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Secondary Victims and Psychiatric Injury: What Is the Relevant Event When Considering Proximity? - Rhiannon Lewis, 1 Chancery Lane

19/04/13. The Court of Appeal has recently given judgment in relation to recoverability for psychiatric injury by a “secondary victim”.

In Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194, the claimant brought a claim arising from the death of her mother, who had been injured at work when a colleague had caused a stack of racking boards to fall on her. The claimant’s mother appeared to be making a good recovery, but three weeks after the accident she suddenly collapsed and died as a result of the accident injuries. The claimant witnessed her mother’s death, but did not witness the initial accident.

The judge at first instance allowed the claimant to recover damages as a secondary victim. The defendant appealed on the basis of lack of proximity, due to the fact that the claimant was not present at the time of the accident or involved in its immediate aftermath.

Lord Dyson MR reviewed the line of authority concerning recovery by secondary victims beginning with Alcock v Chief Constable of South Yorkshire Police [1991] 1 AC 301, and noted that this claim did not raise the more common questions which often arise in secondary victim cases. Rather, the issue raised by was whether or not the death of the claimant’s mother was the relevant incident for the purposes of the claimant’s claim as a secondary victim.

Lord Dyson MR held that, in secondary victim cases, the term “proximity” is used in two senses. Considerations of proximity arise firstly in the legal sense, ie. whether or not the relationship between the parties satisfies Lord Atkin’s neighbour principle in order for a duty of care to be owed. Secondly, the law then considers whether the requirement of proximity in time and space is satisfied, with Lord Dyson MR stating that “physical proximity to the event is a necessary, but not sufficient, condition of legal proximity”.

It was held that the death of the claimant’s mother was not the relevant incident in terms of legal proximity, and that allowing the claimant to recover would be “to go too far”. If the first instance judge was correct, the claimant (subject to proving causation) would have been able to recover damages even if her mother’s death had occurred months or possibly years later. However, had she died at the time of the accident and the claimant suffered shock coming onto the scene shortly afterwards, the claimant would not have been able to recover damages because she would have failed to satisfy the physical proximity requirement. Lord Dyson MR therefore held that the idea that the claimant “could recover in the first situation but not in the others would strike the ordinary reasonable person as unreasonable and indeed incomprehensible”. For that reason, it was not reasonable to impose liability on the defendant, as to do so would also potentially enlarge the scope of liability to secondary victims to a much greater degree than had been done before:

A paradigm example of the kind of case in which a claimant can recover damages as a secondary victim is one involving an accident which (i) more or less immediately causes injury or death to a primary victim and (ii) is witnessed by the claimant. In such a case, the relevant event is the accident. It is not a later consequence of the accident”

This case should therefore serve as useful guidance in secondary victim claims involving such novel considerations. It will also be interesting to see how this case may be used by defendants in clinical negligence claims, in order to argue that an alleged “secondary victim” cannot recover damages where they witness the death of an individual some time after negligent treatment, but where they did not witness the “injury” or treatment itself.

Rhiannon Lewis
1 Chancery Lane

Image cc David Dixon

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