Introduction

The speaker welcomes the audience and provides some information about the webinar. They also mention that questions will be answered at the end of the session and ask attendees to use the Q&A tab for any questions.

• The speaker welcomes everyone to the webinar.

• Attendees are asked to use the Q&A tab for any questions.

• Questions will be answered at the end of the session.

Webinar Information

The speaker provides additional information about how questions will be handled during the webinar, mentions potential internet issues, and advertises next week's webinar.

• Attendees are asked to use Q&A tab for any questions.

• Questions will be answered after the webinar via email.

• Potential internet issues may occur during the session.

• Next week's webinar is advertised.

Secondary Victim Claims

The speaker introduces secondary victim claims and discusses their complexity. They also provide a brief history of these types of claims.

• Secondary victim claims involve damages for psychiatric illness when witnessing a shocking event.

• These types of claims are complex and controversial.

• There have been five House of Lords cases between 1942 and 1999 related to secondary victim claims.

• Understanding context is important in making judgments on new sets of facts related to these types of claims.

History of Secondary Victim Claims

The speaker discusses how judge-made law has contributed to secondary victim claims and how understanding this history can help make judgments on new sets of facts related to these types of claims.

• Judge-made law has contributed to secondary victim claims becoming what they are today.

• Understanding this history can help make judgments on new sets of facts related to these types of claims.

Introduction

The speaker introduces the topic of primary and secondary victims, discusses the importance of history and context, and briefly mentions other control mechanisms that will be covered.

Primary and Secondary Victims

• Definition of primary and secondary victims

• Two main focuses of today's talk: history/context and primary/secondary victims

• Control mechanisms for secondary victims: recognized psychiatric illness caused by sudden appreciation of shocking event

• Laura will cover causation for secondary victim claims

Early Cases

The speaker discusses early cases related to shock-induced physical changes in pregnant women, the evolution of judge-made law based on policy considerations, and an overview of early control mechanisms for psychiatric injury claims.

Early Cases

• Three cases involving pregnant women with physical manifestations of shock

• Control mechanisms are judge-made law based on policy considerations under proximity umbrella heading

• Early cases required physical change due to impact on mind causing physical symptoms

• Advances in medical science have changed this requirement

Canter Through Early Cases

• 1901 case: horse carriage driven into pub; claimant alleged child was affected due to shocks sustained by plaintiff

• Kennedy J's ruling: successful claims arise through fear for oneself not others

• Hambrick and Stokes case: first secondary victim claim where woman feared for her children

Introduction to Secondary Victim Claims

This section introduces the concept of secondary victim claims and discusses the legal precedent leading up to the creation of control mechanisms in 1983.

Legal Precedent Before Control Mechanisms

• Fear for oneself and fear for loved ones were treated differently in court.

• No recovery for damages as a result of what you were told rather than what you saw with your own eyes.

• Loved ones could claim in Hamburg, but not in Bohr Hill and Young (Edinburgh fishwife case).

• Court looked at particular circumstances to determine foreseeability.

McLaughlin and Control Mechanisms

• Plaintiff's family was injured in a road traffic accident, youngest daughter killed.

• Judge held there was no claim because it was not reasonably foreseeable.

• Court of Appeal disagreed, dismissed claim on policy grounds.

• Lord Wilberforce identified three elements for control mechanisms:

• Class of persons who could claim

• Close ties of love and affection

• Proximity to accident or immediate aftermath

Allcock Case and Direct Perception

This section discusses the Allcock case which reaffirmed the control mechanisms established by Lord Wilberforce and introduced the concept of direct perception.

Allcock Case

• Hillsborough disaster relatives watching television or hearing radio reports claimed damages.

• Reaffirmed control mechanisms established by Lord Wilberforce.

Direct Perception

• Injuries must be reasonably foreseeable.

• Close ties of love and affection, closeness in time and space to accident or immediate aftermath.

• Direct perception required, seeing on television not enough.

• Television coverage of gruesome events subject to code of ethics.

Conclusion

This section concludes the discussion on secondary victim claims and control mechanisms.

Final Thoughts

• Control mechanisms established in 1983 by Lord Wilberforce still apply today.

• Allcock case reaffirmed these control mechanisms and introduced direct perception requirement.

• Secondary victim claims are complex and require careful consideration of legal precedent and specific circumstances.

Introduction to Primary and Secondary Victim Claims

This section introduces the concept of primary and secondary victim claims. Lord Oliver divided claims into two categories: those in which the plaintiff was involved either immediately or immediately as a participant, and those in which the plaintiff was no more than a passive and unwilling witness of injury caused to others. The duty owed by the defendant directly to the plaintiff depends on reasonable foreseeability of damage and proximity or directness of relationship between them.

• Secondary victim claims require establishing reasonable foreseeability of injury and sufficient proximity.

• Proximity is an artificial concept used by courts to determine liability.

• The necessary degree of proximity between plaintiff and defendant can be deduced from a combination of circumstances.

• Paige v Smith overturned Court of Appeal's decision that injuries were not reasonably foreseeable for minor car accidents causing psychiatric injury.

• Control mechanisms developed under proximity umbrella are used to put brakes on class of people who would otherwise be able to claim.

Examples

This section provides examples where it is difficult to distinguish between primary and secondary victims.

Charles Church Case

• A scaffolder gave his colleague a pole that inadvertently touched a live electricity wire, electrocuting him. The court held that the scaffolder was effectively a primary victim because he was so close to the events.

Rescuers

• In White v Chief Constable of Yorkshire, police officers who attended Hillsborough could not succeed in their claims for psychiatric injury because relatives of deceased could not succeed.

Primary and Secondary Victims

This section discusses the legal distinction between primary and secondary victims in cases of injury or danger. It also introduces the complication of birth injury cases.

Birth Injury Cases

• Birth injury cases deal with whether a mother whose baby is injured in utero is to be treated as a primary victim.

• Even if the mother is considered a primary victim, she may still need to satisfy secondary victim control mechanisms to recover damages for psychiatric injury.

• The courts will likely have to decide whether a mother needs to satisfy secondary victim control mechanisms even if the injury was sustained in utero.

• The Farrell and Merton judgment dealt with an injured child during birth by caesarean section. The claimant was treated as a primary victim but did not receive damages for having to care for her disabled child later.

• In Wilde in Southend, death in utero caused by negligence resulted in settlement for psychiatric injuries of the mother who was considered a primary victim. The father's claim failed because it was not a shocking sudden event.

• In Wells and University Hospital NHS Foundation Trust Bingaman's general justice Dingmans, the baby died 35 minutes after birth due to aspiring meconium during labor. Mrs. Wells was considered a primary victim entitled to recover for her own psychiatric injury.

Mother and Grandmother Suing for Psychiatric Injury

• Arion called daily is an example of both mother and grandmother successfully suing for damages for psychiatric injury in traumatic circumstances.

Birth Injury Cases: Primary and Secondary Victims

This section discusses the primary and secondary victims in birth injury cases. It highlights that traumatic birth can cause or make a material contribution to an indivisible item, resulting in psychiatric injury to the mother. The mother can recover damages for all of her loss, including potential problems like late onset depression caused by looking after a severely injured child.

Traumatic Birth as a Material Contribution

• Traumatic birth made a material contribution to the entire injury which was indivisible.

• Evidence showed that dramatic birth made a material contribution.

• Expert witness admitted in court that she never read medical records despite claiming she had in her report.

Primary and Secondary Victims

• Defining the mother as a primary victim does not necessarily answer all questions that may arise.

• If baby seems fine but develops symptoms due to negligently caused injuries weeks or months later, causing psychiatric injury to the mother, is the mother a primary or secondary victim?

• Looking after an injured primary victim is not sufficient to found sufficient proximity and claim for damages psychiatric injury.

• Partners and other family members present at traumatic birth will have to satisfy various control mechanisms.

• Difficulties may arise if father is not actually present when negligence occurs and sees only first manifestation of it.

Close Ties of Love and Affection

This section discusses close ties of love and affection as a control mechanism. It highlights two types of relationships where there is presumed closeness - parent-child and husband-wife. However, this presumption is rebuttable, and evidence of serious conflict or estrangement may affect the control mechanism.

Proving Close Ties of Love and Affection

• Two types of relationships where there is presumed closeness - parent-child and husband-wife.

• Evidence of serious conflict or estrangement may affect the control mechanism.

• Friendship requires proof of love and affection for the victim comparable to that of a normal parent, spouse, or child.

• Siblings require establishing the nature of their relationship through witness evidence.

Introduction

The speaker introduces the topic of secondary victims and discusses the Piper Alpha disaster case.

The Piper Alpha Disaster Case

• In 1988, there was a disaster in Scotland called the Piper Alpha disaster where 167 workers died.

• Lord Justice Joe Smith stated that the court should not extend duty to those who are mere bystanders or witnesses of horrific events unless there is a sufficient degree of proximity which requires both nearness and time in place and a close relationship of love and affection between plaintiff and victim.

Control Mechanisms for Secondary Victims

The speaker discusses control mechanisms for secondary victims, including objective shocking and horrifying events, proximity, and psychiatric illness diagnoses.

Objective Shocking and Horrifying Events

• Events must be objectively shocking and horrifying as judged by persons of ordinary susceptibility.

• Cases occurred in hospitals where it is expected to see patients connected to machines and drips. Visitors are conditioned as to what to expect, so it is unlikely that they will encounter something more distressing than usual.

Proximity

• Proximity is used in two different senses: broad legal sense that describes the relationship between parties necessary to found a duty of care; proximity when used in context with secondary victims.

• Proximity can be difficult to impose sense on because it's one of the most vexed aspects of this area of law.

Psychiatric Illness Diagnoses

• A diagnosis of PTSD would be more likely to satisfy control mechanisms than a diagnosis of adjustment disorder or depression.

• Even with a diagnosis of PTSD, liability may not be established.

Proximity and Secondary Victims

This section discusses the difficulties in determining what constitutes an event that a potential secondary victim must be proximate to. The speaker provides examples of situations that pose difficulty, such as drawn-out events or gaps in time between the breach of duty and the onset of injury.

Taylor and Somerset Health Authority (1993)

• Mr. Justice Old's 1993 First Instance decision in Taylor and Somerset Health Authority was the first case to grapple with difficulties in proximity.

• The deceased suffered a heart attack at work, which was not witnessed by his wife, who was proposed as a secondary victim.

• Mrs. Taylor's case failed because she did not witness an event at all.

North Morgan NHS Trust v Walters

• The court of appeal had to consider whether the identified event starting with the fit on July 30th, 1996, and concluding with the child's death 36 hours later could fulfill proximity for Olcott criteria.

• Lord Wilberforce defined "event" as a useful metaphor for the fact and consequence of defendant negligence.

Primary Victim Cases

This section discusses primary victim cases where there is no issue about proximity.

McLoughlin v O'Brian (1982)

• In McLoughlin v O'Brian, Mrs. McLoughlin saw her family members injured after a car accident caused by O'Brian's negligence.

• The court held that Mrs. McLoughlin was a primary victim and that her psychiatric injury was foreseeable.

Alcock v Chief Constable of South Yorkshire Police (1992)

• In Alcock v Chief Constable of South Yorkshire Police, the Hillsborough disaster caused 96 deaths and over 700 injuries.

• The court held that the claimants were not primary victims because they did not witness the event or its immediate aftermath.

Rescuers

This section discusses rescuers as potential secondary victims.

Chadwick v British Railways Board (1967)

• In Chadwick v British Railways Board, a rescuer who witnessed a train crash and helped to rescue victims suffered shock.

• The court held that the rescuer was a secondary victim because he had witnessed an event that posed danger to himself.

White v Chief Constable of South Yorkshire Police (1999)

• In White v Chief Constable of South Yorkshire Police, police officers who rescued victims from the Hillsborough disaster claimed to be secondary victims.

• The court held that they were not secondary victims because their shock resulted from performing their duties rather than witnessing an event.

Three Cases of Secondary Victims

This section discusses three cases involving secondary victims and the legal criteria for determining liability in such cases.

Misdiagnosis Case

• A child's life ended in her mother's arms after a misdiagnosis.

• The event lasted 36 hours and was recollected as a distressing experience.

• The case is significant because it started weeks after the misdiagnosis and days after the child returned to the hospital with worsened symptoms.

Personal Injury Case

• In this case, a claimant's mother was injured at work when some racking collapsed on her, causing minor injury.

• Three weeks later, the claimant's mother collapsed and died, an event that the claimant witnessed.

• The judge accepted that the mother's collapse and death could be considered relevant events for determining liability. However, the Court of Appeal overturned this decision.

Taylor and Denovo Case

• In this case, a claimant's mother was injured at work when some racking collapsed on her, causing minor injury.

• Three weeks later, the claimant's mother collapsed and died, an event that the claimant witnessed.

• The judge accepted that the mother's collapse and death could be considered relevant events for determining liability. However, Lord Justice Dyson disagreed with this decision. He argued that if Miss Taylor had been physically close to her mother at the time of her accident and suffered shock or psychiatric illness as a result of seeing it happen, she would have qualified as a secondary victim under established principles.

Recent Case of Poole v GNHS Trust

This section discusses Poole v GNHS Trust, a recent case involving secondary victims.

Facts of the Case

• Mr. Poole attended the hospital with cardiac symptoms in November 2012.

• On the 26th of December, he suffered a cardiac arrest and was resuscitated.

• He was discharged from the hospital on January 10th but readmitted on January 23rd after suffering another cardiac arrest.

• He died on February 8th, and his wife brought a claim against the hospital trust for psychiatric injury as a secondary victim.

Master Struck Out Secondary Victim Components

• The case went to appeal before Mr. Justice Chamberlain in May 2020 after Master struck out the secondary victim components of the case.

Legal Criteria for Determining Liability

• The court must determine whether there is a relationship of proximity between the claimant and defendant.

• The court must also consider whether it is fair, just, and reasonable to impose liability on the defendant for any harm suffered by the claimant as a result of their negligence.

Negligent Failure to Diagnose and Treat Coronary Artery Disease

This section discusses the negligent failure to diagnose and treat coronary artery disease in 2012, which led to a heart attack. The heart attack caused psychiatric harm to both children.

Negligence Led to Heart Attack

• Negligent failure to diagnose and treat coronary artery disease in 2012.

• Competent care would have prevented the heart attack.

• The heart attack was the first point at which damage occurred or became evident.

• Circumstances were shocking and horrifying.

• Heart attack caused psychiatric harm to both children.

Arguments Presented by Defendant

This section outlines the arguments presented by the defendant regarding whether Mr. Poole's collateral from a heart attack was capable of constituting a relevant event.

Indistinguishable from Taylor and Somerset

• Defendant argued that this case was indistinguishable from Taylor and Somerset.

• Authority for proposition that an internal event of this sort can never satisfy Olcott criteria.

Event Occurred in November 2012

• Alternatively, it was argued that if there wasn't an event, it occurred in November 2012 when Mr. Poole thought his treatment was completed.

• Claimants did not witness it.

Key Question: Can Collateral From Heart Attack Constitute Relevant Event?

This section discusses the key question of whether Mr. Poole's collateral from a heart attack 14 and a half months after the allegedly negligent treatment is capable of constituting a relevant event.

Three Possible Reasons Why Collateral Would Not Constitute Relevant Event

• First reason: argument that the event has to be synchronous or approximately synchronous with the negligence which gives rise to it.

• Second reason: argument that liability should depend on there being a negligent act rather than an omission.

• Third reason: issues of fact regarding whether damage was sustained in November 2012, contrary to claimants' pleaded case.

No Requirement for Synchronous Negligence and Damage

• Mr. Justice Chamberlain found that there is no requirement for the negligence and damage to be synchronous.

• The scene of the tort can only mean the scene where the damage first occurred in the tort of negligence.

• Factual basis most favorable to claimants was accepted by Mr. Justice Chamberlain.

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Direct Perception and Immediate Aftermath

This section discusses the control mechanism that deals with the necessity for direct perception of an event or its immediate aftermath. The discussion includes sight and hearing, relaying of images on television or other media, and the definition of immediate aftermath.

Sight and Hearing

• One has to be within sight and hearing of an event.

• Television and radio broadcast situation came up in Alcock.

• TV companies responsible for gruesome pictures of individuals but social media doesn't abide by those rules.

• Live streaming of events on Facebook might be another topic that will be addressed by the courts.

Immediate Aftermath

• McLaughlin was a case that succeeded when the claimant came upon the accident one to two hours after it happened.

• In Allcock, where a number of claimants came to visit their loved ones' bodies seven to eight hours after the events, that was not considered immediate aftermath.

• Gali at concern and Segal stretched immediate aftermath as far as possible in order to found a claim. The Court of Appeal decided that the aftermath could be a number of events that provided sufficient proximity as long as there was an uninterrupted sequence of events sufficiently connected to the accident.

Causation

This section discusses causation in these cases.

Causation in These Cases

• Causation in these cases can really

Psychiatric Injury and Causation

This section discusses the two essential elements required for a claimant to suffer from a recognized psychiatric injury, which must be caused by the sudden appreciation of a horrific event. The importance of considering causation in expert evidence is emphasized.

Recognized Psychiatric Injury and Causation

• Claimant must suffer from a recognized psychiatric injury caused by the sudden appreciation of a horrific event.

• Secondary victim claims can be complex, and it's easy to overlook causation when dealing with multiple factors.

• Expert evidence should support the argument that the cause of the psychiatric condition is the sudden appreciation of the horrific event.

• Claims often arise in circumstances where there is a close tie of love and affection between primary and secondary victims.

Appreciation of Event vs. Consequences Thereafter

• The cause of psychiatric injury must be the appreciation of the event, not what happens thereafter.

• Feral emotion case highlights that arguments about causation should be approached with care and caution.

Apportionment of Damages for Psychiatric Injury

This section discusses whether psychiatric injuries can be divisible or indivisible, as well as how damages are apportioned based on this determination.

Divisible vs. Indivisible Psychiatric Injuries

• Apportionment depends on whether psychiatric injury can properly be described as divisible or indivisible.

• All psychiatric injuries were considered indivisible in Barbour and Somerset cases until BA in concert in 2017 said some may be divisible.

Apportionment of Damages

• If a claimant has other factors that could be causative to a psychiatric illness, damages may be reduced.

• Once it's determined that a negligent act or omission made a material contribution to a psychiatric illness, all psychiatric injuries are indivisible and the claimant should recover in full.

• The Tribunal can identify, however broadly, a particular part of the suffering which was due to the wrong.

Indivisible Psychiatric Injury

This section discusses the concept of indivisible psychiatric injury and how it affects damages in a claim.

Material Contribution to Psychiatric Injury

• The claimant mother's psychiatric injury was indivisible, so all defendants were liable for the entire amount of damages.

• If the injury had been divisible, damages could be reduced accordingly.

Existing Law and Legislative Change

• The existing law is not founded upon principle, but control mechanisms must still be followed until there is legislative change.

• Any judicial developments must take these control mechanisms into account.

Lord Hoffman's Opinion

This section covers Lord Hoffman's opinion on the current state of the law regarding secondary victims.

Difficulty in Applying Principles

• Lord Hoffman acknowledges that this area of law is difficult and judges have been making it up as they go along.

• He suggests that help from Parliament would be beneficial.

Q&A Session: Pre-submitted Questions

This section covers pre-submitted questions from viewers and their corresponding answers.

Secondary Victims under Human Rights Act

• Indirect victims can bring claims under the Human Rights Act, which includes secondary victims.

• Refer to Daniel v Georgia Healthcare 2016 for more information.

Parent as Secondary Victim

• A parent can bring a claim as a secondary victim if they satisfy the control mechanisms outlined in the talk.

• Shocking and horrifying events must be exceptional in hospital cases.

Technological Advances and Proximity Law

• Technological advances may require updating proximity laws.

• The courts may be reluctant to do so due to potential floodgates.

Minor External Manifestation of Damage

• If there is an event that occurs prior to the shocking incident, it may be considered a bar.

• In Waters, the child was presenting symptoms before the incident.

Secondary Victim Claims in Medical Negligence Cases

This section discusses the challenges of bringing a secondary victim claim in stillbirth cases where negligence occurred during labor and the father was present. The discussion also covers the distinction between Walters and Town on Sunset, as well as whether a claim can succeed if the cause of action accrued way in the past.

Challenges in Bringing Secondary Victim Claim in Stillbirth Cases

• The major challenge would be to prove that there was an event that was sufficiently shocking and sudden appreciation of it rather than a gradual onset of a problem developing.

• In order for such a claim to succeed, there needs to be an immediate aftermath, which is not present in this case.

Distinguishing Walters from Town on Sunset

• It wasn't clearly answered but Laura has attempted to answer it satisfactorily.

Success of Claim with Cause of Action Accrued Way in the Past

• If the first manifestation is a shocking event rather than a sort of grumbling event as it was in Walters, then one might expect to succeed.

Changes Affecting Secondary Victim Claims in Stillbirth Cases

This section discusses how changes will affect secondary victim claims in stillbirth cases. The discussion covers whether other family members need to be present for both negligent acts and shocking events, and whether manifestation of an agent is likely.

Changes Affecting Secondary Victim Claims

• Current thinking is that for such claims to be successful, another family member needs to be present for both negligent acts and shocking events.

• If all control mechanisms are satisfied and stillbirth is the first manifestation, then a father doesn't actually have to be present at the moment that the negligence occurs.

Manifestation of an Agent in Pregnancy-Related Negligence

• The manifestation of an agent in pregnancy-related negligence is likely to be the death of the baby if this predates stillbirth.

Conclusion

This section concludes the discussion and mentions a future event on resulting trusts and constructive trusts.

Conclusion

• The speakers thank everyone for attending and answering their questions.

Future Event

• Russell Wilcox Connor Kennedy will discuss resulting trusts, constructive trusts next Thursday at 11 am.