As medical negligence and personal injury lawyers, we normally act for individuals who have been directly injured in an accident or by negligence in medical treatment.  These are called “primary victims”. However, there are sometimes what are called “secondary victims” to consider.

These are people close to the primary victim, who witness or otherwise become involved in that person’s suffering and then suffer an injury themselves because of that. The injury will be a psychological or psychiatric reaction over and above what might be termed “normal” human and emotional reactions to such an event.

They are often termed “nervous shock” cases, though this is not always an accurate description.

They can be difficult and complex claims to deal with, as at some point, differentiation has to be made between these two states.  It is almost impossible to draw a clear line and say that to one side of the line is an actionable injury, while the other side is a normal and non- actionable emotional response.  Each case is factually and medically individual.

John de Bono Q.C., from Serjeants Inn Chambers in London gave a presentation on this subject at the AvMA conference in 2016.

He explained how the turning point in these claims came with a case called McLoughlin- v- O’Brian et al in 1983, when Lord Wilberforce accepted that physical injury was not necessary for a successful claim for psychiatric injury, which had been the case till then.

Then in 1992, Alcock- v -Chief Constable of South Yorkshire Police the House of Lords, as it then was (it is now the Supreme Court) set out some principles to try to make it easier to identify the differences. This case is known as the “Hillsborough Case” and arose from the disaster at that football ground in 1989, where literally shocking scenes were witnessed. Lord Oliver noted 5 requirements for a claim to be made:

 “a. A marital or parental relationship between the plaintiff and the primary victim (this has been expanded to ‘close ties of love and affection’);

  1. Secondly, that the injury for which damages were claimed arose from the sudden and unexpected shock to the plaintiff’s nervous system;
  2. Thirdly, that the plaintiff in each case was either personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards;
  3. Fourthly, that the injury suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim.
  4. Lastly, in each case there was not only an element of physical proximity to the event but a close temporal connection ( a connection close in time to the event) between the event and the plaintiff’s perception of it combined with a close relationship of affection between the plaintiff and the primary victim.

It must, I think, be from these elements that the essential requirement of proximity is to be deduced, to which has to be added the reasonable foreseeability on the part of the defendant that in that combination of circumstances there was a real risk of injury of the type sustained by the particular plaintiff as a result of his or her concern for the primary victim.”

 To make a successful claim, all these criteria had to be met. Many fell by the wayside as a result.

However, although it can take some time to move forwards, the law is not static and does change. It needs flexibility to ensure justice.  This is what has happened with a case called Paul & Anor v Royal Wolverhampton NHS Trust, which was heard on 4 June 2020 in the High Court in London.  It has now ruled that an earlier judgment was wrong to strike out secondary victim claims from young children who witnessed their father die after he was allegedly a victim of clinical negligence. The alleged negligence took place in 2012, some 14.5 months before his actual death, after there was an apparent failure to diagnosis him with heart disease whilst he was then in hospital.

The Deceased was out shopping with his daughters.  He mentioned that he felt ill, but they thought he was joking. But then they saw their father leaning against the wall momentarily, saw his eyes roll back and he then fell backwards, hitting his head on the floor. The girls, aged 9 and 12, were alone with him and tried unsuccessfully to call their mother. Eventually, as they were shouting for help, a lady came and called an ambulance. Her phone was also used by the girls to try, hysterical by this time, to explain to their mother what had happened. By now, both girls saw a man holding their father’s head which was bleeding.

They remember hearing their mother arriving and screaming their father’s name. They went to join her. Ambulance crew tried to resuscitate their father, but he could not be saved, hence the daughters witnessed their father’s death.

Initially, the earlier judgment said there was no duty of care to the daughters.  However, Mr Justice Chamberlain allowed the claimants’ appeal and set aside the decision to strike out their claims. He rejected submissions from the Defendants that this approach would ‘open the floodgates’ to claims from secondary victims. But he did also say that it would still be necessary for the claimants to establish the event in question was “sudden, unexpected and shocking”

The judgment helps clarify the law a little.  The original judgment thought that the “shocking event” was too far away in time from the alleged negligence to found a claim.  This latest judgment seems to overturn that.

Nigel Poole Q.C. says:

“Many clinical negligence (though not exclusively, we would add) claims arise from negligent omissions that have consequences days, weeks or months later. Secondary victims do not have to be present at the scene of the tort, (the negligence) nor does the ‘event’ have to be proximate in time to the negligence.”

Lawyers should be careful to ask clients if there was anyone else that might have been affected by negligence and injury to the primary victim so as to be able to assess whether a claim on their behalf is appropriate. Clients should make sure their solicitor is aware of this information.

We can help

Contact Brenda and  the team at Ringrose Law. Call 01522 561020 or email enquiries@ringroselaw.co.uk

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