We take a look at what it is to be considered a secondary victim and how the recent cases before the Supreme Court, which involved a medical negligence, have reconsidered the law surrounding secondary victim status and whether they can be brought before the court, if at all. This is a complex area and we recommend that you speak to us regarding your specific circumstances. The case of a secondary victim can turn on the smallest of detail and therefore it is necessary to consider your facts and circumstances in full.
This guide focuses on informing the reader about what a secondary victim is and where it stands, in the law, at the time of writing in February 2024.
In personal injury claims, there are two categories of victim considered by the law. The categories are known as primary victim and secondary victim. The categories can be described as:
A primary victim can make a claim for both the physical and psychiatric injury they have suffered following the negligence or accident. A simple example is person A (the driver) and B (the passenger) are directly injured in a car accident. Person A and B would be primary victims. If person C watched the accident unfold from his garden and suffered psychiatric injury arising from watching the accident he could be considered a secondary victim.
The above example is simple example. Drawing a distinction between primary and secondary victims, particularly in a large-scale complex incidents of medical negligence or accident situations is very complex.
However, even if a secondary victim has suffered a psychiatric injury they are unlikely to be entitled to compensation without further connection to the incident or accident.
A personal injury claim cannot be advanced for a secondary victim even where they have been in close proximity to an accident or negligence but not developed a psychiatric injury.
To understand whether a claim can be advanced for a secondary victim it is necessary to look at case law, including the most recent Supreme Court decision in 2024.
The case of Alcock v Chief Constable of South Yorkshire [1992] 1 A.C. 310 was issued by the House of Lords in 1992 following the Hillsborough disaster and its principles remain central to understanding of secondary victims. There has been some revision of the ‘Alcock test’ by the Supreme Court in January 2024, which is discussed below, but the case is still important for the understanding of secondary victims. ‘Alcock’ set out narrowly defined mechanisms, where a secondary victim can succeed with a claim for damages. The mechanisms were defined as:
If a person does not have a reasonable fear of physical injury being caused to them, but they do suffer a recognised psychiatric disorder, then under the ‘Alcock Test’ they would be able to recover damages if they meet the control requirements set out above. However, in a medical negligence setting the mechanisms have been reconsidered by the Supreme Court in 2024. The reconsideration will be also have a wider impact.
Before turning to the recent Supreme Court decision, it is important to consider whether a primary victim can become a secondary victim. The case of Danielle Weddle v Glasgow City Council [2021] SAC (Civ) 17 arose from the complex and large-scale accident known as the ‘Glasgow bin lorry crash’. The driver of a bin lorry suffered a black out at the wheel and lost control of his lorry killing several and injuring many. Ms Weddle was close to the scene of the incident where she witnessed the latter part of events and suffered a psychiatric injury following what she had seen. Her case was taken forward as a primary victim. However, the Sheriff at first instance on findings of fact moved her from being a primary victim to a secondary victim
Weddle appealed the decision and the Appeal Court upheld the findings of fact made by the Sheriff at first instance. Weddle was classed as a secondary victim and was not a primary victim. She was not successful in her claim for damages. In respect of being a secondary victim she would have succeeded only if she could fulfil the requirements as set out by the Courts in the ‘Alock Test’ above.
Weddle did not know anyone involved the accident. She would only have been successful if she could demonstrate that she had a reasonable fear of suffering physical harm and the judgement in this case sets out that this fear must be assessed objectively. In Weddle’s case, no vehicle came close to her at any time and she didn’t know anyone involved in the accident. As such, it was not possible to conclude that she had a reasonable fear of being harmed. Despite appealing her case the Appeal Court agreed with the Sheriff that Weddle was a secondary victim. This case was decided in 2021 and showed that the ‘Alcock Test’ still played an important role in determining secondary victim status since 1992 until very recently.
The Supreme Court of the United Kingdom delivered their verdict on three medical negligence cases at the start of 2024. The Supreme Court is the highest Court of Appeal in the United Kingdom for civil cases (personal injury is a civil case), and for criminal cases from England, Wales and Northern.
The cases of Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1 and the cases of Polmear v Royal Cornwall Hospitals NHS Trust and Purchase v Ahmed were conjoined before the Supreme Court as they gave rise to similar secondary victim issues.
Initially, the cases of Paul and Purchase were dismissed by the High Court and County Court respectively, with permission given to appeal. Following Paul, an application to dismiss the claim in Polmear was rejected and permission given to appeal in that case. The cases were conjoined for the purposes of the appeal. The time between the alleged act of negligence and the death in the cases ranged from 3 days to 14 months. In each case, Paul, Polmear and Purchase witnessed or attended shortly after a death the alleged was caused by the NHS Trust.
The Supreme Court in their judgement significantly limited the scope of secondary victim claims in the medical negligence field, which many lawyers have found hugely disappointing. It is also one Lord Burrows stated was an “unwanted backward step” when he dissented from the other judges. However, despite the setback created by Paul, Polmear and Purchase, we always recommend you take advice on your specific circumstances.
Paul, Polmear and Purchase considered whether an individual can make a claim as a secondary victim for psychiatric injury caused by witnessing the death or other horrifying events of a close relative as a result of the NHS medical negligence.
The 2024 decision sets a precedent for the future of secondary victims particularly in medical negligence which has now unsettled around 30 years of reasonably settled legal understanding. The position for secondary victims is now complex and potentially will see further changes through various court challenges.
The Supreme Court confirms that persons who suffer psychiatric injury after witnessing the death or injury of a close relative, not in an accident, but from an illness or disease which proper medical treatment would have prevented do not satisfy the legal requirements for the recovery of damages as a secondary victim. The court indicated that secondary victim claims are exceptional cases.
The court found that secondary victims that succeed in financial recovery following the ‘Alcock Test’ are those made by individuals who suffer injury as a result of witnessing an accident (or its immediate aftermath) in which a close relative is killed or injured by a defender negligence.
The Supreme Court considered that the claims of Purchase, Paul and Polmear were not analogous to the “accident' cases”. No accident had occurred, rather a “medical crisis” (the progression of an underlying medical problem which, if not for negligence, would have been addressed) and, in the absence of an accident, damages should not be recoverable. That determination was, in the opinion of the court, supported to be correct by an acceptance that the established doctor-patient relationship did not extend to protecting members of the patient's close family or friends from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative or person. The claims made were, on their facts, not able to succeed.
Generally, the decision of the Supreme Court is seen to exclude most claims brought by secondary victims in medical negligence cases. Largely, accident claims are not without their difficulty but not have to some extent been carve out by the Supreme Court. However, the Judgement did give guidance for solicitors in respect of secondary victims. The court indicated;
The 2024 Judgement has all in effect excluded secondary victims in a medical negligence context where death is associated with the patient having a pre-existing illness or disease, and the death occurs after a healthcare provider has omitted to provide a diagnosis/treatment to prevent death. In addition, in pregnancy cases, it is unlikely that failure to diagnose pregnancy diseases, such as gestational diabetes or intra-uterine growth restriction of a baby, will give rise to a secondary victim claim.
The need for ‘sudden shock’ or an event that is ‘horrifying’ have been removed and the parameters that have previously been used to define a secondary victim claim in the ‘Alcock Test’ changed.
The court confirmed that to meet secondary victim status you must meet the following criteria;
The Supreme Court restricts secondary victim claims to those who witness an accident but removes the requirements that a person must witness a “sudden shock to the nervous system” caused by a “horrifying” event.
The court rejected the suggestion that a victim must experience “a sudden shock” in favour of a victim needing to do no more than prove conventional causation of psychiatric injury in secondary victim claims. The court considered earlier Judgements and concluded that they reflected the understanding of the causation of psychiatric injury at the time, but that “crude mechanical model which attributes psychiatric illness in such cases to an “assault on the nervous system” has, however, long since been discredited...With regard to causation, it is sufficient for a claimant who was present at the scene of the accident (or its immediate aftermath) in which a loved one was killed, injured or imperilled to show that there is a causal connection between witnessing that event and the illness suffered. It is not necessary (even were it possible) to demonstrate the neurological or psychological mechanism by which the illness was induced.”
The Supreme Court also rejected the idea that the a secondary victim’s claim needs to be a particularly “horrifying event”. “It is of course necessary for a claimant to show that it was reasonably foreseeable that the defendant’s negligence might cause her injury. If, for example, a claimant with a history of psychiatric illness develops such an illness after witnessing a minor accident in which his wife sustains some cuts and bruises, his claim might fail that test. But we can see no justification
