Sexual abuse, “nervous shock” and secondary victims

In this episode, the team discuss the subject of secondary victims.

Practitioners will be well used to being asked by the family of a survivor of child sexual abuse or, indeed, generally whether they can claim compensation for the trauma that they too may have suffered? Invariably we will explain quite simply that the law does not see them as a victim and so cannot be compensated.

It is a question which is, perhaps, one we should give more thought to and, especially, so given that the Supreme Court is to consider it albeit in a clinical negligence setting:

Can an individual  make a claim for psychiatric injury caused by witnessing the death or other horrifying event of a close relative  as a result of earlier clinical negligence?

The law may be on the move or at least clarified because whilst it is understood why parent A say witnessing their child sustaining serious injuries in a road traffic accident suffers psychiatric injury should be compensated as a secondary victim, but what causes difficulty as the law stands is when parent B who was not on the scene also seeks damages having similarly suffered.

A parent who has discovered that their child has been sexual abused understandably is at best going to be very concerned if not distressed, and can too often carry a misplaced burden of guilt. It is not too great a step to take to see how they could suffer psychological damage.

Like parent B the survivor’s parent is most unlikely to have been present when the sexual abuse took place, and so where does the law currently place them as a secondary victim?

The question turns on the relevance of any time intervals between the tortious act for example the accident, or for argument’s sake the sexual abuse and the damage caused by it, and the “horrific event” that ultimately causes the psychiatric injury to the claimant.

To establish that necessary legal proximity as a secondary victim there are five elements to establish:

1. That in each case there was a marital or parental relationship between the Claimant and the primary victim;
2. that the injury for which damages were claimed arose from the sudden and unexpected shock to the Claimant’s nervous system;
3. the Claimant in each case was either personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards; and
4. that the injury suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim.
5. In each case there was not only an element of physical proximity to the event but a close temporal connection between the event and the Claimant’s perception of it combined with a close relationship of affection between the Claimant and the primary victim“

Witnessing a fatal accident is one thing, but should the law treat the parent differently if the child dies some months later from the his/her injuries? Likewise, should the parent be treated differently if their psychological injury was immediate as opposed to not developing until the child dies some months later?

As the law stands these are not easy questions to answer, and are certainly no easier when considered in the context of sexual abuse.

To explore the questions further let us take as a scenario as an example of a child having been sexually assaulted running immediately to their parent who suffers a psychiatric injury having learnt what has happened.

The five elements are arguably established:

1. Parental relationship;
2. Sudden and unexpected shock;
3. The parent was in the immediate vicinity;
4. The parent’s injury arose from witnessing the injury viz the child running home having been sexually assaulted;
5. The parent who was close to hand witnessed the immediate aftermath of the sexual assault.

Turning to another scenario where the child dies of a drugs overdose having become addicted as result of the sexual abuse suffered but many months after it ceased, and the parent suffers a psychiatric injury as a consequence.

The five elements are far more challenging to establish in this scenario:

1. The parental relationship is established;
2. The parent arguably has suffered a sudden and unexpected shock as a result of their child’s death;
3. Let us say for argument’s sake the parent was present when the child died form the overdose;
4. The parent witnessed the child’s pain and suffering viz the overdose;
5. There is however a time gap between the sexual abuse and the death.

It is because of this time gap between the sexual abuse and the death that causes the potential claim to fail. Had the parent witnessed the immediate aftermath of the sexual abuse the position would arguably be different.

In Australia statute can come to the aid of secondary victims.

The father RWQ claimed compensation for his psychiatric injury he suffered arising from the death of his son AAA who he alleged had been sexually abused by the late Archbishop George Pell. AAA had turned to drugs it is alleged because of the sexual abuse and died from an overdose.

RWQ commenced proceedings against the Catholic Archdiocese of Melbourne and Archbishop Pell claiming that having learned of the sexual abuse and his son’s death he suffered nervous shock.

The court ruled that the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) (the Act) applied because RWQ’s claim arose out of child abuse and the Act was not limited to claims by plaintiffs who had been subjected to child abuse (“primary victim”) but applied to RWQ because whilst he did not allege that he was subjected to child abuse per se he nevertheless could because his claim arose from it (“secondary victim”).

Interestingly the Act’s objective is to make is simpler to suing unincorporated associations. It is against that backdrop that RWQ is considered to be a secondary victim and one entitled to seek compensation.

Whilst the statute and the decision in RWQ has no standing in the UK the principle that a parent of a child abuse victim could claim compensation is significant and, particularly so, given the increasing understanding of intergenerational trauma. Only policy considerations could prevent the law developing along a similar path in the UK.