Psychiatric injury and secondary victims- no extension of the Alcock rule

The High Court has dismissed a claim by a secondary victim for psychiatric injury on the basis that the control mechanisms for secondary victims derived from Alcock were not satisfied.

In Alcock v Chief Constable of South Yorkshire Police, which arose out of the Hillsborough disaster, as a control mechanism for limiting the class of individuals who could recover damages, the court divided claimants into two categories:

Primary victims -those directly involved in sufficiently shocking (usually life threatening) situations.
Secondary victims- those not directly threatened, often close family members of those injured or killed.

To qualify as a secondary victim a claimant 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.

Judges are conscious about extending the secondary victim category and opening the floodgates to nervous shock claims.

In the case of Wild and another v Southend University Hospital NHS Foundation Trust, the claimant’s wife had been under the antenatal care of a hospital managed by the defendant trust. There were complications with the pregnancy and the claimant was present when the doctors confirmed that the child had died in the womb. He was also present the following day for the delivery of the still-born baby. The defendant trust admitted negligence in relation to the claimant’s wife and settled her claim. However, it contested the claim of Mr Wild as a secondary victim.

The High Court dismissed his claim on the basis that he did not satisfy the Alcock test for secondary victims:

It was not enough for the claimant to have been a witness to the manifestation of the consequences of the defendant’s negligence, i.e. the retrospective discovery that the baby had died in the womb.
This did not equate with actually witnessing a horrific event leading to a death or a serious injury.

The judge also applied the more recent case of Taylor v Novo. In Taylor, The claimant’s mother was injured at her workplace through the negligence of a fellow employee. She had apparently made a good recovery, but approximately three weeks later, she suddenly and unexpectedly collapsed and died at home. While her daughter did not witness the accident, she did witness her mother’s death and suffered post-traumatic stress disorder as a consequence. She pursued a claim for damages against her mother’s former employer.

Lord Dyson MR gave the lead judgment in a unanimous decision of the Court of Appeal. He accepted that the categorisation of primary and secondary victims is not closed, and the boundaries of proximity should be drawn as far as is possible to ‘reflect what the ordinary, reasonable person would regard as acceptable’. He concluded that it would be incomprehensible to allow the claimant to recover for witnessing the death of her mother three weeks after an accident, when if Mrs Taylor had died at the time of the accident but the claimant did not come across the immediate aftermath, she would not recover damages.

It appears that Wild is the first case to apply Taylor in the clinical negligence context, and it would seem that there is now a requirement that a secondary victim is present at the first manifestation of the injuries sustained by the primary victim (or the immediate aftermath) as a result of a negligent act or omission and that this manifestation can be construed as a horrifying ‘event’ capable of being witnessed.

The High Court reinforced this requirement in the case of Brock & Anor v Northampton General Hospital NHS Trust & Anor . While it was accepted that the claimants had both suffered psychiatric problems brought about by their daughter’s death, the court dismissed their claim for nervous shock on the basis that what they witnessed was not ‘wholly exceptional’.

Defendant representatives and insurers will be pleased to note this recent series of nervous shock cases has put the brakes on attempts to extend the boundaries of secondary victim claims.

Future cases are likely to focus on pin pointing the exact moment when the effect of negligence first manifested itself. In the case of clinical negligence claims this can be a tricky task for the courts to undertake, requiring extensive input from medical experts.

With the current funding issues will any future clinical negligence cases risk running the secondary victim argument to trial?

Further Guidance

We posted an article in May 2016 on the developing case law for secondary victims. Lexis®PSL Personal Injury subscribers enjoy a wealth of expert analysis and for further guidance on the establishing a secondary victim, see Practice Note: Secondary victims.