CYIL vol. 10 (2019)

PETR ŠUSTEK

CYIL 10 ȍ2019Ȏ

Introduction Persons who suffer damage in a harmful event are usually divided into primary and secondary victims. A primary victim is a person who was directly harmed by a harmful event 2 . The term secondary victim denotes a person who was not physically harmed in the course of a harmful event but who nevertheless suffered damage as a result of it. The immediate cause of the secondary victim’s damage was not the direct physical effect of the harmful event but the existence of damage suffered by the primary victim 3 . The secondary victim, therefore, suffers as a result of perceiving a certain reflection of the primary victim’s harm. The harmful event is most often represented by a car (or similar) accident or a case of medical malpractice. Since the secondary victim’s damage - the secondary damage - reflects the damage inflicted on the primary victim, in the continental law systems it is often referred to as the reflective damage 4 . In legal practice and theory, it is also known under the term indirect damage 5 . In English speaking countries, the term solatium doloris (the solace in pain) is often used, even though it may denote a narrower understanding of damage 6 . For the reasons outlined below, we will use the term reflective damage in this article 7 . The purpose of this article is to question the concept of secondary damage and secondary victims as such – as being secondary to some primary damage – and to demonstrate on the case-law of the Supreme Court of the Czech Republic how inadequate the concepts are. For the sake of intelligibility, however, we will use the terms throughout the text. Before we move to the argument itself, we will introduce the concept in short and provide a brief overview of different approaches to the problem in several other European countries. The reflective damage may consist in “mere” emotional distress including the emotional suffering connected with bereavement. Even though this distress is often very serious, the shock suffered by the secondary victim may lead to even more intensive consequences, i.e. the development of a psychiatric injury. A typical psychiatric issue in question is the post- traumatic stress disorder (PTSD), described by the WHO International Classification of Diseases as “a delayed or protracted response to a stressful event or situation (of either brief or 3 See ELISCHER, David. Citová újma, ztráta naděje, reflexní újma, újma na kráse, budoucí škoda aneb pojetí újmy ve francouzském právu. [Emotional Harm, Loss of Hope, Reflective Damage, Damage to Beauty, Future Damage, or the Conception of Damage in French Law.] Zdravotnické fórum. (2012, No. 4), pp. 21-31. For an introduction to the term secondary victim and connected terms, see also DOLEŽAL, Tomáš, MELZER, Filip. Komentář k § 2959. [Commentary to Section 2959]. In MELZER, Filip, TÉGL, Petr (eds.). Občanský zákoník – velký komentář. Svazek IX. § 2894-3081. [Civil Code – the Great Commentary. Book IX. Sections 2894-3081.] Leges, Praha 2018, pp. 1020-1021, or DOLEŽAL, Tomáš. Odškodňování imateriálních újem sekundárních obětí. [Compensation for non-economic damage of secondary victims.] Časopis zdravotnického práva a bioetiky [Journal of Medical Law and Bioethics.] (2017, Vol. 7, No. 2), pp. 45-46. 4 As is often the case, among other legal systems, in the French law which works with the terms “préjudice par 6 See the Supreme Court of Canada judgment of 3 rd October 1996, Augustus v. Gosset [1996] 3 SCR 268. 7 For a very brief introduction to the problem of reflective damage in the context of Roman law, see ŠUSTEK, Petr. Reflexní újma aneb co ani glosátoři netušili: náhrada újmy v římském právu. [Reflective Damage, or What Even the Glossators Did Not Know: Damages in Roman Law.] In BĚLOVSKÝ, Petr, STLOUKALOVÁ, Kamila (eds.). Caro amico: 60 kapitol pro Michala Skřejpka aneb Římské právo napříč staletími. [Caro amico: 60 Chapters for Michal Skřejpek, or Roman Law Through the Centuries.] Auditorium, Praha 2017, pp. 463-470. 2 See ZIMA, Petr. Nervový šok a sekundární oběti. [Nervous Shock and Secondary Victims.] Právní rozhledy. (2008, Vol. 16, No. 6), pp. 216-219. ricochet” or “dommage réfléchi” , stressing the reflective nature of such damage. 5 For example, the French and Quebec law use the term „victime indirect“ .

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