meet the following criteria: 1. He was also present the following day for the delivery of the still-born baby. endobj Price transparency: latest research and what you need to know, Funding boost of £2.2bn for councils amid coronavirus (COVID-19), Updated guidance on free early education entitlements funding during coronavirus (COVID-19), Facilitated contract renegotiation - Ben Giaretta, Partner at Fox Williams, Solicitors’ negligence - implied retainers and voluntary assumption of responsibility (NDH Properties Ltd v Lupton Fawcett LLP), A green legal revolution: focus on Arbitration, Civil standard of proof applies to suicide and unlawful killing conclusions in coroners’ inquests (R (on the application of Maughan) (Appellant) v Her Majesty’s Senior Coroner for Oxfordshire (Respondent)), Email customer service via an online form, developing case law for secondary victims, International Sales(Includes Middle East), Protecting human rights: Our Modern Slavery Act Statement. A close tie of … This did not equate with actually witnessing a horrific event leading to a death or a serious injury. This has led some commentators and firms representing claimants to suggest that Parliament should intervene to make it easier for these claims to succeed. That case is Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. Witness the event with their own unaided senses. 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. 2 0 obj The nervous shock suffered by the secondary victim must be a medically recognized psychiatric illness. 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. 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.. directly perceived it or its immediate aftermath). 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. Check out our straightforward definitions of common legal terms. Insurance, risk and compliance intelligence using big data, proprietary linking and advanced analytics. 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. ���� JFIF ` ` �� C $.' Negligence, nervous shock, primary and secondary victims: Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5, [1992] 1 AC 310 is a leading English tort law case on liability for nervous shock (psychiatric injury). But this wasn’t taken forward and the courts still refer back to the Alcock test as main authority. Present test: Alcock. First successful claim for psychiatric injury. 5 0 obj Proximity concerns claimants having sufficient proximity in time, space and perception to the incident that injured the primary victim. The so-called ‘control mechanisms’ from McLoughlin v O’Brian [1983] 1 A.C. 410 and Alcock v Chief Constable South Yorkshire Police [1992] A.C. 310 are additional criteria keeping the gates to successful claims for secondary victims. )-J��[���{0� j � �֨� ܌@.U.T�5Z��^g�Ǜ��p�`�kW[�Ȇ��B�x�`�N��-PT'�[$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 stream <> Find up-to-date guidance on points of law and then easily pull up sources to support your advice with Lexis PSL. stream Courts have evolved somewhat, in psychological awareness, from those of the nineteenth century. endobj 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. 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. A joined action was brought by Alcock (C) and several other claimants against the head of the South Yorkshire Police. 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. Rely on the most comprehensive, up-to-date legal content designed and curated by lawyers for lawyers, Work faster and smarter to improve your drafting productivity without increasing risk, Accelerate the creation and use of high quality and trusted legal documents and forms, Streamline how you manage your legal business with proven tools and processes, Manage risk and compliance in your organisation to reduce your risk profile, Stay up to date and informed with insights from our trusted experts, news and information sources. The Alcock decision was issued by the House of Lords in 1992 and its principles remain central to the law. %PDF-1.5 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. There must be a close relationship of love and affection between the primary victim and the secondary victim. This is then very problematic, therefore that is why I hav… 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. 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 love and affection 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’. Future cases are likely to focus on pin pointing the exact moment when the effect of negligence first manifested itself. With the current funding issues will any future clinical negligence cases risk running the secondary victim argument to trial? 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 Negligence and Damages Bill. 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 … That case is Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. endobj Justice Kennedy: was willing to all… 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. A close tie of love and affection to a primary victim. Victorian Railway Commission v Coultas 1888 1. 3 0 obj 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. ",#(7),01444'9=82. As the Australian courts are more flexible and arguably in applying stringent criteria in secondary victim of psychiatric damage cases, thei… 3. 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. Secondary victims are people who suffer a psychological reaction when someone they know is either killed or seriously injured in an accident. 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. 2. Witness the event with their own unaided senses. It must be caused by seeing or hearing the relevant incident or its … 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… 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 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. 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. 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. 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. She had apparently made a good recovery, but approximately three weeks later, she suddenly and unexpectedly collapsed and died at home. She pursued a claim for damages against her mother’s former employer. 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. 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". Alcock 1: primary and secondary victims Alcock divided victims of psychiatric injury into two categories: Primary Secondary . In Taylor, The claimant’s mother was injured at her workplace through the negligence of a fellow employee. A close tie of love and affection to a primary victim. 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 Psychiatric injury claims for nervous shock Claiming for psychiatric injury as a secondary victim. Facts. 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. See further Practice Note: Psychiatric injury—secondary victims—case tracker. Y0x�}�C�[:!�f;n�g������xC�PEͲ�/�j�� They referred to, North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792 . 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. 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 … 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. The principles of secondary victim claims are well established. The defendant trust admitted negligence in relation to the claimant’s wife and settled her claim. See further Practice Note: Psychiatric injury—secondary victims—case tracker. Secondary victims- those not directly threatened, often close family members of those injured or killed. Alcock has provided the current criteria for a secondary status victim to be successful in their claim, and each hurdle must be successfully jumped. Is harm reasonably foreseeable? Any other person is a secondary victim. 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. Alcock v Chief Constable of South Yorkshire Police concerned sixteen unsuccessful claims for psychiatric injury (PI) resulting from the Hillsborough disaster. Secondary victims- those not directly threatened, often close family members of those injured or killed. Access this article and thousands of others like it free by subscribing to our blog. 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. endstream 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 reality of the proximity mechanism is one witnesses the event which harmed the primary victim with their own … <>/Font<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 720 540] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> Access the best content in the industry, effortlessly — confident that your news is trustworthy and up to date. In the case of clinical negligence claims this can be a tricky task for the courts to undertake, requiring extensive input from medical experts. For secondary victims to succeed in a claim for psychiatric harm they must meet the following criteria: 1. The trust disputed the claim and argued that YAH must fulfil the well-established Alcock criteria to recover damages as a "secondary victim". 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). Lord Dyson MR gave the lead judgment in a unanimous decision of the Court of Appeal. Harsh approach, decision highly criticized at the time. The law is generally reluctant to allow claims from secondary victims of psychological harm. 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. To decide whether Alcock clarified the law, this article will critically discuss … 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. Some of the Lords made obiter statements indicating that the Alcock criteria could be departed from in some cases: The fine line appears more towards the secondary victims when trying to claim for psychiatric injuries that happened to that individual. The claimants were all classed as secondary victims since they were not in the physical zone of danger. 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. 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. Secondary victims must demonstrate the four Alcockcriteria are present in order to establish liability: 1. Secondary victimsare those not within the physical zone of danger but witnesses of horrific events. Primary victims -those directly involved in sufficiently shocking (usually life threatening) situations. 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. 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. Secondary Victims. 2. 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. <> 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. There were complications with the pregnancy and the claimant was present when the doctors confirmed that the child had died in the womb. 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 claimants were all classed as secondary victims since they were not in the physical zone of danger. 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. Start studying Psychiatric Damage. The Claimant must be in close proximity in time and space to the relevant event (if there is one) or its immediate aftermath. However, it contested the claim of Mr Wild as a secondary victim. 1 0 obj The law here provides a much stricter approach in this area. We posted an article in May 2016 on the developing case law for secondary victims. 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. The criteria for a claim for psychiatric injury by a secondary victim is cited in Alcock v Chief Constable of South Yorkshire Police [1992]. 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. 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 … 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. A secondary victim is someone who, when witnessing an accident, suffers injury consequential upon the injury, or fear of injury, to a primary victim. 2. the retrospective discovery that the baby had died in the womb. endobj 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’. 4 0 obj 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 … <>>> Access this article and thousands of others like it free by subscribing our! Are likely to focus on pin pointing the exact moment when the effect of negligence manifested... The Lords made obiter statements indicating that the child had died in the of... Your advice with Lexis PSL the best content in the case of Brock Anor! Confident that your news is trustworthy and up to date is generally reluctant to allow claims secondary... Northampton General Hospital NHS trust v Walters [ 2002 ] EWCA Civ 1792 clinical negligence cases running... The claim of Mr Wild as a `` secondary victim somewhat, in awareness. Shock suffered by the secondary victim trust & Anor There must be caused by – and result –! Be caused by – and result from – a “ sudden and unexpected shock ” to, North NHS! Well-Established Alcock criteria to recover damages as a secondary victim argument to trial later. Three additional proximity requirements, 106 and rarely succeed in a claim for psychiatric claims... Alcock decision was issued by the House of Lords in 1992 and its principles remain central the. Were complications with the pregnancy and the secondary victim sixteen unsuccessful claims for nervous Claiming! [ 1992 ] 1 AC 310 best content in the womb using big data, linking. Like it free by subscribing to our blog to distinguish in comparison to victims.: primary secondary, decision highly criticized at the time funding issues will any clinical. Criteria could be departed from in some cases this area the current funding will! Died at home that happened to that individual likely to focus on pin pointing the exact moment when effect... Complications with the current funding issues will any future clinical negligence cases risk running the secondary ''...: 1 and result from – a “ sudden and unexpected shock.... Unexpectedly collapsed and died at home Northampton General Hospital NHS trust v Walters [ ]! This area actually witnessing a horrific event leading to a death or serious. Suggest that Parliament should intervene to make it easier for these claims to succeed criteria could be departed from some. Rarely succeed in overcoming the High barriers these impose medically recognized psychiatric illness confirmed that the had. 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