Could FaceTime trauma create a new type of secondary victim? - Alannah Jones

What is a secondary victim and how might such claims succeed in the digital age?

A primary victim is someone who was directly involved in an accident. A secondary victim is someone who witnessed the injury of another, but was not at risk of physical injury.

In the case of Alcock, the court held there was no duty of care to the friends and relations of those who died in the Hillsborough disaster who watched the event on television. The claimants could not identify their relatives on the events being broadcast and they were not at the scene of the accident.

Should witnessing a traumatic incident during a FaceTime call with a close relative be treated the same as being physically present at an accident scene? (Picture: stock.adobe.com)

Alcock therefore acted as a floodgate barrier to similar claims. In Taylor v Novo, from 2013, a woman suffered a workplace accident that resulted in injury. She suffered a fatal thrombosis three weeks later. Her daughter witnessed her death and sued her mother’s employer for PTSD she sustained as a result.

The daughter’s claim was rejected on appeal. The relevant event was the accident, not the death of the mother. The court decided that if the death was the relevant event, the mother’s employer would owe a duty of care, even if she died years later.

The Supreme Court’s 2024 decision in the conjoined appeal of Paul, Polmear and Purchase concerned psychiatric injury to relatives who witnessed the deaths of loved ones after the alleged clinical negligence occurred (and the death was a result of the negligence).

The key issue was whether doctors owe a duty to a patient’s family to protect them against the risk of injury they might suffer from witnessing the death/injury of a relative due to illness caused by medical negligence, i.e. where there is no “accident”?

The court decided there is no duty of care to the patient’s relative. To establish such a duty would widen the scope for claims; an unattractive prospect due to the long-standing fear of opening floodgates.

The court instead focused on two key requirements: Has there been an “accident”? and Was it directly witnessed by a secondary victim?

We live in a digital age, but Alcock is based around traumatic events being televised. Imagine witnessing a traumatic incident on FaceTime. You are on a 1:1 call with a close relative. You witness everything but filtered through your mobile phone and internet. Should this experience be treated the same as being physically at an accident scene?

Whereas a person who witnesses an incident via television or social media is unlikely to know the people involved, there is not that degree of abstraction in witnessing an event unfold first-hand on a private video call. The familiarity of the person involved makes the incident even more vivid. There could be a novel argument that this fulfils the criteria for secondary victim status (assuming of course it is an accident and not a medical crisis per PPP).

But will the quality of the digital medium, for example signal strength, have any impact on how a court perceives the way an individual witnessed an accident? How would you prove the call wasn’t dipping? A recording of the video call would solve that, but who records all their video calls? This is a real hurdle and a court may use this point as another floodgate barrier.

Secondary victim claims in clinical negligence matters are unlikely to succeed due to PPP. Those practising personal injury can be reassured the test is more straightforward. Claims stemming from an accident witnessed digitally is a novel concept which will be interesting to explore.

Alannah Jones is a Senior Solicitor, Balfour+Manson