UK Supreme Court review: how might the law on 'secondary victims' evolve?

The United Kingdom Supreme Court is currently reviewing "event"-related control mechanisms for qualification as a secondary victim.

Introduction

Seeing something shocking can shock. However, the law does not allow compensation in every instance of psychiatric injury caused by a person seeing a shocking thing. If it did then television companies, for example, could be exposed to liability for people affected to the required degree after seeing horrifying images of war or an unfolding disaster on screen.

To deal with cases of psychiatric injury caused by sight of a shocking event, the law has developed two categories of “victim” - primary victims and secondary victims. There are certain control mechanisms that are applied in deciding whether a person qualifies as a primary or secondary victim in individual cases. People qualifying as primary or secondary victims may claim compensation for psychiatric injury without physical injury.

At least one aspect of the control mechanisms for qualification as a secondary victim is presently under review at the United Kingdom Supreme Court (“UKSC”). The law in this area is generally taken to be the same throughout the UK, i.e. applying equally to Scotland as to England & Wales. 

Primary victims

A person suffering psychiatric injury without physical injury qualifies as a primary victim if they (a) were at risk of physical injury, or (b) reasonably believed that they were at such a risk, in the incident that caused them to suffer psychiatric injury.  

Secondary victims

Different control mechanisms apply for qualification as a secondary victim. A person suffering psychiatric injury without physical injury qualifies as a secondary victim if such injury to them was reasonably foreseeable and these requirements are met -

• There is, or was, a sufficiently close tie of love and affection between them and the person or persons suffering physical injury,
• They were present at the event or at its immediate aftermath, and
• The psychiatric injury suffered was caused by their direct perception (i.e. with their own senses, in-person) of the event or its immediate aftermath.

Under the law as presently applied, “event” in the context of these control mechanisms means the civil wrong that caused physical injury to another person or persons. 

This means that if there is a gap in time between the immediate aftermath of the civil wrong and the manifestation of physical injury in the other person or persons then a person witnessing that manifestation does not, under the present application of the law, qualify as a secondary victim. This situation of physical injury happening after the civil wrong may arise in, for example, cases of clinical negligence or disease or in situations of physical injury caused by a collapsing building. In more detail, a doctor may be negligent in, say, leaving a piece of equipment inside a person’s body after surgery with some time passing before that leads to physical injury to that person. A company may be negligent in exposing a person to a harmful substance but it may be some time before that causes physical injury to that person. A company may be negligent in constructing a building but it may be some time before the building collapses causing physical injury to a person or persons.

It is in a clinical negligence context that UKSC is currently reviewing the “event”-related control mechanisms for qualification as a secondary victim. Three conjoined cases in this regard were heard on appeal by seven justices, including the current Scottish Lord President (Carloway), at UKSC over three days in May 2023. In one of these cases, 14 months elapsed between clinical negligence and the (former) patient suffering a heart attack that was witnessed by the claimant relatives. In the second case, 5-7 months elapsed between clinical negligence and the (former) patient collapsing and dying in the presence of the claimant relatives. In the third case, 2-3 days elapsed between clinical negligence and a mother finding her daughter, the (former) patient, deceased in bed.  

The English Court of Appeal held that the claimants in these three cases did not qualify as secondary victims because even if there were close ties of love and affection between them and the physically injured person, and even if they have developed psychiatric injury because of the shocking sights seen, those shocking sights were too far removed in time from the civil wrongs for them to qualify as secondary victims on the law as presently understood. 

The claimants have asked UKSC to overturn the Court of Appeal decisions and, in doing so, to change what is presently understood as the “event” in the control mechanisms for qualification as a secondary victim.

During the hearing at UKSC there was discussion on whether the need for an event or accident in the control mechanisms could or should be removed entirely. An alternative suggestion was that a new control mechanism be implemented, with the requirement for seeing an “event” being refined to “what is seen and what is horrifying must be the first manifestation of injury”. All parties and the justices considered the impact on the potential extension of claims by interference with the current control mechanisms.

It is possible that, in addition to explaining the correct position in law on “event” in this context, UKSC may take the opportunity to review the secondary victim control mechanisms more widely and rule on what they should be and what they should mean. 

It is likely that UKSC will hand down their judgment, or judgments, in these cases at some point before the end of 2023.   

Conclusion

While the law on “primary victims” appears fairly settled, as summarised above, the law on “secondary victims” could, for the reasons outlined above, evolve in the coming months. In particular, the law on secondary victims may be clarified or refined by UKSC this year. It also remains possible that the UK Parliament at Westminster and / or the Scottish Parliament at Holyrood could legislate in this area, particularly on secondary victims where the present control mechanisms are effectively based on matters of public policy.