Secondary Victims | Law of Tort

[@DonYutuc]

Awesome information although I have to focus on California law for now.

[@MrittikaReza]

someone not experienced(C) goes to mountain climbing with 2 other experienced climbers. They were given faulty equipment, however they were not aware of it. So when C reaches the top, considerably a safe zone, one of climbers falls and get head injury. Now the relationship between C and and injured person is just friend. After this incident C starts to get nightmares and anxiety. So his councillor asks him to go for therapy. Now later he states that “it could easily been him who’s equipment gave away” . So was he in immediate danger? Will he be considered primary or secondary victim? What do you think

[@andyt9677]

The cause of the trauma here is key. The claimant has anxiety because he feels that he could've been the one whose equipment gave way; this makes him the primary victim. To be the secondary victim, he must be experiencing anxiety because of the injury that happened to his friend which, in the example, is not the cause of his anxiety. First we would have to establish negligence against the two experienced climbers, that is, we must prove that they had a legal duty of care, breached that duty, and caused damage due to that breach. Once we have done this, we know that the claimant has experienced a psychiatric illness due to this breach, anxiety, so he would be eligible for a claim for psychiatric injury. He would pass the test for secondary victimhood if his anxiety was coming from the witnessing of the act. He was friends with the defendant, he was proximate to the event, and the shock came through his senses. However, because the cause of the anxiety was that he was put into a potentially dangerous situation not because he viewed a traumatic act, he wouldn't be a secondary victim. On a side note, if this was a real case, I think that it would be hard to prove negligence on the part of the friend(D). The friend had a duty of care to not harm the claimant potentially as he had more experience and was helping his unexperienced friend. However, one could argue that there is an assumption of risk when you go rock climbing for the first time with someone who is not a licensed or qualified rock climbing instructor. The claimant could have rock climbed in an indoor space first, or hired a regulated instructor help them learn. Additionally, the friend(D) did uphold their duty of care towards their friend(C) by securing their(C) rock climbing equipment correctly. Does the duty of care extend beyond that? When deciding duty of care, we must consider if the damage was foreseeable, if there was a sufficient amount of proximity, and if the duty is reasonable and fair. In this case, I do not think it is reasonable or fair for the friend(D) to have a duty of care to ensure that the claimant is secured AND ensure that they themselves(D) are secured in order to avoid trauma to C. The friend is not a licensed climbing instructor and the claimant took on an assumption of risk by going rock climbing for the first time without a licensed climbing instructor and on a high cliff as opposed to in an indoor climbing gym where it would be much safer.