(C)
Celia cannot claim as either a primary victim or a secondary victim. First to be examined is the criteria for a claim as a secondary victim set out in Alcock v. Chief Constable of South Yorkshire Police, i.e. the victim must perceive the shocking event with his own unaided senses or viewing its immediate aftermath which in its turn requires a close proximity to the event. Secondly, the shock must be sudden, not gradual. Thirdly, if the cause of the shock involves witnessing the death or injury of another person know to the claimant, there must be a ‘close tie of love and affection’ between the parties. This tie is presumed to only exist between parent and child or between spouses. Fourthly, it must be reasonably foreseeable that a person of normal fortitude would suffer nervous shock being in the claimant’s position. If it can be established that psychiatric injury was foreseeable to accrue to the victim, then the eggshell skull rule will apply which essentially states that ‘you must take your victim as you find him’ and that renders the defendant liable even though the claimant may have been exceptionally susceptible to psychiatric injury. Applying these principles to Celia’s situation, it is clear that she does not fulfill the criteria. Firstly, she was not present at the scene at the time of the accident. It was her son-in-law who had been injured and that does not constitute a ’close tie of love and affection’. In the case of Robertson v. Forth Road Bridge Joint Board it was held that secondary victims with no ’close tie of love and affection’ to the victim cannot claim. In Alcock Lord Jauncey stated that that love tie has in the past merely regarded parent-child and spouses in-between and that this should continue to be the position by which to obey. A definition of this love tie is illustrated by the case of Hambrook v. Stokes Brothers where a claim as a secondary victim was allowed to a mother who feared the safety of her children, without seeing the events of the accident with her own unaided senses, thus she was told the events from bystanders. She did not fear for her own safety, instead of her children’s safety which essentially allowed her a claim, since the court regarded this particular parent-child relationship as sufficient in terms of proximity. So the application for a secondary victim claim would hence be unsuccessful in this case, however as can be seen below, David would be a successful applicant for this type of claim.
(D)
David can claim as a secondary victim since he fulfills all the Alcock criteria. Firstly, David was at the scene of the accident a few hours after the event had taken place. Hence, the shock must be sudden. Thirdly, there must be a close tie of love and affection which is present here since it was the body of his son that David had to identify, a parent-child relationship falls within the category of sufficient proximity to the victim (see discussion above). Then, is it reasonably foreseeable that another person would have suffered nervous shock in David’s situation? Quite clearly, yes. In the case of McLoughlin v. O’Brian a woman suffered nervous shock after being notified of the fact that her son had died and her family been injured in a car accident. This claim as a secondary victim was successful despite the woman not being present at the scene of the accident, neither in its immediate aftermath. The court here concluded that it was reasonably foreseeable that another person would have reacted in the same way. In contrast to this, David was present at the scene in its immediate aftermath and since the close tie of love and affection is present, it is very likely with reference to McLoughlin v. O’Brian that he would succeed in a claim as a secondary victim.
2.
(A)
The issue here regards actions upon death/claims by deceased victim’s dependents.
The set sum that dependents to deceased victims can claim is now set at £ 11,800. First of all we need to clarify whether Belle can be regarded as a dependent and thus consider the Fatal Accidents Act 1976 where s. 1(3) (b) provides for that a ‘dependent’ is any person who (ii) was living with the deceased in the same household immediately before the date of the death. In that case, Belle whom Timmy had been living with a year prior to the accident, could be classed as a dependent. S. 2(3) of the Fatal Accidents Act 1976 provides “Not more than one action shall lie for and in respect of the same subject matter”.
Hence, Belle could receive this £11,800. She cannot claim damages for bereavement since the entitled ones are either the wife or husband of the deceased or where the deceased was a minor. She could claim loss of support since Timmy had supported her financially prior to the accident.
(B)
This section and the one below regard personal injury claims including pecuniary and non-pecuniary losses. Lord Scarman stated at para 188 in Lim Poh Choo v. Camden & Islington Area Health Authoiry that there was “a clear distinction between damages for pain and suffering and damages for loss of amenities. The former depend upon the claimant’s personal awareness of pain, her capacity for suffering. But the latter are awarded for the fact of deprivation, a substantial loss, whether the claimant is aware of it or not”. The case of West & Son and Another v. Shephard held that a woman who due to an accident had become permanently bedridden was entitled to £ 17,500 in general damages since she had lost virtually all amenities of life. Belle could claim loss of amenity due to her inability to now breed and show her dogs, see also Lim Poh Choo on this point. The devices for calculating future losses are the multiplier & multiplicand. The multiplier refers to number of years and the multiplicand regards the annual loss. The maximum multiplier for those aged 40 is now set at 16.5. So, in order to calculate how much Belle could receive in lump-sum compensation, the multiplicand (i.e. £ 15.000) will be multiplied by the multiplier (i.e. 16.5.), the answer is £ 247.500. Herring v. Ministry of Defense was a case in which the claimant’s loss of future earnings was increased to £ 59,300 due to his past working experiences and academic achievements. In any case it is clear that those two can be important pillars in succeeding in a claim for personal injury. The case of Dixon v. John Were was a case in which the multiplicand method was applied. In Wells v. Wells the multiplier for future losses was calculated by using the Ogden Tables. Belle could rely upon the claim for lost years due to the loss of earning during the period which she would have been able to work, had the accident not occurred. This fact was illustrated in the case of Pickett v. British rail Engineering Ltd Furthermore, she could claim for pain and suffering (non-pecuniary loss) with reference to the case of Hicks v. Chief Constable of the South Yorkshire Police As regards the costs of medical care, it was held in Cooke v. United Bristol Healthcare NHS Trust that the Lord Chancellor had by setting the discount rate at 2,5% under the Damages Act 1996 intended it to not merely apply to lost earnings, though also to care costs.
To sum up, Belle could claim £ 247.500 in a lump-sum for loss of earnings, lost years, loss of earnings capacity, loss of amenities and expenses (such as the medical treatment).
(C)
This regards similar issues as discussed in (B). Lady has suffered loss of earnings and loss of earning capacity and the costs for medical care. It could also be argued that Lady’s inability to now have puppies can be regarded as a loss of amenities. So Belle could on behalf of Lady claim loss of earnings, loss of earning capacity, expenses and loss of amenities.
3.
This regards the liability of emergency services. The case of Kent v. Griffiths essentially held that an ambulance service was under a duty of care once they had responded to an emergency call. They are in this scenario hence liable to Mrs. Jones. As regards the liability of the fire brigade, Capital and Counties Plc. v. Hampshire Cc stated that a fire brigade was not under a duty to answer a call or take care in doing so. However, if the fire brigade itself creates due to negligence, a dangerous situation which then causes the claimant’s injury, the rescue service will inevitably be held liable in that respect, which led to that the fire brigade in this case could be held liable. The fire brigade had by acting increased the damage. However, it is worth contemplating two additional cases where it was held that no duty was owed by the services. Firstly, in Monroe v. London Fire Brigade the fire officers had negligently left and area situated around an explosion without making sure that there was no risk of fire there. Secondly, in Church of Jesus Christ of the Latter Day Saints v. West Yorkshire Fire & Civil Defense Authority the fire brigade negligently failed to ensure that there was sufficient water supplies to combat a fire. Nonetheless, since none of the rescue services in the above cases contributed positively in creating a dangerous situation for the claimant leading to harm, they were held no to be liable. So with reference to the Hampshire case and the principle of no duty to answer a call, the fire brigade would not be liable to Mr. Smith.
Conclusion
The distinction between primary and secondary victims has been drawn with reference to cases. The case of Alcock is crucial since it established the criteria for claiming as a secondary victim. Hence, regarding Actions upon death and claims for personal injury, the multiplier and multiplicand have been useful in calculating the proximate award of compensation for the claimant. Regarding the liability of public bodies, there is a distinction drawn between liability of the ambulance service and of the fire brigade.
Bibliography
Table of Cases
Alcock v. South Yorkshire Police [1991] 4 All ER 907 (HL)
Capital and Counties Plc. v. Hampshire Cc [1977] QB 1004 (CA)
Chadwick v. BTC [1967] 2 All ER 945
Church of Jesus Christ of the Latter Day Saints v. West Yorkshire Fire & Civil Defense Authority [1996] EWCA Civ. 1227
Cook v. United Bristol Healthcare NHS Trust [2004] 1 WLR 251 (CA)
Dixon v. John Were [2004] EWHC 2273 (QB)
Dulieu v. White [1901] 2 KB 669
Greatorex v. Greatorex [2000] 4 All ER 769
Hale v. London Underground [1992] 11 BMLR 81
Hambrook v. Stokes Brothers [1925] 1 KB 141 (CA)
Herring v. Ministry of Defense [2004] 1 All ER 44
Hicks v. Chief Constable of the South Yorkshire Police [1992] 2 All ER 65 (HL)
Hill v. Chief Constable of West Yorkshire [1988] 2 WLR 1049 (HL).
Kent v. Griffiths [2000] 2 All ER 474 (CA).
Lim Poh Choo v. Camden & Islington Area Health Authority [1980] AC 174 (HL)
McFarlane v. EE Caledonia Ltd [1994] 2 All ER1 (CA)
McLoughlin v. O’Brian [1982] 2 All ER 298 (HL)
Monroe v. London Fire Brigade [1997] QB 983
Page v. Smith [1995] 2 All ER 736 (HL)
Pickett v. British Rail Engineering Ltd [1980] AC 136 (HL)
Robertson v. ForthRoad Bridge Joint Board [1995] IRLR 251
Simmons v. British Steel plc. [2004] UKHL 20
Wells v. Wells [1999] 1 AC 345 (HL)
West & Son and Another v. Shephard [1964] AC 326 (HL)
White v. South Yorkshire Police [1999] 1 All ER 1 (HL)
Secondary Sources
Fatal Accidents Act 1976
Per Kennedy J in Dulieu v. White p.1.
[1995] 2 All ER 736 (HL).
Per House of Lords in White v. Chief Constable of South Yorkshire Police p.1.
PER Lord Griffiths in White v. South Yorkshire Police at p. 1.
[1991] 4 All ER 907 (HL).
[1982] 2 All ER 298 (HL).
Fatal Accidents Act 1976 Bereavement claims s.1 (A).
Fatal Accidents Act 1976 part 1A Bereavement s.2 (a) and (b).
Mark Lunney, Ken Oliphant Tort Law Text and Material fourth edition, p. 894.
[2000] 2 All ER 474 (CA).
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