Primary And Secondary Victims And Secondly By Identifying The Essential Elements Of A Claim For Psychiatry Injury

Primary And Secondary Victims And Secondly By Identifying The Essential Elements Of A Claim For Psychiatry Injury

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This essay evaluates the statement above by firstly explaining the difference between primary and secondary victims and secondly by identifying the essential elements of a claim for psychiatry injury. Following, is an evaluation of the effectiveness of the current set of rules dealing with psychiatry injury and the proposed reform to the aforementioned rules.

Lady Justice Hale in Hatton v Sutherland [2002] EWCA Civ 76 states that “Where psychiatric harm is suffered, the law distinguishes between “primary” and “secondary” victims. Such distinction is set out in Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310. Lord Oliver points out primary victims as those involved 'mediately or immediately as a participant ' and, secondary victims as those not within the physical zone of danger, yet, witnesses of horrific events.
This means that some claimants are physically endangered by the incident although they suffer only psychiatric harm and, other claimants suffer psychiatric harm not as a result of being physically endangered but as a result of what they witness at a distance, outside of the area of danger.
The nature of psychiatric harm has been developed through case law. In addition to the test for imposing a duty of care from Caparo Industries plc v Dickman [1990] 2 AC 605, the courts elaborated different tests, depending on whether the victim is classed as a primary or secondary victim, which must be satisfied for establishing a duty of care where pure psychiatric harm has been suffered. (The Open University, 2016a).

In general, liability arises only if the injury to the victim is reasonably foreseeable by the wrongdoer, however, a primary victim may claim and recover for an unforeseeable psychiatric injury if some...

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...obligation would create more certainty and clarity and it would help to address the current perception of unfairness in the law, amongst sections of the public.
In Jones, M. (1995) other possibilities for reform are identified; abolishing all claims for psychiatric harm, adoption of the proposals set out in the Law Commission’s - Report, Liability for Psychiatric Illness (Law Com No 249, 1998) and remove some of the control mechanisms and, treat claims for pure psychiatric harm as ordinary negligence claims.
The latter option seems to be the preferred one in Jones (1995). This means that, it would be necessary to establish; (a) a duty of care applying the tests in Caparo, (b) a breach of duty and, (c) a causation. Moreover, the claimant would need to show, on the balance of probabilities, that he suffered psychiatric harm as a result of the defendant’s negligence.

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