ISSUE 54 EWJ web - Journal - Page 42
Lines Drawn in Secondary Victim
Claims Linked to Medical Negligence
Following Supreme Court Review
There are many claimants who have suffered psychiatric injury as a consequence of witnessing
the horrifying death or injury of a loved one. Such claimants are not the primary victims of
negligence but are known as ‘secondary victims’.
The most well known case, and which is often referenced as the main authority in relation to secondary
victim claims, is the case of Alcock v Chief Constable of
South Yorkshire. This case related to the Hillsborough
Disaster in which 97 people were crushed and killed
and 400 more sustained injuries as a result of severe
overcrowding in the Hillsborough football stadium.
In that case, 10 claimants, none of whom were the primary victims of the incident but had witnessed the
events that killed or harmed their family members
and loved ones and caused them to suffer psychiatric
injuries, presented claims.
The starting position in law is that a person (who is
not the primary victim of negligence) cannot pursue
compensation for their injuries. There are exceptions
to this general rule, however, one of which permits, in
limited circumstances, secondary victims to claim compensation for the psychiatric injury that they have
suffered.
Typically, secondary victim claims tend to be pursued
by claimants who have witnessed an accident (such as
a road traffic accident) causing an injury to their family members or loved ones, and which has caused
them a psychiatric injury. Less commonly, secondary
victim claims are pursued by claimants who have suffered psychiatric injury after witnessing a medical crisis, which has been caused by negligence in the
primary victim’s medical treatment. It has been assumed that both class of claimants (those who witness
an accident and those who witness a medical crisis) fall
within the exception to the general rule that a claim
for compensation cannot be pursued by a person who
is not the primary victim.
The court, in that case, determined the criteria that
should be satisfied for a claim by a secondary victim
to succeed (known as the control mechanisms). These
are that:
l there must be a close tie of love and affection
between the claimant and the primary victim;
l the secondary victim must have been present at the
scene of the accident or its immediate aftermath;
l the secondary victim must have perceived the
incident with their own senses (rather than hearing
about it from a third person);
Secondary victim claims arising from medical
negligence had been on hold for several months while
the Supreme Court considered and handed down
judgment in three conjoined cases, Paul and another
(Appellants) v Royal Wolverhampton NHS Trust (Respondent), Polmear and another (Appellants) v Royal Cornwall
Hospitals NHS Trust (Respondent) and Purchase (Appellant) v Ahmed (Respondent), which updates the law in
relation to whether and to what extent secondary
victim claims arising from medical negligence are able
to succeed.
l there must be physical and temporal proximity to
the incident.
Of the 10 claims that were presented, none succeeded.
Two claimants were present at the stadium and witnessed the death of their siblings, but could not establish a close tie of love and affection. Three claimants
saw the bodies of their deceased loved ones in the
mortuary after the disaster, but the court held that that
did not fall within the ‘immediate aftermath’, even
though it will have been traumatic. The other
claimants witnessed the event on television, but their
claims failed because they did not witness the unfolding tragedy with their own senses.
Judgment was handed down by Lord Leggatt on 11
January 2024. From a claimant perspective, it is a
hugely disappointing judgment and significantly narrows the scope of when a secondary victim claim may
succeed. Arguably, the judgment spells the end for secondary victim claims arising out of medical negligence
completely.
Secondary victim claims and medical negligence
Since then, there have been several secondary victim
claims heard in the courts. Most claims typically arise
from a bystander witnessing an accident (such as a
road traffic accident).
The law as it was
The general rule that a person (who is not the primary victim of negligence) cannot pursue compensation for their injuries was considered to be
unreasonable in certain situations and, via three key
House of Lords decisions in the 1980s and 1990s, the
law developed to permit secondary victims to claim
compensation in limited circumstances.
EXPERT WITNESS JOURNAL
Medical negligence claims do not follow the same
pattern, because typically there is no ‘accident’; the act
or omission of a doctor often does not manifest itself
until the patient (the primary victim) develops a significant and untreatable disease, which manifests in
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APRIL 2024