In recent years there have unfortunately been a number of horrific incidents where many people have been injured or killed. The injured victims or the families of the deceased victims may be able to make a personal injury claim to compensate them. But, what about the people who were nearby, who haven’t suffered any physical injury but have witnessed the incident and have been affected psychologically?
These people are known as secondary victims i.e. people who suffer a psychological injury when someone they know is either killed or seriously injured in an accident. For a secondary victim to bring a claim the primary victims i.e. the party that is physically injured must have been owed a duty of care by the person responsible and be able to bring a claim for personal injury for the physical injuries they have sustained.
The rules for a secondary victim to then be able to bring a successful claim for any psychological injuries are outlined in a test set out in the 1992 House of Lords decision in the case of Alcock v The Chief Constable of South Yorkshire. This case centres upon the liability of the Police for the nervous shock suffered in consequence of the events of the Hillsborough disaster of 1989 where 96 spectators were killed and 450 were injured in a human crush. The disaster was broadcast on live television and radio. South Yorkshire Police admitted liability in negligence for the deaths, having allowed too many supporters into the stadium. A number of relatives of the deceased then brought negligence claims in tort for psychiatric harm or nervous shock. Most had not been present in the stadium but had sustained psychiatric injuries after learning of the events by television or radio.
The judicial committee of the House of Lords set out the following rules, known as the “dearness, nearness and nearness test” or “proximity test” for establishing whether or not there was a duty of care owed to the secondary victims:
- There was a “close tie of love and affection” with the primary victim of the accident. Under current law only parent and children, spouses and fiancés automatically fall within this category;
- There was proximity to the incident in terms of time and space;
- The development of “nervous shock” through seeing or hearing the accident or its immediate aftermath (as opposed to being told about it);
- Causation of the injury by an external traumatic event as opposed to death or injury itself.
If it is established that a duty of care is owed to the secondary victim they will need to show that they have suffered a recognised psychiatric disorder (grief and distress are not sufficient) and that the traumatic event caused the disorder.
If you have any queries regarding making a claim for a psychological injury sustained having witnessed a traumatic or horrific incident please contact Ralli Ltd on 0161 832 6131.