Can you claim if you see a loved one being injured?

Seeing a loved one being seriously injured or passing away is a deeply traumatic event. The person who witnesses the injury may find that in addition to grief, they are dealing with an altogether different kind of emotional trauma.  In the most severe cases they may suffer from Post-Traumatic Stress Disorder or a depression disorder and be unable to return to work.  This can have a huge impact on their finances, causing additional stress and upset at an already very difficult time.  Because of this, they may want to consider investigating a claim.

This is a very complex area of law and these claims will only succeed if you can meet certain strict criteria.

The Legal Tests

Usually, the person who brings a claim is the person who has been physically injured. They might be a patient injured by a mistake in medical care, an employee hurt by an accident at work, or a road user injured in a car accident. They are owed a legal duty of care by the person who injures them; their treating doctor or nurse, their employer or other road users.  The law calls them “primary victims”.

If you have witnessed an injury in similar circumstances, you probably won’t fall into one of these categories and so aren’t usually owed a duty of care in the same way. For instance, if you have witnessed your loved one being injured while you were with them in hospital, the doctors and nurses don’t owe you a duty of care as you are not their patient. This means there is no obvious legal right for you to bring a claim.

That said, judge-made law does give a way for some relatives or partners of the primary victim to recover compensation.  They are known as “secondary victims”.

The Courts have created a strict set of criteria which are used to establish that someone is a secondary victim.  These are:-

• There has to be a close tie of love and affection to the primary victim(s). This will be straightforward if the loved one is a parent/child or spouse, but it can be more difficult in other relationships;
• There has to be closeness in time and space to the horrifying event or its immediate aftermath. This means you have to physically see the accident/your loved one being injured or passing away, or arrive very shortly afterwards;
• You have to witness this event with your own eyes/ears – you cannot be told about it by someone else;
• The psychiatric injury suffered has to be reasonably foreseeable. This means, the person who caused the injury should have known it is possible that you would suffer a psychiatric injury by seeing your loved one be injured/pass away.
• The psychiatric injury has to be caused by a sudden appreciation by sight or sound of a horrifying event leading to the death/serious injury of your loved one. The injury cannot be caused by the fact that the person has died, and there cannot be a gradual understanding that the person will pass away.  This is usually the most difficult test to meet as the courts have set a very high bar as to what they will consider as ‘horrifying’.

These cases are difficult to win as the law is complex and every case will be different.  This means judges, whilst doing their best to apply the law, can reach decisions which can be difficult to understand.

The recent case of Paul v. The Royal Wolverhampton NHS Trust

A recent clinical negligence appeal case has provided some very helpful guidance. In this case, Mr Paul had a heart attack in front of his daughters who were 12 and 9 years old, and passed away.  Understandably, this was very traumatic for them both and they developed psychiatric injuries.  It was argued that Mr Paul had been negligently discharged from hospital in 14 months earlier after attending with chest and jaw pain. The hospital hadn’t picked up that these were symptoms of a heart condition. Had Mr Paul been appropriately treated, it was argued he would not have passed away.

There have been a series of clinical negligence secondary victim cases over the past few years which have been unsuccessful.  This is due to the courts saying that as soon as the hospitals made a mistake, this caused (or failed to prevent) an injury to the primary victim at that time.  As the loved ones were often not present when this happened, or did not see a sudden and horrifying event as there was not one to see, they were told their claims could not succeed.

This is what happened in the original claim for Mr Paul’s daughters. The hospital Trust argued that in order to meet the legal test that there was closeness in time and space (number two on the list above), the girls would have needed to witness the hospital’s failure to treat their father’s heart condition (which they had not). Further, the hospital’s failure to treat the heart condition was not a sudden and horrifying event, and so the girls wouldn’t have developed a psychiatric injury from witnessing it, and they couldn’t have met the fifth test even if they had. The original judge agreed with the hospital and ‘struck out’ the daughters’ claims.  This means the claims could not go any further in the court process and a trial would not take place.

Mr Paul’s daughters appealed the decision.  The appeal judge decided that, in keeping with the above tests, a claim doesn’t arise until the mistake has had a physical, external impact on the primary victim.  Therefore, if it was agreed that Mr Paul’s heart attack was the first time the hospital’s mistake had caused him an injury, then this was the event that his daughters needed to witness in order to bring a claim, not the failure to treat his heart condition in hospital.   As the girls witnessed the heart attack, the appeal was successful.  This means their cases can continue to see if they too will ultimately be successful.

This important decision doesn’t change the legal tests, but it provides much needed clarity on how they should be applied by the courts.  We hope this will help to achieve justice for family members who have suffered horrendous psychiatric injuries from witnessing the death or serious injury of a loved one.

Do you think you may have a claim as a secondary victim?

Secondary victim claims can apply to lots of different people and situations.  We regularly act for parents, spouses and children who have witnessed a shocking injury to their loved ones as a result of an accident or medical treatment.

If you consider you may have a psychiatric claim, please contact our specialist team for advice.