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. 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 … Courts took a less stringent approach in Dulieu Dulieu v White & Sons 1901 1. This has led some commentators and firms representing claimants to suggest that Parliament should intervene to make it easier for these claims to succeed. 3 0 obj See further Practice Note: Psychiatric injury—secondary victims—case tracker. Primary victims -those directly involved in sufficiently shocking (usually life threatening) situations. That case is Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. We posted an article in May 2016 on the developing case law for secondary victims. There must be a close relationship of love and affection between the primary victim and the secondary victim. For secondary victims to succeed in a claim for psychiatric harm they must meet the following criteria: 1. This is then very problematic, therefore that is why I hav… Victorian Railway Commission v Coultas 1888 1. Find up-to-date guidance on points of law and then easily pull up sources to support your advice with Lexis PSL. 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’. A joined action was brought by Alcock (C) and several other claimants against the head of the South Yorkshire Police. 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". 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. 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 … <> Witness the event with their own unaided senses. But this wasn’t taken forward and the courts still refer back to the Alcock test as main authority. In the case of clinical negligence claims this can be a tricky task for the courts to undertake, requiring extensive input from medical experts. The trust disputed the claim and argued that YAH must fulfil the well-established Alcock criteria to recover damages as a "secondary victim". A secondary victim is someone who, when witnessing an accident, suffers injury consequential upon the injury, or fear of injury, to a primary victim. Start studying Psychiatric Damage. $.' With the passage of 27 years, other cases have expanded upon what is meant by each of the criteria, but the category of secondary victims who can claim damages remains broadly the same. <> )-J��[���{0� j � �֨� ܌@.U.T�5Z��^g�Ǜ��p�`�kW[�Ȇ��B�x�`�N��-PT'�[$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 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’. 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 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. The principles of secondary victim claims are well established. Primary victims are simpler to distinguish in comparison to secondary victims. 5 0 obj 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. Proximity concerns claimants having sufficient proximity in time, space and perception to the incident that injured the primary victim. stream 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 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. endobj Following Alcock, secondary victims must satisfy three additional proximity requirements, 106 and rarely succeed in overcoming the high barriers these impose. Free trials are only available to individuals based in the UK. 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’. 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. Present test: Alcock. 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. 3. The case centred upon the liability of the police for the nervous shock suffered in consequence of the events of the Hillsborough disaster. 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. Y0x�}�C�[:!�f;n�g������xC�PEͲ�/�j�� 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. Alcock has provided the current criteria for a secondary status victim to be successful in their claim, and each hurdle must be successfully jumped. 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. They referred to, North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792 . That case is Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. 2. It must be caused by seeing or hearing the relevant incident or its … The law here provides a much stricter approach in this area. directly perceived it or its immediate aftermath). Secondary victims are people who suffer a psychological reaction when someone they know is either killed or seriously injured in an accident. There were complications with the pregnancy and the claimant was present when the doctors confirmed that the child had died in the womb. 2 0 obj 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. 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. 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. 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. First successful claim for psychiatric injury. 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. Any other person is a secondary victim. ���� JFIF ` ` �� C He was also present the following day for the delivery of the still-born baby. Secondary Victims. 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. ",#(7),01444'9=82. 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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. Justice Kennedy: was willing to all… Secondary victims must demonstrate the four Alcockcriteria are present in order to establish liability: 1. The psychiatric injury must be caused by – and result from – a “sudden and unexpected shock”. Control mechanisms. 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 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: The law is generally reluctant to allow claims from secondary victims of psychological harm. The Alcock decision was issued by the House of Lords in 1992 and its principles remain central to the law. Lord Dyson MR gave the lead judgment in a unanimous decision of the Court of Appeal. 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. endstream A close tie of love and affection to a primary victim. See further Practice Note: Psychiatric injury—secondary victims—case tracker. stream 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 close tie of … <>/Font<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 720 540] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> <> 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. Future cases are likely to focus on pin pointing the exact moment when the effect of negligence first manifested itself. Is harm reasonably foreseeable? With the current funding issues will any future clinical negligence cases risk running the secondary victim argument to trial? Learn vocabulary, terms, and more with flashcards, games, and other study tools. 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. Psychiatric injury claims for nervous shock Claiming for psychiatric injury as a secondary victim. x�}�]o�0��I��5���~ ��-.1q�lf��@34Y��+�6�� <>>> … 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… %���� The Alcock decision was issued by the House of Lords in 1992 and its principles remain central to the law. 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 defendant trust admitted negligence in relation to the claimant’s wife and settled her claim. 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. 3. 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. 4 0 obj 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. Witness the event with their own unaided senses. To decide whether Alcock clarified the law, this article will critically discuss … 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. Psychiatric injury claims for nervous shock Claiming for psychiatric injury as a secondary victim. The Negligence and Damages Bill. For secondary victims to succeed in a claim for psychiatric harm they must meet the following criteria: 1. 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