Introduction
This article focuses on the current position in case law for a Claimant who seeks to be compensated as a “secondary” victim, who “was no more than the passive and unwilling witness of an injury caused by others” (Lord Oliver in Alcock v Chief Constable of South Yorkshire Police [1992]). In clinical negligence practice we find that this mostly applies to those cases in which a parent claims for injury as a result of the loss of a child, and given that we are seeing more of these types of secondary claim (in addition to the primary claim on behalf of the deceased) I hope that this article will assist claims handlers and practitioners alike in dealing with such claims.
Case law
There are 3 main hurdles the Claimant has to get over to be eligible for a claim for psychiatric damages as a secondary victim (as set out in Alcock):-
1. The Claimant has close ties of love and affection with the person killed or injured
In the case of a parent/child relationship, it is more than readily presumed that this criteria will be met (Lord Ackner in Alcock) and as such I do not intend to deal with this point in detail.
2. The Claimant must have been present at the accident or its immediate aftermath
In clinical negligence cases, difficulties often arise as there often isn’t always a single identifiable “accident” (as opposed to cases involving road traffic accidents etc), but rather a period of treatment in which the parent may have been present, or alternatively the parent may have attended at the hospital shortly following the death. In such cases the Claimant will argue that they were present at the “immediate aftermath”. Case law has attempted to define (or in some cases to stretch) what is meant by the “immediate aftermath”, but each case is assessed on its own facts. Famously in Alcock, the Claimants failed to recover compensation for having witnessed the disaster on television, even when recognising certain individuals in danger, as this did not constitute being present at the accident or its immediate aftermath. This case probably represents the ‘high water mark’ of the immediate aftermath test as a control mechanism.
In McLoughlin v O’Brian (1982) House of Lords the Claimant’s husband and 3 children were involved in a road accident in which her youngest daughter was killed. The Claimant attended the hospital where she saw her husband and children all in distress. The court held that direct and immediate sight or hearing of the accident was not required, and the immediate aftermath doctrine applied as proximity both in time and space was sufficiently close.
In the case of Atkinson & Anor v Seghal (2003) Court of Appeal the Claimant attended the accident scene where she learned of her daughter’s death. The news had a profound effect upon the Claimant who screamed hysterically and collapsed to the ground. This occurred between 8pm and 9pm. Husband and wife then travelled to the mortuary together and arrived at 9.15pm. It was held that the immediate aftermath of a fatal road accident in which the Claimant’s daughter was killed extended from the moment of the accident until the moment the Claimant left the mortuary.
The Court of Appeal considered the case of McLoughlin and the definition of immediate aftermath. They referred to the Alcock case wherein Mr Alcock identified his brother-in-law in the mortuary some 8 hours after the accident, and even if this identification could be described as part of the aftermath, it was not part of the immediate aftermath. Mrs McLoughlin had arrived at the hospital within an hour or so after the accident and accordingly this was held as the immediate aftermath on those facts.
In the decision in Atkinson, the Court took account of the scene at the sight of the accident which the Claimant witnessed, and indicated that she would have been aware of the scene and this would have increased her panic. In addition, at the mortuary it is noted that the Claimant’s daughter had horrific injuries which would also have added to the Claimant’s psychiatric reaction.
3. The psychiatric illness must have been caused by the direct perception of the accident or its immediate aftermath
In the case of Taylorson v Shieldness Produce Ltd [1994], the Claimant’s claim failed as they had not witnessed a “shocking event” to cause psychiatric illness. The Court has applied this “shocking event” doctrine to determine whether a Claimant’s psychiatric illness has been caused by the accident. So in McLoughlin v O’Brian (1982) House of Lords the Claimant in this case was found to be part of a “shocking event” which was still occurring at the time she went to hospital as her children were still being treated and in distress.
Case law is inconsistent on this point, and appears to turn on the facts of each case. For example, in North Glamorgan NHS Trust v Walters [2002] (Court of Appeal) a child died as a result of a negligent misdiagnosis and it was held that the “event” was a 36 hour period in which the Claimant’s mother first witnessed her child having an epileptic fit, to the child suffering brain damage and finally her agreeing to terminate the life support system. The court described this as “an inexorable progression”.
However, in Ward v Leeds Teaching Hospitals NHS Trust [2004] a mother whose daughter died as a result of clinical negligence, failed to recover compensation for nervous shock because the Judge did not accept that her experiences satisfied the diagnostic criteria for a finding of post traumatic stress disorder, which required a shocking event of a particularly horrific nature, and the death of a loved one in hospital did not meet that description unless also accompanied by circumstances that were wholly exceptional in some way so as to shock or horrify.
Conclusion
The case law in this area depends very much on the facts of each case and the discretion of the particular trial judge, especially when considering whether the Claimant was present in the “immediate aftermath” and whether they have witnessed a “shocking event”. The court considers the cumulative effect of all the events the Claimant is subjected to, and how these impact on the Claimant’s mental status. When considering whether the Claimant was present in the “immediate aftermath”, the number of hours since the accident and what the Claimant sees during that this time are very important. Whilst 1 to 2 hours from the accident appears acceptable, 8 hours is not. Similarly, whether the Claimant has witnessed a “shocking event”, time is of the essence, as is what the Claimant sees during that time. Case law indicates that even a time period of up to 36 hours can be held as a “shocking event”, if during that time there is an “inexorable progression”.
Want to talk about this article? Please Contact:
Anna Moutran
Solicitor
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