Since the case of Alcock v Chief Constable of Yorkshire Police was decided following the Hillsborough disaster in 1989, it has been well established that certain control mechanisms need to be satisfied by the Claimant, to successfully bring a claim for psychiatric injury as a secondary victim.
A primary victim was described by Lord Oliver in the case of Alcock as an injured Claimant “who was involved, either mediately or immediately as a participant”.
A secondary victim was described in Alcock as a witness that “was no more than a passive and unwilling witness of injury caused to others”. In other words, a secondary victim is someone who suffers psychiatric injury solely as a result of witnessing the injury or endangerment of another.
The House of Lords held that those watching the disaster on live television, in other parts of the stadium to the 96 victims or through the radio, could not claim as secondary victims.
To successfully recover compensation for psychiatric injury as a secondary victim, the following criteria must be demonstrated by the Claimant:
- A close tie of love and affection with the person killed or injured;
- That he was close to the incident in time and space;
- That he has suffered a recognisable psychiatric illness;
- That it was reasonably foreseeable in the circumstances that someone of ordinary fortitude would suffer psychiatric injury in the same circumstances; and
- That the mechanism by which the injury was suffered can properly be described as “the sudden appreciation by sight or sound of a horrifying event”.
Demonstrating “the sudden appreciation by sight or sound of a horrifying event which violently agitates the mind” can be quite difficult. However, legal authorities suggest that there is a degree of laxity in clinical negligence claims and how the Courts have interpreted what constitutes a “horrifying event”.
Walters- Expanding the scope of Claims?
In 2002 the Court of Appeal considered in the case of North Glamorgan NHS Trust –v- Walters, whether the Claimant was able to recover damages for psychiatric injury caused by her witnessing the death of her child.
The hospital had failed to diagnose acute hepatitis and the Claimant awoke to witness her baby having an epileptic fit. The hospital initially informed the Claimant that her son had not suffered any brain damage but, following his transfer and diagnosis at a second hospital, she was then told that her son had been severely brain damaged and would have no quality of life. She agreed to terminate life support and her son died in her arms.
The Court of Appeal concluded that the facts of the case created a “seamless tale” with “an obvious beginning and an equally obvious end… played out over a period of 36 hours”.
It was held that such an event was not confined to one moment in time and, taking a realistic approach to the facts, the 36 hour period prior to the little boy’s death could be classed as a single horrifying event during which the Mother received successive blows to her nervous system and as such she qualified as a secondary victim. The Trial Judge had also been justified in concluding that the Claimant’s appreciation of events was sudden rather than gradual as the key events of witnessing the fit, being informed that her son was brain damaged and being told she should switch off the life support had made their devastating impact at the time of their occurrence.
The Court of Appeal in this case took a wide interpretation of the definition of “sudden” and concluded that a single shocking event can be composed of a number of connected events experienced over a period of time. It was emphasised that “it was a matter of judgment from case to case depending on the facts and circumstances”. This decision was considered by many commentators to expand the scope of secondary victim claims.
Uncertainty in the Law
There are other subsequent cases where Courts have taken a more restrictive approach. In the High Court decision of Julia Ward v Leeds Teaching Hospital NHS Trust in 2004, it was held that the mother of a young girl, who failed to regain consciousness following an operation to remove her wisdom teeth, was unable to claim damages for post traumatic stress disorder (PTSD) after seeing her daughter in the mortuary. The Court held that the death of a loved one in hospital did not meet the criteria for a finding of PTSD unless accompanied by circumstances that were wholly exceptional so as to cause shock or horror. It was held that there was no causal link between the death of the Claimant’s daughter and her psychiatric condition. The death of the Claimant’s daughter was not outside the range of human experience and there was no evidence that the surrounding events at the hospital had caused the post traumatic stress disorder.
In the recent case of Wild v Southend Hospital NHS Trust in 2014 (see also the Case of Tanv East London and City Health Authority in 1999), the High Court held that a father could not recover damages as a secondary victim following shock from discovering his unborn son had died in the womb and witnessing the still birth. The justification for this decision was that the Father developed acute anxiety starting at a time when the baby had already died, rather than witnessing horrific events leading to a death or serious injury. The Trust had already admitted they were liable to the mother as a primary victim for the nervous shock she experienced as a result of their negligence (see also Tredget and Tredget v Bexley Health Authority decided in 1994).
Another case that illustrates the uncertainty in this area was the Court of Appeal decision inSion v Hampstead Health Authority in 1994. Briefly, the Claimant sought damages for psychiatric injury following the death of his son who died in hospital fourteen days after being involved in a road traffic accident. The Claimant remained at his son’s bedside throughout and suffered psychiatric injury as a result of witnessing his son’s deterioration. The Claimant brought an action against the hospital alleging their negligent treatment of his son caused him to suffer psychiatric injury. The hospital applied to have the claim struck out as disclosing no cause of action. Brooke J found for the hospital and the Claimant appealed.
The appeal was dismissed with Staughton LJ stating “In my opinion there is no trace in that report of “shock” as defined by Lord Ackner, no sudden appreciation by sight or sound of a horrifying event. On the contrary, the report describes a process continuing for some time, from first arrival at the hospital to the appreciation of medical negligence after the inquest. In particular, the son’s death when it occurred was not surprising but expected.”
There continues to be considerable uncertainty in this area of law, with Courts often applying the criteria in such a way as to restrict secondary victim claims and then at times interpreting the criteria more liberally. The law is clearly in need of clarification and certainty. Despite the Law Commission criticising the distinction between Primary and Secondary victims, the Court of Appeal have made it clear that any substantial development to the law in this area should be left to Parliament (Taylor v Novo).
Contact a specialist Clinical Negligence solicitor
If you would like to discuss any issue arising from a psychiatric injury, please contact the clinical negligence team on 0800 316 8892.
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