CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE CONCEPT OF SECONDARY ȍREFLECTIVEȎ DAMAGE … long duration) of an exceptionally threatening or catastrophic nature, which is likely to cause pervasive distress in almost anyone” 8 . Secondary victims are also at a significantly higher risk of, among other problems, mania, major depression, excessive use of alcohol, and anxiety disorders which include, apart from PTSD, for example, panic disorder and phobias 9 . For the assessment of the secondary victims’ claims, two very basic facts are important. The first one is that very serious psychiatric disorders may develop as a consequence of the damage caused to the primary victim, significantly influencing the quality of life of the secondary victim. The second fact is that generally, the more horrific the harmful event is 10 and the closer the secondary victims are to it, the more they are likely to develop a psychiatric disorder 11 . There are numerous approaches to awarding the secondary victims’ claims in different jurisdictions. In this article, we will first briefly introduce an analysis of reflective damages in several European countries. Then, we will present the Czech legal regulation of the matter and the controversial case law of the Supreme Court of the Czech Republic with its critical evaluation. 1. Human rights aspect Reflective damages, as well as other types of damages in private law, have several functions. Most importantly, they provide those close to the deceased victim with compensation for their suffering. In this respect, they serve a compensatory function as the primary function of tort law 12 . However, reflective damages also have a preventive function, deterring potential tortfeasors from breaking the law 13 . Since most of the world’s jurisdictions do not award compensation for the loss of life itself 14 (because the injured person is already dead), reflective damages represent an important private law institute aiming at the protection of human life. Even though reflective damages are as a rule significantly lower than the damages for a serious bodily injury of the primary victims, they still impose a financial burden on the tortfeasor. Right to life is universally acknowledged as one of basic human rights. Universal Declaration of Human Rights guarantees the right to life to everyone, along with the right to liberty and security of person, in its Article 3. Right to life is also embodied, for example, in Article 6 of the International Covenant on Civil and Political Rights which imposes the duty on the states to protect life in their legislation, in Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), Article 2 of the Charter of Fundamental Rights of the European Union, Article 4 of the American Convention on Human Rights, Article 4 of the African Charter on Human 8 PTSD diagnosis code in the ICD-10-CM is F43.1. 9 WOOD, Janice. Sudden Death of Loved One Can Trigger Psychiatric Disorders. PsychCentral. (2015) . accessed 19 May 2018. 10 To the influence of the horrific nature of harmful event on the development of PTSD in secondary victims, see Law Commission Consultation Paper No 137. Common and Public Law Liability for Psychiatric Illnesses. A Consultation Paper. London 1995, pp. 44-46. 11 To the clear correlation between physical proximity to the harmful event and PTSD, see ibid., pp. 48-49. 12 See for example KOZIOL, Helmut. Basic Questions of Tort Law from a Germanic Perspective. Jan Sramek Verlag, Wien 2012, pp. 78-79. 13 We will now leave aside the much debated question of the punitive function of tort law in continental legal systems. 14 With an important exception of Portuguese law. See for example MENEZES CORDEIRO, António. Tratado de Direito Civil Português. Vol. II, Tomo III. Almedina, Coimbra 2010, pp. 516-525.

323