Last updated on April 6th, 2017 at 02:04 pm

Claimants must have ‘close ties’

The law relates to these individuals as ‘secondary victims’.  As is stands secondary victims are only those with an assumed ‘close tie of love and affection’ to the person who has died or been injured.  The law is very specific and determines such victims as the parent of a child under 18, spouse or civil partner.  Anyone other than these people would have to prove that they shared a close tie.  This includes siblings, partners and children.

Many medical negligence lawyers have long felt that the current law Is out of date and doesn’t  take into consideration the dynamics of today’s family structures or the severity of psychiatric injury.

More relatives and friends to be able to claim

The Negligence and Damages Bill seeks to increase the list of people who have a close link to the immediate victim and, which will include:

• Spouse
• Children
• Brother or sister
• Civil partner
• Fiancé
• Person living with the immediate victim as if married
• Person who accepted the immediate victim as their child
• Person brought up in the household of the immediate victim and accepted as a child of the family
• Grandparent or grandchild
• Person who accepted the immediate victim as a grandparent or grandchild
• Aunt or uncle
• Child or other issue of a brother, sister, uncle or aunt
• Former spouse (divorced) or civil partner (dissolved partnership)
• Colleagues
• Friends

Event must be ‘horrifying’ and ‘immediate’

Currently, as well as having, or proving that they have, a close tie, the secondary victim must prove that they have suffered due to witnessing a ‘horrifying’ event or its immediate aftermath and that it is immediate and sudden.   This cannot include seeing it on TV or being told about it.  Where someone witnesses a loved one dying or being injured in a car crash, for example, this is likely to be easily proved, but when it comes to medical negligence, it is far more difficult.  However traumatic the effects of seeing someone suffer as a result of such negligence, it is often not ‘immediate and sudden’ as, amongst other events that may occur, the victim’s relative is not normally present when a death or injury occurs and is told about it by a medical professional.

An example of how difficult it is to win such a medical negligence case can be seen in Liverpool Women’s Hospital NHS Foundation Trust v Royane (2015)  In this case Mr Ronayne pursued psychiatric damages after seeing his wife in hospital when she had sustained injuries as a result of negligence – it was said that she was blown up like the Michelin man.  After initially winning his case, the hospital appealed and won, with the judge suggesting that Mr Royanes’s wife was in a state that would be expected of a person in hospital in her circumstances and that it was not horrifying.

Need for ‘shock’ to be abolished

The new bill seeks to abolish the need for the secondary victim’s psychiatric illness to be brought on by shock.  It also says that success should not be based on the fact that he/she was close in time or space to the event that causes death or injury.  This may enable those who arrive at hospital to find a loved one has died as a result of negligence (or an accident), or those who watch a relative die following such an incident, to make a claim, providing they can prove that they have suffered a recognised psychiatric injury.

Compensation to be decided by courts

In England and Wales, where it is established that a secondary victim has suffered, a claim can be made for the statutory bereavement award and this is currently set at £12,980, based on the Fatal Accidents Act 1976.  The new bill proposes that the set award is abolished and courts are allowed to decide on the amount of award, based on certain criteria and parameters, suggesting that the damages paid should compensate for:

• Any loss of dependency which as a result of the act or omission is sustained, or is likely to be sustained, by the relative after the date of the deceased’s death, together with any reasonable expenses incurred by the relative in connection with his/her funeral; and
• All or any of the following:
  • Distress and anxiety endured by the relative in contemplation of the deceased’s suffering before his/her death.
  • Grief and sorrow of the relative caused by the deceased’s death;
  • The loss of such non-pecuniary benefit as the relative might have been expected to derive from the deceased had he/she not died.

Proposals offer fairer system

Graysons says “This bill is due for its second hearing on 4^th December.  It is early days, but I really hope that the recommendations within it are accepted all the way and become law.  The bill is supported by APIL (the Association of Personal Injury Lawyers), and rightly so as it will offer a far more sensible and fair way to obtain justice for people who suffer because a loved one dies or is seriously injured due to negligence.  In 1999 the Law Commission made recommendations in relation to fatal accidents but didn’t think statutory intervention was necessary as courts could implement the recommendations without recourse to legislation.   The recommendations were important as the Law Commission’s view is often given considerable weight by the courts.  Hopefully the passing of this bill and ascension into an act, and law, will cement those recommendations.”

If you have received medical treatment from doctors, nurses, dentists or other health service workers, and you believe that it was not up to the required standard and suffered or were injured as a result, you may be able to claim medical negligence compensation.  Contact our medical negligence experts now for help and advice.  You can also visit our medical negligence web pages.