The question of whether a person who witnesses a traumatic event caused by another’s negligence can claim compensation for psychiatric injury has long challenged the courts. On the surface, it may seem fair that a secondary victim who develops mental health difficulties should receive compensation. However, the courts must also prevent an unmanageable expansion of liability.
For that reason, judges have consistently sought to strike a careful balance. Without strict limits, a vast number of claims could arise from people who witness distressing events indirectly. To illustrate the concern, if everyone who watched the events of 11 September on television could bring a claim, the legal system would struggle to function effectively.
As a result, the law surrounding secondary victim claims has developed cautiously and remains tightly controlled.
The law on secondary victims in personal injury cases is well established. The leading authority is Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310, which arose from claims following the Hillsborough disaster.
In Alcock, Lord Oliver identified five key elements that a secondary victim must prove to establish sufficient proximity to both the primary victim and the traumatic event:
In addition, it must have been reasonably foreseeable that a person in the claimant’s position would suffer psychiatric injury as a result of those combined circumstances.
In practice, this creates a very high threshold. Consequently, only a small number of secondary victim claims succeed.
Against this background, the Supreme Court considered whether the same restrictive test should apply to secondary victims of medical negligence in Paul and Others v The Royal Wolverhampton NHS Trust and Others.
Importantly, the case involved three separate appeals. Each appeal concerned psychiatric injury suffered by individuals who witnessed the death of a close family member following alleged medical negligence.
The Paul Case
Mr Paul’s two children witnessed him suffer a fatal heart attack while shopping. The family alleged that the defendant NHS Trust was negligent in failing to carry out coronary angiography 14 months earlier, which would have revealed treatable coronary artery disease.
The Second Appeal
Two claimants developed post-traumatic stress disorder and major depression after witnessing the collapse, attempted resuscitation, and death of a young child. The defendant admitted failing to diagnose the respiratory condition that caused the child’s death.
The Third Appeal
A mother developed PTSD, severe anxiety, and depression after witnessing her daughter die from pneumonia. It was alleged that the condition had not been properly assessed or diagnosed.
After reviewing the authorities, the Court of Appeal identified the central legal issue. Specifically, the court examined how existing case law applies where a delay exists between the negligent act and the traumatic event witnessed by the claimant.
For example, in Mr Paul’s case, the alleged negligence occurred more than a year before his death. As a result, the court had to decide whether that delay defeated the requirement for proximity.
To resolve this issue, the Court of Appeal relied heavily on an earlier decision.
The most influential authority was Taylor v Novo (UK) Ltd [2014] QB 150. In that case, the claimant’s mother suffered injuries at work due to her employer’s negligence. Although she initially recovered, she later collapsed and died from complications caused by those injuries.
Crucially, the claimant witnessed her mother’s death and developed PTSD. Despite this, the Court of Appeal rejected the claim because the claimant was not present at the original accident.
Lord Dyson explained that the relevant “event” was the workplace accident itself, not the later death. Allowing recovery in those circumstances would, in his view, stretch the concept of proximity too far. Furthermore, he emphasised that any expansion of liability should come from Parliament rather than the courts.
In Paul, the Court of Appeal considered itself bound by Novo. Sir Geoffrey Vos, Master of the Rolls, concluded:
“Novo does preclude liability in the circumstances of these cases, even where a horrific event is the first occasion on which any damage is caused to the primary victim.”
Sir Geoffrey Vos, Master of the Rolls
As a result, the secondary victim claims were not allowed to proceed.
Despite dismissing the claims, Sir Geoffrey Vos expressed clear reservations about whether Novo had been correctly decided. For that reason, the court granted permission to appeal to the Supreme Court.
In his view, the Supreme Court should reconsider how the Alcock principles apply in medical negligence cases, particularly where the shocking event represents the first manifestation of harm.
Secondary victim claims remain legally and emotionally complex. Nevertheless, the courts may be better placed than Parliament to address these issues on a case-by-case basis. By doing so, they can deliver justice where appropriate while still preventing the floodgates from opening too wide.
We will provide a further update once the Supreme Court delivers its decision.
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