Secondary Victims: The Legacy of the Hillsborough Disaster
In medico-legal cases involving claims for psychiatric injury, the Courts will sometimes distinguish between two kinds of victim: primary and secondary.
A primary victim is someone who is involved as an active participant in an incident and who suffers physical or psychological harm as a result of someone else’s actions—for example, someone who is injured in a car crash and who sues the other driver for damages.
A secondary victim is someone who suffers psychiatric harm from witnessing a primary victim's injury (or its aftermath), even though they themselves were not at risk from the incident. As we outline in this post, one of the classic cases of a secondary victim concerns a woman who witnessed the aftermath of a car crash that her husband and children had been involved in. The shock of this experience caused her to suffer lasting psychological damage, for which she sued the other driver who had crashed with her husband.
The details of her claim went on to be very influential in the landmark case that defined the concept of secondary victims: Alcock v Chief Constable of South Yorkshire Police (1992), which was heard in the wake of the tragic Hillsborough disaster. As we outline in this post, this case and certain later rulings have led to a fairly strict definition of secondary victims, who must be able to demonstrate the following:
That they suffer from a recognizable mental disorder (such as post-traumatic stress disorder, for example), and that a person of “normal fortitude” might be expected to suffer that disorder as a result of the shock caused by the incident in question.
That they had a close relationship of love and affection with the primary victim.
That they were in close proximity in time and space to the primary injury or its aftermath.
That their secondary psychiatric injury was caused by the sudden and unexpected shock of the primary injury, rather than simply by grief or sorrow.
As we shall see, several aspects of this definition are open to interpretation, and the need to satisfy all four criteria of secondary victimhood can make it extremely difficult for people who have witnessed an awful event to overcome the high burden set by the Courts. To see why this is the case, it is important to understand the legal history of primary and secondary victims, which is closely connected to the legacy of the Hillsborough disaster.
The Hillsborough disaster
This tragic event took place during the 1989 F.A. Cup semi-final at Hillsborough Stadium in Sheffield. The South Yorkshire police force, in charge of managing crowds for the match, allowed excessive numbers of supporters to enter the stadium, many of whom were then crushed to death inside. In total, ninety-six people were killed, and hundreds more were physically and psychologically injured.
Following the event, the Chief Constable of South Yorkshire Police admitted liability in negligence for the deaths and physical injuries. However, sixteen actions were then brought against him by people who were not involved in the disaster themselves (though four were present at the ground). The plaintiffs were all related to people who had either been killed or severely injured during the incident. The ones who had been present at the ground claimed to have witnessed the disaster first-hand, while the others stated that they had watched the images of it broadcast live on television during the match and then on repeat in multiple news reports. In all cases, the claimants stated that they had suffered psychiatric damage from having watched their loved ones being killed or injured.
Their claims were eventually heard in the House of Lords. It was in this hearing that the distinction between primary and secondary victims was established. The Lords stated that the law should separate plaintiffs into two categories:
Those cases in which the injured plaintiff was involved, either mediately or immediately, as a participant, and those in which the plaintiff was no more than a passive and unwilling witness of injury caused to others.
Importantly, however, the Lords also noted that, while the terminology of “primary” and “secondary” was helpful, it was not meant to imply that the damage suffered by secondary victims should be taken less seriously. It was still the Court’s responsibility to assess whether the Chief Constable, having admitted negligence for the harm done to the primary victims, was also guilty of negligence for the harm done to the secondary victims. To make this judgment, they turned to an earlier case regarding a woman who had experienced “nervous shock” after witnessing injuries suffered by her husband and children.
The definition of “nervous shock”
The case in question was that of McLoughlin v O’Brian (1983). The plaintiff was a woman whose husband and three children had been involved in a motor accident. When she learned of the accident two hours later, the woman was taken to hospital, where she was told that one of her children had died. At the hospital, she saw the injuries suffered by her husband and her other children. As a result of the experience, she claimed to have suffered “severe shock, organic depression, and a change of personality.” The judge had no reason to doubt that she really had suffered these symptoms, which today would most likely be diagnosed as evidence of post-traumatic stress. It was also adjudged that these symptoms had been caused by a violent and horrifying “shock,” the effects of which went “well beyond that of grief.”
The other driver involved in the car crash had admitted negligence for the physical injuries caused to the woman’s husband and children. But the woman also alleged that he owed a duty of care for the psychiatric damage she had suffered. On appeal in the House of Lords, the woman’s claim was upheld. In making their judgment, however, the Lords declared that there was “a real need for the law to place some limitation upon the extent of admissible claims” because “shock in its nature is capable of affecting so wide a range of people.” The Lords therefore outlined three elements that they felt should be considered in any claim relating to shock:
What the relationship is between the person involved in the incident and the person who suffers shock. The Lords argued that when the persons involved were of the “closest family ties (of parent and child, or husband and wife),” then their claims should be recognized and considered. However, they also stated that, while “defendants cannot be expected to compensate the world at large,” cases involving “less close relationships must be very carefully scrutinized,” suggesting that there may well be other close relationships expected to produce shock.
How proximal the person is to the accident. The Lords declared that, for a person to suffer shock, they must have been “close in both time and space” to the accident. They stated that this did not necessarily mean that the defendant had to be present at the event, but, at the very least, they had to have been immediately affected by its aftermath.
How the person experiences the shock. The Lords declared that a plaintiff could not be compensated for shock if the information about the accident was only communicated to them via a third party; the plaintiff had to have witnessed the event or its aftermath first-hand. They stated that the “shock must come through sight or hearing of the event or of its immediate aftermath. Whether some equivalent of sight or hearing, e.g. through simultaneous television, would suffice may have to be considered.”
The significance for the Hillsborough case
These three elements (and the last point in particular) were central to the decisions made in Alcock v Chief Constable of South Yorkshire Police. In this case, the Lords ultimately dismissed the claims of the plaintiffs, but for different reasons in each case. In so doing, they elaborated on each of the elements listed above, further defining the criteria required for someone to be considered a secondary victim.
In regard to the closeness of the relationship between primary and secondary victims, for example, one plaintiff’s case was dismissed because he was the brother of a primary victim, rather than a husband, wife, parent, or child. This man had attended the F.A. Cup match with his two brothers but had been in a different stand to them. He had witnessed the horrifying incident from within the stadium and then, when the match was abandoned, had tried unsuccessfully to find his brothers. He had waited up all night checking news reports before being told at 11 o’clock the next morning that they had died. The Lords ruled, however, that there was not enough “evidence of particularly close ties of love or affection with the brothers.” Similarly, another person’s case was dismissed because the primary victim was their grandson; this relationship was also deemed not to have been sufficiently “close.” Only a couple who lost their son, and a woman who lost her fiancée, were deemed close enough to the primary victims to have been potentially vulnerable to shock.
Even in these cases, however, the Lords still refused to uphold their claims. This was due to the second and third elements of the judgment in McGloughlin v O’Brian. The Lords stated that, while the distressing images of the primary victims were shown on television, none of these images “depicted suffering of recognizable individuals, such being excluded by the broadcasting code of ethics.” In the cases of those plaintiffs present inside the stadium, the Lords stated that they had witnessed the disaster from a vantage point that had been too far removed to allow them to identify their specific relatives. The Lords stated that this did not measure up to the requirements for proximity outlined in McGloughlin v O’Brian. They went on to state, therefore, that the scenes could not “reasonably be regarded as giving rise to shock,” regardless of how distressing they might have been:
They were capable of giving rise to anxiety for the safety of relatives known or believed to be present in the area affected by the crush, and undoubtedly did so, but that is very different from seeing the fate of the relative or his condition shortly after the event. The viewing of the television scenes did not create the necessary degree of proximity.
The floodgates principle and subsequent debate
The ruling in the Hillsborough case shows that the burden required to prove shock as a secondary victim is high. The reason for this is to limit the possibility of many people claiming damages as secondary victims, particularly in the wake of an incident that is heavily publicized. This is known as the “floodgates principle,” which is commonly cited in cases relating to nervous shock and secondary harm. The judgment in Alcock v Chief Constable of South Yorkshire Police leaned heavily on this principle, while acknowledging that it did not bring much comfort to the plaintiffs:
It would be inaccurate and hurtful to suggest that grief is made any 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.
This principle of not opening up the floodgates has continued to hold in many of the more recent cases involving secondary victims. It was perhaps most evident in the case of Liverpool Women’s Hospital NHS Foundation Trust v Ronayne (2015). In this case, a man sustained a psychiatric injury after witnessing his wife undergoing emergency surgery for septicaemia, which had been caused by a misplaced suture during a previous hysterectomy. The husband found the sight of his wife attached to various machines highly distressing, particularly in the wake of the botched surgery that she had recently undergone. However, the Court of Appeal found that, while this was an appalling sequence of events, it was not “shocking” because, by objective standards, a person of “normal fortitude,” as defined by Page v Smith (1995), should expect their loved one to be connected to medical equipment when in hospital. Indeed, they argued that a person’s reaction in this scenario would typically be one of gratitude for the advances of modern medicine. In this way, the case established that witnessing the distressing treatment (or even the death) of a primary victim in hospital would most likely not qualify a person as a secondary victim unless that treatment was unexpected and therefore shocking. The ruling, in other words, closed the floodgates even further by adding more restrictions to the definition of secondary victimhood. It signalled what will most likely be the Courts’ future approach to cases of this nature: they seem intent on limiting the number of people accorded secondary victim status despite recognizing the significant distress suffered by people who witness traumatic events.
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