PI Focus-Second Chance: Contributory Negligence In Secondary Victim Claims

• Jurisdiction: European Union
• Law Firm: Deka Chambers
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Professional Negligence
• Author: Ms Sarah Prager
• Published date: 08 March 2023

The law on secondary victim claims has been much debated recently. In Paul v Royal Wolverhampton NHS Trust [2022] EWCA Civ 12 the Supreme Court is due to reconsider the position of claimants whose psychiatric injury arises from witnessing a horrific event removed in time from the original causative negligence. It is to be hoped that in this case the Court will give further guidance on an area of the law which has developed somewhat haphazardly since the seminal decision in Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310. In that case the Supreme Court held that in order to establish a claim in respect of psychiatric illness resulting from shock it was necessary to show not only that such injury was reasonably foreseeable, but also that the relationship between the plaintiff and the defendant was sufficiently proximate. Additionally, a plaintiff must show propinquity in time and space to the accident or its immediate aftermath.

There followed a slew of cases exploring the nature of the relationship between primary and secondary victims, and the precise delineation of the necessity for the latter to witness the injury to the former. Because the law in this area is avowedly policy-led, it soon became clear that in borderline cases it would be difficult to predict the outcome. Now the doctrine is to be reviewed once more by the Supreme Court, which will have the advantage, this time, of having a Law Commission report on liability for psychiatric illness[1]. But whatever the Supreme Court may determine in Paul, it is highly unlikely to determine one issue on which there is no binding authority: how do the doctrines of contributory negligence and secondary victim claims interact?

We do have some clues as to the Supreme Court's likely approach to this question. Lord Oliver in Alcock considered the analogous position where the primary victim was the Defendant to the secondary victim's claim. Without coming to any settled conclusion, he suggested that the courts would be likely to follow the view of Deane J in the Australian case Jaenesch v Coffey [1984] 8 WLUK 48 that such a duty should be excluded on grounds of policy. However, he went on to add:

"But if that be so, the limitation must be based upon policy rather than upon logic for the suffering and shock of a wife or mother at witnessing the death of her husband or son is just as immediate, just as great and just as foreseeable whether the accident be due to the victim's own or to another's...