When is there a claim?
An individual who suffers psychiatric injury after witnessing someone they know being killed or seriously injured in an accident is otherwise known a ‘secondary’ victim. The ‘primary’ victim is the individual that is directly involved in the accident, i.e. the deceased or the physically injured person.
If multiple people witness a single accident this has the potential to generate several personal injury claims for the psychiatrically disturbed observers. Take the 9/11 disaster, for example. Most people can remember where they were when they first heard about it. Millions will have seen it happen on television, the internet and also directly, and many will have suffered severe distress as a result of what they saw. If everyone who witnesses the tragedy had actionable claims for the shock they sustained, this would have crippled the US insurance industry.
The 9/11 disaster is obviously an extreme example. However, it demonstrates the type of flood gates that the courts of England and Wales are anxious to prevent being opened. In the words of Lord Wilberforce, “there remains, because ‘shock’ in its nature is capable of affecting so wide a range of people, a real need for the law to place some limit on the extent of admissible claims”.
The court controls
The courts have restricted the number of admissible secondary victim claims by essentially creating a series of arbitrary tests that secondary victims need to satisfy in order to make a claim. These are known as ‘the control tests’ and they were considered by the court in the case of Alcock v Chief Constable of South Yorkshire Police , which arose out of the Hillsborough disaster.
In short, in order to bring a claim for psychiatric injury, a secondary victim must
- have a relationship of love and affection with the primary victim;
- come across the ‘immediate aftermath’ of the event;
- have direct perception of the harm to the primary victim; and
- be of reasonable fortitude.
Secondary victims will need to be able to demonstrate a ‘close tie’ of love and affection, with the primary victim. There are no fixed categories of relationships that would qualify for this, but generally the court will acknowledge a close tie of love and affection between spouses, fiancés and between parents and their children. Other relationships such as siblings, best friends and also grandparents and grandchildren will need to prove such a close tie.
Secondary victims must to be able to show proximity to the accident, both in terms of time and space. The most straightforward way an individual can pass this test and potentially have a successful case would be if they were physically present at the scene of the accident. An individual may also be entitled to recover compensation if they attended the scene shortly afterwards and saw the immediate aftermath of the accident.
A very sad example of this control test was in the case of Taylor v A Novo Ltd . In this case a mother sustained an injury at work when a stack of boards fell on top of her. She appeared to be recovering from her injuries, however, she unexpectedly collapsed and died in front of her daughter at home three weeks later. The deceased’s daughter, Miss Tayler, suffered post-traumatic stress as a result of what she saw and pursued a claim for compensation against her mother’s employer. Miss Taylor’s claim failed on the basis that she was not reasonably proximate in space and time to the accident or its immediate aftermath.
To overcome this test, an individual needs to have perceived the harm to the primary victim with their own unaided senses. Therefore, someone who suffers psychiatric illness after witnessing a serious accident or event on television will not usually be able to recover compensation. Nor are they likely to be successful if the distressing news was communicated to them by another individual.
The question to ask here is simply whether psychiatric injury would have been reasonably foreseeable in a person of ‘ordinary fortitude’ in the circumstances, i.e. a person with a reasonable mental and emotional strength in facing adversity or danger. An unusually sensitive individual will not be able to recover compensation. The only exception to this would be the rare scenario where the person to blame for the accident was already aware of the secondary victim’s psychiatric vulnerability.
Although the control tests offer guidance as to the types of secondary claims that will and won’t be succesful, their vagueness creates confusion for injured individuals. There is a lack of specificity in terms of the relationships, the time periods, the communication methods and the level of fortitude that will be accepted by the courts.
The law is extremely unsettled and complex, as confirmed by Lord Bingham, who described nervous shock as “one of the most vexed and tantalizing topics in the modern law of tort”. An extension of Lord Bingham’s comments came from Baroness Hale, who said “I pity the practitioners as well as the academics who have to make sense of our judgments in difficult cases”.
I believe that the uncertainty coming from the courts will result in claims that try to push the boundaries of the control tests. However, I expect that the courts will remain cautious and take a firm stance when they are confronted with any ambitious secondary victim claims in order to prevent the flood gates from opening.