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Critically analyse the way the courts have developed and limited the law in relation to claims for psychiatric harm by secondary victims
Date authored: 24 th May, 2014.
As Lord Steyn noted in his judgment in White and Others v. Chief Constable of South Yorkshire and Others, 1 the law on the recovery of compensation for psychiatric harm is:
‘a patchwork quilt of distinctions which are difficult to justify’
What Lord Steyn meant by this is that; the law regarding claims for psychiatric harm has been developed in a piecemeal way through common law and can often be seen to conflict with itself in many areas.2 It is due to this that claims by secondary victims for psychiatric harm are often hard to assess as to their likely success and merit in a court of law. 3 There is also an argument that recent policy decisions by judges have overly restricted a secondary victim’s access to justice.
First of all it is important to understand what is meant by the terms primary and secondary victims in relation to psychiatric harm and what the difference between these potential claimants is. Primary victims were first identified in Dulieu v White 4. This case established that a primary victim can recover damages for psychiatric injury stemming from actual physical injury or from a reasonable fear or apprehension of danger to their physical safety. This was expanded in Page v Smith5
where it was held that if physical harm is foreseeable, the claimant can recover in respect of both physical and psychiatric harm, even where the latter is not in itself foreseeable. This reasoning was applied in Corr v IBC Vehicles Ltd6
where the House of Lords held that Corr was a primary victim and his psychiatric illness was the same ‘type’ of harm as his foreseeable physical injuries. His suicide was not an uncommon manifestation of depression. It could be argued that Lord Lloyd’s definition of a primary victim as a party who is within the zone of physical danger7 limits the primary victim category. However, Lord Hope in Grieves v FT Everard & Sons8 cautioned against expanding this category for policy reasons and to prevent opening the potential floodgate for psychiatric harm claims.
These same cautious policy considerations can also be seen when examining the secondary victim category and the criteria needed to make a claim as a secondary victim for psychiatric harm. There is also confusion among judges and claimants about which category a claimant may fall in to. 9 A secondary victim can be described as someone who is not personally at risk of physical injury but who suffers psychiatric injury as a result of witnessing someone else being harmed or endangered. One of the main policy considerations for this category of claimants is that the psychiatric injury suffered must be reasonably foreseeable in a person of ‘ordinary fortitude’ in the same circumstances. In Bourhill v Young10 the House of Lords rejected a claim on the grounds that the claimant was not herself in physical danger and that she was particularly susceptible to shock. It could be argued that this area of law should follow the ‘thin skull rule’ established in Smith v Leech Brain & Co11 and that just because a person is particularly susceptible to harm, this should not remove the defendant’s liability.12 Indeed, the modern approach set out in McLoughlin v O’Brian 13 does not place so much emphasis on a person’s fortitude but more on the principles of reasonable foreseeability or by independent policy-based factors. These factors include the closeness of the relationship between the claimant and accident victim, the proximity of the claimant to the accident itself and whether the shock was induced by what the claimant saw or experienced as opposed to what they were told after the event. It could be argued that this is a much fairer system as it allows for a more level playing field for claimants and that the (possibly outdated) notion of a person’s fortitude is partially dispensed with.
However, after this case the mood shifted towards a more restrictive approach in Alcock v Chief Constable of South Yorkshire Police. 14
This was a test case involving ten representatives of the friends and families of the victims of the Hillsborough disaster and it is from this case that many of the issues surrounding secondary victims arises. None of the claimants were able to recover as primary victims as they had not been directly involved in the disaster but the court had to consider whether they could recover as secondary victims. The Chief Constable of South Yorkshire Police admitted negligence in respect of those who had been killed or injured at Hillsborough but argued he did not owe a duty of care to those who had suffered psychiatric damage as a result of seeing or hearing the news of what had happened. The claims were rejected by the Court of Appeal and the House of Lords and Lord Oliver set out guidelines (known as Alcock control mechanisms) as to when a claim should be allowed. These related to the class of persons whose claim should be recognised, the proximity of the claimant to the accident and the means by which the shock is cause. This has severely limited the scope for who may be classed as a secondary victim and has arguably led to confusion and therefore a lack of parity in judgements.15
Firstly it must be shown that there is a ‘close tie of love and affection between the claimant and the accident victim. This is presumed in spouses; and parents and children (this can be rebutted) but not presumed in siblings and other relatives (they must prove this tie exists). It could be considered that this is unfair and overly limiting. Asking a sibling to prove they had a close relationship to a victim could be argued to be emotionally damaging, especially considering the claimant may already be suffering from a psychiatric illness due to the death of a loved one. Conversely, presuming this relationship between parents and children may not be the correct approach. A claimant who did not have a particularly close tie to a parent may attempt to make a spurious claim based on this policy.
Secondly a claimant must prove their proximity to an accident or happen upon its immediate aftermath to have a successful claim. However, cases have shown that this policy rule may be overly subjective and is not applied evenly or fairly across all cases. For example in Mcloughlin16 it was agreed that witnessing the victim’s injuries two hours after the event was enough to establish proximity. However, in Alcock17 it was deemed that witnessing the aftermath nine hours after the event was not sufficient to establish proximity and therefore establish a claim. The later case of Galli-Atkinson v Seghal18 allowed a mother’s claim for psychiatric harm saying the aftermath could be viewed as being made up of different parts – the visit to the scene and the hospital morgue. These three differing judgements show that Lord Steyn’s ‘patchwork’ comment to be accurate when dealing with secondary victims.
Thirdly there is the requirement that there must be immediate perception and shock. That is to say that the harm must be sustained as a result of the sudden and direct appreciation of a shocking or horrifying event rather than as the result of a continuous process of dealing with or responding to such events. Potentially conflicting judgments can also be seen here which may overly limit the scope for potential claimants. In Sion v Hampstead Health Authority19
it was ruled that a father did not satisfy the immediate perception requirement as he watched his son die over a fourteen day period. However in Walters v North Glamorgan NHS Trust20 a mother was allowed to recover for damages after the death of her baby son. The Court held that the aftermath wasn’t confined to one moment in time and the thirty six hour period could be classed as a single horrifying event. Limiting claims in this way could be considered very unfair. Not everyone is affected by events in the same way and is it fair to say that because someone took a long time to die means that a claimant has suffered less psychiatric harm because of this? 21 It could be argued that in fact, they may have suffered more psychiatric harm due to the prolonged nature of the events.
Other potential secondary victims have also seen their scope for claiming limited in recent cases; for example, psychiatric harm suffered by emergency service workers and rescuers. In the past the judiciary have tended to allow claims for rescuers.22 However in White 23 the House of Lords held that neither a rescuer nor an employee was placed in any special position in relation to recovery for psychiatric harm by virtue of being a rescuer or employee. This therefore limited claims for recovery for psychiatric harm. It could be argued that emergency services personnel should be limited in their scope for claiming psychiatric damage as they would have known and accepted the risk by entering in to this line of work. However, establishing a blanket approach may limit their access to justice for extremely horrific events resulting in psychiatric harm. Claims for witnessing self harm have also been limited. Where a claimant suffers psychiatric harm after witnessing the defendant negligently injure himself public policy grounds have been used to deny recovery for damages. 24
There have been calls for legislative intervention. The Law Commission Report on Liability for Recovery for Psychiatric Illnesses 1998 25 concentrated on the position of secondary victims recognising the flood gates arguments. It suggested the ‘control mechanisms’ in Alcock should be modified by restricting the criteria of proximity and concentrating on the requirement of a close tie of love and affection. The Law Commission recommended a fixed list of relationships where a close tie would be conclusively proved. It also recommended the abolition of the requirement of a sudden shock and that it should include negligently inflicted psychiatric injury that had developed over a number of years. The Commission also wanted liability for situations where the defendants actions in imperilling themselves caused the claimant’s psychiatric illness. They incorporated a draft bill (Draft Negligence (Psychiatric Illness) Bill) and attached it to the Report but Parliament has yet pass this in to legislation.
In conclusion then, while it is fair to say that not everyone should be able to claim for witnessing an accident, as it would lead to an overwhelming number of cases, there is an argument that the courts may have overly limited the scope under which a secondary victim can claim. The proximity considerations, closeness of relationship and immediate perception requirements have been shown to be potentially over limiting and unfair. Judgements could also be said to be inconsistent and this makes it difficult for the public to have confidence in the court system. It is likely that legislation is needed to codify existing case law to allow for a fairer system with greater parity and consistency. However, the fact that sixteen years have passed since the initial draft stage of legislation aimed at solving the problems, shows that this is not a priority for recent governments.
Alcock v Chief Constable of South Yorkshire Police  1 AC 310
Bourhill v Young  AC 92
Chadwick v British Railways Board  1 WLR 912
Corr v IBC Vehicles Ltd  UKHL 13
Dulieu v White  2 KB 669
Galli – Atkinson v Seghal  EWCA Civ 697
Greatorex v Greatorex  1 WLR 1970
Grieves v FT Everard & Sons Ltd  UKHL 39
McLoughlin v O’Brian  1 AC 410
Page v Smith  UKHL 7
Sion v Hampstead Health Authority  EWCA Civ 26
Smith v Leech Brain & Co  2 QB 405
Walters v North Glamorgan NHS Trust  EWCA Civ 1792
White and Others v. Chief Constable of South Yorkshire and Others  UKHL 45;  2 AC 455
Journals and Reports
Hogarth A, ‘Unpicking the Patchwork Quilt – Secondary Victims and Psychiatric Injury – Where are we now?’  12KBW
Kotak D, ‘Communication with relatives and carers — another source of litigation’  JICS 212, 213
Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998)
Leverick F, ‘Counting the ways of becoming a primary victim: Anderson v Christian Salvesen.’  ELR 258, 263
M Elliot, ‘Secondary victims of negligence’ in (eds), Litigating Psychiatric Injury Claims: Personal Injury and Medical Negligence (1st, Bloomsbury Professional, London 2012).
Patten K, ‘Patchwork quilt law’ (newlawjournal.co.uk 2013) <http://www.newlawjournal.co.uk/nlj/content/patchwork-quilt-law> accessed 23/05/2014
1 White and Others v. Chief Constable of South Yorkshire and Others  UKHL 45;  2 AC 455
2 Keith Patten, ‘Patchwork quilt law’ (newlawjournal.co.uk 2013) <http://www.newlawjournal.co.uk/nlj/content/patchwork-quilt-law> accessed 23/05/2014
3 Andrew Hogarth, ‘Unpicking the Patchwork Quilt – Secondary Victims and Psychiatric Injury – Where are we now?’  12KBW
4 Dulieu v White  2 KB 669
5 Page v Smith  UKHL 7
6 Corr v IBC Vehicles Ltd  UKHL 13
7 Supra Note 3 Page v Smith  UKHL 7
8 Grieves v FT Everard & Sons Ltd  UKHL 39
9 F Leverick, ‘Counting the ways of becoming a primary victim: Anderson v Christian Salvesen.’  ELR 258, 263
10 Bourhill v Young  AC 92
11 Smith v Leech Brain & Co  2 QB 405
12 M Elliot, ‘Secondary victims of negligence’ in (eds), Litigating Psychiatric Injury Claims: Personal Injury and Medical Negligence (1st, Bloomsbury Professional, London 2012).
13 McLoughlin v O’Brian  1 AC 410
14 Alcock v Chief Constable of South Yorkshire Police  1 AC 310
15 Supra Note 3, p7
16 Supra Note 13
17 Alcock v Chief Constable of South Yorkshire Police  1 AC 310
18 Galli – Atkinson v Seghal  EWCA Civ 697
19 Sion v Hampstead Health Authority  EWCA Civ 26
20 Walters v North Glamorgan NHS Trust  EWCA Civ 1792
21 D Kotak, ‘Communication with relatives and carers — another source of litigation’  JICS 212, 213
22 Chadwick v British Railways Board  1 WLR 912
23 Supra Note 1
24 Greatorex v Greatorex  1 WLR 1970
25 Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998)