Secondary Victim Claims

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A 2024 Supreme Court Judgment in Paul and another v Royal Wolverhampton NHS Trust has to some extent clarified the law in relation to claims made by ‘secondary victims’ – those who are not directly involved in an incident (a ‘primary’ victim) but suffer injury by witnessing it. Here is a summary of the key issues:

What are secondary victim claims?

Usually personal injury claims are brought by the person who has suffered the actual harm. Such persons are referred to as “primary victims”. However, since the Hillsborough stadium disaster (1987) litigation and the ruling in Alcock and other cases, it has been possible for the close relatives of those who have suffered harm to bring a separate claim for the psychological distress of what they have witnessed. Such persons are referred to as “Secondary Victims”. Over the past 40 years the courts have used strict criteria to control such claims - anxious that, for reasons of public policy, the number of such cases is limited to relatively exceptional cases. Despite the ruling in Paul, secondary victims can still pursue valid compensation claims, as explained below.

Who can bring a secondary victim claim?

The Hillsborough stadium disaster litigation and now the Supreme Court Judgment in the Paul case have confirmed that the person bringing a claim must:

Have witnessed an accident or its immediate aftermath.
Have a close tie of love and affection to the ‘primary’ victim of the accident. Such ties may be presumed within some relationships, including those between spouses, parents and children. Otherwise, the tie must be proven with evidence.
Have sustained a medically recognisable psychiatric injury which was caused by witnessing the accident or its aftermath, and which it was reasonably foreseeable could have resulted from witnessing the accident.

The ‘primary’ victim does not necessarily have to have suffered injury or death for a secondary victim to have a claim. It may be sufficient if they reasonably perceived the threat of injury or death.

Can I bring a claim for witnessing the death of, or harm to, a loved one from medical negligence?

Following the Supreme Court’s judgment, the answer to this question in the majority of cases will be No.

The Court has stated that the duty owed by a medical practitioner to a patient does not extend to protecting members of the patient’s close family from ‘exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative’.

The Supreme Court also made clear that in order to bring a successful claim the secondary victim has to have witnessed an ‘accident’. This was defined as ‘an unexpected and unintended event which causes injury (or a risk of injury) to a victim by violent external means’.

In most medical negligence cases the event (or its aftermath) witnessed by the ‘secondary victim’ would generally not be classed as an accident, but instead classed as the suffering or death of the relative from illness, albeit caused by negligence. The Court used the term ‘medical crisis’ for such scenarios.

Nevertheless, the Court did not state definitively that no claims for secondary victims relating to medical negligence would ever be possible. An example was given of a relative witnessing an acute reaction induced by a doctor injecting a wrong dosage or drug. This could arguably be seen as an accident. The Court left the decision as to whether such a case would give rise to a claim to be considered on the individual facts if and when such a case is brought before the Court.

Therefore, there may be scope in particular circumstances for a claim to be made if a medical event is witnessed that could be defined as an accident. However, there is clearly a lack of certainty around this issue and the limits on the duty of a doctor set out by the Supreme Court, and summarised above, appear likely to be a significant hurdle.

If you consider that you may have a claim then it is important to speak to a specialist solicitor. Despite the Supreme Court’s judgment in the Paul case, the law in this area remains complicated. A key issue to consider in all cases is who is a ‘primary’ victim. For example, where there is an injury to a baby at birth, depending on the circumstances, a mother may be a ‘primary’ rather than a ‘secondary’ victim.

Irrespective of the Paul decision, there is no fundamental change in the ability to bring secondary victim claims in a personal injury context where an accident has been witnessed.

If you would like to speak to us about a potential claim for clinical negligence or personal injury please contact our specialist team for a no obligation discussion.