Kate Kennell discusses 2 recent cases on Secondary Victims whilst reviewing this complex area and its relevance to Clinical Negligence claims generally.
Most patients who bring claims in medical negligence are primary victims – ie the health care provider has negligently breached the duty of care that was owed to them as an individual patient. If such a person suffers psychiatric injury directly or as a result of physical injury caused by the negligent treatment then damages may be recovered for this.
How far, if at all, should the law compensate secondary victims – people who have genuinely suffered injury but due to harm caused to another negligently?
In our legal system the ability to recover damages as a secondary victim is strictly limited to someone who suffers a certain kind of psychiatric injury through witnessing an accident, or its aftermath, that causes injury or fear of injury to the primary victim who is a loved one.
Because of the potential for “opening the floodgates” the Courts have been keen to restrict the number of Claimants by imposing a series of stringent control tests on secondary victim claims.
The landmark case is Alcock –v- Chief Constable of South Yorkshire Police HL which dealt with the liability of the police and others for the nervous shock suffered by secondary victims in consequence of the Hillsborough disaster. The control mechanisms outlined are as follows:
- The Claimant must be closely related to the Primary Victim through “close ties of love and affection”.
- The Claimant must either have been present at the time of the incident or the immediate aftermath. Both physical and temporal proximity are required
- The Claimant must have perceived the death, risk or injury with his or her own senses. Being told about it by someone else is not sufficient.
- The Claimant must have suffered a recognizable psychiatric injury (grief or distress is not sufficient).
- Such injury must be caused by “shock” due to a sudden perception.
There are only a handful of reported cases where a Secondary Victim has been successful within a clinical negligence claim. Such cases can be fraught with difficulties and hard to prove.
A couple of recent case, one successful, the other not, provide useful illustrations of the issues and complexities that can arise:- Ronayne –v- Liverpool Women’s Hospital NHS Foundation Trust CA  and RE and Others –v- Calderdale and Huddersfield NHS Foundation Trust QB 
- Mr Ronayne witnessed his wife on a ventilator in hospital, extremely unwell, and looking like the “Michelin Man” following post operative complications caused by negligence. He was not awarded any damages for his nervous shock and psychiatric injury.
- It was held that the event that Mr Ronayne had witnessed was not exceptional, sudden or objectively horrifying.
- Nor was there a sudden appreciation of an event. Rather, there was a series of events giving rise to an accumulation of gradual assaults on the Claimant’s mind.
- At each stage, Mr Ronayne was conditioned for what he was about to see and aware that his wife’s life was in danger.
- There was nothing sudden or unexpected about being ushered in to see his wife and finding her connected to medical equipment such as a ventilator.
- Lord Justice Tomlinson commented in his judgement:
“A visitor to a hospital is necessarily to a certain degree conditioned as to what to expect…what is required in order to find liability is something which is exceptional in nature”.
- In RE a new born baby suffered an acute, profound hypoxic ischemic insult immediately prior to and following her delivery. In consequence, she was born in a very poor condition, ‘flat’ and not breathing with a purple and swollen head.
- Claims for psychiatric injury were brought by her mother and by her grandmother who was present throughout the delivery.
- Interestingly, mum was classified as a primary victim on the basis that RE was injured before delivery and had no separate legal entity whilst she remained in utero. Had the injury occurred post delivery than she would have had to qualify as a secondary victim.
- So far as the grandmother was concerned, it was not in dispute that she had a close tie of love and affection with RE, that she perceived the event directly and that she was sufficiently close to the event in space and time.
- The only real issue therefore was whether the event was sufficiently sudden, shocking and objectively horrifying.
- The grandmother succeeded in her claim as a secondary victim
- In ruling in her favour, the Court highlighted a number of important factors: RE’s condition at birth was a sudden and unexpected event and not a process of gradual realization; there was no conditioning for what came or any warning that RE would be born lifeless and require resuscitation; it was not an event of the kind to be expected as “part and parcel” of childbirth; the grandmother was present throughout the birth and witnessed the immediate aftermath; she thought that RE was dead; she suffered PTSD as a result of observing the events of RE’s birth.
Both cases are looking to apply the same law to difficult, sensitive circumstances.
What emerges is that one needs fairly exceptional circumstances for a Secondary Victim to succeed in a clinical negligence context.
RE is interesting because the recent trend at trial has been for Courts to restrict the scope of claims for psychiatric injury for Secondary Victims arising out of a hospital’s negligence. It illustrates, however, that such claims can be successful if all the key ingredients are present
RE contrasts with Ronayne. in that RE’s condition on birth was a sudden and unexpected event for which the Claimant had no prior conditioning or warning.
By contrast, Mr Ronayne witnessed a series of events which gave rise to an accumulation of gradual assaults.
When assessing the merits of any potential Secondary Victim claim it is very important to look at previous cases of a similar nature to see what has been decided. Consideration has to be given as to whether or not the control measures are likely to be met and whether the Claimant witnessed a shocking, sudden event that led to the Primary Victim’s injury. Normally one will need an injury of PTSD or similar to meet the nervous shock requirement.
It is important that parents’ potential claims are not overlooked when dealing with birth injury cases. They require early consideration, scrutiny and investigation where viable. Mum will often be a primary victim but it is important that dad and other relatives, particularly those present at the birth, are not forgotten
Kate Kennell has more than 20 years post qualification experience. She covers a wide range of work with a particular interest and specialism in women’s health and wellbeing.
If you or a member of your family has suffered as a result of negligence on the part of a health professional then please do not hesitate to phone us free on 0800 999 5585, request a call back or submit your case details.