ARC Costs were recently instructed to assist in the recovery of legal costs incurred in a case which involved three secondary victims of a clinical negligence case. We were successful in recovering 70-78% profit costs for the claimant solicitors in these cases.

What are secondary victim claims?

secondary victim claims refer to legal actions brought by individuals who have suffered psychiatric harm or psychological injury as a result of witnessing a traumatic event involving someone else. These claims are recognised in certain circumstances where the claimant was not directly involved in the incident but experienced mental distress due to a negligent act and shocking event.

The landmark case law that established the principles for secondary victim claims in England is Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. This case involved the Hillsborough disaster, where a tragic human crush occurred during a football match at Hillsborough Stadium in Sheffield in 1989. Several people were killed or injured during the incident.

The claimants in Alcock were relatives and close friends of the victims who were not physically injured but suffered psychiatric harm due to witnessing the traumatic events or their immediate aftermath. They brought claims against the police for negligently causing the harm they experienced.

The House of Lords (now known as the Supreme Court) set out the criteria for establishing a secondary victim claim in this case. These criteria are commonly referred to as the “Alcock test”:

• Proximity: The claimant must have been in close proximity to the accident or its immediate aftermath, either in terms of time or space. This was highlighted in the case of Paul v The Royal Wolverhampton NHS Trust in which secondary victim claims were struck out due to a separation in time from an earlier act of negligence.
• Shock: The claimant must have experienced a sudden and horrifying event that caused them to suffer a recognised psychiatric injury.
• Close tie of love and affection: The claimant must have a close relationship with the primary victim(s) of the accident.
• Reasonable foreseeability: It must be reasonably foreseeable that a person of ordinary fortitude would suffer psychiatric harm as a result of witnessing the incident.

Case study: Background of the case

ARC Costs successfully recovered 70-78% of profit costs for solicitors acting in three secondary victim claims which arose as the result of the death of the primary victim due to clinical negligence.

The three secondary victim claims were in respect of the father, mother, and brother of a deceased primary victim, who suffered death due to a misdiagnosis, delay in diagnosis and treatment for invasive meningococcal disease and septicaemia.

The secondary victims witnessed the suffering and death of the primary victim who was taken to hospital as he was extremely unwell with vomiting, neck stiffness, headaches and a rash. At triage, it was noted that the primary victim was extremely unwell and was listed as the next person to be seen by a doctor. However, the rash was not documented.

On review by a doctor, blood tests were arranged and a diagnosis of gastroenteritis was made. The plan was to discharge the claimant once his blood results had returned. Upon receipt of the blood test results, they were grossly abnormal such that it was believed the same had been mixed up and were for another patient. Accordingly, repeat bloods were taken.

Pending receipt of those blood test results, the primary victim became increasingly agitated and complained of increased pain. The rash had also spread and changed. A consultant was called and re-reviewed the primary victim and noted that the rash had been present when he assessed the Deceased previously.

The consultant was not concerned and advised that critical care was not required. Two senior nurses reviewed the primary victim when they commenced their shifts and were extremely concerned about the primary victim’s condition such that they overruled the consultant and escalated the primary victim’s care.

Upon assessment by the critical care doctor, the primary victim was in extremis and required invasive support. He was intubated and ventilated but efforts to save the primary victim were in vain as intervention was too late. The meningococcal disease had continued unabated and the primary victim died from invasive meningococcal disease and septicaemia.

As a result of witnessing the shocking death of the primary victim, the three secondary victims suffered psychiatric injury, including Post Traumatic Stress Disorder (PTSD), depression and anxiety. They therefore sought legal advice and representation to pursue their secondary victim claims.

Although the Defendants admitted liability for the death of the primary victim, they put all three secondary victims to strict proof for their secondary victim status.

Due to the nature of the victims’ injuries, a number of psychological and psychiatric witnesses were required to act in each case to assist in proving that they had suffered as a result of the primary victim’s death. Psychological treatment was also recommended for all victims.

All three cases were listed for trial; however, the Defendant proposed Caldederbak offers in each case, and all three were settled by way of Tomlin Orders following negotiations. The cases were settled at this point, save as to costs. The defendants in the case were responsible for paying costs.

How ARC Costs assisted in the recovery of secondary victim claims costs

ARC Costs were instructed to prepare Bills of Costs for the three cases, as well as assist in the negotiation of costs through the process of Detailed Assessment.

The bills of costs included disbursements for Counsel fees, expert witness fees, and solicitor’s hourly rates.

The profit costs recovered within the Bill of Costs for the first secondary victim was 78.6% of the profit costs claimed.

For the second secondary victim, we recovered 70.24% of the claimed profit costs; and for the third, we recovered 72.2% of claimed profit costs.

How can ARC Costs assist?

The expert team at ARC Costs regularly assist in the recovery and negotiation of legal costs in all types of cases, including secondary victim claims, and clinical negligence cases.

We can assist both claimants and defendants in the legal costs process by drafting bills of costs, points of dispute, and replies to points of dispute. Our Costs Lawyers can also provide representation at detailed assessment hearings if you are unable to agree your costs.

We can be contacted via email at info@arccosts.co.uk, or by telephone on 01204 397302. For more information on legal costs, please find out more about our speciality areas of expertise and our services on our legal costs page.

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