20 January 2021

Secondary Victim Claims

04728039

For a decade, we have represented injured motorcyclists in the civil courts to recover damages for what are often serious and complex injuries.

It’s a sad fact that motorcyclists make up 1% of traffic on our roads yet account for around 20% of serious or fatal injuries. Motorcyclists involved in road traffic collisions are 40 times more likely to be killed than car drivers.

If injured in a collision that was not the fault of the rider, then he or she has a lawful right to receive compensation for their injuries, both physical and psychological.Secondary Victim Claim
It is a lesser-known fact that there are two categories of victims who can claim for psychological trauma; the primary and secondary victim. The secondary victim is an individual who suffers psychological injury due to witnessing the event. In order to recover damages as a secondary victim, it must be established that the secondary victim had:-

  1. A close tie of love and affection with the primary victim
  2. Witnessed the event or immediate aftermath of the event
  3. Had a direct perception of the harm to the primary victim; and
  4. Suffered a psychiatric injury due to witnesses the shocking event.

Motorcyclists often ride in groups with family and friends and witnessing a collision can have a lasting and traumatising impact. Cases for secondary victims are frequently contested, as all four elements of the criteria must be established.

Case Study 1

In September 2012, Simon took a motorcycle out for a test ride and around Kirkcaldy. His wife was at their family home and began to worry when he failed to return.

Knowing his route, she set out assuming he had broken down. As she left the house, she heard emergency sirens but thought nothing of it.

Whilst looking for her husband, she came upon a collision with a heavy police and ambulance presence.

She then recognised her husband’s motorcycle lying at the side of the road, extensively damaged. She ran toward the scene but was stopped by the emergency services. She was reassured that her husband had survived but he had been evacuated to hospital as an emergency. She was told to make her way to the Accident and Emergency Department where she would be able to see her husband.

She later recalled how her husband had been rushed to the ICU unit with breathing difficulties. He had been placed on a ventilator and had been unable to communicate with her for five days.

In the days and months that followed, she experienced flashbacks. Her sleep was disturbed and she was prescribed medication to ease the night terrors related to the accident.

We represented her husband in a claim for damages but also recognised that his wife had been a secondary victim. Following instruction of a Clinical Psychologist for a medico-legal report, a diagnosis was confirmed of a moderately severe Post-Traumatic Stress Disorder with secondary symptoms of a major depressive disorder. Psychological injury

However, the third-party insurer argued that she did not have secondary victim status as, although the love and affection criteria had been satisfied, there had not been a closeness in terms of time and proximity to the incident.

We referred to the case of McLoughlin v O’Brian, where a secondary victim visited the primary victim within an hour of the accident at hospital and successfully recovered damages.

We were able to successfully recover compensation for Simon’s wife as a secondary victim

Case Study 2

The following situation is perhaps more common as often wives, husbands, partners and off-spring share the love of motorcycling.

In October 2020, a couple were riding their motorcycles on the A85 and were on approach to the village of Comrie.

They intended to make a pit stop and whilst the lead rider was turning right, a collision occurred.

His partner watched on in shock as he lay unconscious on the tarmac. She thought the worst. Her partner was badly injured.

He was airlifted to Queen Elizabeth University Hospital for treatment.

After witnessing such a horrific event, she suffered psychological trauma. In the months following the accident, she often relived it over and over in her head. She recalled how she thought her partner had died as he was rendered unconscious.

She was left unable to work as an HGV driver and suffered wage loss. She attended her GP who subsequently arranged a treatment plan. We instructed a Consultant Chartered Psychologist for a report and unsurprising she found that the witnessing of the event had caused Post-Traumatic Stress Disorder.

The criteria for a secondary victim claim were satisfied in that she was the partner of the primary victim, had observed the incident when it had occurred and suffered from Post-Traumatic Stress Disorder in the aftermath.

We were able to secure an award of compensation for the secondary victim whist also acting for the primary victim.


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