Primary colours are colours in their own right. They cannot be created through the mixing of other colours. The 3 primary colours are red, yellow and blue.
If you mix primary colours together, you get secondary colours. Combining them in pairs gives you green, purple and orange.
You can view the primary colours as sitting in the middle and forming the root of the colour system, with all other colours further out, like ripples on a pond spreading out from the centre. Primary colours are the most important and secondary colours are subsidiary.
“Primary” and “Secondary” are terms used by lawyers to describe victims in relation to compensation claims for nervous shock. The same sort of explanation for the difference between them works here too. In terms of space and time, primary victims will have played a more significant role in the “events” than secondary victims. They take centre stage whereas a secondary victim is in more of a supporting role, towards the wings.
The term “nervous shock” is not a medical term of art.
Instead, it is a shorthand expression used by lawyers to describe a range of psychiatric illnesses. Recovery of compensation for nervous shock is a controversial area of the law which is the subject of constant discussion and review. It is an area where public policy plays a significant role.
In this article, we will look at the difference between primary and secondary victims in nervous shock claims. We will then consider why there is a distinction between them. Finally, we will discuss the tests which secondary victims need to satisfy in order to be able to claim successfully.
To be a primary victim, you must be directly involved in the accident circumstances.
One example of this would be a vehicle passenger involved in a road traffic collision. Another would be a workman who is electrocuted because he strikes a high-voltage power cable while digging a trench on a building site.
The definition of “primary victim” means that bystanders are generally not able to claim as primary victims.
The general rules for primary victims are as follows:
- Provided it was a type of accident where personal injury was reasonably foreseeable, you should be entitled to compensation even if the nervous shock is not accompanied by physical injuries.
- In a “no physical injuries” situation, however, you will not be able to recover compensation unless the symptoms amount to a medically-recognised psychiatric disorder (we have considered this elsewhere in an article relating to “Minor injuries” claims).
- If there are physical injuries, on the other hand, you can claim compensation for a nervous reaction which falls short of a recognised psychiatric disorder (e.g. bruising (physical injury) plus “severe shock”, “shaking up”, “distress”, or “anxiety”).
Secondary victims are people who, although not directly involved in an accident, have witnessed something distressing from the accident.
This could be because the accident resulted in someone’s death or in serious injury to another (e.g. electrical burns in the example given above).
For a secondary victim’s claim to succeed, they must have a “proximity relationship” with the injured person.
In other words, there is a whole series of control tests which are secondary victim must satisfy, beyond the basic tests for a primary victim. It is much more difficult to succeed with a claim if you are a secondary victim than if you are a primary victim.
We have been reminded of the primary / secondary distinction in the recent past.
In 1989, 96 Liverpool fans died as a result of the Hillsborough stadium disaster. In 2016, an inquest jury found the victims to have been unlawfully killed.
Following the disaster, 16 people claimed compensation for psychiatric harm, after people close to them were killed. It is a case known to lawyers as “Alcock”. In their 1992 decision, the Law Lords clarified the law and the limits on the circumstances in which anyone can claim compensation as a “secondary” victim.
The restrictions on that category of claimant were that it would normally only be persons who directly perceived the accident events and who had close ties of love and affection with the victim who could claim.
You would have to prove a close tie of love and affection, if you were not a parent, child or spouse of the person who had been killed or injured. Secondly, the event had to be one particularly shocking event – a traumatic event. Thirdly, you had to perceive the event through your unaided senses.
So, for example, if you had seen what was happening at Hillsborough on live TV and you were affected by it because you saw one of your loved ones being killed or seriously injured, that would not count for compensation. You had to actually be there at the time and you had to see it.
These public policy controls are sometimes referred to as the “hearness, nearness and dearness tests”.
As so often with the law, each case will depend on its own circumstances, to some extent, and the above is not an exhaustive explanation of the law in relation to secondary victims.
The arbitrary limits are imposed on secondary victims due to fears stemming from the floodgates argument.
This is a means sometimes used by judges to restrict the right to make claims for compensation because of a concern that allowing a claimant to recover in such situations might open the metaphorical “floodgates” to large numbers of claims.
So, in Alcock, Lord Oliver said:
It would be inaccurate and hurtful to suggest that grief is made any the less real or deprivation more tolerable by a more gradual realisation, but to extend liability to cover injury in such cases would be to extend the law in a direction for which there is no pressing policy need and in which there is no logical stopping point.
But how reasonable is the floodgates argument here?
If we are disputing the restrictions placed by the law on recovery of compensation by secondary victims, we could point to the fact that, fortunately, disasters such as Hillsborough are rare. They don’t open up the prospect of limitless claims.
Also, you have to remember that the restriction is always going to be there that a potential claimant will have to prove that they have actually suffered a psychiatric injury. That is quite a significant check in its own right.
It is arguable that the world has moved on considerably in the last 25+ years:
- We now have the World Wide Web.
- We have social media.
- We have mobile phones.
It could be said that it makes a mockery of the law to say that people who are traumatised as a result of watching a loved one die, in those circumstances, cannot make a claim for compensation.
To corrupt an analogy we have employed elsewhere, in another context, we could say that here we see
Law, marching with technology, but in the rear and limping a little.
Some would argue that the law is far behind.
Summary
- We have considered how nervous shock claims depend on whether you are a primary or secondary victim.
- Primary victims are directly involved in the accident; secondary victims are not.
- As a general rule, you will have better prospects of claiming compensation for nervous shock, if you are a primary victim.
- Whether you, as a secondary victim, can claim successfully for psychiatric harm suffered through the injury or death of another will depend on whether you can bring yourself within the limits which have been set down by the law. These restrictions have been imposed – it is said – to prevent the floodgates opening and the legal system being swamped with claims.
- Advocates of the rights of secondary victims see red when it comes to the present state of the law. They’ve got the floodgates blues. They caution (yellow!) against the law remaining this way.
- With continuing advances in technology and our ability to perceive events “as they happen” (among other things) expect further attempts by claimants to expand the limits of recoverable loss and injury in this area.
How we can help
If you have any questions about an issue raised by this article, please get in touch with us. We are always happy to deal with enquiries, whether about matters discussed in this post or about any aspect of our personal injury claims services.
You can contact our accredited, specialist solicitors – Peter and Marie – on 01343 544077 or send us a Free Online Enquiry.
