For many decades, UK courts have considered what categories of accident victims should be allowed to claim compensation for personal injury caused by someone else. The law distinguishes between those who were involved in an incident exposing them to immediate physical danger, primary victims, and secondary victims who were not.
In the 1983 case of McLoughlin v O’Brian, the House of Lords, acting as the highest court in England, decided that someone with close family ties to a victim such as a spouse, parent, or child, could pursue a claim for compensation even if they were not involved in the incident that caused death or injury to their loved one as long as they had “come upon the aftermath”. This was defined in terms of “direct perception of some of the events which go to make up the accident as an entire event, and this includes…the immediate aftermath”.
Mrs McLoughlin lived two miles away from the scene of the road crash in which her daughter was killed and her husband and other children injured. Within an hour or so of the crash, she travelled to the hospital where she witnessed her surviving family members in an injured distress state, grimy with dirt and oil. She was allowed by the court to make a secondary victim claim against the driver who caused the crash. Her injuries were psychological, caused by witnessing the traumatic events. Her symptoms included recurrent headaches, loss of voice, poor sleep, depression, lapses of memory and concentration.
In 2023, in the cases of Paul v Royal Wolverhampton NHS Trust and Polmear v Royal Cornwall Hospitals the Supreme Court approved of the McLoughlin decision. The Court held it was crucial, in the McLoughlin case, that “when the claimant came upon the members of her family, they were in the same condition as they had been at the roadside, covered with oil and mud, and distraught with pain”. The Court went on to say: “It is easy to appreciate the psychological trauma caused… to a husband who comes upon the badly injured body of his wife immediately after an accident.”
In the McLoughlin case, what was crucial was that the family members, although they were in hospital, were in the same injured, grimy and distressed state as at the crash scene.
Our highest courts have long been concerned not to widen the definition of secondary victims so broadly as to open the floodgates to a huge volume of claims from people who were not loved ones and who did not witness the immediate aftermath.
However, for many years we have helped and supported family members in their fight for justice following incidents in which their loved ones have been killed or seriously injured and they themselves have suffered psychological trauma from what they have witnessed at the accident scene or in hospital shortly afterwards – in the light of the Supreme Court decision, we will continue to do so.
Paul Fretwell
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