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In our recent Motor webinar, Lorien Helm and Carla Shottin explored what the recent Supreme Court decision on secondary victims means, in the context of road traffic collisions.
Whilst the conjoined appeals concerned whether a defendant can be held liable for psychiatric injury suffered by a close relative of a primary victim of clinical negligence, the Supreme Court also took the opportunity to review the criteria for secondary victim claims overall. Criteria which were originally established in the case of Alcock v Chief Constable of South Yorkshire Police [1992], and later evolved in subsequent case law. An evolution that has in many ways removed the clarity that the original criteria provided.
The Supreme Court judgment has helpfully re-established and clarified the requirements that must be met to succeed in a secondary victim claim.
Sudden shock
The Court held that the notion of having to cause sudden shock to a person, is no longer necessary. With regard to causation, the Court observed at paragraph 74 of the judgment that “it is sufficient for a claimant who was present at the scene (or its immediate aftermath) in which a loved one was killed, injured or imperilled, to show that there is a causal connection between witnessing the event and the illness suffered”. It is not necessary, even if it is possible, to demonstrate the neurological or psychological mechanism by which the illness came about.
‘Horrifying event’
As set out at paragraph 75 of the judgment, the Court could see “no justification for super-imposing an additional separate requirement that the event witnessed by the claimant was “horrifying””. Describing the notion, which had developed in case law subsequent to Alcock, as a test that is “unavoidably subjective” – in that it is wholly subjective, and therefore not necessary. It is only necessary for the claimant to show that it was reasonably foreseeable that the defendant’s negligence might cause them injury.
One or separate events?
The Court recognised (at paragraph 79 of the judgment) that “the emergence of a legal test of whether what the claimant had witnessed should be regarded as one or several separate events” was a further “unsatisfactory development” that had emerged subsequent to Alcock.
The Court has clarified the position, observing that a claimant must have witnessed the accident or its immediate aftermath, explaining that “the relevant event is the accident”, it “is not a later consequence of the accident”.
Proximity in time to the negligent act or omission
The accident (event) does not have to be close in time to the negligence or omission. What matters is the witnessing of the consequences of the negligence.
First manifestation of damage
Agreeing with the Court of Appeal, the Supreme Court concluded at paragraph 103 of the judgment “that it is illogical to make the liability of a defendant for injury caused to a secondary victim depend on whether the event witnessed by the claimant was or was not the “first manifestation of damage” to the primary victim”.
Comment
The judgment reinforces the notion that secondary victim claims are an outlier in respect of the principle of negligence, and as such, should be limited in nature. There is a sense that the extensions and development of the criteria since Alcock, meant the requirements had become unwieldly, and gave rise to uncertainty.
When dealing with claims for secondary victims it is important to carefully consider all aspects of the test in a logical way. In re-establishing the narrower criteria in Alcock the judgment has clarified that there is no requirement for the accident or incident to be a ‘horrifying event’, however, there remains an objective test to be met. Namely, was it reasonably foreseeable that a person of normal susceptibility would suffer some psychiatric illness.
United Kingdom