Secondary victim = someone who witnesses an accident which results in there being an injury, or fear of injury, to the primary victim. Consequently the secondary victim suffers nervous shock (psychological injury).
Because of the potential for ‘opening the floodgates’ (i.e. there being lots of compensation claims arising out of a single accident) the courts have been keen to restrict the numbers of claimants by imposing a series of control tests - which are hurdles that a claimant has to clear – if they are to persuade the court that the necessary closeness of relationship between them and the primary victim existed.
The case of Liverpool Women’s Hospital NHS Foundation Trust v Ronayne which was heard at the Court of Appeal in 2015, has set the bar for nervous shock claims arising from clinical negligence nervous shock cases.
Mr Ronayne sustained a psychiatric injury from the shock of his seriously ill wife’s appearance in hospital. She had undergone a hysterectomy and a few days after discharge she became unwell and was admitted to A&E. It was later discovered that a misplaced suture in her colon had caused complications. Shortly before she underwent emergency surgery for septicaemia, Mr Ronayne saw his wife connected to various machines including drips and monitors. After surgery he saw her unconscious, connected to a ventilator and being administered four types of antibiotic intravenously. Her arms, legs and face were very swollen. He described his shock at her looking like ‘the Michelin Man’.
Key points from the Court of Appeal judgment (which overturned the award of compensation to Mr Ronayne made by an experienced clinical negligence trial Judge) were:
To establish a secondary victim claim it is necessary to establish that the relevant ‘shocking event’ was a) exceptional b) sudden and c) horrifying.
There was only one previous reported case in which a Claimant had succeeded in a secondary victim claim in consequence of observing the consequences of clinical negligence in a hospital environment. The Court of Appeal Judges found that unsurprising.
In hospital you must expect to see things that you may not like, such as patients connected to machines and drips. A visitor is to a degree conditioned as to what to expect and it is likely that due warning will be given by medical staff of an impending encounter likely to prove more than ordinarily distressing.
There was no sudden appreciation of an event here because there was a series of events giving rise to an accumulation of gradual assaults on the Claimant’s mind. At each stage, Mr Ronayne was conditioned for what he was about to see and that his wife’s life was in danger. There was nothing sudden or unexpected about being ushered in to see his wife and finding her connected to medical equipment.
Whether an event was sufficiently horrifying must be judged by objective standards and by reference to persons of ordinary susceptibility, not by examining the Claimant’s medical knowledge and its effect upon the particular reaction of the individual concerned.
This was not a horrifying event by objective standards as the appearance of Mr Ronayne’s wife was as would ordinarily be expected of a person in hospital in the circumstances in which she found herself. It was not exceptional.
The reaction of most people of ordinary robustness would surely be one of relief that the matter was in the hands of medical professionals with perhaps a grateful nod to the ready availability of modern medical equipment.
The circumstances in the Ronayne case fell ‘far short’ of those in which it has been recognised by the law as founding secondary victim liability. This is notwithstanding that the Court of Appeal held that this was an appalling sequence of events which caused profound distress to Mr Ronayne, for which they had profound sympathy and which caused psychiatric illness.
The Court made it clear that the death of a loved one in hospital (although not the facts of the Ronayne case) would not qualify unless accompanied by circumstances which were wholly exceptional in some way so as to shock or horrify.
The House of Lords decision in McLoughlin v O’Brien  AC 410, where a ‘hospital visit’ secondary victim claim by a mother visiting her husband and children injured in a car accident succeeded, is best understood as being a case where the Claimant, although arriving in the aftermath, came upon the accident, albeit transposed into the setting of the hospital.
The decision in Ronayne arguably renders more strict, the control mechanisms for secondary victim claims which were shaped by the earlier seminal House of Lords decisions arising out of the Hillsborough disaster, particularly Alcock v Chief Constable of South Yorkshire Police, 1992.
This latest appeal builds on the series of reported cases since December 2014. Prior to the 2013 Court of Appeal decision in Taylor v Novo, it was very difficult to reconcile the various decisions in the years since the seminal Hillsborough cases. There has been a much more consistent thread of principle through the decisions since Taylor v Novo.
They all highlight the strictness of the control mechanisms and the difficulties for Claimants in establishing such claims. Indeed, the author is not aware of any reported secondary victim claim which has succeeded since the Court of Appeal clarified the law in Taylor v Novo in 2013, a decision which itself overturned a trial judge’s award of compensation in such a case.
If you want further information about this particular topic, or wish to discuss the possibility of bringing a claim for Clinical Negligence - or indeed any other type of injury, please contact the Dutton Gregory Clinical Negligence Team on (01202) 315005, or email firstname.lastname@example.org.