The law surrounding secondary victims and compensation

16 October 2017

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Can the relatives of injured people make a claim for compensation?

If you have witnessed a horrific event, you might be entitled to compensation, even if you haven’t been physically injured yourself.

The Law

The question of whether people who witness tragic events (known as secondary victims) can bring a claim for compensation was considered in depth by the courts (in the case of Alcock v Chief Constable of South Yorkshire Police) following the tragedy at Hillsborough in 1989.

After the disaster, some relatives of the victims brought claims for damages for the psychiatric injuries they suffered as a result of witnessing the events at the football ground itself, or transmitted live on television or radio. 

Ultimately, these claims failed and a number of controls were introduced to limit the circumstances (and type of person) that could make such a claim in the future. These controls are commonly known as the “Alcock Mechanisms”.

The most important control introduced by the mechanisms was is that the relative (not just any third party) must prove that the injury sustained is a recognised psychiatric injury (and not just significant grief or upset from witnessing a horrific event). 

In addition, the following conditions must be satisfied:

  1. There must be a close tie of love and affection between the person claiming and the primary victim;
  2. The person must have been present at the accident or the immediate aftermath (it is insufficient for the secondary victim to have witnessed the events on television); and
  3. The injury must have been caused by the shock of the direct and sudden perception of the event (and not simply hearing it from a third party).

These controls have been interpreted by the Courts over the years.

Secondary Victims in Hospitals

The question of whether relatives can claim damages for witnessing horrifying and distressing events in a hospital has been specifically considered in the recent case of RE & Others v Calderdale & Huddersfield NHS Foundation Trust [2017] EWHC 824 (QB).

Everyone who visits a hospital knows that they are likely to encounter upsetting or even distressing sights, smells and sounds.   They know that they are likely to see people in varying degrees of pain in the accident and emergency department, sometimes in life threatening situations with a degree of panic and scenes of staff working quickly.  They are also expected to see people connected to machines in wards, conscious or otherwise.

As such, as a starting point, a secondary victim in a hospital must witness something that is more than ordinarily distressing in the circumstances.  So the test already seems to be a bit more difficult to prove.

It will also be important to consider whether the person in question had any warning or notice about what was likely to come, and what precautions they could and ultimately did take to avoid the harm.  

For example, in the case of Calderdale, it was held that the birth of a white, lifeless baby with a purple, swollen head who did not breathe or make a sound until over 10 minutes of life was not part and parcel of the demands and experience of childbirth.  The traumatic birth and resuscitation of the child were events that were exceptional in nature and objectively horrifying. 

The birth was particularly traumatic as the baby in question was born at term and suffered an acute hypoxic insult prior to birth and after delivery, causing catastrophic physical injury.

The mother and grandmother (who had been present throughout) brought nervous shock claims.  They both suffered Post Traumatic Stress Disorder (PTSD) as a result of the complicated and protracted birth and the fact they thought the baby had been born dead.  They also suffered flash backs and panic attacks of the events that unfolded.

The Court in Calderdale held:

  1. There was a negligent delay by 11 minutes and the doctor should have been summoned and allowed entry to the delivery room sooner. Had there been no negligent delay, the child would have avoided all of the damage suffered;
  2. The child’s injury commenced when the child was in utero and, as such, the child and mother were still a single legal entity at the point of negligence.  As such, the mother was a primary victim whose claim for psychiatric injuries were not subject to the Alcock mechanisms. However, had she brought a claim as a secondary victim, she would have satisfied the conditions in any event); and
  3. The grandmother was present throughout the birth and the aftermath. Her PTSD was triggered by the first 15 minutes of the child’s life.  That event was sufficiently sudden, shocking and horrifying to establish her as a secondary victim for nervous shock and there was a sufficiently close proximity of relationship to both the mother and child who suffered.  The grandmother was therefore found to be entitled to damages.

The case of Calderdale highlights an important consideration for solicitors presently dealing with traumatic birth cases in particular, but also any other current or new case in which a catastrophic event has occurred and that has been witnessed by others.  This will extend to other personal injuries such as car accidents and accidents at work. 

The solicitor has a professional duty to consider if any of these witnesses satisfy the criteria set out by the case law, which might allow that witness to take up their claim for compensation.

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