Crash Victims Info

Secondary Victim Law of Tort Please Help!?

i have been givn this scenario: April and her daughter Sally, aged 8, live with her partner Hugh. April is divorced from Sallys father. April and Sally are involved in a very serious road crash caused by brians negligence. April, in a hysterical state rings Hugh on her mobile phone. As well as Aprils emotionally charged account of the crash, Hugh can hear police and ambulance sirens and the screams and sobs of sally who is dying as a result of her injuries. As a result hugh suffers from Post Traumatic Stress Disorder. Can Hugh claim as a secondar victim? i am aware of the criterion for secondary victims, i need to know about relationships and would that qualify Hugh? Any help from legal people would be very appreciated!! I am in the Uk

Public Comments

1. If you are aware of the criteria for secondary victims, then you need to just follow the standard IRAC format. State the issue, state the rule, apply the rule to your facts and reach a conclusion. I would analyze this for the general rules and for your local state law.
2. Burdett v Dahill (2002) recognized a claimant who was walking with a close friend who was killed, due to "strong tie of affection". I think the harder issue would be that Hugh was not present, and was not in the range of foreseeability. (Burdett v Dahill may be a UK case - http://books.google.com/books?id=KwtpCC7U-U8C&pg=PA49&lpg=PA49&dq=secondary+victim+tort&source=web&ots=YBFK_GayfE&sig=JQQM43eD7LidkSHgE7vFeDukz9A#PPA48,M1 ) If this is a US-based scenario, it would depend on the state. Minnesota, for example, does not recognize secondary victims.
3. Proximity and relationships There is physical proximity where for instance a person suffers shock when seeing the damaged caused after a road traffc crash. and although does not witness any bodies/death SAW enough blood etc to be effected and owed a duty of care And There is relationship proximity where the person does not have to witness an event but the relationship that exists between that person and the victim as in your scenario is enough to owe the duty of care See donoghe v stevens case again...the manufacturer was no where near the claimant at the time...but the relationship (consumer and trader) was close enough See also hill v chief constable of west yorkshire 1988
4. This link will help. http://webjcli.ncl.ac.uk/1996/issue3/pickfor3.html I would have thought that on the basis of Bourhill v Young [1943], Hugh's injuries are too remote, but certainly the nature of his injuries, could he establish liability, would be covered.
5. The criteria for libility is contained in Alcock v Chief Constable of West Yorkshire (1991) which distinguishes between primary and secondary victims - claimants can be: 1) Present at the scene and injured (primary) - Page v Smith (1996); 2) Present at scene and at risk of physical harm (primary) - Dulieu v White (1901); 3) Close tie of love and affection with victim and witnessed unaided the incident or its immediate aftermath (secondary) - McLoughlin v O'Brien (1981); 4) Claimant proves close tie with the victim and witnessed close-ups of the victim on TV in breach of broadcasting rules (secondary). Normal TV (debatable). Hugh can probably claim even with the high liability established in O'Brien. In that case the claimant succeeded even though not a witness of the incident, but this came under Wilberforce's two part test (there was proximity and no policy reason for denying the claim). Hugh was sufficiently proximate in time and space to the incident and he has a close tie of love and affection to the victim. Alcock applies but it is arguable that hearing the incident on the telephone is not the same as having 'witnessed' the incident (e.g on news reports or being at the scene). Conversely, there is a causal link between the event of hearing the incident and suffering PTSD so it is evenly balanced.