Secondary victims—the developing case law

Secondary victims—the developing case law

42755114_xlThis an exclusive blog post based on a Lexis®PSL Practice Note on the developing case law around secondary victims. It has been produced in partnership with Andrew Wilson.


The Court of Appeal has, in the years since the House of Lords’ Alcock judgment, been required to explore the limits of the event and its immediate aftermath.

In Taylorson v Shieldness Produce Ltd, a14-year-old boy suffered very severe head injuries when dragged under an HGV. His parents were not present at the accident but learned of it, very soon after it occurred, when telephoned and then visited by the police. The parents drove to the hospital to which their son had been taken but when they arrived were told that he was being transferred on to another hospital. They followed the ambulance to the second hospital and on arrival the boy’s mother saw her son’s feet as she passed the ambulance. Inside the hospital, the son passed his parents as he was wheeled to the intensive care unit. The mother saw blood on her son’s face while the father saw a hand hanging out. Following treatment and around eight or nine hours after the accident, the father saw his son’s face bloody and bruised and a tube attached to his head. The day after the accident, both mother and father saw their son unconscious. Three days after the accident, the father gave consent for the life support machine to be switched off.

The Court of Appeal held that what the parents had witnessed was not the immediate aftermath of the accident. McCowan LJ felt that a finding of proximity would constitute ‘a very considerable extension of the law as laid down in Alcock’.

In the case of Walters v North Glamorgan NHS Trust the hospital had failed to diagnose a baby’s acute hepatitis. The baby suffered a major epileptic fit and then deteriorated over the next 36 hours till it died. The Court of Appeal held that there was a ‘shock’ in a single traumatic event which had caused the mother to suffer psychiatric injury. Ward LJ stated (at para 34) that the word ‘event’ had a wide meaning, and that defining whether something forms part of an event:

'…is a matter of judgment from case to case depending on the facts and circumstances of each case.'

In Walters the event in question was:

'…a seamless tale…played out over a period of 36 hours.'

Likewise, notwithstanding the time period in question, the court held that the claimant’s appreciation of events was sudden and shocking, rather than being a more gradual assault on her mind over a period of time (in which case her claim would have failed on the authority of Alcock).

In Galli-Atkinson v Seghal—the claimant’s 16-year-old daughter was killed when struck by a car which had mounted the kerb. The girl was pronounced dead around 30 minutes after the accident. The mother (the claimant) arrived at the scene, searching for her daughter, about an hour after the accident. At the police cordon, she was advised that her daughter had died. There was no evidence that, while at the scene, she saw any evidence of what had happened to her daughter, whose body had been removed. The claimant was taken to the mortuary, where she held the body. Her daughter was horrifically injured, and although some of those injuries were covered, her face and head, which were disfigured, were seen.

The claim initially failed on the basis that the claimant did not satisfy all of the Alcock control mechanisms, but then succeeded in the Court of Appeal with the court stating that in this case ‘the immediate aftermath…extended from the moment of the accident until the moment that the [claimant] left the mortuary’. If the psychiatric evidence showed that the whole sequence of events played a part in producing the injury, the claim should succeed.

In Taylor v A Novo the claimant was the adult daughter of the victim of an accident at work. The claimant did not witness that accident but did witness her mother’s death three weeks later from a blood clot resulting from injuries suffered in the accident. The Court of Appeal held that the daughter could not be classed as a secondary victim as she was not proximate to the relevant event: Taylor v A Novo [2013] All ER (D) 167 (Mar).

In Wild v Southend Hospital NHS Trust, the claimant was in hospital with his wife on the due date for delivery when it was discovered that the baby had died in the womb. The hospital admitted both negligence in the failure to monitor the growth rate of the foetus during pregnancy and causation, in that but for this failure, labour would have been induced at an early enough point for the baby to be born alive. However, the claim failed on the basis that the retrospective discovery that the baby had died in the womb could not satisfy the test of witnessing horrific events leading to or surrounding serious injury or death.

Brock v Northampton General Hospital NHS Trust was concerned with a claim by parents of a patient who died from a brain haemorrhage after an intracranial pressure monitoring bolt was inserted too far into her brain. The judge found that nothing traumatic had occurred at the time of the negligent insertion, while the parents did not allege that their psychiatric injury was caused by anything witnessed at the bedside. The judge held that there was no traumatic experience such as to found liability.

Berisha v Stone Superstore Ltd, —the claimant was informed by police that her partner had suffered serious injury in an accident at work. When she arrived in hospital five hours after the accident, her partner was on a life support machine, as he had suffered a severe brain injury. She was then with him by his bedside for the next 36 hours until she agreed to the life support machine being switched off. The claim was struck out on the defendant’s application as there was no prospect of establishing that the claimant witnessed the immediate aftermath of the accident. She was unable to identify a single drawn out event or seamless tale.

Mechanism of injury: 'a sudden and horrifying event'?

There is no prescriptive list of the types of event that might qualify. A series of shocking components that form part of a group, each of which contribute to a claimant’s psychiatric injury, can be considered an event.

Shorter v Surrey & Sussex NHS Healthcare Trust—the claimant was the sister of a patient of the trust who had died as a result of the trust’s admitted negligence, in failing to accurately report a CT scan of the brain and in thereby delaying diagnosis of a subarachnoid haemorrhage caused by a cerebral aneurysm. The timeline had been as follows:

  • 5 May 2009—claimant’s sister collapsed at home and was rushed to East Surrey Hospital, where she underwent a CT scan, which was reported to be normal. She had no further investigations and no explanation for her collapse was found. She was discharged home. (The consultant neurologist at East Surrey had had reservations about the scan and had arranged for it to be reviewed by a neuroradiologist)
  • 12 May 2009—the neuroradiologist finally undertook the review and recognised that there was evidence of a bleed. The claimant’s sister was called back immediately to East Surrey and the intention was to transfer her urgently to St George’s Hospital in London. In the event, the transfer did not take place until about midnight.
  • 13 May 2009—after suffering a series of seizures in the early hours the claimant’s sister was placed on life support and intubated but died at 12.45.

NOTE: there was evidence adduced as to the closeness of the relationship between the claimant and her sister. The defendant accepted ultimately that the closeness of their relationship brought the claimant within the class of persons eligible to bring a claim.

The claimant sought to establish that there had been a 'seamless single horrendous event' over two days, starting on the morning on which the bleed was correctly diagnosed, her distress being compounded by the claimant’s own professional experience as a senior nurse in neuro-intensive care.

The judge found that the claimant became aware of the trust’s negligence and its repercussions when she received a telephone call from her sister’s husband on the morning of 12 May. At that point the claimant did not have 'physical proximity' to events at the hospital. Furthermore, the judge found that when the claimant attended the accident and emergency department that morning her sister’s condition was not such that it could be described as a 'horrifying event' or could cause a 'violent agitation to the mind'.

The judge found that there had been a gradual accumulation of different events causing assaults on her mind resulting in her psychiatric injury, as opposed to the ‘seamless tale’ as in Walters.

In Liverpool Woman's Hospital NHS Foundation Trust v Ronayne the Court of Appeal considered whether a husband who suffered mental illness as a result of seeing his wife in a shocking condition following a hysterectomy operation could claim damages as a secondary victim. The husband's claim failed because, despite the claimant being able to prove he was genuinely shocked and distressed after seeing his wife, he was unable to:

  • identify a specific and extreme event
  • prove the event had a sufficiently sudden and shocking nature, and
  • evidence that the sudden and shocking event had caused his psychiatric illness

Further Guidance

Lexis®PSL Personal Injury subscribers enjoy a wealth of expert analysis. For further guidance on the establishing a secondary victim, see Practice Note: Secondary victims.

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