Secondary Victims – Where are we now?
An update following Wild & Wild v Southend
This post analyses the state of the law on Secondary Victims (SV), in particular in the clinical negligence context, following the case of Wild v Southend (available here). I consider below the background and key authorities, and the effect of Wild itself.
Where did we start?
It is not immediately clear why Primary Victim (PV) and Secondary Victims (SV) claims should be treated differently. The answer is the issue of proximity to the Defendant. Lord Keith explained the importance of proximity in Alcock at 397:
“I am of the opinion that in addition to reasonable foreseeability liability for injury in the particular form of psychiatric illness must depend in addition upon a requisite relationship of proximity between the claimant and the party said to owe the duty. Lord Atkin in Donoghue v. Stevenson  A.C. 562, 580 described those to whom a duty of care is owed as being:
"persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."
Lord Oliver identified ‘common features’ from all the reported cases (later the ‘Control Mechanisms’). They were set out by Lord Oliver at 411 (underlined text), and further detailed in Alcock and other cases, as referenced below):
- The psychiatric injury arises from sudden and unexpected shock to C’s nervous system.
- There are close ties of love and affection between C and PV.
- C 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.
- The injury arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the PV.
- There is not only an element of physical proximity but a close temporal connection between the event and the plaintiff’s perception of it combined with close relationship of affection.
The significance of the mechanism is: If these are satisfied, there well be sufficient proximity between the PV and Defendant.
The Claimant’s son had been ill and was admitted to the Defendant hospital (though it failed to diagnose his acute hepatitis). The Claimant was asleep in the hospital at her child’s side when she awoke to him having a fit at 0300 on 30 July. She was told he had suffered no brain damage but he was transferred to Kings College Hospital.
On 31 July, C was told that he had suffered brain damage from the fit and that his quality of life would be poor. The decision was taken to withdraw treatment and the life support machine was turned off; he died a short while later in C’s arms.
The trial judge found that C could recover as she had suffered the injury as a result of experiencing sudden shock. He found that the event had lasted the whole 36 hour period from the fit.
On appeal the court considered whether the events qualified as ‘a horrifying event’ and whether the injury was caused by a ‘sudden appreciation’ as opposed to a ‘gradual assault’.
Issue 1 – was the 36 hour period one horrifying event?
At 34, Ward LJ said:
the law as presently formulated does permit a realistic view being taken from case to case of what constitutes the necessary "event". Our task is not to construe the word as if it had appeared in legislation but to gather the sense of the word in order to inform the principle to be drawn from the various authorities. As a word, it has a wide meaning as shown by its definition in the Concise Oxford Dictionary as: 'An item in a sports programme, or the programme as a whole".
In my judgment on the facts of this case there was an inexorable progression from the moment when the fit occurred as a result of the failure of the hospital properly to diagnose and then to treat the baby, the fit causing the brain damage which shortly thereafter made termination of this child's life inevitable and the dreadful climax when the child died in her arms. It is a seamless tale with an obvious beginning and an equally obvious end. It was played out over a period of 36 hours, which for her both at the time and as subsequently recollected was undoubtedly one drawn-out experience.
The court found that the totality of the events were horrifying ():
For my part the facts only have to be stated for the test to be satisfied. This mother awakens to find her baby rigid after a convulsion. Blood is coming from his mouth. He is choking. Is that not as much an as-sault upon her senses as if her child had been involved in a road accident, suffered grievous head injuries as yet undetected and was found bleeding in the car seat?
Issue 2: Was the condition caused by sudden appreciation or a more gradual assault?
The court found at  that the medical evidence was clear. The injury was caused by shock. As to whether the events were sufficiently sudden, (at ):
Each of these three events had their impact there and then. This is not a case of the gradual dawning of realisation that her child's life had been put in danger by the defendant's negligence. A consequence of that negligence was that the child was seized with convulsion. She was there witnessing the effect of that dam-age to her child. The necessary proximity in space and time is satisfied.
The Claimant’s mother was injured at work (27.2.2008) and apparently recovered. Later (19.3.2008) she died from a pulmonary embolism caused by the accident. The sole issue was whether C was entitled to claim as a “secondary victim”; specifically whether she had witnessed the ‘accident’ or ‘event’. C submitted that the ‘event’ in this case was the death.
The Court of Appeal held () that in this case there was a single accident or event with 2 consequences: (i) Injury to head / arm and (ii) her death three weeks later.
The Court distinguished Walters (at ) on the basis that there were 2 events, not a ‘seamless tale’ as described in Walters. “The injuries and death suffered by Mrs Taylor were certainly not part of a single event or seamless tale”.
Wild & Wild v Southend University Hospital
This is a case which seems to have caused concern among practitioners, though it should first be noted that this is a High Court case. Further, it sets out no new principle. Like Walters it merely applies arbitrary and somewhat unsuitable principles to complex situations.
C was due on 20 March 2009. Attended an appointment on 10 March 2009 with her husband, at which time the Defendant’s midwife was negligent (it is not clear how). C noticed vaginal bleeding on 20 March 2009 and attended hospital. FHR not detectable. Multiple midwives attempted to auscultate the FHR but could not. Parents were not actually told that intrauterine death had occurred. The baby was delivered still-born on 21 March 2009.
Both C’s suffered psychiatric injury arising from the still birth of their son, in particular from the realisation that their son had died when no FHR could be heard. “knowledge of the death” was the cause of the injury (Psychiatrist, see judgment at -).
Mrs Wild was held to be the PV given that foetus and mother are considered to be the same person in law (see ). Though the court did not appear to consider it, the fact that Mrs Wild was clearly within the range of foreseeable physical injury also indicates that she was the primary victim (as per Page v Smith). That also removes the need to consider the more complex issues of law surrounding the foetus.
The main issues on the secondary victim claim were as to (iii) (iv) and (v) of the control mechanisms:
The court considered the distinction between Walters and Taylor, raising an issue as to which might apply to Wild. The issue was not resolved because the judge based his decision on the ‘horrifying’ element of the control mechanisms.
The Defendant’s arguments (at -), which were accepted, were that:
- There was no shocking event to witness, only the shocking fact to experience the death of a loved one or the death of the soon to be born baby.
- Just as those in Alcock who were watching television did not qualify, Mr Wild’s realisation based on the actions of the staff in the hospital does not qualify.
- “As in fact the baby had already died, by definition Mr. Wild was not a witness of the injury and death suffered by Matthew. Even if the injury is characterised, as a matter of law, as having been suffered by Mrs Wild, that was an injury that had already occurred at some time between the 10th and 20th March.”
The key passages are as follows:
- Mr Wild was experiencing a growing and acute anxiety… But none of that… amounts to “actually witnessing horrific events leading to a death or serious injury” ()
- In my judgment this case is materially different from the facts in Walters being based on an “event” which starts with the realisation that Matthew has already died ()
The author’s view is that this has been somewhat misinterpreted, and its effect overstated. The court did not find that there was no horrific event – no specific finding was made but the stillbirth would most likely satisfy that test. However the claim failed for three reasons:
- The (horrific) event did not lead to injury to the PV; it flowed from injury to the PV;
- There was no ‘inexorable progression’; there were 2 separate events;
- The witnessing of the (second) event did not cause the SV’s injury, the injury stemmed from his realisation about the death;
In conclusion the authorities establish that the following requirements must be met in relation to the 'witnessing a horrific event' control mechanism in a secondary victim claim:
- C must witness the event. Not hearing or realising it as a fact. (i.e. Wild)
- The event has to be shocking and that has to cause the injury to the SV. Not realisation, (Wild) not the bereavement, but what was witnessed.
- It must be a single event. However it need not all occur in a few seconds (Walters – can be over days). But not an event followed by another event (i.e. Taylor v A Novo / Wild)
- The event must ‘Immediately’ cause death or injury. Immediate in the sense that it is the direct and immediate result - not a later consequence as in Taylor v A Novo. Events which flow from the death or injury will not suffice (Wild)
The importance of the question of proximity cannot be overstated: Is it reasonable for D to have the SV in contemplation?
In the case of a father in a stillbirth case the obvious answer is yes.
However the broader answer comes from Allcock: D only has to contemplate those in the immediate area of the accident or injury who are also closely connected to the PV. Otherwise, D would have to consider (and be liable to) anyone who came upon the scene (over whom D has no control) and the limits of liability would be endless.
That produces a result in clinical negligence cases, and in particular stillbirth cases, which is arbitrary and apparently unfair. However that is unlikely to change in the near future and we are left with the Alcock control mechanisms unless and until Parliament opts to change the law.