Shock decisions

District Judge Pal Sanghera assesses nervous shock and secondary victims

Where a tortfeasor kills, injures or puts at risk A such that B suffers nervous shock, the law has long recognised B as a secondary victim.

Traditionally, damages have only been awarded where the secondary victim is the parent, spouse or child of the primary victim.

Furthermore, a distinction has been drawn between injury caused by actually witnessing an event and hearing about it.

Liability only attached in the first case.

Compensation thus requires - in addition to foreseeability - close ties of love and affection with the primary victim and proximity in time and space to the traumatic event.

Over the years, proximity has been extended to include coming upon the immediate aftermath of the event.

Immediate aftermath

In McLoughlin v O'Brian [1982] 2 All ER 321 HL, the mother was about two miles away from the accident involving her husband and three children.

She was told about it by a bystander who then drove her to the hospital.

She there witnessed the consequences of the accident and suffered a psychiatric injury.

The claimant, seeing the physical effects of the accident on her family, was effectively viewed as sufficiently proximate to the event.

While stressing that the shock occasioning the injury must come through sight or sound of the event or its aftermath, the court deliberately refrained from setting limits to the time and space criteria.

Following the Hillsborough disaster, the claimants in Alcock v Chief Constable of South Yorkshire Police [1991] 4 All ER 937 were unsuccessful.

They had either only seen and heard the event on television or radio or there was no evidence of any close ties of love and affection.

Television was too remote.

Now comes Atkinson & Anor v Seghal [2003] EWCA Civ 697, decided by the Court of Appeal on 21 March 2003.

The claimant's daughter was fatally injured in a car accident, dying shortly afterwards.

The mother had arrived at the scene and was told by a police officer that her daughter was dead.

She visited the mortuary that evening where her husband identified their daughter and she saw the injuries to her daughter's face and head.

She suffered a psychiatric reaction.

The Court of Appeal held that the aftermath of an event could have more than one component.

The question was whether there was sufficient proximity to treat the event as one.

In this case, there was an unbroken chain of events between the first discovery of the event and the inevitable visit to the mortuary.

Close ties

As two of the claimants in Alcock were brothers of a primary victim, it was perhaps harsh to say that the relationship itself was insufficient.

The Law Lords were clearly uneasy about their decision which they based on the requirement of foreseeability.

It was held that it is reasonably foreseeable that someone with close ties of love and affection will suffer shock if the primary victim is injured or killed.

In the case of a parent or spouse such shock is reasonably foreseeable.

Everyone else must prove such ties.

The Law Lords expressly did not draw a line under the category of claimant.

Each case falls to be examined closely on its facts.

District Judge Pal Sanghera sits at Coventry and Nuneaton County Courts