Areas of applicable law: Tort law – Duty of care – Negligence – psychiatric harm
Main arguments in this case: Who is a secondary victim in psychiatric harm?
Before we consider who is a secondary victim there are two rules that have to be taken into account. These two rules apply regardless whether a person is a primary or a secondary victim. So the first and foremost rule is that a claim in psychiatric harm can only be valid if the harm is medically recognised. That is to say that the mental harm that the claimant is suffering from has to be a recognised medical condition such as pathological grief.
Secondly, the mental harm has to be caused by a sudden and immediate shock which is capable of inducing such harm.
Psychiatric harm is a special type of negligence in which a victim suffers mental harm due to seeing a loved one being physically injured. As this is a special form of negligence, the claimant would first need to prove that the defendant owed him a duty of care, the duty was breached, and because of the breach, the claimant suffered mental harm. Once a duty of care is established, the claimant would need to satisfy a number of further tests to qualify for damages as a secondary victim.
A key case which set down the tests that a secondary victim must pass is the case of Alcock. Alcock was decided after the disaster of Hillsborough where a large number of football fans lost their lives and many more were insured due to the stadium collapsing. The accident was witnessed by many fans and their relatives who later brought their claims of mental anguish on the basis that witnessing their loved and dear ones being physically harmed caused them psychiatric injury.
According to Alcock a secondary victim must pass the following tests in order to bring a case:
a) The primary victim was related to him and the relationship between them was of love and affection. For example, a relationship of such bond can be said to exist between a parent and child, and a husband and wife. In cases where showing such closeness or bond is not obvious, then it is up to the claimant to prove that such relationship exists.
b) The claimant was at the scene when it happened or shortly afterwards. However in the case of McLoughlin v. O’Brian (1982) the court accepted that arriving at the scene a few hours later was sufficient to pass this test provided that there was a chain of events (the claimant was told that her family had been involved in an accident – she rushed to the hospital and saw her family covered in dirt and oil).
c) The claimant heard or witnessed the incident with his own senses. That is to say that the claimant was there at the time and saw and or heard it with his eyes and ears, and did not witness it, for example, on the telly.
The reason that the secondary victims have to go through further tests is mainly due to placing a control mechanism so that people cannot make false claims. For example, how would the system cope if people were able to claim for psychiatric harm because they witnessed horrific incidents on the telly or heard it on the radio?