RECOVERY FOR PSYCHIATRIC INJURY IN THE CASE OF SECONDARY VICTIMS.
Introduction.
Psychiatric injuries are recognized under UK negligence laws. For one to establish a claim for a psychiatric injury or “nervous shock”, the injury has to be one that is recognized as a psychiatric injury under the law and one that has been confirmed by one through a medical diagnosis. Although the law recognizes that besides primary or direct victims, there are secondary victims who can make claims for suffering psychiatric injuries due to the defendant’s negligence. Unlike in the case of primary victims, the courts have put very restrictive rules for secondary victims to have any recovery for claims for psychiatric injuries. This paper shall look at the rules of recovery for secondary psychiatric injuries and case law illustrating the same.
Rules for recovery.
A secondary victim is any person who suffers a psychiatric injury or nervous shock by either witnessing an incident that causes an injury to another or by in fear of an injury of the primary victim. There are rules that govern the recovery for the psychiatric injuries suffered include are summed as the “Control mechanism”. Under the control mechanism, the court looks to address the relation between the claimant and the event. The purpose of the control mechanism rule is to limit the number of claimants of secondary psychiatric injuries. The control mechanism rule was first introduced by the court in Alcock v Chief Constable of S. Yorks Police, where the court stated that a claim by a secondary victim can only be successful if the following elements (rules) are satisfied,
a). The claimant should have a close love tie to the primary victim “the dearness test”.
This was illustrated in White & Others v Chief Constable, where the claimants being police officers claimed for psychiatric injuries because they had witnessed an incident as rescuers during the event. Their claims were however dismissed because they failed to satisfy the dearness test as they had no love or affection for the victims as they were only their on duty.
b). The claimant’s sickness should be as a result of experiencing an unexpected shock “the nervous shock test”.
In Sion v Hampstead Health Authority, a father of a motorcycle accident victim sat by his dying son’s bed for 14 days until his demise. Upon his son’s death, he made a claim as a secondary victim of psychiatric injuries watching his child in agony for 14 days. His claim was dismissed as the court stated that the medical reports had failed to mention that the claimant had suffered any nervous shock as a result of his son’s accident and subsequent death.
c).The claimant should have been at the scene of the incident or witnessed the aftermath “the proximity/nearness/hearing test”.
In Alcock v Chief Constable of S. Yorks, the claimants who were relatives of the deceased who had died as a result of a football match human crash, brought a claim as secondary victims of psychiatric injuries. The claimants were however not at the stadium during the unfortunate event. They also never heard of the incident first hand but through the radio. The court held that, although the claimants had proof of psychiatric injuries, they could not recover as secondary victims for psychiatric injuries as they had failed to satisfy the nearness/proximity test.
d). The injury must have a direct connection to the incident “the causation test”.
This was illustrated in Hambrook v Stokes where a woman was walking down a street with her children and after a while she allowed her children’s to go without her. After they had disappeared around a corner, she saw a truck dangerously heading in the kids direction. She feared for her children’s safety and hurried after them. When she got there, she was informed that a child fitting the description of one of her children had sustained severe injuries and rushed to the hospital. The lady suffered nervous shock and died as a result. The court held that was a secondary victim and that the nervous shock had been the cause of the woman’s death.
e). Finally, the claimant’s injury should be one that can be diagnosed by a medical doctor “the diagnostic test”.
As was illustrated in Taylorson v Shieldness where a 14 year old boy had been involved in a road accident and died after two days in the ICU. His parents brought a claim for recovery as secondary victims of psychiatric injuries stating they had suffered nervous shock watching the boy in his state. The court however, dismissed their claim stating that the medical report failed to include a diagnosis that the claimants had indeed suffered a nervous shock. All they had suffered was mere grief.
Conclusion.
It is clear that the control mechanism makes it impossible for most people to claim as secondary victims for psychiatric injuries. The requirements by the court that secondary victims must meet all the standards is very restrictive and unfair to victims who have genuine claims. Although the rationale in Alcock is that the control mechanism is aimed at reduction of the number of cases that can be successful, it indeed complicates the recovery process for victims and ultimately seeks to ensure that only a few of these victims meet the standards set by the rules.
References.
Case law
Alcock v Chief constable of South Yorkshire Police, [1991] UKHL 5
Hambrook v Stokes Brothers [1925] 1 KB 141
Sion v Hampstead Health Authority [1994] 5 Med LR 170
Taylorson v Shieldness [1994] PIQR 329
White, Frost and others v Chief Constable of South Yorkshire and others [1999] 1 ALL ER 1
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