Damages for secondary victims – What constitutes a “horrifying” scene or event?
A person who witnesses a horrifying event and has a close relationship with someone involved in the event is able to seek damages as a secondary victim. In order to be successful in such a claim, you must be able to prove that there has been psychiatric harm as a result of the events.
The event must be “horrifying” and the harm must be such that it is foreseeable.
That criteria is set down in the case of Alcock v Chief Constable of South Yorkshire Police (aka the Hillsborough case) and in full, requires:
- that the psychiatric injury is caused by ‘shock’ from ‘the sudden appreciation by sight or by sound of a horrifying event, which violently agitates the mind’;
- that the person had a close tie of love and affection with the immediate victim and;
- that the person was sufficiently proximate in time and space to the ‘shocking’ event – that generally means that they witnessed it unfold or came upon its ‘immediate aftermath’.
The last few years have seen a number of secondary victim cases come before the Court in a bid to satisfy the Alcock criteria and clarify the concept of a ‘horrifying event’.
Shorter v Surrey and Sussex Healthcare NHS Trust
In the case of Shorter, a case was brought by a radiographer who came across her sister in hospital, following injuries sustained in an accident. It was argued by her representatives, that as a result of her profession, the sister had a greater degree of insight than that of the ordinary man. As a result, given her greater understanding of the situation and her medical insight, she was more likely to find the sight of her sister in hospital, and the events that were unfolding, more “horrifying”.
However, the Court held that in applying whether an event is “horrifying” you must apply objective standards. Certain people may find it more frightening to have no medical knowledge at all and not understand what was going on compared to those who have an insurmountable knowledge of medicine. The Court therefore cannot become embroiled in debates over who would find something horrifying and who would not.
The position in Shorter was approved in the case of Ronayne v Liverpool Women’s Hospital NHS Foundation Trust
In Ronayne, the pursuer’s husband attempted to bring a claim for damages alleging that he was psychiatrically harmed following sight of his wife in hospital. She had sustained injuries as a result of negligence and he was thus attempting to claim against the defender.
The Judge in Ronayne made it clear that the mere sight of a relative receiving hospital treatment is unlikely to be viewed as “horrifying” to allow recovery of damages. It was held that the man’s wife was in a state that was ordinarily expected of a person in hospital, given the circumstances in which she found herself. The sight has to be exceptional in nature. This is hardly surprising as hospitals can be frightening for some especially when one does not hold the relevant medical knowledge. The sight of a loved one hooked up to machines and wires can be alarming but may not be as serious as one may first think.
Taylor v A Novo (UK) Ltd
This also provides helpful clarification on what constitutes a horrifying event. A daughter attempted to recover damages for psychiatric injury following the death of her mother. The mother had sustained injuries to her head and left foot in a workplace accident for which her employer admitted responsibility. Although the mother appeared to make a good recovery, weeks following the accident, the injuries triggered a deep vein thrombosis and she collapsed and died, at home. The daughter was not present at the time of the original accident but did witness her mother’s death at home. It was accepted that this experience had caused the daughter to suffer PTSD. The Court was required to decide whether the event satisfied the Alcock criteria.
It was not disputed that the daughter shared a sufficiently close relationship with her mother and therefore it was whether the sudden death of her mother counted as a ‘horrifying event’ in terms of Alcock or whether it was only the original accident that qualified.
If the sudden death qualified as being proximate in time and space to the original accident, then the requirements of Alcock would be met and the daughter’s claim would succeed.
The Court of Appeal held that the case was a novel one, given the circumstances. The work accident was a single accident that had two consequences. Firstly, the injuries that Mrs Taylor sustained and secondly, her death three weeks later. Had the daughter witnessed the accident herself, she would have been entitled to recover under Alcock but the daughter did not witness the accident and to allow her to recover as a secondary victim on the facts of the case would be a step ‘too far’.
The Court of Appeal gave two reasons for that. The first was that to extend liability to a case such as that would mean that the daughter would potentially have been able to recover in the event that her mother died months or even years following the original accident. That would stretch the concept of ‘legal proximity’ too far. Further, to allow the daughter to succeed in that set of circumstances would be in direct contrast to the ‘immediate aftermath’ doctrine. The second reason was that to allow the daughter to make a recovery would be to extend the scope of liability to secondary victims considerably further and any expansion of secondary victim recovery was a matter for Parliament rather than the Courts.
Given that, it was held that the death of the mother was not a relevant ‘horrifying event’ in terms of the Alcock criteria and the case failed as a result.
So what is a horrifying event?
The Scottish case of Young v MacVean provides a helpful example. The case concerned the mother of a 26-year-old pedestrian who was killed by a dangerous driver. On the day of his death, the mother arranged to meet her son at their local gymnasium in Glasgow. She noted on her approach to the gymnasium that there was a traffic jam that resulted in the traffic being diverted at the roundabout near the gym. She eventually found a parking space in a side street and walked towards the gymnasium. As she did so, she was aware of police activity. She walked past the scene of a crash and was able to see a very badly damaged vehicle up against a tree. Her immediate thought was that someone must be suffering as a result of this and it looked serious. She arrived at the gymnasium and there was a lot of chatter about the crash and a boy had been knocked down. She waited for her son but he failed to turn up. She attempted an exercise class whilst still watching for her son. She checked her phone and spotted that there were six missed calls and began to feel worried. She went to the front desk of the gym and asked them to check if her son had signed in but he had not. She began to feel hysterical and was comforted by a friend. A member of staff went outside to speak to police officers at the scene of the crash, they attended at the gymnasium and it was at this point that the mother was advised that her son had died in the crash.
The Court had to address whether the mother suffered a shock and subsequent injury as a result of the trauma caused by coming upon the immediate aftermath of the crash rather than being told of her son’s death.
It was held that the mother did come within the class of a secondary victim. She came upon the aftermath of the accident. She saw the damaged vehicle against the tree and she appreciated the suffering that those involved must be feeling. She began to feel worried when her son failed to attend the gym, she was being comforted and a staff member went to speak to a police officer. The shock had set in prior to confirmation that her son was involved in the accident and had died. The period of time between her coming upon the accident and the first contact with the police was not long. The mother was therefore classed as a secondary victim.
This case is currently being considered by the Appeal Courts so there is likely to be further development in this area of law.
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