First Ground of Appeal: (To be addressed by senior counsel)

As to the psychiatric harm, Marilyn was a primary victim as she was in the zone of danger and she had an apprehension of personal danger when she saw the explosion.

Submission One

A primary victim includes a person who is physically within the zone of danger or imperilled by the defendant's negligence and suffers psychiatric illness as a result. This brings such a person within the range of reasonable physical injury. In psychiatric illness cases, the test of reasonable foreseeability are judged retrospectively having regard to the event that had occurred. The question which the court ought to ask itself is whether it was reasonably foreseeable that the “massive fire and explosion” would expose Marilyn to the risk of personal injury. It is irrelevant whether or not the injury sustained was physical, psychiatric, or both. Furthermore, Marilyn need not have, in fact, suffered any physical injury to be regarded as a primary victim.

Applying the test to the facts of this present appeal, it is submitted that Teakforest Studios Ltd should have foreseen that Marilyn might have suffered some kind of injury as a result of the explosion. Marilyn was at risk of physical injury, which she was fortunate to avoid, from an accident which could be foreseen, and her psychiatric illness was caused by the accident which occurred.

Page v Smith [1996] A.C 155


Submission Two

A claimant could be regarded as a primary victim if he or she suffers psychiatric illness from a reasonable fear of his or her own safety caused by the defendant's negligence. It is not necessary that the claimant should actually be in danger, provided there is a reasonable belief that he or she is in danger. There is no requirement that Marilyn must be aware of the risk of physical danger before the accident occurred. On the facts of the present appeal, it is submitted that the risk was evident at and after the accident. It is further submitted that Marilyn had reasonable grounds to believe that she was in danger and she subsequently feared for her own safety. The consequential result of that fear was the psychiatric illness suffered through the defendant's negligence.

Dulieu v White [1901] 2 K.B. 669

Submission Three

The categorisation of those claiming to be included as primary victims of negligence is not closed. It is submitted that Marilyn should be regarded as a primary victim because the psychiatric illness suffered flowed from a feeling that she brought the abuser (Teakforest Studios Ltd) and the abused (Jane) together. Marilyn was an unwilling participant in the accident that occurred.

W v Essex [2001] 2 AC 592

Second Ground of Appeal: (To be addressed by senior counsel)

As to the facial disfigurement, Marilyn should be absolved of strict liability and is entitled to claim for the physical injury sustained.

The requirements for the owner of an animal being strictly liable for any damage caused are set out by the House of Lords in Mirvahedy v Henley [2003] 2 A.C 491. The second and third requirements can not be satisfied on the facts of this present appeal. Marilyn should be absolved of strict liability.

Submission One

Marilyn can not be held strictly liable because the ‘startled bichon frise' had displayed characteristics of biting its owner, which are abnormal for an animal of the same species. It is also not normal for the animal to bite in particular circumstances where its owner falls onto it. Generally, bichon frises are lovable, playful, patient and affectionate in nature.

Mirvahedy v Henley [2003] 2 A.C 491

Submission Two

There is no evidence to show that Marilyn was aware of the characteristics of this particular bichon frise. Thus, in any event, she could not be held strictly liable for the facial disfigurement.


Mirvahedy v Henley [2003] 2 A.C 491

Third Ground of Appeal: (To be addressed by junior counsel)

“As again to the psychiatric harm, Marilyn was not a secondary victim as she does not satisfy the requirement of a proximate relationship, advocated by Lord Keith in Alcock v Chief Constable of South Yorkshire Police.”

If your Lordship does not find that Marilyn is a primary victim, it is submitted alternatively that she satisfies the conditions of a secondary victim.

Submission One

A prerequisite to claiming for psychiatric injury is that the claimant must have a recognised psychiatric condition. Marilyn has post traumatic stress disorder and therefore this requirement is clearly satisfied.

Submission Two

There are four elements which need to be fulfilled to establish whether a person is a secondary victim. They are as follows:

1) The psychiatric harm must be reasonably foreseeable.

The controls of proximity include:

2) There must be a close tie of love and affection between Marilyn and Jane.
3) Marilyn must be proximate in time and space to the incident.
4) Marilyn must have experienced the incident with her own senses (sight or sound).

Alcock v Chief Constable of South Yorkshire Police [1991] 4 All ER 907

It is submitted that it was reasonably foreseeable that by seeing her niece engulfed in flames, Marilyn would suffer psychiatric injury.

As enunciated by my learned senior, Marilyn was close to the incident in both time and space.

Close ties of love and affection need to be scrutinised. The relationship of aunt and niece does not automatically raise the presumption of a close tie. There must be clear evidence that such a relationship exists. It is clear on the facts of the case that the relationship was one of a close tie of love and affection.
Submission Three

Marilyn experienced the incident through her own senses. She watched the incident through a television monitor which produced a feed “as live as technically possible”. This was not a television broadcast but a feed from the studio of what was currently being filmed. It is submitted that in viewing the incident through the monitor, it was “as great as the actual sight of the accident.” If it is held that the feed was a broadcast, then the same principle applies.

Furthermore, it is reasonable to find that Marilyn heard the incident as the explosion came through the wall into the room where she was.

Alcock v Chief Constable of South Yorkshire Police [1991] 4 All ER 907

Therefore it is submitted that all the elements are satisfied and Marilyn is owed a duty of care as a secondary victim.

Fourth Ground of Appeal: (To be addressed by junior counsel)

“Marilyn clearly accepted the studio's policy on liability when she entered the production stage. Further, that Jane Darcy was negligent in her own right and that this was a substantial and direct cause of Marilyn's injuries. Accordingly, the studio should be absolved of any liability”.

Submission One

Teakforest Studios Ltd can not absolve themselves of any liability. They are statutorily barred from excluding themselves from liability for death or personal injury.