The ‘Primary Victim’ in Psychiatric Illness Claims: Reworking the ‘Patchwork Quilt’

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Abstract:

Where psychiatric injury is negligently inflicted, then whether the claimant is, properly analysed, a primary victim or not, has proven to be a particularly troublesome area of tort law. Since Alcock was delivered in 1992, not only has the House of Lords vacillated about the dichotomy between primary and secondary victims, but ‘parallel paths’ of recovery for psychiatric injury have also been permitted. The aim of this article is to seek to explain the primary victim cases to date, and to propose a way forward, according to a principled framework. In particular, it is argued that there should be two (and only two) types of primary victims — the Page v Smith-type strictly construed, and a further type to whom the defendant assumes a legal responsibility to prevent reasonably foreseeable psychiatric injury. In relation to this second category, the article proposes six factors that would, cumulatively-speaking, point to such legal responsibility having been undertaken. It is further contended that to reinstate the ‘normal fortitude’ rule, and to abolish any shock requirement (if, indeed, it applies), would imbue primary victim analysis with improved consistency and clarity

Document Type: Research Article

Publication date: January 1, 2008

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  • Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.
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