PI Focus-Second chance: Contributory negligence in secondary victim claims

Articles | Thu 2nd Mar, 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 negligence and if the claim is based, as it must be, on the combination of proximity and foreseeability, there is certainly no logical reason why a remedy should be denied in such a case. Indeed, Mr. F Hytner, for the plaintiffs, has boldly claimed that it should not be. Take, for instance, the case of a mother who suffers shock and psychiatric injury through witnessing the death of her son when he negligently walks in front of an oncoming motor car. If liability is to be denied in such a case such denial can only be because the policy of the law forbids such a claim, for it is difficult to visualise a greater proximity, or a greater degree of foreseeability. Moreover, I can visualise great difficulty arising, if this be the law, where the accident, though not solely caused by the primary victim, has been materially contributed to by his negligence. If, for instance, the primary victim is himself 75 per cent responsible for the accident, it would be a curious and wholly unfair situation if the plaintiff were enabled to recover damages for his or her traumatic injury from the person responsible only in a minor degree whilst he in turn remained unable to recover any contribution from the person primarily responsible since the latter’s negligence vis-a-vis the plaintiff would not even have been tortious.

Policy considerations such as this could, I cannot help feeling, be much better accommodated if the rights of persons injured in this way were to be enshrined in and limited by legislation as they have been in the Australian statute law…”

Lord Oliver’s view, therefore, albeit obiter, was that where the primary victim was the tortfeasor, the secondary victim could not recover damages from him or her. Further, and by analogy, where the primary victim had contributed to the occurrence of the accident, it would be ‘curious and wholly unfair’ if the secondary victim could recover damages from the tortfeasor in full. These questions, Lord Oliver concluded, were matters of policy which ought to be considered, and in respect of which Parliament and not the courts should provide the answers.

The Law Commission in its report on psychiatric injury considered these questions. It found that on the one hand, the most persuasive argument against applying the doctrine of contributory negligence in secondary victim cases was that otherwise there would, in effect, be a duty on individuals to look after themselves, simply in order to protect others from the likely psychiatric effects of an accident; and that this would place an undesirably restrictive burden on self-determination. On the other hand, however, where the defendant’s self-inflicted injury results in the claimant’s physical injury, for example where the claimant has been injured in the course of rescuing the defendant, the claimant may recover damages notwithstanding the arguments in favour of self-determination. To this extent at least the courts do recognise that there is a duty not to place oneself in harm’s way. And of course the point can be made that the entire legal system, both civil and criminal,is founded on the principle that there are limits to a person’s right to self-determination. We are all at liberty to do whatever we want; but if, in doing so, we harm another person, we are at risk of having to compensate him or her. Why should secondary victim claims be any different?

In the event the Law Commission recommended that where the defendant was the primary victim the law should adopt a compromise position under which there should be no general restriction, but that:

“‘courts should have the scope to decide not to impose a duty of care where satisfied that its imposition would not be just and reasonable because the defendant chose to cause his or her own death, injury or imperilment.”

As regards contributory negligence, the Law Commission considered that to reduce the secondary victim’s damages in line with the contributory negligence of the primary victim was not attractive, as “it would be contrary to the underlying principle that the defendant owes a separate duty of care directly to the [secondary victim] claimant”.

Interesting though these ruminations are, the government rejected the Commission’s recommendation that it should act to clarify the law, and they therefore did not pass into law.

The only authority of relevance to the issue remains the pre-Alcock decision in Greatorex v Greatorex [2000] 1 WLR 1970, in which Cazalet J accepted the self-determination argument against the imposition of a duty on a primary victim in relation to a secondary victim. The claimant was a fireman who attended a car crash where the victim who was to blame for the crash, turned out to be his own son. The claimant suffered post-traumatic stress and sued his son (effectively of course suing his son’s motor insurers). His claim failed for a number of reasons, including that imposing a duty on his son to avoid self-inflicted injury would limit the son’s right to self-determination. The decision was not appealed, the claim also having failed on other grounds, and it remains therefore of tangential interest only.

It is perhaps surprising that there is no binding English authority on whether or not the claim of a secondary victim may be reduced on account of contributory negligence, or whether a tortfeasor may seek a contribution or indemnity from a primary victim in respect of a secondary victim’s claim; but so it is. Other than the obiter comments of Lord Oliver in Alcock and the Law Commission’s opinion there is very little indication of how a court would approach any such argument, and because the law on secondary victims is very heavily policy based, it would be useful if the legislature could be prevailed upon to express a view. As the Law Commission observed, it would be strange if a tortfeasor were to be 100% liable to the secondary victim of a tort, but only 50% liable to the primary victim. On the other hand, the argument that a primary victim owes a duty to a secondary victim not to cause him or her injury through insufficient care for him- or herself is a novel one. But then, in this area of the law there are many novel arguments to be had; and in Paul we shall soon see what Supreme Court makes of one of them.

This article was first published in PI Focus, January 2023.