With a reported 37 million cars on the road in the UK, it is not surprising that there is the occasional collision.
The victims that rarely get reported on, however, are those who suffer long-term from the loss of a loved one: the secondary victims.
There are common cases involving the devastation caused to the secondary victim by attending the aftermath of a motor vehicle collision. But not everyone can be successful with their claim in the courts, and in the case of the Hillsborough disaster, Alcock v Chief Constable of South Yorkshire Police established criteria that must be satisfied for a secondary victim’s case to succeed.
This article explains the rights of psychiatric illness sufferers as secondary victims within the English legal system.
The history of psychiatric illness
According to Alcock, the secondary victim is the individual who suffers psychiatric injury due to witnessing the immediate aftermath of an incident involving a person of ‘close tie of love and affection’ known as the primary victim.
The courts have not long acknowledged psychiatric injury, ignoring its existence in the 19th century. Psychiatric injury came some ten years later in 1901, when it was first accepted in a case where a pregnant bartender was successful in her claim after suffering a severe shock when two servants rode and crashed a horse-driven carriage into her workplace.
Dulieu introduced psychiatric injury in relation to the primary victim. It was not until the 1920s that the courts allowed for a secondary victim to claim. In this case, a mother suffered a psychiatric illness after she saw a lorry roll down the hill in the direction of her children and she thought, with fair assumption, that the truck had hit them. Even though the children were not harmed, the claimant was successful.
What amounts to psychiatric illness?
Psychiatric damages are a recent but important aspect of the law. For a secondary victim to be able to claim, they must have suffered a psychiatric illness.
Lord Denning summarised when a psychiatric injury would be acceptable for damages: ‘… damages are recoverable for nervous shock, or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of duty by the defendant’.
Damages have therefore been awarded for a plethora of different psychiatric injuries.
This highlights the accessibility to the courts of cases involving psychiatric injury. However, it is still difficult to legally evidence, thus a medical expert’s advice will always be needed.
Primary and secondary victims
There is a clear distinction between primary victims and secondary victims. It is much more difficult for a secondary victim to be successful in their claim.
A primary victim as a person ‘involved mediately or immediately as a participant’ and a secondary victim as an individual who ‘was no more than the passive and unwilling witness of injury caused to others’.
A primary victim must be ‘directly involved in the accident and within the range of foreseeable physical injury’. This is enough to establish them as a primary victim, and if the victim suffers physical injury, they are automatically entitled to claim for psychiatric injury if suffering from an acknowledged mental illness (psychiatric diagnosis.)
Although secondary victims have been acknowledged for many years, the scope for satisfying status as a secondary victim has become narrower for multiple reasons: the limitations of control mechanisms set in Alcock; and the fact that in contrast to primary victims, secondary victims must prove that the psychiatric injury was foreseeable in their circumstances. These difficulties have left a number of people deprived of a successful claim.
Alcock’s criteria
For a secondary victim’s case to succeed, they must be able to leap over certain hurdles.
Following the tragic Hillsborough disaster, there were a number of cases: White v Chief Constable of South Yorkshire Police [1998] 3 WLR 1509; Frost v Chief Constable of South Yorkshire Police [1997] 1 All ER 540; and most importantly, Alcock, to name a few.
Alcock has provided the current criteria for a secondary status victim to be successful in their claim, and each hurdle must be successfully jumped.
- A close tie of love and affection with the person killed, injured or endangered;
- Proximity to the incident in time and space;
- Perception by sight or hearing of the incident;
- The psychiatric injury must be as a result of nervous shock.
A close tie of love and affection with the person killed, injured or endangered
The courts can catch out those wishing to make a claim as the secondary victim if they do not have the correct ‘close tie of love and affection’. This essential criterion is presumed in the cases spouses, parents and children, but must be proved in any other circumstances.
Many secondary victims may fail at this hurdle, due to its dangerous vagueness and unpredictability
In Alcock, Hidden LJ listed example relationships that have not had successful claims in the Hillsborough disaster, failing to satisfy the ‘close tie of love and affection’ criterion:
‘Of the categories of relationship where the English law so far has not produced a case of a successful claim, there were seven different relationships. There were sisters of three different victims, brothers of two, a grandfather of one, a brother-in-law of one, a fiancée – unofficial as it was said – of one, and a friend’.
Keith LJ went on to say how the rules are somewhat curious, and highlights the fact that a younger bond may be bolder. He states:
‘The kinds of relationships which may involve close ties of love and affection are numerous, and it is the existence of such ties which leads to mental disturbance when the loved one suffers a catastrophe. They may be present in family relationships or those of close friendship, and may be stronger in the case of engaged couples than in that of persons who have been married to each other for many years’.
The narrow scope for ‘close tie of love and affection’ has received wide criticism, causing an outcry for proposed legislation.
One bill was proposed by a backbench Labour MP as the ‘Negligence and Damages Bill’ in 2015. The bill made an attempt to rectify the issue of ‘close tie of love and affection’ but unfortunately failed after its first reading, leaving us with the limited scope provided in Alcock, consequentially leaving secondary victims who are not ‘spouses’ or ‘parent and child’ to have to prove their special relationship in court.
Proximity to the incident in time and space
‘Proximity to the incident in time and space’ may appear easy, as the individual suffered a ‘nervous shock’ due to seeing a loved one in an unexpected state.
This segment of Alcock criteria simply means that the claimant should be close in location and time. However, nothing in law is simple; there has been so much ambiguity under this definition.
There lacks a clear test for determining the proximity to the incident in time and space, and it appears to be done on a case by case basis. The principle in Alcock was derived from the case of McLoughlin v O’Brian [1983] AC 410. Wilberforce LJ said:
‘Where there are no immediate presence, account must be taken of the possibility of alterations in the circumstances, for which the defendant should not be responsible. Subject only to these qualifications, I think that a strict test of proximity by sight or hearing should be applied by the courts.’
Through McLoughlin, Wilberforce extended the proximity of the ‘immediate aftermath’ of an incident. This was then utilised in Galli-Atkinson.
In Galli-Atkinson v Seghal, the claimant, a mother, was picking her sixteen-year-old daughter up after a ballet lesson. When she arrived at the school there was red tape and police cars. The mother walked up to the tape and was informed by the police officer that her daughter had died.
The claimant then went to the mortuary where her daughter lay and she cradled her daughter. At first instance, the court held that the events of the mortuary could not be counted as part of the incident. The case then went up to the Court of Appeal, which overturned the decision.
Using Ackner’s judgement from Alcock that ‘… it is reasonably foreseeable that injury can be caused to a plaintiff, not only through sight and hearing, but of its immediate aftermath’, the Court of Appeal decided that an event itself may be made up of different components, also applied in North Glamorgan v Walters. The decision in Galli-Atkinson was a combination of the components in the event, rather than the mortuary visit alone.
In his judgement, Latham LJ explained:
‘The visit with which we are concerned was not merely to identify the body. It was to complete the story so far as the appellant is concerned, who clearly at that stage did not want – and one can understand this – to believe that her child was dead’.
Wilson LJ agreed with Latham LJ, emphasising that under present law, the appellant can only succeed in being within proximity of time and space if she was present at the accident or at its immediate aftermath. Wilson claimed that the immediate aftermath continued until the appellant left the mortuary.
The incident refers to where the damage is initially done, and not necessarily where the primary victim passed away. This is illustrated in the 2013 case Taylor v A Novo [2013] EWCA Civ 194, in which a daughter was not successful in a claim after witnessing the death of her mother. The young claimant’s mother had had shelves fall on her at her place of work, and had been treated in hospital. Three weeks later while recovering at home, she unexpectedly collapsed and died. Her daughter was a witness to this. However, the courts held that as she had not been there at the time of the incident, which occurred weeks before her death, the incident and death were two distinct events.
Immediate aftermath
Many secondary victims may fail at this hurdle, due to its dangerous vagueness and unpredictability. Many – including judges – are uncertain, as there is no consistent definition. ‘What constitutes the immediate aftermath of an accident must necessarily depend upon the surrounding circumstances. To essay any comprehensive definition would be a fruitless exercise,’ Jauncey LJ remarked in Alcock, making the authors attempt to research the matter in depth feel like running in circles.
From Jauncey LJ’s wise words, we can tell how very difficult it is to determine what is actually categorised as an ‘immediate aftermath’. The immediate aftermath has been inconsistent in cases over the past few decades, and appears to be not too distant from roulette.
The uncertainty is illustrated by the contrast of judgements in Mcloughlin, Galli-Atkinson, Taylor and Taylorson v Shield Produce [1994] PIQR 329. In Mcloughlin the mother raced to the hospital after hearing her family had been in a motor vehicle collision. Once at the hospital, the victim was horrified and went into nervous shock in response to seeing her family covered in blood, oil and dirt. The courts held that although the victim had not been within proximity to the incident itself, she was entitled to claim. The court reasoned this was due to the fact that the victim had seen her family in the state that they were in after the incident: They had not been cleaned up. The judges have almost disregarded this case, or at least moved on from it.
Taylorson went the opposite way to McLoughlin, and the mother was not successful in her claim after seeing her fourteen-year-old son’s body after being dragged under a lorry. The boy died days later in intensive care with his mother at his side. Her claim for suffering psychiatric injury was unsuccessful, as her illness was said to be down to grief rather than psychiatric illness and she did not succeed in pleading that the chain of events lasted until they switched off the boy’s life support.
Galli-Atkinson, as previously stated, went in favour of the claimant, similarly to Mcloughlin, as the judges assumed the components to be accounted as one event.
The “immediate aftermath” has been inconsistent in cases over the past few decades, and is not too distant from roulette
Interestingly, however, in the case of Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1972, a mother was awarded damages for the death of her baby son. He had not been diagnosed with acute hepatitis at the first hospital. The child was then transferred to another hospital. The baby suffered seizures for 36 hours. At the second hospital, the baby was said to have severe brain damage and was put on life support. Thirty-six hours from the first seizure, they turned off the life support and the baby died in his mother’s arms. The court actually applied Mcloughlin (despite it being somewhat controversial) and held that the thirty-six-hour period could be classed as one horrifying event. Ward LJ confirms:
‘It seems to me that the period of thirty-six hours from the moment at which the epileptic fit started, the misdiagnosis by the Prince Charles Hospital, the correct diagnosis by King’s College Hospital and the decision to turn off the life support machine because of the irreparable damage caused by the fit can be looked on in law as a horrifying event properly so called’.
Further, there is the Queen’s Bench case of Farrell v Merton, Sutton and Wandsworth [2002] 57 B.M.L.R. 158. In Farrell, the mother suffered from a ‘nervous shock’ from seeing the scene of her new-born baby operated on. The events were soon after giving birth to her child via caesarean.
The mother did not see the baby after birth and was told her baby was having a hard time, but they had not mentioned the severity of the situation. The baby was taken to another hospital, where he was attached to machines, once the claimant had actually witnessed the child (a day later) suffering in intensive care, she suffered a nervous shock which developed into a psychiatric illness.
The judge, Judge Elizabeth Steel, was not only willing for the claimant to satisfy the criteria of secondary victim, but also considered treating the claimant as a primary victim:
‘ I am satisfied that there is no break in the chain of causation and that the “trauma of the birth” encompasses not only the events in the operating theatre but also the position up to and including the first sight of her baby and the realisation (when told by the paediatric SHO) of his disability. I, therefore, treat her as a primary victim.
‘Even if I am wrong in that approach, the unusual delay of just over a day between the birth and a mother seeing her baby is wholly attributable to the defendants. They chose not to take her to the hospital where the child was, and chose not to tell her the difficulties and injury which had occurred.
‘I am therefore satisfied that in these particular circumstances her sight of the child on 25th was in the immediate aftermath of the birth and she would, in any event, be compensated as a secondary victim.’
The tragic cases of Walters and Farrell demonstrate the inconsistencies of the legal definition of ‘immediate aftermath’.
Perception by sight or hearing of the incident
After the Hillsborough disaster, many people were distressed, including bystanders and viewers. Some people attempted to make claims for what they had seen, or for what they had seen on the television.
For those who have made it over the evidential hurdles so far, the perception of shock must be by sight or hearing with unaided senses. This was brought up in the Alcock case, when family members were bringing cases forward in an attempt to claim damages for psychiatric illnesses that had accumulated from witnessing the events of Hillsborough on the television.
The court did not allow this because the courts did not want to open the floodgates. Wayward LJ opined:
‘The events were broadcast to millions, and here were real floodgates, rather than any figures involved in the question of a road traffic accident. [The defence argued] that there was the potential not only to identify the floodgates argument, but also to open the floodgates.
‘With those propositions, again, I cannot agree. There will not, under our system of law, be suddenly opened to the millions who were watching television that day an opportunity to obtain damages, as the defendant’s submission suggests. Those million will have no proximity of relationship, and, therefore, any claim by them would fall at the first fence’.
Further, in relation to radio broadcasts, the courts said:
‘There would be no recovery of damages for nervous shock induced by merely hearing of the death or injury of a loved one from a messenger, then the same considerations should apply to hearing the message from a radio broadcast, since what is broadcast goes from the mouth of a reporter or newsreader’.
Psychiatric injury must result from ‘nervous shock’
There is need for a diagnosis of ‘nervous shock’, as it may be a daunting experience to attempt to prove the suffering of ‘nervous shock’ rather than grief.
This is the final criteria taken from the Alcock case. The secondary victims psychiatric injury must be caused by a state of shock, hence why it is referred to as ‘nervous shock’ in older cases.
It has proved difficult to demonstrate that the psychiatric injury is caused from shock rather than simply grief. The most common method deployed by the courts is to use a professional expert opinion. But judges have also provided an opinion empathising with victims, for example Lord Wilberforce in McLoughlin:
‘There can be no doubt that these circumstances, witnessed by the appellant, were distressing in the extreme and capable of producing an effect going well beyond that of grief and sorrow’
Many cases illustrate that there must be a suddenness of shock applied. In Liverpool Women’s NHS Foundation Trust v Ronayne [2015] EWCA Civ 588, the courts did not allow the claimant’s witnessing of his wife’s negligible hysterectomy being performed. It was not seen as sudden enough by the courts or even horrifying enough.
In Owers v Medway NHS Trust [2015] Med LR 561, the claimant was a husband who did not succeed in his claim for psychiatric harm after witnessing the negligent treatment of his wife: the events, although very distressing, did not comprise a sudden appreciation of a ‘horrifying event’ by objecting standards.
Conclusion
The history of the courts’ acceptance of psychiatric injuries has expanded to cover the secondary victims since the 1925 case of Hambrook mentioned above.
The evolution of secondary victims with psychiatric injuries has evolved by the way of the Hillsborough disaster and motor vehicle fatalities. This has caused the courts to become more sceptical about what cases should fall within the limitations of the Alcock criteria, which safeguards the floodgates.
Although claiming as the secondary victim can prove to be a challenge, it is certainly not impossible.
