Jacqueline witnessed a distressing accident to her 6-year-old son. A coping stone fell from the top of a wall on a housing estate where they lived, striking her son on the head. He fell unconscious and bled profusely from his head wound.
How we helped
We instructed a surveyor to examine the wall which highligted a defect in the construction. This had caused the water to become trapped underneath the coping stone resulting in it becoming unsteady, eventually causing it to fall off.
The report was sent to the insurers for the Local Authority. However, they responded denying liability for the incident.
We therefore had to raise Court proceedings before the Local Authority would accept liabilty for the incident.
Once liability had been accepted, the claim for Jacqueline's son was fairly straightforward. However, the claim for Jacqueline was difficult and challenging. The courts do limit the circumstances in which a secondary victim claim can be made. This involves imposing a number of policy controls including:
- There has to be a close tie of love and affection between the primary and secondary victim;
- The secondary victim must directly perceive the accident either by seeing it or hearing it;
- The secondary victim must suffer shock as a result of witnessing the accident;
- They must then go on to develop a recognised psychiatric or psychological illness; and
- They must prove that the accident was sufficiently shocking so that it was reasonably foreseeable that an average parent possessing an ordinary level of fortitude would have suffered shock and gone on to develop a psychiatric or psychological condition as a result.
In this case however, there was no difficulty meeting the first four policy controls, it was difficult to prove the last one.
As an agreement could not be reached, we required to proceed to a final hearing for the Court to reach a decision.
We instructed a report from a psychologist who provided a favourable report. We managed to successfully persuade the Court that the accident was so shocking that it woudl have been reasonably forseeable to the Local Authority that she would have suffered shock and gone onto develop a psychological illness.
Settlement
The court awarded Jacqueline approximately £3,500. The amount of compensation would have been higher. However, Jacqueline had a complicated medical history making it difficult to work out what symptoms she had after witnessing the accident were caused by the accident and what was caused by her previous medical history.
