The law in this area is outdated, like most of the Fatal Accident Act 1976, the law that has been made since the passing of the Act and everything before it. The Fatal Accident Act 1976 is now 40 years old. The family unit in the day, typical white ‘Christian’ Male and Female, married with 2.2 children has changed dramatically since the laws have been passed. Today divorce rates have rocketed, there are less marriages, people choosing to live together, same sex marriages and so on.
The fatal accident laws however still are ‘back-in-day’ typically the claim for compensation following an unlawful killing in an accident at work or road traffic accident for instance, stems from the bread-winner (typically the husband) losing his life, the the wife and children claiming the dependency award and bereavement. When things don’t fit in, there tends to be unnecessary heartache.
But what then on the question of nervous shock following a loved one witnesses the death of a loved one. Often in road traffic accidents and in disaster cases such as airplane crashes and the Hillsborough Disaster.
Nervous Shock – Secondary Victim
Compensation for nervous shock is governed by old law passed before the internet and social media. A claim for nervous shock can be made if a close relative, normally the next of kin, witnesses the death of a loved one and suffers some form of psychiatric injury or ‘nervous shock.’ The law limits the family members who can claim by using the words ‘close love and affection between the person killed (primary victim) and the family member in shock (secondary victim).
As a result of witnessing the tragic events, (the court has in mind ‘eye witness’) due to the close proximity of the relationship and witnessing the event, if harm occurs a claim for compensation can be made against the party at fault.
However, what if the family member did not ‘eye witness’ the event but came to the scene of the accident in minutes after the fatal accident? The closer in time and space following the accident and witnessing the scene the more likely the court will grant an award of compensation for the psychiatric shock.
The fact that a close family member may witness a disaster for instance on TV (Hillsborough disaster springs to mind) or on Social Media, unfortunately will not give rise to a claim. The law is based on public policy not by rational understanding. Once again the Courts have concerned themselves with opening the ‘flood-gates’ of claims.
The law under the Fatal Accidents Act 1976 needs updating quickly and so does the common law where nervous shock arises following a fatal accident so that proper compensation can be awarded to help the family, the victims of such tragic and catastrophic events. Compensation is not a dirty word, we are getting to a point where people have to justify an award. It is awarded to help the family not get into poverty, to help pay the bills and just relevie some of the stress following the death of a loved one and here, in addition a further family member also suffering a mental illness.