Monk v P.C. Haddington Limited [2009] PIQR P3
In the well-known cases of Alcock v Chief Constable of South
Yorkshire 1992 AC 310, Page v Smith 1996 AC 155 and Frost
v Chief Constable of South Yorkshire 1999 AC 455, the House of
Lords laid down the basis of distinguishing between primary and
secondary victims.
The court in Monk further considered a claim for
damages for psychiatric injury where the claimant himself was not
physically harmed as a result of the accident. The defendant, a
construction company, had admitted liability for an accident caused
by the negligence of their crane operator in dislodging a platform
which fell 60ft to the ground, killing one man and badly injuring
another.
Mr Monk was working as a foreman on the construction site. He
went to the accident scene and crawled under the platform to see if
he could assist the injured men. He stayed with them until the
ambulance arrived. About 2 weeks prior to the accident Mr Monk
supervised the erection and placing of the platforms, one of which
fell causing the accident.
It was agreed that Mr Monk, as a result of his involvement in
the accident, had suffered a recognisable psychiatric disorder. The
sole issue for the court was whether the claimant fell into the
class of persons who could recover as a primary or secondary
victim.
Primary victims are those directly involved in the accident
either because they were directly at risk of physical danger or
reasonably believed they were, they were a rescuer and objectively
exposed themselves to danger or a reasonable belief of such danger,
or they were an "unwilling participant" in that they were present
at the scene and either were or believed themselves to be the cause
of another's death or injury.
Secondary victims are only entitled to recover damages for
psychiatric injury if they had close ties of love and affection
with the victim, they were present at the accident or its immediate
aftermath, and the psychiatric injury was caused by a direct
perception of the accident or its aftermath rather than any
second-hand account.
Mr Monk argued that he was a primary victim as he was both a
rescuer and an unwilling participant. He also argued that he could
establish himself as a primary victim by combining elements of
these categories effectively creating a hybrid category of primary
victim. The court did not, however, consider that it was open to it
to interpret the law in this way.
The court recognised that the evidence, particularly that of Mr
Monk, was affected by the accident having occurred over 4 years
prior to the trial and that Mr Monk had reconstructed,
unconsciously, events to support his case, in a manner which did
not accord with the evidence of other witnesses.
Nevertheless, it was accepted that while Mr Monk was not the
only person who assisted the injured men he did take the lead role
at the scene. His assistance was neither trivial nor peripheral and
therefore he was entitled to be regarded as a rescuer. It was not
accepted that Mr Monk had a reasonable belief that he was putting
his own physical safety at risk when assisting the injured men and
so he was not a primary victim rescuer.
Medical evidence supported the suggestion that Mr Monk's
symptoms had been increased by his belief that he may have caused
the accident by instructing the erection of the platform. Again,
however, there was no reasonable basis for such a belief. His
unreasonable belief that he had caused the accident was not a
reasonably foreseeable consequence of the defendant's
negligence.
The court held that Mr Monk was not a primary victim. He was
also not a secondary victim as he did not have close ties of love
and affection to either of the victims.
This decision demonstrates that the courts are not prepared to
extend the categories of individuals who can recover for
psychiatric injury where they have not been physically harmed. The
court recognised that this is an area of law "governed more by
policy that principle."
Contributed by Debbie Connor