New precedent for secondary victim claims

Mon, 10 Jul 2017

Barrister - Francesca Martin

A new precedent for secondary victim claims for nervous shock has been set following a complicated, multi-track case in Portsmouth County Court.

Barrister Francesca Martin, of No5 Barristers’ Chambers, instructed by Katherine Gavin of Fletchers solicitors, acted for the claimant - a bereaved mother - in what she describes as a ‘substantial victory’.

In the case of D.R. v UK Insurance Ltd, Recorder Michael Norman found that the claimant was a secondary victim and liability was established.

Briefly, the case focused on the night of July 31, 2012. The Claimant hadn’t heard from her son that evening since he had left home to go out on his motorbike. Eventually, she went out in her car to look for him. She came across a crash site, walked up to the police cordon and saw debris on the road, including a smashed motorbike. Although she was not told that the motorbike debris at the scene did in fact belong to her son, the Claimant said she instinctively knew it was from his bike and knew he was dead. She said that she felt an immediate pain in her stomach, as if her umbilical cord had been cut and it was ‘like watching some hideous film’. She was sent home by officers.

Police arrived at the Claimant’s house some hours later and told her that her son had been killed.

The Claimant suffered from Post Traumatic Stress Disorder (PTSD).

The Defendant argued that the Claimant suffered PTSD as a result of being informed of her son’s death by the police at her home and not as a result of events perceived at the crash site. The Defendant argued that the police visit could not form part of the immediate aftermath of the accident.

“Immediate aftermath” is a legal term. In order to claim damages for psychological injury as a secondary victim a claimant must perceive the actual accident or its immediate aftermath with their own senses, and what (s)he perceives must be shocking so as to violently agitate the Claimant's mind and bring on psychological damage through shock.

Recorder Norman in his judgment said that, in this case: “The immediate aftermath extended from the Claimant’s presence at the crash site to the moment of the Claimant being informed of her son’s death by police at her home. It is therefore artificial to compartmentalise the scene into the events perceived at the crash site, waiting at home, and the news imparted by the police.

“I find PTSD was caused directly by the Claimant’s perception of the immediate aftermath.”

Francesca Martin said: “The point of interest in this case is that on these facts, the immediate aftermath of the accident extended from the Claimant's presence at the crash site to her being informed of her son's death by police several hours later at her home.

“The immediate aftermath can be extended, on authority such as Galli-Atkinson V Seghal 2003 Lloyds Rep Med 285, however each case will depend on its own facts.

“Whilst it is challenging for the Claimant to succeed in many secondary victim cases, justice was done on this occasion. The Claimant suffered from seeing the wreckage of her son’s bike in pieces on the road and immediately developed symptoms of shock, which worsened with each hour that passed, until she received that fatal knock of her door by police.”

Award winning No5 Barristers’ Chambers is one of the UK’s premier sets of chambers with offices in Birmingham, London, Bristol and Leicester and boasts more than 240 barristers and 36 Queen's Counsel. 

Click here for Francesca Martins profile.

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