Secondary Victim Claims

A Primary Victim is someone who is someone who has been directly involved in an accident, or near-miss accident, which was not their fault. So what is a Secondary Victim Claim?

By contrast, a secondary victim is someone who witnessed the accident which the primary victim was in. If a secondary victim has suffered psychiatric illness as a result of the primary victim’s accident then they may be eligible to make a claim for compensation if they meet the necessary legal requirements.

Anyone who has witnessed a distressing accident but has not been directly involved in the incident itself.

An example would be where a road traffic accident takes place injuring the driver and a pedestrian witnesses the accident but is not actually involved. That pedestrian witness would be a potential secondary victim subject to the legal test set out below.

In order to pursue a claim, the secondary victim must suffer an impact to their mental health.

The symptoms of stress or trauma experienced must be at a severe enough level to be assessed clinically as a recognised psychiatric condition by a Consultant Psychiatrist.

The most common psychiatric diagnosis in claims of this nature is that of Post-traumatic Stress Disorder (PTSD) but there are also a number of other psychiatric illnesses including Adjustment Disorder and Panic Disorder among others.

If yours in a case we assess there to be reasonable merits to help you with, we will arrange for this assessment to take place for you. At the assessment, the Consultant Psychiatrist will provide an opinion on your diagnosis, cause of the illness and prognosis for your future recovery. They will also make recommendations for any appropriate treatment, including medication if appropriate.

The most important thing above any claim you may have is in maintaining your own health – this must be the priority.

If you are concerned about how you are coping with the impact of a traumatic event, we would encourage you to speak to your GP and seek specialist advice. They have a wealth of experience and knowledge surrounding the issues of mental ill-health.

Each claim is unique so we’d be happy to carry out an initial assessment of your case for free if you think you may be eligible to claim.

If you have witnessed a traumatic accident, or near-miss accident, of a loved one and have had to seek medical advice on your mental health following the accident then we may be able to help you.

Law in the County Courts in this area is determined by previous cases that have been decided at a Trial.

The leading case on Secondary Victims Claims is called Alcock v Chief Constable of South Yorkshire Police. Based on that case and subsequent cases which have been through the Courts, the following test is how the Courts approach claims of this nature:

1. It must be reasonably foreseeable that a person of “normal fortitude” or “ordinary phlegm” might suffer psychiatric injury by shock.
2. There must be a close relationship of love and affection between the primary victim and the secondary victim.
3. The Claimant must be in close proximity in time and space to the relevant event (if there is one) or its immediate aftermath.
4. The psychiatric injury must be caused by – and result from – a “sudden and unexpected shock”. It must be caused by seeing or hearing the relevant incident or its immediate aftermath.
5. There must be a recognised psychiatric injury suffered.

Before deciding on whether making a claim is the best option for you, it’s important to seek some initial legal advice. Here at Oakwood Solicitors we offer a free assessment and would be happy to discuss with you whether we thought there were merits to a possible action.

If you find a Solicitor who is of the view that your claim does have merits, then it is important to also consider the impact to your health taking a claim forward may have.

Litigation can be a stressful process and may have an adverse impact on your health. We are not doctors so cannot give you medical advice but are under a duty to advise you that pursuing a claim will be a reminder of the stress that led to your psychiatric condition whilst the claim is ongoing.

Please also note that the only outcome to a successful claim is financial compensation. You may see the litigation as a mechanism for obtaining answers but the majority of cases settle out of Court which may result in many of your questions remaining unanswered.

You may be advised by your doctors that you will only be able to make a good recovery from your illness once you are able to move on from the issues in question. The litigation may therefore delay your recovery. The decision to proceed must be your own in conjunction with your medical advisors.

If you agree to proceed forward with a claim, then our team will be happy to explain the process in further detail with you.

One of the legal requirements is evidencing that not only have you suffered with symptoms of poor mental health but that those symptoms meet (or have previously met) the clinical criteria for a recognised psychiatric condition.

If so, you would be able to claim compensation known as general damages – this is an award of money for the pain and suffering you have endured as a result of the negligence.
Assuming that the symptoms do meet the necessary criteria, then the Court uses guidance called the Judicial Studies Board Guidelines (JCG) as a starting point which takes into account the following:

• The injured person’s ability to cope with life and work;
• The effect on the injured person’s relationships with family, friends and those with whom he or she comes into contact;
• The extent to which treatment would be successful;
• Future vulnerability;
• Prognosis;
• Whether medical help has been sought.

The relevant section of the JCG which covers claims for psychiatric injuries has 4 brackets of compensation as follows:

1. Less severe – usually where the duration of symptoms are usually less than 12 months and the extent to which the symptoms have affected someone’s daily activities and sleep is low level (£1,440.00 – £5,500.00);
2. Moderate – usually where the symptoms have affected someone’s daily activities, life, work and relationships but where the medical evidence opines that good progress towards a recovery will be made by the time of Trial. The extent to which treatment will assist in the recovery of symptoms together with someone’s future vulnerability to relapse is also considered in this bracket. (£5,500.00 – £17,900.00);
3. Moderately severe – usually where the symptoms amount to a disability affecting someone’s life in a permanent or long-standing basis preventing a return to comparable employment. (£17,900.00 – £51,460.00);
4. Severe – the most extreme of cases where the outlook for someone’s recovery is extremely poor (£51,460.00 – £108,620.00).

Although every claim is different, most cases of this nature fall within either the moderate or moderately severe categories.

The Court also takes into account similar cases that have been to a Trial in order to determine where within the above brackets of compensation a case in particular may fall.
Separately to the above, if a diagnosis of Post-traumatic stress disorder (PTSD) is made then the Court has additional guidance.

Secondly and in addition to general damages, you can pursue compensation known as special damages – this is an award of money for all of your out of pocket expenses such as loss of earnings, travel expenses, medication costs, treatment costs etc. You can make a claim for both past losses and any anticipated future losses. This list is not exhaustive and is very case specific.

If the case did not settle, then ultimately the matter would proceed to Court where a Judge would make a determination. Most cases however do settle out of Court so although this is a unlikely eventuality, we cannot rule it out as an impossibility.

If you do have any concerns about this during the process of your claim, then we would be happy to discuss this with you and address any concerns you may have.

There can be a number of ways to fund your legal fees. Subject to individual assessment, the most common method to fund a claim of this nature is by way of a Conditional Fee Agreement which is often referred to as a No Win No Fee Agreement.

This means that if the claim is unsuccessful then you will not have to pay us anything towards our costs, subject to compliance with the terms and conditions of the agreement in place.

If we are able to help, we can explain this further to you and also other ways to fund your claim if a ‘No-Win, ‘No-Fee’ option is not suitable for you.

Claims for psychiatric injury is a very complex area of law and here at Oakwood Solicitors, we have a dedicated and specialised team here to help.

With the majority of the team having a qualification in mental health (a TQUK Level 2 Certificate in Awareness of Mental Health Problems), we fully appreciate the difficulties those suffering with a mental health illness may face.

We are here to help and will carry out a free assessment with no obligation to take forward a claim.