FAQ's regarding Secondary Victims
Answered by Michelle Green
A primary victim is a person who suffers injury or death as a result of a Defendant’s negligence.
A secondary victim is a person who suffers psychiatric injury as a result of witnessing injury, fear of injury or death of a loved one, who is the primary victim.
Someone who has a close tie of love and affection with the primary victim and witnesses injury, fear of injury or death of their loved one.
There are 5 control tests which have to be met which were decided in a House of Lords case known as Alcock v Chief Constable of South Yorkshire following the Hillsborough Disaster.
They are as follows:-
- The injury was reasonably foreseeable.
- They have to have close ties of love and affection with the injured person (who is known as the primary victim), such as a parent, child or spouse.
- The secondary victim has to witness the accident or the immediate aftermath. You therefore need to be present at the accident or immediately afterwards, as you need to be able to show proximity to the accident in terms of time and space, such as witnessing a car crash.
- The secondary victim has to suffer a recognisable psychiatric injury caused by the Defendant’s negligence. The things to look out for are flashbacks, nightmares, trouble sleeping, unable to work. You should also ask whether the secondary victim is receiving counselling and/or prescribed anti-depressants. Normal grief is not sufficient. Medical evidence will be required to support any psychiatric injury suffered by the Secondary victim.
- The injury was caused by nervous shock as a result of a sudden perception of death or risk of injury to the primary victim. Nervous shock in Alcock was noted as being sudden appreciation by sight or sound of a horrifying event which violently agitates the mind. Being told by a third party is not enough. A secondary victim has to perceive death, injury or risk of injury by sight or sound.
Yes - not all cases succeed as they do not meet all the control tests set out above such as in the case of Taylor v A Novo Ltd 2013. This was a case where the claimant who was the secondary victim’s mother was injured in an accident at work. 3 weeks later the mother developed a pulmonary embolism and died suddenly. The claimant suffered psychiatric injury as a result of witnessing her mother’s death. The claim however failed on the grounds that the claimant was not present at the scene of the accident. There was too much time separating the accident and the sudden death of her mother.
You need to seek legal advice from a lawyer and establish whether you meet the control tests which I have discussed above.
We consider every claim to see whether a conditional fee agreement otherwise known as a no win no fee agreement can be offered to each client, but there are other options which we would discuss at our meeting with you.
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