Current English v Scottish perception of secondary victims in damages actions for psychiatric injuries

A recent decision of the Court of Appeal has confirmed that the English view on secondary victims claiming for psychiatric damages continues to be considered in the same way as in Scotland.

Secondary Victims

The cases rely on the distinction between a "primary victim"– someone who was directly involved in the incident– versus a "secondary victim", who suffered psychiatric distress by being a witness to it. The 1992 House of Lords decision in Alcock v Chief Constable of South Yorkshire, a case raised by relatives of victims of the Hillsborough disaster, sets out the test for assessing those who suffer psychiatric damage as being "primary" or "secondary" victims. A secondary victim would only be able to succeed if they could establish that the psychiatric harm caused was reasonably foreseeable, that what they witnessed was close in time and proximity to the incident, and that they had a close tie of love and affection to the primary victim. The secondary victim, per Alcock, must have suffered "nervous shock", which involves "the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system." There must be a sudden appreciation by direct sight or sound of a horrifying event, or the immediate aftermath of such an event. Therefore conditions which are accumulated over a period time (even relatively short periods), as in Young v MacVean [2016] SC 135, are excluded from secondary victim claims. It is worth remembering the distinction in medical negligence claims where in certain circumstances a medical professional may be held to owe a duty of care to a close relative.

Paul, Polmear and Purchase

The recent Court of Appeal decision related to the three conjoined appeals of Paul, Polmear and Purchase. All claimed to have suffered psychiatric injury after witnessing distressing events involving a close relative. In the Paul case, Mr Paul's two daughters witnessed him suffering a heart attack which had been caused by the defendant failing to perform an x-ray that would have diagnosed and allowed them to successfully treat the heart condition he had. In Polmear, a 7-year-old girl had been having episodes of not being able to breathe and turning blue. After repeated visits to the GP and hospital over the course of nearly a year without any diagnosis, she had a further episode during which she collapsed and was unable to be resuscitated. This was witnessed by her parents. The defendant admitted her condition should have been diagnosed several months prior to her death. In Purchase, the claimant's 20-year-old daughter left her a voicemail as she took her final breaths, her severe pneumonia having gone incorrectly diagnosed for months. The mother went to see her daughter 5 minutes later, after she had died and attempted resuscitation which was unsuccessful.

Decision

All three appeals concerned the deaths of patients who died months after clinical errors had been made. The issue was whether the relatives of those patients had the necessary legal proximity to the breach of duty by the defendant. The first two appeals, Paul and Polmear, were allowed on the basis that their deaths could constitute a relevant event given the claimants had been present at the time of the deaths. Purchase was dismissed because the horrific event that caused the mother's psychiatric injury was removed in time and place from the original negligence, her having not witnessed her daughter's death but seeing her immediately afterwards. The decisions were based on an interpretation of Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194, that the psychiatric injury could not be caused by a separate horrific event removed in time from the original negligence, accident or a first horrific event, leading to the failure of the Purchase claim.

Scottish position

In Scotland the issue was most recently considered by the court in Weddle v Glasgow City Council [2021] SAC (Civ) 1 in which a witness of the 2014 Glasgow bin lorry crash failed to overturn a decision that said she did not qualify as a primary victim of the crash because she had not suffered fear of physical injury. Although she was in the vicinity of the crash the bin lorry was travelling slowly away from her. She was always at least 12 metres away from it. Although she had suffered significant psychological damage as a result of the crash, it had not arisen from a reasonable fear of physical harm and therefore she did not qualify as a primary victim. She could not be classed as a secondary victim because she did not witness the death of a close family member.

Another recent Scottish clinical negligence case was Spark v Western Isles National Health Service [2019] 7 WLUK 592 which saw the claim by the secondary victim dismissed as the only basis for holding that a duty of care was owed to her was that she was the wife of the primary victim. This was not found to be sufficient for recovery of any damages.

Summary

Both north and south of the border the bar for secondary victims to recover damages for pure psychiatric injury is high. Secondary victims must be present at the horrific event but other factors are also very important – including the closeness of their relationship to the primary victim.