Clinical negligence may affect both primary and secondary victims. This means that either of these categories of individuals may bring a claim in law. In the context of medical negligence, the patient who has suffered harm is ordinarily the primary victim and then any relatives or bystanders may potentially be classed as secondary victims.
In law, a primary victim is said to be an individual who has been involved mediately or immediately as a participant. An instance of this is the Hillsborough disaster, in which the appeal of Alcock and Ors v Chief Constable of South Yorkshire  AC 310 arose in the House of Lords. In this case the Court heard the accounts of two claimants who had been in the football ground and thus had directly witnessed the events of the terrible disaster. Further to this, some of the other claimants had watched the events on television whilst others had identified bodies in the morgue. The one thing all these claimants had in common were that they were related to one of the victims of the Hillsborough disaster. Nevertheless, it was held that these individuals were not primary victims, since they had not in fact been mediately or immediately involved in the incident.
Those individuals who are found to be primary victims of clinical negligence can claim for psychiatric injury provided that the harm suffered is recognised as a psychiatric illness, it is foreseeable, and it is not too remote. In terms of foreseeability, the injury in itself does not have to be foreseeable for one to recover damages, however it must be said that it was foreseeable that some injury would occur. Ultimately, as long as some kind of personal injury would have been foreseeable it does not matter whether the injury that resulted was physical or psychiatric. Once this has been established, the defendant becomes liable for the full extent of the damage regardless of whether the extent of the damage was foreseeable.
In addition, once it has been established that the claimant is entitled to damages as they have a foreseeable recognised psychiatric injury, it must be considered whether said damage is too remote. What is referred to as the egg shell skull rule was established in Page v Smith. This refers to the fact that the defendant must take his victim as he finds him, meaning that whether or not any other individual would have sustained the same or similar injuries, or reacted to the negligence in the same way, holds no relevance.
The concepts of foreseeability and remoteness are the same for those claiming clinical negligence as secondary victims. Secondary victims are those individuals who wish to bring a claim as a result of their being aware of the negligent treatment received by a primary victim. Generally, these secondary victims cannot bring a claim for psychiatric injury caused by clinical negligence where another is involved. Unfortunately, this stands for cases in which the patient dies. Despite this, if a secondary victim can successfully establish that they fall into the category of those able to bring a claim, the fact of whether the patient passed away becomes irrelevant. Simply knowing about the occurrence of negligence and the events surround it do not bring sufficient merit in their own right for an individual to meet the standards required to claim.
For a secondary victim to bring a claim, they must meet all four requirements of the Alcock criteria. These four standards are as follows:
- A close tie of love or affection
- Witnessing the event with their own unaided senses
- Proximity to the event or its immediate aftermath
- Psychiatric injury being sustained as a result of the shocking event.
It is imperative that each of the above is met in order for a person to claim compensation.
If you believe you are a primary or secondary victim of clinical negligence malpractice, do not hesitate to contact SMQ Legal Services for advice on a no win no fee basis. We offer a free 20 minute consultation and can advise you as to whether we believe there is merit to your claim for compensation.