‘Secondary victim’ claims fall short

The law provides that a person who has witnessed the wrongful death or injury (or threat of such death or injury) to someone they love may (in certain circumstances) be able to bring a claim for injury to themselves. In Paul and Another v Royal Wolverhampton NHS Trust and Others [2024] UKSC 1, a majority of the UK Supreme Court effectively restricted those circumstances. 

These were three cases where the claimants’ injury was caused by witnessing the death or injury of a close relative, not in an accident, but from a medical condition which the defendant had negligently failed to diagnose and treat.

A majority of the court (Lord Burrows dissenting) decided for the defendants.

The court considered three key House of Lords decisions on this issue: McLoughlin v O’Brian [1983] 1 AC 410; Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310; and Frost v Chief Constable of South Yorkshire [1999] 2 AC 455.

In McLoughlin, Lord Wilberforce identified three elements inherent in any claim which had to be considered to keep the liability of the defendant within reasonable bounds: (1) the class of persons whose claims should be recognised; (2) the proximity of such persons to the accident; and (3) the means by which their injury was caused. He observed that the class of persons clearly included a parent and child or a husband and wife. Other cases involving less close relationships had to be very carefully scrutinised.

In Alcock, the claimants were witnesses to the Hillsborough football stadium disaster. The House of Lords unanimously held that none of the claimants was entitled to recover damages. Lord Oliver divided the cases into two broad categories, namely those cases in which the injured claimant was involved, either mediately or immediately, as a participant (primary victims), and those in which the claimant was no more than the passive and unwilling witness of injury caused to others (secondary victims). Secondary victims could only recover in restricted circumstances.  

The case of Frost also arose from the Hillsborough disaster. The issue was whether police officers who were present at the stadium and who suffered psychiatric illness could recover compensation. The House of Lords said that none of these claimants satisfied the necessary requirements as none had a close tie of love and affection with any of those killed or physically injured.

The court now set down the following principles.

Not every kind of event caused by negligence would give rise to a claim for damages, but this did not mean that only an ‘accident’ could be a qualifying event capable of giving rise to a claim for damages by a secondary victim.

The accident or event did not have to be ‘horrifying’. It was sufficient for a claimant who was present at the scene of the accident (or its immediate aftermath) in which a loved one was injured or imperilled to show that there was a causal connection between witnessing that event and the illness suffered. Such a test was unavoidably subjective. There was no available ‘Richter’ scale of horror.

Previous judgments had seen the emergence of a legal test as to whether what the claimant witnessed should be regarded as one event or several separate events. This test was unhelpful. It was hard to see why the defendant’s legal liability should turn on the court’s impression of whether or not the facts of the case fitted the dramatic pattern of a Greek tragedy.

At the same time, previous judgments in medical negligence cases where traumatic scenes had been witnessed over several days, had led to an extension of the aftermath of true accidents to a period far beyond that contemplated in McLoughlin. Those judgments should now be overruled.

The court approved a Court of Appeal decision – Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194. The claimant’s mother sustained injuries in an accident at work when a stack of racking boards fell on top of her. She was apparently recovering well when three weeks later she unexpectedly collapsed and died at home. Her death was caused by injuries sustained in the original accident. The claimant did not witness the accident, but she witnessed her mother’s death and as a result developed post-traumatic stress disorder. The Court of Appeal said that there had been one accident, with two consequences: the initial injuries to the mother and her death three weeks later. To allow the claimant to recover as a secondary victim when she had not been in physical proximity to her mother at the time of the accident would be to go too far.

Novo was authority for the proposition that no claim could be brought in respect of psychiatric injury caused by a separate event removed in time from the accident.

Extending the scope of allowable claims by secondary victims to situations where the claimant witnessed the death or illness of a relative from disease would give rise to unacceptable and unfair differences in treatment between different categories of claimant. It would be impossible to explain to an ordinary reasonable person why, for example, damages could be recovered by a daughter who saw her parent die from a heart attack which should have been avoided, but compensation was denied to, say, a mother who did not witness a road accident in which her child was fatally injured or its ‘immediate aftermath’ but identified the mutilated body afterwards in the mortuary or was present at the hospital when her child died many days later.

A line had to be drawn somewhere. There was a ‘rough and ready logic’ in limiting recovery by secondary victims to individuals who were present at the scene, witnessed the accident and who had a close tie of love and affection with the primary victim.

Therefore the claims for compensation made in these cases did not satisfy the legal requirements for the recovery of damages by secondary victims who suffered injury as a result of the death of another person.

Malcolm Johnson is legal director at Lime Solicitors, London