W v Essex CC [2001] 2 AC 592

Key point

  • Involuntary participants who were placed by D’s negligence in a position where they unwittingly contributed to the accident and developed psychiatric injury from the feeling of guilt can be treated as primary victims


  • Cs agreed to take in a 15-year-old foster child with a history of committing sexual abuse based on a misrepresentation from the social worker working under D that the child was not a sex abuser
  • The foster child abused Cs young children and Cs suffered psychiatric injury as a result
  • Cs’ claim was struck out by the judge on the basis that their psychiatric injury was too remote, Cs appealed

Held (House of Lords)

  • Appeal was allowed; the claim should not have been struck out
  • Cs have a plausible claim either as primary or secondary victims

Lord Slynn of Hadley

  • While limitations were placed in Alcock’s case, this area of law is still flexible and developing and the courts can proceed incrementally: p. 600
  • The categories of primary and secondary victims are not closed: p.601A
  • It is possible that Cs can make out a claim as primary victims
    • Although there was never any risk of physical danger to the Cs, the fact that D’s negligent led to Cs becoming the unwitting cause of their children’s abuse can create sufficient proximity for a claim: p. 601A
  • It is also possible that Cs can make out a claim as secondary victims
    • The concept of “the immediate aftermath” of the incident has to be assessed in the particular factual situation: p. 601C
    • Although there was a gap of 4 weeks between the children’s abuse and Cs finding out, it is still possible that there was sufficient spatial and temporal proximity for a claim to be made out: p. 601C