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Espresso quiz: Secondary victim claims

A quick Q&A and True or False Quiz to test you over a quick cup of coffee.

One point for each correct answer (bonus point available on question 1) to a maximum of 11 points.

  1. What is the difference between primary and secondary victims?
    Give yourself a bonus point if you can name the case or Judge who highlighted the distinction.

  2. True or false:
    Special legal principles apply to determining secondary victim claims arising out of clinical negligence as opposed to those arising out of other accidents.

  3. True or False:
    The "control mechanisms" are used for deciding whether someone is a primary or a secondary victim.

  4. Name two of the control mechanisms.

  5. In what year did the event take place which gave rise to the seminal House of Lords cases on secondary victims?

  6. True or false tongue twister:
    You can have a successful primary victim claim without a successful secondary victim claim but not a successful secondary victim claim without a successful primary victim claim.

  7. Is there a set period of time within which a loved one has to arrive to come within the "immediate aftermath" of an incident?

  8. Does the Court focus on a single moment in time when looking for the relevant shocking event which caused the secondary victim’s psychiatric injury?

  9. True or false:
    It is sufficient for a person to witness the traumatic death of a loved one, provided it is caused by the original negligence, to have a potential claim as a secondary victim, even if they did not witness the negligent event/accident or its immediate aftermath.

  10. True or false:
    There have been lots of calls to relax the strict control mechanisms and it is only a matter of time before the Supreme Court does so.

Answers

  1. A primary victim is someone who is involved as a participant in an incident or accident and directly affected by it. A secondary victim is someone who witnesses an incident or accident to another or comes upon the immediate aftermath of it. The most well-known formulation of the distinction comes from Lord Oliver’s speech in Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, at 407D.

  2. False: the same principles apply to clinical negligence secondary victim claims as any other secondary victim claim. This was confirmed by Ward LJ at paragraph 43 of North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792.

  3. False: the control mechanisms are used for determining whether someone can claim as a secondary victim in law; they are not relevant to a primary victim claim.

  4. Once there is reasonable foreseeability of psychiatric harm from the Defendant’s negligence, a Claimant must establish: (i) Close ties of love and affection with the primary victim; (ii) Proximity to the incident in time and space; (iii) Direct perception of the event or its immediate aftermath (hearing about it from a third party is not enough); (iv) Injury from sudden shock. The wording used differs between the cases so provided you are describing the same concept, you get your point for naming two of the control mechanisms.

  5. It was 1989 when the Hillsborough Stadium disaster took place which gave rise to the Alcock case (the relatives’ claims) heard by the House of Lords in 1992 and also White/Frost (the policemen’s claims) in 1999.

  6. True: a primary victim claim does not always give rise to a secondary victim claim which can be established in law, e.g. there may be no secondary victim at all or it may not be possible for the loved one to establish the strict control mechanisms. But you cannot have a successful secondary victim claim, even if the control mechanisms are satisfied, without being able to establish that a Defendant is legally liable to the primary victim. The secondary victim claim is parasitic on the primary victim claim and depends upon there being underlying liability for (clinical or other) negligence.

  7. No, there is no easy to apply cut-off period of time, it will depend on the facts of the case and factors such as what the state of the primary victim was when the loved one arrived, to look at whether this was sufficiently proximate to the Defendant’s negligence. The period of time was around 2 hours in the key original case of McLoughlin v O’Brian [1983] AC 410, but the boundaries have been stretched in other cases since.

  8. Not necessarily. An event is not frozen in time and can be made up of a series of events beginning with the negligent infliction of damage and up until the conclusion of the immediate aftermath. It can be a sequence of events or made up of a number of components which as a whole led to the secondary victim’s psychiatric injury. These observations come from two cases: Walters (cited at A2) where the relevant event lasted 36 hours and Galli-Atkinson v Seghal [2003] Lloyd’s LR 285, where the period was shorter but it was a sequence of events leading up to a mortuary visit. The longest period I am aware of for an "event" is around 48 hours in a first-instance reported case dealt with by an AvMA member, Grainne Barton of Hugh James. See the clinical negligence secondary victim case of: Tredget & Tredget v Bexley Health Authority [1994] 5 Med LR 178.

  9. False: It is the negligent incident/ accident and not the death which is the relevant event for the purposes of determining whether the secondary victim is sufficiently proximate and can establish a secondary victim claim. The secondary victim must be close in time and space to the original negligent event or its immediate aftermath. Witnessing a later traumatic consequence (such as death) caused by that earlier event is not sufficient: Taylor v Novo (UK) Ltd [2013] EWCA Civ 194.

  10. False: the House of Lords (historically in cases such as White/Frost) and the Court of Appeal (in 2013 in the Taylor v Novo case) have made clear that despite the current law being ‘to some extent arbitrary and unsatisfactory’ there should not be any further substantial extension of the law in this area. The Courts have been clear that this should only be done by Parliament. In the current political and economic climate, it is highly unlikely, in my view, that Parliament will legislate to widen the scope of secondary victim claims. But, depending on the outcome of the Hillsborough Inquests, pressure could build to look again at the principles established in the cases arising from that disaster, given that we now know that some of the facts of what happened that day were supressed and misrepresented.

What was your score out of 11?

0 to 3 points:
You need another espresso!

4 to 7 points:
Well done, impressive stuff, take a bow (provided you didn’t take a sneaky peek at the answers before finishing).

8 to 11 points:
You’re a legal lexicon. Reward yourself by taking the rest of the day off. Your friends might have been saying you need to get out more!

Charles Bagot acted for the successful Appellant in the first secondary victim appeal to reach the Court of Appeal for 10 years in Taylor v Novo (UK) Ltd [2013] EWCA Civ 194