Purpose
The issues that lie here, and I will be looking in greater detail, are the primary and secondary victims that have to be established before any claim for damages can be done. Primary victims are simpler to distinguish in comparison to secondary victims. The fine line appears more towards the secondary victims when trying to claim for psychiatric injuries that happened to that individual. The law here provides a much stricter approach in this area. This is then very problematic, therefore that is why I have chosen to research and write about this specific question in relation to the Alcock test criteria. I have chosen the Alcock test due to that’s where the secondary victim requirement arises from and also I will try and answer whether the test is too harsh in relation to the secondary victims claiming for their injuries.
The aim of this research question is to try and find an answer in particular to the secondary victim requirement to how it’s complexity affects the end result which is damages. Also I will be considering any future improvements such as reforming the law that could be done to make the situation easier for such claimants to claim for their injuries.
Aim of Research
The purpose and scope of this topic and question I have chosen is to try and develop a conflicting argument in relation to the requirements of constituting a secondary victim even though they don’t have to be directly involved. Also to see through this research and developing case law, if anything needs to be changed to the law or how I think it should be reformed in any way stating the changes that should happen in the development of the law in the future. This is due to, too many people missing out on being able to claim due to not satisfying the Alcock test criteria. The reasoning behind that is that majority of the people who have not been affected by an event in comparison to the primary victims, who are there at the immediate scene.
There has been a fast growing compensation culture developing in England and Wales in recent years in which it has effected significantly the original claims of people who have actually received a psychiatric injury.. However, it is much more difficult to prove those claims due to the compensation culture and the floodgates approach competing against it. These claims are said to be unjustified and may lead to people breaking the law by committing the offence of fraud, due to those involved only want money. This is unfortunate, as they are false claims which affects the people who received an injury and to their damages entitlement.
Brief History
The issue of how secondary victims came from the Hillsborough disaster that happened in 1989 where people got injured and killed by being crushed in a football stadium for being too over crowded. The case of Alcock arose out of that event, as people thought they could claim for psychiatric injury claims even though they weren’t at the immediate scene. The Alcock case reached the House of Lords, but it received various people criticising it by saying that it was ‘too inflexible and archaic ’. The writer submits that something has to be changed with the current law, as people who are denied their right to obtain damages for their injury which they deserve is traumatising. Alternatively, the Law Commission might have to consider being more flexible such as the current legal system in Scotland currently, because here in England and Wales there is not an equal difference in how damages can be obtained through a psychiatric injury arising out of a negligent act of another person.
Further Issues
The other distinction which adds to this complex situation between primary and secondary victims is that the courts are unable to distinguish between the both of them which adds confusion in certain cases whether they actually are primary or secondary victims. This then adds to the question to whether they are entitled to claim any damages..
Another ambiguous issue which I will be attempting to answer is whether the reasonable foreseeability test which was set out by the Alcock test is too harsh in nature, when it comes to satisfying a secondary victim. Another dubious argument is, whether it is compulsory for the secondary victims to be reasonably foreseeable to the person who has negligently inflicted psychiatric injury. However, I will be discussing also whether the other requirements of shock should be subsequently abandoned, which was also introduced by the Alcock test criteria. This is once again uncertain as it links back to the floodgates argument, due to the courts taking the approach that there could be too many potential claimants arising from one incident of a negligence act. The courts have then the only option then of trying to limit the potential list of claimants to a minimum.
Another unsettled area in relation to the requirements of the Alcock test and I will be discussing later in this report is the requirement of close love and affection that has to be satisfied if a secondary victim wants to claim for damages. Alternatively, someone who has not established the close love and affection requirement it is then hard for that person to claim for damages, so the writer submits that this this is not so restrictive in its approach. This would affect people such as mere bystanders who have suffered a psychiatric injury but would find it very difficult to prove in that category in order to claim for damages as they cannot also prove the close love and affection requirement. The issues of proximity, reasonable foreseeability and the sudden shock requirement are all other factors which are arguably too restrictive in nature in establishing whether a claimant can claim for damages or not.
Therefore, I have laid out here these areas that I will be seeking to answer in relation to the Alcock test requirements of satisfying a secondary victim. I have introduced these problems, and by that it is clear to me that the current law is unsatisfactory in relation to secondary victims in particular trying to claim for psychiatric injury damages. It is in desperate need of further development in the current law.
History of Psychiatric Injury & Development by Case law
One of the first cases of its type in “nervous shock” was in the case of Victorian Railways Commissioner v Coultas where the claimant suffered a psychiatric injury as a result of its proximity to the incident. This type of injury was recognised back in the 1900s, where it was formed and started to be reported in the courts, where the legislation had also started to develop its significance further in cases such as and .
In Dulieu v White, which is the authority case for establishing a primary victim, Justice Kennedy held that a person could claim for psychiatric injury only if they are within the range of possible physical harm. Kennedy explained that nervous shock is only permitted if the injury arose from a reasonable fear of immediate injury to be themselves. ” This restriction was later confirmed by the Court of Appeal in Hambrook Stokes, where a mother with a relaxed recovery after suffering psychiatric illness of the expected harm their children, although they do not observe their children to be harmed.
However, Alcock is the case of the Hillsborough disaster which provided the foundation grounds of satisfying the elements of a secondary victim. ‘The law divides the events of Hillsborough in different categories which have been drawn below. There were those with mental suffering which was a concomitant of the assault. This type of mental suffering was a regular as “pain and suffering recovered. Also there were those who did not suffer any physical injuries, but persistent mental suffering. For present purposes, this category had to be divided into two groups:
1) Those who suffered from extreme pain, including cases where the sufferers condition was debilitating, and
2) Those suffering amounted to a recognisable psychiatric illness’ . Therefore, with the history of psychiatric harm, we can move along to the developing case law of this area with a clearer definition.
Development of Case Law in Primary and Secondary Victims
Psychiatric harm is a special duty problem, which arises out the principles of the law of negligence which is the duty of care. A clearer definition of psychiatric harm is that a defendant performs a negligent act out of his own carelessness. That then results in an accident occurring from that event, and a person (the claimant) becomes injured. Owing to that consequence the claimant suffers from a psychiatric injury as a result. In relation to the end result, that would mean that the defendant’s act was negligent as it owed the claimant a duty of care as the duty of care was breached by the claimant resulting in obtaining injuries. One of the questions which arises out of this area of negligence is, did the defendant owe that duty of care to the claimant? This is one element that is crucial to establish the significance to my question.. That is, is the Alcock test too harsh in its manner in trying to obtain a claim for damages for someone that has suffered an injury mentally in result of the defendant’s act by owing a duty of care or not? The significance to this, is to look at the boundaries between primary and secondary victims in to which they are able to claim compensation for their injuries.
Primary Victims
In succeeding in a claim, the courts felt that was only possible if the person was in a range of physical impact of that negligent act. In distinguishing the primary victim element of psychiatric injury a victim has to be directly involved with the accident by receiving an injury, as well as developing some sort of medically recognised psychiatric injury in order to satisfy the Alcock test criteria of obtaining damages. The leading case of primary victims, in this area of negligence, is Page v Smith . The facts of this case was that the primary victims were exposed to the risk of injury and the claimant was involved in an accident where the defendant failed to give way when turning out of a side road in which potentially could have caused injury and damage to himself. Years later, due to the cause of that accident he suffered a serious illness in which the symptoms started to re appear, where before the accident happened he had gone into remission.
That case overpowered the ruling and was affirmed in Dulieu v White where a person may be able to claim even if they were not injured but where in the area of physical danger potentially at the same time. This was then confirmed in the case of Page where a claim for damages can be given even though that person did not actually receive any injury, or could not reasonably foresee it, but was in a zone where potentially a risk of danger could be created. The case of Dulieu then, was generally recognised as the establishment of the cause of action for nervous shock.
In Page v Smith, the lords involved in the final verdict, had different views on this.. Lord Keith argued that ‘the defendant should only be liable if the hypothetical reasonable man in his position should have foreseen that the claimant, regarded as a man of normal fortitude might suffer nervous shock leading to an identifiable illness’ . Therefore, the issue of reasonably foreseeability comes into this again, and the fundamental requirement that it has to be medically recognised. Lord Jauncey however argued that with the issue of foreseeability once again, that it must have happened not in the instance it may have happened.
But having said that, psychiatric injury after receiving a physical injury will not be often too remote and must show that the damage was not also. This is an element that has to be satisfied after the claimant has managed to prove that the defendant had owed him a duty of care, and that he was in breach of that duty of care which has consequently caused damage to the claimant. This comes back to the question, is the Alcock test too harsh in approach to the claim for damages. This area was reflected on in the case of Simmons v British Steel where a claimant received injuries and was found to be within the primary victim classification. In Lord Lloyds approach to this in his judgement, he concluded that the defendants, which was the claimant’s employers was held liable for all the injury consequences due to the defendants were held to be in breach of their duty of care owed to the claimant. This wasn’t the case at the very start, as they were not allowing the claimant to recover any damages due to their argument consisted of that the illness did not appear in result of the direct accident, but it arose from the frustration and anger that happened in result of that accident.
In the primary victim category, the term known as the ‘egg shell skull’ rule is still used in cases of psychiatric injury where you take the victim as you find them. This rule is related to the remoteness where it increases the damages to what would originally have been received and the defendant would be liable for all damages caused. This element was raised in Brice v Brown , where the claimant was in a taxi when it was involved in an accident with a bus. He himself received no injury but his daughter did. Consequently, this resulted in the claimant receiving a mental illness which continued uncontrollably for a period of time. The courts then argued that even though it was foreseeable to suffer a psychiatric illness, the extent of damage was not which concluded that the damage was not too remote.
There has been conflicting case law in this particular area such as in cases of McLoughlin v O’Brian where it was selected as an authoritative case where there was no duty of care owed to the claimant, in respect to normal human emotions which were showed by the claimant, such as upset or grief. In contrast in Bourhill v Young a much earlier case, the House of Lords held that normally people ‘should possess sufficient ‘phlegm’ and fortitude to be able to overcome the normal distress of witnessing an accident’ . This however led to the case of King v Phillips affirming the test for liability of foreseeability in psychiatric injury cases.
However, the House of Lords decided that a duty of care was not owed in Rothwell v Chemical and Insulating Co Ltd where it was a claim about developing an illness from asbestos in the workplace. This is an area of law that is uncertain because it doesn’t extend enough and is very limited, the same opinion of Lord Hoffmann. If a person of normal fortitude has no issues with developing a psychiatric injury, then the reasonable foreseeability does not apply. From the case , the courts held that the foreseeability of injury received physically was sufficient to allow a claimant to claim for damages for psychiatric injury that was received in the accident even if it didn’t occur at all. This then followed on to identify the two types of victims that were established from this.
Secondary Victims
The next type of victims which arises out of the Alcock test criteria is secondary victims. Its legal definition is, a person who hasn’t been directly involved in an accident and hasn’t received any injury at the scene, but has developed a psychiatric injury by being a witness of that accident at the immediate aftermath, or by simply being a mere bystander such as the police, rescuers or employers of the defendant. This then must pass the test that was laid down in the Alcock test.
Alcock v Chief Constable of South Yorkshire Police became the leading case in establishing a secondary victim which set out the requirements. This was seen as the authority case compared to other cases The writer submits that the area of psychiatric injury creates a lot of confusion in determining a secondary victim. It is often disputed how the rules should apply because it is not clear enough. Issue of foreseeability is still applied the same here in this instance, but is difficult to distinguish the same as in the case of Vernon v Bosley where it was asked whether pathological grief apart from psychiatric illness constituted the same to be foreseeable. The courts decided here that normal grief was not medically recognised as a psychiatric injury and therefore the court held in this instance that damages were not to be reduced for irrecoverable normal grief symptoms. But nervous shock as distinct from grief and other emotional sufferings was a kind of injury that was recognised by law. A legal test arose here, whether or not the defendant breached its duty of care. If a duty was owed, then a claim could be settled.
In Alcock, the claim arose out of the facts of the Hillsborough disaster that happened in a football stadium in 1989. It killed 96 people and injured over 700.. The claims then came from the families and relatives of the victims from the disaster for the alleged psychiatric injuries they suffered. Although, White and others v Chief constable of South Yorkshire established the difference that claimants that suffer with a psychiatric injury who are not in physical danger or received any injuries are considered to be secondary victims. The facts of that case was the defendants were the crowd control officers and they had negligently directed an increasingly large number of fans to one end of the stadium at once. This resulted into the suffocation and injury of many fans that lead to death of 94 people, and injured over 750. The test was set down in Alcock to satisfy the criteria of secondary victims. Once established the reasonable foreseeability element there were three further tests to be laid down for the courts to consider. The writer submits that this causes the law to be more complex and relates back to the question whether the test established in Alcock takes too much of a restrictive approach. It comprised of tests such as the cause and nature of developing psychiatric injury, the relationship to the primary victim in terms of ‘close love and affection’ and the issue of the claimant’s proximity to the horrific incident whether they were sufficiently close to the incident in relation to space and time.
The courts held that the closer the emotional ties was, then the stronger the claim for consideration would be meaning that it would satisfy the close family loved one’s requirement. Here is another issue in relation back to the Alcock criteria and to the question in general, that the courts held that with additional evidence that other relationships could be considered. The writer submits that this lacks simplicity and clarity in the law, as it is often traumatic enough for family members of the victim to go through let alone, trying to obtain further evidence in acknowledging who you are. This is one of the biggest issues in relation to the secondary victim’s requirements.
However, the claimants, which was the family of the victims of the Hillsborough disaster failed in terms of trying to claim for psychiatric injury damages due to the fact they failed in one or more of the requirements that was set out in Alcock. Here the House of Lords set out tests of how a duty of care could be imposed to secondary victims. In order to seek the issue of proximity the case of McLoughlin v O’Brian is relevant here as the courts decided in this that there was sufficient proximity to the time and place because the claimant saw her family in the immediate aftermath of a serious car accident within 1 hour of it happening.
In Spence v Percy the courts here refused to recover any type of damages for nervous shock to the claimant as there was no sufficient proximity between the onset of the psychiatric illness and the original accident events. Ideally the issue of proximity distinguished between the elements of primary and secondary victims was stated here but sometimes it is not clear enough.
In Bourhill v Young, it was held by the courts that there was no duty of care owed to the claimant, after the claimant was in a state of shock after seeing a person killed in a horrific incident which led her to a stillborn birth of her baby. There was no conclusive evidence which could be claimed under negligence, due to the issue of proximity could not be proved once again between the two when the incident occurred.
In Alcock all the claimants here tried to claim damages for psychiatric injury after they watched the disaster happening through a television.. This was a claim specifically against the police officers to which they had a duty of care not to allow all of the people into the stadium. It had been appealed against by the argument of seeing such events through the television, did not assist the requirement of being sufficiently proximate to the incident. Also no individual was capable of being identified through the television. The principles that arose out of that case was foreseeability does not itself, or automatically lead to a duty of care.
Arising out of the Hillsborough disaster also was the case of White and others v Chief Constable of South Yorkshire . In contrast, whilst Alcock related to the claims of relatives to the victims obtaining psychiatric injury, White was in relation to the police officers that were on duty on the day of the disaster. The claims differed to Alcock, on the grounds that the defendants owed them a duty of care not to cause them a psychiatric injury as a result of a negligent act occurring. This was a big case for the House of Lords to decide. This reflects back to the question that in this area, coming to a conclusion isn’t simple, and something needs to be done in order for that to be achievable.
On the other hand, it was argued that they were rescuers therefore primary victims. As we know that isn’t possible so the claims were dismissed. That concluded that the defendants could not be entitled to claim for damages for psychiatric injury due to there no authority to support a finding of liability for psychiatric injury caused by witnessing horrific injuries to others. They were also not found to be primary victims because the claimants themselves where not in any risk of physical injury. The writer submits that this is justified in relation to the Alcock test criteria requirements as there is so much complexity to cases and too much of a restrictive approach being used by the courts.
Under the secondary victims’ requirements, some claimants are viable to be entitled for damages under satisfying as being a mere bystander. An example of this is the case of Greatorex v Greatorex where an accident occurred to which the claimant was the defendant’s father where he was a fire officer. He attended the scene to which it was his son he found at the scene where he suffered with a psychiatric injury. The claim however failed on policy grounds due the claimant was a secondary victim under Alcock test criteria. A primary victim didn’t owe a duty of care to a third party which in this instance was the emergency services. If the defendant’s self-inflicted injuries caused that third party psychiatric injury, the courts argued that people who are part of the emergency services are people who you would expect to have some kind of reasonable fortitude and would be able to cope in difficult situations.
The only way a mere bystander who witnessed the accident would be able to satisfy such claims of psychiatric damages was if they satisfied that they had a sufficient close tie of love and affection from a relationship with the individual which would be the primary victim. Having said that rescuers who are part of the emergency services may be able to claim under primary victims, if they can show that they believed to be exposed to any physical danger such as in the instance of fire officers. The writer submits that this is very lenient as obtaining such evidence would be very difficult. A rescuer who is not themselves exposed to physical risk by being directly involved in the rescue will be regarded as a secondary victim and therefore not entitled to make a claim. This can be extended to paramedics who arrive at the scene of an incident, where they can be viewed as secondary victims as they are trained to cope in situations where a horrific injury has been obtained.
Unfortunately, in psychiatric injury claims where personal injury is not reasonably foreseeable, employees and rescuers will not get special consideration. In cases where claimants have to identify bodies at the scene, claimants can claim for psychiatric injuries that resulted from that, if they can prove that a close tie of love and affection to the deceased. That is very restrictive in my opinion, as there is no alternate solution in with the law can accommodate mourners who may have lost a loved one. Giving that evidence would be their last thing on their minds, so there should be a more simplistic approach to this scenario.
In the next chapter I will be discussing more specifically each of the complex secondary victim requirements which are producing issues in the law, where claimants are being challenged to prove those specific provisions.
Law reform
This element according to the Law Society Gazette said ‘liability based solely on reasonable foreseeability of mental injury is out of favour because of the justified fear of the floodgates litigation’ . Problems with this element is there is no legal definition in statute relating to its wider terms and therefore it is difficult to prove liability solely based on this requirement. This then links to the situation that claimants are not able to claim for psychiatric injuries, therefore a gap is created which it is not recognised by the courts who adopts a restrictive approach in result.
Lord Lloyd from Page v Smith argued that most of the time, the question will always be whether the foreseeable injury is psychiatric injury whereas for primary victims, it would be whether foreseeable injury is physical. The writer agrees that this is a restrictive approach which needs to unite the decisions set out from the cases to create some definitions, not separate factors that would make more complexity to this element for when claimants try and claim for damages. Here also problems start to arise where Lord Lloyd again, distinguished two further elements that need to be satisfied making it very restrictive and complex. These include reasonably foreseeable in normal fortitude of a person and that hindsight may be used in applying the foreseeability test.
This element was stated in the Law Commission about its purpose and whether it should be changed or abolished. They stated that this is fundamental to all negligence claims, and it should only be rejected if policy grounds are compelled to do so.
The law is problematic within this area, as there is no statutory definition to what a ‘normal phlegm’ constitutes as. This is linked with the requirement to determine whether the secondary victim’s psychiatric injuries were reasonable foreseeable. Unless the wrongdoer has some sort of special knowledge, it if fine to assume that the claimant is a person of customary phlegm and has sustained a normal standard of susceptibility. This is a restrictive approach taken by the courts as this element is hard to achieve in order for a claimant to claim for damages. Lord Lloyd described this element as a ‘requirement with a special limiting factor over and above an application of the usual foreseeability test’ where it was specific control mechanism being taken as a policy ground for secondary victims. This justifies the question again that the law is too complex and a restrictive approach is being taken by the courts.
It was also said that ‘it may be helpful to continually assume that the plaintiff is a person of reasonable fortitude, and that assumption should be regarded as merely an aspect of the standard approach to reasonable foreseeability that is applied in cases of physical injury’ . Once it is established that a person of normal phlegm, can reasonably foresee the psychiatric injuries then the ‘egg shell skull’ rule applies as remoteness of damage. This is problematic as there is no statutory definition for this either, and the element of causation is linked within this element which causes problems such as apportionment for claimants as they try to claim.
However, the Law Commission argued against changing this element in the meaning of the claimant, that they will not be liable to claim for an injury that is foreseeable as a result to an accident to an immediate victim. They argued legislation wasn’t needed here, due to the issue of hindsight comes into play. This is problematic as it effects the claimant’s rights to claim as secondary victims.
There has been a lot of confusion in the case law here on when we can call psychiatric injuries foreseeable. The thin skull rule adds complexity to the law even though we know if any injury is foreseeable then you are liable for damages. There is a high level of predictability in this area, where nothing seems straight forward.. This justifies that the approach taken by the courts is a restrictive one and full of complexity issues that needs to be clarified.
Conclusion
In conclusion, the Law Commission stated that there needed to be something done in order to improve the current law today where claimants find it hard to claim damages. One of their suggestions was said in the Law Society Gazette. ‘the commission concludes that a middle course should be steered and special limitations of some form or other should continue to restrict liability’ . There were also suggestions of extending the right of action to mere bystanders who are seen at the time to be outside the zone of danger to make it easier for them to be able to claim.
At the time, the Law Commission took into account certain limitations on psychiatric injury claims by ambulance, fire, police and other ‘professional’ rescuers which were considered but not for the time being recommended. The writer submits that this needs to be reformed to be considered for the time recommended, as mere bystanders are at a disadvantage due to them not satisfying the requirements for the Alcock test. Therefore claimants are going unrecognisably without any compensation due to the issues of causation. There has also been the argument being given by the Law Commission that replacing the general principles of liability for damages in tort is not a significant or serious option they would take. The writer submits that there needs to be a more relaxed approach taken.
The writer submits that another key point in the law being reformed, which is incredibly important is that there should be statutory definitions being implied into the law on primary and secondary victims. It is no good relying back to the criteria from the Alcock case, there should be statutory definitions for those both kinds of victims, in order for claimants to know legally where they stand when deciding to claim for compensation or not. That needs to be considered by the Law Commission. The argument they used was that bringing definitions into legislation wouldn’t solve these problematic areas.
From the Law Commission report in 1998 there was only two areas of law that needed to be re-considered as they thought that the law needed to develop on its own with an approach of minimal intervention. Psychiatric injury induced by shock should be abandoned, and whether the claimants’ injury was sustained as witnessed to someone else’s death should be able to recover and therefore a more relaxed approach would be achieved here. Many years on, there’s still nothing been done regarding the law, and the courts continue to refer back to the Alcock test..
They argued that the special mechanism control where in place to limit the potential claimants and it should be recognised by the developing case law instead. The writer submits that this is not a valid reason as fairness in law in nowhere to be seen. The need for a more flexible approach was decided in W v Essex County Council where foster parents did not satisfy a close tie of love and affection to the primary victim but that decision was overturned due to the claimants satisfying the immediate aftermath of the situation and therefore eligible for damages.
There should be a clear legislated distinction, and not to go back to the Alcock criteria continually on clear separate definitions for both secondary and primary victims, as there are too many complex issues within the current law. The law as it stands has been left to develop through case law following the Hillsborough disaster and in the opinion of The Association of Personal injury lawyers ‘it no longer reflects modern society’ . The law needs to be examined one again for reform. This is needed as there has been criticisms that the law has too much of a different rule distinguished between the victims and the boundaries between them is unclear.
Matthew Stockwell president of the APIL said that ‘ pointing out that in the last 25 years, attitudes towards psychiatric injury had “fundamentally changed” and people were no longer expected to show a “stiff upper lip” and he suggested that the word ‘shocking’ needed to be changed to ‘distressing’ instead. He hopes that the law will change and claimants who were unable to claim under the Alcock criteria will be able to in the future as change was going to come sooner rather than later. In 2014, there was a campaign introduced to expand the category of individuals available to claim and too loosen the criteria.
In an article online from the Law Gazette in 2014, David Locke said ‘this does not seem to be valid in this debate since the primary and secondary victim criteria are merely convenient methods of assessing foreseeability. If they are removed, the issue of foreseeability still stands to be considered on a case-by-case basis, but without any framework from which to hang a judgment’ .
An opinion from a solicitor firm called Brachers which are based in Kent commented ‘reform of this area of the law is long overdue to bring it up to date and to enable victims of psychiatric injury to be properly compensated’ .
There were also very few positives that came out of the Law Commission report in 1998 with only, ‘claimants outside the scope of reasonable foreseeability able to claim for damages, there was no longer a liability for injury induced by shock, and that they should abandon the classification of the primary or secondary victims’ . But as it stands none of this had been followed and the law is till full of complexity and the courts still taking a restrictive approach.
Therefore, in conclusion there are numerous problematic areas that are specifically at secondary victims when they are trying to obtain damages for psychiatric injuries. They have received suggestions where the law can be made clearer, by reforming or improving by introducing legislation in order to create a less complex and restrictive approach taken by the courts.
Conclusion
Therefore, to conclude, I agree with the statement and it is justified by answering the question that the courts definitely produce a much more restrictive approach than suspected with primary victims but more so towards secondary victims when it comes for claims for compensation for psychiatric injuries.. The Alcock criteria urgently need to be developed, and case law doesn’t answer the question as it does not reflect this modern world today. The law today is too convoluted and confusing for claimants, where nothing is straight forward anymore when it comes too claiming damages.
The result of this report was aimed specifically at the five areas that have the most significant problems. Those included the issue of close relationship, proximity, reasonable foreseeability, sudden shock element and mere bystanders/rescuers. With each requirement that created complexity to the law today I found out where the problems lied for claimants and suggested how they could be improved for a less restricted and relaxed approach being taken without the fear of the floodgates argument. I chose those and it was discussed analytically in chapter 3 how those issues reflected the specific requirements that are currently ongoing today as the problematic issues with the law for psychiatric injuries. The writer submits that the courts shouldn’t go back to the case of Alcock and overlook those requirements, or allow the case law develop in its own time. There have been suggestions of reforming the law by the Law Commission but that has never moved on. By reforming, it is making those specific areas much clearer for future claimants by introducing legislation of statutory definition for legal professionals to have a clearer lead when it comes to claims and court judgements.
The current law doesn’t create justice for all claimants and is established in those 5 key elements on why claimants cannot claim for compensation for psychiatric injuries that they had received
Therefore, the courts must adopt a different approach when it comes to final judgements of cases because a mother witnessing her son die and receiving an injury but cannot claim cannot happen anymore., Or secondary victims such as a rescuer who witnesses an injury of a primary victim cannot claim for injuries they received because the test was not satisfied. It is clear by concluding from this dissertation that the courts have a very hard job in making sure the law is fully developed as to secondary victims’ because claimants deserve justice.