Primary victims

A "primary victim" is a person who was physically injured or could foresee-ably have been physically injured as a result of the defendants negligence. An example of this is a claimant who is involved in a car accident caused by the defendant's careless driving and gets mildly injured (or even remains unharmed) as a consequence, but the fright from the crash triggers a serious mental condition. Such a claimant can recover damages for his car, his minor injuries and the nervous shock he had suffered.^[3] Rescuers (such as firemen, policemen or volunteers) who put themselves in the way of danger and suffer psychiatric shock as a result used to be "primary victims",^[4] until the decision in White v Chief Constable of the South Yorkshire Police explained that rescuers had no special position in the law and had to prove reasonable fear as a consequence of exposure to danger.^[5]

Secondary victims

A "secondary victim" is a person who suffers nervous shock without himself being exposed to danger. An example of this is a spectator at a car race, who witnesses a terrible crash caused by negligence on the part of the car manufacturers and develops a nervous illness as a result of his experience. It is in these cases where the courts have been particularly reluctant to award damages for nervous shock. In several decisions, the courts have identified several strict requirements for the recognition of a duty of care not to cause nervous shock, as well as causation and remoteness:

• The claimant must perceive a "shocking event" with his own unaided senses, as an eye-witness to the event, or hearing the event in person, or viewing its "immediate aftermath". This requires close physical proximity to the event, and would usually exclude events witnessed by television or informed of by a third party.
• The shock must be a "sudden" and not a "gradual" assault on the claimant's nervous system. So a claimant who develops a depression from living with a relative debilitated by the accident will not be able to recover damages.
• If the nervous shock is caused by witnessing the death or injury of another person the claimant must show a "sufficiently proximate" relationship to that person, usually described as a "close tie of love and affection". Such ties are presumed to exist only between parents and children, as well as spouses and fiancés. In other relations, including siblings, ties of love and affection must be proved.
• It must be reasonably foreseeable that a person of "normal fortitude" in the claimant’s position would suffer psychiatric damage. The closer the tie between the claimant and the victim, the more likely it is that he would succeed in this element. However, once it is shown that some psychiatric damage was foreseeable, it does not matter that the claimant was particularly susceptible to psychiatric illness - the defendant must "take his victim as he finds him" and pay for all the consequences of nervous shock (see "Eggshell skull" rule). A mere bystander can therefore hardly count on compensation for psychiatric shock, unless he had witnessed something so terrible that anybody could be expected to suffer psychiatric injury as a result. However, it seems that such a case is purely theoretic (see McFarlane v. EE Caledonia Ltd, where the plaintiff witnessed an explosion of a rig where he and his colleagues worked, but received no compensation).

Leading cases

Currently leading cases include two House of Lords decisions arising from the Hillsborough disaster:

• Alcock v Chief Constable of South Yorkshire Police [1992] 1 A.C. 310
• White v Chief Constable of South Yorkshire Police [1999] 2 A.C. 455

and a third House of Lords decision in a case arising from a road traffic accident:

• Page v Smith [1996] A.C. 155

See also McLoughlin v O'Brian [1982] 2 All ER 298, where the House of Lords outlines the concept of "immediate aftermath" of the accident and Attia v British Gas plc [1988] QB 304, where the Court of Appeal considered whether damages for nervous shock as a result of witnessing the destruction of property were recoverable.

Criticism

The current position of the English courts has been criticised^[6] as leading to unfair results both in law and from the medical point of view. For example, it may be arbitrary that a mother who witnesses the death of her child with her own eyes can recover if she develops a mental illness, while one that hears of her child's death on the phone and suffers the same condition cannot.

Reform has been widely advocated and in 1998 the Law Commission has drafted a proposal, suggesting i.a. that the requirements of proximity in time and space to the accident and the "own unaided senses" rule should be abolished.^[7] The Department for Constitutional Affairs rejected the recommended legislative reform in 2007, noting that the courts had adopted a more flexible approach, and proposed to leave this area to the courts.^[8] In July 2009, the Ministry of Justice confirmed that it did not intend to proceed with the Law Commission's recommendations in this area.^[9]