Please enable JavaScript.
Coggle requires JavaScript to display documents.
Primary and Secondary Victims - Coggle Diagram
Primary and Secondary Victims
You must consider is the claimant suffering extreme grief or psychiatric illness?
The claimant will need to produce medical evidence of psychiatric illness
PTSD can be claimed
Distress, grief, fright and sorrow are insufficient
You must deal with Duty, Breach and Damage
Is this type of injury reasonably foreseeable
Bourne Leisure Ltd v Marsden (2009) – illustrates that psychiatric injury cases are negligence cases first
Primary Victims
A person who suffers psychiatric illness as a result of being directly affected by the negligent act
A primary victim only needs to prove negligence and can claim for physical and psychiatric injury.
Page v Smith (1995)
The defendant should take his victim as he finds him.
Nervous shock should be treated in the same way as physical injury. Egg shell skull rule applies to primary victims
Dulieu v White & Sons (1901) states that it was enough if the claimant suffered psychiatric illness as a result of ‘reasonable fear of immediate personal injury to oneself’
Secondary Victims
The secondary victim will suffer psychiatric injury as a result of fearing for someone else’s safety.
The secondary victim has to prove that psychiatric injury was reasonably foreseeable as a result of the defendant’s negligence to a person of reasonable fortitude.
The modern approach
The class of persons who could claim, the proximity to the incident and the means in which the shock was caused must all be considered.
McLoughlin v O’Brian
The Control Mechanism
There has to be a “control mechanism” because of the potential for an endless supply of claims
Alcock – v Chief Constable of South Yorkshire
The Control Tests
The secondary victim must prove the following
The injury was caused through their own sight or hearing of the incident or the immediate aftermath.
McLoughlin v O’Brian
They are within the relevant class of persons
The psychiatric injury must be caused by the sudden appreciation of a horrifying event
North Glamorgan NHS Trust v Walters (2002)
Borehill V Young
A person of reasonable fortitude is a person with a reasonable mental and emotional strength in facing adversity or danger.
Eggshell skull rule might apply
Bystanders
The law does not allow bystanders to claim for psychiatric injury, but it has not been ruled out.
McFarlane v EE Caledonia
Bystanders are presumed to have the necessary fortitude to cope with the scenes of distress
Rescuers
A rescuer will be able to claim if that person was directly involved and the injury was foreseeable.
Chadwick v British Transport Commission
Who is a rescuer
A rescuer must satisfy the requirement that they objectively placed their self in danger or reasonably believed that they were in danger
Professional rescuers are expected to be able to endure horrific scenes (Firemen, police etc) and cannot claim unless they are in danger themselves
White v Chief Constable of South Yorkshire Police