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Published: Fri, 02 Feb 2018
Claims for Psychiatric Damage by Secondary Victims: Areas for Reform
This report examines psychiatric damage claims for secondary victims, who face restrictive controls which have limited the amount of meritorious claims
significantly. As a matter of policy the law insists on control mechanisms in order to limit the number of potential claimants who were not the primary
victims of tortious conduct. While it may be true that there should be limitations on claims as shocking events can affect a very wide number of potential
claimants, the regime for secondary victims as it stands is arguably in need of reform. This is an opinion expressed by judges, lawyers, and others, as the
results reached by courts after applying the criteria for recoverability can be incongruous and unjust. This report critically analyses the law on
secondary victims with psychiatric harm and makes suggestions for reform.
A. The Primary and Secondary Victim Distinction
The English law distinguishes between psychiatric harm, or “nervous shock”, to primary and secondary victims involved in an incident. A secondary victim
has often been defined as a bystander and one outside the range of suffering from foreseeable physical harm. Usually, the secondary victim’s involvement
with an incident is as a witness or one who hears of the harm suffered by another.
It was in Page v Smith that the House of Lords divided claimants into two groups, primary and secondary victims. Secondary victims, as opposed to
primary victims, have to satisfy additional criteria as outlined in Alcock v Chief Constable for South Yorkshire and Page v Smith. The
criteria are discussed in the section below.
B. Criteria in Secondary Victim Claims
Claimants are required to show that they suffered a recognised psychiatric disorder in order to establish duty of care. They must also satisfy a layered
proximity test which is set out in Alcock. In Alcock, claims were brought by friends and family of spectators in the stadium in the
Hillsborough disaster. The test applied requires that the harm suffered was reasonable foreseeable, that there was a close tie of love and affection
between claimant and primary victim; that the claimant was proximate in time and space to the incident or immediate aftermath; that the harm was triggered
by the sudden appreciation of a horrifying event (ie the shock requirement); and that the secondary victim perceived the event through their own senses
(through their direct perception). Most recently, the Court of Appeal confirmed the criteria in Taylor v A Novo.
II. Current Law and Reform
According to Cashman, the current state of the law on recovery for secondary victims for their psychiatric injury is “extremely messy”, and characterised
by conflicting decisions in a type of “patchwork quilt”. In a 1999 decision, Lord Steyn stated that the law on recovering damages for psychiatric harm “is
a patchwork of distinctions which are difficult to justify”. Cashman argues that the criteria are difficult to apply, have led to incongruous results and
are “being stretched beyond recognition or entirely ignored”.Main areas under consideration for reform are the issues of recognised psychiatric disorder
and the proximity test. These are discussed below.
A. Recognised Psychiatric Disorder
In order to have a meritorious claim, the secondary victim must show that they are suffering from a recognised psychiatric disorder. The problem remains as
to what constitutes a recognised psychiatric condition as opposed to grief, anger or distress, or another emotional response as this relies on psychiatry.
Damages for cases of bereavement, where there is no recognised psychiatric disorder, are limited. Thus, cases of grief and sorrow are generally not
compensated or minimally compensated. The courts have noted a policy objective in not extending liability to such cases, stating that there is no logical
stopping point for such cases.
Disorders generally must be recognised by a manual of psychiatry. One way to reform the current restrictive system is to follow the lead of states such as
New Zealand. There, the need for a recognised psychiatric disorder is a general rule but not absolute. Such a reform would allow courts more flexibility in
awarding damages to claimants whose disorder is not listed in a psychiatry manual.
Case argues that it is illogical to stop at recognised psychiatric disorders given that minor physical injuries are actionable. However, it is so
entrenched that it is unlikely that there will be movement toward actions for grief or other emotions short of disorders at common law. Meanwhile, as
discussed below, a case can be made for removing the proximity controls that limit secondary victims.
A secondary victim must prove that their psychiatric harm was a reasonably foreseeable result of the negligence showing proximity involving a close tie of
love and affection, a shocking event, and direct perception of the incident or its immediate aftermath.
In Alcock, the court stated that there was no proximity where there was a time delay between a mortuary visit nine hours after the traumatic
accident resulting in the death of a relative, as the purpose of the visit (identification) and the time frame took the secondary victim outside the
immediate aftermath of the fatal accident. As a matter of policy, in Alcock the court decided against simply asking regarding reasonable
foreseeability and subjected secondary victim cases to special notional duty restrictions.
Several cases, when compared, demonstrate illogical results. In Walters v North Glamorgan NHS Trust, a hospital failed to, at an early stage,
diagnose a baby’s hepatitis. She suffered an epileptic fit and her health deteriorated over a 36 hour period resulting in death. The Court of Appeal held
that her mother did suffer a “shock” and the 36 hour period was one traumatic event. However, the court had contrasting positions in similar cases such as
in Taylor v A. Novo Ltd where the claimant was not present at her mother’s workplace accident but at her death three weeks later, and the court
held in favour of the defendant. As the claimant was not present at the time of the accident nor was she involved with its immediate aftermath she could
not recover as there was a lack of proximity. The court argued that if they held otherwise then claimants could recover potentially years after a negligent
In Froggatt v. Chesterfield & North Derbyshire Royal Hospital NHS Trust, a hospital negligently diagnosed a woman as having breast cancer when
she in fact did not, and the woman had a mastectomy. The son overheard his mother telling a friend on the telephone that she had cancer. The woman’s
husband sustained psychiatric injury as a result of seeing her for the first time with only one breast. As the court held for the secondary victims, both
her son and her husband, in this case, we can note the incongruous results and see how some courts stretch the concept of secondary victim.
The sudden shocking event requirement is also problematic in cases where relatives may see a loved one’s condition slowly deteriorate rather than in a
sudden shock fashion. This has been, as argued by Case, slightly softened and is an indication of mellowing of proximity tests. And yet, there are cases
showing a stringent application of the proximity requirement so that results can be quite unpredictable. By contrast, in Australia, the courts have had
misgivings about requiring direct perception of a sudden shocking event.
Hogarth and Cashman suggest a return to cases prior to Page v Smith when the UK, like Australia held that whether a duty was owed in a case was
dependent on the nervous shock being reasonably foreseeable by someone in the position of the defendant. The reasonable foresight of someone in the
position of the defendant was evaluated by considering the effect the act would have on a person of ordinary fortitude. According to Hogarth and Cashman,
there should be no fear of opening the floodgates to claims as most secondary victims have difficulty showing reasonable fortitude. In addition, claimants
face criteria such as proving a recognised psychiatric disorder caused by actionable negligence, and only a fraction of secondary victims are able to do
An additional issue is the criteria of establishing that there was a close tie of love and affection between the primary and the secondary victim. In
English courts, the focus is often on a relative relationship and the legal status of that relationship is taken into account, whereas in Australian
courts, the degree of closeness between the victims is most important. Since focusing on the legal status of a close relationship can produce incongruous
results, a more liberal approach such as the one taken by Australian courts would allow more meritorious claims to succeed.
As discussed above, the Alcock criteria of recoverability for secondary victims of psychiatric damage are difficult to apply in practice and
courts have been stretching the criteria in sympathy with claimants or ignoring the criteria in other cases. This has led to incongruous and unpredictable
results and the need for reform has been recognised by courts, lawyers and commentators. As the Australian courts are more flexible and arguably in
applying stringent criteria in secondary victim of psychiatric damage cases, their methods can lead to less incongruous results than in the English courts.
Responding to difficulties with the criteria, the courts are looking at the specific facts of each case and deciding them individually. The more horrific
the facts, the more likely that a claim is to succeed.Cashman argues that the courts have been applying the control criteria far less rigidly, closer to
what the courts do in Australia where they largely abandoned the control criteria and look at whether it was reasonably foreseeable that a person would
suffer injury as a result of negligence.
In addition, in Australia, the psychiatric disorder in question does not have to be a recognised psychiatric disorder. It would be unjust to continue to
deny relief to secondary victims simply because their disorder is not currently recognised by psychiatry. A maximum recoverable amount can be set in the
case of psychiatric damage short of a recognised disorder.
The English law does not completely equate psychiatric damage to be as worthy of compensation as physical damage. This is the case despite the fact that
claimants are often not in a position to protect themselves from psychiatric harm, and meanwhile physical injuries are readily compensable even in cases of
minor injuries. The Australian law is also instructive on this matter, as it goes further to recognise the worthiness of psychiatric damages claims which
should not be regarded as somehow less deserving under English law.
Diana Brahams, Clarification of the `eggshell skull’ doctrine. Lancet, 1995 Jun 3; 345 (8962):1430.
Paula Case, ‘
Secondary Iatrogenic Harm: Claims for Psychiatric Damage Following a Death Caused by Medical Error
’  Modern Law Review Jul2004, Vol. 67 Issue 4, p561-587, p. 563.
Andrew Hogarth QC, and Vanessa Cashman, ‘Unpicking the patchwork quilt: Secondary Victims and Psychiatric Injury—where are we now?’ , King’s
Bench Walk, p. 4
 1 A.C. 310.
 1 AC 155.
Case (n 3) 2004, p. 563.
Case (n 3), p. 564.
 P.I.Q.R. P15.
Vanessa Cashman, ‘Unpicking the Patchwork Quilt: Psychiatric Injury and Secondary Victims’ , PI Brief Update.
Ibid. citing White v Chief Constable of South Yorkshire  2 AC 455.
Hogarth and Cashman (n 4), p. 3.
Case (n 3), p. 567
Ibid. p. 568 citing Alcock  1 AC 310, 416-417.
Ibid., p. 570.
Ibid., p. 568.
Ibid., p. 570.
Donal Nolan, ‘Deconstructing the duty of care’ , L.Q.R. 2013, 129(Oct), 559-588, p.571.
2003 PIQR P16.
Hogarth and Cashman (n 4), p. 8.
Ibid, p. 8-9. Taylor v A. Novo Ltd is the first Court of Appeal case on secondary victims in ten years.
Cashman (n 11).
2002 EWHC 3027.
Hogarth and Cashman (n 4), p. 9.
Case (n 3), p. 574.
Ibid., p. 575.
Ibid., p. 577.
Hogarth and Cashman (n 4), p. 17.
Case (n 3), p. 586-7.
Ibid., p. 573.
Hogarth and Cashman (n 4), p. 7.
Cashman (n 11).
Hogarth and Cashman (n 4), p. 23.
Cashman (n 11).
Scottish Law Commission, Discussion Paper on Damages for Psychiatric Injury Discussion Paper No 120, , p. 28.
Case (n 3), p. 586.
Alcock v Chief Constable of South Yorkshire  1 A.C. 310; Times, November 29, 1991 (HL)
Froggatt v. Chesterfield & North Derbyshire Royal Hospital NHS Trust  EWHC 3027
Hatton v Sutherland County Council  2 All ER 1, 7
Page v Smith  AC 155
Taylor v A Novo (UK) Ltd  EWCA Civ 194;  Q.B. 150 (CA (Civ Div))
Walters v. North Glamorgan NHS Trust  PIQR P16
White v Chief Constable of South Yorkshire  2 AC 455
Brahams, Diana, ‘Clarification of the “eggshell skull’ doctrine’ 
Lancet, Jun 3; 345 (8962):1430.
Butler, D., ‘An assessment of Competing Policy Considerations in Cases of Psychiatric Injury’  10 Torts Law Journal 2.
Case, Paula, Secondary Iatrogenic Harm: Claims for Psychiatric Damage Following a Death Caused by Medical Error’  Modern Law Review Jul2004, Vol. 67 Issue 4, p561-587.
Cashman, Vanessa, ‘Unpicking the Patchwork Quilt: Psychiatric Injury and Secondary Victims’ , PI Brief Update.
Hogarth QC, Andrew, and Cashman, Vanessa, ‘Unpicking the patchwork quilt: Secondary Victims and Psychiatric Injury—where are we now?’ , King’s Bench
Walk, Available at www.12kbw.co.uk/userfiles/Documents/Unpicking_the_patchwork_quilt_secondary_victims_and_psychiatric_injury.pdf access date 25th April
Nolan, Donal, ‘Deconstructing the duty of care’ , L.Q.R. 2013, 129(Oct), 559-588.
Scottish Law Commission, Discussion Paper on Damages for Psychiatric Injury Discussion Paper No 120, .
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