Secondary victim definition

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Psychiatric injury—primary victims

Psychiatric injury—primary victims Defining the primary victim A primary victim is a claimant who was directly involved as a participant in the incident that caused their psychiatric injury. Classes of primary victim Lord Oliver in Alcock v Chief Constable South Yorkshire provided three examples of claimants who he would classify as primary victims: Direct involvement The claimant was within the actual area of physical danger when the accident occurred or reasonably believed at the time that they were in danger. Rescue The House of Lords in White v Chief Constable of South Yorkshire Police clarified that rescuers are not a special category of primary victim. If the claimant was a rescuer who went to the aid of others involved in an accident, they will only be defined as a primary victim if they were, or reasonably believed themselves to be, in danger. If a rescuer does not meet this test, then they will be classified as a secondary victim and will therefore need to satisfy the control mechanisms before they can recover damages for psychiatric injury. Unwilling participation Lord Oliver in Alcock also suggested primary victims include claimants who involuntarily caused the death or injury of a third party because of the defendant’s negligence or reasonably believed that they had done so. Again, it is doubtful whether this distinct category has survived White. In Hunter v British Coal, the court refused compensation to a

Psychiatric injury—secondary victims

Psychiatric injury—secondary victims What is a secondary victim? A primary victim is a claimant who was directly involved as a participant in the incident that caused their psychiatric injury. See Practice Note: Psychiatric injury—primary victims. A secondary victim is one who suffers psychiatric injury not by being directly involved in the incident but by witnessing it and either: • seeing injury being sustained by a primary victim, or • fearing injury to a primary victim For a review of the case law since the lead case of Alcock v Chief Constable of Yorkshire Police, see Practice Note: Psychiatric injury—secondary victims—case tracker. Control mechanisms It is not sufficient, in the case of injury to a secondary victim, for the claimant to show that as a result of apprehending the infliction of physical injury or the risk of it to another person they have sustained nervous shock which caused psychiatric illness. The courts have laid down strict control mechanisms with the aim of limiting numbers of what could possibly be a multiplicity of claims arising from a single tragic incident. The control mechanisms can be viewed as setting out the requirements for the existence of a duty of care in ‘bystander’ cases and were described by Hoffmann LJ in Alcock v Chief Constable of Yorkshire Police. The claimant needs to prove: • a close tie of love and affection to the primary victim—see: Class of persons below

Clinical negligence claims involving labour and delivery—injuries to the child

Clinical negligence claims involving labour and delivery—injuries to the child This Practice Note sets out practical considerations when managing these types of claims, followed by an overview of common types of injury to children occurring during childbirth. It focuses on liability rather than quantum. The usual requirements regarding breach of duty, causation and damages apply. See: Clinical negligence liability—overview, Clinical negligence damages—overview and Catastrophic claims—overview. Informed consent—Montgomery When dealing with birth injury claims you should be familiar with Montgomery which involved a child born with cerebral palsy due to oxygen deprivation during a prolonged labour. The liability issues revolved around the information given to the mother about the mode of delivery and its risks. It has wide-reaching application and has reframed the test for what information should be provided during the consent process. For further guidance on this case and subsequent developments, see Practice Note: Consent in clinical negligence claims—treatment and causation. Following Montgomery, the Royal College of Surgeons issued guidance on consent including the principles for working with patients through a process of supported decision-making, the role of the consent form and how to document the consent process. Practical considerations when managing birth injury claims Investigate liability early These claims might not be resolved for many years after the birth. Condition, prognosis and ongoing needs will frequently be unclear at the outset and it will be appropriate to wait until the

Occupational stress—establishing liability

Occupational stress—establishing liability Many claims for psychiatric injury arise from a single event or series of events. In contrast, occupational stress claims normally arise from events that have occurred over a longer period of time. Claimants in occupational stress cases are usually primary victims and, therefore, they should not need to meet the control mechanisms used in secondary victim cases. In Hatton v Sutherland, the Court of Appeal heard four appeals in relation to psychiatric illness caused by stress at work and Hale LJ provided guidance for these types of cases. One of the cases went to the House of Lords where it is known as Barber v Somerset County Council. Lord Walker (House of Lords in Barber) described Hatton as ‘useful guidance but it must be read as that’. Hatton, therefore, provides practical guidance but cannot be regarded as absolute. In fact, the House of Lords in Barber v Somerset reversed the decision made by the Court of Appeal (on the claim of Barber). Whereas in the Court of Appeal, the judgment of Lady Justice Hale had found that it was ‘[…] expecting far too much to expect the school to pick up that (the claimant’s) problems were continuing without some such indication’. Walker LJ found in the House of Lords that the school, once alerted to the claimant’s difficulties with coping with workload and stress

PI & Clinical Negligence horizon scanner—August 2021 [Archived]

PI & Clinical Negligence horizon scanner—August 2021 [Archived] ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note is a summary of the key legal developments of relevance to personal injury and clinical negligence practitioners as of 2 August 2021. For the most recent horizon scanner, reference should be made to PI and Clinical Negligence horizon scanning and key cases—overview. Coronavirus (COVID-19) To stay ahead of the fast-moving changes in the courts’ processes and procedures necessitated by the pandemic and for industry guidance on how to manage cases during the pandemic including medical examinations, service and limitation, see Practice Note: Coronavirus (COVID-19) implications for PI and clinical negligence. For details on recent developments in this area for PI and clinical negligence claims, see: • NHS Coronavirus (COVID-19) Clinical Negligence Protocol 2020 updated—LNB News 29/07/2021 73 • Coronavirus (COVID-19)—ABI further extends Statement of Intent to 13 August 2021—LNB News 13/07/2021 30 • Coronavirus (COVID-19)—courts and tribunals guidance updated—LNB News 26/07/2021 25 • MOJ publishes the impact on the Court Funds Office as a result of Coronavirus (COVID-19)—LNB News 19/07/2021 6 • HMCTS removes Microsoft Teams and Skype guidance for remote hearings due to phasing out—LNB News 29/07/2021 71 • Law Society issues new webpage on remote hearings—LNB News 22/07/2021 87 Brexit UK accession to Lugano Convention—is the door now closed? The Federal Department of Foreign Affairs of Switzerland has received a letter from the European Commission

PI & Clinical Negligence horizon scanner—March 2022

PI & Clinical Negligence horizon scanner—March 2022 This Practice Note is a summary of the key legal developments of relevance to personal injury and clinical negligence practitioners as of 23 March 2022. For developments that pre-date this horizon scanner, reference should be made to PI and Clinical Negligence horizon scanning and key cases—overview. CPR updates Small claims limit for non-road traffic accident personal injury claims rising from £1,000 to £1,500 The Civil Procedure (Amendment) Rules 2022 is amending the small claims limit for non-road traffic accident personal injury claims from £1,000 to £1,500. It comes into force on 6 April 2022. See: LNB News 04/02/2022 42. CPR changes and 140th practice direction update Upcoming Civil Procedure Rules (CPR) changes, provided for by the Civil Procedure (Amendment) Rules 2022, SI 2022/101 will come into force on 6 April 2022. The rules will amend CPR 2 (definitions), CPR 10 (acknowledgment of service), CPR 12 (default judgments), CPR 26 (small claims track limit), CPR 39 (anonymisation), CPR 47 (authorised costs officers) and CPR 65 (anti-social behaviour). The MoJ has also signed the 140th update for practice direction amendments which, among other things, extends CPR PD 51O (the electronic working pilot scheme) for another 12 months, increases the maximum limit for a civil restraint order to three years (CPR PD 3C) and amends to CPR PD 25A in response to the decision in TBD (Owen

Psychiatric injury—establishing liability

Psychiatric injury—establishing liability Liability for psychiatric injury is dependent in part on the nature of the injuries suffered and the manner in which they were sustained. Classifying the victim Where a claimant suffers both physical and psychiatric injury (even if the physical injury was very minor), they will be entitled to recover damages in the usual way subject to issues of causation etc. There will in such a case be no need to prove the foreseeability of the psychiatric injury if the physical injury was itself foreseeable. The complexity arises where a claimant has suffered psychiatric injury but is physically unharmed. In ‘nervous shock’ cases ie where claimants have suffered ‘pure’ psychiatric injury as a result of participation in some kind of frightening accident or event, the law draws a distinction between: • primary victims—see below • secondary victims—see below Primary victims Primary victims are directly involved in the event and usually, but not necessarily, have physical injuries as well as psychiatric injuries. For further guidance, see Practice Note: Psychiatric injury—primary victims. Establishing liability—common law To establish liability at common law a primary victim must show that it was reasonably foreseeable that a person would suffer a physical or psychiatric injury as a result of the defendant’s negligent act. Statutory liability in the workplace For accidents in the workplace prior to 1 October 2013, section 47 of the Health and Safety at Work etc Act 1974 (HSWA 1974)

PI & Clinical Negligence horizon scanner—February 2021 [Archived]

PI & Clinical Negligence horizon scanner—February 2021 [Archived] ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note is a summary of the key legal developments of relevance to personal injury and clinical negligence practitioners as of 9 February 2021. For the most recent horizon scanner, reference should be made to PI and Clinical Negligence horizon scanning and key cases—overview. Coronavirus (COVID-19) To stay ahead of the fast-moving changes in the courts’ processes and procedures necessitated by the pandemic and for industry guidance on how to manage cases during the pandemic including medical examinations, service and limitation, see Practice Note: Coronavirus (COVID-19) implications for PI and clinical negligence. For details on recent developments in this area for PI and clinical negligence claims, see: • Elizabeth Boulden and Cressida Mawdesley-Thomas, barristers at 12 KBW, discuss the Vaccine Damages Payments Act 1979, its impact on the coronavirus (COVID-19) vaccine and whether it is fit for purpose. See News Analysis: The Vaccine Damages Payments Act 1979 and the coronavirus (COVID-19) vaccine • Approximately £240m in personal injury claims are tied up in the courts because of the backlog caused by the coronavirus pandemic, according to estimates released on 6 January 2021 by Zurich Insurance plc. See News Analysis: Coronavirus (COVID-19)—£240m in personal injury claims tied up in court delays, insurer warns • LNB News 08/02/2021 82—Association of British Insurers and Association

Bringing a claim against a public authority in negligence—basis of duty

Bringing a claim against a public authority in negligence—basis of duty When will a public authority owe a duty of care? The Supreme Court considered the duty of care owed by public authorities in the cases of Michael and Robinson. In Michael, Ms Michael made a 999 call to inform the police that her former partner had threatened to kill her. However, the call handler failed to pass on the threat to kill and as a result the 999 call was given a lower priority which caused a delay in the police response. Ms Michael was killed by her ex-partner before the police arrived. In Robinson, an elderly pedestrian was knocked over by police officers who were trying to arrest a suspected drug dealer. In these cases, the Supreme Court set out the following general principles which apply in cases against public authorities: • a duty of care is owed to avoid negligent acts (subject to harm being foreseeable) • the common law does not normally impose a duty of care to protect individuals from harm caused by a third party unless the public authority: ◦ was in a position of control over the third party and harm was foreseeable, or ◦ assumed responsibility for an individual’s safety on which that individual relied and harm was foreseeable In Michael, the Supreme Court found that the defendant did not owe a duty of care to

Duty of care in personal injury claims

Duty of care in personal injury claims This Practice Note will consider the common law duty of care. For information on statutory duties, see Practice Note: Breach of statutory duty and the overlap with the common law. For guidance on vicarious liability, see Practice Notes: Nature and operation of vicarious liability, Scope and impact of vicarious liability and Vicarious liability in the course of employment—the close connection test. For information on the duty of care in clinical negligence claims, see Practice Note: Duty of care and breach in clinical negligence claims. For a claimant to succeed in proving their claim in common law negligence they must first prove that the defendant owed them a duty of care. Examples of established relationships When assessing whether a duty of care exists, the court will consider whether there is an established precedent for the relationship between the parties and follow the precedents unless it is necessary to consider whether they should be departed from. Common examples of situations where it is established that a duty of care is owed include: • road users to other road users (see Practice Note: Duties of the road user) • employers to employees (see Practice Note: The employer’s duty of care) • occupiers of premises to visitors (see Practice Note: Occupiers’ liability claims—lawful visitors) • manufacturers to consumers (see Practice Note: Product liability—claims in negligence) • professionals to their clients • parents/teachers/guardians to children

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Do you have any case law relating to secondary victim claims whereby the psychological injury was suffered as a result of the loss of children?

Do you have any case law relating to secondary victim claims whereby the psychological injury was suffered as a result of the loss of children? Secondary victims A secondary victim is one who suffers psychiatric injury not by being directly involved in the incident but by witnessing it and either: • seeing injury being sustained by a primary victim, or • fearing injury to a primary victim For further guidance, see Practice Note: Psychiatric injury—secondary victims. Case law McLoughlin v O'Brian In this case the claimant’s husband and three children were involved in a road accident caused by the negligence of the defendants. One of the claimant’s children was killed and its husband and other two children were severely injured. At the time of the accident the claimant was at home two miles away. The claimant claimed damages against the defendants for the nervous shock, distress and injury to its health caused by the defendants' negligence. The House of Lords held that the test of liability for damages for nervous shock was reasonable foreseeability of the claimant being injured by nervous shock as a result of the defendant's negligence. Applying that test, the claimant was entitled to recover damages from the defendants because even though the claimant was not at or near the scene of the accident at the time or shortly afterwards the nervous shock suffered by her was a reasonably foreseeable

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PI & Clinical Negligence weekly highlights—20 January 2022

This week’s edition of PI & Clinical Negligence weekly highlights includes analysis of a Court of Appeal judgment on secondary victim psychiatric claims in a clinical negligence context. We also consider a vicarious liability case concerning workplace horseplay. We have included details of a new Practice Note which details key cases from December 2021 onwards. We also have our usual round-up of other key cases and news as well as New Law Journal articles of interest.

Clinical negligence secondary victim claims limited by Court of Appeal (Paul v Royal Wolverhampton)

PI & Clinical Negligence analysis: In Paul v Royal Wolverhampton NHS Trust and others, the Court of Appeal held that secondary victims can only claim in respect of a horrifying event which occurs at the same time as the defendant’s breach of duty. This is the case whether the claim is one in clinical negligence or for any other form of accident. Recognising that this operates seriously to limit the scope of recovery for secondary victims, not least in clinical negligence cases, the Court of Appeal indicated in its judgment that it was minded to grant permission to appeal to the Supreme Court. So it remains to be seen whether the Supreme Court, assuming the Court of Appeal do give permission to appeal, will adopt such a restrictive approach. Written by Rob Weir QC, barrister at Devereux Chambers, London, who is counsel for Paul.

PI & Clinical Negligence weekly highlights—1 July 2021

This week's edition of PI & Clinical Negligence weekly highlights includes analysis of High Court judgments considering the nature of an occupier’s duty under the Occupier’s Liability Act 1957 to its visitors who might be injured by falling branches or trees, and the application of CPR PD 57AC to a mesothelioma claim. In addition, we include a round-up of other key cases, news, a New Law Journal article of interest and recently published Q&As.

Secondary victim law update on what constitutes a ‘shocking event’ in a hospital setting (King v Royal United Hospitals Bath NHS Foundation Trust)

PI & Clinical Negligence analysis: This clinical negligence case involved the court considering what amounts to a ‘shocking event’ as a matter of law to be a secondary victim and bring a claim for damages. The claimant witnessed his severely ill newborn son in the Neonatal Intensive Care Unit (NICU) and suffered post-traumatic stress disorder (PTSD). He alleged what he saw met the Alcock criteria to bring a successful claim. The claim failed and was dismissed. The judgment is both a useful and rare example of applying the fourth limb of the Alcock test in a hospital setting following a negligent omission by a defendant hospital. The judge considered whether seeing a baby at risk of dying in a hospital setting can amount to a ‘shocking event’ as a matter of law. Written by Gemma Witherington, barrister at Hardwicke Chambers.

PI & Clinical Negligence weekly highlights—18 February 2021

This week’s edition of PI & Clinical Negligence weekly highlights includes analysis of a High Court decision which considered secondary victim claims in a clinical negligence context. We also have analysis of a Supreme Court decision concerning the court’s jurisdiction in respect of a claim brought against a UK domiciled parent company. We also include a round-up of other key cases and news, as well as webinar dates for your diaries, New Law Journal articles of interest and a recently published Q&A.

Secondary victim claims caused by clinical negligence to go to Court of Appeal (Polmear and another v Royal Cornwall Hospitals NHS Trust)

PI & Clinical Negligence analysis: This decision of Master Cook concerned the ‘control mechanisms’ for secondary victim claims and particularly the requirement for proximity. The judge refused to strike out the claims but made an order leap-frogging the matter to the Court of Appeal. Written by Henry Pitchers QC, barrister at No5 Barristers Chambers.

PI & Clinical Negligence weekly highlights—11 February 2021

This week's edition of PI & Clinical Negligence weekly highlights includes analysis of the interplay between personal injury and employment claims, as well as the announcement by the Association of British Insurers (ABI) of a further extension of its Statement of Intent for progressing claims amid the coronavirus (COVID-19) pandemic until 19 March 2021. We also have minutes from the December ‘20 and January ‘21 CPR committee meetings and a round-up of other key cases and news, as well as webinar dates for your diaries, New Law Journal articles of interest and recently published Q&As.

PI & Clinical Negligence weekly highlights—24 December 2020

This week’s edition of PI & Clinical Negligence weekly highlights includes analysis of the Vaccine Damages Payments Act 1979 and the coronavirus (COVID-19) vaccine. We also take a look at the implications of IP completion day for personal injury and clinical negligence claims. We also have our usual round-up of other key cases and news as well as recently published Q&As.

Dispute Resolution weekly highlights—24 December 2020

This week's edition of Dispute Resolution weekly highlights includes: analysis of a number of key DR developments, including the 126th CPR Practice Direction update, and key judicial decisions including those of the Court of Appeal in Fishbourne Developments Ltd v Stephens (contract interpretation) and Re W (children) (apparent judicial bias); dates for your diary; details of our most recently published content; and other information of general interest to dispute resolution practitioners.

What should practitioners consider when dealing with a secondary victim psychiatric claim?

Personal Injury and Clinical Negligence analysis: John McQuater, partner & head of litigation at Atherton Godfrey LLP, discusses secondary victims, including their distinction from primary victims, recent case law and issues practitioners should consider when dealing with such cases.