Secondary victim claims

In claims for compensation for psychiatric injury, the Courts distinguish between two types of victims: primary and secondary.

Who is a secondary victim?

A secondary victim is someone who suffers psychiatric injury from witnessing a sudden, shocking event to another person with whom they have a close tie of love and affection.

The Hillsborough disaster

The concept of secondary victims arose from the landmark case of Alcock v Chief Constable of South Yorkshire Police (1992) following the Hillsborough disaster of 1989.

On 15^th April 1989, 94 Liverpool fans were crushed to death (with 3 more subsequently succumbing to their injuries). And over 400 others suffered injuries during an FA Cup semi-final match between Liverpool and Nottingham Forest at the Hillsborough Stadium in Sheffield.

The scenes at the stadium were broadcast live on television. As such, families and loved ones witnessed the scenes in the stadium. Subsequently, claims were brought by a number of those secondary victims who had suffered psychiatric injuries. At that time, this was commonly called ‘nervous shock’.

In some cases, injury arose from witnessing the scenes on television. But other victims were in the stadium, knowing that a loved one was in the crush. In both scenarios, they were unaware of their loved one’s fate. Other secondary victims had identified bodies in the makeshift mortuary.

Eventually, the case went to the House of Lords, then the country’s highest appeal court. Although the case was ultimately successful, the court established a strict legal definition of a secondary victim.

Proving a secondary victim claim

To bring a successful compensation claim, a secondary victim must satisfy all of the following:

• The claimant must have suffered a recognised psychiatric injury (eg PTSD) caused by the shock of the incident, and their psychiatric injury must have been ‘reasonably foreseeable’. It’s reasonably foreseeable if the court considers that a person of ‘normal fortitude’ might have been expected to suffer that disorder as a result of the shock of the incident.
• The claimant must prove that there was a close tie of love and affection between them and the primary victim. Good examples of such a relationship are between a parent and child or between spouses. But the definition does allow others to prove evidence of such a close tie.
• The traumatic incident involving the primary victim must have been caused by negligence and be considered a shocking event. More recent case law established that the knowledge or appreciation that a loved one has been involved in such an incident, rather than personally witnessing it, may be sufficient.
• The claimant must demonstrate that there was ‘close proximity’ between the negligent act and the shocking event. Whilst establishing proximity in some scenarios – perhaps a road traffic accident – is reasonably straightforward, in others, it is far less so.

Establishing a compensation claim on behalf of a secondary victim is rarely straightforward. But with the proper evidence, they can and do succeed.

Secondary victims of medical negligence

It’s always been far more challenging to establish proximity where the negligent act was one of medical negligence. And in a recent decision, the Supreme Court held that medical practitioners could not be held liable for injury caused to a patient’s relative, substantially narrowing the scope of secondary victim claims arising from medical negligence.

Example of secondary victim claim

In a recent case, a car knocked our client’s son down outside their house. Although inside at the time, she heard the collision and knew her son was nearby. Arriving at the scene, she found him unconscious and covered in blood.

Fortunately, her son made a near-complete recovery. Unfortunately, our client suffered severe post-traumatic stress disorder to the extent that it took almost two years for her life to return to anything approaching normal. In particular, she was initially unable to return to work resulting in the termination of her employment on the grounds of long-term incapacity. Her claim settled for £75,000.