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McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee

conclusion: (a.1056,CCLC) does not limit (a.1053,CCLC) in cases where the immediate victim is still alive.

In common law, the situation of secondary victims is much more complicated:

if the primary victim is dead: This situation is covered by “fatal accident legislation,” which is different in each province.

Secondary victims’ claims for pecuniary damages are covered.

Secondary victims’ claims for non-pecuniary damages may be covered, but it varies between provinces.

if the primary victim is alive,

Secondary victims can only claim pecuniary damages if they meet all the requirements for negligence (including duty of care and causation): basically, you’ve got to be a primary victim.

Secondary victims can try to claim for non-pecuniary damages, but they are unlikely to win unless these damages flow from a physical injury (which would seem to make someone a primary victim too.)

Damages are generally not awarded for psychiatric injuries, including solatium doloris.

The courts have extended the Donoghue v. Stevenson principle to psychiatric injuries, but these cases are seen as exceptions. The starting point is that there is no recovery.

Common law’s main limiting device here is duty of care, for various policy reasons:


evidentiary difficulties

the risk of fraudulent claims

a traditional belief that psychiatric illness is not as bad as physical injury.

Alcock v. Chief Constable of the South Yorkshire Police, [1991] 4 All ER 907 (H.L.). (CB2p104)




The police negligently let too many people into a closed space at Hillsborough football stadium, and 95 people were crushed to death as a result. This lawsuit was brought by a broad range of secondary victims, including parents, siblings, fiances, and strangers; it included some who had been there at the scene, some who had seen it on TV, and others who had heard about it by word of mouth.


Could the plaintiffs claim damages as secondary victims?




Lord Ackner held that the claims of secondary victims depended on three “elements”:

1. “class of person”: there is a presumption that parent and child, husband and wife can claim, based on their “love and affection,” but this presumption is rebuttable. Others with close and intimate relationships would have to prove their love and affection. There is also a residual category for by-standers who could claim if “a reasonably strong-nerved person would have been so shocked.”

2. proximity in time and space: “…damages for merely being informed of, or reading, or hearing about the accident are not recoverable.”; however, shock can arise “not only through the sight or hearing of the event, but of its immediate aftermath.”

3. whether the injury was induced by a “shock”: “the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind.” There is no claim for psychiatric damage caused by witnessing someone slowly deteriorate and die.

In this case, proximity in time and space ruled out all but two of the secondary victims, the two who were at the grounds. (Going to identify bodies later that night did not count as the “immediate aftermath.”) The two who were at the grounds had lost brothers and a brother-in-law: in this case, their close relationships of love and affection were not established, so they could not recover.

The common law test for psychiatric injury to secondary victims is therefore derived from Page v. Smith and Alcock. Three criteria are required:

1. type of injury: The injury must be a recognized psychiatric illness.

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