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A woman stares longingly out to see emphasising the impact a brain injury can have on secondary victims

When a tragic accident occurs, there is a possibility that not only the directly injured individual has a claim but also someone who has witnessed it.

What’s the difference between primary and secondary victims?

In the aftermath of the tragic Hillsborough football disaster in 1989, the law was tested by individuals who were injured through seeing their loved ones die. The court made a distinction between ‘primary’ and ‘secondary victims’.

A primary victim is an individual who has suffered injury as a direct result of the fault of another. A primary victim can recover compensation for unforeseeable psychiatric illness as long as some sort of physical injury was reasonably foreseeable.

Secondary victims are those who witness the death or injury of another person. It is a developing area of law, and due to the potential for large and varied claims resulting from a single incident, e.g. by viewing the circumstances on TV or the internet, the courts have imposed controls on who can claim compensation and in what circumstances.

Can I claim compensation as a secondary victim?

Currently, for a secondary victim to succeed in a claim for compensation, they must demonstrate the following to the court:

  1. A close tie of love and affection with the primary victim, i.e. something akin to a spouse, parent or child relationship;
  2. A secondary victim must have been personally present or in the immediate vicinity and witnessed the event or the immediate aftermath (they must be close in time and space);
  3. They must have had direct perception of the event and through unaided senses, i.e. not on the TV or internet;
  4. The psychological injury must have been induced by a shocking event;
  5. They must have suffered recognised psychiatric injury such as post-traumatic stress disorder, i.e. more than bereavement or injury to feelings; and
  6. Psychiatric injury must have been a reasonable foreseeable consequence of the ‘fault’ event i.e. an average person might suffer injury in those circumstances.

In the case of Taylor v A Novo (UK) Ltd, the Claimant’s mother was injured when a stack of boards fell on her at work. She appeared to recover but three weeks later collapsed and died in front of her daughter, who subsequently suffered Post Traumatic Stress Disorder (PTSD) as a result. The daughter’s clam failed as she was not ‘close’ in space and time to the accident or its immediate aftermath.

In Paul v Wolverhampton Hospital NHS Trust, two daughters witnessed the death of their father from a heart attack which took place 14 months after the NHS had failed to diagnose his cardiac problems. In this, case the daughters’ claim failed as the judge found there was no proximity to the relevant negligent event but only the consequence of the negligence.

Cases where mothers have sustained psychiatric injury as a result of a negligent injury to their babies before birth have, however, succeeded on the basis that, for legal purposes, before birth, the mother and child are seen as one legal entity. The mother therefore succeeds as a primary victim.

What about brain injury cases? Can secondary victims claim for brain injury cases?

In an earlier case of North Glamorgan NHS Trust v Walters, the Court of Appeal considered whether a mother was able to recover damages for psychiatric injury after witnessing the death of her child. The hospital had failed to diagnose the baby with acute hepatitis and the mother awoke to witness her son having an epileptic fit leading to coma. She was later told that her son had been severely brain damaged and would have no quality of life. She agreed to terminate life support and her son passed away in her arms.

The Court took a wide view of what constituted the “event” and ruled that the period from the fit until the death 36 hours later could be classed as a single horrifying event during which the mother received successive blows to her nervous system and as such, she qualified as a secondary victim. The Judge also concluded that the mother’s experience of witnessing the fit, being informed that her son was brain damaged and being advised to switch off the life support was sudden rather than gradual, and left a devastating impact at the time of their occurrence.

How can we help?

Whether you are considering making a claim or need advice regarding brain injuries, the Brain Injury Group provides a gateway to the support you need.

This article has been written in conjunction with Myfanwy Buckeridge

Myfanwy Buckeridge is a Senior Associate at Brain Injury Group member firm, Barcan+Kirby. She specialises in serious injury claims including head injuries, spinal injuries and fatal accidents. She has a particular interest in post-traumatic stress disorder (PTSD).

About Brain Injury Group members Barcan+Kirby

Barcan+Kirby have multiple offices in Bristol. Their brain injury team assist clients across England and Wales, providing a friendly and approachable service to support claimants. For more information, find Barcan+Kirby in our Find a brain injury Solicitor section https://www.braininjurygroup.co.uk/find-brain-injury-solicitor/south-west/barcankirby-queen-square-bristol/