Glasgow bin lorry tragedy: claim of traumatised witness rejected

Danielle Weddle v Glasgow City Council [2019] SC EDIN 42

Executive Summary

The All Scotland Specialist Personal Injury court has dismissed a claim made by a student who suffered post-traumatic stress disorder (PTSD) after being present at the scene of the 2014 Glasgow bin lorry tragedy which led to the deaths of six people.

The pursuer, Danielle Weddle, saw her claim dismissed as she was unable to satisfy the court that she met the criteria to classify her as a “secondary victim” of the incident despite there being no doubt that she had developed PTSD as a direct consequence of her presence at the scene of the incident.

The Law

The law makes a distinction between primary and secondary victims and Ms Weddle was found by the court to fall into the latter category. It is this categorisation and restriction on the claims of secondary victims that is central to the dismissal of Ms Weddle’s claim.

A primary victim is one who has been directly involved in the incident to which the claim relates. An example of this would be a driver or passenger involved in a road traffic accident (RTA). A secondary victim for the purposes of this example would be a person who witnesses this RTA from afar but is not directly harmed by its immediate effects.

The law relating to secondary victims is driven by significant public policy considerations, notably the prevention of a large number of ‘remote’ claims from bystanders and in effect draw the line as to who is categorised as a victim. This is even more important in a world of social media and 24 hour news services where people are potentially exposed to distressing scenes which may cause harm.

The law does not dispute that a witness may develop serious psychiatric illness, as is the case with Ms Weddle, but unless they can show further connection to the incident they will be unlikely to be successful in their claim.

The test to ascertain whether a witness is a secondary victim first asks the question whether it was reasonably foreseeable that the incident would cause psychological harm to the pursuer. If this test can be satisfied then it will be possible for a pursuer to proceed as a primary victim. If, however, the pursuer is unable to demonstrate the foreseeability of the harm caused they will be unlikely to succeed in their claim.

Guidance in respect of secondary victims is provided by the case of Alcock & ors v Chief Constable of South Yorkshire relating to the 1989 Hillsborough football stadium disaster which caused the deaths of 96 people, which found that in certain circumstances a secondary victim can successfully claim compensation for psychiatric harm.

The Supreme Court stipulated that for such a claim to succeed the claimant must have been a witness to the incident in question with a close tie of love and affection to a primary victim. The claimant must also be able to demonstrate proximity to the incident or its aftermath. Finally, the incident in question must be of a shocking nature capable of violently agitating the mind. (The principles set down in Alcock are often referred to under the test of “remoteness”).

The criteria set down by the Supreme Court provide for secondary victims to claim compensation where they were on the scene of the incident at or near the time in which a loved one was harmed.

Comment

Central to the failure of the pursuer’s case was that she was unable to satisfy the reasonable foreseeability test required in order to qualify as a primary victim. It is clear to see the need for well defined restrictions such as the foreseeability test and the remoteness principle, as demonstrated in Alcock, a decision of the Supreme Court which will remain law until either a contrary decision of the Supreme Court or further legislation on the subject. It is likely that some restrictions will always be required in this area; however matters such as this case from Glasgow concerning the dichotomy of primary and secondary victims will continue to be of significance.

For any further information regarding any aspect of the issues raised in this case, please contact Pamela Stevenson, Partner on 0141 375 0867 or email pamela.stevenson@weightmans.com

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