Secondary Victims: A shift since Alcock

The Supreme Court has recently tightened the control mechanisms used in secondary victim cases.

A secondary victim can be defined as an individual who witnesses the injury of another person and suffers psychological injury as a result.

The case of Alcock v Chief Constable of the South Yorkshire Police [1992] arose from the Hillsborough stadium disaster in which Alcock and several other claimants sought to recover damages from the Police because of the trauma they suffered from witnessing their relatives die at the stadium. The police were negligent for allowing too many supporters into the stadium, resulting in the crush. The caselaw set stringent guidelines which must be fulfilled for a secondary victim to claim damages.

Alcock Control Mechanisms:

• Experiencing an injury (psychological trauma) which arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim

• An injury that arose from the sudden and unexpected shock to the victim's nervous system

• There being a relationship of 'close ties of love and affection' between the primary and secondary victim

• The victim must be present at the scene of the accident or have witnessed the aftermath shortly afterwards

• The injury was reasonably foreseeable.

However, the Alcock control mechanisms have been tightened up following the recent Supreme Court cases of Paul and another v Royal Wolverhampton NHS Trust [2023], Polmear and another v Royal Cornwall Hospitals NHS Trust [2023], and Purchase v Ahmed [2023]. As you can see from the cases detailed below, the common denominator is that in each case there was a delay in time between when the breach of duty occurred and the secondary victims witnessing the death of the primary victim.

Paul and another v Royal Wolverhampton NHS Trust [2023]:

In Paul, the primary victim (Mr Paul) suffered a heart attack in 2014 which was witnessed by his two daughters, the secondary victims. The breach of duty of care in this case was a failure to perform a coronary angiography in 2012 when Mr Paul was admitted to hospital, which would have revealed his coronary artery disease.

Polmear and another v Royal Cornwall Hospitals NHS Trust [2023]:

The two secondary victims, the primary victim's mother and father witnessed their daughter Esme lying on the floor dying and paramedics trying to resuscitate her in July 2015. Esme died of pulmonary veno-occlusive disease because of the GP and hospital's failure to detect her condition in 2014.

Purchase v Ahmed [2023]:

The secondary victim found her daughter lying dead at home on the 7th of April 2013 and attempted to resuscitate her daughter. The deceased had been to the GP on several occasions since January 2013 with symptoms of acute sinusitis. The deceased had presented with severe pneumonia which had not been appropriately assessed and diagnosed on these occasions.

The 'new' control mechanisms:

Since the cases of Paul, Polmear, and Purchase, the Supreme Court has suggested the new criteria for secondary victim cases are:

• The secondary victim must have a close tie of love and affection with the primary victim who has been killed, injured, or imperilled

• The secondary victim must be close to the incident in time and space

• The secondary victim must have perceived the accident themselves

As such, there is no requirement for the secondary victim to experience a sudden and unexpected shock to the nervous system, the event to be horrifying, or for the injury to arise from the first manifestation of damage caused by the negligence.

A problematic approach for non-accident cases?

In cases where an individual sees a family member die in hospital many days after an accident that they did not witness, they will not be able to claim damages as they have not 'perceived' the accident.

The new criteria may be problematic in medical negligence cases as the idea of an 'accident' will not usually apply in these situations. Further, the Supreme Court have not clarified how this will work in medical negligence cases, as a doctor treating a patient has not entered into a doctor patient relationship with any of the patient's family members and therefore, they cannot be deemed responsible for their psychological health. This suggests that it will be difficult for secondary victims to claim damages in medical negligence cases.

If you or your family member has experienced a medical negligence issue as a secondary victim that they would like advice on, feel free to contact a member of our Clinical Negligence Team. We have experience in an array of medical negligence claims, ranging from brain injury to cancer misdiagnosis claims, and would be delighted to assist you with your case.

Find out more about Forbes Solicitors' clinical negligence expertise in this section of our website. Alternatively, give us a call on 0800 037 4625 to discuss your case.