In this article Kate Campbell-Gunn, Associate Solicitor in our Birmingham Personal Injury & Clinical Negligence Team discusses the difference between primary and secondary victims.
Personal injury law recognises two sorts of victims, primary and secondary victims. A person who is injured or even killed by another’s negligence is a primary victim. In a medical perspective this would be a patient harmed by their medical treatment. However, a primary victim’s immediate family member may become a secondary victim, if they actually witness the negligence and then suffer psychiatric injury.
The law sets down a strict criteria for secondary victim claims:
- It was reasonably foreseeable that a person of normal fortitude would suffer from a psychiatric injury
- The secondary victim has a sufficiently close relationship with the immediate victim
- There was sufficient proximity to the accident &
- The psychiatric illness was caused by shock as the result of the sudden appreciation of a horrifying event.
The case law to date has found against secondary victims claiming psychiatric damage when a prolonged period of time has passed on the basis is does not satisfy the proximity test. However, in the recent case of Paul v Royal Wolverhampton NHS Trust, children of a man misdiagnosed some 14 months prior witnessed his death when out on a shopping trip.
At first instance, the Judge held against them however on appeal it was found that the event was sufficiently shocking to them and caused them to suffer psychiatric injury and as there was a direct link between the negligence and them witnessing the death, they could claim.
Situations where this may occur are:
- A patient is given emergency treatment and on returning to ICU, where their wife is waiting, the wrong injection is administered negligently and causes a fatal allergic reaction. Witnessing that tragic event caused the wife psychological injury who may pursue a claim as a secondary victim.
- A patient is given negligent treatment which causes their condition to deteriorate and possibly death or severe disability. Witnessing a loved one worsen over time may be sufficiently traumatic to trigger a recognised psychiatric disorder.
Birth and Secondary Victims
Secondary victim claims occur more commonly in the labour and delivery suite. Where an expectant Mother or new born baby is injured or sadly dies due to a hospital’s negligence, the consequences are devastating for the whole family.
Often new Mums choose a birthing partner to be with them every step of the way in their labour. This is usually a partner or parent and if they witness a horrifying event leading to their psychological injury, they can become secondary victims.
Kate comments; ‘The case of Paul very much turned on the specific facts and there still exists a strict criteria for establishing a secondary victim claim, however this case goes some way into recognising that, particularly in relation to medical treatment, often there can be some time passed between the negligence and the loss. This allows for more scope when considering secondary victim claims.
Kate has advanced and successfully concluded various secondary victim claims including a claim by a daughter after witnessing her mother shortly after death following a fall from a bed and a claim by two parents and a close aunt in a claim for the mis-diagnosis death of a child from sepsis.
If you have any questions in relation to this article or have any other Personal Injury related queries please contact Kate Campbell Gunn on 0121 733 4314 or email kcampbe[email protected].
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