It’s everyone’s worse fear witnessing or finding out that someone you have a close relationship with has been involved in an accident.
The thoughts are rushing through your head as to whether that person will be ok, how serious are their injuries, is it life-changing? These fears can be long lasting and should you have suffered with psychological injury then a claim for compensation might be possible.
What is a secondary victim?
A secondary victim is someone who has a close tie of love and affection with a person who has been injured and has witnessed the injury, fear of injury or death of a loved one.
A brief history of the law regarding secondary victims
The courts have recognised the concept of secondary victims since the early 80s, but the law as it currently exists stems from a group of cases that were brought during the 1990s in the aftermath of the Hillsborough disaster in 1989. For any younger readers who may not be familiar with the Hillsborough disaster, it concerned the FA Cup Semi-Final between Liverpool and Nottingham Forest which was being played at the Hillsborough stadium in Sheffield (semi-finals in those days were played at a neutral venue). It was a high-profile match with a sell-out crowd that was also being broadcast live on the BBC.
Gross failings on the part of the police, to control the crowd arriving at the ground shortly before kick-off, led to significant overcrowding at the Liverpool supporters’ end. 97 fans ultimately died in the crush that resulted. The tragedy unfolded on live television and many family members and friends of supporters who attended the match witnessed the tragic events that led to the death or serious injuries to their loved ones.
Despite not having been present and injured themselves, many of them brought claims against South Yorkshire Police for the psychological injuries they suffered, as a result of watching the events on television. Their claims were ultimately dismissed by the Court of Appeal who set out the basis for the legal test a secondary victim must satisfy, in order to succeed with their claim. Central to the Court of Appeal’s reasoning was a desire not to ‘open the floodgates’ and to restrict as much as possible the circumstances in which secondary victim claims could succeed.
The idea that there had to be sufficiently close ties of love and affection between the Claimant and the victim was made clear. Crucially the court also made it clear that there had to be sufficient ‘proximity’ between the Claimant and the events that caused the harm; simply watching them on television was not sufficient to permit a claim as a secondary victim.
The 5-stage secondary victim test
In the Hillsborough cases, the Court of Appeal set out a 5-stage test that a secondary victim needs to satisfy in order to successfully claim compensation. Although the 5 stages have been clarified and refined by subsequent court decisions over the years since, they are still the basis for any successful claim.
The 5 stages of the test are :
- That it was ‘reasonably foreseeable’ that a psychological injury would or could arise in the circumstances;
- The secondary victim has close ties of love and affection with the injured person (the primary victim), e.g. a parent, child or spouse;
- The secondary victim witnessed the accident or its immediate aftermath;
- The secondary victim has suffered a recognisable psychiatric injury as a result such as post traumatic stress; and finally
- The psychiatric injury was caused by the shock of witnessing the injury or risk of injury to a loved one, rather than through a bereavement reaction or from being informed by a third party.
Some examples of secondary victim claims
There would be little doubt that a situation where a parent witnessed their child being injured in a road traffic collision would meet the criteria for a successful secondary victim claim. If that parent didn’t witness the collision itself but arrived on the scene shortly afterwards to witness their child injured in the road and being tended to by paramedics that would also likely be considered sufficient to meet the test. However, if the parent was never at the scene and instead saw their child for the first time in hospital, that would probably not be considered sufficiently close to the incident to permit a claim.
Other situations where the court hasn’t permitted a claim have included situations where a family member has had to attend the mortuary to identify a relative who has been killed in an accident, or in a group of recent cases, where there was a long delay between the negligent act (in these case a medical misdiagnosis) and the events that caused the psychological harm (the relatives subsequently and suddenly dying as a result of that misdiagnosis).
Secondary victim claims are complex and the law regarding the 5-stage test is constantly evolving. If you or a loved one think you might have a claim as a secondary victim, it is important you seek expert legal advice to discuss your options.
About the Authors
Chris Kardahji of Irwin Mitchell
Chris Kardahji is a Senior Associate Solicitor and Team Leader in the Sheffield Serious Injury Team. He leads a team who represent seriously injured individuals and the families of those who have been killed in road traffic collisions, workplace accidents and many other types of accident.
Rhiannon Tromans of Irwin Mitchell
Rhiannon Tromans is a Paralegal within the Serious Injury Team in Sheffield. She represents injured individuals who have been involved in road traffic collisions, workplace accidents and public liability accident as well as representing families whose loved ones have been killed as a result of such incidents.
How can Brain Injury Group help?
If you have been injured in an accident and would like a free, no-obligation chat with a specialist brain injury solicitor about the circumstances surrounding your accident, please email enquiries@braininjurygroup.co.uk, telephone 0330 311 2541 or visit our website to access live chat.
We are also able to offer free welfare benefit checkups to all affected by brain injury, to ensure you are receiving the right benefits for your individual circumstances.
