Essay: Relationship between primary and secondary victim

Firstly, I will look at the issue of proving the relationship of close love and affection between the secondary victim and primary victim in order to be successful in claiming damages for injury. As previously said, this requirement arises out of the Alcock case from the Hillsborough disaster that their relationship with the primary victim is substantially close.. This element is needed due ‘the close love and affection’ needs to show that the psychiatric injury was caused by the shock of witnessing or seeing the immediate aftermath of the accident. The problem that arises is how these requirements contribute to the law and that they are quite difficult to see. Another issue which provides a mechanism which is very limited, is how a claimant would prove he had a psychiatric injury for witnessing a death or injury of his brother as an example. Or how would a potential claimant prove the closeness of relationship with the injured victim where you owed a duty to them based on whether the defendant foresaw the injuries or not. However, to an extent, I agree with the question that the courts do produce a restrictive approach to this area of law and is quite drastic in my opinion ‘that there are no rules which determines that secondary victims can sue for compensation’ , which brings the argument stronger that the law is too complex in these situations. In the cases of Chadwick and Dooley where there was a duty of care owed to the claimants, there was no close tie of loving relationship between the primary victims, and was suggested could they reclassify the claimants as secondary victims instead? Yet another problem distinguished in the law is where the ‘distinction between primary and secondary victims have become meaningless and consequently useless in this area of law’ . With proving this element, the courts have stated that the use of distant relatives are not being debarred, but in the instance of a grandmother that brought up her grandchild for example, then this might need proof of bond of love and affection between them. The writer submits that that is not acceptable in the law, which brings another strong argument that the law has a strict approach in determining this requirement.
Lord Ackner argued, in situations that are exceptionally horrific, if an individual suffers from a psychiatric injury, and suffered shock induced by it then someone unrelated to the victim such as mere bystanders would be able to recover damages. In general it’s fair to say that the lordships in the courts when doing their final judgement adopt a pragmatic approach especially when considering problems relating to Alcock. They simply don’t want the simplistic approach to which it strengthens their argument with this requirement, as those claimants falling outside this narrow category have proven this relationship by evidence is difficult to justify.
In the Law Commission report for liability of psychiatric illness in 2008, in its final requirements they considered that legislation was urgently needed to make the situation more smoothly. It was suggested there should be a fixed list which only allows certain people in that category of relationship to be able to claim. Those included, spouses, child, parent, brother or sister and cohabitant. People such as grandparents, grandchild, uncle, aunt and friends are seen as claimant who are not entitled to claim for damages as they do not show a close loving relationship. This is clearly unacceptable as people who are not related through close love and affection through a relationship should still be allowed to claim no matter the fact that there is no emotional connection towards the primary victim. It is an area where a broader approach should be included in the law, as it is too narrow.. Another reason why the writer agrees with the fact that the court take too much of a restrictive approach in deciding eligibility for claims.
There is a better perspective that is acceptable in the view, that there is a ‘close correlation between it and reasonable foreseeability’ .And that it falls within a class of people which it is reasonably foreseeable that they might suffer from an injury as a result of witnessing the accident or being there in the immediate aftermath. The closeness to the victim, shouldn’t matter, only that they satisfy the reasonable foreseeability test. Then they should be entitled for damages. The approach from the Alcock requirements are definitely too strict.
Owen Bowcott said ‘Personal injury lawyers are pushing to expand the legal definition under which victims are entitled to compensation for psychiatric damage after witnessing the death or injury of close relatives, saying the current test is too restrictive’ . This was said back in March 2014 so obviously with this approach taken by the courts, this has been a problem from years ago that fully justifies this report question that the Alcock test has been taken too restrictive within the courts. The Association of Personal Injury Lawyers (APIL) are calling on the common law to follow the more simplistic rules that Scotland follows, they also want the claimants list extended to such people I mentioned earlier. Matthew Stockwell, a barrister and president of APIL at the time argued that this is the most convenient time to change the current common law and says that it is ‘old-fashioned, inflexible and unfair’ and in his opinion he says that the law hasn’t kept up with the realities and needs of the modern society. They however also launched a campaign in 2014 leading up to the 25th anniversary of the Hillsborough disaster stating that the current law around this specific requirement is outrageous. They wanted the criteria to expand and to be loosened significantly.
‘William Broadbent, associate in the personal Injury and clinical negligence team at Penningtons Manches, comments: “The criteria as they stand are very restrictive and as such, exclude a lot of victims who have suffered severe psychiatric injuries from claiming compensation to which they should be entitled’ . This quote strengthens the question significantly, that the courts have got to change this close tie of love and affection requirement to a broader approach even though they could argue that there could be a drastic increase in floodgates of compensation being opened. With that they urge that the law needs to be clarified in greater detail as this broad approach is clearly not working even though it is recognisable that this may take some time to sort out these issues and lead to a reform where is it significantly needed. Christine Tallon a personal injury solicitor from the company Leigh Day said ‘the entitlement for compensation after receiving an injury is quite restrictive at the moment, in the law of England and Wales, and that something needs to change about the current law today ’. This statement agrees with the question that the courts have too much of a restrictive approach.
In Taylor v Novo , the claimant developed post-traumatic stress disorder resulting from the death of his mother. The court concluded, at the end of the judgement, the secondary victim rights had been confined for policy related reasons, and that there should be no further extension being made in the law unless stated specifically by the parliament. There was an establishment of close love and affection relationship satisfied by the claimant, but it was claimed that it shouldn’t have been repealed in the Courts of Appeal as it had gone too far according to the judges. The reasonably foreseeability had been established as the consequence of the death of the mother of the claimant in the accident.
Lord Ackner also stated on this requirement that he had declined a claimant who was a brother to a victim which sustained injuries, on the basis that there was no evidence to determine an exceptionally close bond. This justifies that the courts adopt a restrictive approach when it comes to satisfying this element for claims because you’d expect that as a brother and sibling they would have a close tie of love and affection anyway. There should be a list of relationships that would be sufficient to satisfy the criteria for claims as a secondary victim, and I would expect that close friends’/family members would also satisfy by introducing this legislation.. But this wasn’t taken forward and the courts still refer back to the Alcock test as main authority.