It is hard to escape the notion that the rise in the number of secondary victim claims in recent years owes its success to the amorphous concept of ‘proximity’. The test of proximity itself is well established: a secondary victim claimant can only establish a claim in law as a result of witnessing an event or its immediate aftermath. Establishing proximity does not pose much of a problem if the claimant has witnessed an accident itself; what remains controversial is defining the limit of “the event” and its “immediate aftermath”. Having looked at the decisions of the Courts on this issue, one would be forgiven for thinking that the boundaries are imposed somewhat arbitrarily.
A comparison of two cases illustrates this. In Taylorson v Shieldness Produce Ltd  PIQR P329, CA a 14 year old boy suffered very severe head injuries when he was pulled beneath the wheels of an HGV. The parents were not present at the accident and therefore had to establish that they witnessed the immediate aftermath of the event. In fact, the parents learned of the accident very soon after it had occurred by telephone and a subsequent visit by the police. The parents drove to hospital where they were told that their son was being transferred to another hospital and were advised to follow the ambulance. When they arrived at the second hospital, the mother saw her son’s feet as they passed the ambulance. Inside the hospital their son passed them on a trolley as he was rushed to the Intensive Care Department and his mother saw the boy with blood on his face, whilst the father saw his son’s hand hanging out from under the blankets. About 8 or 9 hours after the accident the father saw his son again, after treatment, with black eyes, blood on his face and a tube attached to the top of his head relieving pressure on his brain. The next day both parents saw their son unconscious in the same state. Approximately three days post-accident, and following medical advice, the father switched off the life support machine and permitted his son to die.
The Court of Appeal rejected the parents’ claim as secondary victims on the basis that what they saw did not form part of the immediate aftermath of the accident. McCowan L.J stated that it “would create a very considerable extension of the law as laid down in Alcock… For us to find liability established in the present case would, in my judgment, be to do exactly what Lord Oliver said we should not do, that is to say, take a further step along the road which must ultimately lead to virtually limitless liability. I, for my part, am not prepared to do this” (p335).
Contrastingly, in the case of Galli-Atkinson v. Seghal  EWCA Civ 697, the Court of Appeal allowed the mother’s claim as a secondary victim. In this case, the 16-year old daughter of the appellant was killed when the respondent’s car mounted the pavement and struck her. The accident itself happened at about 7.05pm and she was pronounced dead at 7.40pm; the injuries sustained by the girl were described as “horrific”. Her mother reached the police cordon about an hour post-accident. She tried to cross the tape, and when confronted by a policeman told him that she was looking for her daughter. The mother’s account was that she was asked the name of her daughter and was told that she had died. There was no evidence that she saw anything of the consequences of the accident, apart from the cordoning tapes. The mother, father and other daughter went together to the mortuary at about 9.15, where the mother saw her daughter’s body, which was described as “grotesquely distorted” and “disfigured”.
In allowing the mother’s claim, the Court of Appeal reasoned that “In the present case, the immediate aftermath, in my view, extended from the moment of the accident until the moment that the appellant left the mortuary. The judge artificially separated out the mortuary visit from what was an uninterrupted sequence of events, quite unlike the visit to the mortuary under consideration in Alcock. The visit with which we are concerned was not merely to identify the body. It was to complete the story so far as the appellant was concerned, who clearly at that stage did not want – and one can understand this – to believe that her child was dead.” (see ).
When faced with these two decisions, one can’t help but recall the comment of Lord Steyn in Frost v Chief Constable of South Yorkshire  2 AC 455 (at 511), who considered that “the search for principle was called off in Alcock”. However, it is only by returning to the judgment in Alcock v Chief Constable of South Yorkshire Police  1 AC 310, that one begins to understand the principles that should be applied in secondary victim cases.
In Alcock, Lord Oliver reminds us that “Although it is convenient to describe the plaintiff in such a case as a “secondary” victim, that description must not be permitted to obscure the absolute essentiality of establishing a duty owed by the defendant directly to him—a duty which depends not only upon the reasonable foreseeability of damage of the type which has in fact occurred to the particular plaintiff but also upon the proximity or directness of the relationship between the plaintiff and the defendant”. Therefore satisfying a Court that the secondary victim witnessed the ‘event or its immediate aftermath’ should properly be seen as a way of establishing that relationship of proximity between the secondary victim claimant and the defendant.
The fact that a secondary victim has to be proximate to the defendant’s negligent act or omission is of course based on the same principles which allow for a duty of care between a primary victim and defendant in tort. In respect of the primary victim, it is the negligent event that gives rise to a duty of care that has been breached, not the injury itself. This goes back to the basic principles in Donoghue v Stevenson  AC 562, where Lord Atkin defined a neighbour for these purposes to include “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected”. If there is no link with the act or omission then it is not reasonable to impose a duty on the Defendant owed to the secondary victim.
Subject to satisfying the other criteria in Alcock, this is why a duty is readily imposed where a secondary victim witnesses an accident caused by a defendant. Where confusion has crept in is where the Courts have tried to extend the link between a secondary victim and the event by allowing for recovery if the claimant witnesses the ‘immediate aftermath’. Again, the relationship between the defendant’s act or omission and the secondary victim has to be retained, which explains why a secondary victim will only be successful if the events that they come upon are sufficiently related in both time and nature to the original accident, rather than bearing witness only to the primary victim’s injuries. This distinction follows the clear guidance in McLoughlin v O’Brian  1 AC 410 at :
“To state, therefore, a rule that recoverable damages must be confined to persons on or near the highway is to state not a principle in itself but only an example of a more general rule that recoverable damages must be confined to those within sight and sound of an event caused by negligence, or at least to those in close or very close proximity to such a situation… It is, after all, the fact and consequence of the defendant's negligence that must be proved to have caused the nervous shock.”
Such a distinction starts to explain why some secondary victims were successful in their claims and others not in the following cases:
- In Galli-Atkinson, the parents went to the scene of the accident before attending the morgue and seeing their daughter’s body; this was described as “completing the story”. In this case the parents had a direct appreciation of the extent of the accident, having been to the scene, as responsible for the injuries sustained by their child. Contrastingly in Taylorson v Shieldness Produce, the parents only saw their son on a trolley in the hospital, which bore no resemblance to the scene of the accident.
- In McLoughlin, the claimant saw her injured children and husband covered in blood and oil with significant injuries, in much the same condition as they would have been if she had witnessed the scene of the accident itself. Contrastingly, in Farmer v. Outokumpu Stainless Limited (2006), the Recorder held that the wife did not see the immediate aftermath as although she saw her husband’s smoke blackened face and singed hair in hospital, he was covered by a sheet with his burns dressed. The claim essentially failed as the claimant’s experience was not related to the nature of the accident. When considering McLoughlin, the Recorder noted “it was plain that their Lordships were likening the scene [at the hospital]… to the scene of the actual accident” (p10).
The requirement of establishing a relationship between the secondary victim and the defendant’s act and omission explains why a duty of care will not arise solely as a result of witnessing the injuries suffered by the primary victim. The injuries are truly a consequence of that negligence, which is why the secondary victim’s claim in Taylor v A Novo  EWCA Civ 194 failed.
Indeed, if a duty of care was established every time a party witnessed the injuries sustained by a victim, with no appreciation of the event, then this would be, as noted by Hallet J in White v Lidl UK GmbH  EWHC 871 (QB) “tantamount to saying that provided a claimant can establish a causal link between their injury and the defendant's negligence then they have a claim. That is not the law and never has been. [The Claimant] must establish on behalf of the claimant a duty of care owed to him by the respondents. He must establish the legal and factual proximity” (see ).
There have been a number of cases in the past year, particularly the case of Taylor v Novo, which appear to have established some clarity in the law in respect of proximity. There does, however, appear to be two scenarios where further clarity is needed.
One of the key themes that emerges from recent authorities is that a secondary victim claim will fail where the primary victim has received treatment such as to make that scene sufficiently different to that at the accident itself. However, there has been no decision where the primary victim is in A&E, having had relatively little treatment. At first blush, the decision in McLoughlin appears to leave it open for a secondary victim to recover if they beat the ambulance to hospital and witness the primary victim prior to receiving treatment. However, in applying the principles set out above, unless the situation bears a resemblance to the scene of the accident, a secondary victim will not recover: it is not enough to simply be a witness to the injuries sustained. Given the fact that victims nowadays receive road side treatment, it is very unlikely that one would see the same scenes that occurred in McLoughlin, covered in oil and dirt.
The second unchartered territory is a firm decision on the ability to recover as a secondary victim in cases of clinical negligence omissions, where the horrifying event is likely to be the consequence of the negligence, which according to Taylor v Novo is not sufficient to establish a duty of care. The high water mark case of NHS Glamorgan NHS Trust v Walters  EWCA Civ 1792 was a negligent omission case where the Court of Appeal appear to have treated the baby’s fit (a consequence of a earlier omission) as the relevant event. However, it appears that the point was never taken in the case and had the decision followed Taylor v Novo, is unlikely to have succeeded absent an extension of the law. If the law remains as it is, in omission cases, unless the negligent omission and injury happen instantaneously and within the presence of the secondary victim, a secondary victim is unlikely to recover.