December 3, 2019

When can someone be considered a secondary victim?

When making a claim for psychiatric injury there are two types of victim: primary and secondary victims.

A primary victim is involved as an active participant and suffers physical injury (or was at risk of suffering physical injury) due to someone else’s negligence. However, a secondary victim is someone who suffers psychiatric injury due to witnessing negligence to a primary victim, but who was not at risk of physical injury themselves.

The test for whether someone is considered a secondary victim was set out in the wake of the Hillsborough disaster, and to be successful it must proved that they have:

  • a close tie of love and affection with the primary victim
  • witnessed the event or the ‘immediate aftermath’ of the event
  • direct perception of the harm to the primary victim; and
  • suffered psychiatric injury due to a sudden shocking event.

The strict test is such that it limits the number of claimants where the immediate aftermath is heavily publicised. Often the hardest part of the test to prove is that of a “shocking” event which must be exception, sudden and horrifying.

Despite some changes in recent years, the law is still inflexible.

Recent case law

The case of RE and others -v- Calderdale and Huddersfield NHS FT [2017] did provide some further clarification. Despite this the law remains a challenge for vulnerable victims who have witnessed an awful event, and yet cannot overcome the high burden the courts have set.

RE suffered an acute profound hypoxic ischemic insult at the time of birth. She was born in extremely poor condition and a claim was brought by her grandmother as a secondary victim who was both present at the birth. She was successful and the court found:

  • RE’s condition at birth was a sudden and unexpected event and not a gradual process
  • there was no prior warning that RE would be born lifeless and require resuscitation
  • this was not an event of the kind to be expected as ‘part and parcel’ of childbirth
  • they thought RE had died
  • grandmother was present throughout the birth and witnessed the immediate aftermath
  • she suffered PTSD as a result of observing the events of RE’s birth.

I do not think this case ultimately extends the law as the facts are very specific and it is not overly common to witness the event itself, such as in childbirth. It is therefore not what you would call a series of accumulative events.

Perhaps as more cases start being pursued through the court process this may change. For now, though, it remains a very difficult legal argument to prove, even if someone has died or suffered truly horrific injuries.

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