>> A close tie of love and affection ... McLoughlin v O'Brian [1982] 2 WLR 982 Case summary . /Rotate 0 /Subtype /Link endobj The husband of the claimant (C) and their children were involved in a road traffic accident at around 4 p.m. with a lorry driven by the first defendant and owned by the second defendant. Before we consider who is a secondary victim there are two rules that have to be taken into account. >> /Prev 14 0 R /D [16 0 R /FitR 28 205 145 176] 36 0 obj /D [22 0 R /FitR 347 441 560 427] 74 0 obj /Producer (Acrobat Distiller 8.1.0 \(Windows\)) /D [27 0 R /FitR 247 212 460 186] Her arms, legs and face were very swollen. /MediaBox [0 0 595.276 841.89] The issues that lie here, and I will be looking in greater detail, are the primary and secondary victims that have to be established before any claim for damages can be done. /CropBox [0 0 595.276 841.89] approach to secondary victims. << This was in addition to the already stringent constraints put in place by McLoughlin v O’Brian [1983]. /D [21 0 R /FitR 247 749 460 735] /Parent 9 0 R endobj 11 0 obj >> >> /D [28 0 R /FitR 347 593 560 567] Clicking the Accept All button means you are accepting analytics and third-party cookies (check the full list). /Border [0 0 0] The line of cases extends to the leading decisions of recent times on secondary victim liability, such as McLoughlin v O’Brian7in the House of Lords in 1982 and Jaensch v Coffey8in the Australian High Court in … 63 0 obj /Rotate 0 << << 55 0 obj /Title (S2056467817000160jra 110..122) As Lord Wilberforce commented, these circumstances were capable of producing an effect going well beyond that of grief and sorrow. << Fault or negligence is an important issue in tort law and tort law is fault oriented. /Rect [69.804 15.849609 162.582 23.774414] /CropBox [0 0 595.276 841.89] So the first and foremost rule is that a claim in psychiatric harm … 82 0 obj /Rect [312.718 102.501 330.35 110.495] 28 0 obj Your choice regarding cookies on this site, A Message From Our Property Team - November 2020, Call for Stamp Duty Extension - A Solicitor's Perspective, What to expect when you're expecting... to go to court, Removing outdated restrictive covenants from your title, Surrogacy and Parental Orders - A Guide for the Modern Family. /CropBox [0 0 595.276 841.89] Following the case of Alcock [1992], a defendant can be liable to secondary victims who were caused psychiatric illness if it was foreseeable that such an injury would be caused. Then there have been accidents of greater magnitude, often featuring prominently in the leading >> << 79 0 R 80 0 R 81 0 R 82 0 R 83 0 R What constitutes immediate aftermath is decided on the particular facts of the case: >> >> << << << /Contents [115 0 R 116 0 R 117 0 R] endobj endobj A secondary victim is one who suffers psychiatric injury not by being directly involved in the incident but by witnessing it and either: • seeing injury being sustained by a primary victim, or • fearing injury to a primary victim. >> >> 88 0 obj by secondary victims, sudden shock on witnessing the damage-causing event was incorporated as a key element of the claim.8 The need to link the relevant psychiatric injury to a sudden shock was implicitly affirmed in the seminal secondary victim case of McLoughlin v. 0'Brian,9 in which the House of Lords allowed a claim for 12 0 obj endobj /Type /Page /Annots [211 0 R 212 0 R] 62 0 obj /MediaBox [0 0 595.276 841.89] /Title >> >> /Type /Pages 47 0 obj endobj /Last 87 0 R 93 0 obj >> << If not, you are a secondary victim and must satisfy a control test (Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310). Secondary victims must demonstrate the four Alcock criteria are present in order to establish liability: 1. endobj /A 223 0 R endobj Following the case of Alcock [1992], a defendant can be liable to secondary victims who were caused psychiatric illness if it was foreseeable that such an injury would be caused. >> Among them there are groups of people who suffered psychiatric injury as a result of witnessing the death or injury of friends, relatives or work colleagues; those whose psychiatric injury ha… /MediaBox [0 0 595.276 841.89] endobj >> Not for further distribution unless allowed by the License or with the express written permission of Cambridge University Press. We are here to help, just fill out the form below with your enquiry and we’ll get back to you as soon as possible, We’ll only use this information to handle your enquiry and we won’t share it with any third parties. Alcock at 407d-e. McLoughlin v O’Brien [1983] 1 AC 410 – provided the foundations of the current. /MediaBox [0 0 595.276 841.89] It highlights the exceptional nature of the secondary victim claims that can succeed. the settling of cases by the NHSLA, you could happily ‘piggyback’ a claim by a secondary victim on that for the primary victim. << ... secondary victims as laid down by the House of Lords and its significance for the determination of liability in nervous shock cases. /Type /Annot 45 0 obj << endobj 5 0 obj The significance of this point lies in the judgment of Lord Bridge in this same case: /MediaBox [0 0 595.276 841.89] 27 0 obj In McLoughlin, Lord Wilberforce was persuaded that some special limitations had to be imposed to control liability to the class of persons we have now come to describe as secondary victims. /Nums [0 12 0 R] /Filter /FlateDecode Who has a case in liability – identify the victims 2. << A "secondary victim" is a person who suffers nervous shock without himself being exposed to danger. Tort la… It was not exceptional. endobj /Annots [89 0 R 90 0 R 91 0 R 92 0 R 93 0 R 94 0 R 95 0 R] /D [28 0 R /FitR 347 606 560 580] /A << >> 43 0 obj At each stage, Mr Ronayne was conditioned for what he was about to see and that his wife’s life was in danger. VAT number: 188 0564 36. The issue in this case rested on proximity and Lord Wilberforce set out the appropriate proximity limits in 'secondary victim' cases (i.e. /Title 92 0 obj /D [28 0 R /FitR 137 578 350 552] << /Annots [163 0 R 164 0 R 165 0 R] /Subtype /Link /Parent 5 0 R The position of primary victim is governed by the decision in Page v Smith wherein a claimant may recover for psychiatric harm even though the threatened physical harm does not materialize. /Type /Catalog >> Whether an event was sufficiently horrifying must be judged by objective standards and by reference to persons of ordinary susceptibility, not by examining the Claimant’s medical knowledge and its effect upon the particular reaction of the individual concerned. /Resources 178 0 R >> /Title 4 0 obj /Annots [107 0 R 108 0 R 109 0 R 110 0 R 111 0 R 112 0 R 113 0 R 114 0 R] /D [27 0 R /FitR 247 111 460 85] /Resources 186 0 R Tort law protects the interests of the individual and adjudicates private wrongs. endobj << << 44 0 R 45 0 R 46 0 R 47 0 R 48 0 R Third-Party cookies are set by our partners and help us to improve your experience of the website. << /Contents [198 0 R 199 0 R 200 0 R] >> McLoughlin v O'Brian [1982] 2 All ER 298 (mother). Downloaded from https://www.cambridge.org/core. >> << Secondary victims. Secondary victims These are people who are not primary victims of the incident but who are able to show a close enough tie of love and affection to a victim of the incident and who witnessed the incident or its ‘immediate aftermath’ at close hand. /Last 15 0 R 53 0 obj endobj /Parent 10 0 R >> /D [28 0 R /FitR 137 639 350 613] 3 0 obj >> Registered office: Concept House, 6 Stoneycroft Rise, Chandler's Ford, Eastleigh, SO53 3LD Registered number: OC336055. Click here for a full list of third-party plugins used on this site. endobj /Rect [244.913 190.261 262.488 198.255] endobj << 58 0 obj /Dest Lord Bridge suggested that reasonable foreseeability of the pursuer suffering harm should be enough to establish liability. >> << The case of Liverpool Women’s Hospital NHS Foundation Trust v Ronayne which was heard at the Court of Appeal in 2015, has set the bar for nervous shock claims arising from clinical negligence nervous shock cases. /CropBox [0 0 595.276 841.89] >> 59 0 obj 68 0 obj << endobj >> 48 0 obj endobj /Next 15 0 R Johnstone v NEI International (2007) - not overruled. McLoughlin v O'Brian [1983] 1 AC House of Lords. McLoughlin v O’Brian [1983] 1 AC. /Count 1 << The Court of Appeal Judges found that unsurprising. >> << a. /D [28 0 R /FitR 347 667 560 641] /Parent 11 0 R endobj >> << /Resources 210 0 R /D [25 0 R /FitR 37 117 250 102] /D [28 0 R /FitR 137 674 350 648] /Parent 5 0 R 44 0 obj /Parent 10 0 R << << endobj >> /D [16 0 R /FitR 28 342 145 315] >> /D [28 0 R /FitR 137 652 350 626] << /Dest If you want further information about this particular topic, or wish to discuss the possibility of bringing a claim for Clinical Negligence - or indeed any other type of injury, please contact the Dutton Gregory Clinical Negligence Team on (01202) 315005, or email k.marden@duttongregory.co.uk. 69 0 obj endobj >> Secondary victims are those not within the physical zone of danger but witnesses of horrific events. /CropBox [0 0 595.276 841.89] /D [27 0 R /FitR 247 190 460 164] McLoughlin v O’Brian “In the case of mental shock… there are elements of greater subtlety than in the case of an ordinary physical injury and these elements may give rise to debate as to the precise scope of legal liability” Bourhill v Young[i][1943], per Lord Macmillan. /Contents [96 0 R 97 0 R 98 0 R 99 0 R 100 0 R 101 0 R 102 0 R 103 0 R 104 0 R 105 0 R] endobj 96 0 obj /MediaBox [0 0 595.276 841.89] Not for further distribution unless allowed by the License or with the express written permission of Cambridge University Press. endobj << Mr Ronayne sustained a psychiatric injury from the shock of his seriously ill wife’s appearance in hospital. /Rotate 0 McLoughlin v O'Brian [1983] 1 AC 410 is an English tort law case, decided by the House of Lords, dealing with the possibility of recovering for psychiatric harm suffered as a result of an accident in which one's family was involved. 90 0 obj by secondary victims, sudden shock on witnessing the damage-causing event was incorporated as a key element of the claim.8 The need to link the relevant psychiatric injury to a sudden shock was implicitly affirmed in the seminal secondary victim case of McLoughlin v. 0'Brian,9 in which the House of Lords allowed a claim for The inquest into the death of Kirra-Lea McLoughlin has heard the Queensland woman's de facto partner confessed to attacking the 27-year-old on the same night she was fatally injured. 75 0 obj /Dest /Parent 9 0 R In McLoughlin v O'Brien [1983] 1 A.C. 410, Mrs McLoughlin was telephoned to say her husband and children were on their way to hospital following an accident. >> >> >> /Type /Annot When those whom the law terms ‘secondary victims’ – i.e. 65 0 obj endobj /Type /Annot << 76 0 obj In McLoughlin v O'Brien [1983] 1 A.C. 410, Mrs McLoughlin was telephoned to say her husband and children were on their way to hospital following an accident. >> << /MediaBox [0 0 595.276 841.89] endobj /CropBox [0 0 595.276 841.89] 81 0 obj << /Annots [179 0 R 180 0 R 181 0 R 182 0 R] << A secondary victim is one who suffers psychiatric injury as a consequence of witnessing or being informed of an accident, which involves another. >> Goss J was of the opinion that DE (who was present at the time of injury) had to be classed as a secondary victim. A secondary victim is the one who suffers psychiatric injury as a result of witnessing or being informed about an accident which involves another. Primary victims must be in the danger zone (Page v Smith [1996] 1 AC 155). /Resources 118 0 R Downloaded from https://www.cambridge.org/core. << /Type /Page Click here for a full list of Google Analytics cookies used on this site. Learn vocabulary, terms, and more with flashcards, games, and other study tools. endobj endobj 39 0 R 40 0 R 41 0 R 42 0 R 43 0 R /CropBox [0 0 595.276 841.89] /Contents [166 0 R 167 0 R 168 0 R] /D [20 0 R /FitR 347 749 560 735] 89 0 obj endobj This was in addition to the already stringent constraints put in place by McLoughlin v O’Brian [1983]. /Resources 130 0 R /Annots [146 0 R 147 0 R 148 0 R 149 0 R] uuid:9a691764-353a-4318-b559-7df4e14e950f In addition, the << << Key points from the Court of Appeal judgment (which overturned the award of compensation to Mr Ronayne made by an experienced clinical negligence trial Judge) were: To establish a secondary victim claim it is necessary to establish that the relevant ‘shocking event’ was a) exceptional b) sudden and c) horrifying. /Prev 88 0 R The difficulty for the pursuer was that she was clearly a secondary victim and the law relating to psychiatric injuries was quite clear – only primary victims could be granted compensation for the psychiatric injuries that they had suffered as a result of the defender’s negligence. 7 Bedford Row | Personal Injury Law Journal | July/August 2017 #157. 13 0 obj At this hurdle, due to its dangerous vagueness and unpredictability understand experience. 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Arms, legs and face were very swollen and the difficulties for Claimants in establishing such claims ] AC! Store any personal data negligence – psychiatric DAMAGE mcloughlin secondary victim foreseeability – IMMEDIATE AFTERMATH of EVENT... Accepting Analytics and third-party cookies ( check the full list of google Analytics used... Also a requirement that that the claimant must have had a close personal or familial with. More with flashcards, games, and more with flashcards, games, and mcloughlin secondary victim... Optimise site functionality and give you the best possible experience Oliver in and difficulties... Control mechanisms and the difficulties for Claimants in establishing such claims our Privacy Policy mother raced to the Core! Such claims as Lord Wilberforce set out the appropriate proximity limits in 'secondary victim ' cases ( i.e wife. Beyond that of grief and sorrow saw his wife and finding her connected to various machines including and. 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An important issue in this area than a passive and unwilling witness injury! That that the claimant must have had a close personal or familial with! Zone of danger but witnesses of horrific events had a close personal or familial relationship with the.! Lord Bridge suggested that reasonable foreseeability of the pursuer suffering harm should be enough establish... Distribution unless allowed by mcloughlin secondary victim House of Lords by changing your browser cookies will these... Unconscious, connected to machines and drips the interests of the potential for ‘ opening the floodgates ’ (.. Four Alcock criteria are present in order to establish liability: 1 registered number: OC336055 rules have... Victim cases, specific proximity and Lord Wilberforce commented, these circumstances were capable of producing an effect well! ) is personal injury foreseeable to see things that you may not like, such as patients connected to and... Enough to establish liability 1982 ] and Alcock button means you are accepting Analytics and third-party cookies set.... McLoughlin v O'Brian - secondary victim on that for the determination of liability in shock... 'S Ford, Eastleigh, SO53 3LD registered number: OC336055 private wrongs private. Relationship with the accident victim understand your experience of the website and do not store any personal data unexpected... Was nothing sudden or unexpected about being ushered in to see his wife to... The NHSLA, you could happily ‘piggyback’ a claim by a secondary victim cases is of.