With Love and Affection: Rethinking the Fairness of Proximity of Relationship in Secondary Victim Claims
| Pages | 115-137 |
| Date | 01 April 2025 |
| Published date | 01 April 2025 |
| Author | Saniya Mehmood AKC |
With Love and Affection
115
Cambridge Law Review
(2025) Vol 10, Issue 1, 115–137
With Love and Affection: Rethinking the Fairness
of Proximity of Relationship in Secondary Victim
Claims
SANIYAMEHMOODAKC
ABSTRACT
Since the 1990s, English tort law has recognised the limited circumstances in which a claimant
is owed a duty of care for psychiatric injury caused by an accident that they were not directly
involved in. In particular, the eponymous
Alcock
control of ‘proximity of relationship’man-
dates that a secondary victim must have a sufficiently close relationship with the participant in
the accident (the primary victim). This article examines the fairness of proximity of relation-
ship as a means of restricting claims in secondary victim ca ses, ultimately arguing that it re-
quires reform. Section II provides a doctrinal analysis of
Alcock v Chief Constable of South
Yorkshire Police
[1992] 1 AC 310, identifying three weaknesses within the judgment. Section
III provides a quantitative analysis of the case law on secondary victims since
Alcock
, revealing
how the courts have not always conformed to the requirements of proximity of relationship,
as well as analysing the role of the ‘sudden shock’ requirement and gender stereotypes in
exacerbating the unfairness of this control mechanism. Thereafter, Section IV explores and
compares alternative avenues for reform of this control mechanism, including both conserva-
tive and radical changes.
Keywords: negligence, psychiatric injury, secondary victims,
Alcock
controls, proximity of re-
lationship
I. INTRODUCTION
In the tort of negligence, for a def endant to be held liable for a wrong committed against a
claimant, the claimant must prove that the defendant owed them a duty of care, that this duty
was breached, and that the breach caused the harm suffered by the claimant (and that this
damage was not too remote).
1
For a claim of pure psychiatric harm, the same must be proved,
but claimants face additional hurdles as ‘secondary victims’. As opposed to ‘primary victims’,
who are subject to less stringent controls on the basis that they were in the zone of danger and
BA (King’s College London), MA Law (Conversion) (The University of Law). I am grateful to the reviewers for their
thoughtful comments. Any remaining errors are my own.
1
Donoghue v Stevenson
[1932] AC 562 (HL);
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The
Wagon Mound)
[1961] AC 388 (PC).
116
Cambridge Law Review (2025) Vol 10, Issue 1
directly involved in the accident,
2
secondary victims are classified as such because they suf-
fered psychiatric injury as a result of witnessing the injury, death, or imperilment of the pri-
mary victim.
3
Thus, although secondary victims must make a separate claim, their victimhood
is dependent on there being a primary victim, in that their (recognisable) psychiatric injury
must be caused by witnessing the harm suffered by the primary victim or its aftermath.
4
Whilst the recoverability of damages for
consequential
psychiatric harm—that is, psy-
chiatric injury arising as a result of the tortfeasor’s breach of duty which caused physical injury
to a claimant—is readily accepted by the courts, a standalone claim for psychiatric injury is
more fraught.
5
This is because of the imposition of policy-driven control mechanisms by the
House of Lords in the leading case of
Alcock v Chief Constable of South Yorkshire Police
.
6
It is important to note that there were at least 150 similar claims made at the time of the initial
proceedings, and the potential for countless more as millions of people watched the Hills-
borough tragedy unfold via televised broadcasts.
7
Their Lordships were therefore concerned
with strengthening the existing checks (i.e. reasonable foreseeability) on those bringing a claim
as a secondary victim,
8
most likely in an attempt to prevent the opening of the ‘floodgates’, as
suggested by Lord Oliver’s fear of extending the law ‘in a direction… in which there is no
logical stopping point’.
9
Indeed, as the Supreme Court recently noted in
Paul v Royal Wol-
verhampton NHS Trust
,
10
the control mechanisms were informed by ‘practical and policy
considerations rather than purely analogical development of the law’.
11
Thus, in
Alcock
, 10 plaintiffs sought damages for psychiatric harm as a result of wit-
nessing (either at the time or after) their loved ones perishing in the Hillsborough tragedy. In
their judgment, their Lordships set down certain controls to limit the class of persons who
could bring such claims. In doing so, they required that a claimant must enjoy a sufficiently
proximate relationship to t he victim, be proximate in time and space to the event or its im-
mediate aftermath, and have suffered a sudden shock upon witnessing or hearing the event
or its immediate aftermath with their unaided senses.
12
This was all in addition to the usual
requirement of reasonable foreseeability, which is modified for the secondary victim so that
it must be foreseeable that the injury would have been suffered by a person of ‘normal nervous
strength’
13
or ‘customary phlegm’.
14
By contrast, a primary victim is not required to prove any
of the above, merely needing to satisfy the court that the
risk
of injury was reasonably foresee-
able.
15
The
Alcock
controls have long been criticised for leaving the law on secondary victims
in an unsatisfactory state.
16
However, instead of presenting a holistic analysis of the controls,
as many publications have done, this article is instead solely concerned with the fairness of
2
Page v Smith
[1996] AC 155 (HL) 184 (Lord Lloyd).
3
Law Commission,
Liability for Psychiatric Illness
(Law Com No 249, 1998), paras 2.12, 2.19.
4
McLoughlin v O’Brian
[1983] 1 AC 410 (HL) 431 (Lord Bridge).
5
Law Commission (n 3) paras 2.13–2.14.
6
[1992] 1 AC 310 (HL).
7
ibid 316.
8
ibid 396 (Lord Keith).
9
ibid 416 (Lord Oliver).
10
[2024] UKSC 1, [2024] 2 WLR 417.
11
ibid 434 (Lord Leggatt and Lady Rose).
12
Alcock
(n 6) 402–05 (Lord Ackner).
13
Bourhill v Young
[1943] AC 92 (HL) 109 (Lord Wright).
14
ibid 117 (Lord Porter).
15
Page
(n 2) 197 (Lord Lloyd).
16
See for example Law Commission (n 3) para 1.3.
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