SECONDARY VICTIM PROBLEM
Updated: May 8
Discuss the elements a secondary victim needs to prove to have a successful negligence claim for pure psychiatric damage.
Explain whether in your opinion it is fair to treat pure psychiatric damage as a limited duty situation and whether you consider that the Alcock criteria for secondary victims are fair.
You should support your answer with reference to case law.
SECONDARY VICTIM PROBLEM ANSWER
When answering a secondary victim problem question look at Alcock v Chief Constable of South Yorkshire were family members and acquaintances of the FA Cup Semi Final victims. The event's police failed to spot congestion in the stands, resulting in a tragic crush with around 100 injuries. Claimants alleged that the event left them traumatised and mentally scarred, prompting the House of Lords to consider the limits of culpability for psychiatric harm.
First, the House of Lords recognised that a close relationship between the claimant and the victim is required for mental impairment to be fairly foreseeable. This connection is presumed to exist between a parent and their child or between married persons; however, non-married or engaged couples or siblings might be recognised if they can establish a relationship of love and affection exists between them. The defence might also claim that a couple's or parent's relationship may not be as close as needed.
The House of Lords insisted that the claimant be close to the distressing occurrence. For example, a claimant who is present at the scene of the tragedy has adequate proximity. McLoughlin established adequate closeness if the claimant confronts the “immediate aftermath” of the accident, albeit the House did not elaborate. Lord Ackner said McLoughlin's proximity criteria were adequate. The "sudden effect on the senses" is deemed crucial in producing a mental harm; hence, seeing the dead person in the morgue, many hours after the victim's death, was not considered an "instant aftermath."
The House of Lords ruled that a claimant may only have a claim, if they were personally there during the tragedy or its immediate aftermath. People who saw television coverage of the occurrence were not eligible. In the Alcock case, those who viewed the live telecast in Hillsborough did not have a claim since they did not see the victims' anguish. They missed the catastrophe and could not recognise the victim’s faces. The House further said that if such photographs were televised, they would have likely violated broadcasting standards and disrupted the causal chain. Jones argues that primary and secondary victims are indistinguishable. The existing legal framework is justified by this disparity, but it does not justify the multiple responsibility standards. The criteria to be taken into account when considering whether a duty of care is owed to secondary victims includes:
1. Whether claimant has suffered a recognised psychiatric illness;
2. Foreseeability of the psychiatric damage;
3. The relationship between the claimant and ‘the victim’;
4. Proximity in time and space; and
5. Manner of perception.
The reasons for limiting recovery for psychiatric harm is first there is a risk of opening the ‘floodgates’ to negligence claims. Lord Wilberforce's remarks in McLoughlin v O'Brian shows that an extension might lead to fraudulent claims by attorneys or psychiatrists for nervous shock, known in the US as usual miscarriage. He further argued that responsibility might unfairly burden defendants and insurance companies, lengthen litigation, and cause evidentiary problems. Lord Wilberforce said extending liability was a legislative choice. This perspective's power to drive legal decision-making and reject legal expansion is contested, and judges shouldn't make policy-based decisions.
If another indecent occurred where their where a lot of spectators like a hot air balloon explosion this would create hundreds of claims. This in turn would lead to the stressful process of litigation may inhibit mental recovery. Furthermore, it may be hard to assess when a mental injury occurs and what causes it due to the limits of medical knowledge. There is therefore a risk of overcompensation. Lastly the law has reached such a complex state that the simplest solution is just to refuse recovery for psychiatric harm. The reasons for not limiting recovery for psychiatric harm are the control mechanisms are built around the idea that mental injury is caused by a ‘shock’. Increased medical knowledge has shown this to be untrue. Medical injuries can be just as ‘real’ and damaging as physical ones. Moreover increased medical knowledge will allow the courts to strike out frivolous or unmeritorious claims.
John Rawls addresses a fair and just legal system in A Theory of Justice. Rawls created the ‘veil of ignorance' to separate decision makers from their own selfish impulses by preventing them from knowing how the choice would affect them. The actor is not selfish since he cannot tell whether his choice would benefit him. Rawls contends that decision-makers should use reflective equilibrium. Decision makers should consider every angle and determine what's reasonable and fair in each situation. In Alcock, the courts have engaged in reflective equilibrium, transferring broad principles of law to hypothetical persons. The courts followed Rawl's distributional fairness doctrine. Their separation of 'primary' and 'secondary' victims proves the courts' reflective equilibrium theory. This approach is criticised because judges have wide discretion in tort lawsuits. If judges continue to conduct honestly under reflective equilibrium, they will defend others' rights without having to resort to limiting claims.
Alcock v Chief Constable of South Yorkshire  4 All ER 907
Hambrook v Stokes Bros  1 KB 141
McLoughlin v O’Brian  2 All ER 298
Rawls, John, A theory of justice, (Harvard University Press, 2020)
Jones, M A, “Liability for Psychiatric Illness - More Principle, Less Subtlety?”  4 Web JCLI
Mullany and P R Handford, “Hillsborough Replayed” (1997) 113 LQR 410
Nasir, “Nervous Shock and Alcock: The Judicial Buck Stops Here” (1992) 55 MLR 705
Law Commission, Liability for Psychiatric Illness, (1998), LC249 at http://www.lawcom.gov.uk/docs/lc249(1).pdf
  4 All ER 907  Hambrook v Stokes Bros  1 KB 141  McLoughlin v O’Brian  2 All ER 298  M A Jones, “Liability for Psychiatric Illness - More Principle, Less Subtlety?”  4 Web JCLI  McLoughlin v O’Brian  2 All ER 298  Rawls, John, A theory of justice, (Harvard University Press, 2020)