Secondary victims – personal injury v clinical negligence
In this article, Alannah Jones explores what a secondary victim is and how the courts treat them differently depending on whether the claim involves personal injury or clinical negligence.
History
A primary victim is someone who was directly involved in an accident. A secondary victim is someone who witnessed the injury of another, but who was not at risk of physical injury.
In the well-known case of Alcock -v- Chief Constable of South Yorkshire Police 1991, the court held there was no duty of care owed to the friends and relations of those who died in the Hillsborough disaster who watched the event on television – the claimants could not identify their relatives on the events being broadcast and they were not at the scene of the accident.
Alcock therefore acted as a floodgate barrier to similar claims.
In Taylor -v- Novo 2013, a woman suffered a workplace accident that resulted in her injury. She suffered a fatal thrombosis three weeks later. Her daughter witnessed her mother’s death and sued her mother’s employer for PTSD she sustained as a result.
The daughter’s claim was rejected on appeal. The relevant event was the workplace accident and not the death of the mother. The court decided that if the death was the relevant event, the mother’s employer would owe a duty of care even if she died years later.
Novo concerned an accident and therefore personal injury law. What is the position when death as a result of clinical negligence is witnessed after the negligence?
Paul
The Supreme Court’s 2024 decision in the conjoined appeal of Paul, Polmear and Purchase (usually referred to simply as Paul) concerned psychiatric injury to relatives who witnessed the deaths of loved ones after the alleged clinical negligence occurred (and the death was a result of the negligence).
The key issue was whether doctors owe a duty to a patient’s family to protect them against the risk of injury they might suffer from witnessing the death/injury of a relative due to illness caused by medical negligence i.e. where there is no “accident”?
The court decided there is no duty of care to the patient’s relative. To establish such a duty would widen the scope for claims; an unattractive prospect due to the longstanding fear of opening the floodgates.
The court instead focussed on two key requirements:
Whether there has been an “accident”;
Was it directly witnessed by a secondary victim?
Instances of clinical negligence are unlikely to be classed as an accident, and even if they could be, the Alcock criteria would still need to be fulfilled for a secondary victim claim to be successful.
Blurred lines between primary and secondary victims
Since Paul, the Scottish case of PO v Lothian Health Board 2026 has been heard. The pursuers were the mother and father of a disabled child. They claimed that, but for clinical negligence on the part of the defenders’ employees, their son would not have been born as they would have elected to terminate the pregnancy.
Breach of duty was accepted insofar as it related to the mother. The defenders also accepted that the mother would have chosen to terminate the pregnancy had she known of the child’s condition. But did the defenders owe a duty of care to the child’s father?
The defenders argued that antenatal services were provided to the patient – the mother – and accordingly no duty of care was owed to the father. The pursuers argued that the services were provided to both parents, and that the defenders could have discharged the duty owed to the father by providing proper advice to the mother. The parties also disagreed as to whether the father was a primary victim or a secondary victim, whose claim would be doomed to fail per Paul.
The court considered that the father was a primary as opposed to a secondary victim as he suffered harm not “by witnessing his wife’s distress, or by the trauma caused to her, but by the trauma simultaneously caused to him”. [para 36]. This can be contrasted with Paul.
Comment
PO has not changed the fact that secondary victim claims in clinical negligence matters are now unlikely to succeed due to the decision in Paul. It does clarify when a pursuer ought to be regarded as a primary victim as opposed to a secondary victim, but PO may be subject to appeal. Those practising in personal injury can be reassured that the test is more straightforward.
Home > News + events > Secondary victims – personal injury v clinical negligence
News + Events
News, commentary & events from balfour+manson
Alannah Jones
Secondary victims – personal injury v clinical negligence
In this article, Alannah Jones explores what a secondary victim is and how the courts treat them differently depending on whether the claim involves personal injury or clinical negligence.
History
A primary victim is someone who was directly involved in an accident. A secondary victim is someone who witnessed the injury of another, but who was not at risk of physical injury.
In the well-known case of Alcock -v- Chief Constable of South Yorkshire Police 1991, the court held there was no duty of care owed to the friends and relations of those who died in the Hillsborough disaster who watched the event on television – the claimants could not identify their relatives on the events being broadcast and they were not at the scene of the accident.
Alcock therefore acted as a floodgate barrier to similar claims.
In Taylor -v- Novo 2013, a woman suffered a workplace accident that resulted in her injury. She suffered a fatal thrombosis three weeks later. Her daughter witnessed her mother’s death and sued her mother’s employer for PTSD she sustained as a result.
The daughter’s claim was rejected on appeal. The relevant event was the workplace accident and not the death of the mother. The court decided that if the death was the relevant event, the mother’s employer would owe a duty of care even if she died years later.
Novo concerned an accident and therefore personal injury law. What is the position when death as a result of clinical negligence is witnessed after the negligence?
Paul
The Supreme Court’s 2024 decision in the conjoined appeal of Paul, Polmear and Purchase (usually referred to simply as Paul) concerned psychiatric injury to relatives who witnessed the deaths of loved ones after the alleged clinical negligence occurred (and the death was a result of the negligence).
The key issue was whether doctors owe a duty to a patient’s family to protect them against the risk of injury they might suffer from witnessing the death/injury of a relative due to illness caused by medical negligence i.e. where there is no “accident”?
The court decided there is no duty of care to the patient’s relative. To establish such a duty would widen the scope for claims; an unattractive prospect due to the longstanding fear of opening the floodgates.
The court instead focussed on two key requirements:
Instances of clinical negligence are unlikely to be classed as an accident, and even if they could be, the Alcock criteria would still need to be fulfilled for a secondary victim claim to be successful.
Blurred lines between primary and secondary victims
Since Paul, the Scottish case of PO v Lothian Health Board 2026 has been heard. The pursuers were the mother and father of a disabled child. They claimed that, but for clinical negligence on the part of the defenders’ employees, their son would not have been born as they would have elected to terminate the pregnancy.
Breach of duty was accepted insofar as it related to the mother. The defenders also accepted that the mother would have chosen to terminate the pregnancy had she known of the child’s condition. But did the defenders owe a duty of care to the child’s father?
The defenders argued that antenatal services were provided to the patient – the mother – and accordingly no duty of care was owed to the father. The pursuers argued that the services were provided to both parents, and that the defenders could have discharged the duty owed to the father by providing proper advice to the mother. The parties also disagreed as to whether the father was a primary victim or a secondary victim, whose claim would be doomed to fail per Paul.
The court considered that the father was a primary as opposed to a secondary victim as he suffered harm not “by witnessing his wife’s distress, or by the trauma caused to her, but by the trauma simultaneously caused to him”. [para 36]. This can be contrasted with Paul.
Comment
PO has not changed the fact that secondary victim claims in clinical negligence matters are now unlikely to succeed due to the decision in Paul. It does clarify when a pursuer ought to be regarded as a primary victim as opposed to a secondary victim, but PO may be subject to appeal. Those practising in personal injury can be reassured that the test is more straightforward.
If you have any questions in relation to secondary victims and whether you might have a claim, please get in touch with us to discuss with one of our specialists.