Claims for psychiatric harm - Secondary victims

Learning Outcomes

This article outlines the specific legal requirements for establishing a claim in negligence for psychiatric harm suffered by a secondary victim. It details the control mechanisms established by case law, particularly the Alcock criteria, necessary for determining duty of care. For the SQE1 assessments, you will need to differentiate between primary and secondary victims and apply the stringent tests applicable to secondary claimants. This involves understanding concepts such as proximity, the means of perception, and the requirement for a sudden shocking event leading to a recognised psychiatric illness.

SQE1 Syllabus

For SQE1, candidates must understand the principles governing claims for psychiatric harm, specifically differentiating the rules for primary and secondary victims. This article focuses on secondary victims. Your revision should cover:

• The definition and scope of 'pure psychiatric harm' in tort law.
• The distinction between primary and secondary victims of psychiatric harm.
• The specific control mechanisms or tests established in Alcock v Chief Constable of South Yorkshire Police for secondary victim claims.
• Requirements relating to proximity: closeness of relationship, time and space, and means of perception.
• The necessity for the psychiatric injury to result from a sudden and shocking event.
• Application of these principles to factual scenarios typical of SQE1 assessments.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which relationship generally satisfies the 'close tie of love and affection' presumption for secondary victim claims without further evidence?
   1. Siblings
   2. Grandparent and grandchild
   3. Parent and child
   4. Close friends
2. A key requirement for a secondary victim claim, established in Alcock, is that the psychiatric harm must arise from:
   1. A gradual awareness of the event's consequences.
   2. Witnessing the event through news reports hours later.
   3. Direct perception of the event or its immediate aftermath through one's own unaided senses.
   4. Hearing about the event from a third party who was present.

3. True or false? A secondary victim must demonstrate they were within the zone of physical danger created by the defendant's negligence.

Introduction

Claims for pure psychiatric harm (harm suffered without physical impact) present distinct challenges within the tort of negligence. While the law acknowledges that psychiatric illness can be as debilitating as physical injury, concerns about potential 'floodgates' of litigation and difficulties in proving causation have led courts to impose strict limits on recovery, particularly for 'secondary victims'.

Key Term: Secondary victim An individual who suffers recognised psychiatric injury as a result of witnessing injury to another person (the primary victim) or the immediate aftermath, without being in the zone of physical danger themselves.

Secondary victims are typically bystanders or those arriving shortly after a traumatic event. Unlike primary victims (those directly involved or within the zone of physical danger), secondary victims must satisfy a demanding set of criteria, often referred to as control mechanisms, to establish that the defendant owed them a duty of care. These criteria were significantly clarified in the landmark case of Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

The Alcock Control Mechanisms

The House of Lords in Alcock established stringent tests that a secondary victim must satisfy to demonstrate the necessary foreseeability and proximity for a duty of care to arise. Failure to meet any one of these criteria will usually defeat the claim.

1. Foreseeability of Psychiatric Harm

It is not enough to show that some harm was foreseeable. The claimant must establish that it was reasonably foreseeable that a person of ‘normal fortitude’ or ‘ordinary phlegm’ in the claimant's position would suffer a recognised psychiatric illness as a result of witnessing the event. This objective test sets a baseline standard, although the ‘egg-shell skull’ rule may apply if this threshold is met (meaning the defendant takes the victim as they find them, even if unusually susceptible).

2. Proximity of Relationship: Close Ties of Love and Affection

The claimant must demonstrate a close tie of love and affection with the primary victim (the person injured or endangered by the defendant's negligence).

• Presumed Ties: The law presumes such ties exist between spouses, civil partners, parents and children, and fiancés.
• Proof Required: For other relationships (e.g., siblings, grandparents, friends), the claimant must adduce evidence to prove the requisite close tie. In Alcock, claims by siblings and other relatives failed where such ties were not specifically evidenced.

3. Proximity in Time and Space

The claimant must have been present at the scene of the accident or witnessed its immediate aftermath.

• Presence at Scene: Being physically present when the horrifying event occurs clearly satisfies this.
• Immediate Aftermath: This concept was explored in McLoughlin v O'Brian [1983] 1 AC 410. Mrs McLoughlin arrived at the hospital approximately two hours after a serious road accident involving her family. She witnessed their injuries before they had been treated or cleaned up ('still covered in oil and mud'). The House of Lords held this fell within the immediate aftermath. In contrast, claimants in Alcock who identified bodies in a mortuary some eight to nine hours later were held to be outside the immediate aftermath.

4. Means of Perception: Direct Sight or Hearing

The psychiatric injury must result from the claimant perceiving the shocking event or its aftermath with their own unaided senses (sight or hearing).

• Third-Party Communication: Learning about the event from a third party is insufficient.
• Media Coverage: Witnessing events via television or radio broadcasts generally does not satisfy this requirement, as established in Alcock. The House of Lords considered that simultaneous broadcasts of horrific events showing identifiable individuals suffering might potentially suffice, but this remains a high bar rarely met due to broadcasting standards.

5. Sudden Shock Requirement

The psychiatric injury must be induced by a sudden and shocking event, rather than being the result of a gradual accumulation of distress or a dawning realisation of events.

Key Term: Sudden shock A sudden assault on the nervous system or violent agitation of the mind resulting from witnessing a horrifying event or its immediate aftermath. Psychiatric illness caused by a gradual accumulation of strain is generally not recoverable for secondary victims.

Worked Example 1.1

Ahmed witnesses a serious collision caused by Devi's negligent driving. Ahmed's brother, Bilal, is severely injured in the crash. Ahmed rushes to his brother's side immediately after the impact. Ahmed later develops severe PTSD. Devi argues she owes no duty because Ahmed wasn't physically harmed.

Can Ahmed potentially claim as a secondary victim?

Answer: Yes, potentially. Ahmed is not a primary victim as he was not in the zone of physical danger. To claim as a secondary victim, he must satisfy the Alcock criteria. Foreseeability of psychiatric harm to a person of normal fortitude witnessing such an event is arguable. A sibling relationship requires proof of close ties, but it's possible. Ahmed witnessed the event and its immediate aftermath directly through his own senses. The injury arose from a sudden, shocking event. If he proves the close tie, his claim may succeed, subject to establishing the other negligence elements (breach, causation).

Worked Example 1.2

Chloe learns via a phone call that her best friend, Dana, has been seriously injured in a factory explosion caused by the employer's negligence. Chloe visits Dana in the hospital the next day. Dana is heavily bandaged and unconscious. Chloe suffers a recognised depressive illness following the visit.

Is Chloe likely to succeed in a claim against Dana's employer?

Answer: Unlikely. Chloe is a secondary victim. While she may be able to prove a close tie of love and affection with Dana (though this requires evidence for friends), she fails on proximity in time and space. Visiting the hospital the day after does not constitute witnessing the event or its immediate aftermath as defined in McLoughlin and Alcock. Furthermore, learning of the event via phone call does not meet the direct perception requirement.

Policy Considerations

The restrictive approach to secondary victim claims is heavily influenced by judicial policy concerns:

• Floodgates: Fear of indeterminate liability to a potentially large number of people who might suffer psychiatric harm from witnessing events.
• Evidentiary Difficulties: Challenges in distinguishing genuine psychiatric illness from ordinary grief or distress, and proving the causal link to the defendant's negligence.
• Disproportionate Burden: Concern that imposing liability on defendants for harm to those not directly endangered could be disproportionate to the degree of fault.
• Societal Norms: A judicial view that the law should expect reasonable fortitude from citizens and not compensate for all emotional suffering.

Rescuers

Initially, it was thought rescuers might form a special category. However, White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 clarified that rescuers are subject to the same rules as other claimants. Professional rescuers (like the police officers in White) who are not themselves endangered (i.e., not primary victims) must satisfy the Alcock criteria, including the need for a close tie of love and affection with the primary victim, which they typically cannot do in a professional capacity.

Exam Warning

Do not assume rescuers are automatically owed a duty for psychiatric harm. Apply the primary/secondary victim distinction rigorously. If a rescuer was objectively exposed to physical danger or reasonably believed they were, they are a primary victim. If not, they are a secondary victim and must meet the Alcock criteria, which is usually impossible for professional rescuers regarding those they rescue.

Summary

Establishing a duty of care for pure psychiatric harm suffered by a secondary victim requires satisfying all the stringent Alcock control mechanisms:

These controls reflect policy concerns about limiting liability for psychiatric harm.

Key Point Checklist

This article has covered the following key knowledge points:

• Pure psychiatric harm is injury suffered without physical impact.
• Secondary victims are those who witness harm to others, not being in physical danger themselves.
• Establishing a duty of care for secondary victims requires satisfying the Alcock control mechanisms.
• These include reasonable foreseeability of psychiatric illness in a person of normal fortitude.
• A close tie of love and affection with the primary victim is required (presumed in some relationships, must be proved in others).
• Proximity in time and space (presence at the event or immediate aftermath) is essential.
• Direct perception through the claimant's own unaided senses is necessary.
• The harm must result from a sudden, shocking event.
• Rescuers are generally treated as primary or secondary victims based on whether they were endangered.
• Policy considerations significantly limit the scope of liability for secondary victims.

Key Terms and Concepts

• Secondary victim
• Sudden shock