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Secondary victims; a positive change for those who suffer psychiatric injury

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    If someone witnesses a traumatic event as the result of another’s negligence, then traditionally it has been very difficult for that individual to receive compensation. However, changes to how these ‘Secondary Victims’ are treated has raised new hope for many suffering from psychological injuries as a result of witnessing a traumatic event.

    By Rosie Hodgetts

Sometimes, someone may witness something that is so horrifying it causes them to suffer a psychiatric injury. Known as secondary victims, in very specific circumstances, certain individuals may be entitled to pursue a claim for compensation for the trauma caused by witnessing the event.

Claims of this type have been becoming harder to pursue over the past few years. However, a very recent case has suggested that there may be certain changes on the horizon for those looking to pursue claims as secondary victims.

How are psychiatric injuries assessed?

Whilst the definition of a secondary victim may seem quite straight forward, there are very strict criteria which an individual must meet in order to qualify for compensation.

Firstly, an individual has to be able to show that the psychiatric injury they have experienced was a reasonably foreseeable consequence of the negligence of another person.  The test to apply is whether it would be reasonably foreseeable that a person of normal fortitude would suffer psychiatric injury as a result of what happened.

Once the threshold of reasonable foreseeability has been met, there are 3 further criteria that need to be met before an individual is able to claim for damages for psychiatric injury as a secondary victim.  These are:

A close tie of love and affection to the immediate victim. The Courts have, traditionally, interpreted this to mean a parent or child of the injured party or someone linked by marriage. That is not to say that others will not qualify as each case will turn on its own facts. It is however imperative to prove that there was a very close bond between the injured party and the secondary victim.

Closeness in time and space to the incident or its aftermath. This means that the secondary victim must see the injured party soon after the injury has occurred and, often, close to where it happened. There has been a lot of consideration as to exactly what will constitute closeness in time and space.  More often than not a strict interpretation has been applied by the Courts.  For example, in the case involving the Hillsborough disaster, a gap of 8 or more hours was held no longer to be in the “immediate aftermath” of the accident.  In another leading case, a gap of 2 hours was felt to be “upon the margin of what the process of logical progression would allow”. Whilst there have been cases where a claimant has been successful with a longer interval between the accident and the shocking event, each case turns on its own facts.

There must be sudden appreciation by sight or sound of a horrifying event which leads to an individual’s psychiatric injury. In relation to this third criterion, it is important to understand that a direct perception requires the “sudden appreciation by sight or sound” of a horrifying event.  A gradual appreciation of a situation, or the accumulated effect of a number of horrific events, will not necessarily be enough for an individual to establish a claim as a secondary victim.

All of these criteria and the Courts interpretation have made it very difficult for secondary victims to successfully pursue cases. However, one case published in the spring of 2017 has suggested the tides may be about to turn.

What’s changed with assessing secondary victims?

The most recent case in relation to secondary victims involves a grandmother who has successfully brought a claim as a secondary victim for the psychiatric damage that she experienced following the birth of her granddaughter 2011.

Whilst the case has not yet been widely reported, it is understood that the grandmother suffered post-traumatic stress disorder (PTSD) after she witnessed the traumatic birth of her granddaughter who became stuck behind her mother’s pelvis during her birth.

The baby suffered an acute profound hypoxic ischaemic insult (brain injury) as a result of the events surrounding her birth and, when she was born, she was “flat and purple with a swollen head” and did not start breathing for 12 minutes.  Both her mother and grandmother believed that she was dead.

It is understood that in this case the staff involved in the mother’s care had not properly anticipated the risk of delivering a 10lb baby, that midwives had deliberately prevented a specialist obstetrician from entering the room during a crucial stage in the emergency and that the hospital subsequently destroyed medical records after the legal action had begun.

The Judge in this case found that watching a complicated birth which resulted in the appearance of a still-born baby would be found to be “sufficiently horrifying” for both the baby’s mother and grandmother to claim for post-traumatic stress disorder.

Whilst the hospital trust in question have suggested they will appeal against this decision, this represents a positive step for claimants and, as clinical negligence lawyers we welcome any possible change that will enable family members who have suffered serious psychological injury as a result of witnessing horrific injuries occurring to a loved one achieve compensation to help them obtain the psychological treatment they require.

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