L T 17(LIABILITY FOR NERVOUS SHOCK 2).

PRIMARY AND SECONDARY VICTIMS

1. There are two types of victims, primary and secondary.

2. Primary is one who goes into nervous shock because of some immediate attack on
his person due to defendant's negligence as in Dulieu v White and Sons where the
claimant feared for her own safety when defendant's horse ran into a house where
she was working, although not physically injured but she was badly frightened and
had miscarriage. It means that a claimant may succeed for psychiatric harm if
there's actual physical injury or a reasonable fear of it. However, defendant must
reasonably foresee some harm to the claimant. Thin-skull rule applies to primary
victims ie "you take your victim as you find him" as in Page v Smith, the claimant
succeeded in his claim for ME, which recurred when he went into nervous shock due
to car accident because of defendant's negligence.
3. Secondary victim is one who suffers nervous shock as a result of seeing or
hearing someone else (his/her loved one) being harmed or at risk of harm due to
defendant's negligent act or it's immediate aftermath eg, in Hambrook v Stokes, the
claimant succeeded as a secondary victim when she saw a lorry going towards her
three children for whose safety she went into nervous shock and died. However, if
harm isn't reasonably foreseeable, then defendant is not liable eg, in Bourhill v
Young, the claimant, a pregnant woman didn't succeed in her claim when she gave a
birth to a still baby due to the negligent act of defendant because harm to the
claimant wasn't reasonably foreseeable by him. In Mcloughlin v O'Brian, the
claimant succeeded when she went into nervous shock after witnessing the immediate
aftermath of a serious car accident of her husband and son in the hospital. The
House of Lords set three rules to succeed in nervous shock as a secondary victim:
the closeness of relationship with the primary victim, proximity to the accident,
and that the shock took place because of, what the claimant saw and heard.
4. Law on secondary victims was restated in Alcock v Chief Constable of South
Yorkshire where 95 people died and 400 injured at the Hillsborough football stadium
due to the negligence of the police failing to manage the event to a reasonable
standard, secondary victims were not compensated due to policy reasons. The House
of Lords set out four things to prove in order to succeed as a secondary victim:
(a), harm must be reasonably foreseeable,
(b), secondary victim must have a close tie of love and affection with the primary
victim which depends on the circumstances of a case eg, parents, children and
spouses are presumed to have close ties of love and affection. People other than
these relationships will have to prove their close tie with the primary victim eg,
in Robertson, the claimant failed in his claim for psychiatric harm on the death of
his colleague at work due to defendant's negligence,
(c), there must be proximity in time and space ie secondary victim must be present
at the scene of the incident or have witnessed immediate aftermath (within two
hours of the event according to Mcloughlin), but the Court's approach in respect of
proximity has not been consistent as in Jaensch v Coffey, the aftermath continued
as long as the victim remained in the state caused by accident and on Taylor v A
Novo (UK) Ltd, psychiatric illness of the claimant after three weeks of the injury
inflicted to her mother causing the mother's death wasn't recognised by the court
as immediate aftermath and
(d), the secondary victim must witness the accident or aftermath with their own
unaided senses. It means that he must have witnessed the event directly without
being informed by the third party, watched or heard it on TV, radio or phone etc,
eg in Tan v East London and City Health Authority, the claimant didn't succeed when
he heard on phone that his baby would be stillborn as it had died in it's mother's
womb due to defendant's negligence because the claimant went into nervous shock
through an aided sense (phone).
5. Where primary victims are treated favourably, secondary victims are not, due to
policy reasons, particularly, for fear of the opening of floodgates. If limitations
above are not there, then there can be thousands of potential claimants. Further,
there will be an issue of distributive justice where there will be an increased
pressure on insurance companies to compensate the claimants resulting in increased
insurance premiums on even those who haven't done anything.

REFORMS ON NERVOUS SHOCK:

1. Both Parliament and the Courts have considered reforms on nervous shock
especially, secondary victims which has been heavily criticised after Alcock.
2. In 1998, the Law Commission found law on secondary victim as too restrictive.
It suggested that close tie ( including friends and colleagues) between primary and
secondary victim should be enough for a successful claim and the requirement of
proximity and sudden shock should be removed. However, cases like White show that
recommendation of the Commission is not favoured by the Judiciary. Since then,
there has been no attempt to reform the law in this area
3. The concept of immediate aftermath has been considered unfair and arbitrary, so
it was challenged in a recent case of Paul v Wolverhampton NHS Trust (2020) where
two sisters suffered psychiatric harm after 14 months of their father's death due
to misdiagnose of his heart disease and the claimants were not present at the time
of the negligent event, the court, on appeal, decided that negligent omission
occurred 14 months before psychiatric harm doesn't in itself preclude liability. It
means that it may not be necessary to meet all the Alcock limitations in future.