Supreme Court Hears Clinical Negligence Secondary Victim Case

Paul and others v The Royal Wolverhampton NHS Trust and others

The issue of whether a person who witnesses a violent and/or shocking event caused by the negligence of another can claim compensation for any psychiatric injury they have suffered has always presented a challenge for the Courts. On the one hand, it seems fair and reasonable that a so-called secondary victim of an incident who suffers mental health problems due to witnessing a shocking event has just as much right to be compensated as the primary victim. However, the Courts must balance this with the threat of opening the floodgates to a swathe of claims by people who have seen a horrible event and say they have been psychologically damaged. For instance, imagine if everyone around the world who watched the events of September 11 on television was able to bring a personal injury compensation claim. The Courts would be in chaos.

The law around claiming compensation as a secondary victim in personal injury cases is well-established. In the leading case of Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310, which concerned claims from secondary victims of the Hillsborough tragedy, Lord Oliver set out five elements that must be proven by a secondary victim to prove proximity to the primary victim and the event:

[F]irst, that in each case there was a marital or parental relationship between the plaintiff and the primary victim; secondly, that the injury for which damages were claimed arose from the sudden and unexpected shock to the plaintiff’s nervous system; thirdly, that the plaintiff 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, fourthly, that the injury suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim. Lastly, 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 plaintiff’s perception of it combined with a close relationship of affection between the plaintiff and the primary victim” (emphasis added).

In addition to legal proximity, for a claim to succeed it must have been reasonably foreseeable to the defendant that “in that combination of circumstances [the five elements] there was a real risk of injury of the type sustained by the particular [claimant] as a result of his or her concern for the primary victim”.

In reality this is an extremely high threshold to pass and only a small number of claims succeed. Whether such a high threshold is required in cases involving secondary victims of medical negligence was considered by the Supreme Court when it recently heard the case of Paul and others v The Royal Wolverhampton NHS Trust and others.

Background to the case

The case involves three separate appeals, all concerning claims for secondary victims in personal injury cases.

1. The two children of the primary victim (Mr Paul) witnessed him having a fatal heart attack whilst out shopping. His family claimed that the defendant was negligent in failing to perform coronary angiography in November 2012 which would have revealed coronary artery disease that could have been successfully treated by coronary revascularisation.

2. As a result of witnessing the collapse, unsuccessful attempts to resuscitate, and the death of a small girl, the first claimant developed post-traumatic stress disorder and major depression. The second claimant was subsequently treated for post-traumatic stress disorder and major depression with addictive behaviour. The defendant admitted it had failed to diagnose the respiratory condition that ultimately killed the child.

3. The claimant developed post-traumatic stress disorder, severe chronic anxiety, and depression after witnessing her daughter die of severe pneumonia which, it was claimed, the defendant did not properly assess or diagnose.

The Court of Appeal’s decision

After undertaking a thorough review of the existing case law around secondary victim personal injury claims, the Court of Appeal stated the crux of the issue is how the existing case law authorities are to be applied to clinical negligence cases where there is a delay between the negligent act or omission and the horrifying event caused by the negligence. For example, in the case of Mr Paul, the misdiagnosis (the negligent act) occurred 14 months before his actual death.

The most significant cases to date concerning the event caused by the defendant’s negligence and the claimant’s witnessing of the shocking event (i.e. the victim’s death) is Taylor v Novo (UK) Ltd [2014] QB 150, [2013] EWCA Civ 194. In Novo, the claimant’s mother suffered injuries to her head and left foot after a fellow employee tipped a stack of racking boards over her. The defendant employer admitted negligence. After making a good recovery, some three weeks later the mother suddenly collapsed and died in the presence of the claimant daughter. The mother had suffered a deep vein thrombosis and consequent pulmonary emboli, which were caused by the injuries sustained in the accident. The claimant daughter suffered significant post-traumatic stress disorder as a result of witnessing her mother’s death.

The High Court found for the claimant; however, this was overruled by the Court of Appeal on the grounds the claimant was not present at the original accident involving the racking boards. Lord Dyson, who delivered the judgment, also noted that in previous cases, the courts had ruled that case law should not develop the law around secondary victims too much further as this task should be left to Parliament.

“In the present case, [the defendant’s] negligence had two consequences which were separated by three weeks in time. The judge described them as two distinct events. The use of the word “event” has the tendency to distract. In reality there was a single accident or event (the falling of the stack of racking boards) which had two consequences. The first was the injuries to [the mother’s] head and arm; and the second (three weeks later) was her death. There was clearly a relationship of legal proximity between [the defendant and the mother]. Moreover, if [the daughter] had been in physical proximity to her mother at the time of the accident and had suffered shock and psychiatric illness as a result of seeing the accident and the injuries sustained by her mother, she would have qualified as a secondary victim on established principles But in my view, to allow [the daughter] to recover as a secondary victim on the facts of the present case would be to go too far. I have reached this conclusion for two inter-related reasons”.

The two reasons that Lord Dyson gave were:

(i) the daughter would have been able to recover damages for psychiatric illness even if her mother’s death had occurred months, and possibly years, after the accident, and the concept of proximity to a secondary victim cannot reasonably be stretched this far, and

(ii) to allow liability would extend the scope of liability to secondary victims considerably further than has been done up to that time. As confirmed by previous cases, this should only be done by Parliament.

The Court of Appeal in Paul considered itself bound by Novo. Sir Geoffrey Vos, Master of the Rolls concluded:

“In my judgment, 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.”

Concluding thoughts

Upon reading Sir Geoffrey Vos’s judgment in Paul, it comes across noticeably that he is uncomfortable with the decision in Novo. This is one of the reasons an appeal to the Supreme Court was immediately granted.

“I have, as I have already said, reservations about whether Novo correctly interprets the limitations on liability to secondary victims contained in the five elements emerging from the House of Lords authorities. Subject to hearing further argument, therefore, I would be prepared to grant permission to the claimants to appeal to the Supreme Court, if sought, so that it can consider the important issues that arise in this case.”

The issue of compensation for secondary victims is never going to be easy to resolve. However, the nuances of such cases seem too delicate for the heavy hand of legislation, which must, due to the nature of a statutory instrument, provide a ‘one size fits (almost) all’ approach. It would seem to me that the courts are best placed to approach each situation on its facts and provide outcomes that balance providing justice and compensation to the victim/s whilst ensuring the floodgates stay firmly closed against most claims.

We will provide an update on this case once the Supreme Court delivers its decision.