Primary vs Secondary Victims

Psychiatric harm (definition)

A medically recognised psychiatric illness or shock

Pure psychiatric harm

A claim where the claimant suffers psychiatric harm only, with no physical injury

Policy reasons limiting psychiatric harm claims

Floodgates, crushing liability, evidential difficulty, risk of fraudulent claims

Primary victim (definition)

A person who suffers psychiatric harm due to reasonable fear for their own physical safety and is within the zone of danger

Zone of danger

Area where the claimant is exposed to risk of physical injury due to defendant’s negligence

Dulieu v White (1901) facts and holding

Pregnant barmaid feared for her safety when a carriage crashed into the pub; suffered shock and child was born with impairments; held primary victim as she reasonably feared physical injury

Page v Smith (1996) facts

Claimant involved in minor car accident; no physical injury but relapse of ME causing severe disability

Page v Smith (1996) holding

If physical injury is foreseeable, defendant is liable for psychiatric harm suffered by a primary victim even if no physical injury occurs

Golden rule (primary victims)

If physical injury was foreseeable, psychiatric harm comes with it

Secondary victim (definition)

A person who suffers psychiatric harm due to fear for the safety of another, not themselves, and is not in the zone of danger

Alcock v Chief Constable of South Yorkshire (1992) facts

Hillsborough disaster; relatives and friends suffered psychiatric harm after watching events on TV or identifying bodies

Alcock v Chief Constable of South Yorkshire (1992) holding

No duty owed to secondary victims due to failure to satisfy proximity and sudden shock requirements

Alcock criteria (must ALL be satisfied)

Psychiatric harm foreseeable in a person of ordinary fortitude; close tie of love and affection; proximity in time and space; sudden shock

Foreseeability (secondary victims)

Psychiatric harm must be foreseeable in a person of ordinary fortitude in the claimant’s position

Bourhill v Young (1943) facts and holding

Pregnant woman heard crash but did not see it; later saw blood; suffered shock; no duty as psychiatric harm not foreseeable in person of ordinary fortitude

Thin skull rule (psychiatric harm)

Once psychiatric harm is foreseeable in a person of ordinary fortitude, defendant takes claimant as they find them (Brice v Brown)

Close tie of love and affection (definition)

A sufficiently close relationship between claimant and victim to justify recovery

Rebuttable presumption of close ties

Parent/child, spouses, fiancés

No rebuttable presumption

Siblings, grandparents, friends (must be proven with evidence)

McLoughlin v O’Brian (1983) facts

Mother arrived at hospital about 2 hours after accident; saw husband and children covered in dirt and blood; one child dead

McLoughlin v O’Brian (1983) holding

Proximity satisfied; hospital scene was part of immediate aftermath; duty owed to secondary victim

Proximity in time and space (definition)

Claimant must be present at the event or its immediate aftermath before the situation is stabilised

Alcock proximity rule

TV footage or learning of the event later is insufficient; claimant must perceive the event or immediate aftermath with their own senses

Sudden shock (definition)

A sudden assault on the nervous system caused by witnessing a horrifying event, not gradual realisation

Sion v Hampstead Health Authority facts and holding

Father watched son deteriorate over two weeks due to medical negligence; psychiatric harm developed gradually; no sudden shock so claim failed

Cullin v London & Civil Defence Authority facts and holding

Firefighter feared for his own safety during rescue attempt; primary victim as he reasonably believed he was in danger

White v Chief Constable of South Yorkshire Police (1999) facts

Police officers assisted with Hillsborough aftermath; developed PTSD

White v Chief Constable of South Yorkshire Police (1999) holding

Not primary victims as they were not exposed to danger; rescuer status alone is insufficient

McFarlane v EE Caledonia Ltd (1994) facts

Claimant on rescue vessel after oil rig disaster; collected survivors but was never in danger

McFarlane v EE Caledonia Ltd (1994) holding

Not a primary victim (no fear for own safety) and not a secondary victim (no proximity or sudden shock)

Medically recognised illness requirement

Courts only allow recovery for recognised psychiatric illness, not grief or distress

Hinz v Berry (1970) facts and holding

Wife witnessed husband killed; could recover for depression but not grief, sorrow, or worry

Shock

induced physical injury

Mazhar Hussain v Chief Constable of West Mercia (2008) facts and holding

Stress and anxiety with numbness insufficient; anxiety not medically recognised and physical symptoms not material

Fair, just and reasonable (psychiatric harm)

Courts consider policy concerns such as floodgates, proportionality, and consistency with negligence principles

Greatorex v Greatorex (2000) facts

Firefighter father attended accident caused by his son and developed PTSD

Greatorex v Greatorex (2000) holding

Secondary victim cannot claim where the person feared for is the defendant; no duty owed

Primary vs secondary victim distinction

Primary victims fear for their own safety; secondary victims fear for others and must satisfy Alcock criteria

TV footage rule

Watching events on television DOES NOT satisfy proximity in time and space (Alcock)

Immediate aftermath (definition)

A continuous, unbroken sequence of events before the consequences have been stabilised or normalised

Exam tip (psychiatric harm)

Always classify claimant first as primary or secondary; apply Page v Smith for primary victims and Alcock criteria for secondary victims