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Primary, secondary or neither?

Primary, secondary or neither?

In the past few years across the UK we have seen some reported decisions on psychological injury and the differences between primary and secondary victims. A recent decision of the All-Scotland Sheriff Personal Injury Court was taken to appeal. The judgment of Sheriff McFadyen from the Sheriff Appeal Court in Weddle v Glasgow City Council was released on 7 June 2021.

I wrote in an earlier article about the first instance decision in the above action. Danielle Weddle had raised a claim against the Council following the Glasgow Bin Lorry accident in December 2014 which caused the deaths of six people. The Pursuer, a student at the time of the accident, was in the immediate vicinity when the accident occurred. It is reported that she was “looking at her phone…heard a loud bang, looked up and saw two vehicles”. Sheriff McGowan held that the Council could not have reasonably foreseen that the driving of the bin lorry by their employee would have caused the risk of physical injury to the Pursuer that Ms Weddle had not suffered fear of physical injury at the relevant time.

Miss Weddle appealed the decision of Sheriff McGowan and criticised a number of findings in fact and the sheriff’s treatment of the evidence of some of the pursuer’s witnesses as well as the failure by the sheriff to take into account evidence that she had been in shock at the time she gave information to others on earlier occasions.

Where an individual is not injured physically as a result of an accident but suffers mental harm in the form of a recognised psychological or psychiatric injury, they can only recover damages against the person at fault in the accident or in this case the person’s employer, where he or she was directly involved in the accident.

Under the present law a secondary victim may claim damages for a psychiatric injury where they were a witness or bystander but did not have a reasonable fear of physical injury to themselves, if the mental harm arose out of an incident for which the Defender was responsible and where the victim satisfies the three criteria set down in the case of Alcock v Chief Constable of South Yorkshire Police (aka the Hillsborough case).

It was not suggested that Miss Weddle qualified as a secondary victim as she did not meet the additional criteria. She did not know any of the victims of the disaster. The only avenue open to Miss Weddle would be to recover damages as a primary victim. She therefore required to prove that she was in fact in fear of physical injury and that her fear was a reasonable one.

The Sheriff Appeal Court paid particular attention to the CCTV evidence of the accident and the immediate aftermath. The Pursuer’s evidence at the original hearing had been that the vehicles were heading towards her out of control but this evidence was at odds to that seen on the CCTV footage. The Appeal Court held that the Sheriff was not in error in finding that Miss Weddle did not in fact suffer fear of physical injury to herself. They also held that Sheriff McGowan was also correct in concluding that, if she did have such a belief or fear, then it was not a reasonable one. Miss Weddle therefore failed to prove that she satisfied the criteria of a primary victim, and her appeal was refused.

In my opinion it was always going to be extremely difficult to prove that Miss Weddle met the test for a primary victim. Whilst the aftermath of the bin lorry crash must have been a horrendous sight, the Pursuer in the present case was not in real danger of physical injury and therefore could not be said to have been directly involved in the accident. It is also important to remember the assistance that real evidence can give to the Sheriff when reaches his final opinion on the merits of a particular case. Ingathering all available evidence at the outset and reviewing this with reference to your client’s evidence is crucial. If you are involved in an accident then you should try and note the names and, ideally, contact numbers for any witnesses to your accident. If possible, take photographs of the cause of your accident. Note down any shops or commercial premises near to the accident site as they may have external CCTV cameras. The more evidence that can be ingathered to support your account of the accident circumstances will be extremely helpful.

If you have suffered an injury resulting in psychiatric damage, please contact Stephanie Watson on 0131 297 5988 or Alternatively, contact the Personal Injury Team on 0800 731 8434 who will be pleased to assist further or click here for further information.

About the author

Stephanie Watson
Stephanie Watson

Stephanie Watson


Personal Injury

For more information, contact Stephanie Watson or any member of the Personal Injury team on +44 131 297 5988.