Secondary Victims Claims
14th June 2016
Robert Mills and Jimmy Barber
Back to Basics



The Alcock Control Mechanisms:
(i) A close tie of love or affection. Usually a
marital or parental relationship, although
others remain possible.
(ii) The injury arose from the sudden and
unexpected shock to the Claimant’s nervous
system;


(iii) The Claimant was either personally
present at the scene of the accident or was
in the more or less immediate vicinity and
witnessed the aftermath shortly afterwards;
(iv) The injury suffered arose from
witnessing the death of, extreme danger to,
or injury and discomfort suffered by the
primary victim.
A Close Tie of Love and Affection



Spouses and parents to children are obvious
examples which could fulfil the requirement.
The individuals in question must actually have had
a close relationship.
Relationships should be comparable in closeness
to a positive parent/child relationship.
A Sudden and Unexpected Shock

Clear and obvious cases e.g. seeing a
significant injury caused to a spouse.

Extended shock may also succeed. North
Glamorgan NHS Trust v Walters [2002]
EWCA Civ 1792: The Claimant witnessed
her baby suffering fits over a 36 hour period
before their death.

A court will need to be persuaded that
there is a shock element, rather than a
gradual distressing chain of events which
continues over a long time e.g. watching a
relative die from a disease over days or
weeks.
Proximity to the “Accident”
Two Difficult situations:
First, the damage caused is detached in time
from the secondary victim becoming aware of
it.
When is the “accident”?
Taylor v A Novo [2013] EWCA Civ
194

The Claimant’s mother, was injured in an
accident at work, but after apparently
making a good recovery, collapsed and died
in front of the Claimant as a result of an
embolism.

The Court held that this did not fall within
the Walters exception. It was not a “series
of events” which constituted a shock.

Taylor v Somerset Health Authority [1993] 4
Med LR 34 was relied upon. The key
principle was that there must be a
perception by the Claimant of an event as it
happens. Secondary victims must be present
when the negligence is in the process of
causing damage and this (or its immediate
aftermath) must also be when the shock
would commence in order for a claim to
succeed.

The Claimant in Taylor v A Novo witnessed
a consequence of the accident, not the
accident itself.

The claim failed as there was too great a
time (and indeed a decease in symptoms)
separating the accident and the collapse as
a result of the embolism. The final event
which was witnessed was therefore not part
of the same event where the negligence took
place and (importantly) the loss started.
The Alcock test therefore was failed on the
grounds that the Claimant was not present at
the scene of the “accident”.
A Second Difficult Area for
“Accidents”

The breach of duty on the part of the
Defendant is detached in time from the
damage it causes.

The relevant starting point for an “accident”
and the consequent shock is when the loss
starts to be sustained. The breach can be
separate.

The loss can be witnessed at any point if
sustained over a continuous period, if that
period can be considered as a single event
(Walters).

If there is a break between the damage
starting and the shock of the secondary
victim, the claim will not succeed (Taylor).
Reconciling Walters and Taylor v
A Novo

The court in Walters did not explicitly
consider that the damage might have
started before the 36 hour fit which the
mother witnessed.

The continuity of events between the
damage being caused and the start of the
36 hour period witnessed by the mother,
was not analysed.


If there is such continuity, the fact that the shock
did not occur at either the start of the loss or the
time of the breach, would not prevent recovery.
Caution is advised in basing claims on the Walters
decision. Although in principle this mechanism
remains open, practitioners should have regard to
the Ronayne decision (below) for the most recent
guidance.
A Tactic for Claimants

Michael Kent QC in Wild made the following
observation:

‘It seem unlikely that the point about the baby in
Walters having already been damaged and
therefore having accrued a cause of action being
overlooked. But it may be that this was a treatable
condition which could effectively be ignored in a
history where the main insult …
… and inevitability of death was the result of the
brain damage caused by the seizure. Thus the fit
could be treated as the beginning of the relevant
event.’
Rather than attempting to stretch the “accident” or
“event” from the start of any damage to the end of
the 36 hour period, Michael Kent QC simply delayed
the start of the damage and therefore the accident.
“Witnessing”



A further example of vague Alcock
language.
The secondary victim has to see or hear the
horrific event or its immediate aftermath to
succeed in his claim.
If a party would not otherwise know what
he is experiencing but is informed by a third
party, this may not prevent recovery, if the
event is sufficiently horrifying.

In Walters, Ward LJ held:

‘The distinction in the authorities is between the
case where the claim is founded upon “merely
being informed of, or reading, or hearing about
the accident” and directly perceiving by sight or
sounds the relevant events. Information given as
the events unfold before one’s eyes is part of the
circumstances of the case to which the court is
entitled to have regard.’

Arguments can be raised by Defendants as
to whether a “horrifying event” is
experienced in such scenarios - if there is
nothing horrifying to see.

This will have to be resolved on a case by
case basis but it seems that claims could
succeed in this way.
The Primary and Secondary
Victims in Stillbirth Cases

The law is now well-established that unborn
children are not persons for legal purposes.
They therefore cannot be primary victims.

Damage done to the unborn child counts as
damage done to the mother.

In terms of a father’s claim for secondary victim
status in the case of stillbirth, even if his concern is
largely or entirely for the unborn child, this will
not prevent recovery, as in the law’s eyes his
concern is for a part of the mother - Wild and
another v Southend University Hospital NHS
Foundation Trust [2014] All ER (D) 46 (Dec) at
paragraphs 21 and 22 of the judgment.

Note that a stillbirth secondary victim claim
can succeed in these scenarios, if the father
is told what is happening (by a medical
professional for example) as it occurs, while
he is present, which causes the shock.
When will Stillbirth Secondary
Victim Claims Succeed?



A father will only be able to recover when he
“witnesses” in the defined sense, the harm caused
to his baby. This leaves open the following
relatively narrow possibilities of recovery:
From negligence at birth when the father can see
the damage being sustained.
(Tredget and Tredget v Bexley HA [1994] 5
Med LR 178)

There also seems to be the possibility of
negligence earlier in pregnancy which
causes damage to the baby at the time and
the father is aware at that time that
damage is being caused as he witnesses the
negligent event.

There may be a possibility of negligence at
an earlier stage of pregnancy which is still in
the process of causing injury/death to the
baby at the time of birth (and so in effect
the accident is continuing - Walters) when
the father is a witness.

It seems that a relatively short time between
the start of damage (and therefore the start
of the “accident”) and the birth will be
important here along with continuity and
consistency of damage causation.

Defendants will likely rely on the need for
the shock to be caused in the immediate
aftermath of the accident and try to limit
the “accident” itself to the initial negligence
and its effects, not the on-going damage.

One scenario where a secondary victim claim will
clearly not succeed, as Wild shows, is where
negligence causes the death of a baby during
pregnancy and then at a later point (not in the
immediate aftermath), the father discovers that
the baby has died and experiences shock. Here by
all accounts the father has not witnessed “the
accident” as the damage was long over. He has
witnessed a consequence and the claim will not
succeed.

Claimants will likely continue to quote the
thoughts of Clarke LJ in Sion v Hampstead Health
Authority [1994] EWCA Civ 26: ‘It is too late to go
back on the control mechanisms stated in
Alcock, I do not think that those mechanisms
should be applied too rigidly or mechanistically.’

However, recent authority has been anything but
flexible for claimants.
Recent case law


Shorter v Surrey and Sussex Healthcare
NHS Trust [2015] EWHC 614 (QB), Swift J
Facts: The Trust admitted breach of duty in
failing to report accurately a CT scan of the
claimant’s sister’s brain, delaying diagnosis
of subarachnoid haemorrhage caused by a
cerebral aneurysm, which caused her death.
Shorter v Surrey and Sussex
Healthcare NHS Trust




Timeline
05.05.09: C’s sister collapses at home. Rushed to
hospital. CT scan reported as normal. Discharged
home.
12.05.09: Neurologist at hospital reviews scan,
diagnoses bleed. C’s sister called back to hospital
and transfer arranged to St George’s in London.
13.05.09: C’s sister suffers series of seizures and
dies in the early hours.
Shorter v Surrey and Sussex
Healthcare NHS Trust



The claim failed.
C first became aware of D’s negligence and
consequences on receiving telephone call from her
sister’s husband on 12.05.09. No element of
physical proximity to any qualifying event.
When C arrived, her sister was not in such a
condition that to see her could be described as a
‘horrifying event’ or to cause ‘violent agitation of
the mind’ C’s sister’s condition was fluctuating and
she did not appear to be in any obvious or
immediate danger (Walters distinguished).
Shorter v Surrey and Sussex
Healthcare NHS Trust


The evidence that C’s professional
background (as a Senior Sister at a Neurointensive Care Unit) gave her an unusual
degree of insight into her sister’s medical
situation should not be a relevant factor.
The test for whether an event is ‘horrifying’
is an objective one.
Shorter v Surrey and Sussex
Healthcare NHS Trust

‘It is necessary to be cautious in finding that the Claimant’s
professional expertise made the sight of Mrs Sharma more
“horrifying” than it would have been to a person without that
knowledge. I consider that the “event” must be one which would
be recognised as “horrifying” by a person of ordinary
susceptibility; in other words, by objective standards. After all,
certain people would find it more frightening to have no medical
knowledge and not to know what was going on; they may feel
helpless and isolated. Others may have armed themselves in advance
with medical information from the internet which leads them to feel
far greater fear than is in fact justified. It would be unfortunate if
secondary victims’ claims were to become embroiled in debates about
an individual claimant’s level of medical knowledge and its effects
upon whether an “event” should be classified as “horrifying”.’
Shorter v Surrey and Sussex
Healthcare NHS Trust

There was no “seamless single horrifying
event”, but a series of different events on
12/13 May that gave rise to an
accumulation during that period of gradual
assaults on the Claimant’s mind and
resulted in her psychiatric illness.
Recent case law



Ronayne v Liverpool Women’s Hospital NHS
Foundation Trust [2015] EWCA Civ 588,
Tomlinson, Sullivan & Beatson LJJ
Facts: The Trust admitted negligence in the
performance of the Claimant’s wife hysterectomy
leading to septicaemia and peritonitis, which
caused her to swell up such that she resembled
‘the Michelin Man’.
The claim had succeeded at first instance before
HHJ Allan Gore QC.
Ronayne v Liverpool Women’s
Hospital NHS Foundation Trust




Timeline
18.07.08. In the early morning, the claimant’s wife
was admitted to A&E with a high temperature,
thirst and shallow breathing.
At 5:00pm, shortly before emergency exploratory
surgery, the claimant saw her connected to
various machines.
Sometime the following day, he observed her in
the post-operative condition. She was
unconscious, connected to a ventilator and was
grossly swollen.
Ronayne v Liverpool Women’s
Hospital NHS Foundation Trust



The defendant successfully appealed.
Tomlinson LJ considered it ‘telling’ that only one
reported case in which a claimant has succeeded
at trial in consequence of observing in a hospital
setting the consequences of clinical negligence
(i.e. Walters).
It was ‘unsurprising’ as in ‘hospital one must
expect to see patients connected to machines and
drips and … expect to see things that one may
not like to see…’
Ronayne v Liverpool Women’s
Hospital NHS Foundation Trust

…A visitor to a hospital is necessarily to a certain
degree conditioned as to what to expect, and in
the ordinary way it is also likely that due warning
will be given by medical staff of an impending
encounter likely to prove more than ordinarily
distressing.’
Ronayne v Liverpool Women’s
Hospital NHS Foundation Trust

Tomlinson LJ distinguished the ‘exceptional’
case of Walters, in which the working out
of the tragedy, with the raising of hopes,
the journey up the motorway to London
following in the wake of the ambulance,
and the dashing of hopes and then their
final destruction was ‘almost Sophoclean in
its seamlessness’.
Ronayne v Liverpool Women’s
Hospital NHS Foundation Trust


In this case there was again a series of events over
a period of time. There was no "inexorable
progression" and the Claimant's perception of
what he saw on the two critical occasions was in
each case conditioned or informed by the
information which he had received in advance and
by way of preparation.
The first sight of the claimant’s wife in her critical
condition was ‘nothing like the “assault upon the
senses”’ in Walters.
Ronayne v Liverpool Women’s
Hospital NHS Foundation Trust

There had been a gradual realisation by the
claimant that his wife's life was in danger in
consequence of a mistake made in carrying
out the initial operation. At each stage in
this sequence of events the claimant was
conditioned for what he was about to
perceive.
Recent case law


Owers v Medway NHS Foundation Trust
[2015] EWHC 2363 (QB) Stewart J
Facts: The Trust admitted various breaches
of the duty of care towards the claimant’s
wife, whose stroke was misdiagnosed.
Causation was not established.
Owers v Medway NHS
Foundation Trust





Timeline
14.03.10, 8:20am: C’s wife was admitted to the Trust’s
hospital with a suspected stroke and seen by triage.
9:40am: C’s wife’s condition had deteriorated, but the SHO
failed to re-examine her or prescribe aspirin.
11:36am: C’s wife was discharged (the Trust admitted this
was negligent).
C then drove his wife to another hospital where she was
diagnosed with a basilar artery occlusion stroke, but her
condition had already deteriorated such that she became
seriously disabled.
Owers v Medway NHS
Foundation Trust



The bar is set very high for secondary victim
claimants in clinical negligence cases.
The events the claimant witnessed were very
distressing, but were not “horrifying” as judged
by objective standards and by reference to persons
of ordinary susceptibility, nor wholly exceptional.
The claimant’s wife was in the throes of a severe
illness and there was no sudden appreciation of a
“horrifying” event.
Recent case law


Brock v Northampton General Hospital NHS Trust (1)
& University Hospital Birmingham NHS Foundation
Trust (2) [2014] EWHC 4244 (QB), HHJ Yelton
Facts: The claimants’ daughter took an overdose of
Paracetamol, which led to severe liver failure. An
intercranial pressure monitoring bolt was then negligently
placed too far into her brain, which caused a brain
haemorrhage from which she died. It was common ground
that she would have died within a few days in any event as
there were no livers available for a transplant within the
very short timescales required.
Brock v Northampton General
Hospital NHS Trust & anor




The claimants’ evidence was that it was after receiving a
telephone call that they realised their daughter was going
to die.
The grief and sense of loss which almost every parent will
suffer when a child dies is insufficient to found liability.
There has to be a traumatic experience akin to witnessing
an accident.
Neither parent said it was seeing their daughter with a bolt
in her head that caused their psychiatric illness.
What the claimants observed was not wholly exceptional,
dreadful as it may have been.