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Court of Appeal look at secondary victims

This week the Court of Appeal considered the issue of whether relatives in three separate cases, could claim damages after they witnessed the shocking death of a close relative when the NHS failed to diagnose their loved ones life-threatening condition. Paul v Royal Wolverhampton NHS Foundation Trust

The court considered this issue in the case of Alcock v The Chief Constable of South Yorkshire Police following the Hillsborough disaster. In that case a number of relatives of the deceased brought negligence claims for psychiatric harm, after learning about the events by television or radio. The court set out several criteria the claimant would have to establish before they could seek damages for the psychiatric injuries caused.

• There had to be close ties of love and affection.
• The injury caused had to arise from a sudden and unexpected shock.
• They had to be personally present at the scene or witness the immediate aftermath.
• The injury had to be caused as a result of witnessing the death, extreme danger or injury to the primary victim.

The claimants in this week's case arose when the children of the deceased witnessed the death their father after the hospital failed to perform an angiography a few years earlier. That would have revealed coronary artery disease, which could have been treated successfully.

The second case involved a seven-year-old with breathing difficulties. She was seen by her GP in 2014 then referred to a paediatrician. After tests it was concluded her symptoms were related to exertion and were physiological. She was seen again in April 2015 and referred to the paediatrician. The hospital subsequently admitted that they should have diagnosed her condition by January 2015. She collapsed at school and died on the 1st of July 2015.

The third case involved a 20-year-old, who died as a result of pneumonia and pulmonary abscesses.

In January 2013 she visited her GP on several occasions. It was alleged the GP failed to diagnose pneumonia on the 4th of April. On the 7th of April she was found lying on her bed, motionless having passed away.

On each occasion the family witnessed these horrifying events and sustained a psychiatric injury.

The defendant succeeded in arguing that the deaths in each of these cases were separated in space and time from the negligence. In other words, the failure to diagnose a condition didn't lead to any immediate and horrific death, the death occurred sometime later.

Whilst this decision restricts the possibility of secondary victims pursuing claims for psychiatric harm. Any individual who has had the misfortune witness the shocking and horrific loss of a loved one may well still have a claim. There are many examples of such cases involving road traffic accidents and accidents at work where such claims have been successful.

In each of the cases described above, there may still be claims by the deceased's estate arising from any pain suffering that they endured from the date of the negligence until there untimely death. The dependants of those individuals and parents of children under the age of may also have claims for bereavement, fuel expenses, loss of love and affection and income.

If you have been unfortunate enough to be the victim of such incident, please contact one of the team for some no obligation, no-win no fee advice.

For more information contact John Bennett in our Personal Injury department via email or phone on 01254 872111. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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