What are the laws surrounding secondary victim claims?
The laws surrounding ‘secondary victim’ claims are not particularly well-known, although in general terms they enable individuals who have endured an adverse psychological reaction to an incident to pursue a compensation claim.
Historically, such instances were referred to in law as “nervous shock” cases, with many relatives of the Hillsborough victims pursuing civil claims in the Alcock v The Chief Constable of South Yorkshire case in 1992.
The House of Lords looked unfavourably on these claims, underlining the scepticism that’s widely associated with secondary victim conditions. But what are the laws surrounding these claims, and should they be changed to help protect secondary victims?
What are the Criteria for Secondary Victim Claims?
The criteria for secondary victim claims is notoriously strict, which is at least partially why so few claimants actually succeed in court.
To begin with, secondary victims must first prove that they have a relationship of love and affection with the primary victim, while the current law also stipulates that they must have come across the immediate aftermath of the event.
Thirdly, they’re required to have developed ‘nervous shock’ through either witnessing or hearing the accident unfold, or being present on the scene in the immediate aftermath.
Finally, the law states that any nervous shock endured by the claimant must have been caused by an external dramatic event, rather than merely the injury or subsequent death itself.
In truth, there are challenges with each of these requirements, as under the current law only parents, children, spouses and fiancés are eligible to prove that they have a relationship of love and affection. This is clearly at odds with modern life and values, as it prevents long-term partners from claiming as secondary victims even if they meet every other item of criteria.
Not only this, but the fact that claimants are required to have either witnessed or been present at the aftermath of the event appears hugely unfair, primarily because it discriminates against loved ones who have been told of the event by telephone or by the police visiting their door.
It’s thought that this law is in place to prevent a dramatic increase in the number of claimants with opportunistic cases that are almost impossible to prove, while the final piece of legislation is also designed to stop individuals from pursuing compensation in instances where their loved ones have passed regardless of the circumstances.
Should and Could These Laws be Changed?
Despite the challenges associated with these laws, it’s unlikely that the government will change them too much in the foreseeable future.
However, work could be done to ensure that the wording of the legislation is updated to become more precise, particularly when defining what should be accepted as the ‘immediate aftermath’ of an instance and whether or not the event was particularly shocking.
While the details of a case are much easier to determine in the event of birth injury compensation claims (thanks largely to the proximity of those involved), this challenge may prove far harder in instances such as road traffic accidents and injuries at work.
At the very least, adapting the legislation would reduce the number of spurious cases with minimal chance of success, while it would also ensure that justified claimants are able to receive the support, acknowledgement and compensation that they deserve.
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