CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE CONCEPT OF SECONDARY ȍREFLECTIVEȎ DAMAGE … certain psychological problems because of this accident but according to the court, this case falls under the general life risk. In other words, it is a general risk of life that a person can experience such a situation. For this reason, damages were not awarded. 22 In the second case, damages were not awarded for the loss of a beloved dog. The animal was killed by a tractor while on a walk with its lady owner. The lady had to be subsequently medically treated. According to the court, shock damage cannot result from killing an animal, since it represents a completely different situation from the cases in which a person is killed. 23 2.2 France In France, particular types of damage that are deemed compensable are roughly regulated mainly by the Dintilhac Report ( la nomenclature Dintilhac ) of 2005, 24 elaborated by the commission of judges, barristers, legal theorists, and medical experts in order to define and systematize the problem of damage to health. Among other sources, the case law is also of great relevance. Both material and immaterial reflective damages are compensated under the French law. In cases of surviving primary victim, the secondary victim is entitled to damages for emotional distress (including any changes in the relationship between the primary and the secondary victim) and for the damage consisting in extraordinary disruption of living conditions (such as a deterioration of the standard of living or the quality of life of the secondary victim during the hospitalization of the primary victim or after her return home). 25 In case of a primary victim’s demise, the secondary victim may claim damages consisting in the accompaniment of the primary victim at the end of her life (if the primary victim suffered from traumatic or long-term disease or handicap) or the emotional distress caused by the loss of a close person. It is interesting that if the emotional distress develops into a mental disorder, the secondary victims have the right to damages in the same extent as the primary victim would, should she survive with the same mental consequences. 26 In any case, the secondary victim’s claim is dependent on a close emotional bond with the primary victim which is presumed between the close family members and must be proven between other persons. 2.3 England Under the English law, the conditions for compensating secondary damage are relatively strict. The damages are granted only in cases of psychiatric illness (not a „mere shock“) and only to those who directly witnessed the harmful event or its immediate aftermath. Among the judgments relevant for the matter, two are of great importance for the current understanding of secondary damage. In the House of Lords decision McLoughlin v. O’Brian [1983] 1 AC 410, the plaintiff suffered severe shock, organic depression and a personality change after visiting her husband 22 The decision of the Landgericht Tübingen of 29 th November 1967, 1 S 107/67. 23 The decision of the Federal Court of Justice of Germany of 20 th March 2012, VI ZR 114/11. 24 In the French language available at accessed 19 May 2018. 25 For a closer introduction to the secondary victim’s claims in cases of a surviving primary victim, see LE ROY, Max, LE ROY, Jacques-Denis, BIBAL, Frédéric. L’évaluation du préjudice corporel. 20 th ed. Lexis Nexis, Paris 2015, pp. 236-239. 26 For a closer introduction to the secondary victim’s claims in cases of a deceased primary victim, see ibid., pp. 264-269.

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