Last week, it was reported that a claim made against Glasgow City Council, by a student who had suffered PTSD following the Glasgow bin lorry crash in 2014, had been unsuccessful. However, it was not absence of an injury, or a determination on the cause of the crash, which led to the claim for damages being refused. The personal injury court required to focus on the matter of determining whether the pursuer was a primary victim, and ultimately determined that she was not and, as such, had no entitlement to compensation.
The law draws a distinction between primary and secondary victims. A primary victim is someone who has been directly involved in an accident, whereas a secondary victim is someone who has witnessed the distressing events but has not been directly involved. An easy example would be the distinction which is drawn between the car driver and passenger involved in a road traffic collision, and the person who happened to witness the accident from their living room window overlooking the road. The witness has seen the events first hand and may be extremely distressed. However, even with evidence that they have suffered a psychiatric injury they will be viewed as a secondary victim and are unlikely to be entitled to compensation without further connection to the incident. The driver and the passenger are primary victims and can make a claim for both the physical and psychiatric injury they have suffered.
Despite the principles appearing simple, drawing the distinction between primary and secondary victims who have been present at the scene of a major incident can be much more difficult. As in the case of the bin lorry crash, situations can arise where individuals have been in close proximity to the accident but not sustained physical injury. If they suffer psychiatric injury, the difficult question must then be asked of whether this was a reasonably foreseeable consequence of the negligent act. Where it is, such as where an individual has been at risk and in fear of physical harm, then it is possible for a claim to be made as a primary victim. Where it is not, the individual will generally be unable to succeed with a claim.
So where does this leave those who have suffered mentally after witnessing horrifying accidents? It is certainly possible to think of situations where the lives of secondary victims are affected to the same extent as those directly involved in an accident.
Past incidents, such as the Hillsborough disaster, have brought about a need for this to be addressed and have shaped the law in this area. In narrowly defined circumstances, a secondary victim can succeed with a claim for damages. To do so, the criteria set out in Alcock v Chief Constable of South Yorkshire Police must be satisfied. This requires it to be shown:
- that the injury is caused by shock from the “sudden appreciation by sight or by sound of a horrifying event, which violently agitates the mind”;
- that there is a close tie of love and affection with the primary victim; and
- that the pursuer was sufficiently proximate to the event, both in time and in location.
In other words, secondary victims may only claim damages for an injury in the case of particularly horrific incidents, where a loved one has been directly involved and where they have been on the scene or very nearby, at the time or immediately afterwards.
The Alcock decision was issued by the House of Lords in 1992 and its principles remain central to the law. With the passage of 27 years, other cases have expanded upon what is meant by each of the criteria, but the category of secondary victims who can claim damages remains broadly the same. This means that the law will inevitably exclude from claiming compensation some who have suffered serious injury due to what they have witnessed.
In an age where images of a tragic accident can be shared around the world, more quickly and without any of the editing or censorship seen with more traditional forms of media, it is clear that there is a continued need for some restrictions on who constitutes a victim with an entitlement to compensation. It is plausible that someone may be left distressed by a video showing a fatal accident, despite being hundreds of miles away. Yet few would argue that it would be fair or proportionate for an individual or company to be liable to compensate any number of viewers for the harm they have suffered. It is here that the concept of reasonable foreseeability, and the Alcock criteria, appear sensible. There has always been an element of public policy in the law, in that there is a need to keep the floodgates closed to loosely connected claims, and this may be even more important today.
On the other hand, the same advances in technology can make it possible for the loved ones of a primary victim to feel “proximate” to the horrifying event and to experience shock even if they are not close by. It is not a stretch to accept there may be a difference between viewing a news report hours after an accident has occurred and seeing an unedited video in real time or shortly after the event. Our increased understanding of psychiatric injury and the impact it may have on an individual, regardless of whether they are a primary or secondary victim, may also be reason for reconsidering who should be entitled to compensation.
As technology and medical understanding continue to progress, we may indeed see a change in the position of secondary victims, but it is likely that restrictions of some type will always be required. The distinction between primary and secondary victims, and the decisions of the courts in this respect, are therefore of continued significance.
Blog by Amy Haughton, Solicitor
