Focus on Brain Injury | Legal Comment : Can Contributory Negligence be applied to a Secondary Victim?

Can Contributory Negligence be applied to a Secondary Victim?

If there is a deduction for contributory negligence in the case of a primary victim, would this deduction automatically be applied to someone who is pursuing a claim as a secondary victim, after witnessing the primary victim’s accident?

There is no decided English case law on this issue. However, in Alcock v Chief Constable of the South Yorkshire Police [1992] 1 A.C. 310, Lord Oliver commented that:

“If the primary victim is himself 75% responsible for the accident, it would be a curious and wholly unfair situation if the [claimant] were entitled to recover damages for his traumatic injury from the person responsible only in a minor degree whilst he in turn remained unable to recover any contribution from the person primarily responsible since the latter’s negligence vis-à-vis the [claimant] would not even have been tortious.”

This judicial comment arose after considering the issue of whether or not a claimant (secondary victim) can recover damages from the primary victim.

It was decided that a secondary victim could not recover damages from the primary victim (Greatorex v Greatorex [2000] All ER (D) 677).

Whilst there is no decisive case law on the point of contributory negligence against secondary victims, The Law Commission’s view on this matter is salient. The Law Commission has stated that to reduce the claimant’s damages in line with any contributory negligence of the primary victim was not attractive as “it would be contrary to the underlying principle that the defendant owes a separate duty of care directly to the claimant.”

Consequently, if there is any finding of contributory negligence against a primary victim, this should not affect the secondary victim being able to recover 100% of his/her damages. This is important to bear in mind when bringing a secondary victim claim in a case where a percentage of the primary victim’s damages will be reduced for contributory negligence.

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Neil Whiteley