We have been representing two clients who suffered post-traumatic stress disorders (PTSD) from witnessing the “immediate aftermath” of their son/brother passing away tragically in a road traffic accident suffering severe and fatal injuries.
Our clients were secondary victims as they were not injured in the accident. In order to succeed with their claims we had to show that psychiatric injury was a foreseeable consequence, that a person with the normal standard of susceptibility to shocking events would have suffered a psychiatric injury from witnessing such events. The case of Alcock v Chief Constable of South Yorkshire Police, sets down further control tests that must be satisfied to succeed as a secondary victim.
First: Proof of relationship
There needs to be a close tie of love and affection between the secondary victim and the immediate victim. This has not been strictly defined. Any relationship might have involve sufficiently close ties of love and affection to qualify. There is a presumption of a sufficiently close tie for spouses, parents and children. Otherwise the burden lies on the person asserting that they have such a sufficiently close tie to prove it.
Second: Time and space
The claimant must be close in time and space to the immediate aftermath of an event. What constitutes closeness in time and space is not certain. There are several cases on this point going for and against claimants. For example in Alcock it did not suffice that persons witnessed the event unfolding on television and then went to hospitals later to identify the deceased. In Taylorson v Shieldness Produce Ltd a claim was also rejected where parents were told of the serious injury to their son, followed an ambulance to hospital and then stayed with their son for two days before switching off the life support machine. But other cases have succeeded and for example in Walters v North Glamorgan NHS Trust, a mother came across a police cordon when looking for her daughter, who had been run over, she was taken to hospital and there identified the body. The Court held that the ‘immediate aftermath’ included a number of things and extended from the moment of accident until the time the mother left the mortuary.
Third: Seeing or hearing the incident
Such injury must come about through a secondary victim’s own unaided senses, particularly through sight and/or sound. What is required is ‘the sudden appreciation by sight or sound of a horrifying event which violently agitates the mind’.
In order to succeed a claimant must suffer a recognised psychiatric condition. That is, there must be a diagnosis of an accepted condition, mere distress is not sufficient.
We have managed to establish that both our clients were secondary victims and both claims settled out of court after court proceedings were issued.