Rules Governing Primary Victims in the United Kingdom

The Nervous shock claim that the Tort Law is for compensating person’s mental injury rather than body injuries. Mental condition illnesses are particularly subjective and challenging for the judges to decide because it is easy to feign by the bogus claimants for compensation. Thereby, the English court was traditionally reluctant to recognise the psychiatric injury. Unsurprisingly, the plaintiffs are facing some challenges in discharging the evidential burden compared to the physical injury’s cases. This research project question is neutrally focusing on the way the primary victim rules agreeing claim compensation for negligently inflicted of the psychiatric injury. The motive of this study is to highlight and justify the rules governing the primary victims negligently - inflicted psychiatric injury in the United Kingdom. This study is not without untouched limitation of the secondary victim rules and the negligence information case the Hedley Byrne rules. These rules are discussed regardless of the gender of the victims. The question also refers to the extent of the court applications over the rules either consistent or not. Initially, is a discussion on the extent to which the court fairly compensate primary victim based on the existing rules with example. If you need assistance with your law dissertation, we can provide the best expert law dissertation help to guide you through the whole process.

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1. Helen O Nions, ‘Proximity, Psychiatric Injury and The Primary/Secondary Tortfeasor Dichotomy: Rethinking Liability for Nervous Shock in the Information Age’ [2014] 23 Nott L justify
2. Nicholas J, Mullany and Peter R Handford, ‘Tort Liability for Psychiatric Damage: the law of Nervous Shock’ [1993] Law Book Company 323: This quotation illustrates the complexity the English judges facing in order to compensate the nervous shocked claimants.
3. The words nervous shock is similar to insanity, which was originated from medicine field into legal usage. The terms are not well used todays clinical practice except lawyers used to them as a legal content. Danuta Mendelson, ‘The Defendants’ Liability for Negligently Caused Nervous Shock’ [1992] Monash UL Rev 65, 69
4. John Cooke, Law of Tort (13th edn, Pearson, 2017) 67-85.
5. O Nions (n 1).

of cases from early to present time. In the Second place, the essay concisely describes the primary victim rules following either within the exact interpretation of the classical rules or broaden from it. Thirdly, is a discussion of the rescuers involved in the incident and the ability to claim compensation for mental injury. Besides, there is a discussion on the possible disadvantages as well as suggestions for this area of study. In conclusion, it is discussed that these rules in combination provide the most realistic chance of removing the complexity in the primary victim claims until being a satisfactory or insufficient.

The way court is decided the primary victim rules with evaluation of the cases from early to present time.

The definition of the primary victim and the rules are crucially interconnected for this study. Psychiatric injury is a subjective perception for an ordinary human, and can only be realised by the injured person. Therefore, the court prudently follows some unique approaches while deciding the psychiatric injury claim case. The court and the oracle of law wisely decide the category of the claimant based on the various ways. Technically, there are dual categories of claimants, namely the primary victim and secondary victim in the psychiatric injury claim cases. The court decides the secondary victim and primary victim based on the party involvement in the horrifying incident and the sudden apprehension. The secondary victims are invited as a passive to the incident. This is because sometimes they are unwilling to witness some horrifying incident. As a subject matter, the nervous shock happens suddenly from the incident [or] at least immediately aftermath. Thereby, the court and judge takes into account the essential elements while deciding the secondary victim’s category. The sudden mental shock can happen either through the medium of the eye or ear without any direct contacts. If the claimant is directly associated with the incident, then he would be falling under the category of primary victim.

The similar approach is applying for primary victims, but it is liberally interpreted. Additionally, it is decided based on the party participation and direct involvement in the horrifying incident. The court is likely to accepted the claimant claims if they were involved in the incident with the victim. There are other elements which are taken into consideration, such as the proximity of the relationship when a third party is in a risk. Additionally the court indicates, the greatest extent of rules and may also decide based on the elements of the family relationship such as a mother and her daughter.

The court was impartial decided the category of the primary victim.

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6. Originally, this area claims originated from the incident a mother suffered psychiatric harm because her five –years –old son was narrowly missed the car accident and so, the person inflicted psychiatric injury due to fearing the safety of a loved ones. John (n 3) 67.
7. Racheal Mulheron,’ The ‘primary Victim’ in Psychiatric Illness Claims: Reworking the ‘Patchwork Quilt’ [2008] 19:1 King’s Law Journal 81.
8. Hambrook v Strokes Brothers [1920]1 KB 141.
9. Nichlos (n 2).

In the 19th century the court followed a literal approach while deciding the primary victim’s rules as illustrated in the Victorian Railways Commissioners v Coultas . In this case the defendant was a reckless driver of a horse carriage with a passenger and his passenger suffered a psychiatric injury when the carriage dangerously crossed a train track. The court decided the claimant was a primary victim, but was not entitle for a compensation due to lack of visible injuries. The Coultas outcome was initiated to further develop the rule as seen in the 20th century. Precisely, in Dulieu v White & Sons, the claimant was physically injured and as well suffered psychiatric injury. In this case she was able to claim compensation for her psychiatric injuries similarly to Coultas facts, though there was different outcome in Dulieu. These cases findings illustrated the rules of the primary victims which were expanded from the narrow extent of immediate hurt of the physical injury to psychiatric injury.

In Hambrook v Strokes Brothers, the court conveyed a sensibleness in the primary victim rule based on the arrival of the claimant to the incident, i.e. immediately or aftermath. Precisely, the finding of this case suggested that, the reasonable apprehension safety of her daughter rather than mother’s safety. This was supported by Kennedy J: who suggest that, a good mother is likely give priority to her own child’s safety. A possible explanation is deduced from Coultas, Dulieu and Hambrook in the usage of the impact rule while protecting the primary victim with satisfactory rules. This is called the impact rule. Likewise, in Haynes v Harwood, the court held that, a police officer was a primary victim. The policeman was involved in a danger for stopping the unattended horse along the street. It seems that the physical impact and severe mental impact are sufficient for the court to apply the impact rule. This is fairly appropriated to solve the confusion in psychiatric injury case as per the Bourhill v Young. In Bourhill the claimant arrived at the incident site immediately aftermath, which was demonstrated ‘too remoteness’ for the damage to award a compensation. Therefore, this resulted to another rule which is pronounced as the zone-of-danger for primary victim claims.

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11. (1888) 13 App Cas 222.
12. Ibid.
13. [1901] 2 KB 669.

The zone of danger rule concludes that the claimant should be in the vicinity of danger that caused by the defendant. In the King v Phillips the claimant was unclassified as a primary victim because of her mistaken and her ‘too remoteness’ thought. The court held that the defendant was only responsible for reasonably foreseeable of observers’ injury. At this point, the primary victim rules were further developed for the rescuer category as in the case of Chadwick v British Railways Board. Prima facie, the defendant railway board, should or ought to have foreseen some rescuers based on reasonably foreseeable of test after the terrible train accident. Occasionally, this category is called as ‘danger invites rescuer’ and fair to be entitle a compensation. On top of this, in Attia v British Gas PLC the law lord accepted the emotional attached over property damaged as a reason for psychiatric injury claims. It is depictured the extent to which rules were developed from physical discomfort protection towards a strong emotional attached over the property damages. Crucially, in Page v Smiths, the plaintiff did not suffer physical injury, however, the accident reactivated his predisposition of psychiatric harm and permanently disabled him. Thereby, after 10 years in Page, the defendant was held responsible for the plaintiff nervous shock. It is confirmed that a specific injury is needless to have to reasonably foreseen by the defendant. However, this decision became subject issues for some academics.

Politely to say, the court and judge are frequently dealing with novel situations. As a result the judges are under the obligation to adapt a broad-brush approach for upholding the consistency of the fair, just and reasonable outcome for the primary victim. The initial point is illustrated as from the cases of W v Essex County Council and Butchart v Home

Office. In W v Essex County Council the case stipulate of parents who had suffered from the psychiatric injury due to abuse of their children by the fostering defender who was placed in their house. The court confirmed the social worker breached the duty of care for misfeasance the abuser’s criminal records in advance. Therefore, the court held defendant liable for the parents’ psychiatric injury. In Butchart v Home Office, found that, the Prison authority was liable the failures to assess the suitability of placing two vulnerable prisoners in the same cell without providing any health supports. The court reasonably confirmed the officer should be aware of the risk of committing suicide as per the reasonably foreseeable of harm test. The law court held that the rules are decided based on the elements of involuntary participation of the claimant rather than merely the remains of a bystander between the defendants and their children. The English court has truly applied some reasonable tests for maintaining a fair outcome for primary victim claim cases.

The court is deciding the rules based on a broad – brush approach to uphold the fairness in the judgment especially in medicine fields.

Precisely, in the case of Farrell v Merton, Sutton & Wandsworth, Health Authority, where a hospital negligently performed a caesarean section to a mother, the court held that, she was a primary victim. In Wild v Southend University Hospital NHS Foundation Trust, where the foetus died within the utero and the court alleged defendant fairly accepted, the mother remained a primary victim. In Re (a minor her mother and litigation friend) v HuddersFields NHS Foundation Trust, where a baby’s head was struck outside but the body remained in the birth canal of the mother, the court overwhelmingly believed that the mothers of the newly born baby were fairly primary victim. The present rule states that the mother is under the similar legal identity until the baby has been successfully removed from the birth canal. Therefore, it is fair and justifiable for the court to confirm that the mother was entitled for a compensation. Continue your journey with our comprehensive guide to Understanding Agency Conflicts in Corporations.

The court is deciding the rules based on a liberal approach to uphold the fairness in the judgment especially in occupational stress liability cases.

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14. [2006] 1 WLR 1155.
15. Unwitting participants.
16. [2014] EWHC 4053 (QB), [2016] PIQR P3.
17. [2017] EWHC 824 QB.
18. Barber v Somerset County Council [2004] UKHL 13: The psychiatric injury of the employee was permitted un the occupational stress because of the local authority failed to take step to avoid the part time teacher workloads stress under the foreseeable of harm test.

The duty to provide a safe work system in employment scope was extended based on the reasonably foreseeable of harm from the physical injury to psychiatric injury as evident in the case of Walker v Northumberland County council. In the case, the defendant breached a duty of care to create a safe working environment or at least to take steps for avoiding risk of health with endangering workload. In fact, the court extended the duty from a negligible risk scenario to a material substantial risk in continuous exposed workloads, therefore, the defendant was found liable for the failure to alleviate the effect of service to the plaintiff. Likewise, in the Witham v Hasting and Rother NHS Trust the court held the defendant liable for breached the duty to create a safe work system for employees. The defendant was liable for the substantial risk increasing to the claimant psychiatric injury without consideration the claimant postnatal depression and the workload’s affect in every interval of repeated works. Therefore, the defendant was held liable to his lack of managerial administration and failure to counter balance of factors by avoiding the reasonably foreseeable of harm. In contrast, in Malcolm v Broadhurst the court rules that the psychiatric injury claim for the claimant personal loss was not linked to the loss of earning capacity. The court is therefore less likely to allow a compensation for the psychiatric injury derived from the fear of contracting the disease as in Rothwell v Chemical and Insulating Co Ltd. As per the case, the appellant’s appeal was accepted because the trial judge erred award to the claimant for his free standing psychiatric injury based on the fear of anticipated disease without the physical injury. It seems the court awards a compensation based on the employer and employee’s relationships on the reasonably foreseeable of realistic harm rather than the anticipation one.

The rules are extended for upholding the fairness from the lower court judgments based on the assumption of responsibility with a sufficient degree of the likelihood of harm.

The House of Lords is also deciding the rules based on an appropriate approach for upholding the fairness from the lower court judgments especially on the assumption of responsibility. In Simmons v British Steel plc the trial court judge was erred to take into consideration the Page case principle. The claimant was involved the industrial accident because of the employer, however, the claimant was awarded just for his immediate physical injuries. In fact, the trial judge had erred by focusing the plaintiff’s skin condition and his anger were material contribution to aggravate his mental injury. Therefore, the trial court was reasoned that the defendant was not liable for employee’s psychiatric injury due to his

skin sensitivity couple with his personal anger which led to depression. However, a year later, the Lord Ordinary provided a modification rule as it was unnecessary for the trial court to question the claimant’s psychiatric injury which was reasonably unforeseeable. The rationale Lord Ordinary stressed in his argument that, as per the Page principle of ‘reasonably foreseeable of physical injury’ rule and one reason of plaintiff’s anger was as a result of the industrial accident. This indicated that the English court were beginning to apply the Page rule for providing a fair outcome. In Mcloughlin v Jones the circumstance of skill and care in preparation for client case was held fair ,therefore, the solicitor owed assumed the responsibility of the clients’ likelihood to suffer harm for breaching his duty by not preparing the case properly. It seems the court extended the primary victim rule to a care and service business relationship to avoid any negligent in the preparations in the legal services.

The ways the primary victim rules are primarily following within the exact interpretation of the classical rules or broaden from it.

In the second part, a discussion of the primary victim’s rules is consistent in conveying a fair judgment for the party. Precisely, the primary victim rules are primarily following within the exact interpretation of the classical rules without broadening it. Historically, the English law was unwilling to recognise psychiatric injury cases though, it has been gradually developed in the twentieth century. Indeed, the modern cases are split into dual classes, namely the two - party situation which stands for primary victim and three - party situation stands for secondary victim. The law on the primary victim’s rules are consistent and straightforward compared to secondary victim, which is subject to the control mechanisms. Apart from the Hambrook, the court was consistent about the scope of primary victim rules, i.e. the claimant is placed in the strict interpretation of the Coultas and Dulieu type of alike

Young v Charles Church (Southern) Ltd (1997) 39 BMLR 146 (CA). The allowed the claimant claim as a primary victim based on the basis of in the area of physical danger created by the defendant employer’s negligence system of work in allowing scaffolding to be erected near power lines, Evans

19. [2004] UKHL 20.
20. Like cases are treated alike.
21. [2002] 2 WLR 1279.
22. Swinney v Chief Constable of the Northumbria Police [1997] QB 464. The police authority breached the duty not to reveal the confidential information of the claimant an eye witness of accident caused by the defendant. The defendant used the details and threated the claimant and caused him psychiatric injury. This was decided based on the Page case principle.
23. O Nions (n 1).
24. John (n 3) 83.

facts with the Page case law principle. In other word, the claimant has to be physically injured accompanied by the psychiatric injury then need to satisfy the reasonable foreseeable of harm under a reasonable man’s test. Furthermore, the court decides the rule based on the claimant participation to the incident when there is no physical injury caused. It has been indicated, the court opens the door for the reasonably foreseeable of harm based on the person involvement circumstances such as a bystander as in the co-prisoner case. As per the case, the judges enunciated the rules called: the impact rule, safety concerning as a result of being a participant; if some of the danger in the vicinity not involved in the incident, then the claimant must be objectively been expected to expose a danger under the zone of physical danger. This broad approaches are also appropriate for rescuers and it’s led them to the requirement of physical injured while involve in rescuing.

The rules of the zone-of-danger rule, the impact rule and the reasonably foreseeable of harm rules are certainly important for deciding the primary victim case. The reasonably foreseeable of harm rules are used in several circumstances such as, the reasonable apprehension of the claimant’s safety, reasonably foreseen the rescuers’ harm and reasonably foreseeable of the observer harm. There are other factors need to guide the judge for classifying the primary victim harm which are truly genuine such as the sudden shock, the party involvement and involuntary participant in the horrifying incident. Unsurprisingly, it seems that the physical impact and severe mental impact are standard for the court using the impact rule. It has been confirmed by the court that the three types of rules typically decided the primary victim category. Therefore, the English court judges are judiciously deciding it in every of the cases. The primary victim categories are also judiciously decided by the court for justifying the fairness to be classed as a primary victim. It has been noticed from the previous sections the ways the court is deciding of the primary victim rules based on the three rules. It is indicated the court less likely to extend the category of the primary victim from the existing case law and effort to keep the consistency of the rules.

There are inconsistent in the primary victim rules as stated previously in the Hambrook and the Coultas. Subsequently, the application trends for primary victim cases and has become consistent upon the House of Lords’ judgment. For example, in Simmons the House of Lords corrected the trial case outcome with the application of the Page principle. It seems the

Page principle couple with the foreseeable test, impact rule, zone of danger safety rule are bringing a fair outcome for the claimant claim.

An example to illustrate of the primary victim rules are dealt satisfactory than the secondary victim rules with the usages of the threshold test. The threshold test is important for the secondary victim case: a normal person would not suffer the psychiatric injury, but the claimant is. This is called the sensitivity issue which would have caused the claimant who suffered shock in the circumstances but nothing similar to this can prevent the primary victim case from recovery. This is because the primary victim case focusing on reasonable foreseen of physical damages for recovery of the compensation is subject to the chain of causal link.

Moreover, the consequence of the nervous shock incident is severe compared to the physical injury. Thereby, the due report states that, the sudden shock requirement should be repealed as recommended by the Law Commission Report though it was rejected. Furthermore, the scholars stipulate that the primary/secondary victim category divide is unhelpful in the psychiatric injury case since it can easily result to confusion of the judges. However, the study states that, the division is necessary because psychiatric injury was severe compared to physical injury and it is subjective in nature. Briefly, the academic opinions that the judges for psychiatric injury case appeared to provoke defensive in the judiciary roles to avoid any bogus claim cases. As results, cases reported indicated the prospect of compensation may delay recovery for psychiatric injured case compared to the physical injury damaged case. In summary, the existence of the dual classes of claimants and the three rules and the other factors are satisfactory. The primary victim cases treats the cases alike.

Thirdly, a discussion of the rescuers are involved in the incident and the rules for recovery of the psychiatric injury.

Typically, the Tort law does maintain the straightforward rule which states that, the rescuer is entitled to recover damages for the psychiatric injury. The rescuer claims decide on a basis of the consideration of the rescuer’s status namely, a professional rescuer, a volunteer, objectively exposed to the foreseeable of danger or actually exposed to the reasonably foreseeable of harm. In fact, the rescuers are claiming for relief distress caused from the horrendous consequence. There were situations the rescuers insufficient remains as a rescuer to recover damages as evident from the cases of McFarlane v EE Caledonia Ltd and Rapley v P&O European Ferries (Dover) Ltd. In the McFarlane case, the rescuer was 100 meters away from the Piper Alpha Disaster incident and did not arrived immediately aftermath to the incident. Therefore, the court held the rescuer as too remoteness for satisfying the reasonable foreseen of harm test. In the Rapley the rescuer suffered a psychiatric injury after three days from the day of occurred the catastrophe. The court fairly justified the claimant’s psychiatric injury was too remoteness by reason of the lapsed for three days and lack of sudden shock impact. These two cases illustrate the court meticulously to justify the claimant which were precisely unmeant to stand as a rescuer within the primary victim category. In Hale v London Underground the fireman psychiatric injury was unaccepted for failure to satisfy the primary victim definition because he was not physically injured and mostly performed what a professional fire bridged expected under the reasonably foreseen test. In Swinney a volunteer’s testimonial statement and the confidentiality was revealed to the defendant pursue threatened. As a result the claimant suffered psychiatric injury. The court held that the police authority breached the duty to retain the confidentiality information and liable for reasonably foreseeable of the rescuer’s psychiatric injury. In Leach v Chief Constable of Gloucestershire the claimant volunteer to assist the police officers regarding the serial of coal murders cases. She suffered the psychiatric injury as a result of exposing to the cold blood murderer scenery and impacts of spent times in locked cells with the suspects. The court held the police officers were unmanageable to exercise a specific care to the volunteer. The police officers were interrupted from performing their duties to serve the public if undertake a reasonable care to the volunteer. In fact, the volunteer should be reasonably foreseen of the risk when being as a volunteer under the crime scene fields. Thereby, the court held that, she was inappropriate to recover damages as a primary victim under the reasonably foreseeable of injury test. In Monk v PC Harrington Ltd Mr Monk objectively believed he was under a danger of life because of rescuing the victim. In fact, he did nothing else to calm the victim until the arrival of an ambulance. There were other employees together with Mr Monk at the crane accident but he merely suffered the psychiatric injury. Prima facie, he remained as a rescuer but he not seemly to remain as a primary victim. Actually, he was not actively involved in the accident or within the vicinity of danger to his life. It seems, the court decided the cases straightforward rule on the basis of the participant, actively involved in the incident or physically injured on reasonably foreseeable of harm. The law on rescuers does not ignore the rescuers mind reaction from recovery compensation for their ‘danger invites service’. Every so often, it is silent within the rule of the employer and employee relationship as an ordinary risk derived from his/her occupation risk.

The possible drawbacks of the rules and suggestions in this topic.

As it has been marked from the previous sections, the establishment of primary victim status to recover damages for relief distress and mental discomfort is derived from the incident. To date, the court has been applying the collaboration of the generous approaches to grant damages even without visible injury to support the claim. Academic opinion is the Primary victim rules distinctly odds in applications, especially the zone-of-danger to life rule and reasonably foreseeable of harm rule. Precisely, in W and in Hunter were designed to represent similar facts but the court outcome was different. In the both cases the claimants were unwitnessed their children been abused or assaulted. Remarkably, the court decided the parents in W remain as a potential primary victim suffered psychiatric injury from being a survivor guilt and unwittingly participant but not in Hunter. In Hunter, the claimant witnessed his c-worker death in 30 meters away which caused him to remain as a secondary victim. Therefore, Scholars opinion that the court denied the primary victim status as inflexible rules as a quilt of insufficient in the rule applications.

Likewise, in North v Glamorgan NHS Trust v Walker, the hospital switched off the son’s ventilation machine with consent of mother. The court held the mother severe mental impacted from the mercy killing incident but may not sufficient be to entitle a compensation under the reasonably foreseeable of harm test. In comparison between Mr & Mrs W to Mrs Walker, neither of them were actively taking part in their children’s unfortunate incidents, yet the court concluded that Mrs Walker was less likely to be a potential primary victim. In same vein, in Hall v Gwent HealthCare NHS Trust the mother was mentally distorted because of her husband breached the court care order and brutally knifed her daughter. In this case, the local authority did improperly performed duty of the care order until the husband used the opportunistic killed her daughter. The court distinguished the fact from W and held she was not met the primary victim to blame the council for the unfortunate incident. Technically, the fact similar to W fact but not similar judgment. It illustrates, the odds in the primary victim rules application as two wrongs do not establish a rationale principle. Thereby, scholars’ opinion the W v Essex principle is applicable for a particular fact as inapplicable for alike cases such as Walker, Hall and Palmer v Tees HA .

Take a deeper dive into Rethinking Damages as the Primary Remedy with our additional resources.

CONCLUSION.

The law governing for psychiatric illness is subject to policy consideration primary because the nature of damages intangible and subjective perception. Thereby, in Page the court stated the concerns about distributive justice and the danger of floodgate claims.

Despite the fact recognise the rule of the rule primary victim in domestic facts, contractual relationship, employment environment or rescuers situations, that no specific legislations. Thereby, the practical solutions would have been efficient to enact a comprehensive bill for all primary victim categories in legislative form. This may provide an opportunity for Judges to interpret widely. Another recommended as supported by the Scottish Law Commission that a person who responsible for jobs are expected to accommodate the work-related stress inherent their work. He must reasonably be expected to bear whatever mental harm derived from it without seeking the ramification.

It is discussed that these rules in combination provide the most realistic chance of removing the complexity in the primary victim claims until being satisfactory or sufficiently. A broken heart is uneasy to endure comparing to a broken hand, in the same vein, a person mental illness is difficult to heal than the physical injury. Not one person would have known exactly the depth of the mental condition and injury. Thereby, the judges are deciding the justice for the primary victim’s explainable injury. Apparently, it may appear straightforward and simple

to critique the primary victim rules, but the valuable effort and service given by the judge is undeniable. No man is perfect in the world to compensate all primary victim as the oracle of law attempt therefore claimant cases can be readdressed. Like cases are not always treat alike because subject to societal changes and the nature of mental injury.

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Table of Books

Cooke John, Law of Tort (13th edn, Pearson Education Ltd, 2017).

Deakin S F, Johnston Angkus Charles and Markesinis Basil, Tort Law (6th edn, UOP 2008).

Elliott Catherine and Quinn Frances, Tort Law (8th edn, Pearson Education Ltd, 2011).

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Giliker Paula, Tort (6th edn, Sweet & Maxwell, 2017).

J Steele, Tort Law, Cases and Materials (4th Edn, UOP 2017).

Jones A Micheal, Tort (8th edn, UOP, 2002).

Kristy Horsey and Erika Rackey E, Tort Law (5th Edn, UOP 2017).

Matthews Martin, Morgan Jonathan and O’Cinneide Colm, Hepple and Matthews’ Tort (6th edn, OUP, 2009).

Other Resources

Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998).

Scottish Law Commission, Damages for Psychiatric Injury (Scot Law Com No 120, 2002).