One of my colleagues, Victoria Walne recently posted a blog about proposed changes in the classification of psychiatric injuries. This now includes a wider range of symptoms which means there is potential for more people suffering one of more of the recognised psychiatric conditions following an accident to bring a claim in the absence of any physical injury.
Usually only a person who is directly affected by an accident (known as the “primary victim”) can bring a claim if the accident was caused by the fault a third party. However, in certain circumstances, those who witness the suffering or death of an injured person in the “immediate aftermath” (that is shortly after the accident or death) can also bring a claim against the third party as secondary victims, if they suffer a recognised psychiatric condition which is over and beyond the normal reaction of grief. This is provided they satisfy the various legal tests applied in cases such as O’Brian v McLoughlin and most notably, Alcock v Chief Constable of South Yorkshire which concerned the Hillsborough stadium disaster.
The legal tests to be satisfied by a secondary victim include proving that:-
- Their injury was “reasonably foreseeable” (that such an accident involving the injured person would cause them, the secondary victim to sustain a psychiatric injury);
- They were a close relative and had an emotional relationship with the primary victim (parent/child etc.);
- The injury was caused by “nervous shock” as a result of sudden perception of the death of, or risk of injury to the primary victim; and
- They perceived the death, risk of injury with their own senses that is through sight or hearing of the event or its immediate aftermath.
These criteria are deliberately restrictive, so as to prevent claims from persons unconnected to the injured or deceased person who may have been present at the time of the accident or death or immediately thereafter. Such persons could include passers-by, police officers, fire-fighters or other rescuers who are traumatised and suffer psychiatric injury as a direct consequence of their being at the scene of the accident or immediately after. For instance, in the case of Frost v Chief Constable of South Yorkshire Police, which also related to the Hillsborough disaster, the claims brought by police officers who suffered psychiatric injury failed.
“Nervous shock” claims as secondary victims by family members are difficult, as establishing the onset of a recognised psychiatric condition following the witnessing of death in the “immediate aftermath” is a high hurdle to pass. Many cases have failed over the years due to the inability of secondary victims to prove their presence in the “immediate aftermath” of an accident or death. A recent case was Crystal Taylor v Novo (UK) Ltd. In this case the claimant’s mother was injured in an accident at work when a colleague caused a stack of racking boards to fall on her. Liability was admitted by the mother’s employers and she appeared to be recovering from her injuries. However, a few weeks later, she unexpectedly collapsed and died due to a deep vein thrombosis and pulmonary emboli caused by the accident. The claimant witnessed her mother’s death and suffered post-traumatic stress disorder. She sought to bring a claim against her mother’s employers as a secondary victim and succeeded at first instance, but failed following the defendant’s appeal. The Court of Appeal, whilst accepting the claimant satisfied the four tests mentioned above, did not accept that the defendant could be held liable for her condition. This was because she had not witnessed the accident at work and had not been present in the “immediate aftermath” of that accident. She would not have qualified to bring a claim as a secondary victim had her mother died in that accident. The case in question raised a slightly different issue to those normally involving claims by secondary victims. In this case the issue was whether the death could be the “incident” for which the claimant was present to enable her to bring a claim for the psychiatric injury suffered. It was held that it could not; otherwise it would potentially enable the claimant to bring a claim if her mother had died months or years later as a consequence of the injuries sustained in that accident. This would be “going too far” in the Court of Appeal’s judgement. It was understandably, a very tragic turn of events, but one which did not entitle the claimant to compensation from the defendant.
Bringing claims for psychiatric injury as secondary victims involves overcoming various hurdles; however, there is guidance in the case law to assist those contemplating such claims. If you require legal advice, you should contact our specialist team. The usual three year limitation from date of injury or knowledge would apply to adult claimants.