Secondary victims in medical negligence

October 15, 2016

Until 1992 only someone who had been hurt or killed as a result of someone else’s negligence could make a claim for their injuries (in the event of death the claim being brought by the deceased person’s Estate). That person is called a primary victim.  However, the law changed following the Hillsborough disaster on 15 April 1989, in which 96 people lost their lives and 766 suffered injury. Claims for damages were brought by 166 family members of those who died or were hurt in the disaster, after witnessing the shocking events in various ways.

A selection of the cases were taken to Court, which resulted in the landmark decision of Alcock v Chief Constable of South Yorkshire Police 1992, which give rise to a new breed of Claimant - the secondary victim.  This is someone who, whilst not involved in an accident or incident themselves, either witnessed a shocking event happening to a loved one or saw its immediate aftermath once their loved ones had been hurt or killed.  

Claims involving secondary victims can be difficult to prove. In a case where negligent medical treatment has been given, and since it is already distressing to witness a family member in hospital possibly dying or attached to machines, there must be something much more than the mere sight of this, something exceptional, for a claim to succeed. The event must be sufficiently shocking to result in psychiatric illness or injury. Hearing about the death of a loved one and viewing their body afterwards is not enough to establish a claim as a secondary victim. Even if your loved one dies as a result of negligent treatment, if there is some warning of the death and you have some time to prepare yourself for it, again this will not be enough because the law requires a “sudden shocking event of a horrifying nature” that can be said to have caused the psychiatric injury.

The issue of what is considered such a sufficiently horrific event to establish a claim has been widely discussed by the Courts, but essentially it seems that it has to be something outside the normal range of human experience and the death of a loved one has to be accompanied by wholly exceptional circumstances such that would shock or horrify, for a claim to be successful.

Here at Metcalfes, we have a specialist team who can advise and assist you with these difficult claims. If you would like some advice for you or a family member, whom you believe may have suffered a psychiatric injury as a result of negligent medical treatment resulting in injury or death of a loved one, please contact us on 0117 239 8012 or email us by using the online contact form and we will be happy to discuss your potential claim with you.

References and further reading:

Website content note: This is not legal advice; it is intended to provide information of general interest about current legal issues.

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Secondary victims in medical negligence

Gillian Clark

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