Can secondary victims of psychiatric harm be owed a duty of care?

Question

Can secondary victims of psychiatric harm be owed a duty of care?

Answer

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. This was in addition to the already stringent constraints put in place by McLoughlin v O’Brian [1983]. The court here put three ‘control mechanisms’ in place to ensure the scope of liability on secondary victims was restricted.

1. Proximity of Relationship
   Firstly, secondary victims must have a “close relationship of love and affection with the ‘immediate’ victims”. However, the judges have considered bystanders of the incident can be secondary victims, thus not making the ‘closeness’ criteria a prerequisite.
2. Proximity in Time and Space
   To succeed as a secondary victim, claimants would need to demonstrate a high degree of proximity to the accident in time and space. This would normally mean that they were a witness to the accident or in the course of the ‘immediate aftermath” of the accident.
3. By the means by which the illness is caused
   The third criterion has some overlaps with proximity, but specifically it identifies as the “means by which the shock is caused”. Therefore, considers secondary victim’s perception of the course of events cannot be gradual, but rather immediate or sudden.

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