Being involved in an accident can have catastrophic effects, not only for the person involved, but for their family and loved ones also. Secondary victims are often rarely reported or considered even though their mental health can be severely impacted upon.
Who is a Secondary Victim?
To successfully bring a secondary victim claim, case law sets out that the following criteria must be met;
There must be a ‘close tie of love and affection’ between the primary and secondary victims. This is usually through a marital or parental relationship although not exclusively.
There must be psychiatric injury which arose from sudden and unexpected shock to the nervous system.
The claimant must be personally present at the scene of the accident, or was in the immediate vicinity and witnessed the aftermath shortly afterwards, as opposed to being told about and event.
The psychological injury arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim.
What Constitutes a Psychological Illness?
For the purpose of bringing a secondary victim claim, a psychological illness includes nervous shock or any medically recognisable psychiatric illness which is directly caused by the actions of the defendant.
The psychological illness must stem from shock rather than grief. This can be difficult to prove, therefore if is common practice to instruct an expert.
What Difficulties Could I Face?
One of the main problems claimants face is that too much time has elapsed between the time of the accident and the secondary shock. For the best chance of success, the claimant must have knowledge of the event as it is happening and be present when the damage is taking place, or be present for the immediate aftermath.
Another common difficulty is that the negligent action of the defendant and the damage caused are delayed in time. There must be a continuous period where the claimant witnesses the event to be successful.
Could I Bring a Secondary Victim Claim if I Have Gone Through a Still Birth?
Sadly, one area that the secondary victim status is prevalent is where couples have gone through delivering a baby that is stillborn. It is well established that an unborn child is not a person for legal purposes; therefore they cannot be a primary victim. Harm done to an unborn child is classed as harm done to the mother.
As a result of this, even though the father’s concerns and feelings of shock are mainly due to what he has witnessed with the child, where law is concerned, his shock is for what part of the mother has experienced.
A secondary victim claim for the father is most likely to succeed if he witnessed the harm and he was told what was happening, as it occurred, whilst he was present.
To speak to an expert regarding a secondary victim claim, please call Farleys’ personal injury solicitors on 0845 287 0939 or complete our online form.